Archived - Decision: 09-022-S Canada Labour Code Part II Occupational Health and Safety

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Decision 09-022 

Case No.: 2008-21
Stay decision
 
Decision No.: OHSTC-09-022 

Royal Canadian Mounted Police
Appellant/Requester

And

Sgt. Scott Warren
Respondent

May 26, 2009

This is a decision following a request for a stay of a direction heard by Michael Wiwchar, Appeals Officer.

For the appellant
Mr. Neil McGraw, Counsel for the employer, RCMP

For the respondent
Sgt. Scott Warren, Vancouver Island, Staff Relations Representative

Introduction

[1] This matter is in regards to a request for a stay of a direction brought under subsection 146(2) of the Canada Labour Code (the Code), Part II. A direction in accordance with subsection 145(1) of the Code was issued to the RCMP, the employer, by Health and Safety Officer (HSO) Martin Davey on July 11, 2008 in regards to a work place operated by them. The direction is attached as "Appendix A".

[2] On May 6, 2009, in the course of the hearing into this appeal, Mr. McGraw, on behalf of the appellant, requested a stay of the said direction.

[3] On August 8, 2008, Mr. Harvey Newman, in replacement of Mr. Richard Fader who was on vacation at the time, requested an "interim stay" for a period of one month because he was not ready to provide full submissions in support for the stay. This request was denied by my colleague, Appeals Officer Pierre Guénette, in a decision rendered on August 8, 2008 with reasons dated August 27, 2008.

[4] I have decided to entertain a second request for a stay of HSO Davey’s direction even though it is very unusual for the Tribunal to do so. I will hear this request due to the fact that Mr. Guénette’s decision mentions that Mr. Newman did not provide full submissions and because Mr. McGraw submitted that additional international events will be held.

[5] Each party provided me with written submissions which I have carefully considered.

Analysis of the Submissions

[6] The parties submitted arguments based on the three fold test developed by the Supreme Court of Canada in Metropolitan Stores Ltd..1 The three elements of the test are:

  1. Serious issue to be tried
  2. Issue of irreparable harm and
  3. Balance of inconvenience. The Tribunal has added a fourth criterion to further protect the paramount objective of the Code to protect the health and safety of employees;
  4. The measures the employer has taken to protect the health and safety of the employees.

[7] I will address the parties’ submissions pertaining to the above test and I will consider the elements as they were presented to me by the parties in their submissions.

A) Serious Issue to Be Tried

[8] Both parties submitted that the issue to be tried is serious and I concur with them.

B) Issue of Irreperable Harm

[9] Mr. McGraw, on behalf of the appellant, submits that while the half-necklace technique, which is used by divers to inspect the hulls of ships/vessels, is utilized in very limited circumstances the technique will, nevertheless, be required to fulfill the RCMP’s security responsibilities for the 2010 Olympics in Vancouver as well as for other international events upcoming in June 2009 and the summer of 2010.

[10] He further submits that the RCMP will be required to inspect the hulls of ships in these locations to ensure the security objective is met, that is, to ensure a proper and complete inspection of the hull is conducted. Although the technique in question is used on a very limited basis, it would cause irreparable harm to the RCMP and potentially the public, to bar its use completely in the context of the above mentioned events.

[11] The appellant’s position is that when risks and hazards are properly addressed and mitigated the half-necklace technique is the safest method of ensuring a complete search of a vessel, depending on its size and shape.

[12] Mr. McGraw concluded by stating that the employer has the responsibility to protect persons as defined in the RCMP Act and its Regulations.

[13] Sgt. Warren, on behalf of the respondent, submits that there are other techniques available which alleviate any inability to complete a search thereby ensuring the security objectives and that the mandate can be fulfilled utilizing other techniques and equipment that employees are trained to perform. The other options he mentions include the use of surface supplied air and cameras.

[14] Sgt. Warren states that the half-necklace technique can never be the safest search technique unless certain aspects of the technique are defined in the policy. He submits that the half-necklace technique was not intended for large vessels and the employer’s intention is to use the technique to search vessels the size of cruise liners which the policy inaccurately defines as a medium size vessel.

[15] The respondent further submits, in response to the requirement of the use of the technique for an upcoming international visit in June 2009, that there is no indication that a vessel will be involved in this event.

[16] Justice Shore of the Federal Court has recently 2 reiterated a Federal Court of Appeal ruling 3 that the onus is on the applicant to demonstrate, through clear and convincing evidence of irreparable harm, that the extraordinary remedy of a stay is warranted. Irreparable harm must constitute more than a series of possibilities and cannot be simply based on assertions and speculation. On the face of the submissions presented to me on this element the appellant has not satisfied his onus of establishing that the employer, in the achievement of its mandate, will suffer irreparable harm should I not grant the stay of HSO Davey’s direction.

[17] My authority is derived from the Code therefore I must exercise my discretion in a way that furthers the purpose of the legislation, that is, the protection of health and safety of employees.

[18] This technique is used in very limited circumstances and from what I understand, the employer can substitute this technique for another safe method or take alternative safe measures until the hearing is concluded and my decision is rendered. Furthermore, I believe that in doing so the RCMP’s mandate and objective can be achieved while taking into account the health and safety of employees and all persons including the public and dignitaries.

[19] As for responding to the upcoming events in June 2009 and the summer of 2010, it has been submitted that other safe techniques and safe alternative measures are available to address the yet unknown circumstances of these events.

[20] Since the test for a stay is conjunctive, it is not necessary to address the remaining elements of balance of convenience and the measures the employer has taken to protect the health and safety of the employees having decided that there is no irreparable harm.

[21] Furthermore, both parties have included in their submissions evidence adduced during the first days of the hearing from the testimony of witnesses. Given that the parties will be presenting further evidence through witnesses in support of their respective positions regarding this highly technical matter I find it very difficult at this stage to pronounce myself on whether or not the health and safety of employees is ultimately protected without hearing the case in its entirety.

[22] My colleague, Mr. Guénette, in paragraph 22 of his written reasons dated August 27, 2008, stated the following:

[22] In my opinion, the diving team will suffer a greater harm from the granting of an interim stay. I consider that the employer had enough time to deal with the search diving procedures that HSO Davey identified in his investigation. In addition to that, I believe that the employer will not suffer a greater harm if I am not granting the stay because their employees could continue to perform their diving duties by using safe alternative search techniques.

[23] Having had the benefit of thorough submissions, I come to the same conclusion as my colleague.

Decision

[24] For the reasons stated above, the request by the appellant for a stay of the direction is denied and the employer shall make every reasonable effort to comply with the direction.

Michael Wiwchar

Appeals Officer


[1] Return to footnote 1 Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, Docket 19609

[2] Return to footnote 2 Petrovych v. Canada (Minister of Public Safety and Emergency Preparedness), 2009 FC 110

[3] Return to footnote 3 Atwal v. Canada (Minister of Citizenship and Immigration), 2004 FCA 427

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