Archived - 2009 OHSTC 31

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Date: 2009-11-17
Case No.: 2008-21
Between:
Royal Canadian Mounted Police, appellant

and

Sergeant. Scott Warren, respondent
Decision rendered by: Michael Wiwchar, appeals officer
Language of decision: English
For the appellant: Neil McGraw, Counsel
For the respondent: Scott Warren, Staff Relations Representative
Citation: 2009 OHSTC 31

Appeal

[1] What follows are the reasons for the decision of the undersigned Appeals Officer issued to the parties on August 27, 2009.

[2] This appeal was filed on July 24, 2008, by the RCMP, the employer, under subsection 146.(1) of the Canada Labour Code, Part II, (Code), regarding seven items stated in a direction issued by health and safety officer (HSO) Martin Davey, on July 11, 2008, under subsection 145.(1) of the Codeand the Canada Occupational Safety and Health Regulations (Regulations). A hearing was held in Vancouver, British Columbia, from May 5 to 8 and July 27 to 31, 2009.

Background

[3] On August 5, 2008, an application was made by the employer to stay the direction which was subsequently denied on August 27, 2008. During the first segment of the hearing, the appellant made another application to stay the direction. The application was denied in a decision rendered on May 26, 2009.

[4] On February 18, 2009, a procedural Order for an in camera hearing was granted following an application made by the appellant. The Order stated that the appeal hearing would be held in camera and that any evidence adduced and any written submissions that would disclose sensitive police security techniques and methods are expressly prohibited from disclosure including evidence in support of the HSO’s testimony. Evidence that I believe may meet these criteria will be under separate cover in the appendices at the end of these reasons.

[5] On April 28, 2009, the appellant requested a summons which was issued to the HSO requesting that he bring to the hearing all documents used or consulted in reference to this case. At the hearing during testimony, the HSO raised a concern regarding the issue of confidentiality applying to informant communications pursuant to subsection 144.(6) of the Code following the request by appellant’s counsel to produce the documents. The HSO presented a letter stating his concerns regarding the issue. The letter was entered into the record and submissions on the issue were received from the parties.

[6] On this issue, I ruled that the statutory obligation only restricts divulging the name of the informant not the communication or information itself. The HSO was requested to redact the names of all employees from the documents. The parties then received the redacted versions of the documents with one non-redacted copy for my review only.

The facts

[7] The direction (Appendix “A”) was issued following an investigation into a complaint made to the HSO on August 2, 2007, by Corporal (Cpl) W.P., an employee and member of the “E” Division Underwater Recovery Team (URT). Cpl W.P. broached the subject of hazards to URT divers, associated with certain underwater search patterns (the techniques at issue), with the HSO during a diving training course they both attended that was put on by a third party. Upon receipt of the complaint the HSO conducted his investigation into the issues raised by the employee.

[8] During the HSO’s testimony an undated report was entered into the record pertaining to the findings of his complaint investigation which he stated was written between July 24th and August 21st, 2008. I will make reference to this report as well as the HSO’s testimony to explain the issue and circumstances he considered to be the contraventions stated in the direction.

[9] The HSO stated that his investigation consisted of a review of diving standards as well as discussions with authorities from organizations and other regulatory jurisdictions knowledgeable in diving safety. He also interviewed active and past employee URT members; he attended meetings and; he had discussions with employees, employer management and employee staff relations representatives.

[10] The issue of concern involved using the techniques at issue during underwater searches conducted by URT divers in overhead environments namely beneath the hull of ships or beneath piers. The HSO focused his investigation on underwater communications, the location of divers, tethering and the employer’s diving policies and procedures.

[11] The employer entered their complete diving policy into evidence, which was described in section 52 of the employer’s operations policy manual. In the interest of respecting the Order regarding the disclosure of evidence mentioned in paragraph 4, I will defer describing the specific procedures and techniques and my comments will only refer to section 52 in general terms as it relates to hull searches and piers using the techniques at issue (Appendix “B”).

[12] The HSO concluded that the techniques at issue for inspecting the hulls of ships were not appropriate given the hazards described to him by employees and from the advice of other diving authorities. The HSO was not satisfied that the employer’s policies and procedures were adequate to address the hazards. Specifically, the HSO found that the techniques at issue were not safe given the manner hazards were assessed and because better methods exist to perform the work.

[13] The HSO was concerned about the hazard and risk to divers to become lost or disassociated and the potential loss of communications. He alleged that there was a history of divers being lost during tasks in the North American and European commercial diving communities when the techniques at issue were used. This information was gathered by him through searching the internet.

[14] The HSO based the direction on the testimony from experienced persons in the work place (for example, dive team members) and from persons with knowledge about diving from either outside his department or from outside the jurisdiction of the Code (for example, Department of Fisheries and Oceans and Canadian Coast Guard, Ontario Ministry of Labour, Worksafe BC). The representatives from the Ontario and British Columbia jurisdictions stated to him that the use of the techniques at issue in an overhead environment was not permitted in their jurisdictions.

[15] The HSO alleged the employer was not using the safest method and he surmised from his investigation that there were better methods to be used that included the following:

• one diver using surface supply air delivery thus ensuring constant communication with the surface and preventing a diver from becoming lost due to being attached to the supply line;
• one diver – as opposed to a group – on a tended lifeline along with a communication system;
• no diver – a search conducted by a surface operated machine called a Remote Operated Vehicle (ROV).

[16] The HSO alleged that the through-water two way voice communication system as well as the back up system between the divers and the divers to the surface used during the techniques at issue were not reliable or ensured. The back up system of line tugs and hand signals were not effective and he does not believe it was possible to rely on the diver’s peripheral vision to watch out for each other due to the task being performed. He came to this conclusion based on the conversations he had with the former and active divers of the URT.

[17] The HSO alleged that the diver’s tender was no longer attending to the diver should a communication failure occur. The HSO also alleged that, according to his interpretation, the Regulations require that there be more than one diver’s tender for multiple divers.

[18] The HSO alleged that the standby diver was no longer attending to the diver should a communication failure occur. The standby diver in that instance may not be aware of the need for assistance by the submerged diver and therefore a standby diver would not be present and thus not meet the requirement. The HSO also alleged that, according to his interpretation, the Regulations required that there be more than one standby diver for multiple divers.

Issue

[19] The issue raised in this appeal is whether HSO Davey erred in his direction to the employer pursuant to subsection 145.(1) of the Code.

Joint submission from the parties

[20] On July 29th 2009, during the presentation of the appellant’s case which consisted of the testimony from four witnesses to that point, a request was made by the parties to adjourn the hearing in order for discussions to take place between employer and employee representatives.

[21] On July 31st, Mr. McGraw and Sergeant Warren submitted a document in the form of an agreement that addressed each item in the direction and the manner the parties will deal with the issues which arose from the direction (Appendix “C”).

[22] The parties, at that juncture, indicated that they rested their respective cases and they requested that I proceed with the rendering of my decision based on the evidence presented.

[23] The appellant concluded their case by requesting that I rescind the direction. Based on their evidence and arguments, the employer’s position was that it did not contravene any of the Code or Regulations requirements as stated by the HSO in the direction.

[24] The respondent concluded their case by stating that; if violations existed at the time of the issuance of the direction, they were now satisfied following the agreement that the contraventions no longer exist. The respondent did not present any evidence. At that point, the submission document was accepted and the hearing was closed.

Analysis

[25] The appellant did not withdraw the appeal therefore I must exercise my jurisdiction under subsection 146.(1) of the Code and determine the validity of the direction issued pursuant to the Code and Regulations.

[26] The submissions and evidence before me consisted of the HSO’s testimony and report, the appellant’s evidence provided through four witnesses and the joint submission from the parties.

[27] During his testimony, the HSO entered into the record his investigation report which he stated was produced for the appeal after the direction had been issued to the employer. I appreciate that the report was well prepared and it was informative such that it provided a clear chronology and background regarding the circumstances and issues that led to the issuance of the direction. However, for the reasons below, I did not find that neither his testimony nor the report provided me with much help for the purpose of my analysis.

[28] An investigation is initiated to gather facts that can be verified and evaluated especially if its purpose is to accuse a party of violating a federal statute. I did not find such factual elements in the HSO’s investigation report. The HSO’s opinions and conclusions were not anchored to his own diving knowledge or expertise because he admitted not having this experience, rather, the substance of the statements expressed in the direction were based on conversations, interviews and meetings with various individuals.

[29] Unfortunately none of these interviews were provided in the form of signed statements or affidavits. As a result, I am not factoring his findings into my analysis because hearsay, no matter how sincerely declared and apparently truthful, will not be accepted as evidence in the circumstances of this case. The HSO also contended that employees could not speak freely due to fear of reprisal, a topic that was brought up at times during the hearing. This is an issue outside the scope of this appeal. Employees do have recourse available to them in the Code under section 147 in these circumstances.

[30] I recognize that the discussions the HSO had with authorities and references to legislation and standards outside the purview of the Code may have been useful to the HSO in order for him to understand diving safety. However, they were neither relevant to the legal application of legislation under which this employer was obligated to comply nor to this appeal. Regardless of the fact that it may appear that a particular jurisdiction may have a contrary position or requirements that conflict with the Code, it cannot be used as evidence against an employer nor for that matter was an employer obligated to comply with them.

[31] As well, the HSO testified that some of the information was obtained through an internet search which, in the circumstances, I consider to be anecdotal at best.

[32] The HSO, on many occasions during his testimony, requested that I take him to his word; that I should talk to the employee divers; that issues will be better explained by the employee divers; or even that I should call a particular individual to ascertain some of the facts. All of these comments by the HSO lead me to conclude that, although perhaps sincere, his allegations were definitely not supported by evidence.

[33] My mandate is to decide, following a summary inquiry into the circumstances of the direction issued by the HSO, whether or not the employer violated the Code. The nature of the hearing is de novo, which permits me, within limits, to seek or receive evidence not considered by the HSO during his investigation. Then again, this should not be construed as meaning that I will be conducting a re-investigation into the issues. My role is to hear the facts as presented to me by the parties and then weigh and evaluate the evidence and arguments submitted by the parties.

[34] There is another important factor that I must consider in relation to the HSO’s investigation being that it was the basis for the direction. Counsel for the appellant submitted that the investigation was more orientated towards the positions and claims made by certain employee divers as well as positions made by individuals that were in support of the HSO’s perception of the issues.

[35] The appellant entered documents into evidence relating to communications between the HSO and the respondent’s representatives prior to writing the direction. As well, documents regarding discussions between the HSO and the respondent’s representatives prior to this hearing on matters that were directly related to the direction and on matters related to the selection of the respondent’s witnesses. These communications I find were inappropriate and indicative of the HSO not conducting an objective and fair investigation which in turn tainted the direction.

[36] The appellant submitted that the HSO did not give any credence to the employer’s position. The appellant’s position was that in essence the HSO misunderstood the techniques at issue, the equipment used and the employer’s safety procedures already put into place. The appellant highlighted that the HSO did not make any reference to any specific situation and overall his allegations were vague. After carefully considering the testimony and evidence provided by the HSO. I concur with the appellant on the above points.

[37] The appellant presented four witnesses when their case was finalized following the adjournment on July 29th, 2009, and the joint submission dated July 31st, 2009.

[38] The first witness for the appellant was Mr. J.H. a representative and employee of Ocean Technology Systems (OTS) the manufacturer of the underwater voice communication system provided by the employer and used by employee divers for the techniques at issue. Mr. J.H. is an experienced sport diver and divemaster and has a vast background in military and police work relating to diving. He occupies the position of Training Director - Public Safety/Military, and his duties involve demonstrations in the use and maintenance of the equipment and system.

[39] The second witness for the appellant was Sergeant (Sergeant) K.B., a thirteen year veteran of the RCMP occupying the position of Underwater Recovery Project Coordinator at the national policy centre. His role is to coordinate diving matters relating to training, equipment, policy and procedures in consultation with dive team leaders across the nation.

[40] Sergeant K.B. is a diver with approximately eight years experience as an URT member, twenty-four years as a sport diver and he is a certified dive instructor. He has taken all the employer’s courses related to divers and instructors with the exception of the dive supervisor course. He has performed approximately one hundred and fifty operational dives with the URT including sixteen operations and training dives using the search techniques at issue.

[41] The third witness for the appellant was Staff Sergeant (Sergeant) S.C. He is a thirty year veteran of the RCMP occupying a position with the Marine Ports Branch at RCMP National Headquarters. His role involves programs concerning; marine and port security; the research and analytical unit; and the emergency response team for the St‑Lawrence region. He was Sergeant K.B.’s predecessor at the URT policy centre.

[42] Sergeant S.C. is a diver, instructor and a URT member from 1987 to present, he has performed over six hundred dives which include some recreational dives the majority were URT related, and eighteen of his URT dives involved using the search techniques at issue in operations and training environments. He was involved in many specialized and high profile searches and recoveries as a diver and dive supervisor. He took part in major audits of the employer’s diving program and has worked closely with the training unit. He produced national policy, published in 1999, in accordance with the legislation and standards.

[43] The fourth witness was Lieutenant Commander (LCdr) T.D. from the Canadian Forces Navy. LCdr T.D. has been with the Navy for eighteen years; he is qualified as a Clearance Diver and is a team leader since 1998. He previously held the position of Senior Staff Officer responsible for diving and explosive ordinance disposal and costal warfare for Maritime Forces Pacific. He is in charge of ninety-eight personnel that included fifty clearance divers, reserve divers, engineers and support staff. He currently provides technical advice to the Admiral, first in command, on all matters relating to diving and the disposal of explosives, improvised explosive devices and ordinance items found on shore or under the water. Advice is given relating to policy matters, operations, allocation of resources, training and management of finances.

[44] LCdr T.D. has completed all diving courses required by the military and has supervised every type of dive technique required by the Canadian Navy for their operations. He has completed over three hundred dives and supervised over one hundred. The position named Clearance Diver is an elite position; they are the most proficient divers in the military and provide training to all other divers within the Navy. The military divers that are most comparable in duties performed by RCMP divers, that is, searching the hulls of ships and piers, are divers who are in the positions named Ship Team Divers and Port Inspection Divers. Their task is primarily to perform searches to identify and locate ordinance - not to dispose or detonate ordinance.    

Direction item no. 1

[45] The HSO alleged the employer contravened paragraph 125.(1)(p) of the Code which reads as follows:

• 125.(1)  Without restricting the generality of section 124, every employer shall, in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls the activity,
• (p) ensure, in the prescribed manner, that employees have safe entry to, exit from and occupancy of the work place;

[46] Regulations section 18.65 associated to the above paragraph as referenced in the direction reads as follows:

• 18.65  In a diving operation where the diver is not tethered to the surface by a lifeline or float, there shall be a through-water, two-way voice communication system between the divers and between the divers and the surface, and at least four persons present at the dive site, of whom
• (a) three are divers, one of whom is a standby diver; and
• (b) one is a diver’s tender.

[47] The HSO stated in his description of the violation, under this item of the direction, that the through-water two way voice communication system used between un-tethered divers and between the un-tethered divers and the surface during the search techniques at issue was known to sometimes fail in overhead environments such as beneath the hull of a ship or beneath piers due to obstructions and because divers are un-tethered.

[48] I find that the HSO did not submit any evidence that the through-water two way voice communication system supplied by the employer and used by employee dive team members was inadequate. The HSO was vague and confusing in his description of the violation and there was no evidence supporting the failures or the associated impact that would be caused by a failure. The HSO did not provide evidence specific to incidents related to voice communication system failures in an overhead environment such as beneath the hull of a ship or beneath piers caused by obstructions or because divers were un-tethered.

[49] On the other hand, I retain from the appellant’s witnesses that the OTS voice communication system used by the divers during the techniques at issue was effective and state of the art. The equipment was well suited for the intended purpose and was reliable. All witnesses stated that the primary failure that may occur would be caused by discharging/weakening batteries which were caused by either improper use or maintenance; the environmental conditions, that is, salt water and frigid water; or from normal wear and tear issues which were all recognized failures mitigated by the employer.

[50] I retain from the testimony of all the appellant’s witnesses who performed the techniques at issue that being beneath the hull of a ship, as described in the circumstances of this case, was not considered an overhead environment. Furthermore, they testified that the OTS voice communication system was completely functional and appropriate for searches under the hull of a ship when used and installed in accordance with the manufacturer’s requirements.

[51] I retain from the testimony of all the appellant’s witnesses their explanations and conclusions that a search beneath a pier was considered an overhead environment. Consequently, in this type as well in any other assessed overhead environment the search techniques at issue were not used. For that reason the communication issues as well as other issues raised by the HSO were not applicable given that a hazard assessment, in accordance with the employer’s diving policy and procedures, would identify an overhead environment prior to a dive.

[52] I retain, in relation to what is pertinent to this item of the direction, what has been agreed between the parties under items number 1 and 7 of the joint submission document (Appendix “C”).

[53] I am convinced, through the evidence adduced through the appellant’s witnesses and the joint submission, that the through-water two way voice communication system provided by the employer and used by the divers during the techniques at issue was reliable.

[54] Therefore I find that the employer did not contravene the Code or the Regulations purported by the HSO.

Direction item no. 2

 

[55] The HSO alleged the employer contravened paragraph 125.(1)(p) of the Code quoted in paragraph 45. 

[56] Regulations subsection 18.22(a) associated to the above paragraph as referenced in the direction reads as follows:

18.22 Every employer shall, for the purposes of paragraph 18.9(1)(h), ensure that all means of communication used at the dive site are

(a) appropriate for the operation;

[57] Subsection 18.22(a) references paragraph 18.9(1)(h) of the Regulations which reads as follows:

• 18.9(1) Every employer shall ensure that, for each dive, the dive team develops a dive plan that identifies the surface and underwater conditions and hazards likely to be encountered, including those arising from contaminated environments and underwater pressure differentials, and that specifies
• (h) the communication methods to be used;

[58] The HSO stated in his description of the violation under this item of the direction that the employer was not ensuring a reliable through water two way voice communication system that was appropriate for un-tethered divers using the techniques at issue in an overhead environment.

[59] Similarly to item one, I find that the HSO did not submit any evidence that the through-water two way voice communication system supplied by the employer and used by employee dive team members during searches involving the techniques at issue was inadequate or unreliable in regards to the circumstances stated in the direction. As well, the description of the violation by the HSO was vague and ambiguous.

[60] I retain from the testimony of the appellant’s witnesses that the OTS communication system was reliable and appropriate for use during the search techniques at issue. Both Sergeant K.B. and Sergeant S.C. testified that the employer has policies and procedures which include dive plans that assess and address the hazards including overhead environments prior to a dive for all dive techniques not only the techniques at issue.

[61] I retain from the testimony of all the appellant’s witnesses who performed the techniques at issue that being beneath the hull of a ship, as described in the circumstances of this case, was not consider to be an overhead environment.

[62] I retain from the testimony of all the appellant’s witnesses that the techniques at issue were never used in an overhead environment such as beneath a pier.

[63] I retain, in relation to what is pertinent to this item of the direction, what has been agreed between the parties under items number 1 and 7 of the joint submission document (Appendix “C”).

[64] I am convinced by the evidence adduced from the witnesses and the joint submission that the through water two way voice communication system provided by the employer and used in accordance with the dive plan and procedures set out in the employer’s policy by employee dive team members during searches involving the techniques at issue was reliable and adequate.

[65] Therefore, I find that the employer did not contravene the Code or the Regulations as alleged by the HSO.

Direction item no. 3

[66] The HSO alleged the employer contravened paragraph 125.(1)(q) of the Code which reads as follows:

• 125.(1) Without restricting the generality of section 124, every employer shall, in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls the activity,
• (q) provide, in the prescribed manner, each employee with the information, instruction, training and supervision necessary to ensure their health and safety at work;

[67] The Regulations subsection 18.4(1) associated to the above paragraph as referenced in the direction reads as follows:

• 18.4(1) Every employer shall establish written procedures and requirements that are to be followed and met by employees involved in diving operations and that specify which of those procedures and requirements
• (b) are to be implemented or met to counter any known hazards, including those arising out of contaminated or potentially contaminated environments, low visibility, hazardous water flow conditions and entrapment;

[68] The HSO stated, in his description of the violation under this item of the direction; when divers were conducting a search using the techniques at issue, while un-tethered, there was potential for divers to become dissociated from one another (in other words, diver removes hand from the search line and drifts away). Should the diver become dissociated in this manner, due to an emergency; the diver may not receive immediate assistance; the diver may not be able to summon assistance; or the diver may not be able to self rescue.   

[69] I find that the HSO did not provide any evidence through his testimony or his report that the employer contravened the quoted Code and Regulations provisions. There was no evidence that the employer did not provide information in the form of established written procedures or requirements nor was there evidence that they were not met or followed by employees to counter the hazards that may be encountered during searches involving the technique at issue. The HSO’s description of the violation in this item was vague and ambiguous. 

[70] I retain from the detailed testimony of the appellant’s witnesses, Sergeant K.B., Sergeant S.C. and LCdr T.D. that the techniques at issue were safe to use for the search of the hull of a ship, as described in the circumstances of this case, and would not be used for searches beneath a pier. Witnesses, Sergeant K.B. and Sergeant S.C. provided a comprehensive explanation of the employer’s written policy and procedures, that is, section 52 of the employer’s Operations Manual, and the manner in which it was implemented by divers when using the techniques at issue generally and when the known hazards, such as those described in the above Regulations, were encountered. They testified that the techniques at issue were only used if the hazards described in the Regulations were mitigated to ensure the safety of divers otherwise an alternative search technique was used.

[71] I retain from the testimony of all the appellant’s witnesses who performed the techniques at issue that being beneath the hull of a ship, as described in the circumstances of this case, was not considered to be an overhead environment.

[72] I retain from the testimony of all the appellant’s witnesses that the techniques at issue were never used in an overhead environment.

[73] I retain, in relation to what is pertinent to this item of the direction, what has been agreed between the parties under items number 3 and 7 of the joint submission document (Appendix “C”). 

[74] I am convinced by the evidence adduced from the witnesses and the joint submission that the employer provided necessary information and established written procedures and requirements and that they were followed and implemented by divers when using the techniques at issue generally and specifically when the hazards described in the above Regulations were encountered.

[75] Therefore, I find that the employer did not contravene the Code or the Regulations as alleged by the HSO.

Direction item no. 4

[76] The HSO alleged the employer contravened paragraph 125.(1)(p) of the Code as quoted in paragraph 45.

[77] Regulations subsection 19.5(1) associated to the above paragraph as referenced in direction reads as follows:

• 19.5(1) The employer shall, in order to address identified and assessed hazards, including ergonomics-related hazards, take preventive measures to address the assessed hazard in the following order of priority:
• (a) the elimination of the hazard, including by way of engineering controls which may involve mechanical aids, equipment design or redesign that take into account the physical attributes of the employee;
• (b) the reduction of the hazard, including isolating it;
• (c) the provision of personal protective equipment, clothing, devices or materials; and
• (d) administrative procedures, such as the management of hazard exposure and recovery periods and the management of work patterns and methods.

[78] The HSO stated, in his description of the violation under this item of the direction, that the employer was using the techniques at issue in overhead environments with un-tethered divers when a safer method of performing the work was available to the divers.

[79] The HSO, in paragraph 15, has concluded that there were better methods other than the techniques at issues that the employer could use to conduct searches in overhead environments.

[80] I find that the HSO was vague and ambiguous in his description of the violation. He did not provide any evidence through his testimony or his report that the employer did not take the necessary preventative measures to address hazards encountered during searches using the techniques at issue as stated in the Regulations.

[81] I retain from the testimony of all the appellant’s witnesses who performed the techniques at issue that being beneath the hull of a ship, as described in the circumstances of this case, was not considered an overhead environment.

[82] I retain from the testimony of all the appellant’s witnesses that the techniques at issue were never to be used in an overhead environment such as under piers.

[83] I retain from the testimony of witnesses, Sergeant K.B., Sergeant S.C. and LCdr T.D., that if a search was to be conducted under a pier, which they all consider to be an overhead environment, then the techniques at issue would not have been used. The witnesses stated that the techniques at issue were safe and proven search patterns and they were only used under appropriate conditions for the search of the hull of a ship. Witnesses’ Sergeant. K.B. and Sergeant S.C. stated that the techniques at issue were recognized and used by other police agencies such as the Ontario Provincial Police, Los Angeles Police Department for the Port of L.A. and the Federal Bureau of Investigation. The employer ensured that all divers were instructed and trained before using the techniques at issue.

[84] I retain from the testimony of LCdr T.D. that the techniques at issue were equivalent in safety and more efficient than the search technique using one diver on surface supply. He testified that a surface supply search, in the circumstances described in this case, would be more difficult and it would not be the technique of choice or preference for the search of a hull of a ship. All international navies that this witness has worked with utilize the techniques at issue because they were the easiest, most efficient and safest way to search a hull of a ship or the face of a jetty.

[85] This portion has been redacted to protect confidential information.

[86] I retain, in relation to what is pertinent to this item of the direction, what has been agreed between the parties under items number 4 and 7 of the joint submission document (Appendix “C”).

[87] I am convinced by the evidence adduced from the witnesses and the joint submission that the employer has taken the necessary preventative measures to address hazards related to the techniques at issue in the proper order of priority.

[88] Therefore, I find that the employer did not contravene the Code or the Regulations as alleged by the HSO.

Direction item no. 5

[89] The HSO alleged the employer contravened paragraph 125.(1)(p) of the Code as quoted in paragraph 45.

[90] The HSO associated subsection 18.65(b) of the Regulations to this item as referenced in the direction and as quoted in paragraph 46.

[91] The HSO stated, in his description of the violation under this item of the direction, that the employer was not, under all conditions, ensuring reliable communications in overhead environments when un-tethered divers performed the techniques at issue. Thus, when a communication failure occurred there was no diver’s tender attending to the diver.

[92] The HSO, in paragraph 17, has concluded that in addition to the statement above the Regulations, according to his interpretation, required that there be more than one diver’s tender for multiple divers.

[93] I retain from the testimony of the appellant’s witnesses, Sergeant K.B. and Sergeant S.C. that the employer’s policy stipulated under section 52 that in addition to the un-tethered divers in the water during the techniques at issue the employer mandated a minimum of four persons at the dive site, three of which were divers and one of which was a diver’s tender. The witnesses testified that if a communication failure occurred to any diver, secondary communication signals using hands and the search rope were utilized. Subsequently, the dive was terminated and the communication issue was addressed on the surface.

[94] The appeals officer opined, in regards to the episodes referred to in the above citation, that it would be somewhat of a leap, in the absence of the information noted by Dr. Weisel, to conclude that such exposure to contaminated bleed air results in health effects that would qualify as illness or injury to an employee.

[95] I retain, in relation to what is pertinent to this item of the direction, what has been agreed between the parties under items number 1, 5 and 7 of the joint submission document (Appendix “C”).

[96] I am convinced by the evidence adduced from the witnesses and the joint submission that the employer had at least four persons present at the dive site of which one was a diver’s tender.

[97] Therefore, I find that the employer did not contravene the Code or the Regulations as alleged by the HSO.  

Direction item no. 6

[98] The HSO alleged the employer contravened paragraph 125.(1)(p) of the Code which is quoted in paragraph 45.

[99] The HSO associated subsection 18.65(a) of the Regulations to this item as referenced in the direction and as quoted in paragraph 46.

[100] The HSO stated, in his description of the violation under this item of the direction that the employer was not, under all conditions, ensuring reliable communications in an overhead environment when un-tethered divers performed the techniques at issue. Thus, when there was a communication failure the standby diver may not have been aware of the need for assistance by the submerged diver. Furthermore, the standby diver may not have known exactly where the submerged diver was located meaning that for the purpose of the subsection there may not be a standby diver in conformance with the Regulations.

[101] The HSO, in paragraph 18, has concluded that in addition to the statement above the Regulations, according to his interpretation, required that there be more than one standby diver for multiple divers.

[102] I find that the HSO did not provide any evidence through his testimony or his report that the employer did not have an adequate through-water voice communication system between the divers and between the divers and the surface nor did he provide any evidence that the employer did not provide a standby diver during the techniques at issue. The HSO was also vague and ambiguous in his description of the violation and there was no evidence to connect the allegation to the violation.

[103] I retain from the testimony of the appellant’s witnesses, Sergeant K.B. and Sergeant S.C., that pursuant to the employer’s policy under section 52 and in their experience, that in addition to the un-tethered divers in the water during the techniques at issue, the employer mandated at least three persons on the surface (top side) at all times; a dive supervisor, a diver’s tender and a standby diver. The witnesses testified that if a communication failure occurred to any diver then secondary communication signals using hands and the search rope were utilized. As a result, the dive was terminated and the communication issue was addressed on the surface.

[104] I retain from the testimony of all the appellant’s witnesses who performed the techniques at issue that being beneath the hull of a ship, as described in the circumstances of this case, were not considered to be an overhead environment.

[105] I retain from the testimony of all the appellant’s witnesses that the techniques at issue were never used in an overhead environment such as beneath piers.

[106] I retain, in relation to what is pertinent to this item of the direction, what has been agreed between the parties under items number 1, 6 and 7 of the joint submission document (Appendix “C”).

[107] I am convinced by the evidence adduced from the witnesses and the joint submission that the employer had at least four persons present at the dive site of which one was a standby diver. 

[108] Therefore, I find that the employer did not contravene the Code or the Regulations as alleged by the HSO.

Direction item no. 7

[109] The HSO alleged the employer contravened section 124 of the Code which reads as follows:

• 124. Every employer shall ensure that the health and safety at work of every person employed by the employer is protected.

[110] The HSO described the violation under this item in a series of statements under ten separate bullets in the direction (Appendix “A”).

[111] I find that the HSO did not provide any evidence through his testimony or his report that the employer failed to ensure the health and safety of every person employed by the employer when conducting a search using the techniques at issue. The HSO was vague and at times ambiguous in his description of the violation and there was no evidence to connect the allegations to the violation.

[112] I retain, from the testimony of the appellant’s witnesses in the previous items, their evidence which in my opinion sufficiently addressed every concern and issue alleged in the statements made by the HSO under this item.

[113] I retain, in relation to what is pertinent to this item of the direction, what has been agreed between the parties under item number 7 of the joint submission document (Appendix “C”).

[114] I am convinced by the evidence adduced from the witnesses and the joint submission that the employer ensured that the health and safety of every person employed by the employer while conducting the techniques at issue was protected in circumstances as described in this case.

[115] Therefore, I find that the employer did not contravene the Code as alleged by the HSO.

Decision

[116] The reasons above are in support of my decision issued on August 27, 2009, reiterating that the direction issued by HSO Martin Davey on July 11, 2008, is rescinded.

Michael Wiwchar
Appeals officer