Reasons for decision

Rogers Communications Canada Inc.,

applicant,

and

Head of Compliance and Enforcement,

and

Canadian Wireless Telecommunications Association; Federally Regulated Employers - Transportation and Communication,

intervenors.

The panel of the Canada Industrial Relations Board (the Board) was composed of Ms. Louise Fecteau, Vice-Chairperson, and Mesdames Lisa Addario and Barbara Mittleman, Members.

Parties’ Representatives of Record

Ms. Rosalind H. Cooper, for Rogers Communications Canada Inc.;

Mr. Curtis Connon, for the Head of Compliance and Enforcement;

Mr. Paul Lalonde, for the Canadian Wireless Telecommunications Association;

Ms. Cheryl A. Edwards, for Federally Regulated Employers - Transportation and Communication.

These reasons for decision were written by Ms. Louise Fecteau, Vice-Chairperson.

[1] Section 16.1 of the Canada Labour Code (the Code) provides that the Board may decide any matter before it without holding an oral hearing. Having reviewed all of the material on file, the Board is satisfied that the documentation before it is sufficient for it to determine this application without an oral hearing.

I. Introduction

[2] On May 5, 2022, Rogers Communications Canada Inc. (the applicant or Rogers) filed an application to appeal (Board file no. 035732-C), under section 146(1) of Part II (Occupational Health and Safety) of the Code, of a direction issued on April 20, 2022, by an official delegated by the Head of Compliance and Enforcement (the Head). Rogers simultaneously filed an application for a stay of the direction (Board file no. 035733-C).

[3] The direction refers to a contravention of section 125(1)(z.13) of the Code and of section 12.06(1)(a) of the Canada Occupational Health and Safety Regulations, SOR/86-304 (COHSRs), and states in part the following:

On January 26, 2022, a person granted access to the work place, fell more than 400 feet from Minden Tower. Rogers Communications Canada Inc., who had the complete control of the work place failed to develop a fall-protection plan in consultation with the work place committee.

[4] In submissions dated June 12, 2022, the Head requested that the Board vary the direction issued on April 20, 2022, to add a reference to section 125(1)(z.04) of the Code, which relates to hazard prevention programs.

[5] The Head states that Rogers failed to develop a fall-protection plan in consultation with the work place committee. Pursuant to section 145(1)(a) of the Code, Rogers was directed to terminate the contravention by no later than May 4, 2022. Rogers was also directed, pursuant to section 145(1)(b) of the Code, to take steps to ensure that the contravention did not continue or reoccur.

[6] This direction was issued further to an incident that occurred on January 26, 2022, when a worker fell from a Rogers telecommunications tower in Minden, Ontario (the Minden Tower). Rogers had retained a contractor, Wesbell Technologies Inc. (Wesbell), which, in turn, had subcontracted with another contractor, Verrascend Technologies Inc. (Verrascend), to conduct work on the Minden Tower. The worker who fell from the Minden Tower was an employee of Verrascend. Rogers ensures, through its contractor qualification program, that any contractor it retains has a fall-protection plan. Therefore, Wesbell attested that it had a fall-protection plan in place. It also attested that it had a contractor safety program in place that would cascade similar requirements to its subcontractors.

[7] The Head has also issued other directions to Rogers further to this incident, and Rogers has filed applications to appeal some of these other directions (Board file nos. 035911-C and 035960‐C).

[8] The present reasons relate solely to the application to appeal the direction issued on April 20, 2022, regarding the development of a fall-protection plan.

[9] On November 21, 2023, the Board issued a bottom-line decision in which it concluded that Rogers did not contravene sections 125(1)(z.04) and (z.13) of the Code and section 12.06(1)(a) of the COHSRs by not developing a fall-protection plan before climbing activities were undertaken at the Minden Tower work place. The Board rescinded the direction issued to Rogers dated April 20, 2022 (see Rogers Communications Canada Inc., 2023 CIRB LD 5197). These are the reasons for that decision.

[10] The issue in this matter turns on the interpretation of sections 125(1)(z.03), (z.04) and (z.13) of the Code and section 12.06 of the COHSRs. It is therefore helpful to start by reviewing these sections and the purpose of Part II of the Code.

II. Part II: Occupational Health and Safety

[11] Part II of the Code applies to and in respect of employment on or in connection with the operation of any federal work, undertaking or business (see section 123(1) of the Code). The purpose of Part II of the Code is set out in section 122.1: “to prevent accidents, occurrences of harassment and violence and physical or psychological injuries and illnesses arising out of, linked with or occurring in the course of employment to which this Part applies.” Part II of the Code imposes duties on employers and employees.

[12] There is a general duty applicable to every federally regulated employer to ensure the health and safety of its employees. Section 124 reads as follows:

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

[13] The Code sets out specific health and safety duties incumbent on federally regulated employers in sections 125 to 125.3. The present application to appeal filed by Rogers concerns the employer duties created by section 125(1) and, more specifically, sections 125(1)(z.03), (z.04) and (z.13), which read as follows:

Specific duties of employer

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,

...

(z.03) develop, implement and monitor, in consultation with the policy committee or, if there is no policy committee, with the work place committee or the health and safety representative, a prescribed program for the prevention of hazards in the work place appropriate to its size and the nature of the hazards in it that also provides for the education of employees in health and safety matters;

(z.04) where the program referred to in paragraph (z.03) does not cover certain hazards unique to a work place, develop, implement and monitor, in consultation with the work place committee or the health and safety representative, a prescribed program for the prevention of those hazards that also provides for the education of employees in health and safety matters related to those hazards;

...

(z.13) when necessary, develop, implement and monitor a program for the provision of personal protective equipment, clothing, devices or materials, in consultation, except in emergencies, with the policy committee or, if there is no policy committee, with the work place committee or the health and safety representative.

[14] This application also concerns section 12.06 of the COHSRs. The COHSRs are prescribed for the purposes of the provisions dealing with the duties of employers and employees under, among other provisions, section 125 of the Code (see section 1.3 of the COHSRs). Section 12.06(1) of the COHSRs states that the employer must develop a fall-protection plan before any work activities begin and make the plan available at the work place for consultation. Section 12.06(2) sets out the items that a fall-protection plan must specify. Sections 12.06(1) and (2) read as follows:

Fall-protection Plan

12.06 (1) If there is a risk of injury due to falling in any of the circumstances described in paragraphs 12.07(1)(a), (b) or (c) in a work place, the employer must, before any work activities begin,

(a) develop a fall-protection plan in consultation with the work place committee or the health and safety representative; and

(b) ensure that a copy of the fall-protection plan is readily available at the work place for consultation.

(2) The fall-protection plan must specify

(a) the hazards that have been identified for each work area and each activity to be carried out at the work place;

(b) the fall-protection systems that have been chosen to protect against the identified hazards;

(c) if a personal fall-protection system is used, the anchorage to be used during the work;

(d) if a fall-arrest system is used, the clearance distance below each work area;

(e) if there are no manufacturer’s instructions with respect to the storage, maintenance, inspection, testing, fitting, installation, use or dismantling of equipment that is used in a fall-protection system and that is provided by an employer, the procedures to be followed for the purposes of paragraphs 12.05(1)(a) to (d); and

(f) the rescue procedures to be followed if a person falls.

III. Positions of the Parties

[15] At the Board’s request, the Head provided a copy of the documents on which the Head had relied to issue the direction. The Board also requested and received written submissions from Rogers and the Head.

[16] Federally Regulated Employers - Transportation and Communication (FETCO) and the Canadian Wireless Telecommunications Association (CWTA) both applied for intervenor status in this matter. The Board granted them limited intervenor status and an opportunity to make written submissions.

[17] For FETCO, the Board decided that its written arguments would be limited in scope to the interpretation and application of section 125 of the Code.

[18] For the CWTA, the Board decided that its written arguments would be limited to identifying guidelines and best practices for all aspects of communications tower construction and antenna installation and maintenance in relation to worker safety.

A. The Head

[19] According to the Head, the issue in this application to appeal is whether Rogers contravened section 125(1)(z.04) and/or section 125(1)(z.13) of the Code and section 12.06(1)(a) of the COHSRs by failing to develop a fall-protection plan for the Minden Tower work place.

[20] The Head’s direction was issued following the Head’s investigation that found that Rogers had contravened the Code and the COHSRs by failing to develop, implement and monitor a prescribed program for the prevention of a hazard unique to the work place; in this case, this means, according to the Head, a failure to develop a fall-protection plan to prevent a hazard unique to the work place, namely the hazard of injury due to falling from the Minden Tower.

[21] The Head submits that the Minden Tower is a work place for the purpose of sections 122 and 125(1)(z.13) of the Code and section 12.06 of the COHSRs. It adds that the “employer” mentioned at section 12.06(1) of the COHSRs is the federally regulated employer that is identified at section 122(1) of the Code. Rogers, which owns the Minden Tower, is the federally regulated employer with the duties under the Code regarding both employees and persons to whom it grants access to its work place. The Head argues that although Rogers employees do not climb the Minden Tower, they sometimes attend at the site where it is located, and notes that there is a health and safety committee that covers these employees. The Head adds that Rogers controls access to the site where the Minden Tower is located and that contractors must seek authorization from Rogers to access the site, which is locked.

[22] The Head explains that the fall-protection plan does not tell a contractor how to climb or how to complete the work. The fall-protection plan is meant to provide information specific to the area of work. It specifies the hazards, what anchorages are available for fall‐protection equipment and what the clearance distances below work areas would be.

[23] The Head submits that all equipment on the Minden Tower is specific to that tower and that Rogers hires engineers to inspect and provide details and specifications about the Minden Tower. The Head argues that through its use of engineer tower inspections, Rogers has all the information required to be included in a fall-protection plan specified in sections 12.06(2)(a), (b) and (c) of the COHSRs.

[24] The Head is of the view that Rogers has some in-house expertise that can be used to develop a fall-protection plan. This is supported by the fact that Rogers’ engineering department has previously issued notices related to fall-protection requirements and the climbing of towers. The Head argues that if Rogers maintains that it does not have internal expertise that can be used to develop a fall-protection plan, it can hire a qualified person to do so. The Head points out that nothing in the COHSRs prohibits Rogers from hiring a qualified person to develop a fall-protection plan to satisfy the requirements of the Code and the COHSRs. The Head adds that the work place committees participate and are required to be provided with all relevant information from the employer, including contact with qualified individuals.

[25] The Head states that there is nothing to show that the contractors had access to the reports completed by Rogers’ engineers and inspectors. For example, the subcontractor was unaware of the type of fall-protection system installed on the Minden Tower and therefore did not have a compatible trolley. Also, a contractor would not be aware of the anchorages that are available before attending at the site. This is information that Rogers would have available as the owner responsible for the Minden Tower.

[26] According to the Head, the absence of a fall-protection plan for the Minden Tower created a risk since the contractors were unaware of the fall-protection system in place at the tower. If Rogers had had a fall-protection plan, the contractors would have been aware of any issues with the fall-protection system prior to attending at the site to commence work.

[27] The Head explains that employer duties under the Code are not only duties to protect employees but also, under certain circumstances, duties to protect persons granted access to the employer’s work places. The Head refers to sections 125(1)(l), (w) and (z.14) as examples that indicate specific duties related to persons granted access to the work place.

[28] The Head submits that a fall-protection plan supports compliance with these duties, since it specifies the hazards that have been identified for each work area and each activity to be carried out at the work place as well as the fall-protection systems that have been chosen to protect against the identified hazards.

[29] The Head adds that a fall-protection plan supports the determination of whether a program for the provision of personal protective equipment (PPE) is “necessary” for the purposes of section 125(1)(z.13) of the Code when there is a risk of falling from a height of more than three metres. The Head argues that “when necessary” for the purposes of section 125(1)(z.13) means that not all work requires the use of PPE, clothing, devices or materials.

[30] The Head submits that Part XII (Protection Equipment and Other Preventive Measures) of the COHSRs applies to Rogers as the federally regulated employer that controls the work place. It adds that Rogers’ obligations cannot be evaded by contracting out the performance of responsibilities and that Rogers remains fully accountable for ensuring that its contractor is properly organizing the health and safety at a site.

[31] The Head submits that an earlier version of the COHSRs was interpreted in Parks Canada and Public Works and Government Services Canada, 2012 OHSTC 9 (Parks Canada), as being applicable to the protection of not only employees but also every person granted access to the work place. It adds that there are indicia in the language of the current Part XII of the COHSRs suggesting that the employer’s obligations may apply not only to the protection of employees but also to that of every person granted access to the work place. For example, sections 12.03 and 12.09 refer to persons granted access to the work place, and sections 12.06 and 12.07(1) are not expressly limited to “employee[s]” of the employer. By contrast, section 12.07(2) imposes obligations solely in relation to “employee[s].”

[32] The Head states that the federally regulated employer whose site the contractors are working at has various duties under the COHSRs, including ensuring that those contractors are wearing prescribed PPE (see section 12.03(1)), ensuring that a person using a personal fall-protection system wears a full-body harness (see section 12.09(6)) and ensuring that every person who is granted access to a work place and who uses protection equipment is provided with instruction by a qualified person in the use of the equipment (see section 12.2(1)).

[33] The Head notes that Rogers has a comprehensive contractor qualification program that does not include a review of the contractor’s fall-protection plan. Rather, Rogers relies upon an attestation by the contractor that it has a fall-protection plan. Rogers does not make any attempt to ensure that the fall-protection plan is in accordance with the COHSRs. Therefore, the Head states that Rogers made no attempt to determine whether Wesbell or its subcontractor Verrascend had a fall-protection plan in accordance with section 12.06(1)(a) of the COHSRs.

[34] The Head adds that Wesbell and/or Verrascend did not have the information available to them to develop a fall-protection plan for the Minden Tower as they were not privy to the engineer reports that Rogers had, which detail all the conditions relating to the tower that are needed to develop a fall‐protection plan.

[35] The Head explains that applications to appeal directions are considered de novo proceedings and that the Board, for the purposes of sections 146 to 146.5 of the Code, has the powers, duties and functions of the Minister of Labour and the Head (see section 145.1 of the Code). The Head submits that this includes the authority to vary a direction to include contraventions that, in the Board’s opinion, should have been included in the direction under appeal. The Head therefore requests that the Board vary the direction issued on April 20, 2022, to add a reference to section 125(1)(z.04) of the Code.

B. Rogers

[36] According to Rogers, the issue in this application to appeal is whether it is obliged under sections 125(1)(z.04) and (z.13) of the Code and section 12.06(1)(a) of the COHSRs to develop a fall‐protection plan for its contractors to use for the Minden Tower.

[37] Rogers submits that the Head has not shown a contravention of sections 125(1)(z.04) or (z.13) of the Code or of section 12.06(1)(a) of the COHSRs. It asks the Board to rescind the direction dated April 20, 2022.

[38] Rogers is of the view that, by asking the Board to vary the direction to add a reference to section 125(1)(z.04) of the Code, the Head is seeking to change the basis for the direction. It adds that the Head has not provided any explanation for raising the alleged contravention of section 125(1)(z.04) more than three months after the direction was issued.

[39] Rogers explains that it retained a specialized contractor to do the work because it lacks the required expertise. It submits that considering the objectives of the Code as stated in section 122.1, the party best suited to develop a fall-protection plan is the contractor that has expertise in climbing towers, not Rogers, whose employees do not climb this tower, and not a qualified person that Rogers hires, as the Head suggests.

[40] Rogers submits that it also lacks the expertise to develop a fall-protection plan and that the work place health and safety committee members lack the expertise and experience to review a fall-protection plan. According to Rogers, the requirement to consult with the work place committee further demonstrates that this is not a task intended to be carried out by Rogers.

[41] Rogers adds that it has a comprehensive contractor qualification program in place pursuant to which any contractors it retains are required to have the expertise to conduct the work and a strong safety record and to have implemented appropriate policies and procedures for the conduct of the work. Wesbell attested that it had a fall-protection plan in place. It also attested that it had a contractor safety program in place that would cascade similar requirements to its subcontractors.

[42] Rogers notes that the Head refers to sections 125(1)(l), (w) and (z.14) of the Code as examples of requirements imposed on employers that control a work place and in support of the direction. Rogers points out that these sections create duties in relation to persons granted access to the work place while the sections that the Head relied on in support of the direction issued to Rogers do not include this wording.

[43] Rogers also points out that the Head has not referenced a single decision in which any tribunal or court held that the provisions of section 125(1) of the Code that lack the words “granted access to the work place” ought to be given the same interpretation as those that include this wording.

[44] Regarding section 125(1)(z.13) of the Code, Rogers explains that the words “when necessary” mean that, if the circumstances require it, the employer must have a program for providing PPE, clothing, devices or materials. Rogers disagrees with the Head’s assertion that “when necessary” means that not all work requires the use of PPE, clothing, devices or materials. Rogers submits that, if that were the correct interpretation, every provision of section 125(1) would begin with the words “when necessary.”

[45] In Rogers’ view, this also means that the legislature contemplated that there would be circumstances where it would be unnecessary for an employer to discharge the obligations in section 125(1)(z.13) of the Code. Since Wesbell had a program in place under section 125(1)(z.13), it was unnecessary for Rogers to develop a program. If it was necessary for Rogers to develop a program under section 125(1)(z.13) regardless of whether its contractor that controlled the work activity had such a program, then the words “when necessary” would not be included.

[46] Rogers adds that a fall-protection plan is not a “program for the provision of personal protective equipment, clothing, devices or materials” as mentioned in section 125(1)(z.13) of the Code. As such, section 12.06(1)(a) of the COHSRs does not authorize the requirements set out in the direction.

[47] Rogers states that section 125(1)(z.04) of the Code is supplemental to section 125(1)(z.03) and is only required in relation to hazards unique to the particular work place. It points out that a prescribed program for the prevention of hazards is set out in Part XIX (Hazard Prevention Program) of the COHSRs and is not related to fall protection, which is in Part XII of the COHSRs.

[48] Rogers submits that the Head’s argument that Part XII of the COHSRs applies to “every person who is granted access to the work place” and not just employees (see Parks Canada) is irrelevant. It submits that section 12.1 (now section 12.03) of the COHSRs does not impose a duty on the employer but rather requires every person to wear protective equipment.

[49] According to Rogers, any interpretation of section 12.06 of the COHSRs according to which it must develop the fall-protection plan leads to an absurdity. From Rogers’ perspective, it is the specialized contractor that develops the fall-protection plan and utilizes hazard information provided to it by Rogers to do so. While the contractor may rely on information provided by Rogers to prepare the fall-protection plan, this does not mean that Rogers should be responsible for the entirety of the plan.

[50] Rogers argues that any interpretation of section 12.06(1)(a) of the COHSRs that requires it to develop a fall-protection plan for the Minden Tower must be rejected as being unreasonable since it obliges a party with no expertise or experience in climbing towers to develop a plan to perform highly skilled work and to do so in conjunction with a committee that also has no such expertise.

[51] Rogers takes the position that either the employer referenced in section 12.06 of the COHSRs is the employer whose workers are carrying out the work activity in question (climbing, in this case) or it complied with this requirement because it ensured that the contractor it retained had such a fall-protection plan. It argues that section 12.06(2), which sets out the requirements for a fall-protection plan, makes it clear that the employer must have the expertise to conduct the work activity to be able to prepare the plan.

[52] Rogers further submits that when section 12.06 of the COHSRs is read in its entirety, it is clear that Rogers is not in a position to do the things enumerated therein and that only the specialized contractor is. It adds that even if it possessed certain information that would be useful or necessary for the preparation of a fall-protection plan, that does not mean that it should be tasked with preparing the entire plan, including rescue procedures to be followed by the contractor in the event of a fall. In Rogers’ view, it is critical that the rescue procedures referred to at section 12.06(2)(e) be developed by the contractor.

[53] Rogers submits that an interpretation of section 12.06(1)(a) of the COHSRs that requires it to develop a fall-protection plan would lead to confusion and potential danger and safety risks for the workers of a contractor who are familiar with and have been trained on the contractor’s plans and procedures. Further, this would be contrary to the guidance of the Supreme Court of Canada (SCC) that imposing a duty on an employer that it could not fulfill would not further the objectives of safety and would be an absurd statutory interpretation (see Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67; [2019] 4 S.C.R. 900 (Canada Post Corp.)).

[54] Rogers adds that it would create a serious risk for the safety of the contractor workers who are climbing the tower if they were required to follow a fall-protection plan prepared and developed by a company that does not climb the tower and is therefore not qualified to develop such a plan, which may differ from the procedures generally followed by those contractor workers and on which they have been trained and instructed.

[55] Rogers explains that it takes responsibility for the structure and the condition of the tower but not for the work activity conducted by the third party. Rogers issues notices in relation to the towers but not on how to climb them. The engineering inspection reports prepared by Rogers identify any dangers or issues on the towers, and Rogers would not permit a contractor to climb a tower where such a danger had been identified.

[56] In the circumstances of this case, Rogers provided the contractor, Wesbell, with a job package that included details regarding the Minden Tower. Rogers argues that, contrary to the Head’s assertion, the contractor’s lack of a trolley compatible with the fall-protection system at the Minden Tower was not due to a lack of information provided by Rogers. To the contrary, the job package included drawings that specified the presence of a fall-protection system on the Minden Tower. In any event, Rogers argues that the contractor had an alternate means of climbing available and that the lack of a trolley compatible with the fall-protection system had nothing to do with the incident.

[57] Rogers adds that the contractor did not need to be advised of anchorages on the Minden Tower. As members of the Structure, Tower and Antenna Council, contractors are trained on and experts in determining appropriate anchorages. They do not need to have anchorages identified as they would on a building, for example.

[58] Rogers submits that it is incorrect for the Head to state that if it had had a fall-protection plan, the contractors would have been aware of any issues with the fall-protection system prior to attending at the site to commence work. Rogers states that there were no issues with the fall-protection system. The contractor’s employees utilized a lanyard for climbing and were not impeded in any way by the lack of a trolley compatible with the fall-protection system. Rogers emphasizes that the incident did not occur because of the lack of a compatible trolley or any other issues relating to the tower or its condition.

[59] Rogers submits, in the alternative, that it complied with the requirement for a fall-protection plan because it ensured that the contractor conducting the work activity had such a plan. This is not a delegation of obligations but rather a mechanism to ensure that its contractors adhere to appropriate safety requirements. Rogers has thousands of contractors working at thousands of locations, and it could not possibly review and assess each of its contractors’ policies and procedures. Rather, it uses its program to qualify and validate compliance.

[60] Rogers requests that the Board rescind the direction under appeal.

C. Intervenors: FETCO and the CWTA

[61] FETCO and the CWTA are both of the view that the fall-protection plan must be developed by the contractor whose employees engage in the climbing activities. They support Rogers’ position that the Board ought to rescind the direction of April 20, 2022. The Board will therefore only highlight a few of the points raised by the intervenors.

1. FETCO

[62] According to FETCO, the Head seeks to expand the application of section 125 beyond federal employers and employees to employees of a provincially regulated contractor. It argues that this is in contradiction of the clear definitions of “employer” and “employee” in section 122(1) of the Code and goes beyond the constitutionally permissible scope of application of the Code.

[63] FETCO argues that requiring a federal employer like Rogers to develop a fall-protection plan may require a duplication of effort between a federal employer and a contractor. This stands to confuse the application of two different regulatory health and safety regimes (the federal and the provincial) and regarding which employer—the federal employer, the contractor or another party accessing a work place—is responsible.

[64] FETCO takes the position that the provisions of section 125 of the Code pertaining to “persons granted access to the work place” are treated separately and distinctly from the provisions of section 125 of the Code for a federal employer ensuring matters of safety for its employees. The requirements of sections 125(1)(z.04) and (z.13) are very distinct from those of sections 125(1)(l), (w), (y) and (z.14), which contain language relating to “persons granted access to the work place.” Therefore, it submits that only select provisions of section 125 apply to contractors and other persons granted access to the work place.

[65] FETCO submits that requiring the federal employer to develop, implement and monitor a safety plan for persons accessing the work place—in relation to activities the federal employer does not perform or have expertise in, and when a skilled contractor granted access has its own plans—is not reasonable and leads to an absurdity, including but not limited to the opposite of effective and appropriate safety programs at a work place. FETCO urges the Board to adopt a plain-reading interpretation because it will assist in avoiding absurdity and confusion, which would do nothing to further worker safety.

2. The CWTA

[66] The CWTA explains that, in the absence of Canadian standards or regulations pertaining to a specific job or activity, Canadian companies in the wireless industry rely on and apply the following standard: “Criteria for Safety Practices with the Construction, Demolition, Modification and Maintenance of Communication Structures, American National Standard for Construction and Demolition Operations” (ANSI/ASSE A10.48-2016) (the standard).

[67] The standard outlines requirements for site owners and contractors. It states that the contractor that is responsible for completing the work and that employs the employees in the work activities that will expose them to fall hazards is responsible for developing and communicating the fall-protection plan for its employees (see section 6.4.3(e)). The CWTA submits that according to the standard, the site owner’s responsibility in the development of the fall-protection plan is limited to sharing structural information relevant to the development of the plan with the contractor upon request (see section 6.4.1(d)).

[68] The CWTA explains that the COHSRs require detailed knowledge of the specifics of the dangers of the work that are typically only available to the contractor and often only available to it once it is on the site where the work will be completed. Other entities, including site owners, cannot develop comprehensive fall-protection plans that properly account for all the requirements in the COHSRs.

[69] The CWTA takes the position that site owners do not typically employ individuals who possess the necessary training and experience to develop fall-protection plans that can account for the many site-specific and job-specific variables that may affect some aspects of the plan, including those listed in sections 12.06(2)(a), (b), (c), (d) and especially (f) of the COHSRs.

[70] It adds that the site owners do not control and are not aware of the fall-protection-related PPE or access methods that are used by each individual contractor’s employees. Therefore, if an entity other than the contractor, such as the site owner, were to develop the fall-protection plan, the result would be a significant disruption to the work activities of the employees completing the work and could cause a deterioration of work place health and safety for the employees of the contractors who are required to work from heights to complete the work.

[71] In the CWTA’s view, shifting the responsibility for the development of fall-protection plans from the contractors to a non-specialist entity that is not the employer of the employees engaged in the work activities, such as the site owner, could have a significant and negative impact on work place health and safety due to the potential confusion that would result from having two fall-protection plans. The provincially regulated contractors will be required to develop their own internal fall-protection plans, even if another entity is required to prepare such plans under the Code for the work performed by the contractors’ employees. The CWTA submits that imposing a fall-protection plan developed by the site owner, instead of the process the contractor’s employees are accustomed to, could lead to confusion as to the contents of the plan or which plan governs in the case of any discrepancies. As such, a hazardous situation could arise if site owners were required to develop fall-protection plans that the contractors would then be forced to follow.

IV. Analysis and Decision

[72] For the reasons that follow, the Board finds that Rogers did not contravene the provisions of the Code and of the COHSRs by not developing a fall-protection plan for its contractors to use before climbing activities were undertaken at the Minden Tower work place.

[73] The Board has reviewed the fulsome submissions of the applicant, of the Head and of the intervenors. For the sake of brevity, it will only summarize the issues it considers relevant to render its decision and will not go over each submission in detail.

[74] In the present case, the issue to be determined is whether Rogers contravened sections 125(1)(z.04) and (z.13) of the Code and section 12.06 of the COHSRs by not developing, in consultation with the work place committee, a fall-protection plan for the Minden Tower work place to prevent the hazard of injury due to falling from the tower.

[75] Most of the facts in this matter are undisputed. Rogers is an employer covered by the Code, and Part II of the Code applies to it. The Minden Tower is a work place for the purpose of section 122(1) of the Code, and Rogers has not denied that it has control over the Minden Tower work place.

[76] Rogers employees do not climb the Minden Tower. Rogers retains the services of contractors specialized in performing work at heights because it lacks the required expertise. The Head has not disputed that Rogers lacks expertise in climbing towers. However, the Head is of the view that Rogers may have some internal expertise that can be used to develop a fall-protection plan or has the ability to hire a qualified person to develop a fall-protection plan. Rogers has a comprehensive contractor qualification program that, among other things, requires the specialized contractors to attest that they have a fall-protection plan. Wesbell attested that it had a fall-protection plan in place and in fact had a fall-protection plan. It also attested that it had a contractor safety program in place that would cascade similar requirements to its subcontractors.

A. SCC Statutory Interpretation Principles

[77] It is helpful to start by reviewing the core underlying principles of statutory interpretation as identified by the SCC in its jurisprudence.

[78] In Canada Post Corp., the SCC explained that a reasonable interpretation of a statutory provision must be in harmony with the text, context and purpose of the provision and should conform to any interpretative constraints in the governing statutory scheme as well as interpretative rules arising from other sources of law:

[42] Where the meaning of a statutory provision is in dispute, the administrative decision maker must demonstrate in their reasons that they were alive to the “essential elements” of statutory interpretation: “the merits of an administrative decision maker’s interpretation of a statutory provision must be consistent with the text, context and purpose of the provision” (Vavilov, at para. 120). Because those who draft statutes expect that the statute’s meaning will be discerned by looking to the text, context and purpose, a reasonable interpretation must have regard to these elements—whether it is the court or an administrative decision maker tasked with the interpretative exercise (Vavilov, at para. 118). In addition to being harmonious with the text, context and purpose, a reasonable interpretation should conform to any interpretative constraints in the governing statutory scheme, as well as interpretative rules arising from other sources of law. In this case, the Appeals Officer’s interpretation was constrained by interpretative rules within the Code, the Interpretation Act, R.S.C. 1985, c. I‐21, and common law rules of statutory interpretation.

[79] In (Re) Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27, the SCC also stated that “[i]t is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences” (page 43).

[80] The Board is also mindful of section 12 of the Interpretation Act, which establishes the broader principles of statutory interpretation: “Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.”

[81] These overarching principles must guide a purposive and meaningful interpretation of sections 125(1)(z.04) and (z.13) of the Code and section 12.06 of the COHSRs. The Board must, in its analysis, consider the words of sections 125(1)(z.04) and (z.13) of the Code and section 12.06 of the COHSRs in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Code and of the COHSRs.

B. Specific Employer Duties: Section 125(1) of the Code

[82] Section 125(1) of the Code is meant to ensure that the employer is “bound to the fullest extent possible by the obligations under the Code and its Regulations” (Canada Post Corporation v. Canadian Union of Postal Workers, 2014 OHSTC 22, paragraph 95; upheld by the SCC in Canada Post Corp.).

[83] Rogers, as an employer that controls the Minden Tower work place, has duties regarding this work place. The Board must determine whether these duties include developing a fall-protection plan in accordance with sections 125(1)(z.04) and (z.13) of the Code and the accompanying sections of the COHSRs for its contractors’ employees to use to protect them against the hazard of injury due to falling from the Minden Tower.

[84] In Public Works and Government Services Canada, 2009 OHSTC 35 (Public Works), a decision of the Occupational Health and Safety Tribunal Canada, the Appeals Officer (AO) explained that there are two circumstances in which section 125(1) of the Code can apply to an employer as defined by the Code: the work place is under the employer’s control; or the work activity carried out by the employee is under the employer’s control, while the work place where the activity is being carried out is not under the employer’s control (see paragraph 68).

[85] The AO also explained that the objective of most provisions of Part II the Code is to protect an employer’s employees. Therefore, most directions issued to an employer are aimed at protecting the occupational health and safety of the employer’s employees. However, there are a few exceptions in the Code aimed at protecting people, other than employees, who perform work at a worksite controlled by an employer covered by the Code. These provisions of the Code represent exceptions and refer to “persons granted access to the work place” (see paragraph 64; and sections 125(1)(w), (y) and (z.14) of the Code). Hence, people other than employees may enjoy protection, although such people may not endanger the health and safety of employees present in the work place while performing work at a worksite controlled by an employer covered by the Code (see paragraph 66).

[86] In the present matter, there is no doubt that Rogers has control over the work place where the incident occurred. However, the employees who climbed the Minden Tower were employees of the specialized contractor Verrascend. For this reason, Rogers does not have control over their work activities. In addition, Wesbell attested that it had a fall-protection plan in place and also attested that it had a contractor safety program in place that would cascade similar requirements to its subcontractors.

[87] The Board has attentively reviewed the decisions that the Head filed in support of the position that Rogers contravened the Code by not developing a fall-protection plan for the Minden Tower work place. However, in doing so, it could not find support for the Head’s position. The decisions that involved contractors either pertained to the issue of whether the employer had control over the work place (see, for example, Rogers Communications Inc., 2013 OHSTC 7, in which the AO concluded that Rogers did not have control over the work place in question) or dealt with directions pertaining to contraventions of Code provisions regarding obligations towards “persons granted access to the work place” (see Public Works). In the present matter, although the direction of April 20, 2022, refers to the fact that the person who fell was “a person granted access to the work place,” the provisions of the Code invoked by the Head do not include this wording. However, the Board notes that the Head issued a direction on July 15, 2022—for which Rogers has also filed an application to appeal—that refers to contraventions of sections 125(1)(w) and (z.14), which include this wording (Board file no. 035960-C).

[88] The Head cites R. v. Halifax Port Authority, 2022 NSPC 13 (Halifax Port Authority), in support of the proposition that it is reasonable that, if an employer controls a place that contains a physical hazard, the employer has a duty to make that place safe for all users without distinction between employees and other persons. The Board does not disagree. However, the facts in the present matter are very different from those in Halifax Port Authority, in which the employer had failed to install prescribed barriers to prevent rear-dumping vehicles from tipping at the edge of a sudden drop in grade level. In the present matter, the hazard in question is not related to an issue with the physical work place itself (the Minden Tower) but to specific activities undertaken only by the specialized contractor’s employees. Although the Head makes the supposition that if Rogers had developed and implemented a fall-protection plan, the contractor would have had a trolley compatible with the fall-prevention system on the Minden Tower, the Board sees no indication that this would have been the case or that this was a factor in the incident and could have prevented the worker’s fall. In any event, there is no indication in the present matter that the state of the Minden Tower itself played a part in this incident.

[89] One interesting aspect of Parks Canada, which the Head cited, is that the AO considered, in his analysis, who risked being exposed to the hazard of drowning from fall-in. The AO recognized that the contractor was engaged in highly technical work activities (diving operations) and was an employer under provincial jurisdiction that may be subject to proceedings under the provisions of provincial occupational health and safety legislation. The AO noted that provisions of the COHSRs relating to those specialized activities (diving activities) were not invoked against Parks Canada. It was the risk of drowning from fall-in that was in question. The AO concluded that both Parks Canada employees and the contractor’s employees could be exposed to the hazard of drowning from accidental fall-in. The AO found that the protections against the hazard of drowning from accidental fall-in, as contemplated by Part XII of the COHSRs, with respect to the contractor’s employees attending at the site were met since Parks Canada and the contractor both had policies to protect against the hazard of drowning from fall-in. This is very different from the present matter, in which Rogers employees do not climb the Minden Tower and are therefore not exposed to the hazard of injury due to falling from the Minden Tower.

C. Hazard Prevention Program: Sections 125(1)(z.03) and (z.04) of the Code

[90] Section 125(1)(z.04) is supplemental to section 125(1)(z.03) and requires the employer to develop, implement and monitor, in consultation with the work place committee, a prescribed program for the prevention of hazards unique to a work place and not covered by the program required under section 125(1)(z.03).

[91] In Public Works and Government Services Canada and Indian Affairs and Northern Development Canada, 2010 OHSTC 1 (Indian Affairs and Northern Development Canada), the AO explained that the nature of a prescribed program for the prevention of hazards is to be found in the COHSRs:

[74] Paragraphs 125(1)(z.03) and (z.04) both refer to a “prescribed program” for the prevention of hazards. In order to understand what such a program may be, one has to look at subsection 122(1) where definitions relevant to Part II of the Code can be found.

[75] Subsection 122(1) defines the term “prescribed” as meaning “prescribe by regulation of the Governor in Council or determine in accordance with rules prescribed by regulation of the Governor in Council.”

[76] In the present case, it is in the Canada Occupational Health and Safety Regulations (Regulations) that the nature of a “prescribed program” is to be found.

[77] Part XIX of the Regulations lays out the elements that hazard prevention programs must contain in order to be in compliance with the Code.

19.1 (1) The employer shall, in consultation with and with the participation of the policy committee, or, if there is no policy committee, the work place committee or the health and safety representative, develop, implement and monitor a program for the prevention of hazards, including ergonomics-related hazards, in the work place that is appropriate to the size of the work place and the nature of the hazards and that includes the following components:

(a) an implementation plan;

(b) a hazard identification and assessment methodology;

(c) hazard identification and assessment;

(d) preventive measures;

(e) employee education; and

(f) a program evaluation.

[92] In Canada Border Services Agency v. Donohue, 2017 OHSTC 6, the AO explained how section 125(1)(z.04) of the Code applies in relation to section 125(1)(z.03):

[108] Paragraphs (z.03) and (z.04) both refer to the employer’s duty to develop, implement and monitor a program for the prevention of hazards as detailed in the Regulations. The details are found in section 19.1 to 19.8 of the Regulations. The main difference between the two paragraphs lies in who is to be involved. Paragraph (z.03) requires the employer to consult with the policy committee. In accordance with subsection 134.1(1) of the Code, if an employer employs 300 or more employees in total across the organization, it must establish a policy committee. CBSA has a policy committee. Because the policy committee is involved, the scope of the program to be developed by the employer covers the whole of the employer’s organization; all of its locations. But a particular work place may have a hazard unique to it and the organization-wide program may miss this hazard or may misunderstand it or underestimate its significance. That is why paragraph (z.04) exists. In such cases, the employer must, in addition to the hazard program provided in (z.03), develop, implement and monitor in consultation with a local work place health and safety committee a prevention program that covers the unique hazard.

[109] For example, a CBSA location on the border with Alaska may have a grizzly bear problem. No other CBSA has a bear problem. Assuming that the CBSA-wide hazard prevention program under (z.03) does not cover bears as a hazard, paragraph (z.04) would then apply. The local committee is consulted as the employer develops a program that includes an assessment of the bear hazard. As a result, there will be a “bear safety program” at the Alaskan border location.

[93] The Board notes that a fall-protection plan is a preventive measure that aims to prevent a specific hazard. The hazard in question in the present matter does not relate to an issue with the physical work place itself (the Minden Tower) but relates to specific activities undertaken only by the specialized contractor’s employees. Considering that Rogers employees do not climb the Minden Tower and are not exposed to this hazard, which relates to specific specialized activities, the Board finds that it would not serve the purposes of the Code to impose a duty on Rogers to protect its employees against a hazard to which they will not be exposed. Part II of the Code is drafted to best meet its preventive purpose, and this is why it provides for specific employer duties regarding “persons granted access to the work place” and regarding work activities carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls the activities.

[94] In Laroche v. Canada Border Services Agency, 2012 OHSTC 11 (Laroche) (upheld in Laroche v. Canada (Attorney General), 2013 FC 797), Canada Border Services Agency (CBSA) employees were assigned to act as search agents for a police force in searches not under their employer’s jurisdiction but under that of the police force. The training, tools and salaries provided to CBSA officers to carry out the work activity in question fell entirely under the CBSA’s authority. Although the work activity in question was carried out by CBSA officers in locations not falling under the CBSA’s authority, it fell under the CBSA’s authority. The AO concluded that the police forces were in a better position to identify and assess the hazards related to each search location falling under their mandates and to determine the measures to be taken to secure these locations and guard them properly. However, the AO was of the view that this took nothing away from the fact that the CBSA had a duty to develop a hazard identification and assessment methodology that allowed it, based on information provided by the police force, to decide whether the request for assistance should be accepted. The AO concluded that the CBSA, as the employer, had a duty to develop a hazard identification and assessment methodology pursuant to section 125(1)(z.04) of the Code and sections 19.1(1), 19.3(1), 19.4 and 19.6(1) of the COHSRs.

[95] The Board is of the view that the present situation is similar to the one in Laroche. Although Rogers, like the police forces in Laroche, may be in a better position to identify and assess hazards specific to the Minden Tower, duties under section 125(1)(z.04) of the Code and section 19.1(1) of the COHSRs do not fall upon it since, in the circumstances of the present matter, it does not have authority over the climbing activities. This does not take away any of Rogers’ responsibilities regarding the health and safety of the work place over which it has control and regarding persons who are granted access to the work place.

[96] Section 19.1 of the COHSRs refers to “[t]he employer” rather than “an employer.” This further supports that this duty falls to one employer, the employer that has authority over the activities.

[97] It is also worth considering that Part II of the Code, like all Canadian occupational health and safety regimes, in addition to its preventive nature, gives effect to three critical employee rights: the right to know of hazards in the work place; the right to participate in decisions that impact the employee’s health and safety; and the right to refuse dangerous work. It follows that the appropriate committee to be consulted regarding the development of a hazard prevention program is that of the employer that performs the activities giving rise to the hazards. This best supports the right of employees exposed to the specific hazard to know of hazards in the work place and their right to participate in decisions that impact their health and safety.

[98] The Board therefore concludes that Rogers did not contravene section 125(1)(z.04) of the Code, given that Rogers does not have authority over the specialized climbing activities carried out by the specialized contractor’s employees at the Minden Tower. In light of this conclusion, the Board will not address Rogers’ argument that the Head is seeking to change the basis for the direction by asking the Board to vary the direction to add a reference to section 125(1)(z.04).

D. Personal Protective Equipment Program: Section 125(1)(z.13) of the Code

[99] Section 125(1)(z.13) of the Code requires the development, when necessary, of a program for the provision of PPE, clothing, devices or materials. Part XII of the COHSRs also includes requirements relating to protective equipment (see sections 12.01 to 12.21).

[100] Section 125(1)(z.13) of the Code is not the only section that provides for specific duties regarding the provision of PPE. Sections 125(1)(l) and (w) specify duties that apply to employers that grant access to a work place and requires them to:

125 (1) ...

...

(l) provide every person granted access to the work place by the employer with prescribed safety materials, equipment, devices and clothing;

...

(w) ensure that every person granted access to the work place by the employer is familiar with and uses in the prescribed circumstances and manner all prescribed safety materials, equipment, devices and clothing.

[101] Unlike section 125(1)(z.13), these provisions explicitly impose a duty on the employer that extends to “person[s] granted access to the work place.” In the present matter, the direction refers to contraventions of Code provisions that do not include this wording. Section 125(1)(z.04) also does not contain this wording.

[102] Sections 125(1)(l) and (w) of the Code specifically aim to ensure safety regardless of who the employer is and typically find application in a context such as the present matter, where the employer has contracted with a specialized contractor to perform work activities at a work place that it controls but for which it does not control the activities.

[103] Sections 125(1)(l) and (w) show that the legislature contemplated that there would be circumstances where an employer that controls a work place would have obligations regarding people other than its employees and has explicitly stated these circumstances. This is in line with the fact that employer duties are generally toward the employer’s own employees and that it is only exceptionally otherwise.

[104] The issue invoked in the Head’s direction of April 20, 2022, does not relate to the tower itself or to a failure by Rogers to provide persons with PPE. The issue is whether Rogers had to develop a fall-protection plan as part of a PPE program related to the climbing activities. The Board finds that because Rogers employees do not climb the Minden Tower and are not exposed to this hazard, it would not serve the purpose of Part II of the Code to impose a duty on Rogers to develop a PPE program regarding a hazard to which its employees would not be exposed. This is consistent with the introductory wording of section 125(1) of the Code, as well as with the exceptions provided regarding “persons granted access to the work place.”

[105] The Head takes the position that a fall-protection plan supports the determination of whether a program for the provision of PPE is “necessary” for the purposes of section 125(1)(z.13) of the Code when there is a risk of falling from a height of more than three metres. The Head argues that “when necessary” for the purposes of section 125(1)(z.13) means that not all work requires the use of PPE, clothing, devices or materials. According to Rogers, it was unnecessary for it to develop such a program since the contractor had one. The Board finds that these two interpretations are not incompatible in that “when necessary” could mean that not all work requires the use of PPE and that, if the contractor already has a plan, then it would not be necessary for Rogers to also have one for activities under that contractor’s control. In this case, Rogers employees do not climb the tower, so Rogers does not have a duty to develop a PPE program applicable to these specialized climbing activities.

[106] The Board therefore concludes that Rogers did not contravene section 125(1)(z.13) of the Code, given that Rogers does not have authority over the specialized climbing activities carried out by the specialized contractor’s employees at the Minden Tower.

E. Fall-Protection Plan: Section 12.06 of the COHSRs

[107] Section 12.06(1) of the COHSRs is under Part XII (Protection Equipment and Other Preventive Measures) (sections 12.01 to 12.21). Section 12.06(1) states that a fall-protection plan aims to protect against the risk of injury due to falling in the circumstances described at section 12.07(1), which include falling from a height of three metres or more.

[108] It is interesting to note that section 12.03(1) of the COHSRs imposes a duty on every person who is granted access to the work place to wear the required protective equipment:

12.03 (1) If it is not feasible to eliminate a health or safety hazard in a work place or to reduce it to within safe limits and the use of protection equipment may eliminate or reduce the risk of injury from that hazard, every person who is granted access to the work place and who is exposed to that hazard must use the protection equipment prescribed by this Part.

[109] This is consistent with the duties relating to PPE in sections 125(1)(l) and (w) that apply to employers that grant access to a work place.

[110] In the present matter, since Rogers employees do not climb the Minden Tower, there is no risk that they will fall from the tower. Furthermore, this matter does not relate to the tower itself.

[111] Upon a plain reading of section 12.06 of the COHSRs, keeping in mind the introductory wording of section 125(1) of the Code and the specific circumstances of this matter, the Board finds that “the employer” at section 12.06(1) that must develop the fall-protection plan is the employer whose employees are exposed to the hazard. Section 12.06(1)(a) states the following:

12.06 (1) If there is a risk of injury due to falling in any of the circumstances described in paragraphs 12.07(1)(a), (b) or (c) in a work place, the employer must, before any work activities begin,

(a) develop a fall-protection plan in consultation with the work place committee or the health and safety representative; ...

(emphasis added)

[112] A plain reading of section 12.06(2) of the COHSRs also supports this conclusion:

12.06 (2) The fall-protection plan must specify

(a) the hazards that have been identified for each work area and each activity to be carried out at the work place;

(b) the fall-protection systems that have been chosen to protect against the identified hazards;

(c) if a personal fall-protection system is used, the anchorage to be used during the work;

(d) if a fall-arrest system is used, the clearance distance below each work area;

(e) if there are no manufacturer’s instructions with respect to the storage, maintenance, inspection, testing, fitting, installation, use or dismantling of equipment that is used in a fall-protection system and that is provided by an employer, the procedures to be followed for the purposes of paragraphs 12.05(1)(a) to (d); and

(f) the rescue procedures to be followed if a person falls.

[113] Given that Rogers retains a specialized contractor to do the work because it lacks the required expertise, the Board agrees with Rogers that the specialized contractor is the one that has the expertise to develop the fall-protection plan. Although Rogers possesses some information that would be useful or necessary for the preparation of a fall-protection plan, that does not mean that it is responsible for preparing the entire plan, including rescue procedures to be followed by the contractor in the event of a fall. The specialized contractor is in a much better position to specify the rescue procedures to be followed if a person falls. In addition, section 12.06(2)(a) of the COHSRs refers to hazards identified for “each activity to be carried out at the work place,” and Rogers is not the party undertaking the specialized work activities.

[114] Rogers takes responsibility for the structure and the condition of the tower but not for the work activity that is conducted by the third party. Rogers issues notices in relation to the towers but not on how to climb the particular towers. The engineering inspection reports prepared by Rogers identify any dangers or issues on the towers. This is consistent with section 12.07(1) of the COHSRs, which states that “an employer” must provide or put in place a fall-protection system if work is to be performed in the described circumstances.

[115] The Head submits, relying on Indian Affairs and Northern Development Canada, that Rogers’ obligations cannot be evaded by contracting out the performance of responsibilities and that Rogers remains fully accountable for ensuring that its contractor is properly organizing the health and safety at the site. While the Board generally agrees with this principle, it notes that Indian Affairs and Northern Development Canada dealt with the contravention of certain provisions of section 125(1) of the Code relating to obligations concerning persons granted access to the work place, which is not the case here.

[116] In the present matter, the Board is of the view that Rogers was not contracting out its health and safety responsibilities since it recognizes that it has full responsibility for the state of the tower itself but not for the specialized climbing activities, which its employees do not undertake.

[117] The Board also notes concerns raised by Rogers, FETCO and the CWTA that requiring an employer that lacks the required expertise in climbing towers to develop a fall-protection plan applicable to a specialized contractor’s employees may pose risks to worker safety rather than prevent accidents.

[118] In the context of the present matter, the Board finds that Rogers did not contravene section 12.06(1)(a) of the COHSRs by not developing a fall-protection plan before the climbing activities began.

V. Conclusion

[119] Rogers employees do not climb the Minden Tower and are not exposed to the hazard of injury due to falling from the Minden Tower. Rogers, which lacks the required expertise in climbing towers, does not have authority over the specialized climbing activities carried out by the specialized contractor’s employees at the Minden Tower.

[120] In light of these facts and for all the reasons expressed above, the Board finds that Rogers did not contravene sections 125(1)(z.04) and (z.13) of the Code and section 12.06(1)(a) of the COHSRs by not developing a fall-protection plan for its contractors’ employees to use before climbing activities were undertaken at the Minden Tower work place.

[121] The Board’s interpretation of sections 125(1)(z.04) and (z.13) of the Code and section 12.06 of the COHSRs considers the words of these sections in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Code and of the COHSRs.

[122] The Board therefore finds that there is a sufficient basis to rescind the direction issued to Rogers on April 20, 2022, and accordingly rescinds that direction.

[123] This is a unanimous decision of the Board.

 

	____________________ Louise Fecteau Vice-Chairperson
____________________ Lisa Addario Member		____________________ Barbara Mittleman Member