Occupational Health and Safety Tribunal Canada

 

Case No. 2007-24

Decision No. OHSTC-09-008

 

 

 

CANADA LABOUR CODE

PART II

OCCUPATIONAL HEALTH AND SAFETY

 

 

 

Canada Post Corporation
appellant

 

 

 

________________

February 24, 2009

 

 

 

This case was decided by Appeals Officer Douglas Malanka.

For the appellant

Stephen Bird, Counsel for Canada Post Corporation

 

For the respondent

No one appeared as respondent in this appeal.

• [1] This case concerns an appeal made by Canada Post Corporation on August 20, 2007 , of the direction that health and safety officer (HSO) R. Gass issued to the Corporation on August 7, 2007 , following his investigation of a refusal to work by C. Pollard, a rural and suburban mail carrier (RSMC).On June 14, 2007 , C. Pollard refused to deliver or pickup mail at rural mail boxes (RMBs) on her route where it was not possible to drive her vehicle completely off the travelled portion of the roadway.She stated that it is unsafe to do so where the speed limit is 60 or more kilometres per hour, there is a solid yellow centre line on the roadway and it was not possible to drive her vehicle completely off the travelled portion of the roadway.

 

• [2] HSO Gass investigated the refusal to work by C. Pollard and decided that a danger existed for C. Pollard in the case of nine RMBs.HSO Gass issued a direction to Canada Post Corporation on August 7, 2007 and stated that a danger exists when C. Pollard’s vehicle is not able to completely pull off the travelled portion of the roadway while she is stopped to deliver mail to nine rural mail boxes.He stated that this results in her being exposed to being struck by cars or trucks travelling at speeds of 70 km/hour or more.Copy of the direction is attached.In making his finding HSO Gass had a copy of the Traffic Safety Assessment Tool (TSAT) used by Canada Post to assess the safety at RMBs and conducted an on‑site investigation.

 

• [3] An appeal hearing was held on January 14 and 15, 2009, at which Canada Post called 3 witnesses, submitted 6 documents and make final submissions.A view was also conducted of the RMBs in question.

 

• [4] Following my review and analysis of the testimony and evidence submitted at the January 14 and 15, 2007 hearing, I found that the evidence was insufficient in order to make an informed decision.I wrote to Counsel for Canada Post on January 26, 2009 and requested that further evidence be provided.A copy of the letter is attached.

 

• [5] Canada Post responded in writing through its Counsel by withdrawing its appeal of the direction of HSO Gass.A copy of Mr. Bird’s letter dated February 3, 2009 is attached.

 

• [6] In light of the fact that Canada Post has withdrawn its appeal, I no longer have jurisdiction and must close the file.However, in closing the file, Canada Post is reminded that its withdrawal requires the Corporation comply with the direction issued by HSO Gass.This would include national compliance with his direction where similar conditions and circumstance at RMBs make it applicable.

 

• [7] In this regard, the questions of clarification and illumination that I posed to Canada Post relative to the adequacy of the TSAT tool for ensuring safety are unanswered and are, I suggest, worthy of review and consideration by HRSDC and its HSOs if they have not done so already.

 

 

Douglas Malanka

Appeals Officer

Priorty Post

 

January 26, 2009

File name: Canada Post Corporation

Case No.: 2007-25

 

Mr. Stephen Bird

Counsel

Bird & Richard

72 Chamberlain Avenue

Ottawa , Ontario

K1S 1V9

 

Subject: Appeal under subsection 129(7) of the

Canada Labour Code, Part II

 

 

Mr. Bird,

 

This letter is to inform you that I wish to reconvene the hearing on the above noted case for the purpose of receiving further evidence and clarification related to the evidence you submitted during the hearing held recently at the Valhalla Inn, Toronto , Ontario , on January 14 and 15, 2009.

 

Specifically, it would be helpful to hear expert witness testimony from iTRANS Transportation Planning and Traffic Consultants (iTRANS) regarding the Traffic Safety Assessment Tool (TSAT). This testimony should include the selection and rationale of the safety criteria used therein, and the resulting safety thresholds. It should also address, but not be limited to, how “average speed” is determined and why a strict fifteen minute interval for determining traffic volume was selected during mail delivery time.

 

In connection with this, I wish to have clarification evidence on what hazard TSAT specifically addresses. For example, does TSAT address safety issues related to other drivers sharing the road with Rural Suburban Mail Carriers (RSMCs). Specifically, what protection does TSAT afford to RSMCs to protect them against driver inattention or distraction, driver error, driver non-compliance with traffic laws related to speeding and tailgating? If it does, how does it? I would also like to have evidence and statistics on traffic accidents involving RSMCs whether or not injury occurred, e.g., near misses.

 

Clarification is also needed on the rationale why TSAT does not prohibit stopping on roadway where the speed limit equals or exceeds 70 kilometres per hour as it does in the Province of Quebec where that Province’s traffic laws prohibit stopping in such circumstance. Does this result in less protection for RSMCs who work outside of Quebec ?

 

Finally, with regard to the TSAT, how does it address seasonal conditions which can affect visibility such as fog, heavy rain, heavy snow, and road conditions affecting manoeuvrability and stopping?

 

I further wish to receive evidence regarding the specific and detailed involvement of the RSMC Policy Health and Safety Committee in the development of the TSAT and its application in the field. This should include evidence of the RSMC Policy Health and Safety Committee written acceptance of the TSAT.

 

In light of the serious issue before me, I am of the view that the hearing must be reconvened as soon as possible. I am therefore setting a hearing date for February 11 and 12, 2009 to complete my inquiry into your appeal. You will be notified shortly regarding the location and start time.

 

Please note, as a post script, that I will be subpoenaing Health and Safety Officer Gass when the hearing is reconvened

 

Yours truly,

 

 

Douglas Malanka

Appeals Officer