Occupational Health and Safety Tribunal Canada

Case No.: 2006-27

Decision No.: CAO-07-027

 

 

 

CANADA LABOUR CODE

PART II

OCCUPATIONAL HEALTH AND SAFETY

 

 

 

Rick Buckley

appellant

 

 

and

 

 

Canadian National Railway Company

respondent

 

________________

August 16, 2007

 

 

 

This case was decided by Appeals Officer Jean-Pierre Aubre.

 

 

For the appellant

Mr. Glenn Wheeler, Counsel, Shell Lawyers

 

For the respondent

Mr. Michael G. McFadden, Counsel, Ogilvy Renault

• [1] This case concerns an appeal made on March 22, 2006, pursuant to subsection 129(7) of the Canada Labour Code (Code), by Mr. Rick Buckley, a conductor employed by the Canadian National Railway Company at the CN Rail Belleville yard, against a decision of absence of danger issued by Health and Safety Officer (HSO) Michelle J. Cartmill.

 

• [2] According to HSO Cartmill’s report dated March 28, 2006 ,Mr. Buckley refused to work on March 16, 2006, stating :

 

“I am concerned that not having been a conductor on the Kingston

Subdivision west of Belleville since 1982 in freight service poses

a threat to my health and safety because by not knowing the

location of fixed signals the potential for the locomotive engineer to

pass a red signal and have a head on collision exists. In the event

that I need to leave the cab of the locomotive for mechanical

reasons I would be separated from the pilot and would be unfamiliar

with the roadbed and restricted clearances also posing a threat to

my health and safety. I would be a distraction from (sic) the locomotive

engineer in the performance of his duties.”

 

[3] On completion of the investigation into the work refusal, HSO Cartmill

determined, pursuant to subsection 129(4) of the Code, that a danger

did not exist.

 

[4] During preparation for proceeding with the hearing of this appeal, the

undersigned Appeals Officer, while conducting a telephone conference

with the parties, was informed that since filing his appeal, Mr. Buckley, the

Appellant, had retired from his employment at CN Rail. This was confirmed

by letter of April 9, 2007 , from counsel for the Appellant. At that time,

the undersigned Appeals Officer indicated to both counsel that in light

of this fact, he would expect the parties to address, at the outset of the

hearing, the issue of whether this matter should be considered moot.

 

[5] By letter of July 26, 2007 , from counsel for the Appellant, the undersigned

Appeals Officer was informed that since Mr. Buckley is no longer employed

by Canadian National Railway Company, counsel had been authorized and

instructed to withdraw the appeal.

 

[6] Considering the above and having reviewed the file, this appeal is withdrawn

and this case is closed.

 

 

 

______________________________

Jean-Pierre Aubre

Appeals Officer

SUMMARY OF APPEALS OFFICER DECISION

Decision   Appellant   Respondent   Provisions Canada Labour Code   Keywords

CAO -07-027   R. Buckely & United Transportation Union   Candian National Railway Company     Subsection 129 (7)   No danger, conductor, signals, head on collision, withdrawn

 

SUMMARY

This case concerns an appeal made on March 22, 2006 , pursuant to subsection 129 (7) of the Canada Labour Code, Part II. Mr. Rick Buckley was a locomotive engineer employed by Canadian National Railway Company and believed the health and safety officer erred in finding a decision of no danger with his concerns to signals when locomotives where in transit. Mr. Buckley feared amongst other things, a head on collision\, this potential accident posed a threat to his health and safety.

 

Before the case could be heard in hearing, the appeals officer was notified that since the time of the refusal, the appellant had retired and instructed his counsel to withdraw his appeal. Given the formal withdrawal and revision of the facts, the appeals officer accepted the withdrawal and the case is closed.