Halifax, Nova Scotia, April 12, 2006
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
and
and
FOREST PRODUCTS TERMINAL CORPORATION LTD.
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision of an appeals officer, designated under section 145.1 of the Canada Labour Code, R.S.C., 1985, c. L-2, Part II, Occupational Health and Safety (the Code), in response to an appeal made pursuant to subsection 129(7) of theCode, by the applicant, Mr. Brian Duplessis, of a decision of a health and safety officer (the HSO) that a danger did not exist at the time of the HSO's investigation.
[2] The applicant is a member of the International Longshoremen's Association, Local 273, a trade union under the Code, and bargaining agent for the general longshoremen of the Port of Saint John, New Brunswick.
[3] On February 1, 2005, the applicant was working as a stevedore for the Forests Product Terminal Corporation Ltd. (the employer) in the Port of Saint John when he was directed by his employer to put on a hard hat while performing his work. As a result, he exercised his statutory right to refuse to work, pursuant to section 128 of the Code on the contention that wearing a hard hat in his place of work constituted a "danger" according to section 122(1) of the Code, while performing the duties as a lead hand placing cutting boards to rotate paper rolls under the wing of the vessel, the MV Reefer Prince. The alleged danger was that while working under the wing of the hatch, there is more risk of being jammed between paper rolls or being crushed by a moving roll when being distracted by a hard hat that could fall off the lead hand's head or create a visual obstruction preventing the lead hand from seeing a paper roll move unexpectedly.
[4] On February 2, 2005, an investigation report and decision of the HSO was issued on his work refusal stating that a danger did not exist for the applicant.
[5] On October 4, 2005, an appeals hearing was conducted on the applicant's work refusal before the appeals officer.
[6] The appeals officer stated that the sole issue before him was to decide whether the HSO had erred in deciding that a danger did not exist for the applicant to wear a hard hat at the time of his investigation. He considered two points: (1) the risk of head injuries when working as a lead hand in the hold of the vessel; and (2) the hazard related to movement of paper rolls in the hold of the vessel.
[7] Considering the first point, the appeals officer cited a 2005 report which described a 1997 policy establishing that all employees must wear a hard hat in the hold of the vessel. He also noted a 1997 risk assessment carried out by the joint work place health and safety committee, revised in 2002, which stated that there is a risk of head injuries but a greater risk of wearing the hard hat due to visibility. On this, he stated that where a risk of head injury has been identified, the employer must comply with the Code. The appeals officer further stated that the applicant acknowledged that there was a risk of head injuries even if the employee was working under the wing, as an employee could be struck on the head by the sling straps attached to the roll of paper. He concluded that by enforcing the requirement to wear a hard hat, the employer was complying with the Marine Occupational Safety and Health Regulations, SOR/87-183 (the MOSH Regulations).
[8] With regard to the second point, the appeals officer noted that the MOSH Regulations also specify that wearing a hard hat shall not create a hazard. The appeals officer was convinced that the movement of paper rolls in the hold was a serious hazard to employees, but a normal condition of work. He also noted that shocks are put under the paper rolls to prevent accidental movements. Additionally, he remarked that the HSO never looked at this hazard during his investigation of the refusal to work. Finally, he stated that he was not provided with any evidence demonstrating that the employer had ever addressed this hazard.
[9] The appeals officer concluded that regarding the risk assessment, the HSO did not err in his decision that wearing a hard hat while working in the hold of the vessel MV Reefer Prince did not constitute a danger for the applicant. As for the hazard related to moving paper rolls, the appeals officer found that the HSO erred in his investigation by not addressing the hazard and directed the employer to develop a risk assessment regarding the hazard of an employee being crushed due to accidental movements of moving paper rolls in the hold.
[10] The standard of review for decisions of an appeal officer, as recently settled by the Federal Court of Appeal in Martin v. Canada (Attorney General), 2005 FCA 156, [2005] 4 F.C.R. 637 (F.C.A.) at paragraphs 12-18, is that of patent unreasonableness. This standard has been defined such that the decision must be "clearly irrational" or "evidently not in accordance with reason" or "so flawed that no amount of curial deference can justify letting it stand": Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at para. 52.
[11] As I will elaborate upon in the reasons that follow, I am of the view that the appeals officer made an erroneous finding of fact without regard to the evidence before him. Moreover, he exceeded his jurisdiction when he failed to answer the actual question before him, and as a whole his decision is patently unreasonable.
[12] Section 128 of the Canada Labour Code provides as follows:
| Refusal to work if danger 128. (1) Subject to this section, an employee may refuse to use or operate a machine or thing, to work in a place or to perform an activity, if the employee while at work has reasonable cause to believe that (a) the use or operation of the machine or thing constitutes a danger to the employee or to another employee; (b) a condition exists in the place that constitutes a danger to the employee; or (c) the performance of the activity constitutes a danger to the employee or to another employee. No refusal permitted in certain dangerous circumstances (2) An employee may not, under this section, refuse to use or operate a machine or thing, to work in a place or to perform an activity if (a) the refusal puts the life, health or safety of another person directly in danger; or (b) the danger referred to in subsection (1) is a normal condition of employment. (...)
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Refus de travailler en cas de danger 128. (1) Sous réserve des autres dispositions du présent article, l'employé au travail peut refuser d'utiliser ou de faire fonctionner une machine ou une chose, de travailler dans un lieu ou d'accomplir une tâche s'il a des motifs raisonnables de croire que, selon le cas : a) l'utilisation ou le fonctionnement de la machine ou de la chose constitue un danger pour lui-même ou un autre employé; b) il est dangereux pour lui de travailler dans le lieu; c) l'accomplissement de la tâche constitue un danger pour lui-même ou un autre employé. Exception (2) L'employé ne peut invoquer le présent article pour refuser d'utiliser ou de faire fonctionner une machine ou une chose, de travailler dans un lieu ou d'accomplir une tâche lorsque, selon le cas : a) son refus met directement en danger la vie, la santé ou la sécurité d'une autre personne; b) le danger visé au paragraphe (1) constitue une condition normale de son emploi. [...] |
[13] The term "danger" is defined in subsection 122(1) of the Canada Labour Code as follows:
| "danger" means any existing or potential hazard or condition or any current or future activity that could reasonably be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected, or the activity altered, whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity, and includes any exposure to a hazardous substance that is likely to result in a chronic illness, in disease or in damage to the reproductive system; |
« danger » Situation, tâche ou risque existant ou éventuel susceptible de causer des blessures à une personne qui y est exposée, ou de la rendre malade même si ses effets sur l'intégrité physique ou la santé ne sont pas immédiats , avant que, selon le cas, le risque soit écarté, la situation corrigée ou la tâche modifiée. Est notamment visée toute exposition à une substance dangereuse susceptible d'avoir des effets à long terme sur la santé ou le système reproducteur.
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[14] In the present case, there are three separate operations involved in the unloading of the paper rolls into a vessel, those being: first, the crane unloading the paper rolls into the square of the hold of the vessel; second, the placing of the cutting boards to rotate the paper rolls to place or store them under the wing of the hatch in the vessel; and third, the final stowing and securing of the paper rolls.
[15] At paragraph 38 of his decision, the appeals officer writes as follows:
In my view, B. Duplessis acknowledge that there is a risk of head injuries even if the employee is working under the wing. An employee could be struck on the head by the string straps attached to the roll of paper.
[16] The applicant submits that he never made such a statement. The applicant has deposed, following a review of a CD recording of the hearing, that the one reference he made in his testimony to "sling straps" was an unprompted reference to the loading operation of the paper rolls from the crane into the square of the hold of the vessel (the first operation). In that context, he made a reference to the "sling straps" attached to the rolls possibly "slapping [him] in the face" after the rolls have landed in the square of the hold.
[17] This loading, however, was not the work being performed by the applicant at the time of his work refusal. According to the applicant, his refusal to work because of a danger was limited to working under the wing of the hatch in the vessel performing the functions of a lead hand placing cutting boards to rotate the paper rolls or storing the paper rolls (the second operation). This is particularized in his refusal to work registration, the HSO's investigation and report, and his appeal document filed with the appeal's office case management and hearing coordinator, all three of which were before the appeals officer. At no point during his testimony did he make any statement that there was any risk of head injury from the sling straps in the particular setting of the second operation.
[18] The applicant did not testify that there was a danger of head injuries while working under the wing of the hatch, which had an eight to ten foot ceiling and no falling objects. Moreover, the appeals officer noted earlier in the decision: "But nothing could fall on him because he is under the wing of the hatch, which is mostly a covered hold."
[19] Clearly, the appeals officer failed to differentiate between the different operations of work done by different individuals in the hold of the ship. The work area in question before him (i.e. in which the applicant refused to work) was under the wing of the hatch in the vessel placing cutting boards to rotate the paper rolls. The work area which forms the subject of his decision is the loading area where the paper rolls are taken from the crane into the square of the hold of the vessel. As a result, the entire decision is tainted, since the appeals officer's consideration of the wrong area means that he did not address the question before him.
[20] This error may have been linked to the failure of the HSO in the first instance to view the site which, in my view, is critical in determining the question of any "existing" hazard or "current" activity as well as the question of any "potential" hazard or "future" activity, as provided for in the current definition of "danger". The appeals officer hearing the matter de novo could have remedied the situation by viewing the workplace himself as he was empowered to do under section 145.1(2) of the Code.
[21] Additionally,the risk assessment conducted by the employer-union joint health and safety committee concludes, with respect to Hold Workers generally, "there is a risk of head injury but there is a greater risk of wearing the hard hat due to visibility."
[22] However, on this point, the appeals officer concludes:
As for the risk assessment carried out by the joint work place health and safety committee, it has been identified that there is a risk of head injury for Hold Men when working in the hold of a vessel. In this instance, when an employer receives a report that there is a risk of head injury for certain jobs, he must comply with the Code.
[23] Once again, it is clear that the appeals officer all but ignored the evidence that was properly before him.
[24] In summary, at no time does the appeals officer address the question of whether a hard hat was a "danger" to the applicant while performing the particular work of placing the cutting boards to position rolls of paper in the hold of the vessel. This was the sole basis for the applicant's refusal to work. As I stated above, I must conclude that his decision is patently unreasonable.
JUDGMENT
The decision of the appeals officer is quashed. The matter is referred back for redetermination by a different appeals officer.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-90-06
STYLE OF CAUSE: Brian Duplessis
and
The Attorney General of Canada and
Forest Products Terminal Corporation Limited
PLACE OF HEARING: Fredericton, New Brunswick
DATE OF HEARING: April 10, 2006
AND JUDGMENT: TREMBLAY-LAMER, J.
APPEARANCES:
| Robert D. Breen, Q.C.
|
FOR THE APPLICANT |
| No appearance
|
FOR THE RESPONDENTS |
SOLICITORS OF RECORD:
| Pink Breen Larkin Fredericton, N.B.
|
FOR THE APPLICANT |
|
|
FOR THE RESPONDENTS |