P&O Ports Inc. v. International Longshoremen’s and Warehousemen’s Union, Local 500

P&O Ports Inc. v. International Longshoremen’s and Warehousemen’s Union, Local 500
Court (s) Database
Federal Court Decisions
Date
2008-07-09
Neutral citation
2008 FC 846
File numbers
T-1727-07
Decision Content
Date: 20080709
Docket: T-1727-07
Citation: 2008 FC 846
Ottawa, Ontario, July 9, 2008
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
P&O PORTS INC, and WESTERN STEVEDORING CO. LTD.
Applicant
and
INTERNATIONAL LONGSHOREMEN'S
AND WAREHOUSEMEN'S UNION, LOCAL 500
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
APPLICATION
[1] This is an application for judicial review of Decision No. CAO-07-030, dated August 31, 2007 (Decision) and related directions issued by Mr. Richard Lafrance in his capacity as an appeals officer (Appeals Officer) appointed pursuant to section 146 of Part II of the Canada Labour Code, R.S.C. 1985, c.L-2 (Code).
[2] The Decision arose as a result of appeals filed by P&O Ports Inc. and Western Stevedoring Co. Ltd. (together the Employers) from three Directions issued by Health and Safety Officers (Safety Officers) in which work activities required by the Employers were found to constitute a danger to an employee. The Respondent in this application, International Longshoremen’s and Warehousemen’s Union, Local 500 (Union), represents longshore workers employed by the Employers and assigned to grain loading operations on the Employers’ vessels.
BACKGROUND
[3] The Employers are stevedoring companies operating, inter alia, in the Port of Vancouver where, as part of their operations, they load grain ships. The Employers utilize tarpaulins (“tarps”) to cover hatch covers when it is raining during grain loading operations. The hatch cover is opened sufficiently to accommodate the grain spout and the tarps keep rain off the opening of the hatch.
[4] On July 8, 2005, Safety Officer D’sa attended at P&O Ports’s grain loading operation to investigate a refusal by an employee represented by the Union to perform tarping operations. Safety Officer D’sa was shown how the traps were rigged and he found that it was unsafe to do so with the hatch covers opened as there was no protection on the side of the opened covers. Shortly thereafter on the same day, Safety Officer D’sa attended a second vessel being loaded by P&O Ports to investigate another refusal by an employee to engage in tarping operations. As a result of his investigations, Safety Officer D’sa found that two dangers existed:
Working on an open hatch cover with no fencing where the drop is greater than 2.4 m.
Working close to the edge of a hatch cover with a slippery surface.
[5] P&O Ports was directed, pursuant to paragraphs 145(2)(a) and (b) of the Canada Labour Code, “to immediately take measures for guarding the source of danger/protect any person from the danger” and “not to use or operate the place/machine/thing in respect of which the notice of danger...has been affixed pursuant to subsection 145(3), until this direction has been complied with.”
[6] A third refusal to perform tarping operations was made by an employee of Western Stevedoring Co. Ltd. on August 16, 2005. Safety Officer Yeung investigated this complaint but, unlike Safety Officer D’sa, he did not view the tarping operation. Following conversations with longshoremen and with company representatives, Safety Officer Yeung made identical findings and issued directions identical to those made by Safety Officer D’sa.
[7] The Employers appealed the decisions of the Safety Officers to the Canada Appeal Office on Occupational Health and Safety on the grounds that the directions made by the Safety Officers were not supported by the findings of fact they made and, alternately, on the basis that the directions should be modified because the Employers had implemented procedures to remove or guard against the potential danger identified by the Safety Officers in their reports.
[8] Hearings were held in Vancouver on September 19 and 20, 2006 and October 19 and 20, 2006. The Appeals Officer issued his Decision on August 31, 2007. This is the Decision under review in this application.
[8]
DECISION UNDER REVIEW
[9] The Appeals Officer had to decide whether or not the employees who had refused work were exposed to a danger as defined under Part II of the Code and whether a direction was required to correct the situation.
[10] The Appeals Officer made the following findings:
1. Employees have to work on top of hatch covers to rig and unrig tarps;
2. From time to time, in order to be able to remove accumulated water on the tarps, an employee has to pull and shake the tarps. To be able to channel water out of a pocket that would form between the hatch covers, an employee has to pull upwards to get the water flowing in the right direction and that, to be able to pull upwards, an employee has to stand on the hatch covers;
3. It is reasonable to believe that with the existing tripping impediments such as cleats, holds, etc. hidden or not under the tarps, and the addition of grain dust, grain or water, someone could, while pulling on a tarp or lanyards, trip or slip and fall over the side of the hatch cover and potentially be injured on contact by pieces of machinery or other surface or things such as pipes;
4. Putting up a sign or painted line or other delimiting visual warning is insufficient to protect an employee from a falling hazard. Wearing non-slip work boots is not sufficient to prevent someone from slipping on round grains of cereals or tripping hazards such as cleats;
5. The Employers failed, to the extent reasonably practicable, to eliminate or control the hazard within safe limits or to ensure that the employees were personally protected from the hazard of falling off the hatch covers;
6. At the time of the work refusals, in all three cases, the employees were working on top of the hatch covers. With the tripping and slipping hazards present on the covers, it is reasonable to believe that the risk of tripping or slipping while working on the hatch covers is a reasonable possibility and increases the potential of falling off the hatch cover. Without any fall prevention or protection equipment in place, the danger is real and not speculative. Such accidents have occurred in the past and such a fall would most likely result in an injury before the hazard could be corrected or the activity altered;
7. It is not the use of tarps that is the danger, but the activity of working from an unguarded elevated structure without any fall prevention or protection in place.
[11] In his Decision, the Appeals Officer agreed that the activity constituted a danger to the employees, but varied the directions issued by the Safety Officers:
[The employees who refused work, namely Glen Bolkowy, Steve Suttie, and M.A. St Denis, work] from the hatch covers, an elevated unguarded structure, that is 2.4 m in height or above moving parts of machinery or other surface or thing that could cause an injury to a person on contact, without any fall prevention or fall protection equipment in place.
This exposes the employee to a fall, where it is reasonable to believe that he would be injured before the activity could be altered.
Therefore, you are HEREBY DIRECTED, pursuant to paragraph 145(2)(a) of the Canada Labour Code, Part II, to immediately take measures to protect the employee and any person from the danger.
You are HEREBY FURTHER DIRECTED, pursuant to paragraph 142(2)(b) of the Canada Labour Code, Part II, not to conduct work on the said hatch covers until the [sic] this direction is complied with. However, nothing in this subsection prevents the doing of anything necessary for the proper compliance with this direction [emphasis in original].
[12] The Employers note that, as a result of the Appeals Officer’s Decision and the directions contained therein, there has been no tarping of vessels, and therefore no loading of grain during rain conditions, in the Port of Vancouver since August 2005.
ISSUES
[13] The issues raised by the Employers in this application are as follows:
1. Did the Appeals Officer err in law with respect to his interpretation and application of the definition of “danger” in section 122(1) and in the application of sections 145(1) & (2) by ignoring or failing to have proper regard to procedures taken by the Employers to correct the condition or hazard or to alter the activity?
2. Did the Appeals Officer err in law with respect to his statutory interpretation and application of the definition of “danger” in section 122(1) and in the application of sections 128(2)(b) and 145(1) & (2) by ignoring or failing to have proper regard to the fact that, with the procedures implemented by the Employers to correct the condition or hazard or to alter the activity to the extent that is reasonable, work on hatch covers is a normal condition of employment for longshore workers?
3. Did the Appeals Officer err in law with respect to his interpretation and application of the definition in sections 122.2 and 125(1) of the Code and sections 10.1 and 10.2 of the Marine Occupational Safety and Health Regulations by requiring the Employers to have fall prevention or fall protection equipment in place without:
a. Having regard to procedures implemented, or that could have been implemented, to control the potential hazard;
b. Having regard to the fact that fall protection equipment cannot reasonably be employed on a hatch cover, and therefore its use would not prevent or reduce injury from the potential hazard; and
c. Having regard to the fact that fall protection equipment could itself create a hazard.
4. Did the Appeals Officer base his Decision on an erroneous finding of fact, made in a perverse or capricious manner?
5. Was there a breach of natural justice and procedural fairness?
STANDARD OF REVIEW
[14] In the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9, the Court collapsed the standards of patent unreasonableness and reasonableness simpliciter into one standard of reasonableness. The Court also clarified the process for determining the standard of review on judicial review proceedings, stating that the exercise involves two steps:
First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review: Dunsmuir, supra, at para. 62.
[15] In Martin v. Canada (Attorney General), [2005] 4 F.C.R. 637, 2005 FCA 156 (hereinafter Martin), the Federal Court of Appeal settled the standard of review to be applied in respect of an Appeal Officer’s interpretation of the definition of “danger” in Part II of the Code. The Court of Appeal held that the reviewing court should not interfere in a tribunal’s interpretation of questions of law arising under its home statute unless that interpretation is patently unreasonable (Martin at paras. 17-18). The patent unreasonableness standard has also been applied in the past to questions of whether an Appeals Officer based his or her decision on an erroneous finding of fact, made in a perverse or capricious manner (Canada Post Corp. v. Pollard, 2007 FC 1362 [hereinafter Pollard], Duplessis v. Forest Products Terminal Corp. (2006), 290 F.T.R. 296, 2006 FC 482).
[16] In light of the past jurisprudence and the Supreme Court of Canada’s decision in Dunsmuir, supra, I conclude that the standard of review applicable to the Appeals Officer’s decision, both as it relates to the interpretation and application of “danger” and the factual findings is reasonableness. I also note that the decisions of Appeals Officers are protected by stringent privative clauses in sections 146.3 and 146.4 of the Code (Maritime Employers’ Assn. v. Canadian Union of Public Employees, Local 375, 2006 FC 66 at para. 33). The purpose of the statute is set out in section 122.1 of the Code, which states, “[t]he purpose of this Part is to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment to which this Part applies.” The thoroughness of the statutory scheme embodied by Part II of the Code has been found to indicate that a high level of deference to decisions or directions under this Part is appropriate (Sachs v. Air Canada, 2006 FC 673). Finally, the Canada Appeal Office on Occupational Health and Safety is a specialized tribunal and is thus entitled to deference with respect to decisions, such as those presently before me, which are within the Board’s jurisdiction.
[17] The final issue raised on this application is one of procedural fairness. It is well-settled that the standard of review analysis does not apply to questions of this kind (Canadian Union of Public Employees v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29) which are always reviewed as questions of law and, as such, the applicable standard of review is correctness. Where a breach of procedural fairness is found, the decision will be set aside (Sketchley v. Canada (Attorney General) (2005), [2006] 3 F.C.R. 392, 2005 FCA 404).
RELEVANT STATUTORY PROVISIONS
[18] The following provisions of the Code are relevant to the present application:
145. (1) A health and safety officer who is of the opinion that a provision of this Part is being contravened or has recently been contravened may direct the employer or employee concerned, or both, to
(a) terminate the contravention within the time that the officer may specify; and
(b) take steps, as specified by the officer and within the time that the officer may specify, to ensure that the contravention does not continue or re-occur.
145. (2) If a health and safety officer considers that the use or operation of a machine or thing, a condition in a place or the performance of an activity constitutes a danger to an employee while at work,
(a) the officer shall notify the employer of the danger and issue directions in writing to the employer directing the employer, immediately or within the period that the officer specifies, to take measures to
(i) correct the hazard or condition or alter the activity that constitutes the danger, or
(ii) protect any person from the danger; and
(b) the officer may, if the officer considers that the danger or the hazard, condition or activity that constitutes the danger cannot otherwise be corrected, altered or protected against immediately, issue a direction in writing to the employer directing that the place, machine, thing or activity in respect of which the direction is issued not be used, operated or performed, as the case may be, until the officer’s directions are complied with, but nothing in this paragraph prevents the doing of anything necessary for the proper compliance with the direction.
146.1 (1) If an appeal is brought under subsection 129(7) or section 146, the appeals officer shall, in a summary way and without delay, inquire into the circumstances of the decision or direction, as the case may be, and the reasons for it and may
(a) vary, rescind or confirm the decision or direction; and
(b) issue any direction that the appeals officer considers appropriate under subsection 145(2) or (2.1).
146.3 An appeals officer’s decision is final and shall not be questioned or reviewed in any court.
146.4 No order may be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an appeals officer in any proceeding under this Part.
145. (1) S’il est d’avis qu’une contravention à la présente partie vient d’être commise ou est en train de l’être, l’agent de santé et de sécurité peut donner à l’employeur ou à l’employé en cause l’instruction :
a) d’y mettre fin dans le délai qu’il précise;
b) de prendre, dans les délais précisés, les mesures qu’il précise pour empêcher la continuation de la contravention ou sa répétition.
145. (2) S’il estime que l’utilisation d’une machine ou chose, une situation existant dans un lieu de travail ou l’accomplissement d’une tâche constitue un danger pour un employé au travail, l’agent :
a) en avertit l’employeur et lui enjoint, par instruction écrite, de procéder, immédiatement ou dans le délai qu’il précise, à la prise de mesures propres :
(i) soit à écarter le risque, à corriger la situation ou à modifier la tâche,
(ii) soit à protéger les personnes contre ce danger;
b) peut en outre, s’il estime qu’il est impossible dans l’immédiat de prendre les mesures prévues à l’alinéa a), interdire, par instruction écrite donnée à l’employeur, l’utilisation du lieu, de la machine ou de la chose ou l’accomplissement de la tâche en cause jusqu’à ce que ses instructions aient été exécutées, le présent alinéa n’ayant toutefois pas pour effet d’empêcher toute mesure nécessaire à la mise en oeuvre des instructions.
146.1 (1) Saisi d’un appel formé en vertu du paragraphe 129(7) ou de l’article 146, l’agent d’appel mène sans délai une enquête sommaire sur les circonstances ayant donné lieu à la décision ou aux instructions, selon le cas, et sur la justification de celles-ci. Il peut:
a) soit modifier, annuler ou confirmer la décision ou les instructions;
b) soit donner, dans le cadre des paragraphes 145(2) ou (2.1), les instructions qu’il juge indiquées.
146.3 Les décisions de l’agent d’appel sont définitives et non susceptibles de recours judiciaires.
146.4 Il n’est admis aucun recours ou décision judiciaire — notamment par voie d’injonction, de certiorari, de prohibition ou de quo warranto — visant à contester, réviser, empêcher ou limiter l’action de l’agent d’appel exercée dans le cadre de la présente partie.
ANALYSIS
Issue 1: Did the Appeals Officer err in law with respect to his interpretation and application of the definition of “danger” in section 122(1) and in the application of sections 145(1) & (2) by ignoring or failing to have proper regard to procedures taken by the Employers to correct the condition or hazard or to alter the activity?
[19] For the purpose of Part II of the Code, “danger” is defined in subsection 122(1) 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.
Employers’ Submissions
[20] The Employers submit that the definition of danger sets out a two-step analysis that must be conducted. First, a safety officer must consider that “the use or operation of a machine or thing, a condition in a place or the performance of an activity” creates a “hazard or condition…that could reasonably be expected to cause injury or illness to a person exposed to it.” Second, it must be determined that any such injury or illness can reasonably be expected to occur “before the hazard or condition can be corrected, or the activity altered.” Only if these two conditions are satisfied, suggest the Employers, does a “danger” exist which triggers a safety officer’s obligation to direct an employer to take measures to correct the danger.
[21] Relying on Cole and Air Canada, [2006] C.L.C.A.O.D. No. 4 at para. 70, the Employer’s argue that it was incumbent upon the Appeals Officer to determine that the Employers had failed to either eliminate, control or protect employees from the potential hazard and that it was reasonably likely that the hazard or condition would cause injury before it could be corrected or altered. In Cole, Appeals Officer Malanka, relying on Justice Tremblay Lamer’s decision in Martin v. Canada (Attorney General), 2003 FC 1158 (F.C.T.D.), and Justice Gauthier’s decision in Verville v. Canada (Correctional Services), 2004 FC 767 held as follows:
70 Taking the above noted Code provisions and the findings of Justices Tremblay -Lamer and Gauthier, it is my opinion that a danger exists where the employer has failed, to the extent reasonably practicable, to:
- eliminate a hazard, condition, or activity;
- control a hazard, condition or activity within safe limits; or
- ensure employees are personally protected from the hazard, condition or activity;
and one determines that:
- the circumstances in which the remaining hazard, condition or activity could reasonably be expected to cause injury or illness to any person exposed thereto before the hazard, condition or activity can be corrected or altered; and
- the circumstances will occur in the future as a reasonable possibility as opposed to a mere possibility or a high probability.
[22] The Employers submit that the Appeals Officer in the present case did not consider the possibility that the hazard could be corrected or the activity altered. Nor did he consider the likelihood that a worker would be injured prior to correction of the hazard. He simply held that “someone could, while pulling on a tarp or lanyard, trip or slip and fall over the side of the hatch cover and potentially be injured on contact by pieces of machinery or other surface or things such as pipes.”
[23] The Employers contend that the Appeals Officer failed to properly consider the two metre no-work zone that the Employers were implementing, and he failed to consider any other steps the Employers could implement to deal with a concern that employees may “fall over the side of the hatch cover.” In support of their argument, the Employers note that, during the hearing, the Appeals Officer stated that he was not interested in hearing the Employers’ evidence of what could or could not be safe but was only concerned with evidence of the danger and the refusals. The Employers suggest that this is an indication that the Appeals Officer was not concerned with possible preventive measures, including those implemented by the Employers, which is a consideration required before a finding of danger can be made.
[24] The Employers also argue that if employees are instructed to restrict their work to an area that precludes the possibility of falling, then working on a raised platform does not constitute a “danger” within the meaning of section 122(1) of the Code. They submit that the hazard or potential hazard of working on a raised platform has been corrected in such circumstances and a danger does not exist.
[25] The Employers argue further that the Appeals Officer’s conclusion that employees could fall, notwithstanding the procedure implemented by the Employers, was pure speculation or hypothesis, and did not meet the test for a finding of “danger” as set out by the Federal Court of Appeal in Martin, supra, wherein it was held at paragraph 37:
I agree that a finding of danger cannot be based on speculation or hypothesis. However, when attempting to ascertain whether a potential hazard or future activity could reasonably be expected to cause injury before the hazard could be corrected or the activity altered, one is necessarily dealing with the future. Tribunals are regularly required to infer from past and present circumstances what is expected to transpire in the future. The task of the tribunal in such cases is to weigh the evidence to determine whether it is more likely than not that what an applicant is asserting will take place in the future.
Union’s Submissions
[26] The Union argues that the Appeals Officer's interpretation of "danger" is in accordance with established jurisprudence. The definition of danger, found in section 122(1) of the Code, was explained by Justice Dawson in Pollard, supra, at paragraphs 66-68:
66 As a matter of law, in order to find that an existing or potential hazard constitutes a "danger" within the meaning of Part II of the Code, the facts must establish the following:
(1) the existing or potential hazard or condition, or the current or future activity in question will likely present itself;
(2) an employee will be exposed to the hazard, condition, or activity when it presents itself;
(3) exposure to the hazard, condition, or activity is capable of causing injury or illness to the employee at any time, but not necessarily every time; and
(4) the injury or illness will likely occur before the hazard or condition can be corrected or the activity altered.
67 The final element requires consideration of the circumstances under which the hazard, condition, or activity could be expected to cause injury or illness. There must be a reasonable possibility that such circumstances will occur in the future. See: Verville v. Canada (Correctional Services) (2004), 253 F.T.R. 294 at paragraphs 33-36.
68 In Martin C.A., [2005 FCA 156], the Federal Court of Appeal provided additional guidance on the proper approach to determine whether a potential hazard or future activity could be expected to cause injury or illness. At paragraph 37 of its reasons, the Court observed that a finding of "danger" cannot be grounded in speculation or hypothesis. The task of an appeals officer, in the Court's view, was to weigh the evidence and determine whether it was more likely than not that the circumstances expected to give rise to the injury would take place in the future.
[27] The Union submits that the Employers’ interpretation of "before the hazard or condition can be corrected" as requiring a two-step analytical approach is flawed. This phrase, the Union notes, was considered in Verville, supra, at paragraph 34, where the Court stated as follows:
34 …As mentioned in Martin, supra, the injury or illness may not happen immediately upon exposure, rather it needs to happen before the condition or activity is altered. Thus, here, the absence of handcuffs on a correctional officer involved in an altercation with an inmate must be reasonably expected to cause injury before handcuffs are made available from the bubble or through a K-12 supervisor, or any other means of control is provided.
[28] The Union further relies on the discussion of the same phrase in the case of Employees and Amalgamated Transit Union and Laidlaw Transit Ltd. - Para Transpo Division, [2001] C.L.C.A.O.D. No. 19 at paras. 34-35:
34 In the unreported decision of appeals officer Serge Cadieux in the case of Darren Welbourne and the Canadian Pacific Railway Company, Decision No. 01-008, dated March 22, 2001, appeals officer Cadieux wrote the following in paragraphs 19 and 20:
[19] The existing or potential hazard or condition of the current or future activity referred to in the definition must be one that can reasonably be expected to cause injury or illness to a person exposed thereto before the hazard or condition can be corrected or the activity altered. Therefore, the concept of reasonable expectation excludes hypothetical or speculative situations.
[20] The expression "before the hazard or condition can be corrected" has been interpreted to mean that injury or illness is likely to occur right there and then i.e. immediately [Brailsford v. Worldways Canada Ltd. (1992), 87 di 98 (Can. L.R.B.); Bell Canada v. Labour Canada (1984), 56 di 150 (Can. L.R.B.).]. However, in the current definition of danger, a reference to hazard, condition or activity must be read in conjunction to the existing or potential hazard or condition or the current or future activity, thus appearing to remove from the previous concept of danger the requisite that injury or illness will likely occur right there and then. In reality however, injury or illness can only occur upon actual exposure to the hazard, condition or activity. Therefore, given the gravity of the situation, there must be a reasonable degree of certainty that an injury or illness is likely to occur right there and then upon exposure to the hazard, condition or activity unless the hazard or condition is corrected or the activity altered. With this knowledge in hand, one cannot wait for an accident to happen, thus the need to act quickly and immediately in such situations.
That is, for a danger to exist under the Code, there must be a reasonable degree of certainty that an injury or illness is likely to occur right then and there unless the hazard or condition is corrected or the activity altered. For deciding if a reasonable degree of certainty exists, it is necessary to examine the specific facts in the case.
[29] The Union argues that the Employers’ submission that, before determining whether a danger exists, the Appeals Officer was required to determine that the hazard or condition could not be corrected before injury or illness was reasonably likely to result is incorrect. Such an articulation of the definition of danger, the Union suggests, is not consistent with the definition found in Verville or Employees and Amalgamated Transit Union. The Union also submits that the Code does not require a consideration of what an employer may potentially do in the future to eliminate the hazardous activity. Rather, the Code refers to measures that are actually in place which will immediately mitigate the hazard.
[30] The Union also stresses that the Employers’ alleged response to the hazard (specifically the two metre no work zone) was never adopted by either of the Employers and, at the time the Safety Officers issued their directions on July 8, 2005 and August 16, 2005, there were no written work procedures for tarping over hatch covers. The lack of written procedures was noted by the Appeals Officer in his Decision at paragraph 49:
G. Thompson [Grain Superintendent for Western Stevedoring] testified as well that there were no written procedures on how to tarp over the hatch covers at the time of the refusals. Since then, the employers proposed procedures prepared in consultation with the union and the British Columbia Maritime Employers Association (BCMEA). A few meetings were held, but no consensus could be reached.
[31] The Union notes that Mr. B. Wall, Manager of the Grain Department at P&O Ports, also testified that there was no set standard procedure applicable to the industry for the rigging, monitoring or unrigging of tarps. Mr. Wall stated that documents entitled “Panamex type tarp rigging procedure” and “Procedure for removing tarps from a Panamex” were prepared and finalized within the month or so before the hearing.
[32] Further, the concept of a two-metre no work zone was put forward by the Employers in the alternative, and not as something they had implemented. This is supported by the Appeals Officer's decision at paragraph 83, where he notes:
In the alternative, T. Roper submitted that the employer’s proposed guidelines for rigging tarps on the hatch covers corrects the alleged danger. Consequently, no danger exists, if it ever did [emphasis added].
[33] Furthermore, the Union submits that the Safety Officers concluded not only that the pulling on the tarp while standing near the edge of the hatch cover constituted a danger, but also that a second danger (working on top of a hatch cover with the hatch cover open) existed. Thus, any procedures implemented by the Employer would also have to eliminate, control, or protect employees from this second danger as well.
Conclusions
[34] In my view, the Appeals Officer did not err by failing to consider the procedures the Employers proposed to implement to correct the condition or hazard, or to alter the activity, in his assessment of whether or not a danger existed. It is clear from the Decision as a whole that the Appeals Officer considered whether the procedures that either existed or were proposed to be implemented were sufficient to eliminate, control or protect employees from the potential hazard. The points raised by the Employers (and raised again before the Court in this application) are referred to in the Decision and conclusions are presented in paragraphs 145 to 149:
[145] Even though witnesses for the appellants as well as B. Johnston testified that, as long as the employees do not work close to the edge of the hatch covers, there is no danger, I find that it is reasonable to believe that with the existing tripping impediments such as cleats, holds, etc. hidden or not under the tarps and the addition of grain dust, grain or water, someone could, while pulling on the tarp or lanyards, trip or slip and fall over the side of the hatch cover and potentially be injured on contact by pieces of machinery or other surface or things such as pipes.
[146] B.Johnston stated that in the spirit of the MOSH Regulations, he believed that a two metre no work zone around the perimeter of the covers was sufficient to protect the employees against falling off the covers. However, he did not provide any technical or engineering evidence that a two-metre no-work zone is sufficient to protect employees against falling off a hatch cover while working on top of those hatch covers. As mentioned by L. Terai, B. Johnston failed to mention that although safety nets are required by the MOSH Regulations on each side of a gangway, those same gangways must be securely fenced throughout to a clear height of no less than [sic] 915 mm as required by the Tackle Regulations [Canada Shipping Act, R.S. 1985, c. S-9; Tackle Regulations, C.R.C., c. 1494, Part III, 8.(2)(ii)].
[147] Finally, I agree with A. Laumonier that putting up a sign or painted line or other delimiting visual warning is insufficient to protect an employee from a falling hazard. As stipulated in subsection 122.2 of the Code, prevention measures should consist first in the elimination of the hazard, then in the reduction of the hazard and finally in provision of personal protective equipment. A warning sign is not a prevention measure.
[148] B. Johnston did not convince me that the fact of wearing non-slip work boots was sufficient to prevent someone from slipping on round grains of cereals. While wearing non-slip boots has its place in this type of work, those boots are normally for protection against wet and greasy or oily surfaces, not against rolling objects such as grains of cereal or tripping hazards such as cleats.
[35] Thus, the Appeals Officer clearly considered the procedures or policies in place, as well as those proposed by the Employers, and determined that the Employers had failed “to the extent reasonably practicable, to eliminate or control the hazard within safe limits or to ensure that the employees were personally protected from the hazard of falling off the hatch covers.” The Appeals Officer explicitly considered the proposed two-metre no work zone, but found that insufficient evidence had been led to prove that the establishment of such a zone would ensure that employees would not fall off the hatch covers (Decision at para. 146). The Appeals Officer found that this was especially so given the existence of tripping impediments such as “cleats, holds, etc.” either hidden or not, under the tarps and the addition of grain dust, grain, or water that could cause someone to slip over the side of the hatch cover (Decision at para. 145).
[36] With respect to the other proposed Guidelines, such as the proposals to restrict the work to an area that precludes falling and that steps be taken to remove any product from the surface of the hatch covers before tarps were rigged or taken off, I am also satisfied that the Appeals Officer did not err by failing to take these into consideration when he determined that the Employers had failed to eliminate, control or protect employees from the potential hazard.
[37] The fact that proposals were drafted does not mean that the danger was eliminated or controlled, or that the Employers effectively ensured that employees were personally protected. These proposals, by their very nature, are merely plans or suggestions of procedures to be implemented. They are nothing more than suggested steps to be taken towards eventually eliminating or controlling the hazard or to eventually ensure that employees are protected. It cannot be said that by presenting proposals, which have yet to be implemented, that the danger no longer exists.
[38] In this regard, I agree with the Union that the phrase "before the hazard or condition can be corrected" in the Code does not require a consideration of what the employer may potentially do in the future to eliminate the hazardous activity. Rather, it refers to measures that are actually in place which will immediately mitigate the hazard. A determination of whether or not a danger exists involves an assessment of the activity or potential hazard as it exists or could be expected to arise, with a view to whether it is likely to cause harm to an employee before the hazard or condition is corrected. Thus, in my view, the Appeals Officer was not required to consider what the employer might do in the future to eliminate the hazardous activity.
[39] It seems to me that the Employers simply disagree with the Appeals Officer’s reasons and conclusions on this issue and want the Court to consider the matter de novo and reweigh the evidence. In my view, this is not the Court’s role in this application. The reasons and conclusions of the Appeals Officer on this point are, in my view, based upon a correct interpretation of the meaning of “danger” under the Code and the relevant jurisprudence and fall within a range of possible, acceptable outcomes. It is possible to disagree with the Appeals Officer, and even to reach a different conclusion, but that does not mean that the Decision was wrong or unreasonable.
Issue 2: Did the Appeals Officer err in law with respect to his statutory interpretation and application of the definition of “danger” in section 122(1) and in the application of sections 128(2)(b) and 145(1) & (2) by ignoring or failing to have proper regard to the fact that, with the procedures implemented by the Employers to correct the condition or hazard or to alter the activity to the extent that is reasonable, work on hatch covers is a normal condition of employment for longshore workers.
Employers’ Submissions
[40] The Employers argue that the Appeals Officer failed to have regard to the procedures implemented to protect against the perceived hazard or activity perceived to constitute a danger, and then failed to conclude that any remaining risks were a normal condition of employment within the meaning of section 128(2)(b) of the Code.
[41] The fact that employees may trip or slip while working on a hatch cover where procedures are in place to ensure that they are not working near the edge of a hatch does not constitute a danger within the meaning of the Code, suggest the Employers, because working on slippery surfaces or surfaces where one might trip is a normal condition of employment with the Employers. The Employers argue that the evidence of employees called by the Union was that the potential to slip or trip on a ship’s surface was a normal and regular hazard of longshoring work.
Union’s Submissions
[42] The Union points out that the Appeals Officer specifically refers to this issue and argument in paragraph 150 of the Decision and provides discussion and a conclusion in paragraphs 151, 152, 153 and 154. The relevant sequence of questions is also set out in paragraph 99, so that paragraph 152 of the Decision provided a review of paragraph 99. The factual basis f