2013 OHSTC 26

Citation: Les Élévateurs des Trois-Rivières v. Confédération des syndicats nationaux, 2013 OHSTC 26

Date: 2013-09-04
Case No.: 2011-69
Rendered at: Ottawa

Between:

Les Élévateurs des Trois-Rivières, Appellant

-and-

Confédération des syndicats nationaux, Respondent

Matter: Appeal under subsection 146(1) of the Canada Labour Code of directions issued by a health and safety officer

Decision: The directions are rescinded

Decision rendered by: Jean-Pierre Aubre, Appeals Officer

Language of decision: French

For the Appellant: Mr. Yves Turgeon, Counsel, Heenan Blaikie LLP

For the Respondent: Mr. Yves Deslauriers, Counsel, Roy Évangéliste avocat-es

REASONS

[1]             This appeal, filed on December 22, 2011, in accordance with section 146(1) of the Canada Labour Code, Part II (the Code), is from three directions issued in respect of the appellant by Health and Safety Officer (HSO) Sylvain Renaud on December 1, 2011, further to his investigation into a fatal work accident that occurred on November 29, 2011, in a work place operated by the appellant and known as Les Élévateurs des Trois-Rivières.

[2]             The first direction was issued pursuant to section 145(2)(a) of the Code after a finding that there was a “danger to an employee while at work.”

[translation]

IN THE MATTER OF THE CANADA LABOUR CODE

PART II – OCCUPATIONAL HEALTH AND SAFETY

DIRECTION TO THE EMPLOYER UNDER

SECTIONS 145(2)(a) AND (b)

On November 28, 2011, the undersigned health and safety officer conducted an investigation of a hazardous occurrence in the work place operated by Les Élévateurs de Trois-Rivières, an employer subject to the Canada Labour Code, Part II, and located at 2615 Notre-Dame Centre, P.O. Box 35, Trois‑Rivières, Quebec G9A 5E3, the said work place being sometimes known as Les Élévateurs de Trois-Rivières.

The said health and safety officer is of the opinion that the condition specified below constitutes a danger to an employee while at work:

The fact that a person can walk near a pit with a drop of 110 feet, the opening of which is covered by a support unable to withstand all loads, constitutes a mortal danger in the event of a fall. On November 29, 2011, an employee fell into Silo 326 and an opening covered by a grate did not protect him at that time.

Therefore, YOU ARE HEREBY DIRECTED, pursuant to section 145(2)(a) of the Canada Labour Code, Part II, to immediately take steps to correct the hazard that constitutes the danger.

Further, YOU ARE HEREBY DIRECTED, pursuant to section 145(2)(b) of the Canada Labour Code, Part II, to carry out the task in question, in respect of which notice of danger No. 3850 was affixed pursuant to section 145(3) of Part II, until the directions have been performed.

Dated at Montréal, this the [sic] 1st of December 2011.

Sylvain Renaud

Health and Safety Officer

. . .

[3]             A second direction was issued to the same party under section 145(1)(a) of the Code in respect of a contravention of section 125(1)(r) of the Code and section 2.6(2)(a) of the Canada Occupational Health and Safety Regulations (the Regulations):

[translation]

IN THE MATTER OF THE CANADA LABOUR CODE

PART II – OCCUPATIONAL HEALTH AND SAFETY

DIRECTION TO THE EMPLOYER

UNDER SECTION 145(1)

On November 29, 2011, the undersigned health and safety officer conducted an investigation of a dangerous situation in the work place operated by Les Élévateurs de Trois-Rivières, an employer subject to the Canada Labour Code, Part II, and located at 2615 Notre-Dame Centre, P.O. Box 35, Trois‑Rivières, Quebec G9A 5E3, the said work place being sometimes known as Les Élévateurs de Trois Rivières.

The said health and safety officer is of the opinion that the following provision of the Canada Labour Code, Part II, has been contravened.

Section 125(1)(r) of the Canada Labour Code, Part II.

Section 2.6(2)(a) of the Canada Occupational Health and Safety Regulations.

The employer did not ensure that the grates covering the pits were able to support the maximum load that could be brought to bear on them.

Therefore, YOU ARE HEREBY DIRECTED, pursuant to section 145(1)(a) of the Canada Labour Code, Part II, to terminate any contravention no later than December 15, 2011.

Further, YOU ARE HEREBY ORDERED, pursuant to section 145(1)(b) of the Canada Labour Code, Part II, to take measures, no later than December 15, 2011, to ensure that the contravention does not continue or re-occur.

Dated at Montréal, this 1st day of December 2011.

Sylvain Renaud

Health and Safety Officer

. . .

[4]             The purpose of the third direction, issued pursuant to section 141(1)(f), was to prevent the scene of the accident from being disturbed until a certain date. Although this last direction was included in the notice of appeal filed by the appellant, counsel for the appellant notified the undersigned appeals officer, at the beginning of the hearing, that the appeal concerning this direction had been withdrawn. Consequently, the hearing and the decision below pertain only to the first two directions.

Background

[5]             Before addressing the specific elements that constitute the background of this case and the directions under appeal, certain unusual factors need to be mentioned. Firstly, although the tragic events resulting in the death of Clermont Michaud occurred on the premises where the appellant Les Élévateurs des Trois-Rivières (ETR), a business under federal jurisdiction by virtue of a declaration for the general advantage of Canada, carries out its activities, the victim was not an employee of the appellant. Rather, he was employed by M.I. Maintenance Industrielle Inc. (M.I. Maintenance), a corporation under provincial jurisdiction whose services the appellant retained in order to clean inside silos. The accident occurred before the appellant’s employees’ work shifts began, and none of those employees were on the premises at the time. The persons on the premises were limited to Mr. Michaud; Gérard Dubé, a colleague of the victim to whom Mr. Michaud was trying to explain a certain task to be performed; and at least one other employee of M.I. Maintenance, namely supervisor Wallace Gauthier.

[6]             Secondly, as to HSO Renaud who wrote the directions, he stated, at the beginning of the hearing, that when he went to the location of the accident on November 29, 2011, it was not only the first time he had been on the appellant’s premises, but also the first time he had visited a grain elevator such as those operated by the appellant. In this regard, at the beginning of the hearing, HSO Renaud acknowledged that when he went to the premises as part of what he described as a “[translation] hazardous situation investigation”, he did not ask the appellant about the use, utility or purpose of the grating involved in the accident, which had given way resulting in the victim’s fall, but rather opted, on his own initiative, to regard the grating as a guard that protects against falling. He also acknowledged that, in the context of the investigation, he did not meet, or deem it useful to meet, the persons employed by M.I. Maintenance who were on site at the time of the accident in order to find out about their involvement in the circumstances that gave rise to the investigation, for the surprising reason that the people in question were under provincial jurisdiction due to their employment relationship with M.I. Maintenance.

[7]             During this investigation, HSO Renaud took no depositions from witnesses. Instead, he obtained documents that he did not see fit to submit to the Tribunal. Consequently, the only document supplied by HSO Renaud is his “Rapport circonstancié”[Detailed Report], which includes a brief account of the circumstances of the accident, along with the wording of the directions, and nine photographs that were taken at the scene of the accident on November 29, 2011.

[8]             Thirdly, even though the victim was employed by a business that falls under provincial jurisdiction (albeit one that provided services to a company that falls under federal jurisdiction), it appears that the Commission de la santé et de la sécurité du travail (CSST) conducted no investigation into the said accident.

[9]             Lastly, although the Confédération des syndicats nationaux, a union representing the appellant’s employees, asked to take part in the hearing of this appeal as a respondent, it offered no witnesses, tendered no evidence, and did not even choose to make any representations in response to the appellant’s arguments or propose anything in terms of what my decision should contain. As a result, my decision will be based solely on the evidence submitted and the appellant’s submissions.

[10]             To bring us more directly to the background, on November 29, 2011, Mr. Michaud, employed by M.I. Maintenance as an assistant supervisor according to the appellant and as a foreperson according to HSO Renaud, fell to his death in one of the appellant’s grain silos while trying to open a metal plate in order to show his co‑worker, Mr. Gérard Dubé, how to light and monitor other M.I. Maintenance employees who were tasked with entering the silo from the bottom and sweeping it out—a confined-space operation requiring specific safety measures. In an attempt to fully open the metal plate, which serves as a cover and was already partly open, Mr. Michaud was—according to the report by HSO Renaud—giving it a kick (safety shoe), and stepped on the grating, which gave under his weight, leading to a deadly fall.

[11]             As HSO Renaud reported, there are two jobs involved in cleaning the inside of a silo: the job of monitor and the job of sweeper. The monitor stays at the top of the silo and shines a light down through a grate, keeping watch on the employees performing the cleaning operation. Thus, the monitor is posted on the second storey, a concrete floor with trapdoor openings giving access to the silos. Each opening or trapdoor is covered with a metal plate that can be slid sideways to uncover a grate equipped with a hinge allowing it to open outward. This grate does not need to be opened for the monitor to observe the cleaning operation. The inside of a silo is a hazardous area, and the lamp used to monitor the cleaning operation must be of an approved type. The sweepers, who are performing a confined-space operation, must obtain a detailed confined-space work permit from management (ETR), along with a gas detector (Gaz Alert) and the key to the silo; they must then follow the confined-space entry procedure. The appellant has a procedure for issuing a confined-space work permit for silo cleaning, which requires confirming on the permit that all safety measures have been taken beforehand.

[12]             Among other things, the appellant handles grain and stores it in 153 silos, which have one to four feed openings at the top. On silos with more than one opening, the ones that are generally unused are marked in blue, and those used in the ordinary course of operations are marked in red. According to the appellant, all the feed openings have covers (metal plates) that are kept closed except during grain loading or during maintenance operations, notably as part of the supervision of confined-spaced work.

[13]             During a typical silo loading, the cover is open and the opening, which must be kept free of anything that could obstruct grain flow, is entirely taken up by the chute placed over it. Each opening is thus equipped with a grate, commonly referred to as a grizzly, designed to prevent foreign objects or machine parts from getting into the silo and damaging the machinery therein. The feed opening covers can also be opened for brief periods in order to check the silo loads and the space available in the silos.

[14]             During his testimony at the hearing, HSO Renaud, who had acknowledged that the visit was his first of a grain elevator, declared that, upon seeing the grizzly, he considered it a protective covering (a “guard”), hence his finding under section 2.6 of the Regulations. In his testimony, HSO Renaud asserted that, on December 1, 2011, he received help on this issue from an expert, Mr. Lafrenière of the Centre/Institut Métallurgique de Trois-Rivières, in connection with the grizzly’s maximum load-bearing capacity. However, it emerged from that testimony that his directions had already been decided upon and written on November 29, and were submitted to the appellant upon its return to the site on December 1, 2011, before the expert in question could even visit the scene of the accident.

[15]             For more than ten years, the appellant has been using the services of M.I. Maintenance, a business specializing in industrial maintenance. According to the appellant, the business in question takes full control over, and fully supervises, the maintenance work entrusted to it, and has the work done by its employees. Nothing in HSO Renaud’s report contradicts this assertion. As mentioned earlier, the victim, like the other people involved in this cleaning operation, was an employee of M.I. Maintenance. It appears that on the morning of November 29, 2011, the date of the accident, the employees of M.I. Maintenance reported to the site and commenced the work on the silo floors before regular hours of operation, and thus, before the appellant’s employees arrived, without obtaining from the appellant the mandatory confined-space work permit. The accident occurred on Silo 326 and it appears that the cover that the victim was trying to open is identified by blue numbering, which indicates that it is not normally used. According to the appellant’s description, which matches, at least broadly, the description given by HSO Renaud, it appears that Mr. Michaud opened the cover part-way by sliding it along its side guides. Encountering some resistance, it appears that he first placed one foot on the grating, and then the other, in order to apply more force to his effort. It is worth noting that HSO Renaud states instead that Mr. Michaud was trying to kick the cover in order to open it. The point in common, however, is that the victim was on the grate at the time of the accident. It appears that the grate shifted under his weight and then opened into the silo, resulting in the fall. Mr. Michaud, as an assistant supervisor with M.I. Maintenance, had been carrying out his duties as an employee of that business on the appellant’s premises for nearly five years.

The issues

[16]             As mentioned earlier, this appeal pertains to two directions. The first, issued pursuant to section 145(2)(a) of the Code and commonly known as a “danger” direction, stipulates that a certain condition constitutes a danger to an employee while at work. It is important to specify here that the term “employee” as used in the paragraph means an employee to whom the Code applies, that is to say, an employee within the meaning of the Code. The condition to which the direction refers is described as follows: [translation] “The fact that a person can walk near a pit with a drop of 110 feet and having a cover unable to withstand the entire load constitutes a mortal danger in the event of a fall.”

[17]             HSO Renaud added to the preceding descriptive text that, on November 29, 2011, an employee fell into Silo 326 when an opening covered by a grate failed to protect him. In my opinion, it is important immediately to note that the term “employee” used by HSO Renaud in the addition to the said descriptive text cannot be the one used in the Code, because the victim was not employed by the appellant, and his employer was outside the ambit of the Code. In fact, the direction is not addressed to the victim’s employer, which comes under provincial jurisdiction, but rather, to the appellant, an employer under federal jurisdiction.

[18]             Thus, the issue pertaining to this direction is limited to whether the general situation described in it is a danger to the appellant’s employees. In my opinion, the answer to this question is intimately connected to the answer to be given to the question raised by the second direction, a “contravention” direction. In that direction, HSO Renaud finds that the appellant contravened a combination of statutory provisions, namely, the general obligation set out in section 125(1)(r) of the Code to maintain the “guards, guard-rails, barricades and fences” installed in the work place (the French version of the Code refers to “dispositifs protecteurs, garde-fous . . . ”) and the specific provision from the Regulations, namely section 2.6(2)(a), which states that “[t]he grating, screen, covering or walkway shall be designed, constructed and maintained so that it will support a load that is not less than . . . the maximum load that may be brought to bear on it.” The latter provision can only fully be understood by consulting section 2(1), which limits its application to open-top bins, hoppers, vats, pits or other open-top enclosures. However, the question that arises upon reading this direction—that is to say, whether the grizzly in question could bear the load—requires us to consider the initial underlying question of whether the provisions cited by the direction apply to the instant case. That underlying question is whether the grizzly grating must be considered a “guard.”

For the Appellant

[19]             The appellant’s final argument is built on the testimony of its three witnesses and on certain documents adduced through them. The witnesses in question are Stephen Djerbi, the appellant’s director of operations, employed by the appellant since 1979; Rémy Lévesque, the appellant’s director of engineering, a mechanical engineer employed by ETR since July 1992; and François Gosselin, ETR’s director of environment and occupational health and safety, employed by the company since 2001.

[20]             Though its counsel, the appellant reviewed the attitude, knowledge and lack of experience of HSO Renaud and argued that, according to the HSO’s logic, since an accident had occurred, the employer ETR was automatically at fault and corrective measures needed to be ordered. In so doing, the appellant was arguing that there is not just the letter of the law to contend with, but also its spirit, which must prevail, hence the importance of avoiding the simplistic equation, which holds that accident equals guilt.

[21]             The appellant also noted that, despite its request for the disclosure of the complete investigation file in accordance with Occupational Health and Safety Tribunal Canada’s Practice Guide for Hearing Appeals—a request reiterated at the pre-hearing conference held by me—this appeal was heard without my having access to the complete file, because HSO Renaud admitted that he had selected from the documents to be disclosed for the purposes of this appeal, and explained, at the hearing, that he was preparing a criminal case in parallel, and that the selection of documents had been made with a view to protecting that case, thereby enabling him to retain his prerogative to decide what was relevant for the purposes of the appeal.

[22]             With respect to the appearance of HSO Renaud as a witness at the hearing, the appellant recalled the HSO’s acknowledgment that the first time he had set foot in a grain elevator was November 29, 2011, and that, simply upon seeing the grizzly grating that had yielded to the victim’s weight, he had formed the opinion that it was a protective covering and was therefore not in compliance with section 2.6 of the Regulations. Counsel for the appellant argued that, contrary to his initial assertion that he was assisted by the expert dispatched to the premises on December 1, 2011 before forming his opinion about the grizzly, the HSO’s directions had in effect been decided upon and submitted to the appellant upon his arrival at the site on December 1, before the expert was even able to visit the scene of the accident.

[23]             The witness Stephen Djerbi noted that the appellant operates grain and alumina elevators at the Trois-Rivières Port. ETR’s operating licence is for transfer elevators, the main function of which is to allow transshipment from lakers, rail cars or trucks to ocean-going freighters. Grain is shipped from western Canada by lakers, then stored and made available for export via ocean-going freighters. Besides its two annexes for these purposes, ETR also manages Alcoa facilities that supply the Deschambault aluminum smelter and part of the Alcan smelter in Shawinigan.

[24]             At the time of the accident, the appellant’s personnel consisted of nine executives and 28 unionized employees. With the help of photographs of the silo floors, the witness explained that the upper portion of the silos is completely closed by a concrete floor with two or three openings, which are kept closed and secured by metal covers. These covers are opened on two occasions: during loading or unloading operations, when the opening is entirely covered by the chute and occasionally outside normal operations during maintenance work.

[25]             The witness confirmed that the victim, Mr. Michaud, was employed by M.I. Maintenance, a business specializing in industrial maintenance. In fact, an excerpt from the company’s website shows that it provides its specialized services to other businesses, including Alcoa, Cascades and Five Roses Flour.

[26]             Addressing the accident more specifically, Mr. Djerbi testified that, on November 28, the day before the accident, at about 2:30 p.m., he met with Wallace Gauthier, a supervisor with M.I. Maintenance, to notify him that, the next day, November 29, ETR intended to clean three silos which had to be emptied on November 28. According to the witness, he instructed Mr. Gauthier to meet with occupational health and safety director François Gosselin on the morning of November 29 to confirm and obtain the confined-space work permits and the silo access keys. It is important to mention here that Mr. Gauthier was on ETR’s premises at the time of the accident. The witness Djerbi was also on ETR’s premises at the time of the accident, having arrived earlier than usual to check whether the silos were empty so that the scheduled cleaning could take place. The accident occurred at about 7:45 a.m. when ETR’s employees were arriving to commence regular operations at 8:00 a.m. Mr. Djerbi said that, in 30 years of service, he had never seen such an accident involving the openings of silos closed by covers.

[27]             The second witness, François Gosselin, in his capacity as environment and occupational health and safety director, testified about ETR’s occupational health and safety policies and procedures, the Règles et Instructions (“Rules and Instructions”), which apply to ETR’s employees and to employees of subcontractors who are called upon to carry out duties on the appellant’s premises. His testimony specifically addressed the procedure for obtaining the mandatory permit before entering a confined work space and performing hot work. In particular, he emphasized section 20 of the Rules and Instructions, [translation] “20. TRAPDOOR AND GATE – SILO, HOPPER, TANK”, which stipulates: [translation] “It is prohibited to open a trap on a tank, hopper, silo or to leave it open, except to perform work on it or under certain exceptional circumstances. In such a case, safety barricades and tape must be placed near the opening.”

[28]             According to Mr. Gosselin, 271 spaces at ETR can be considered confined. Of these, 153 are silos, all of which are personalized, meaning that each confined space, including Silo 326, where the accident occurred, requires a specific personalized permit. Everyone who is to enter confined spaces, including the supervisor, must sign the permit and perform all the prerequisite checks and measures listed on it before starting the work; such measures include a full lockout of the grain feeding system, the use of lighting approved for explosive environments, and the establishment of a safety perimeter around the opening.

[29]             Thus, the witness declared that the full set of Rules and Instructions is sent to all employees, and to subcontractors, through the person or persons who do the supervision and must distribute them to all their employees. The procedure must be repeated each time it is necessary to enter a confined space. According to the witness, the subcontractor M.I. Maintenance is a well-established business that has delivered health and safety training to its own employees. In this regard, the witness tendered documents and forms pertaining to health and safety meetings held with M.I. Maintenance. These meetings were attended by the victim Mr. Michaud and by foreperson Wallace Gauthier.

[30]             The witness confirmed that, on November 29, 2011, the employees and forepersons of M.I. Maintenance arrived prior to ETR’s regular hours of operations (he personally tends to arrive at work at 8:00 a.m.) and, in a situation that had never before occurred, no one came to get the confined-space work permit for Silo 326 as required by ETR’s Rules and Instructions [translation] (17. It is expressly prohibited to enter a tank, hopper, silo or confined space without written authorization from the supervisor or management . . .). Under cross-examination, Mr. Gosselin acknowledged that the procedure for entering confined spaces does not require any verification of trapdoors and grates, and that no such verification is necessary because there are covers over the trapdoors and grates in question.

[31]             As director of engineering, Rémy Lévesque supervises personnel associated with infrastructure projects, maintenance, and supply. He says that ETR retains the services of more than a dozen subcontractor businesses, including M.I. Maintenance, and that there is no legal relationship with that company, other than a non-exclusive subcontracting relationship for the delivery of specialized industrial maintenance services such as pumping, vacuum trucks, platforms for elevated work, and general cleaning services, all of which the business offers regularly to ETR. When delivering these services, M.I. Maintenance is responsible for supervising the work done by its employees.

[32]             Concerning the site of the accident, the witness explained that all silos are closed off by a concrete floor. That said, Mr. Lévesque’s testimony dealt largely with ETR’s operating procedure and specifically, with the help of a diagram, the system of circuits and grizzlies involved in several stages of the procedure.

[33]             He stated that the grizzly placed under the cover of the entry of Silo 326, the very one that yielded under Mr. Michaud’s weight, is one of the grizzlies whose function is limited to sorting the matter poured into the silo, thereby preventing the entry of equipment parts or other outside materials that could cause an explosion due to the inflammable nature of grain stored in silos. According to the witness, such a grizzly has no protective function, and it is clear from simply looking at the photograph of a grizzly, tendered in evidence as part of Exhibit E-1, that it is in no way designed to be walked on, and that there is no objective reason or reasonable motive for a person to walk on it. In addition, ETR has some grizzlies of this kind that are installed vertically as shown by the photos tendered as part of Exhibit E-1, and those grates have the same functions as the horizontal grizzlies. Those grates can in no way be regarded as guards, contrary to what the HSO asserts in relation to the ones that are installed on a horizontal plane.

[34]             The witness bases his assertions on a set of National Fire Protection Association (NFPA) standards which in fact provide for the use of such grates as devices for protection against fires and explosions, specifically in the case of grain elevators. He begins by noting that National Research Council’s National Farm Building Code of Canada, 1995 edition, which applies to industrial construction, makes no mention of protective grating. However, the standards that contemplate the installation of grizzlies for the purposes noted further above are, essentially, standards NFPA 61 (Standard for the Prevention of Fires and Dust Explosions in Agricultural and food Processing Facilities, 2008 edition) and NFPA 654 (Standard for the Prevention of Fires and Dust Explosions from the Manufacturing, Processing and Handling of Combustible Particulate Solids, 2006 edition). The witness notes that sections 7.5.1.1 and A.1.1.1 of NFPA 61 specify as follows:

7.5.1.1. Receiving systems prior to the legs shall be equipped with one or more devices such as grating, wire mesh screens, permanent magnets, listed electromagnets, pneumatic separators, or specific gravity separators, to minimize or eliminate tramp material from the product stream.

A.1.1.1. Examples of facilities covered by this standard include, but are not limited to, bakeries, grain elevators, feed mills, flour mills, milling

. . .

[Emphasis added]

In addition, NFPA 654 specifies:

9.1.1.1. Means shall be provided to prevent foreign material from entering the system when such foreign material presents an ignition hazard.

. . .

9.1.1.3. Foreign materials, such as tramp metal, that are capable of igniting combustible material being processed shall be removed from the process stream by one of the following methods:

(1) . . .

(2) . . .

(3) Grates or other separation devices.

[35]             Based on the foregoing, the witness Mr. Lévesque explains that a grizzly is a grate large enough to let the product pass through while keeping out objects that could get into the system and damage the equipment downstream or cause explosions. Because the major hazard in a grain elevator is the possibility of an explosion, the grizzly is part of a comprehensive system designed to prevent sparks. The witness used photographs (Exhibit E-1) to show the difference between grizzlies (various types, horizontal, vertical) and the walkway gratings used in the rail car unloading area. Walkway gratings are a much larger (surfaces of 25 feet) kind of grating with a much finer mesh (1 inch); they are always open, i.e. not covered, and are designed to be walked on. By comparison, the opening in the upper silo floor in which a horizontal grizzly is installed is usually a rectangular 35" by 29", and the grizzly bars are, according to the photo adduced as part of Exhibit E-1, close to 10" or even 12" apart, hence the claim that they cannot be walked upon without risk. Lastly, the witness based his testimony on the Queen’s University’s definition of the term “grizzly”, which reads:

A grizzly is a gravity assisted elementary sizing device used to ensure a maximum passing size of material. A grizzly is typically a steel mesh or grid that only allows smaller material to pass through where larger material is retained on the grizzly surface. Grizzlies in mines come in various sizes, shapes and abilities. Grizzlies can be flat mounted or mounted on up to a 45 degree angle over a chute. The passing material proceeds down the chute while the oversize is retained for further processing. Square mesh grizzlies are used to get a more accurate maximum size of material and can be prone to plugging. Rectangular and non-gridded grizzlies are less prone to plugging but can allow material of larger size to pass. Grizzlies can be used to retain material as large as 1m or less than 10 cm. Many grizzlies are rigid mounted so that material must flow through them or be pushed with equipment. Some grizzlies vibrate to encourage material on the grid to reorient and pass through. The grizzly can be used to protect crushers or loading pockets and even ensure milling requirements are met. A grizzly can be fed via LHD, truck, conveyor or even slusher through a chute.

[36]             Mr. Lévesque concluded his testimony by specifying that the silo covers could bear a load of six kilopascals (6 kPa), that is to say, roughly 800 pounds, as shown by the test photos produced in Exhibit E-1, and thus, it could bear the load prescribed by the Regulations. Mr. Lévesque, who has been working for ETR since 1992, declared that just like the witness Djerbi, he has never seen an incident related to the openings of the grain silos, which are closed by covers that are completely safe.

[37]             In his written submissions, counsel for the appellant answers two questions that I asked at the end of the hearing. Firstly, he confirms that the CSST never investigated the accident of November 29, 2011. In addition, with respect to the pressure exerted by the grain on a grizzly during loading operations, it appears, based on the study done by engineer Rémy Lévesque (who works for the appellant) and apparently confirmed by consulting engineer Michel D. Rousseau of SNC-Lavalin, that the vertical load is 0.33kPa, the horizontal force is 0.11kN (kilonewtons) and the horizontal force on each of the grizzly’s bars is 6 lbf (pound-force).

[38]             As far as the relevant statutory and regulatory provisions are concerned, counsel for the appellant notes that the directions issued by HSO Renaud pursuant to sections 145(1) and 145(2) of the Code come under section 125 and section 125(1)(r) of the Code. With respect to section 125(1)(r), he states that the specific obligation is to maintain, in accordance with the regulations, all guards, guard-rails, barricades and fences installed in the work place under the full authority of the appellant/employer, and that this specific obligation is also part of every employer’s general obligation under section 124 of the Code to “ensure that the health and safety at work of every person employed by the employer is protected.”

[39]             As for the regulatory provision concerned by the direction under section 145(1), namely section 2.6(2)(a), which pertains to the maximum load that can be brought to bear, it states that the “grating, screen, covering or walkway” must be designed, constructed and maintained to ensure the safety of an employee who has access, under section 2.6(1) of the same Regulations, to an “open-top bin, hopper, vat, pit or other open-top enclosure from a point directly above the enclosure.” With regard to the “danger” direction issued pursuant to section 145(2) of the Code, the provision refers to a “. . . use or operation of a machine or thing, a condition in a place or the performance of an activity” that constitutes a danger, within the meaning of the Code, to an employee while at work.

[40]             Apart from the reference to the statutory provisions, the appellant’s argument begins by noting the incorrect logic of HSO Renaud, which holds that if there was an accident, there was, automatically, wrongdoing that must be sanctioned. In the submission of counsel for the appellant, one must go beyond the letter of the law and focus on its spirit. From this perspective, the appellant not only notes that the file is incomplete because the HSO chose to select certain evidence for an upcoming proceeding, he also notes that the HSO’s investigation was incomplete because he did not see fit to speak with the people who were on site at the time of the accident and could therefore have direct knowledge of the circumstances surrounding the accident.

[41]             Thus, the evidence is that, at the time the accident occurred, a time which preceded the commencement of the appellant’s operations, no confined-space work permit had been issued, so the work to be done on the silos had not yet been specified, and the silo on which the work was to be done had not yet been specified. All the silos are covered by a concrete floor, and the openings are closed by a cover that meets the prescribed standards for load bearing, which means that prima facie, there is no safety problem. If an opening is to be made by lifting off or pushing the cover, the appellant has a procedure in place that would have prevented the accident if it had been followed. The appellant, who had no employees on the premises, argues that the primary responsibility rests with the victim’s employer, because none of the rules in place were complied with. In this regard, the appellant notes that the Code, like the provincial legislation applicable in this case, contains corollary obligations for the employees, who must not act in such a way as to put their safety at risk.

[42]             With respect to the grizzlies, the appellant is of the view that there is no basis for HSO Renaud’s finding that they are guards. Their primary function according to the National Building Code is not to protect persons, and thus, as the photo constituting Exhibit E-1 shows, they are not designed to be walked on, but rather to protect loading operations. It is worth noting that the Code is silent on the subject of grizzlies, but refers to coverings and closed silos. The appellant acknowledges that although no provision is made for this, grizzlies could be considered to have a secondary, safety-related function, something that I raised at the hearing. And in this regard, following the accident, even though the appellant does not believe it is required to do so under the terms of the various statutory provisions, it decided to confer on these devices an additional safety role by adding supports that now enable them to bear weights based on the resistance tests performed. According to the appellant, this voluntary decision to go above and beyond a standard should not be regarded as proof of prior liability or fault.

[43]             The appellant also submitted written arguments that intersect with the oral submissions made at the hearing. As its central point, the appellant argues that the “contravention” direction issued under section 145(1) is unfounded, because section 2.6 of the Regulations does not apply to this case. The appellant argues that section 125(1)(r) refers to the obligation to maintain guards, guard-rails, barricades and fences in accordance with prescribed standards. And according to the HSO, those standards are found in section 2.6(2) of the Regulations, which is to be understood by reference to section 2.6(1), which speaks of an open-top bin, hopper, vat, pit or other open-top enclosure (the French version refers to “compartiment, trémie, cuve, fosse ou tout autre espace entouré dont la partie supérieure est ouverte.”) In light of this, the appellant argues that, according to the uncontested evidence in this case, the silos are closed by a concrete floor, with the result that the situation in this case does not come within section 2.6 of the Regulations.

[44]             As far as the grizzlies are concerned, the appellant argues that the evidence has shown that they are not designed to be walked on, or even for safety purposes. In its submission, it must be understood that a silo is closed and that the only way to enter and pour grain therein is through the opening of a “small” trapdoor. And the grating to which section 2.6(1)(a) of the Regulations applies, and which guarantees safe walking, is actually more like a walkway grating. Photographs of such a grating were tendered as part of Exhibit E‑1. Because of its fine mesh, such a grating would prevent the silo from performing its primary functions, namely, receiving and storing grain. The photograph of the grizzly tendered in evidence shows that a person cannot walk on it without incurring a risk of injury, given the minimum size of the openings to enable grain to enter. In fact, the evidence has shown that the maximum load that can be brought to bear on it is 0.33 kPa. The appellant therefore concludes that the silos are closed at the top and that the grizzly is not a protective measure contemplated by section 2.6(1) of the Regulations and section 125(1)(r) of the Code.

[45]             In the alternative, the appellant submits that if I find that the silos’ tops are open within the meaning of the aforementioned statutory and regulatory provisions, ETR was in compliance with section 2.6(2) of the Regulations at all relevant times because the covers could bear the maximum load that could be brought to bear on them, or a moving load of 6 kPa, since the evidence has shown that the covers protecting the silo openings could support a moving load of 6 kPa or 800 pounds. The appellant also points out that, during the hearing, I raised the issue of a secondary safety function, which seeks to prevent an accident similar to the one that occurred on November 29, 2011. According to the appellant, this questioning can be connected to ETR’s administrative decision to give its grizzlies such a secondary function. However, the appellant argues that it would run counter to the objectives of the Act and Regulations, i.e. the continuous improvement of workplace health and safety measures, to conclude that any progress must be based on a conviction or notice of contravention of existing standards, as this would produce effects contrary to those which the law seeks to achieve.

[46]             At the close of its written submissions, the appellant turns to the very quality of the investigation carried out by HSO Renaud. According to the appellant’s counsel, this was an incomplete investigation in which the individuals primarily concerned with the accident, namely the employer M.I. Maintenance and its forepersons and employees, were never questioned by the federal or provincial authorities. In the appellant’s submission, it is difficult to understand why neither the foreperson of M.I. Maintenance at the time of the accident, nor any representative of the employer involved in the accident, was questioned. Indeed, the appellant finds HSO Renaud’s argument about the jurisdiction of the actors who were present difficult to understand, given that this was, in essence, a work accident that took place within the legal framework of provincial CSST jurisdiction, even though it took place on the premises of a business under federal jurisdiction whose employees are subject to the Code. Apart from all the questions that remained unanswered as a result, both with respect to the reasons for the hasty commencement of the work without complying with ETR’s requirements and directives, and with respect to the failure to comply with section 20 of ETR’s Rules and Instructions when Silo 326’s trapdoor was opened, the appellant questions why the HSO deprived himself of direct knowledge of the essential elements of the accident, limiting himself instead to casting the blame on ETR in connection with specialized equipment which he was discovering for the first time and the functioning of which was unfamiliar to him.

[47]             The appellant clearly wonders why it can be blamed given the circumstances as a whole, apart from the fact that such an accident is unusual in nature and therefore did not cause the appellant to presume a potential secondary function for the grizzly. In the appellant’s submission, ETR took all necessary measures, throughout the relevant period, to ensure that it strictly complied with the occupational health and safety legislation and regulations applicable to the business. At the same time, given the complete lack of evidence in this regard, the appellant contests the assertion that it did not conduct itself as an ordinarily prudent and diligent business would. Consequently, the appellant is of the view that the two directions issued to it should be rescinded, or at the very least, [translation] “such part thereof as asserts that ETA did not comply with its statutory and regulatory obligations, or that it caused or tolerated a dangerous situation.”

For the Respondent

[48]             The respondent made no oral submissions during the hearing, and chose not to submit any written argumentation in response to the appellant’s.

Analysis

[49]             In reality, the appellant’s position that the directions it was issued are without basis rests on just one central argument: Since the provision of the Regulations that was allegedly contravened does not apply to this case because the silo is not an open-top enclosure, and since the grizzly grating which the HSO considered a guard is not a guard, the appellant is not required to meet the load-bearing requirement set out in the said Regulations. It follows that the true guard on the said silo openings is the steel cover or plate covering the grate, which does provide the load-bearing capacity prescribed by the Regulations.

[50]             As for the “danger” direction under section 145(2) of the Code, once again, since the real protection system is the cover, which can resist the prescribed loads; since the grizzlies or gratings are clearly not designed to be walked on, and the openings in the upper floors of the silos are always closed, except during grain loading operations (when they are covered by the chute) or during the performance of specific tasks; and since the appellant’s directives and instructions provide for protective measures when they are open, it is submitted that this direction is without basis.

[51]             Although paragraph 125(1)(r) of the Code refers to “. . . guards, guard-rails, barricades and fences”, it is really subsection 2.6(1) of the Regulations that provides the details of the purportedly contravened obligation. Section 2.6(2) states that a “grating, screen, covering or walkway” must be designed, constructed and maintained to support certain loads. However, it is section 2.6(1), mentioned above, that specifies the conditions in which section 2.6(2) applies, that is to say, the places or situations where such guards are required.

[52]             Specifically, section 2.6(1) begins by stating that the employee must have access from a point directly above the enclosure. I interpret this to mean access that is intended. Secondly, access must be to an open-top bin, hopper, vat, pit or other open-top enclosure. It is worth noting that the heading of the provision makes no reference to enclosures. It refers only to open-top bins, hoppers, vats and pits. Moreover, there is no mention of silos in the regulatory provision or in section 125(1)(r) of the Code. Thirdly, the equipment or part above the opening must be placed there for protective purposes, as specified by the wording of section 2.6(1)(a), which states that the opening must be covered with a “gratoring, screen or other covering . . .” or “couvert d’une grille, d’un écran ou de toute autre pièce de protection . . . ” in French.

[53]             In the instant case, the appellant submits that the grizzly has no protective function, and that the covering (“pièce de protection”) is the cover over the grizzly installed on the opening, because the trapdoor is only opened sporadically to install the chute (which completely covers it during loading operations) or for maintenance work.

[54]             Thus, the initial question is whether a silo is a bin, hopper, vat, pit or other open-top enclosure. Neither the Code nor the Regulations define these terms, so one must resort to the ordinary meaning of the words. It is important to mention that although the Canada Grain Act defines the term “silo”, its definition is not helpful for the purposes of this case, because it defines the word in terms of geographical location for the purposes of applying and understanding the declaration that such facilities are for the general advantage of Canada, not in terms of the design, construction, operation or use of a silo. Thus, once again, as required by section 12 of the Interpretation Act, the words should be given the broad and liberal meaning needed to give effect to the law’s spirit and purpose.

[55]             In the absence of statutory definitions, I have relied on definitions from the Nouveau Petit Robert, an alphabetical and analogical dictionary of the French language, which defines the words “compartiment”, “trémie”, “cuve”, “fosse” and “silo” as follows:

Compartiment: Division pratiquée dans un espace pour loger des personnes ou des choses en les séparant.

[translation] Bin: A division made in a space in order to accommodate persons or objects by separating them.

Trémie: Sorte de grand entonnoir en forme de pyramide renversée où l’on déverse des substances qui doivent subir un traitement (broyage, concassage, tamisage).

[translation] Hopper: A large funnel in the shape of an inverted pyramid, into which materials can be poured for processing (grinding, crushing, screening).

Cuve: Grand récipient de bois ou de maçonnerie utilisé pour la fermentation du raisin. Récipient de forme analogue, servant à divers usages industriels.

[translation] Vat: A large wooden or earthenware container used to ferment grapes. Any similar-shaped container used for various industrial purposes.

Fosse: Cavité assez large et profonde. Cavité creusée par l’homme pour servir de réceptacle.

[translation] Pit: A large, deep hole. A man-made hole used as a container.

Silo: Excavation souterraine, réservoir (au-dessus ou au-dessous du sol) où l’on entrepose les produits agricoles pour les conserver.

[translation] Silo: An excavation or a tank (in-ground or above-ground) in which agricultural products are stored.

[56]             A liberal interpretation of the above definitions reveals a commonality: each thing is a receptacle or tank for specific purposes. However, section 2.6(1) has additional words which alter the scope somewhat: the compartment, hopper, vat or pit, that is to say, the specific terms used in the provision, must be an “enclosure” (“other open-top enclosure.”) This raises the question of whether a silo is an open-top enclosure.

[57]             The uncontested evidence in this regard is that a silo is a confined space, which is why there are special rules governing entry to perform duties therein. It is also uncontested that a silo at the appellant’s premises, regarded as a single tank without internal division (the elevators consist of multiple silos) can have one to four openings for the purposes of fulfilling its primary storage function. However, the uncontested evidence also shows that, apart from this storage function and certain specific maintenance-related functions, these openings remain closed. Indeed, a definition from the Internet helps to better understand how a “silo” relates to the words “open-top enclosure”:

[translation]

A silo or tank is a tank for storage of bulk products used in various industries or in agriculture. It is distinguished from a hopper by the fact that it is hermetically closed.

[58]             The evidence shows that all the silos have a concrete floor on top and that the trapdoors must remain covered. It is true that the trapdoors may be opened to the upper level in order to meet the needs of a silo’s function, but in my opinion this does not make it an open-top enclosure within the meaning of the Regulations. In light of the foregoing, it is my opinion that a silo, being a closed tank or storage space, cannot be regarded as an open-top bin, hopper, vat, pit or other open-top enclosure.

[59]             As mentioned earlier, apart from what has been said in relation to my finding that a silo is not an open-top enclosure, section 2.6(1) of the Regulations speaks of the employee having access to the protected space from a point directly above. I have specified that this access, in my opinion, must be intended access, that is to say, access that is part of the duties one must perform. The evidence before me is that the silo trapdoors are only opened to allow grain to be poured through them, either as part of an operation in which the chute completely covers the opening, or as part of maintenance work.

[60]             Leaving aside the facts surrounding the accident, in light of the evidence concerning the function of a grizzly and especially concerning its construction, which in my opinion shows quite well that its function and construction are not consistent with equipment designed to bear the weight of a person walking thereon, and even less with a person attempting, as the victim did, to open the trapdoor by standing or setting a foot on the grizzly and kicking the cover, or by leaning heavily on the grizzly in order to push the cover, no evidence was submitted to me, or can be gleaned from HSO Renaud’s report, about any access having to be obtained from a point directly above the opening.

[61]             According to the evidence, the victim was trying to show a co-worker how to light the silo cleaning work done by other workers—a task in which a light was to be lowered—and there is no further detail on the subject. The appellant’s Rules and Instructions, tendered as part of Exhibit E-1 under the title “Silo, Hopper and Tank Trapdoor and Sluice”, a title which, like the wording of the rules, draws a distinction between a hopper and a silo, states that one must not [translation] “open a tank, hopper or silo or leave it open, except to perform work on it or under certain exceptional circumstances.”

[62]             If I applied section 2.6(1)(a) of the Regulations to a silo as an open-top enclosure, it would require the opening to be covered with a grating, screen or other protective covering that will prevent the employee from falling in. But the evidence, supported by the photos forming part of Exhibit E-1, is that the entire top of a silo is closed by a concrete floor which has several small trapdoors covered by metal plates that can support a moving load of 6kPa or a maximum load. The appellant argues that these plates are the protective covering contemplated by the Regulations in relation to the sporadic openings of the said trap doors.

[63]             The appellant acknowledges and explains that the grizzlies under the metal plates do not have this protective function, that they are clearly not designed to be walked on—in fact, the appellant has some that are installed vertically—and that, in order to allow the grain to flow into the silo while screening out foreign objects, one cannot use grating with a mesh small enough to be walked on.

[64]             Finding that section 2.6 of the Regulations applied to this case, the HSO concluded that the grizzly had to be considered the protective covering required by the Regulations, without offering an explanation of how he came to this conclusion.

[65]             Having taken into account all the evidence, the vast majority of which is admittedly from the appellant, I have come to the conclusion that a silo must be considered a whole and is not an open-top space. Consequently, I accept the appellant’s position that I should not consider the grizzly grating a protective covering. I will however add that in view of the evidence submitted to me by the appellant, it is my opinion that this grating, called a grizzly, is not a mechanism the essential function of which is to protect against falls. It should in fact be specified that as far as these grizzlies are concerned, it has been shown that when it is necessary to enter a silo through a trapdoor at the top, hinges allow the grizzly to be lifted and opened outward, which confirms that grizzlies are not fixed and stationary, and reinforces the conclusion that they do not have a fall protection function, and are not designed to be stood or walked upon. Thus, my conclusion is that section 2.6 of the Regulations, and in particular section 2.6(2) on which the direction is based, does not apply to this case.

[66]             The HSO’s second direction states that there is a situation that poses a danger to an employee while at work. The direction describes that situation as:

[translation]

The fact that a person can walk near a pit with a drop of 110 feet, the opening of which is covered by a support unable to withstand all loads, constitutes a mortal danger in the event of a fall. On November 29, 2011, an employee fell into Silo 326 and an opening covered by a grate did not protect him at that time.

[Emphasis added]

[67]             However, despite my finding that the grizzly grating is not protective covering and is therefore not, to use HSO Renaud’s term, a “support” covering the opening for protective purposes, it is undeniable that a fatal fall occurred, and that a “danger” direction concluded that the danger pertained to an employee while at work, even though the employee who was the victim of the accident was not an employee of the appellant, or even one to whom the Code applies, and thus, the situation that involved him, and resulted in the direction, was not one involving such an employee. It is quite clear that the reference to the accident is essentially a point of reference, or, if you will, an example of what can happen. However, this should not mean that our consideration of the circumstances should be limited to the event viewed in isolation. Rather, in fact especially, it must help us understand more generally what could constitute a dangerous situation.

[68]             And to determine whether the direction is founded, apart from the factual evidence brought before me, we need to clarify certain elements related to the law that applies to the employer involved in this case. Section 122.1 of the Code specifies that the Code, and thus, the protective measures set out therein and the regulations prescribed under its authority, pertains to employment to which its provisions apply. And the uncontested evidence is that the victim of the accident constituting the reference situation that resulted in HSO Renaud’s issuance of a direction under section 145(2) of the Code did not hold employment to which the provisions of the Code applies.

[69]             Moreover, the wording of section 145(2) of the Code explicitly specifies that such a “danger” direction must be issued if the investigating officer finds 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.” Here again, the words used result in a limitation, in that the danger, if any, can only apply to an employee of an employer under federal jurisdiction. This raises the question of whether the conditions associated with the opening of a trapdoor constitute a danger for the persons to whom the protective provisions of the Code apply, i.e. the employees of a federal employer.

[70]             With regard to this point, I would note that the direction refers to the movement of a “person”, which is, in itself, an inappropriate term because the Code, apart from rare exceptions, and section 145(2) in particular, are about dangers to an employee while at work, not dangers to a person in general. However, to the extent that this decision pertains to the “danger” direction, I find that it is appropriate to consider HSO Renaud’s use of the term “person” as a description of the action of an individual who is walking, and to associate this with the term “employee”, albeit in a broader sense.

[71]             But the direction associates the danger with the situation of a person who walks near an unprotected opening, without further detail or explanation. Given the words used by the Code in section 145(2), I find that it is appropriate to give these words a broad meaning, specifically, walking by an employee as part of his or her work.

[72]             To determine whether there is a danger that warrants the issuance of a direction under section 145(2), we must apply the concept of “danger” defined in the Code to the factual circumstances characterizing the condition or event which resulted in the direction’s issuance. And since this determination can only affect employees of the federal employer, the evidence should be considered for the purpose of examining whether the appellant’s employees, the only ones to whom the Code, and thus, the direction, can apply, are in a situation like the one described by the health and safety officer, having regard to my earlier finding that a silo is not an open-top enclosure and is therefore not a pit, and, secondarily, that the grizzly covering the opening when it is open does not constitute a protective device. The said traps are however occasionally opened as part of operations specific to a silo.

[73]             The evidence available to me has clear shortcomings, which have already been explained and need not be revisited. The trapdoors in the concrete floor covering the silos are sporadically opened for specific purposes. One of those purposes is to fill the silos through a chute that completely covers the opening and thus, precisely because the opening is covered, there is no need to comment on this situation in the case before us. What is more, no evidence has been submitted as to the manner in which this operation is carried out, or even as to who carries it out, though I believe it warranted to think that the appellant’s employees do so. Other than the filling of silos and the checking of grain levels in silos, it appears that the trapdoors are open for maintenance, including confined-space cleaning and/or sweeping operations.

[74]             The evidence in this regard is that this work has, for several years, been entrusted to M.I. Maintenance, an outside business which is under provincial jurisdiction and is responsible for managing and supervising those of its employees who work on the appellant’s premises. The accident and death of November 29, 2011, which occurred as part of such a confined-space maintenance operation, only involved the provincial employer and its employees, including the victim. No evidence was submitted with regard to the presence and/or participation of the appellant’s employees in such an operation, or about any role that they might have played or usually play, except for the submission to be made in advance when a confined-space work permit must be obtained.

[75]             Although this has only a limited impact on my finding below, the uncontested evidence is that, contrary to what had been planned with the foreperson from M.I. Maintenance the day before, the subcontractor did not obtain such a confined-space work permit, which would have made it possible to specify the silo on which the work was to be done, and thus, the trap that was to be uncovered. In regard to the foregoing, it should be pointed out that the evidence is that the victim was trying to open a blue cover, which, like the other covers of that colour, are either not used, or infrequently used.

[76]             However, the evidence is clear that the events arose outside the appellant’s normal operating hours, and it appears that none of its employees were on the premises, other than Mr. Djerbi, the director of operations, which suggests the employees of M.I. Maintenance might not have been authorized to be on the appellant’s premises at that time, though the lengthy association between M.I. Maintenance and the appellant could lead one to conclude that, over time, certain practices or habits developed. In any event, this element reinforces the conclusion that no employee of the appellant was present and that the subcontractor, through its employees, did not comply with the appellant’s safety procedures and directives. And my finding as to whether there is or was a danger to ETR’s employees must be based on a situation in which the said procedures and directives were being complied with.

[77]             The evidence does indeed establish that the appellant adopted certain occupational safety procedures and directives, including ones pertaining to movement near silo trapdoors and inside silos. A first series of procedures and directives under the heading [translation] “Confined-space entry procedure” is about the need to obtain a confined-space work permit each time. This requires confirmation that a long list of measures and verifications applicable to equipment, risk assessment, air quality, regulatory lighting, supply lockout and adequate use of equipment protecting against falls have been carried out or complied with in advance.

[78]             Directly addressing the circumstances of this case, the permit specifically provides that one must [translation] “ensure that a safety perimeter has been established around the opening.” In addition, section 17 of the appellant’s Rules and Instructions stipulate, among other things, that it is formally prohibited to enter a tank, hopper, silo or confined space without written authorization from the supervisors or management or without another person supervising. Directly in line with the issue in this case, and to the same effect as the confined-space work permit requirements, section 20 of the Rules and Instructions states:

[translation]

It is prohibited to open a trap on a tank, hopper, silo or to leave it open, except to perform work on it or under certain exceptional circumstances. In such a case, safety barricades and tape must be placed near the opening.

[Emphasis added]

Lastly, section 12 of the Rules and Instructions, which also relates to the requirements specified in the mandatory confined-space work permit, states that where work must be done in an enclosed space, and thus, a silo:

[translation]

A full security harness must be worn and the worker must be appropriately anchored to an attachment point where there is a danger of a fall exceeding 2.4 metres (8 feet) . . . or during work in a confined space access to which is difficult. The body harness (never the belt) is mandatory. The safety harness, ropes or cables must all be CSA approved. Safety belts are prohibited at all times.

With regard to its safety directives and rules, no evidence has been submitted that might establish that the appellant does not ensure they are complied with, or that its employees do not comply with them. In my opinion, compliance with the employer’s Rules and Instructions protects against a potential danger associated with presence and movement near an open trapdoor.

[79]             The “danger” direction was issued by the HSO following and in the context of his investigation into the fatal fall of an employee who came under provincial jurisdiction because he worked for the appellant’s subcontractor, a business under provincial jurisdiction. The HSO concluded that there was a danger to an employee while at work, and my reasoning must be based on the employee being under federal jurisdiction, having regard to the accident which involved a worker under provincial jurisdiction. The fact is that I have obtained no direct evidence, that is to say, no evidence that could have been obtained from the only witness of the accident or his foreperson, that could explain why the victim acted as he did in order to attempt to open the trapdoor to Silo 326, or even whether this was common, known, tolerated and/or approved practice in the appellant’s work place. I have information about how the victim tried to open the cover of the Silo 326 trapdoor, and the appellant provided photographic evidence which, in my view, confirms that the grizzly grating is not designed for a person to be or walk on it. On this basis, and in the absence of any other evidence, I strongly doubt that this approach could be considered safe, or in compliance with the obligations of an employee or worker to ensure his own safety, or that it is approved by the employer. I therefore have no choice but to accept the appellant’s position that the occurrence of the accident does not mean there was any fault, and that the appellant’s conclusion that the victim did not act prudently and was thus, in a sense, the author of his misfortune, is a correct one.

[80]             Based on the above, having found that the employer’s Rules and Instructions concerning presence and movement near open silo trapdoors are sufficient, having made my finding concerning the grizzlies, and having no evidence that the appellant does not enforce its rules and instructions or that its employees do not comply with them, I find that the evidence before me is not sufficient to warrant a determination that an employee of the employer ETR would be in danger by virtue of being present or moving near an open silo trapdoor.

Decision

[33] [sic] For the reasons given above, the two remaning directions under appeal, issued on December 1, 2011, are rescinded.

Jean-Pierre Aubre
Appeals Officer