2014 OHSTC 18

Date: 2014-09-18
Case No.: 2014-31

Between:

Public Works and Government Services Canada, Applicant

and

Public Service Alliance of Canada, Respondent

 

Indexed as: Public Works and Government Services Canada v. Public Service Alliance of Canada

 

Matter: Application for a partial stay of a direction issued by a health and safety officer

Decision: The application is granted and a partial stay of the direction is granted

Decision rendered by: Mr. Jean-Pierre Aubre, Appeals Officer

Language of decision: English

For the Applicant: Mr. Martin Desmeules, Counsel, Treasury Board Secretariat Legal Services

For the Respondent: Mr. Jean-Rodrigue Yoboua, Representation Officer, Legal Services, Public Service Alliance of Canada

Citation: 2014 OHSTC 18

REASONS

[1] These reasons concern an application for a partial stay of a direction issued on June 19, 2014, by Ms. Michelle Sterling, Health and Safety Officer (HSO), that was filed by Public Works and Government Services Canada (PWGSC) on July 15, 2014. An appeal of the direction was filed on the same date and was accompanied by an application for a partial stay of the direction until final disposition of the appeal.

Background

[2] The applicant is the owner and custodian of the Crown-owned Paul Martin Sr. Building, recognized by the Federal Heritage Building Review Office, which is at the center of the present case. Located in Windsor, ON, it currently houses around 370 employees, approximately 285 of those employed by the Canada Revenue Agency (CRA) as the major tenant. The applicant has one employee on those premises.

[3] The main building (185 Ouellette Ave.) was built in 1932, has a stone façade, and is made up of six stories plus a basement. There is an entrance on Ouellette Avenue and an exit on Pitt Street. In 1959, an addition of a four story building attached to the original structure. This latest structure does not have a stone façade.

[4] On June 2, 2014, HSO Michelle Sterling conducted an investigation after a work refusal by a CRA employee. In general terms, the reason for the work refusal was the building’s state of disrepair, specifically the condition of the building envelope or façade.

[5] Since 2011, the Read Jones Christoffersen (RJC) firm of consultant engineers has, on a monthly basis, monitored the evolving state of disrepair of the main building’s façade. RJC inspection reports clearly state that there has been a deterioration of the stone façade since 1999, the building is in disrepair and that there is the possibility of stones and debris falling from the building even where “as-needed” repairs are completed based on the monthly inspections.

[6] The March 28, 2014, RJC report that was provided to HSO Sterling specified that if the building remained in its current state, “there are inherent risks associated with potential falling mortar stone pieces and stones,” that the “stone façade is in poor condition and should be rehabilitated immediately,” and that “the deterioration is accelerating, which will most likely lead to more frequent and more severe stone failures with an increasing risk of one or more large pieces of stone falling from the building down to street level.”

[7] Affected by this are the entrances to the older portion of the building located on Ouellette Avenue (entrance and exit) and Pitt Street (usable solely as emergency exit). Scaffolding has been placed around the building as a safety precaution to protect employees from the possibility of falling stone. The scaffolding has been in place for approximately four years. However, another report, this time from BSG Engineering limited (BSG) dated March 27, 2014, indicates that the scaffolding is in poor condition and in need of rehabilitation. The RJC inspection report of March 2014 indicated, among other things, that the building was in need of immediate repairs and that there was a 90-100% chance of an object 5kg or less falling from the building, a 10-40% chance that such occurrence would involve an object weighing 5-10 kg, a 0-10% chance of a falling object weighing 10-15kg and a 0-10% chance that such a falling object would weigh 15kg or more.

[8] At the conclusion of her investigation, HSO Sterling concluded that:

Based on the information contained in the RJC report it is clear that there is a hazard associated with stones falling from the older portion of the building down to the street level below. Although controls have been put in place (scaffolding), it is clear that this is not an effective risk mitigation control as the scaffolding itself is in disrepair and in need of immediate rehabilitation. Furthermore, the engineering report states that there is a potential of a stone weighing over 15kg falling from the building and the scaffolding would not effectively safeguard an employee from a stone over 5kg if it should fall.

[9] She therefore concluded that there existed in that work place a condition that constituted a danger to an employee while at work. That condition was described by the HSO in the ensuing direction to the applicant, issued on June 19, 2014, pursuant to paragraph 145(2)(a) of the Canada Labour Code (the Code):

IN THE MATTER OF THE CANADA LABOUR CODE

PART II – OCCUPATIONAL HEALTH AND SAFETY

 

DIRECTION TO THE EMPLOYER UNDER

PARAGRAPHS 145(2)(a) AND (b)

On June 2, 2014, the undersigned health and safety officer conducted an investigation in the work place operated by Public Works and Government Services Canada, being an employer subject to the Canada Labour Code, Part II, at the Paul Martin Sr. Building, 185 Ouellette Avenue, Windsor, Ontario, N9A 4H7, the said work place being sometimes known as PUBLIC WORKS CANADA – WINDSOR.

The said health and safety officer considers that a condition in the place constitutes a danger to an employee while at work:

The main entrance to the work place that is located on Ouellette Avenue and the northeast Pitt Street emergency exit do not allow employees safe entrance to and exit from the work place. The building façade is in disrepair and there is a hazard of stone falling to the sidewalk below which constitutes a danger to employees using either of those entrances/exits. As is noted in the engineer’s report dated March 28, 2014 the current scaffolding that is in place is insufficient for the purpose of protecting employees from the danger.

Therefore, you are HEREBY DIRECTED, pursuant to paragraph 145(2)(a) of the Canada Labour Code, Part II, to protect any person from the danger immediately.

You are HEREBY FURTHER DIRECTED, pursuant to paragraph 145(2)(b) of the Canada Labour Code, Part II, not to use the place, in respect of which the notices of danger numbers 4407 and 4463 have been affixed pursuant to subsection 145(3), until this direction has been complied with.

Issued at London, this 19th day of June, 2014.

[signed]

Michelle Sterling

Health and Safety Officer

[…]

To:          Public Works and Government Services Canada

Paul Martin Sr. Building

185 Ouellette Ave.

Windsor, Ontario

N9A 4H7

[10] On June 11, 2014, the HSO ordered that the Ouellette Avenue and Pitt Street entrances be closed, with notices of closure being posted stating as reason “danger of falling stone.” On June 19, 2014, HSO Sterling issued to the applicant the direction above to protect any person from the danger. On July 15, 2014, the applicant filed a notice of appeal of the June 19 direction with the registrar of the Occupational Health and Safety Tribunal Canada. At the same time, it sought a partial stay of the direction pending determination of the appeal, seeking that the use of these two exits be allowed for the limited purpose of emergency exit/evacuation. This would allow CRA, the applicant’s major tenant, to meet the requirements of the National Fire Code, failing which the CRA would need to relocate approximately 70 employees from the building in order to reduce the demand for exits in an emergency situation.

[11] It is worth noting here that, on July 24, 2014, during the teleconference hearing on this application in the presence of counsel for both parties, the undersigned learned that an identical direction had been issued to CRA relative to its employees by HSO Sterling on the same date. That direction described the danger in identical terminology. At the time of the hearing into the present application, no notice of appeal of that direction had been filed and no application for a stay of that direction had been made.

[12] The wording of subsection 146(2) of the Code is very clear. The mere filing of an appeal against a direction does not, in and of itself, operate to stay the application and execution of that direction and thus, the obligation to comply with said direction as formulated. That same provision however clearly specifies that an appeals officer has the authority to order a stay upon application by an employer, employee, or trade union. Consideration of a stay application is also conditional upon the employer, employee or trade union having standing to apply for such a stay by being one concerned by the direction. It can also be added that unless an appeal has been filed against a direction, no appeals officer may be seized of an application to stay a direction issued by a health and safety officer.

[13] An application for a stay is decided by an appeals officer upon consideration of a three part test or criteria inspired by the pronouncements of the Supreme Court of Canada in Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832, [1987] 1 S.C.R. 110, and adapted to the specificity of the Code’s field of jurisdiction. That three part test must be met in its entirety by the party making the application. It consists of the following:

1) The applicant must satisfy the appeals officer that there is a serious question to be tried as opposed to a frivolous or vexatious claim;

2)The applicant must demonstrate that he or she would suffer significant harm if the direction is not stayed by the appeals officer;

3)The applicant must demonstrate that should a stay be granted, measures will be put in place to protect the health and safety of employees or any person granted access to the work place.

I will add that the assessment as to whether the applicant has satisfied the test needs to take into account the circumstances of the case that prevailed at the time of the issuance of the direction by the HSO, the circumstances present at the time of the hearing for the application for a stay of the direction, as well as the nature and extent of the stay sought.

Is the question to be tried serious as opposed to frivolous or vexatious?

[14] The question before the appeals officer is whether a “danger” within the definition of the Code was present at the time of the HSO’s investigation and subsequent direction, and whether such a situation persists at the time of the appeal such that the appeals officer would be required to issue a specific order. Coupled with the wording of the direction, one can conclude that the appeals officer must hear and decide a serious issue.

[15] While the applicant’s written stay application is not as generally inclusive as what precedes, it essentially amounts to questioning the existence of danger. It claims that sufficient protective measures are already in place without, however, specifying whether said “sufficient” protective measures were in place at the time of the HSO’s investigation/inspection or have been put in place following HSO Sterling’s direction:

It is respectfully submitted that there is a serious issue to be tried. The effect of the Health and Safety Officer’s direction is to require the relocation of a substantial number of employees from the Paul Martin Building in Windsor. While PWGSC does not dispute that the building façade is in need of repair, it is adamant that the protective measures already put in place are sufficient to ensure the safety of employees.

[16] Counsel also appears to be linking the sufficiency of the protective measures to the limited extent of the stay being sought. At the teleconference hearing on the stay application, counsel for the applicant reiterated that by challenging the HSO’s direction, the appeal does raise the question of whether at the time of the direction existing conditions amounted to a “danger” as defined by the legislation. Counsel, however, also referred to the three engineer opinions obtained since then and also noted the improvements and repairs brought to the protective scaffolding, arguing that the applicant has gone above and beyond what was required to satisfy the HSO direction, and that consequently the danger that may have existed at the time of the direction would no longer be present. Furthermore, they may raise the question as to whether the matter is now moot.

[17] On the first part of the test, the respondent initially argued that no serious question had been raised, since the sole question concerned the merits of the case, something that needed to be determined at the appeal hearing. However, following some explanation as to the meaning to be put on the first part of the applicable test, Mr. Yoboua recognized that the appeal essentially constitutes a challenge to the finding of “danger” arrived at by the HSO, that such a question on the merits represents a serious question since what needs to be determined by the appeals officer is whether a “danger” existed at the time of the HSO investigation and direction, and possibly even at the time of the appeal hearing, given the potential for a claim of mootness alluded to by counsel for the applicant.

[18] Having regard to what precedes as well as the complete submissions of the parties, I conclude that the question to be tried is a serious one. Consequently, the applicant has satisfied the first part of the test.

Would the applicant suffer significant harm if the direction is not stayed?

[19] As stated above, my assessment as to whether the applicant satisfies the elements of the test needs to take into account the nature of the stay that is being sought, in this instance a partial stay concerning the emergency use of the Ouellette and Pitt exits for the purpose of evacuating the building. I also need to take into account the information provided by HSO Sterling at the stay hearing. She said that the applicant, as an employer under the Code, may already be in compliance with the direction since its sole employee usually posted at the Paul Martin Sr. Building may already have been displaced. While this needs to be taken into account, one cannot ignore that the applicant, as owner, custodian and landlord of the building, is responsible for the actual daily operation of the building and has health and safety obligations, vis-à-vis the tenant(s), employees/members of the federal public service employed there, as well as other persons such as members of the public who may be admitted to the building. Moreover, two directions have been issued to two distinct parties, one of whom is the applicant in this matter, relative to the situation at the Paul Martin Sr. Building. This being said, in its written submissions, the applicant has dealt with this part of the test on the basis that it would suffer “irreparable” harm and would incur prejudice should the stay not be granted. I have opted to address both elements below.

[20] It is the applicant’s submission on this point that what it is seeking is a very minor deviation from HSO Sterling’s direction, meaning that the applicant would still be required to observe the direction that the two exits be closed under normal operational circumstances. Restricting the use of the exits for evacuations only would entail a very low risk because for such risk to materialize, there would have to occur simultaneously an emergency requiring evacuation and the fall of an object or stone weighing more than 10 kg (the likelihood of an object weighing more than 10kg falling, according to engineers, ranging from 0-10%) near one of these exits. Such a combination of events is less likely to occur than the occurrence of each event on its own.

[21] In contrast, should the applicant fail to secure such a stay of the direction, it has indicated that the major tenant of the building, CRA, would no longer be able to satisfy fire safety requirements and that consequently it would have to relocate approximately 25% of its workforce in the building to another site. This would seriously affect the operation of the said building in addition to no doubt being highly disruptive of the operations of the tenant. The applicant also noted in this regard that there would be significant expenditures should there occur the need to relocate approximately 70 employees of the tenant, although it recognizes that cost alone is not typically a sufficient factor in and of itself.

[22] In short, the applicant puts forth that I need to balance the extent of disruption to operations with the very low likelihood of the hazard, and thus harm to persons, occurring where the applicant has taken steps in accordance with engineer’s recommendations to eliminate the danger.

[23] According to the respondent, the only harm that the applicant is claiming would be suffered is harm to CRA but has not demonstrated that either CRA or the applicant itself would suffer any harm. Its position is that there has been no evidence of disruption of CRA services, and that the potential relocation of 70 employees would amount to very little harm and disruption to CRA. CRA has more than 40,000 employees in Canada with approximately 12,000 of those situated in Ontario. In brief, the respondent believes that the harm claimed by the applicant is only speculative and thus insufficient to support the granting of a stay.

[24] As I stated above, the nature or type of stay needs to be central to my consideration of this element of the test. It would be difficult for me to subscribe to most of the respondent’s arguments since those would require that I consider circumstances affecting a party that is not before me.

[25] Furthermore, as I have previously pointed out, while the applicant is an employer, my consideration of the application needs to apply not only to that characteristic but also to the applicant’s function as an owner, landlord, custodian and operator of the building.

[26] Also of importance in my opinion is the fact that generally, the main characteristic of a stay is that it is temporary pending a final determination of issues on the merits and in this particular instance, the actual stay being sought would be extremely limited. I have no doubt that from the perspective of the applicant, a potential relocation of 70 occupants of the building it operates is disruptive and, without prejudging the appeal per se, should the appellant succeed in its challenge of the direction, the applicant may be faced in the short term with a need to relocate anew the same group of persons.

[27] Given the evidence presented of the measures taken by the applicant to enhance the protection around the building and the very unique and specific circumstances of this stay application, I am of the opinion that the applicant has satisfied the second element of the test.

Has the applicant demonstrated that measures will be put in place to protect the health and safety of employees or any person granted access to the work place, should the stay be granted?

[28] The applicant’s position regarding this part of the test is twofold. First, because it is challenging the direction on the merits through its appeal, the applicant states that the “danger” HSO Sterling determined did not actually exist at the time of her investigation/inspection. Second, on the assumption, for the purpose of the stay application, that the “danger” in fact existed, the applicant states that it has already taken measures and has made improvements to those protective measures that were already in place such that the safety of employees and other persons is ensured.

[29] In this respect, it is important to cite anew the conclusion arrived at by HSO Sterling:

Based on the information contained in the RJC report it is clear that there is a hazard associated with stones falling from the older portion of the building down to the street level below. Although controls have been put in place (scaffolding), it is also clear that this is not an effective risk mitigation control as the scaffolding itself is in disrepair and in need of immediate rehabilitation. Furthermore, the engineering report states that there is a potential of a stone weighing over 15kg falling from the building and the scaffolding would not effectively safeguard an employee from a stone over 5kg if it should fall.

[30] Documentary evidence submitted by both parties has shown that the probability of a stone weighing more than 15kg falling anywhere alongside the façade of the building, and not only in the vicinity of the two exits to which the direction applies, as being 0-10%. This would come with a high risk of serious injury or damage. The RJC engineering report puts the likely fall of a stone weighing less than 5 kg at 90-100%, one weighing between 5-10kg at 10-40% and all weightier stones at 0-10%.

[31] The sidewalks along the façade are closed or blocked save for the two exits in question, thus reducing the probability of injury due to stone fall in the immediate vicinity of one or both of the exits as those would be used for the exceptional situation of emergency evacuation.

[32] A close examination of the pictures provided by the respondent demonstrates that evacuated persons would not actually walk directly onto the street because of the blocked sidewalks, therefore contradicting Mr. Yoboua’s claim during the hearing.

[33] Additionally, a report from BSG, dated July 17, 2014, and thus not available to HSO Sterling at the time of the issuance of the direction, notes that when the protective scaffolding was originally designed in 2010/2011, its protective capacity had been put at 5kg and could sustain an impact of up to four times that amount (20kg). That same engineering firm, in April 2014, reviewed the existing scaffolding and formulated a number of options ranging from repairs that would maintain the 5kg protective capacity to upgrades to protect against projectiles 10kg and larger. The firm concluded that “our cursory review from grade level of the building stone envelope did not reveal any conditions representative of objects greater than 5kg likely to fall.”

[34] In its application, counsel for the applicant indicated that PWGSC had elected to have the scaffolding upgraded to a protective capacity of 10kg and an impact absorbing capacity of 40kg. At the time of the hearing of this application, I received from the applicant a copy of a letter dated July 22, 2014, addressed to HSO Sterling by Felix Ip, Engineer and Regional Manager, Major Projects, Professional and Technical Services, Real Property Branch, PWGSC. That document indicated the applicant’s acknowledgment of the continuing deterioration of the building and provided details as to the objects that had fallen from the building over the four preceding years. It stated:

· The samples that have been collected during site visits (from on top of the hoarding) are mostly mortar chips, varying in length from less than 25mm to approximately 75mm.

· The mortar chips are mostly cement-based mortar […].

· The various stone chips that have fallen are all very small pieces (typical sizes are 35mm x 35mm x 5mm). During the four years of monitoring […], the biggest piece that was reported measured approximately 100mm x 100mm x 30mm, and this would weight no more than 0.8kg, if calculated using the average density of 2.700kg/m³ for typical Tyndall stone.

· There is no visual misalignment to suggest movement of stones.

[35] That same document also listed what it referred to as “the precautionary measures taken by PWGSC to date to ensure added public safety”:

· Complete refurbishment of the hoarding protection system to contain debris up to 10kg in weight […]. This work was carried out by the contractor and certified by BSG Engineering Ltd. Note that BSG further confirmed in their email of July 17, 2014, that their “April cursory review from grade level of the building stone envelope did not reveal any conditions representative of objects greater than 5kg likely to fall”.

· Monthly visual inspections at street level, as well as swing stage close-up visual screening inspection every four months by Read Jones Christofferson Ltd., who have been engaged by our service provider (SNC Lavalin).

· If RJC identifies areas or components of the façade requiring immediate attention then PWGSC instructs SNC Lavalin to engage a contractor to take action as recommended by RJC.

[…]

[36] In essence then, the applicant’s submissions regarding the third part of the test are that PWGSC has already put in place the necessary protective measures to ensure the health and safety of personnel and the public while the stay, if granted, would be in place. Counsel also noted that measures have also been put in place inside the building to ensure that the two doors not be used. As such, the Ouellette entrance/exit is monitored by commissionaires and the Pitt side door, an emergency exit door, cannot be used to enter the building unless opened from the inside. Notices have been posted at both doors and the Ouellette entrance door has been locked.

[37] Referring to RJC’s March 28, 2014 report on the likelihood of stone fall, the respondent voiced the opinion that the information provided relative to protective measures that would be in place is insufficient to demonstrate or support the claim of protection by the applicant. Noting that the City of Windsor did not appear to be of the view that the hoarding or scaffolding in place around the building was sufficient to protect against falling debris since it had closed/blocked the sidewalks underneath the scaffolding, Mr. Yoboua said that there was no evidence that those measures are enough to adequately address the situation.

[38] The respondent expressed the opinion that PWGSC had not addressed the abnormal situation of structural damage to the building. Mr. Yoboua finally referred me to the conclusion in RJC’s March 28 report:

In general, the stone façade is in poor condition and should be rehabilitated immediately. Based on the continuing review of the façade, it appears that the deterioration is accelerating, which will most likely lead to more frequent and more severe stone failures, with an increasing risk of one or more large pieces of stone falling from the building down to street level. […]

[39] Upon considering all of the above and applying this to the fact that the applicant seeks a limited stay that would apply solely to two exits of the building strictly for use in an emergency evacuation - thus seldom and possibly never during the duration of the stay - and that while the entire façade of the building may be in disrepair, the space/surface of the façade occupied by the two doors represents only a fraction of that surface, I have formed the opinion that the measures in place would suffice to ensure the protection of personnel and public evacuating the building in an emergency. It is thus my conclusion that the applicant has satisfied the third part of the test.

Decision

[40] Considering all of the above and the fact that the stay of the HSO Sterling direction sought by the applicant is limited to the use of the Ouellette Ave. and the Pitt St. doors of the Paul Martin Sr. Building solely for the purpose of emergency evacuations, the partial stay is granted upon the following conditions:

-  the application of the direction issued to the applicant by HSO Sterling on June 19, 2014, is stayed to the extent that the Ouellette Ave. and Pitt St. doors to the Paul Martin Sr. Building may be used solely for the purpose of emergency evacuation of the occupants of the said building;

- this partial stay is granted for a period of six (6) months from the date of this decision and shall peremptorily lapse at the end of that period unless the hearing into the merits of the applicant’s appeal of the direction has been scheduled and/or has begun;

- copy of the monthly or other inspection report prepared by Read Jones Christoffersen (RJC) Consulting Engineers for the applicant through SNC-Lavalin Operations and Maintenance shall be forwarded to HSO Sterling for transmission to the undersigned and should further degradation of the building be noted, the partial stay may be terminated upon submissions by the parties in this regard.

I shall remain seized of this matter for the above purpose as well as for determining any further application in this regard or for hearing the noted appeal by the applicant on the merits.

 

Jean-Pierre Aubre
Appeals Officer