2019 OHSTC 7

Date: 2019-03-27

Case No.: 2018-08

Between:

Menzies Aviation Fuelling Canada Ltd., Appellant

Indexed as: Menzies Aviation Fuelling Canada Ltd.

Matter: Appeal under subsection 146(1) of the Canada Labour Code of a direction issued by an official delegated by the Minister of Labour

Decision: The direction is varied.

Decision rendered by: Mr. Olivier Bellavigna Ladoux, Appeals Officer

Language of decision: English

For the appellant: Mr. Julian Molinari, Menzies Aviation Fuelling Ltd.

Citation: 2019 OHSTC 7

Reasons

[1] These reasons concern an application brought under subsection 146(2) of the Canada Labour Code, R.S.C., 1985, c. L-2 (Code), by Menzies Aviation Fuelling Canada Ltd. against a direction issued on February 23, 2018, by Ms. Elizabeth Porto in her capacity as an official delegated by the Minister of Labour (ministerial delegate).

Background

[2] The direction appealed was issued following an incident that occurred on January 16, 2018, at Lester B. Pearson International Airport (the airport). The incident involved an aircraft fueller employed by the appellant (the employee) who was in the process of fuelling an aircraft located at Gate C25 of Terminal 3 of the airport. The employee noticed that the nozzle on the aircraft was leaking. While he was attempting to re-adjust the nozzle, it became disconnected from the aircraft, soaking the employee’s face with fuel. Fuel entered into the employee’s eyes, nose and mouth.

[3] On the same day, the Labour Program of Employment and Social Development Canada was made aware of the incident by an inspector of the Ontario Ministry of Labour. The Labour Program’s duty officer then contacted the appellant and spoke to a manager, Mr. Marc Day. The duty officer informed the manager of the appellant’s obligation to submit a Hazardous Occurrence Investigation Report to the Minister within 14 days of the hazardous occurrence, in accordance with section 15.8 of the Canada Occupational Health and Safety Regulations, SOR/86-304 (Regulations).

[4] The Labour Program did not received the Hazard Occurrence Investigation Report within that time frame and assigned the ministerial delegate to investigate the incident. The ministerial delegate attended the workplace on February 20, 2018. Following her investigation, the ministerial delegate concluded that, at the time of the incident, the employee was not wearing adequate face protection to prevent from exposure to jet fuel. The employee was wearing Class 1A safety glasses while the ministerial delegate found that the Material Safety Data Sheet (MSDS) provided by the appellant identified face shields to be the appropriate protective equipment against exposure to jet fuel. As a result of her findings, the ministerial delegate issued the following direction to the appellant:

[5] On March 19, 2018, the applicant filed an appeal of the direction accompanied by an application for a stay of the appealed direction. The request for a stay was heard on April 5, 2018, by way of teleconference and on April 6, 2018, I informed the applicant of my decision to grant the application for a stay of the direction.

[6] I heard the appeal on its merits in Toronto on July 4, 2018. I heard testimonies from the ministerial delegate, the appellant, and Mr. Alex Medina, the appellant’s training manager. Neither the injured employee nor his union participated in these proceedings.

Issue

[7] The issue in this matter is whether the ministerial delegate’s direction under paragraph 125(1)(l) of the Code and section 12.6 of the Regulations on February 23, 2018, is well founded.

Submissions of the Appellant

[8] The appellant states that its operations in Toronto require more than 100 pieces of equipment and that each of them is periodically checked. Fuelling equipment undergoes monthly checks to ensure that hose and nozzle assemblies and filtration systems will permit safe fuelling operations.

[9] The appellant indicates that the suppliers and manufacturers of the jet fuel used to fuel the aircraft recommend eye protection ranging from category 1 to category 3 when the employees are performing standard operating practices and full-face shields when the employees are in unusual circumstances.

[10] Concerning the facts that gave rise to this case, the appellant points out that the fuelling hose was not connected properly to the aircraft or malfunctioned, and that the employee was doused with fuel because he did not release the pressure in the hose before readjusting the nozzle. The appellant believes that the issue could have been avoided, had the nozzle been connected properly or had the employee stopped the fuel flow and waited for the pressure in the hose to dissipate. In order to prevent this situation from reoccurring, the appellant claims to have added a module in the training program on how to deal with nozzles.

[11] According to the appellant, since October 1, 2015, the appellant has fuelled approximately 600,000 aircraft through their Toronto operation. Every one of these fuelling operations necessitates a minimum of 4 connections and disconnections: 2 to the ground, and a minimum of 2 to the aircraft. Adding the monthly checks, the number of connections and disconnections performed by the appellant’s employees would amount to over three million. Out of these three million operations since October 2015, the appellant claims to be aware of only one other incident where fuel may have been ingested while refuelling an aircraft.

[12] The appellant states that it is difficult to justify forcing 500 employees to wear full-face shields in inclement weather, both hot and cold, because of one incident out of three million operations. The appellant also states that the face shields could be distracting and impeding to the employees, which could potentially cause harm to employees or damage to aircraft.

[13] The appellant compares the fuelling of aircraft with the fuelling of an automobile, claiming that gas station pumps are also equipped with hoses and nozzles, and if they malfunction, the person fuelling his/her car could be doused with fuel. Yet, car owners fuel their cars regularly without goggles, gloves or any other safeguards and without concern.

[14] The appellant admits that the current eye protection issued at its Toronto location may not be adequate and is prepared to provide all of its employees with Class 2B eye protection, as detailed in CSA Standard Z94.3-M1982, Industrial Eye and Face Protectors (the Standard). The appellant points out that the face shield is the highest level of protection detailed in the Standard, but that it is not adequate for the nature of the tasks performed by aircraft fuellers. The appellant asks for a practical solution, one that will not negatively affect the employees’ ability to perform their tasks.

[15] The appellant asks that I vary the instruction issued by the ministerial delegate in order to issue Class 2B eye protection to its employees instead of full-face protection.

Analysis

[16] Subsection 146.1(1) of the Code sets out the authority of an appeals officer when a direction issued by a ministerial delegate is appealed:

[17] In order to determine whether I will vary, rescind or confirm the direction issued by the ministerial delegate on February 23, 2018, I must determine whether the appellant was in contravention of paragraph 125(1)(l) of the Code and of section 12.6 of the Regulations. Paragraph 125(1)(l) of the Code reads as follow:

[18] As identified in the ministerial delegate’s instruction, the prescribed safety materials, equipment, devices and clothing mentioned at paragraph 125(1)(l) of the Code are detailed at section 12.6 of the Regulations. Section 12.6 is set out in Part XII of the Regulations (Safety Materials, Equipment, Devices and Clothing). However, section 12.6 of the Regulations is not to be read in isolation. The appeals officer in Bell Mobility Inc., 2012 OHSTC 26, wrote at paragraph 33 of his decision that “before determining whether section 12.10 of the Canada Occupational Health and Safety Regulations (COHSR) applies in a given situation, section 12.1 of the COHSR must be looked to and used to analyze the potential health or safety hazard in question.” The same reasoning applies to section 12.6 of the Regulations raised in the present appeal. The relevant parts of Part XII of the Regulations read as follow:

[19] Section 12.1 of the Regulations establishes that Part XII is governed by the principle of reasonable practicability. Section 12.1 states that where it is not reasonably practicable to eliminate or control a health or safety hazard in a work place within safe limits, every person granted access to the work place who is exposed to that hazard shall use the protection equipment prescribed by Part XII. Therefore, applied to the particular circumstances of this case, sections 12.1 and 12.6 of the Regulations require that if it is not reasonably practicable to eliminate or control the hazard of being washed with jet fuel while refuelling an aircraft, every person granted access to the work place who is exposed to that hazard shall use eye or face protectors that meet the standards set out in the Standard.

[20] The Standard referred to in section 12.6 of the Regulations sets out the minimum performance requirements for the protection of eyes and face in the work place. The scope of the Standard read as follow:

[21] The Standard must be applied in a way that serves the purpose of Part II of the Code. The purpose of Part II of the Code reads as follow:

[22] Appeals officers, more recently in Zimmerman v. Correctional Services of Canada, 2018 OHSTC 14, have applied the purpose clause of Part II of the Code in a thorough manner. In the circumstances of the present case, the purpose of Part II of the Code requires that the appellant reduce the risks related to the duties of aircraft fuellers as low as possible by first eliminating hazards, then reducing hazards, and in last resort, by providing personal protective equipment to prevent the risks that could not be eliminated or reduced.

[23] The appellant puts the aircraft fuellers through a 5-week training program, from which a 3-week period is a job specific training related to the procedure of fuelling aircraft. Every fuelling hose is equipped with a fuel nozzle that is designed to prevent the spraying of fuel during the fuelling of aircraft. The appellant also provides aircraft fuellers with personal protective equipment such as gloves, earmuffs, coveralls, safety boots and Class 1A safety glasses. While I remain conscious that the ministerial delegate’s direction was issued following an incident during which fuel entered an employee’s eyes, nose and mouth, I gather from Messrs. Molinari and Medina’s testimonies that the incident of January 16, 2018, was an isolated incident. In fact, the mechanisms and procedures in place surrounding the fuelling of aircraft mentioned above make the fuelling of aircraft a largely incident free operation.

[24] That being said, the Standard does not explicitly deal with the type of protection to use while handling fuel, but in Appendix C of the Standard, which is not a mandatory part of the Standard, hazards are classified along with their recommended eye protection. The handling of fuel most logically falls into Hazard Group D, which deals with acid splash and chemical burns. The classes of eye protection recommended by the Standard for hazards falling in Hazard Group D are Classes 2B, 3B and 6B eye protection. Class 2B eye protection consists of eyecup goggles, Class 3B eye protection consists of mono-frame goggles, and Class 6B consists of a face shield.

[25] The term “goggles” is defined at section 2.1 of the Standard as “a device contoured for full facial contact held in place by a headband or other suitable means, for the protection of the eyes and eye sockets”. A “face shield” is defined at section 2.1 of the Standard as being “a device that includes a transparent window or visor supported in front of the face to shield eye and face”.

[26] As I mentioned above, the appellant currently provides its employees with Class 1A protective glasses. Class 1A protective glasses simply consist of 2 lenses in a protective frame without side shields, and is not considered proper protection against any of the hazards identified in Appendix C of the Standard, including the handling of jet fuel. The appellant admitted at the hearing, as well as in his final written submissions, that the current eye protection devices issued to its employees may not be adequate to protect the eyes of the aircraft fuellers. I also agree that Class 1A protective glasses do not provide adequate eye protection against jet fuel splashing, and like the ministerial delegate, I find that the appellant contravened the Standard, and therefore paragraph 125(1)(l) of the Code as well as section 12.6 of the Regulations.

[27] The question now becomes whether the steps specified by the ministerial delegate to ensure that the contravention identified does not recur are appropriate under the scheme established under Part XII of the Regulations. In other words, did the ministerial delegate err in directing the appellant to provide full-face protection to employees exposed to jet fuel during the fuelling of aircraft?

[28] The appellant testified that the ministerial delegate relied on the wrong MSDSs in order to issue her instruction. The ministerial delegate wrote in the report supporting her direction that she reviewed two MSDSs online and that they both recommended full-face shields as the appropriate protection to be used when handling jet fuel. In the same report, the ministerial delegate seemingly relied on Petro-Canada’s MSDS for jet A/A-1 aviation turbine fuel, which states at its section 8 concerning eye protection that an employee should wear a “face-shield and protective suit for abnormal processing problems” [emphasis added].

[29] During his testimony, Mr. Molinari stated that the appellant does not use Petro-Canada’s jet fuel to refuel aircraft, and for that reason, asks that I disregard the information included in that MSDS. I am ready to do so, but I would like to point out that the fuelling of aircraft does not consist of an abnormal processing problem, as indicated in Petro-Canada’s MSDS. Therefore, I do not consider that Petro-Canada’s recommendations concerning a face-shield and a protective suit apply to the circumstances that led to an employee being soaked with jet fuel.

[30] In the course of the hearing, the appellant introduced evidence that the ministerial delegate had not considered prior to issuing her instruction. I conducted this appeal in a de novo manner, allowing me to receive new evidence, without regard to whether these elements were taken into consideration by the ministerial delegate during her investigation. The new evidence submitted by the appellant at the hearing consists of MSDSs for jet fuel by his main suppliers, namely, Shell Trading Canada; BP Products North America; Chevron Philips Chemical Company LP; U.S. Oil & Refining Co.; and Imperial Oil Downstream.

[31] Regarding eye protection against jet fuel, the appellant’s suppliers recommend various personal protective equipment ranging from safety glasses with side shields to a face shield. Imperial Oil Downstream recommends safety glasses with side shields if eye contact with jet fuel is likely; Shell Trading Canada recommends wearing goggles for protection against liquids and gas; Chevron Philips Chemical Company LP recommends wearing tightly fitting safety goggles; BP Products North America recommends chemical splash goggles; and U.S. Oil & Refining Co. also recommends chemical-type goggles and/or a face shield.

[32] I gather from the MSDSs that I analyzed that the most common recommendation from the appellant’s jet fuel suppliers for eye protection against jet fuel is the wearing of goggles. These recommendations do not supersede the requirements of the Code and they do not bind me, but I find that they offer useful guidance in the resolution of this appeal.

[33] The goggles described in the MSDSs are akin to those of Classes 2B and 3B eye protection as defined in the Standard. Section 8.2 of the Standard is consistent with the MSDSs and points out that as far as personal protective equipment is concerned, Classes 2B and 3B eye protection goggles provide reasonable protection against relatively fine dust particles, liquid splashes and impact.

[34] On the other hand, section 10 of the Standard states that “face shields are constructed to provide protection to the face, for example, the front part of the head, including eyes, forehead, cheeks, nose, mouth, and chin, where required, to the front of the neck, from flying particles and sprays from hazardous liquids” [emphasis added]. The Standard recommends that protective spectacles (Class 1) or goggles (Class 2) be worn in addition to a face shield.

[35] While I have already found that paragraph 125(1)(l) of the Code and section 12.6 of the Regulations have been contravened, I fail to see in the evidence before me any cogent justification for full-face protection being mandatory to remedy this contravention. Neither the Regulations, the Code, the Standard, nor the MSDSs analyzed lead me to conclude that the employer must provide full-face protection to its employees while they are refuelling aircraft. I believe that providing full-face protection to aircraft fuellers in multiple airports across the country following an isolated incident during the fuelling of an aircraft is disproportionate and beyond what is reasonably practicable.

[36] Considering that the Standard recommends that employees exposed to jet fuel splashing wear Class 2B eye protection at minimum, and that Class 2B eye protection combined with the safety measures already put in place by the appellant are, in my opinion, enough to control the hazards associated with the fuelling of aircraft to the extent that is reasonably practicable under Part XII of the Regulations, I am of the opinion that the appellant should have more flexibility than allowed by the ministerial delegate in providing reasonable eye protection to its employees, and I do not believe that full-face protection is a reasonably practicable solution in the circumstances surrounding the fuelling of aircraft.

[37] Based on the evidence before me, I find that Class 2B or 3B eye protection, namely, eye‑cup goggles or monoframe goggles, are sufficient to control a hazard of injury to aircraft fuellers without going beyond the extent of what is reasonably practicable, as intended by Part XII of the Regulations. I also find that providing Class 2B or 3B eye protection, instead of the full-face protection ordered by the ministerial delegate, does not frustrate the purpose of Part II of the Code, meets the requirements of the Standard and adequately protects the health and safety of the aircraft fuellers.

[38] For the reasons above, I find that the direction issued by the ministerial delegate under paragraph 125(1)(l) of the Code and section 12.6 of the Regulations on February 23, 2018, is not well founded.

Decision

[39] The direction issued by the ministerial delegate on February 23, 2018, is varied.

Olivier Bellavigna-Ladoux

Appeals Officer

Appendix

On February 20, 2018, the official delegated by the Minister of Labour Elizabeth Porto conducted an investigation in the work place operated by Menzies Aviation Fuelling Canada Ltd. being an employer subject to the Canada Labour Code, Part II, at 5600 Silver Dart Dr, PO BOX 6058 AMF, Mississauga, Ontario, LSP 1B2.

The ministerial delegate was of the opinion that paragraph 125(1)(l) of the Canada Labour Code and section 12.6 of the Canada Occupational Health & Safety Regulations had been contravened because the employer has failed to provide full face protection to employees exposed to jet fuel during the fuelling of aircraft.

Following an appeal brought under section 146 of the Canada Labour Code, I conducted an inquiry pursuant to section 146.1 with respect to the direction issued by the ministerial delegate.

As a result of my inquiry, I am of the opinion that the following provisions have been contravened and the direction issued by the official delegated by the Minister of Labour is varied accordingly:

Paragraph 125(1)(l) of the Canada Labour Code

Section 12.6 of the Canada Occupational Health & Safety Regulations

The employer has failed to provide adequate eye protection to employees exposed to jet fuel during the fuelling of aircraft.

Therefore, you are hereby directed, pursuant to paragraph 145(1)(a) of the Canada Labour Code, Part II, to terminate the contravention no later than April 29, 2019.

Varied at Ottawa, this 27 day of March, 2019.

Olivier Bellavigna Ladoux

Appeals Officer