2019 OHSTC 10

Date: 2019-04-30

Case No.: 2019-14

Between:

Air Canada, Applicant

and

International Association of Machinists and Aerospace Workers, Local 2323, Respondent

Indexed as: Air Canada v. International Association of Machinists and Aerospace Workers, Local 2323

Matter: Application for a stay of a direction issued by an official delegated by the Minister of Labour

Decision: The application for a stay is granted.

Decision rendered by: Pierre Hamel, Appeals Officer

Language of decision: English

For the applicant: Ms. Rosalind H. Cooper, Counsel, Fasken Martineau DuMoulin LLP

For the respondent: Mr. Rob Penyk, International Association of Machinists and Aerospace Workers, Local 2323

Citation: 2019 OHSTC 10

Reasons

[1]These reasons concern an application brought by Air Canada (the employer) under subsection 146(2) of the Canada Labour Code (the Code) for a stay of a direction issued on February 21, 2019, by Ms. Elizabeth Porto, in her capacity as official delegated by the Minister of Labour (ministerial delegate).

[2]The direction was issued against Air Canada pursuant to subsection 145(1) of the Code and reads as follows:

[3]On March 22, 2019, the applicant filed a Notice of Appeal against the direction pursuant to subsection 146(1) of the Code, and simultaneously filed a request for a stay of the direction pending the disposition of the appeal on its merits.

[4]The application was heard by way of teleconference on April 15, 2019. Shortly before the teleconference, the Tribunal received the respondent’s response to the appeal, which also addressed the application for a stay. I heard both parties’ oral submissions and gave an opportunity to the applicant to present brief reply submissions in writing, as the respondent’s submissions had been filed shortly before the start of the teleconference. The applicant’s reply submissions were received on April 17, 2019.

[5] The parties were advised of my decision to grant the application for a stay on April 18, 2019, with reasons to follow. I rendered my decision after a careful review of the parties’ submissions and documentation filed in support of the application. I hereby set out the reasons for my decision.

Background

[6]In order to understand the issues raised by the present application, I will briefly outline the factual context that led to the direction, as outlined in the ministerial delegate’s inspection report and the Notice of Appeal.

[7]On February 13, 2019, the ministerial delegate attended the Air Canada Ramp and Baggage work place located in Toronto for the purpose of conducting an inspection. The record indicates that there was no incident, work refusal or other event that caused the ministerial delegate to attend the work place.

[8]In the course of the inspection, the ministerial delegate observed that the employer was operating uncovered motorized material handling equipment, more specifically uncovered baggage tractors, in adverse weather conditions (freezing rain and blowing snow). The ministerial delegate concluded that the operation of such equipment in adverse weather conditions posed a safety risk to the drivers, and compromised the safe operation of the tractor when in operation (potential for frozen gas and brake pedals, and frozen steering wheels). As a result, the ministerial delegate identified a violation of subsection 14.9(1) of the Canada Occupational Health and Safety Regulations (Regulations).

[9]Before issuing her direction, the ministerial delegate consulted with advisors from the Labour Program, given that the direction was likely to have national implications for the employer. In reviewing the employer’s past compliance history regarding the application of subsection 14.9(1) of the Regulations, the ministerial delegate made reference to situations in the past where Air Canada had voluntarily complied with subsection 14.9(1) of the Regulations through an Assurance of Voluntary Compliance (AVC) in Winnipeg and Montreal. The ministerial delegate also made reference to a decision involving Air Canada rendered in 1997 (Decision No. 97-007) by a Regional Safety Officer - predecessors to appeals officers - who concluded that subsection 14.9(1) of the regulations applies to baggage tractors and requires that tractors be fitted with a “roof or other structure” in order to protect employees, since “proving that no weather condition represents a hazard for the safety or health of a tractor operator is difficult, if not impossible.”

[10] The ministerial delegate consequently issued her direction on February 21, 2019, with a compliance date of April 30, 2019. The corrective measure that must be undertaken by the employer to comply with the direction and the prescriptions of subsection 14.9(1), which is to equip the tractors with “a roof or other structure”, is a significant task as it applies to 113 baggage tractors and 86 belt loaders, which would have to be retrofitted accordingly. As reflected in the ministerial delegate’s inspection report and as she explained during the teleconference, the compliance date of April 30, 2019, was the furthest date contemplated under the Labour Program’s Compliance Policy. That date was also set with the assumption that an appeals officer could amend the compliance date, as reflected at page 11 of the ministerial delegate’s report:

[11] In short, there is little dispute that it was not possible for Air Canada to comply with the direction and subsection 14.9(1) of the Regulations within the time limit set by the ministerial delegate.

Analysis

[12] The authority of an appeals officer to grant a stay of a direction is found in subsection 146(2) of the Code:

[13] Appeals officers have considerable discretion in determining whether a stay should be granted (Brinks Canada Ltd. v. Childs and Unifor, 2017 OHSTC 4; Canadian Food Inspection Agency v. Public Service Alliance of Canada, 2013 OHSTC 36). Such discretion must be exercised in a way that supports the objectives of the Code and largely depends on the context in which the direction is issued and its impact on the employer’s operations. As such, each case turns on its own set of facts. The Tribunal’s jurisprudence has set out a test comprising various factors that appeals officers should consider in dealing with an application for a stay. Those factors provide an appropriate analytical framework for appeals officers to apply their discretion in each case: see S.G.T. 2000 Inc. v. Teamsters Quebec, local 106, 2012 OHSTC 15, at para. 5. Originally derived from the Supreme Court of Canada’s decision in Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 SCR 110 (Metropolitan Stores), the elements of the test are as follows:

1. the applicant must satisfy the appeals officer that the question to be tried is serious as opposed to frivolous or vexatious
2. the applicant must demonstrate that it 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

[14] I will consider in turn each of these criteria, as required.

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

[15] The employer submits that the grounds for the appeal are serious and are not frivolous or vexatious. Air Canada contends that section 14.9(1) of the Regulations does not apply to the motorized materials handling equipment in question and it is not necessary to install protective structures. The section is drafted in a way that requires a specific analysis of whether adverse weather conditions to which an operator would be exposed is likely to be hazardous to his/her health or safety, considering also the mitigating measures that the employer has in place for such weather conditions.

[16] The respondent submits that subsection 14.9(1) applies to the baggage tractors and belt loaders, so as to provide crucial protection to the operators from the elements. The respondent notes that in Montreal, Air Canada is compliant with that subsection and all tractors are covered.

[17] Under the title Protection from Elements, subsection 14.9(1) of the Regulations reads as follows:

[18] I am of the view that the first criterion has been met. It is premature to assess the merits of the appeal and determine whether subsection 14.9(1) applies to the equipment in question. That issue will be central to the merits of the appeal. However, it is not inappropriate for the appeals officer to assess the grounds and rationale invoked by the employer in support of its appeal, for the purpose of determining whether it is serious as opposed to abusive or frivolous.

[19] As it has been stated many times, the threshold for this first criterion is rather low and I am of the view that the employer has a “reasonably arguable case” regarding the application of subsection 14.9(1). I note that subsection 14.9(1) appears to be concerned with protecting employees from their exposure to adverse weather conditions. The ministerial delegate’s conclusions are mostly based on her observations that it is the safety of the tractor that was compromised by the elements (potential for frozen gas and brake pedals and steering wheels), resulting, in her view, in a potentially dangerous situation for employees. Whether subsection 14.9(1) is designed to address that type of hazard is, in my opinion, a debatable question. There may be other provisions of the Code and Regulations that impose obligations on the employer in that regard, but that is not the subject matter in the present case.

[20] The employer further argues that the determination of the likelihood that the employee’s exposure to certain weather conditions is likely to be hazardous to the operator’s health or safety is a matter of evidence, and requires a hazard assessment in light of other mitigating measures that may be taken by the employer. I do not consider this argument as being frivolous or vexatious.

[21] Those questions do not seem to have been directly addressed in Decision No. 97-007. I reiterate that I make no finding on these questions, but I have no reason to consider these submissions as being frivolous, vexatious or to be an undue dilatory tactic to avoid compliance.

[22] I am of the view that the first element of the test has been met.

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

Applicant’s Submissions

[23] The applicant submits that there are total of 113 baggage tractors. If the direction is not stayed, 103 of these tractors can be retrofitted with cabs, and 10 cannot; those that cannot will require replacement or an engineered solution. Similarly, there are 86 belt loaders that would require retrofitting. The installation of the manufactured solution for the equipment takes, on average, ten hours per unit, amounting to 1890 hours of installation time. Taking the equipment out of service for installation of the manufactured solutions will cause disruption and impact to operations, including flights to and from the Toronto Airport, resulting in prejudice to Air Canada.

[24] The total cost for retrofitting the 103 baggage tractors and the 86 belt loaders is approximately $1,414,718.91. The cost of replacement of the 10 baggage tractors would be approximately $578,840.00. Even if successful on the appeal, there will be no means by which the applicant can recover these significant costs, or the extensive time and resources directed towards complying with the direction. Moreover, the appeal would be moot.

[25] Some of the baggage tractors require 6 to 8 months lead-time from placement of orders for the manufactured solutions to delivery. It is, therefore, impossible to comply with the direction by the compliance deadline of April 30, 2019. Air Canada submits that the inability or impossibility of compliance by the prescribed deadline warrants the granting of a stay. Further, the impossibility of compliance by the required deadline means that Air Canada would be required to take out of service any equipment that either has not been or cannot be retrofitted by April 30, 2019, making it impossible to effectively continue with operations and maintain flight schedules. This would result in a significant prejudice to Air Canada.

[26] If Air Canada does not take out of service the equipment that has either not been or cannot be retrofitted by the compliance deadline, it will be considered to have failed to comply with the direction and could be subject to enforcement action, which is a very serious matter.

[27] Finally, Air Canada will not have sufficient time to properly assess whether the addition of a roof or other protective structure to the equipment will result in the introduction of new hazards into the work place.

Respondent’s Submissions

[28] The respondent submits that the employer has shown no intention even to plan compliance with the direction since its issuance on February 21, 2019. There was sufficient time to plan for ordering units or cabs for the tractors and the employer should have started the process instead of relying on the success of their appeal.

[29] The respondent refers again to the situation in Montreal, where Air Canada uses covered equipment, which shows that the applicant is aware of its obligations under the Regulations.

[30] The respondent also suggests a number of measures that the employer could have taken to comply with the direction, namely: transfer covered tractors from their other stations to Toronto; repair covered tractors that are in need of repairs or utilize their cabs for similar tractors, as on April 6, 2019, there were 21 tractors in the long term unserviceability area; or purchase new or used tractors from other agencies.

[31] Regarding the costs involved, the respondent stresses that Air Canada is currently under a period of rapid growth and profitability, and since newer equipment must be ordered nonetheless, the applicant should consider including covered units in its upcoming purchases.

Applicant’s reply

[32] The applicant responds that the very purpose of a stay is to avoid the implementation of a direction pending an appeal, in light the significant costs of the measures and their lack of feasibility within the stipulated timeframe.

[33] The suggestion that tractors could be transferred from other locations to Toronto means that other locations would be left without sufficient equipment available for their operations. Furthermore, the number of covered tractors awaiting servicing is currently seven, not 21, and, in any event, is insufficient to allow compliance with the direction; the unserviceable tractors are likely awaiting parts that may not be readily available.

[34] The applicant further states that there is currently very limited inventory on the market for used covered tractors, that the units available would not necessarily meet Air Canada’s specifications, and that unforeseen hazards could occur if dissimilar equipment was simply added to the fleet.

Decision of the second element of the test

[35] I am persuaded by the applicant’s submissions.

[36] First, I accept the applicant’s statement that retrofitting the equipment to make it compliant is not a small task, given the large number of baggage tractors and belt loaders involved. As such, I also accept the applicant’s contention regarding the impact that denying a stay would have on Air Canada’s operations. As the compliance date is not possible to meet, denying the stay would mean that Air Canada would be in violation of the direction and of the Regulations, and subject to prosecution on both counts. Air Canada is loath to be seen transgressing those obligations by continuing to use the equipment targeted by the direction. Therefore, it is clear that such a situation would have significant impact on the operations of the applicant, such as delays in flight schedules, thereby penalizing the applicant and the travelling public.

[37] The applicant raised the question of the costs of the measures to be undertaken. Costs alone have not been accepted by appeals officers as being a factor to grant a stay, absent other considerations. However, the costs involved here are objectively significant and the operation of retrofitting or purchasing new or used material is a demanding and time-consuming process involving many steps and considerations, all of which would bring the applicant well beyond the compliance date set by the ministerial delegate.

[38] In City of Ottawa (OC Transpo) v. Norman MacDuff, 2013 OHSTC 27 (City of Ottawa), the issue of financial costs ($16 M) involved to equip OC Transpo buses with additional equipment to protect bus operators from assaults by customers was raised as a consideration to grant the stay. I agree with the appeals officer when he states as follows on that point:

[39] I am therefore of the opinion that the steps that Air Canada has to undertake to fully comply with the direction are significant and the resources and time that such compliance would entail are more than a “mere inconvenience” to the applicant.

[40] With respect to the impact of the direction on the employer’s operations, keeping in mind that the practice of operating tractors and belt loaders without a roof or other structure appears to have been in place, at least for the Toronto operations of Air Canada, for many decades - for 82 years, as stated in the applicant’s submissions - I subscribe to the appeals officer’s view expressed at paragraph 22 of City of Ottawa:

[41] Secondly, I also consider the nature of the direction against the alleged harm to the applicant. The direction does not relate to a situation of danger where the health and safety of employees may be jeopardized and where measures to correct the hazard are immediately required. In Canadian National Transportation Limited, 2013 OHSTC 15, I expressed the following view:

[42] I have also applied this reasoning in Termont Montréal Inc. v. Syndicat des Débardeurs, SCFP, section locale 375 and Syndicat des Vérificateurs, ILA Local 1657, 2015 OHSTC 7, at paragraph 30. The ministerial delegate referred to Decision No. 97-007, which seemingly supports her direction, but there is no indication in her report that the minister or her delegates sought to actively enforce that decision, at least at the Toronto operations of Air Canada, until 2019 when the ministerial delegate conducted her inspection. In other words, it does not seem, considering all of the circumstances found on the Tribunal’s record, that the situation at hand is one that requires pressing corrective measures to be taken to guard against a specifically identified hazard or danger. While there is no question that the employer must comply with regulatory prescriptions regarding its equipment, to do so in the present context within the timeframe set in the direction and where the foundation of the direction is challenged, would cause significant prejudice to the applicant.

[43] Thirdly, the compliance date in and of itself is problematic because, based on the information on record, it is unattainable. As I already indicated, in light of the number of pieces of equipment that require a manufactured or engineered solution to be compliant, there is no dispute that compliance before April 30, 2019, is not possible. The ministerial delegate determined the date with the understanding that the appeals officer could extend it if Air Canada was able to “present a reasonable action plan” in order to achieve compliance. Yet, the ministerial delegate confirmed during the teleconference that, in her view, compliance implied that all the equipment listed in her direction (199 pieces of equipment) had to be modified to become compliant with the Regulations, for example have a roof or other protective structure, before April 30, 2019.

[44] The problem with the ministerial delegate’s approach is that an appeals officer has no authority to vary a direction, including the compliance date, at this early stage of the appeal proceedings. The authority of an appeals officer to modify a compliance date derives from the appeals officer’s powers set out in subsection 146.1(1) of the Code:

[45] Those powers may only be exercised further to the inquiry “into the circumstances of the direction and the reasons for it”, as set out in the preamble of that subsection, for example into the merits of the appeal. Those powers are incidental to the jurisdiction of the appeals officer in the conduct of his inquiry and dealing with the appeal. In other words, an appeals officer could dismiss the appeal on its substantive merits and confirm that the employer is in contravention of a provision of the Code or Regulations, but could vary the time for compliance as authorized by subsection 146.1, providing the evidence establishes sufficient reasons to do so.

[46] There are a number of decisions where appeals officers have varied the compliance date of a direction, including recently: Handlex Inc. (Re), 2010 OHSTC 8; J.E. Culp transport, 2012 OHSTC 20; Robert Q’s Airbus Inc., 2013 OHSTC 9; Air Georgian Limited, 2015 OHSTC 6; Air Canada, 2016 OHSTC 9. It should be noted that in all those cases, the variation of the compliance date was ordered further to the inquiry of an appeals officer on the appeal itself and where the employer had accepted the substantive merits of the direction, but solely disputed the timeframe within which to comply. The remedial power set out in subsection 146.1(1)(a) of the Code could thus be relied on by the appeals officer. This is not the case here, as the applicant vigorously disputes the merits of the direction and the applicability of subsection 14.9(1) of the Regulations to the baggage tractors and belt loaders identified in the list appended to the direction. This means that an inquiry on the appeal as mandated by subsection 146.1(1) of the Code will have to take place before my remedial powers can be exercised.

[47] In short, at this juncture, the stay contemplated under subsection 146(2) of the Code is the only option available to an appeals officer to effectively relieve the employer of its obligation to comply with the direction within the prescribed time limits, as the terms of the direction cannot, in my view, be varied at this preliminary stage.

[48] For all those considerations, I conclude that the applicant has met the second criterion of the test, and has established that it would suffer significant harm if a stay is not ordered.

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

Applicant’s Submissions

[49] The applicant submits that it had not been informed of any worker complaints, either directly or through the work place health and safety committee, in respect to the matter. The applicant points out that the direction was issued after the ministerial delegate chose to commence an inspection based on a discussion with an employee who had approached the ministerial delegate during her lunch at the Toronto airport.

[50] The applicant stresses that there have been no incidents involving operators being exposed to weather conditions where a roof or other protective structure was required for protection.

[51] The applicant further undertakes to take the following measures pending the appeal:

• protective clothing and supplemental items will continue to be made available to operators
• during severe weather events, Air Canada will continue to adjust operations to take into account these conditions
• Air Canada will continue to closely monitor and assess weather related working conditions and additional safety measures will be implemented considering the changes in conditions
• Air Canada will continue to encourage employees to report weather related concerns to their supervisors
• Air Canada will brief employees regarding hazards associated with weather conditions

[52] The applicant also points out that, since most of the conditions referred to by the ministerial delegate are related to winter conditions, there is no pressing need for the direction to be complied with pending the appeal since winter is now over.

Respondent’s Submissions

[53] The respondent supports the ministerial delegate’s proactive action to ensure compliance to the Code and the Regulations. While operating uncovered tractors, operators are exposed to potential injuries from flying debris (eye injury), ice pellets and freezing rain (eye injuries), extreme heat, extreme cold, ice and snow and hail, and from the sun, extreme winds and driving in rain conditions. Currently, the operators are not protected from exposure to these elements.

[54] During extreme cold and heat, the employer does not always schedule breaks as the work planning department is remote from the work areas, particularly during busy schedules (Christmas season, summer peak). Personal Protective Equipment is often inadequate to offer the protection a covered tractor could provide. The local health and safety committee recommends eye protection but the recommendation is not being implemented. During winter months and extreme cold, employees may work in remote areas with no shelter for extended periods of time (2 to 3 hours).

[55] The respondent also submits that the employer did not follow the preventative measures for dealing with hazards as spelled out in section 19.5 of the Regulations. Providing the tractors with a roof would eliminate the hazards altogether.

[56] The respondent stresses that incidents occur even though they may not be reported to management as a documented injury. There have been instances of frostbite and cold exposure, and near misses due to eyesight being compromised because of heavy snow, freezing rain, or wind.

Decision on the third criterion

[57] I am persuaded by the employer’s submissions regarding the current protection of employees in the circumstances of the present case.

[58] The direction arose out of a “specific” inspection by the ministerial delegate that was not triggered by a work refusal, a complaint by an employee or a particular incident. The ministerial delegate observed that, because of the blowing snow and freezing rain, several uncovered tractors were covered with ice (brake pedals and steering wheels). I note that the ministerial delegate did not consider it necessary - or justifiable - to issue a “danger direction” under subsection 145(2) of the Code, which would have required that the employer take immediate corrective measures to address the condition that she had observed. To me, this is an indication that the status quo could continue, subject of course to all existing provisions and protections under the Code and Regulations, until the measures ordered in the direction that she issued are taken.

[59] I also consider the seasonal context that led the ministerial delegate to issue her direction: blowing snow, freezing rain and ice. As we are about to enter the month of May - as I write the present reasons - the kinds of hazards identified by Ms. Porto are unlikely to occur in the short or mid-term. I am not dismissing the respondent’s reference to other kinds of adverse weather conditions that may occur during the summer months or fall. However, they are of a different nature than the circumstances that were prevailing in February 2019, and, in my view, can be mitigated appropriately.

[60] Consequently, for the purpose of deciding on a stay pending the appeal on the merits, I am of the view that the health and safety of employees will be protected under the status quo, which consists of a mode of operation that has been in place at the Toronto airport for many decades. In the circumstances, I believe that, in light of all other obligations placed on the employer under the Code to eliminate or mitigate hazards and the ability for employees to exercise their rights, including the right to refuse to work, should conditions warrant it, the health and safety of employees would be protected pending final resolution of the appeal.

[61] For the above considerations, I am of the view that the applicant has met the third element of the test. That said, I have decided to enshrine in my order the applicant’s commitments outlined in its submissions to ensure the operators’ safety, as conditions to the stay.

[62] To sum up, I have concluded that the applicant has met the threefold test established under the Tribunal’s jurisprudence, namely, that the appeal is not frivolous or vexatious; that the applicant would suffer significant harm or prejudice if the direction was not stayed, looking at all the circumstances leading to the direction, including the date set by the ministerial delegate for compliance; and finally, that the health and safety of employees is protected pending a hearing on the merits of the appeal, including the conditions imposed on the applicant with the present order.

Decision

[63] For the reasons set out above, the application for a stay of the direction issued by Ms. Elizabeth Porto on February 21, 2019, is granted under the following conditions:

1. the employer, Air Canada, shall immediately inform the Work Place and Policy Health and Safety Committees of the stay of the direction
2. the employer shall immediately and in writing, inform employees of the hazards associated with the weather conditions and shall remind employees who operate the motorized material handling equipment referred to in the direction of their right to report to their supervisor any weather related concerns regarding the use of such equipment, including their right to refuse to work, should they consider that the operation of the equipment exposes them to a condition presenting an imminent or serious threat to their health or life
3. as it committed to do in its submissions relating to the present application, the employer shall continue, pending the appeal:
   1. to provide appropriate clothing and supplemental items to protect employees from exposure to weather conditions that may be hazardous to their health or safety
   2. to adjust operations in order to take into account severe weather events which are likely to be hazardous to the operators’ health and safety
   3. to continue to closely monitor and assess weather related working conditions and implement appropriate protective measures to address changes in weather conditions

[64] The stay will be effective until the final disposition of the appeal.

Pierre Hamel

Appeals Officer