Archived - Decision: 96-014 CANADA LABOUR CODE PART II OCCUPATIONAL SAFETY AND HEALTH

Review under section 146 of the Canada Labour Code

Part II, of a direction issued by a safety officer

Decision No:96-014

Applicant: Richard Fréchette Inc

Windsor, Quebec

Represented by Louise Baillargeon, Counsel

Respondent: Occupational Safety and Health Committee

Represented by Sylvain Bérard, employee member

Mis en cause: Mario Desrosiers

Safety officer

Human Resources Development

Before: Serge Cadieux

Regional Safety Officer

Human Resources Development

This case was heard by way of written submissions.

Objections and Preliminary Remarks

The Regional Safety Officer's review process in this case was much

criticized by Me Baillargeon. Allowing safety officer Mario Desrosiers

to intervene in the case to clarify certain points of his investigation

report was viewed by Me Baillargeon as a flagrant infringement of the

principles of natural justice. According to Me Baillargeon, both the

safety officer and the investigation report that he submitted to the

Regional Safety Officer should be disregarded, so that the Regional

Safety Officer might conduct his inquiry independently.

Me Baillargeon alleges that the Regional Safety Officer is allowing the

safety officer to intervene in this case as if he were a concerned

party. She formally advised the Regional Safety Officer that she

objected to any involvement of the safety officer in this case,

including his filing an investigation report.

Me Baillargeon submits as follows regarding the safety officer's

investigation report entitled "Request for review of the direction

issued on 23 February 1996":

[Translation] As this evidence is illegal, we object to its

remaining on the record; it must be promptly discarded. What is

more, as you have already read it, you should disqualify yourself as

having already been influenced, while my client has not had the

opportunity to check the accuracy of the allegations contained in

it.

The Public Service Staff Relations Board had to examine this issue in

Julie Hamel v The Treasury Board (Solicitor General of Canada,

Correctional Service), File No 165-2-56, in which Deputy Chairman P.

Chodos wrote:

The second matter that I wish to comment on is the question of

providing a report to the Board and to the parties in respect of the

safety officer's reasons for decision. Mr Robert stated that as a

matter of policy, he does not issue his report concerning the

reasons for his decision prior to an inquiry under subsection 87(1)

[now 130(1)] in order to avoid unduly influencing the Board's

conclusions. In my view, it is entirely desirable that both the

parties and the Board be provided with a written report outlining

the reasons for the safety officer's decision as soon as possible

after the decision is rendered. Certainly, that report should be

made available to all concerned prior to the Board's conducting an

inquiry pursuant to subsection 87(1)." (my underlining)

I fully share the Board's opinion on this point. Further, as the

Regional Safety Officer responsible with reviewing the direction issued

in this case, I advised Me Baillargeon that, as an administrative

tribunal with a quasi-judicial function, I was master of my procedure,

and that, accordingly, I intended to proceed in this case as fairly as

possible, ensuring that the process remained fully transparent. I

consider the safety officer's involvement in any inquiry to review

directions to be necessary, not to say indispensable in such

circumstances. I liken the role of a safety officer in my inquiry to

that of a police officer who comes to testify in court about offences

that he observed and the reasons why he acted. It is clear at this

time that the safety officer is not a party concerned in this case.

His is a witness of the tribunal.

The safety officer's intervention in this case enables him to confirm

that he did in fact observe and report offences, even if some of the

situations that were the subject of his investigation no longer exist,

as is clearly the case at present. This intervention is all the more

important when no designated body or individual is intervening in the

review of the directions to represent the employees' interests. In the

present case, I tried to obtain the active participation of the

employee member of the Safety and Health Committee, but in vain. I

note, however, that Me Baillargeon substituted herself for the member

representing the employees on the Safety and Health Committee by

answering the letter that was sent under separate cover to Mr Bérard,

which is a rather unusual situation.

I invited Me Baillargeon to submit her arguments to me in reply to the

explanation supplied to me by the safety officer about a specific point

in his investigation report. I also suggested that Me Baillargeon

advise me if she thought that a hearing was necessary to clarify her

client's position in this case. She informed me that it would be

pointless, because she would only be repeating orally the same

arguments that she submitted to me in writing. I therefore decided to

proceed in this case by making a decision based on the written

arguments submitted to me by Me Baillargeon and on the safety officer's

investigation report.

Background

The safety officer conducted a general inspection of the work place

used by the employees of Richard Fréchette Inc on 6 February 1996. He

was accompanied at the time by Mr Patrick Logan, a manager.

The safety officer reports to us that he "began the inspection with the

dispatcher's officer, following the inside hallway leading to an

adjacent warehouse which I crossed to reach the door leading through

the inside to the adjoining premises, the garage (space for

repair/maintenance, parts store, personal service area). I completed

the tour with an inspection of the comptroller's office adjacent to the

dispatcher's office and the office of the manager located on the floor

below the office occupied by the dispatcher. Photographs were taken,

and an oral direction was issued and confirmed in writing on

23 February 1996." (See Appendix.)

The safety officer states that "at the time of the inspection all the

employees affected by the items listed in the direction, including the

dismissed "mechanics and/or handlers" were under federal jurisdiction,

and all the items listed were valid and required that measures be taken

to protect the employees of Richard Fréchette Inc."

Submission for the employer

Me Baillargeon submits the following arguments in support of the

request for review:

1. The employer, Richard Fréchette Inc, does not own or control the

work place to which the directions refer, except for the offices.

In fact, the employer no longer has any mechanics and/or handlers in

its employ, but has subcontracted the repair and maintenance of all

motor vehicles to a company under provincial jurisdiction over which

the safety officer has no jurisdiction. The directions contained in

paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10 and 11 are therefore not

applicable, because the employer no longer performs the work in

question with its own employees, and because it does not control the

work place in question, which is no longer under its authority and,

moreover, has never been fully so because it is owned by a company

under provincial jurisdiction (section 125.1).

2. Review of the direction appearing in paragraph 2 of the

directions is requested by the employer because the reason the

comptroller's and dispatcher's offices contained boxes, which in any

case in no way interfered with normal traffic, was that the

company's auditors are regularly on the premises at that time of

year to prepare the company's financial statements.

3. Regarding paragraph 12 of the directions, the company will hold a

monthly meeting beginning in March 1996; this is the only direction

for which a review is not being requested.

Decision

Me Baillargeon has identified the specific paragraphs that I must

examine. I shall deal with the arguments made by Me Baillargeon in the

order in which they were presented to me.

1. The directions in paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10 and 11 of

the Appendix

Me Baillargeon does not contest the validity of the directions

listed above. She alleges, first, that the employer no longer

performs the work in question with its own employees. In fact, it

appears that, as a result of the directions, the work performed by

the employees of Richard Fréchette Inc was subcontracted to a

company under provincial jurisdiction, which action, according to

her, renders the directions null and void. At the time of the

safety officer's investigation, and when the directions were issued,

the employees were in the employ of Richard Fréchette Inc, a company

under federal jurisdiction. Accordingly, this first argument does

not hold as it concerns the justification of the directions. I

therefore reject this argument, although it does have a concrete

effect on the subsequent enforcement of the directions. It is not

the responsibility of the Regional Safety Officer to determine to

what extent or in what way Richard Fréchette Inc will have to comply

with the safety officer's directions, even if they have become

inapplicable through a subsequent action of the company.

Me Baillargeon will have to apply to the safety officer to resolve

this issue.

Me Baillargeon's second argument is that Richard Fréchette Inc does

not control the work place in question, because it is no longer

under its authority and, moreover, was never fully so because it

is owned by a company under provincial jurisdiction (my

underlining). I note that Me Baillargeon is clearly not categorical

in submitting this argument. The contention is that control of the

work place is shared between a company under federal jurisdiction,

to wit Richard Fréchette Inc, and a company under provincial

jurisdiction, to wit H. Faucher Transport Inc. This is precisely

the point that I asked the safety officer to clarify. I asked him

to explain why he claimed that the employees were under federal

jurisdiction at the time of his investigation.

In reply to my question the safety officer explained, to my

satisfaction, that the management of the two companies was in the

hands of a third company, a holding company called Gestion

F.L. Logan Ltée, and that the majority shareholder and president in

the case of all three companies was the same person, Marie-Anne

Logan. The safety officer explains that

On 6 February Richard Fréchette Inc was using the garage for the

purposes described in my report of 22 March 1996. The garage,

owned, according to Mr Logan, by H. Faucher Transport Inc, was

for the exclusive use of Richard Fréchette Inc and H. Faucher

Transport Inc. Both have as their principal shareholder Gestion

F.L. Logan Ltd and as their president Marie-Anne Logan.

The question that I have to ask myself in this proceeding is the

following: who ultimately controlled the work place used by the

employees of Richard Fréchette Inc at the time of the safety

officer's investigation? This question has a bearing on the

employer's duties to its employees as provided in section 125 of the

Code. This provision reads as follows:

125. Without restricting the generality of section 124, every

employer shall, in respect of every work place controlled by the

employer,

In this case, the work place operated by Richard Fréchette Inc, for

example, the garage, the offices, the personal service spaces and so

on, were controlled exclusively by Marie-Anne Logan, the principal

shareholder and president of Richard Fréchette Ind. It has not been

demonstrated to me that any real distinction existed among the

various companies named above as regards control of the work place

in question, so that I conclude that the Richard Fréchette Inc fully

controlled the work place that was the subject of the safety

officer's investigation. Accordingly, the direction is in my

opinion justified in the circumstances. As I do not have to deal

with the validity of the directions in paragraphs 1, 3, 4, 5, 6, 7

8, 9, 10 and 11 of the Appendix, I hereby CONFIRM the directions

in those paragraphs.

2. The direction in paragraph 2 of the Appendix

This direction reads as follows:

Subsection 125(p) of the Canada Labour Code, Part II, and

subsection 2.12(2) of the COSHR

In the controller's and the dispatcher's offices there are boxes

of forms or equipment lying about the floor and interfering with

normal traffic.

Subsection 2.12(2) of the Regulations provides as follows:

2.12(2) All dust, dirt, waste and scrap material in every work

place in a building shall be removed as often as is necessary to

protect the safety and health of employees and shall be disposed

of in such a manner that the safety and health of employees is

not endangered.

I am satisfied that the boxes of forms or equipment present in the

work places of the comptroller and the dispatcher were not dust,

dirt, waste or scrap material as provided in subsection 2.12(2) of

the Regulations. These boxes were being used for professional

activities, and, accordingly, I cannot claim on the basis of the

information that has been submitted to me that they were placed in a

manner that might _obstruct or encroach upon passageways, traffic

lanes or exits_ [paragraph 14.19(2)(b) of the Regulations]. For

these reasons, I RESCIND the direction appearing in paragraph 2

of the Appendix.

3. The direction in paragraph 12 of the Appendix

As the twelfth paragraph of the direction is not subject to a

request for review, as specified by Me Baillargeon above, I shall

not rule on this specific point.

In summary, I hereby CONFIRM the directions in paragraphs 1, 3, 4, 5,

6, 7, 8, 9, 10 and 11 of the direction issued pursuant to subsection

145(1) of the Code on February 23, 1996 by safety officer Mario

Desrosiers to Richard Fréchette Inc, and I hereby RESCIND the direction

in paragraph 2 of the direction issued pursuant to subsection 145(1) of

the Code on February 23, 1996 by safety officer Mario Desrosiers to

Richard Fréchette Inc.

Decision delivered on June 17, 1996.

Serge Cadieux

Regional Safety Officer

APPENDIX

IN THE MATTER OF THE CANADA LABOUR CODE

PART II - OCCUPATIONAL SAFETY AND HEALTH

DIRECTION TO THE EMPLOYER UNDER SUBSECTION 145(1)

On February 6, 1996 the undersigned safety officer conducted an

inspection in the work place operated by Richard Fréchette Inc, being

an employer subject to the Canada Labour Code, Part II, at 5 rue des

Prés, Windsor, Quebec.

The said safety officer is of the opinion that the following provisions

of the Canada Labour Code, Part II, are being contravened:

1. Subsection 125(p) of the Canada Labour Code, Part II, and

subsection 2.12.(2) of the Canada Occupational Safety and Health

Regulations (COSHR).

There was scrap material in the garage.

2. Subsection 125(p) of the Canada Labour Code, Part II, and

subsection 2.12.(2) of the COSHR.

In the comptroller's and the dispatcher's offices there are boxes of

forms or equipment lying about the floor and interfering with normal

traffic.

3. Subsection 125(t) of the Canada Labour Code, Part II, and

paragraph 3.11(2)(b) of the COSHR.

In the garage, the portable ladder is not secured to the roofs of

the trailers.

4. Subsection 125(j) of the Canada Labour Code, Part II, and

paragraph 12.10(1)(a) of the COSHR.

In the garage, work is performed on the roofs of trailers without a

fall-protection system.

5. Subsection 125(g) of the Canada Labour Code, Part II, and

subsection 9.2(1) of the COSHR

The personal service room used by the mechanics is not in a sanitary

condition.

6. Subsection 125(g) of the Canada Labour Code, Part II, and

section 9.4 of the COSHR.

The mechanics' personal service room is cleaned less frequently than

prescribed by regulation.

7. Subsection 125(p) of the Canada Labour Code, Part II, and

section 9.8 of the COSHR.

The material stored in the mechanics' personal service room is not

kept in a closed cupboard.

8. Subsection 125.1(a) of the Canada Labour Code, Part II, and

subsection 10.31(1) of the COSHR.

No supplier material safety data sheets for controlled products.

9. Subsection 125(q) of the Canada Labour Code, Part II, and

section 10.27 of the COSHR.

No material safety data sheets for hazardous substances.

10. Subsection 125.1(c) of the Canada Labour Code, Part II, and

section 10.26 of the COSHR.

The portable motor oil containers must be identified with a work

place label.

11. Subsection 125(f) of the Canada Labour Code, Part II, and

section 16.7 of the COSHR.

The first aid kit used in the garage is noncompliant because it is

incomplete and unsanitary.

12. Subsection 135(8) of the Canada Labour Code, Part II.

Safety and health committee meetings are held less frequently than

prescribed by the Act.

Therefore, your are HEREBY DIRECTED, pursuant to subsection 145(1) of

the Canada Labour Code Part II, to terminate the contraventions no

later than March 12, 1996.

Issued at Montreal, this 23rd day of February 1996.

Mario Desrosiers

Safety Officer

Id No 1845

SUMMARY OF THE REGIONAL SAFETY OFFICER'S DECISION

Decision No: 96-014

Requester: Richard Fréchette Inc

Interested Party: Occupational Safety and Health Committee

KEYWORDS:

Criticism, control of work place, traffic, jurisdiction.

PROVISIONS:

Code: 125, 125(p), 145(1)

COSHR: 2.12(2), 14.49(2)(b)

SUMMARY

A safety officer noted a series of contraventions of the Code and the

Regulations in the work place of the above-named employer. He issued a

direction which was appealed on the grounds that the company no longer

controlled the work place because the work was subcontracted to a

company under provincial jurisdiction. The Regional Safety Officer is

of the opinion that at the time of the contraventions the work place

was in fact controlled by Richard Fréchette Inc, and accordingly

CONFIRMS the directions. A single contravention was RESCINDED. It

related to the presence of boxes being used for audit work, and it was

not possible to conclude from the information on record that they

interfered with traffic.