4260-98-HS Sudbury Mine Mill and Smelter Workers’ Union, Local 598/CAW and Moe Durocher, Applicants v. Falconbridge Ltd. and Ministry of Labour, Responding Parties.
BEFORE: Laura Trachuk, Vice-Chair.
APPEARANCES: Moe Durocher, Ernie Taylor for the applicant; Doug Hamilton, John Chenier and Mike Siemer for Falconbridge Ltd.; Stephen Mason and Rick Kulyski for Ministry of Labour.
DECISION OF THE BOARD; March 30, 2000
In a decision dated March 15, 1999, the Inspector declined to make an order directing that the incident referred to below was one which the responding party Falconbridge Ltd. (referred to as the "company") was required to report pursuant to s.53 of the Occupational Health and Safety Act (the “Act”)Act or section 21(5)(d) of the Mining Regulations. This is an appeal of that decision pursuant to section 61 of the Act.
Few of the facts relating to the relevant incident are in dispute. The Board therefore proceeded to hear the parties’ arguments on the basis of the materials in the file. The incident in question was a collision, underground, between a 40 ton haulage truck referred to as “T10” and a parked pick-up truck. There was one other truck in the area. At approximately 9:30 p.m. on February 27, 1999 the T10 truck turned a corner to pull up in front of a discharge chute. The driver of the T10 could not see that the pick-up truck was parked in front of the chute with its flashers and one strobe light on. The T10 hit the pick-up truck and pushed it two feet into a wall. There was damage to the front and rear of the truck and the appellants (referred to as the “union”) alleged at the hearing that the door would not open. In the supervisor’s report of the incident he indicated that there was inadequate lighting on the parked vehicle.
The driver of the pick-up truck was a mechanic who had made an unscheduled stop to assist another driver with opening the chute. He and the other driver were up on the roof at the time the collision occurred and did not hear the T10 truck.
The pick-up truck was taken to a dealership and repaired. The dealership reported to the Inspector that the damage was “minor and cosmetic as per industry standards”. The repairs cost approximately $3,000.00 including labour. The union alleged at the hearing that the dealership might have been motivated to under-report the damage but the Board finds no basis for such an allegation.
The union made a complaint to the Ministry of Labour claiming that the company had interfered with the Joint Health and Safety Committee’s (the “JHSC”) investigation of the matter and that it failed to report the accident to the Ministry. The Inspector met with the parties and issued an order finding that the company had violated the Act by interfering with the JHSC investigation. He noted that the health and safety policy at this company provides that the JHSC co-chairs decide which incidents should be investigated. Pursuant to this policy they had commenced an investigation of the accident. However, the company decided that they could not continue the investigation as the matter was not reportable under section 53 of the Act. The Inspector found that the company had violated section 25(2)(e) of the Act. by stopping the investigation. However, the Inspector also found that the company had not violated section 53 of the Act by not reporting the accident to the Ministry as the damage to the vehicle was not “major”.
The union argues that this accident should have been reported pursuant to the Act and Regulations as it had the potential for seriously injuring the employees who were in the area. It notes that the T10 driver did not see the pick-up truck and would not have seen the mechanic or the other truck driver if they were standing between the pick-up truck and the wall. It takes the position that section 53 of the Act requires the company to report any accident which has the potential for injury. It also argues that major damage occurred and the accident should therefore have been reported pursuant to Regulation 21(5)(d).
The Ministry of Labour argues that the Regulation modifies the requirement under section 53 to report motor vehicle accidents underground. The Regulation specifies that major damage to motor vehicles underground is reportable. As the damage in this case was not major it is not reportable. According to the Ministry, section 53 cannot be used to make the claim that regardless of section 21(5)(d) of the Regulations, accidents with minor damage are also reportable.
The company argues that the words in section 53 “as prescribed” modify the list which comes before it. Therefore, only those incidents set out in the Regulations are reportable. According to the company, any interpretation that would require the company to report accidents in which minor damage occurred would be absurd given the language of the Regulations. It urges the Board to avoid an interpretation of the legislation which would result in an absurdity. The company referred the Board to Statutory Interpretation R. Sullivan, (Irwin Law, Concord, 1997); Dreidger on the Construction of Statutes (3d ed) (Butterworths, Toronto, 1994) and Ontario v. C.P. 1995 CanLII 112 (SCC), [1995] 2 S.C.R. 1031.
The Ministry does not agree that the words “as prescribed” refer to the list proceeding them. It takes the position that they mean “in addition to” and are not applicable to these facts.
Decision
The relevant provisions of the Act and Regulations are as follows:
(1) Where a person is killed or critically injured from any cause at a workplace, the constructor, if any, and the employer shall notify an inspector, and the committee, health and safety representative and trade union, if any, immediately of the occurrence by telephone, telegram or other direct means and the employer shall, within forty-eight hours after the occurrence, send to a Director a written report of the circumstances of the occurrence containing such information and particulars as the regulations prescribe.
(1) Where an accident, explosion or fire causes injury to a person at a workplace whereby the person is disabled from performing his or her usual work or requires medical attention, and such occurrence does not cause death or critical injury to any person, the employer shall give notice in writing, within four days of the occurrence, to a Director, and to the committee, health and safety representative and trade union, if any, containing such information and particulars as are prescribed.
Where a notice or report is not required under section 51 or 52 and an accident, premature or unexpected explosion, fire, flood or inrush of water, failure of any equipment, machine, device, article or thing, cave-in, subsidence, rockburst, or other incident as prescribed occurs at a project site, mine or mining plant, notice in writing of the occurrence shall be given to a Director and to the committee, health and safety representative and trade union, if any, by the constructor of the project or the owner of the mine or mining plant within two days of the occurrence containing such information and particulars as are prescribed.
Regulation
- (5) In addition to the occurrences referred to in section 53 of the Act, a notice in writing shall be given where,
(d) a major failure or major damage occurs or is caused to electrical equipment, standard gauge railway equipment, a crane or a motor vehicle underground.
[emphasis added]
The provisions outlined above provide a conundrum. Section 53 sets out broad requirements for constructors or owners of mines to report conditions that occur in a mine or project site. That section arguably requires the company to report the circumstances of this case since one vehicle colliding with another is generally considered to be “an accident”. The Ministry and the company argue however, that Regulation 21(5)(d) addresses these very circumstances and must therefore be considered to be a limitation on the general requirement in section 53. If one reads Regulation 21(5)(d) alone one might reach that conclusion. It requires the company to give notice in writing when major damage occurs or is caused to a motor vehicle underground. The company and the Ministry argue that if the company is required by the Regulation to report major damage to motor vehicles underground it would be an absurdity to interpret section 53 as requiring the company to report any accident involving a motor vehicle. However, the beginning of Regulation 21(5) says “in addition to the occurrences referred to in section 53 of the Act, a notice in writing shall be given where…” It is not possible for a limitation on a statutory requirement to be “in addition to” that statutory requirement. If the Board were to interpret the regulation as suggested by the Ministry and the company I would have to read the words “in addition to” as meaning their opposite i.e. “instead of”. The Board cannot, and should not, rewrite the Regulation in that way. For one thing, some of the conditions listed in Regulation 25 are unquestionably “in addition to” the list in section 53 of the Act, for example, “flammable gas is present in a workplace in an underground mine”. Furthermore, the two provisions are not inconsistent if section 25(5)(d) is interpreted as requiring a company to report major damage to a motor vehicle underground which is not caused by an accident, for example, damage caused by falling rock or sabotage. That may not be the most plausible interpretation and it is at least as likely that the legislature wanted to make it clear that certain kinds of incidents are included in section 53 without limiting that section.
In any case, if section 53 and the Regulations are in conflict, the statutory requirement must prevail. Furthermore, faced with such a conundrum in the interpretation of the statute and Regulations, the Board must take into account that the Occupational Health and Safety Act is a quintessential example of remedial legislation and must therefore receive such “fair, large and liberal construction and interpretation as will best ensure the attainment of the Act according to its true intent, meaning and spirit” (Interpretation Act R.S.O. 1990, c. I.11, s.10). In this case, the statutory requirement to report conditions in a mine or project site to the Director is also the statutory requirement to report those conditions to a Joint Health and Safety Committee. A JHSC may be entitled to inquire into an incident with health and safety ramifications even if the incident is not reportable under the Act. However, the committee would not necessarily know of the circumstances if there is no requirement to inform it. The parties’ joint responsibility for health and safety is one of the cornerstones of the scheme of the Act and the Board should adopt an interpretation consistent with that scheme. In this case, for example, the JHSC was already concerned about lighting on stationary vehicles underground and it therefore needed to be informed of this accident (see Board File No. 3608-98-HS). Even seemingly minor incidents can alert parties to potential health and safety problems and therefore, given a choice about how to interpret the reporting requirements under the Act, it is appropriate to choose the interpretation which requires a greater, rather than a more restricted, exchange of information. The Board therefore finds that this “accident” should have been reported.
DISPOSITION
- Having regard to the foregoing I am satisfied that section 53 of the Act requires that the accident of February 27, 1999 be reported. The appeal is therefore allowed pursuant to section 61(4) of the Act. The company is hereby directed to report the matter to the Director as required by section 53.
“Laura Trachuk”
for the Board