3335-98-HS W. McNaught, M. Bertoia and J. Mullins, Worker Committee Members Danforth Joint Health & Safety Committee, Applicants v. Toronto Transit Commission and Ministry of Labour, Responding Parties.
3415-98-HS W. McNaught, Applicant v. Toronto Transit Commission and K. Bender, Inspector, Ministry of Labour, Responding Parties.
0830-99-HS J. Mullins, W. McNaught and M. Bertoia , Worker Committee Members Danforth Joint Health & Safety Committee, Applicants v. Toronto Transit Commission and Ministry of Labour, Responding Parties.
1050-99-HS W. McNaught, M. Bertoia, J. Mullins and P. McFawn, Applicants v. Toronto Transit Commission and K. Bender, Inspector, Ministry of Labour, Responding Parties.
1052-99-HS W. McNaught, M. Bertoia, J. Mullins and C. Sweiger, Applicants v. Toronto Transit Commission and K. Bender, Inspector, Ministry of Labour, Responding Parties.
BEFORE: M. A. Nairn, Vice-Chair.
DECISION OF THE BOARD; March 3, 2000
By decision dated December 7, 1999 I made certain directions to the parties in respect of the conduct of this hearing. I have now received and reviewed those submissions.
This is a health and safety appeal. The issue is the refusal of the Inspector to make an order in respect of the brake pedal found on the RTS bus. While these parties are caught up in a number of other issues and proceedings before this Board and no doubt elsewhere, those other issues are irrelevant to this appeal. The issue is also not any alleged failure by the TTC to respond to asserted driver complaints or whether that alleged failure was improperly motivated.
Paragraph 6 of the December 7, 1999 decision noted that the applicants sought the right to file written statements from drivers as evidence, without the need to call those drivers as witnesses. The alternative asserted was that the applicants would seek to call every driver who had operated the RTS bus for the driver’s opinion as to the safe use and operation of the brake pedal. It was the applicants’ position that the drivers are constantly involved in unsafe situations as a result of problems with the brake pedal. It seemed unlikely however, that evidence of such a general nature would ultimately be of much assistance to the panel determining the health and safety issue. On the other hand, as noted in paragraph 3 of that decision, I was not prepared to conclude that the Board would necessarily accept the evidence of an ergonomist over the evidence of drivers. The issue is balancing the interests in having all parties able to assert their positions through evidence, while not allowing the scope of that evidence to expand to a point where it is of little value and unnecessarily and inappropriately lengthens the hearing. There were also production issues that remained depending on the scope of the proposed evidence.
The purpose of the directed submissions was to address these concerns prior to this matter proceeding to hearing. I note that both workplace parties addressed a number of their comments to the merits of each other’s assertions, as opposed to the procedural issue of how best the Board should entertain relevant evidence. I can only reiterate that the issue is the health and safety of the brake pedal on the RTS bus and that the Board will limit the parties to evidence that is relevant to that issue.
Having regard to the material filed by the parties I make the following observations and directions in respect of the conduct of this hearing:
(a) The applicant relies on evaluation reports provided to the TTC by drivers following their training on the RTS bus. Those evaluation reports were produced by the TTC. I have reviewed them and find five reports that make reference to the braking (excluding the maxi brake not in issue). The individuals having filed those comments are identified as J. Butler, Lucy Merrlles, M. Bertoia, Tony Papa, and J. Blood. Any of these individuals may give evidence concerning any health or safety concern of the brake pedal on the RTS bus, should the applicants so choose.
(b) The applicant relies on a petition asserted to have been completed in December 1999 regarding the RTS bus and alleged to have been presented to the Joint Health & Safety meeting on December 15, 1999. The individuals identified as having noted a health or safety concern regarding the brake pedal are K. Gallant, Chris Paterson, J. Wright, and Dan Garrison. Generalized references to leg or knee pain or a generalized reference to insufficient room is too remote a reference to warrant hearing evidence from certain other identified drivers. Any of these named individuals may give evidence in this proceeding should the applicants so choose. The petition is otherwise irrelevant to these proceedings as it deals with issues unrelated to the brake pedal.
(c) R. Peplinski (November 23, 1998), R. Maatman (November 27, 1998), and Cheryl Sweiger (December 9, 1998) filed Employee Safety Suggestion forms regarding the safe operation of the brake pedal. Cheryl Sweiger also filed an Occurrence Report dated December 2, 1999 regarding an incident allegedly involving the poor placement of the brake pedal. Any of these named individuals may give evidence in this proceeding, should the applicants so choose.
(d) The applicant has filed 22 Employee Safety Suggestion forms completed on various dates in April 1999. They are all of a general nature and do not appear to have been produced in the normal course of business. The applicants are directed to select no more than two representative witnesses from this group (any two), who will be allowed to give evidence representative of the general concerns expressed, on behalf of the group.
(e) The applicant has also filed 20 questionnaires regarding driver’s health and safety concerns on the RTS bus. Certain of those questionnaires identify specific reports, whether written or verbal, made to the TTC in the normal course. The applicant seeks production of those reports. On a review of the material provided by the applicant however not all of those reports relate to alleged problems with the brake pedal (for e.g. Dave Cornish – the September incident refers to an incident involving a mirror). The following identifies the relevant individual reports which the applicant seeks to have produced:
(i) David Furuya’s questionnaire states that he made a verbal report to Jim Thompson of the TTC on February 15, 1999 regarding the brake pedal. (The written report of April 23, 1999 referred to, appears to be the Employee Safety Suggestion form discussed in sub-paragraph (d) above and is already available.)
(ii) Larry Armstrong’s questionnaire states that he made a verbal report to the Assistant Superintendent following the filing of an Occupational Injury Report. The responding party asserts that the injury is unrelated to the rake pedal operation. It appears however that the verbal report is separate from the injury report.
(iii) Cheryl Sweiger’s questionnaire states that she made 3 written reports. Two of those reports (an Employee Safety Suggestion form dated December 9, 1998 and an Occurrence Form dated December 2, 1999 -#1740l) have been discussed above and are available. The remaining report is a second Employee Safety Suggestion form but no date is specified.
(iv) The applicant asserts that the TTC maintains records of all of these kinds of reports. There is no real suggestion by the TTC that it does not have such records. Therefore, the TTC is hereby directed to produce to the other parties and to the Board, no later than 15 days before the next day of hearing, any record relating to (i) a verbal report to Jim Thompson by David Furuya made on or about February 23, 1999 regarding the brake pedal; and (ii) a verbal report made to the Assistant Superintendent by Larry Armstrong following the filing of an Occupational Injury Report. If the applicant can provide a time frame within a period of four months either way, the TTC is also to produce any Employee Safety Suggestion form completed by Cheryl Sweiger other than one dated December 9, 1998.
(f) Cheryl Sweiger already falls within the group of named individuals able to testify. Subject to the material disclosed by the reports the panel hearing the case will determine whether or not David Furuya or Larry Armstrong may testify to any specific incident alleged.
(g) Other questionnaires are not sufficiently particularized or do not reference specific reports to the TTC regarding problems with the brake pedal so as to require the TTC to produce any further material. The remaining material provided by the questionnaires provides the same general information as referenced by the 22 Employee Safety Suggestion forms referenced in sub-paragraph (d) above. The applicants are directed to select one additional representative witness from this group who will be allowed to give evidence representative of the general concerns expressed, on behalf of the group. I note that there is some overlap between these groups. The essence of this direction is that the applicants will be entitled to call three representative witnesses in addition to those other named individuals, should they so choose.
- The hearing is scheduled for April 12, 13 and 14, 2000. This panel is not seized.
“M. A. Nairn”
for the Board