3111-99-HS Richard Paquin, Applicant v. Falconbridge Ltd., Charlie Kennedy, and Ministry of Labour, Responding Parties.
BEFORE: Brian McLean, Vice-Chair.
APPEARANCES: Richard Paquin and Maurice S. Durocher for the applicant; Doug Hamilton and Brian Abrams for Falconbridge Ltd.; Margo MacKinnon and Charlie Kennedy for the Ministry of Labour.
DECISION OF THE BOARD; July 31, 2000
This is an appeal under section 61(1) of the Occupational Health & Safety Act (the “Act”) of an inspector’s decision not to make an order against the employer.
A hearing was held in Toronto to consider the appeal on July 5, 2000.
Richard Paquin, the applicant, is an employee of Falconbridge at its Craig Mine. He is a worker member of the Joint Health and Safety Committee at the mine.
In or about 1999 Falconbridge decided that it may wish to use a new explosive, “bulk emulsive explosives”, at the Craig mine. While bulk emulsive explosives had been in use in mining generally for approximately 15 years, and had been used by Falconbridge at other mines, they had not been previously employed at the Craig Mine.
Although there was scant evidence led on this point, it appears the company contacted Maurice Durocher, a worker member of the joint health and safety committee, and advised him of its intentions. Mr. Durocher contacted the Ministry of Labour inspector, Charlie Kennedy, whose refusal to issue an order is the subject of this appeal. Based on Inspector Kennedy’s comments, Mr. Durocher decided to work with the company to develop a protocol for the testing or use of the bulk emulsive explosives. In addition, Mr. Durocher advised the company that Mr. Paquin was designated as the person to be present at the testing of the new explosive.
A third-party supplier, ETI, came into the Craig Mine and conducted tests of the bulk emulsive explosive. Mr. Paquin was not advised, as he understood he would be, that the tests were being conducted. Mr. Paquin learned of these tests on the morning of November 8, 1999. That afternoon he filed a complaint with the Ministry of Labour that a new product was being tested at Craig Mine without giving the joint health and safety committee the opportunity to be consulted and have a designated member present at the testing. He cited a violation of section 9(18)(f) of the Act.
Mr. Paquin did not lead any evidence about the nature of the testing which ETI undertook in November 1999. He simply had no knowledge of it. Inspector Kennedy testified that his understanding was that ETI’s testing was being done for the purpose of determining whether it was efficient to use the bulk emulsive explosives in the mine.
On January 7, 2000 a potential new explosives supplier made a presentation to Falconbridge employees, including members of the joint health and safety committee, about a new product. Inspector Kennedy was in attendance at this meeting. Following the meeting on January 10, Inspector Kennedy met with the some of the worker members and management members of the joint health and safety committee, but not Mr. Paquin who was otherwise occupied, to investigate Mr. Paquin’s complaint of November 8, 1999. Following his investigation, Inspector Kennedy decided not to issue an order. He testified to three reasons for his decision. First, he understood that the testing was to determine the efficiency of the explosives for use in the Craig mine and not health and safety testing, and that did not fall within section 9(18)(f). Second, he thought that if there was a concern, it lay with other workers who had a closer connection to the testing. Third, in light of what he saw took place at the January 7, 2000 meeting, he was of the view that Falconbridge voluntarily intended to comply with its obligations under the Act.
DECISION
The relevant provisions of the Act are:
(18) It is the function of a committee and it has power to,
(d) obtain information from the constructor or employer respecting,
(i) the identification of potential or existing hazards of materials, processes or equipment, and
(ii) health and safety experience and work practices and standards in similar or other industries of which the constructor or employer has knowledge;
(e) obtain information from the constructor or employer concerning the conducting or taking of tests of any equipment, machine, device, article, thing, material or biological, chemical or physical agent in or about a workplace for the purpose of occupational health and safety; and
(f) be consulted about, and have a designated member representing workers be present at the beginning of, testing referred to in clause (e) conducted in or about the workplace if the designated member believes his or her presence is required to ensure that valid testing procedures are used or to ensure that the test results are valid.
Subsections (d), (e) and (f) provide the means by which committees may gather information about materials, processes or equipment in the workplace. In this regard, subsection (d) permits the committee to gather information regarding, among other things, potential hazards. Subsection (e) permits the gathering of information regarding testing in or about a workplace, and (f) permits consultation and the presence of a designated member at such tests. The purpose of this information-gathering process is to assist the Committee in identifying and reducing potential workplace hazards and to generally improve health and safety in the workplace.
There are at least two ways to read subsection (e). The words “for the purpose of occupational health and safety” could be interpreted as modifying the purpose for which information is obtained. Under this interpretation, a committee could seek the results of (and be consulted and present for under subsection (f)) any test, so long as the purpose of seeking such information is health and safety related. A second interpretation, the one advanced by the Ministry and the company, makes subsection (e) applicable to only tests conducted for the purpose of occupational health and safety.
Whatever the correct interpretation of subsection (f) is, I find that it does not apply to testing whose only purpose is completely unrelated to health and safety. Subsections (e) and (f) must be read together. Subsection (f) permits the presence of a designated member “if the designated member believes his or her presence is required to ensure that valid testing procedures are used or to ensure that the test results are valid”. It would be an absurd interpretation to suggest that a health and safety committee member be present to determine if tests completely unrelated to health and safety are valid.
In addition, had the legislature intended subsections (e) and (f) to apply to any test, it need not have included the words “for the purpose of occupational health and safety” in subsection (e), or could have placed those words so that they directly modified the word “information”.
Mr. Paquin bears the onus in this case. The only evidence before me is that the testing in question was not being done for health and safety purposes but was only being conducted to determine if the product could be used efficiently in the Craig mine. The issue in this case, therefore, is whether under the circumstances Falconbridge was under an obligation to advise the joint health and safety committee of the tests in question so as to enable a worker member to attend. Given the fact that the only evidence before me is that there was no health and safety purpose or aspect whatsoever to the tests conducted by ETI for Falconbridge at the Craig mine, the applicant has not demonstrated that the company violated section 9(18)(f) of the Act. The inspector’s decision was therefore correct.
I feel some unease about the consequences which may flow from this decision. The company appears to have a worthy practice of advising the worker members of the health and safety committee about the testing of critical new products, particularly explosives, even if those tests are not health and safety tests. That is a sound practice which is worthwhile continuing, although the Board does not have the jurisdiction under section 9(18) to order that it be so continued.
For the foregoing reasons, this appeal is dismissed.
“Brian McLean”
for the Board