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 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.

1050-99-HS W. McNaught, M. Bertoia, J. Mullins and P. McFawn, Applicants v. Toronto Transit Commission and Ministry of Labour, Responding Parties.

1052-99-HS W. McNaught, M. Bertoia, J. Mullins and C. Sweiger, Applicant v. Toronto Transit Commission and Ministry of Labour, Responding Parties.

BEFORE: Laura Trachuk, Vice-Chair.

APPEARANCES: W. McNaught, Peter McFawn, Jim Mullins, Cheryl Sweiger and Barry Goldman for the applicants; Douglas R. Gray, Scott Williams, Shelagh Quigley and Dan Haffy for Toronto Transit Commission; Bruce Arnott and Anna Fliegl for the Ministry of Labour.

DECISION OF THE BOARD; November 15, 2000

1These are five applications under the Occupational Health and Safety Act (“Act”) relating to the configuration of the brake pedal and space envelope on Nova RTS buses. The application in Board File No. 3335-98-HS was filed on December 24, 1998 and is an appeal of a decision by a Ministry of Labour Ergonomics Consultant not to make an order. He found that the size of the brake envelope on Nova RTS buses is sufficient and not likely to endanger a worker. The Premise Project form being appealed is No. 813883. The application in Board File No. 3415-98-HS was filed on December 31, 1998. It is also an appeal of the Ergonomist’s decision in Premise Project form No. 813883 not to issue an order. However this appeal appears to be signed by 35 employees. The application in Board File No. 0830-99-HS was filed on June 17, 1999. It is an appeal of a decision by an Inspector not to issue an order after investigating a work refusal by Mr. Mullins with respect to the brake pedal configuration (Project Premise Report No. 885904). The application in Board File No. 1050-99-HS was filed on July 7, 1999. It is an appeal of a decision by an Inspector not to issue an order after a work refusal by Mr. McFawn (Project Premise Report No. 885903). The application in Board File No. 1052-99-HS was also filed on July 7, 1999. It is also an appeal of a decision by an Inspector not to issue an order after a work refusal, this time by Ms. Sweiger (Project Premise Report No. 885905). An Ergonomist’s report was attached to the last two Project Premise Reports, Nos. 885903 and 885905.

2At the outset of the hearing, counsel for the Ministry indicated that he was withdrawing and would not participate in the hearing but that he would return at the appropriate time to explain the conclusions of the Ministry’s Ergonomists. The Ministry therefore did not participate except to call one if its ergonomics consultants to testify after all of the other evidence had been submitted.

3All of the Inspectors’ decisions and the Ergonomists' reports find that the size of the brake pedal and space envelope on the Nova RTS buses is sufficient and is not likely to endanger the health and safety of the worker. All of these appeals are a challenge to those findings and they were therefore all heard together.

4The hearing took six days and the Board heard evidence from fourteen witnesses. Nine witnesses were called by the appellants, four were called by the responding party (referred to as the Commission) and one was called by the Ministry. The Board also took a view of three different models of buses and in particular of their brake envelopes.

Background Facts

5The Commission purchased approximately 50 buses from the Nova Bus company located in Roswell, Texas. The Commission had an opportunity to review the bus for approximately one year prior to purchasing it. There are currently eighteen models of buses used by the Commission with twenty-four subgroups plus four models of Wheel Trans vehicles. It has approximately 1,500 buses in operation. The Nova RTS buses were delivered to the Commission’s Danforth Division in October 1998 where they are mainly used on seven routes. The special feature of the buses is that they are wheel chair accessible at the back door. The drivers at the Danforth location were given approximately two to two and a half hours of classroom training with respect to the new buses as well as approximately one to one and a half hours in the bus in the yard and another one to one and a half hours on the road. Each operator had the opportunity to drive the bus for approximately ten minutes.

6At the end of the training session drivers were asked to sign a form which included a place for comments. Many comments were received but few referred to the brakes.

7Shortly after the buses began to be used, it appears the appellant Mr. McNaught, (who did not testify) became concerned that the brake envelope was too small. He had a number of other ergonomic concerns with the buses, but his main concern with the brakes was that there was insufficient room for a driver to move his or her foot from the accelerator to the brake in an emergency and that drivers would hit their foot against the panel situated behind the pedals. Three Employee Safety Suggestion forms had been given to the Health and Safety Committee with respect to that issue by the end of November, 1998. Mr. McNaught, who was on the Health and Safety Committee at the time, therefore complained to the Ministry of Labour. That complaint ultimately led to Premise Project Order No. 813883. The Inspector assigned to the matter asked an Ergonomist from the Ministry, Kevin Bender, to assist him. Mr. Bender measured the brake envelope and determined that there was enough room and that the configuration was unlikely to endanger a worker. The Inspector had arranged previously for the Commission to post information about the correct positioning of the foot on the brake pedals. The first two appeals were then filed in December, 1998 with respect to the Premise Project form containing the Ergonomist’s findings.

8In April 1999, Mr. McNaught solicited Employee Safety Suggestions complaining about the brakes from a number of workers. Subsequently in the space of a few weeks in June and July, 1999 there were three work refusals with respect to the brakes. The Inspector dealing with the work refusals by Mr. McFawn and Ms. Sweiger asked another one of the Ministry’s Ergonomists, Peg Scherzinger, to assist with the matter. Ms. Scherzinger also decided that the size of the brake envelope was sufficient and unlikely to endanger a worker and two of the other three appeals were filed as a result. The Board heard no evidence about Mr. Mullins' work refusal and his subsequent appeal

9The Nova RTS bus has a 9 1/4 inch brake pedal. At the bottom of the pedal is a heel rest. At the back of the brakes is a panel. The distance from the floor at the bottom of the heel rest along the pedal to the wall is 14.5 inches. The distance from the bottom of the heel rest to the wall is 14 inches. The other models of buses used by the Commission have longer brake pedals and larger brake envelopes. At least one of them has a heel rest.

The Evidence

10In a decision dated March 3, 2000 the Board (differently constituted) ruled on the number of witnesses the appellants could call in these matters. Not all of the witnesses identified in that decision testified.

11Mr. McNaught represented the appellants in these applications except during the examination of the first witness. Mr. Goldman conducted the examination of Ms. Jesseau who was the first witness called by the appellants. Ms. Jesseau was a member of the Occupational Health and Safety Committee in the fall of 1999. She testified with respect to a message she received from Mr. Mullins informing her that a work refusal was going to occur the next day. She reported this to the Commission’s management and testified that she was subsequently threatened and harassed by the appellants, Mr. McNaught, Mr. Mullins and Mr. Bertoia. None of those appellants testified. The decision of the appellants to call Ms. Jesseau as a witness was puzzling as the work refusal she was referring to is not part of this case although one of the applications relates to a different work refusal by Mr. Mullins himself. It appears that counsel for the appellants may have believed that correspondence sent from the Commission to the Board prior to the commencement of the hearing referring to Ms. Jesseau’s situation, was somehow evidence already before the Board. At the end of Ms. Jesseau’s evidence, counsel for the appellants asked the Board to disregard her testimony as irrelevant. However, as the appellants called Ms. Jesseau as their witness, the Board declined to disregard her testimony. Nevertheless, there was little that Ms. Jesseau said that bore directly on the facts of this case except her testimony that she had never had any problems with the brakes on the Nova RTS bus.

12Ms. Jesseau stated that she does not drive with her heel on the heel rest and that she keeps her foot suspended above the brake and uses the ball of her foot to depress the pedal. She testified that it does not take a great deal of pressure to depress the air brakes and that she can tell by the hissing sound when they are activated. [The hissing sound may actually occur when the brakes is released.] She also testified that she had to push down on the brake in a manner she did not have to use with the other models of buses. However, after readjusting the seat she has had no problems with the brake pedal even when she has to stop in a hurry. Her shoe size is five and a half. She testified that no one has complained to her about the Nova RTS buses as a member of the Health and Safety Committee. However, she has heard Mr. McNaught and few other drivers complain. Her testimony did indicate that one of appellants in these matters, Mr. Mullins, was prepared to abuse the work refusal provisions of the Act.

13The next witnesses called by the appellants were more germane to the matters before the Board in this case.

14Peter McFawn, one of the appellants in Board File No.1050-99-HS, testified that when he is driving the Nova RTS buses he cannot apply the brake with his heel on the floor. He cannot fit his whole foot on the brake and his foot extends over the top. He can apply the brakes with his heel on the floor on the other buses and he can keep his whole foot on the brake. He testified that he finds it difficult to bring the bus to a stop due to the brake valve. He explained that it is difficult to get an even application of the brakes without thinking about where his foot is. He also said he finds it difficult to gauge whether he is putting enough pressure on the brake to stop the bus from rolling.

15Mr. McFawn testified that he circulated a petition to the operators with respect to the Nova RTS buses in the fall of 1998. The petition he refers to was introduced in evidence. It lists six complaints, however none of them relate to the brakes. Operators were asked to sign the petition and were given an opportunity to make a comment beside their names. 104 drivers signed the petition. Of all of those who signed, one commented that the brakes were too high and one noted that more foot room was needed. One driver indicated that he has had sore legs from driving the vehicles and another said he had sore knees. Those were the only comments that could be attributed to the brakes in any way. Mr. McFawn himself never mentions the brakes on the petition.

16Mr. McFawn testified about the work refusal he initiated on June 3, 1999. He explained that he was pulling out from the traffic light heading south at Sherbourne and Bloor and that a pedestrian walked into the path of the vehicle from the closed (driver’s) side. He quickly moved his foot from the accelerator to the brake but his toe caught the back panel preventing a full brake application. He readjusted his foot and stopped the vehicle without hitting the pedestrian. He then initiated a work refusal by calling into the Division. He asked for a different bus but indicated he would continue on the route until the new bus was delivered at Queen’s Quay. The stage one meeting occurred there. Mr. Cummerford attended for the Commission and Mr. Mullins attended as the worker representative. Mr. McFawn testified that Mr. Bertoia just happened to be across the street and that he also attended. At the stage two meeting (which was also the stage two meeting for Ms. Sweiger’s work refusal, (see paragraph 35) a Ministry of Labour Inspector attended along with the Ergonomist Ms. Scherzinger. The first part of the meeting took place in a board room and the second part took place in a Nova RTS bus on the road. Ms. Scherzinger observed Mr. McFawn do two quick brake applications. Mr. McFawn claims that both times his toe hit the back panel. Ms. Scherzinger recorded the size of the brake envelope and indicated that a report would follow. On June 16, Mr. McFawn received the Premise Project form No. 885903 which refers to the earlier report from Ergonomist Bender and attaches the report from Ergonomist Scherzinger. The Inspector finds that “Access to the brake pedal is adequate and not likely to endanger a worker”.

17Ms. Scherzinger’s report found that there was “…sufficient clearance to operate the brake when the driver’s foot is positioned on the heel plate.” She also found that “…the brake could be effectively operated with the driver’s heel located on the heel plate.” She relies, as did Mr. Bender, on a book entitled Human Scale 7/8/9, Diffrient, N., Tilley A. R., Harmon D., (Henry Dreyfuss Associates, MIT Press, Cambridge MA, 1991) in determining that the minimum toe clearance required to accommodate a large boot used to operate the brake is 14.5 inches. According to Ms. Scherzinger’s measurements there were 14.5 inches clearance from the bottom edge of the heel plate to the panel (Ergonomist Bender found the same measurement. The Board found it was 14.5 inches from the floor at the base of the heel plate to the panel.) The report indicates that Mr. McFawn was operating the panel with his foot completely on the brake pedal which was how he operated the Flyer bus which Ms. Scherzinger also observed. She notes that if the brakes on the Nova RTS bus are operated in the same way there is insufficient clearance for the toe. The brakes therefore need to be operated using the heel rest. She asserts that the brake can be activated from immediately above the pivot point which is two inches from the bottom of the brake pedal so the brakes can be operated using the heel rest. In reaching these conclusions she also relied upon information which had been provided to her by the Commission’s engineering department.

18Richard Peplinski testified that the brake pedal on the Nova RTS buses is different from the other buses and requires a different mode of application. He explained that he has trouble in applying the brakes in the way he is used to doing. He identified an “Employee’s Safety Suggestion” form he filled out on November 23, 1998, shortly after he started driving the Nova RTS buses, which indicated that he almost had an accident “when I could not apply as much brake pressure as I wanted because the toe of my boot came up against a panel too close to the brake pedal.” He went on to note “In some situations where a quick reaction becomes necessary this condition could be serious.” He filed another “Employee’s Safety Suggestion” in April 1999. He did not actually date the report himself and it appears to be one of a number solicited from employees by Mr. McNaught on or about April 9, 1999. In this one Mr. Peplinski states: “I have not noticed any improvements in braking 7200 [Nova RTS] buses. Sometimes my toe still contacts panel close to top of brake pedal – especially when sudden or unexpected braking is required or greater than normal pressure needs to be used.” Mr. Peplinski has no recollection of anyone from the Commission discussing the Employee Safety Suggestion with him.

19Mr. Peplinski testified that he has also experienced the bus rolling forward if he does not apply enough pressure to the brake. According to him, it requires considerably more pressure to hold the Nova RTS buses in a stopped position. When he drives the other buses he finds that just keeping his foot on the pedal will hold them in a stopped position. He testified that the possibility of hitting the back panel could be hazardous in an emergency situation if one did not have time to restart the brake application.

20In cross-examination Mr. Peplinski agreed that he sometimes drives with his heel on the heel plate and that if he does so his toe will not hit the back panel. He suggested that in an emergency he would not get much “braking” that way. However he acknowledged that the brakes were air brakes which were engaged when the valve was released. In re-examination he indicated that the Nova RTS brakes require more pressure than the brakes on the other buses which was why he did not feel comfortable using the heel plate for the purpose for which it was designed. According to Mr. Peplinski, one needs strong leg muscles to drive with one’s heel on the heel plate. If the bus is loaded it takes a great deal of energy to apply the brake with the heel on the plate so he sometimes moves his foot up on the pedal. The Board notes that there was no evidence that anyone discussed seat adjustment with Mr. Peplinski.

21Robert Maatman testified that he finds that his toe hits the panel at the back of the brake pedal when he applies downward pressure on the brake. He is of the view that this could cause a serious situation if he had to apply the brakes in an emergency. He has found that the bus has rolled past the point at which he intended it to stop. He identified an “Employee’s Safety Suggestion” form he filled out on November 27, 1998 which was signed by Mr. McNaught on behalf of the Health and Safety Committee. He wrote:

Brake pedal on Nova R.T.S. bus and 6300,6400 series Flyer buses.

This operator has experienced difficulty applying brake smoothly and safely because of obstruction. Many instances where my foot has butted against “wall” to the fore of brake pedal, resulting in unsafe or improper application of brakes.

22Mr. Maatman also submitted an “Employee Safety Suggestion” form to Mr. McNaught in April 1999 in which he reiterates that he has had difficulty in making braking applications due to the obstruction behind the brake pedal and that this causes unsafe braking and the potential for collisions and other contacts. He denies that Mr. McNaught had anything to do with this complaint which just happened to be filed in the same few days as all of the other complaints that Mr. McNaught apparently did solicit. Mr. McNaught signed the report as the health and safety representative who received it.

23Mr. Maatman testified that he has also on encountered an obstruction on the Flyer 6300 and 6400 buses on occasion.

24Mr. Maatman testified that he would have preferred more training behind the wheel before driving the bus and that he indicated that to the Commission on the form the employees were asked to sign after their training.

25Mr. Maatman demonstrated that if he held his foot only on the brake pedal he might hit the panel at the back of it. However, if he kept his foot on the heel rest it appears that that would not happen. He was of the view however, that having his full foot on the brake pedal would result in a better application of the brake in an emergency situation.

26Patricia Kent testified that she finds that her foot regularly hits the back panel when she applies the brakes on the Nova RTS buses. She identified a questionnaire which she filled out that appears to have been prepared by Mr. McNaught. She indicates that she never complained about the brake pedal as she did not think that anything could be done about it.

27Ms. Kent indicated that she does not usually drive with her foot on the heel plate. She seems to be aware that the bus has an air brake and the hissing sound which occurs when she depresses the pedal indicates that the brake has been engaged. However, she also seems to be of the view that she needs to have her foot fully on the brake to “take advantage of the complete braking system”.

28Larry Armstrong was one of the individuals who signed the appeal in Board File No. 3415-98-HS. He also signed the petition circulated to by Mr. McFawn. He wrote on that petition that the bus has an “atrocious blind spot”. He testified that he operates the bus with his foot completely on the pedal and that his heel gets caught in the gap between the heel plate and the brake pedal. He testified that he has his foot entirely on the brake in order to have proper control. He stated that he cannot deploy the brake with his foot on the heel rest.

29He testified that he complained to the assistant superintendent about the blind spots on the bus and that he asked Mr. McNaught to put his concerns in a report. Mr. McNaught advised him to fill out an injury report. The injury report indicates that he experienced lower left back pain after driving the Nova RTS buses. He attributes the pain to twisting to avoid blind spots. Mr. Armstrong uses his seniority to bid for routes where the Nova RTS buses are less likely to be used.

30Karen Gallant testified that she has to adjust the seat so that she can apply more brake pressure on the pedal in the Nova RTS buses. She drives with her whole foot resting on the pedal and applies pressure with the ball of her foot. She testified that if she puts her foot on the heel rest she cannot apply enough pressure on the brake. She said that on occasion she has hit the back pedal with her toe and has had to reapply the brake.

31Ms. Gallant noted on the petition circulated by Mr. McFawn that the “gas pedals/brake were too high”. She explained that she has to raise her leg higher to brake.

32Cheryl Sweiger testified with respect to the appeal in Board File No. 1052-99-HS relating to her work refusal. She testified that she does not have the strength to apply the brake on the Nova RTS buses with her heel on the heel plate. She sits with her foot high on the brake on both the Nova RTS buses and the other buses. She therefore frequently hits the back panel when braking and has had to adjust her foot down. She testified that defensive driving requires her to cover the brake with her foot when not accelerating. She also testified that the problem is worse in the winter when she is wearing boots.

33Ms. Sweiger testified that on December 9, 1998 she submitted an Employee’s Safety Suggestion Form which said:

When applying brakes on 7200 series buses I have thought I was experiencing brake failure and then discovered that the front of my shoe was contacting the partition located directly ahead of brake and power pedals.

34She testified that she submitted the form after an incident in which she was following another bus. The other bus stopped causing her to follow suit. However, when she tried to stop she thought the brakes had failed. She took her foot off the brake and hit it again thereby engaging it. She then realized that it had not worked the first time because her toe hit the back panel.

35She testified that she had ongoing discussions with John Chamberlain, the assistant superintendent at the Danforth Division, as there were ongoing problems with the Nova RTS bus. However, no changes were made.

36On June 8, 1999, Ms. Sweiger initiated a work refusal after her toe hit the back plate twice in a short period of driving, once at an intersection and once at a cross walk. Peter Bonspiel attended the work refusal as the manager representative and Mr. McNaught attended as the worker representative. At the stage two meeting, Ms. Scherzinger, the Ministry of Labour Ergonomist, and Health and Safety Inspector Anna Ballon attended. Three other management representatives of the TTC including David Gibson attended. Peter McFawn, who had also recently had a work refusal, attended as the stage two meeting for both refusals was conducted at the same time (see paragraph 16 above). Ms. Sweeter testified that during the stage two investigation she drove the bus and demonstrated how her toe hit the back panel. She testified that Mr. Gibson acknowledged that she did not have the strength to apply the brakes with her heel on the heel plate. Mr. Gibson testified and denies that he acknowledged that. He says that he observed her depress the brake with her heel on the heel plate. Mr. Gibson also says that Ms. Sweeter agreed that the seat adjustment made a difference with respect to her ability to brake. She denies that and says she may have acknowledged that the seat felt better but it did not improve the braking problem. She denies that she can stop the bus unless her foot is completely over the pedal.

37The Inspector found in Premise Project form No. 885995 issued on June 18, 1999, that “Access to the brake pedal on Nova RTS Bus 7200 adequate and not likely to endanger a worker.” The report refers to Inspector Bender’s determination in December, 1998 and Ergonomist Scherzinger’s report was attached, as well as materials which had been provided by the Commission with respect to the application of the brake.

38Ms. Scherzinger’s report indicates that she considered whether the proper application of the brake was possible using the heel plate even for a foot Ms. Sweiger’s size. She finds, based on information provided by the Commission, that the pivot for the brake is two inches from the bottom of the brake pedal and the point at which it felt comfortable to apply the brake is two inches above that i.e. four inches from the bottom of the brake pedal. She also finds that the ball of Ms. Sweiger’s foot is 7 5/8 inches from the heel. Therefore she finds that there is no reason the heel plate should not be used. If it is used that there is “sufficient clearance for the driver’s foot to operate the brake pedal on the Nova RTS bus.” Ms. Sweiger testified that she disagreed with the report as she is unable to use the heel plate and finds that the back plate is an obstruction for her toe.

39Ms. Sweiger is also one of the employees who provided Mr. McNaught with an Employee’s Safety Suggestion on April 12, 1999. She states “7200’s – steel plate behind brake pedal interferes with proper braking…”.

40Paul Edgecumbe testified that his foot encounters the back panel during almost 100 per cent of his brake applications especially when he is wearing boots. He testified that he tried a number of positions to avoid the problem. He also feels that there is not as much leverage if he has to put his foot lower on the pedal or the heel rest. He testified further that the brakes seem stiffer. He signed the petition circulated by Mr. McFawn and referred to in paragraph 13. He noted on it “steering wheel too high”. He signed the appeal in File No. 3415-98-HS. He also identified a questionnaire that he filled out in which he referred to the problems he was experiencing with the brake. No explanation was provided as to where the questionnaire came from or where it went. He testified that having to use the ball of his foot to brake plus the stiffness of the brake, hurt his knee. He also testified that it has become easier to use the brake as it is not as stiff. He does not know where the valve for the air brake was located on the pedal.

41He explained in cross-examination that he does not put his heel on the heel rest. He rests his heel on the floor then lifts it when he uses the ball of his foot to depress the brake. When he demonstrated this application with the model in the hearing his toe did not touch the back panel. However he testified that it touches consistently when he drives the bus.

42Georges Hunt testified for the company. He is the Manager of Product Quality Engineering for Nova Bus Inc. He has held that position since Nova Bus merged with his former employer, Motor Coach Industries. The facility where he works is in Roswell, New Mexico. His responsibilities include providing engineering support to the service department to investigate problems in the field. If there is a complaint which is not a maintenance issue he will be asked to investigate. He testified that the Nova RTS bus has a wide front door model and a narrow front door model. The Commission purchased the wide front door model. He testified that there are approximately 1,000 wide front door models currently in service. There are 21,000 narrow front door models in service. However, in cross-examination he acknowledged that not all of the wide front door models have the same brake configuration as the Toronto buses. The wide front door models are in service in a number of cities including Dallas and San Francisco. The narrow front door model is in service in New York and Phoenix among other cities. The narrow front door model has a straight panel behind the pedal and the wide front door model has a slanted panel. He testified that he has never been informed of any complaint with respect to the brake configuration or the size of the brake pedal on the Nova RTS bus except for these appeals.

43Mr. Hunt explained the working of the foot valve and the air brake system. He explained that the valve is under the floor. When an operator applies pressure to the brake pedal it applies pressure on the valve which opens and supplies air to the brakes. He said that little pressure was necessary to open up the valve. He denied that additional pressure is necessary to stop quickly because once the valve is open the system takes over. He indicated that it might feel like you want to apply more pressure but that it would have no effect on the brake. If the valve is partially open it slows the bus and when it is fully open it stops the bus. Once it is open more pressure will not stop the bus any faster.

44Mr. Hunt explained the proper application of the brake which he called “feathering the brake”. This involves leaving the heel on the floor and moving the toe from the gas to the brake, lightly touching the brake to release the valve. His toe did not touch the back panel. He also explained the application in a panic stop in which the heel would leave the floor when the ball of the foot applied the brake but the toe would not move up to hit the back panel.

45Mr. Hunt testified under cross-examination that it might be possible to retrofit the Nova RTS bus without the heel plate and with an 11inch pedal but that that would change the design entirely. As he had never tried it, he could not speculate upon what would be required. He testified however that the lower portion of the brake on an 11inch pedal does not help apply the brakes and that the lever action is the same whether it is a longer brake or a heel plate. The pressure of the foot in both cases is in the same position. He was also asked if it would be possible to retrofit the bus to provide for a 16 inch space envelope and he replied that he did not know and had not been asked by the Commission to determine what would be required.

46Mr. Hunt testified that the brakes on each bus are tested according to a North American standard. He was unaware of any testing done with respect to brake application.

47In response to a question from the Board, Mr. Hunt advised that, in his opinion, if a driver’s foot is hitting the back panel it is a result of inadequate driver training, seat adjustment or driver error.

48Mr. Hunt was asked by Mr. McNaught whether the 16 inch space envelope for the pedal area required by Human Scale, supra for construction and industrial equipment is applicable to the bus. He denied it. He said that the company uses the scale provided by the Society of Automotive Engineers for manikins but that he was not aware of a drawing similar to the one shown by Mr. McNaught for construction and industrial equipment outlining the required or ideal space envelope for the pedal area on buses.

49Mr. Hunt reiterated that extra space behind the pedal was not necessary as driver training ensured that the foot was in the proper place on the heel plate and pedal to avoid hitting the back panel.

50Mr. Hunt explained that it did not matter whether there is an 11 inch brake pedal or a shorter pedal with a heel rest because what was significant was the point at which the foot depresses the brake vis-a-vis the hinge that opens the valve to allow air to the brakes. In both the RTS and the Flyer bus that the applicants are using for comparison, there is the same distance. Therefore, the fact that the brake on the Flyer bus is longer before the valve does not matter. In fact, according to Mr. Hunt, the longer pedal detracts from the force applied.

51John Chamberlain testified for the Commission. He was an assistant superintendent at the Danforth Division when the Nova RTS buses were delivered. He denied that Larry Armstrong ever complained to him about the brake pedal on the Nova RTS bus although he did complain to him about the blind spots on the vehicle and the effect on his back and neck. He referred this complaint to the Operation Hygiene section and suggested that an ergonomic study of the vehicle be done. It had been not completed when he left the division.

52In cross-examination Mr. Chamberlain testified that operators had complained to him that they had not had enough training time actually driving the bus. He referred those concerns to the Operations Training Centre but was advised that the training had been sufficient for familiarization with the vehicle. He also advised them that he had had a complaint about an operator’s toes hitting the back panel.

53David Gibson testified for the company. He has been an instructor in the training department for 12 years. He has trained about 3,000 operators, including training with respect to various braking systems and in the use of new vehicles. He testified that it is normal for there to be an adjustment period of between two to six months when a new vehicle is introduced. During that period it is not unusual to receive complaints from operators including complaints that there should be more training time driving the bus. In cross-examination he testified that it was not his decision as to whether there should be more training but that that was a decision for the Transportation Department to make. He said that Mr. Chamberlain did not get in touch with him personally about further training. He explained that such a decision would usually be made above his level.

54Mr. Gibson is licensed to teach a course on air brakes. He testified that to engage the air brakes on the Nova RTS bus one must depress it one third of the way or ½ to ¾ of an inch. He testified that all new operators take an air brake course in which they learn how air brakes work. In any training on a new vehicle they would learn about anything different with respect to the air brakes on those vehicles.

55Mr. Gibson was involved in training the operators on the Nova RTS buses. The company had a Nova RTS bus on loan from New York transit for about a year and he became familiar with it after driving it approximately eight or nine hours during that time. It had the same braking system as the buses finally delivered and he had no concerns with respect to the length of the brake pedal, the heel rest, or the distance from the pedal to the bulk head. He has size 13 shoes and testified that his toes never touched the back panel. After the Nova RTS buses were delivered he drove them approximately 10 hours per week for five weeks. Six people were trained to train the operators. Over 300 operators were trained. Mr. Gibson trained 40 or 50 himself. He did not provide much detail as to what the training entailed but did inform the Board that it included all of the driver’s compartment including the pedals. Seat adjustment was discussed. He testified that he did not personally see anyone’s toe hitting the back panel but that it was mentioned by someone whose name he could not remember. His response was to suggest that the seat be adjusted. People with smaller feet should have the seat up higher and people with bigger feet should have the seat pushed back. (The Nova RTS buses have the same adjustable seats as all of the Commission’s other buses.) Mr. Gibson testified that he has found that seat adjustment affects how the brakes are used.

56Mr. Gibson testified that he became involved in the work refusals of Mr. McFawn and Ms. Sweiger somewhat late in the process. He was called in to provide advice on how they could adjust the seat and how to use the pedals. He denied that he acknowledged that Ms. Sweiger did not have the strength to apply the brakes if she uses the heel rest. He also denied that he witnessed either Mr. McFawn’s or Ms. Sweiger’s toe hit the panel or that he heard Ms. Scherzinger say that she observed it. He was sitting on the open (non-driver’s) side of the vehicle three seats back. He could not specifically recall observing Ms. Sweiger depressing the pedal with her heel on the heel plate. He testified that he asked Ms. Sweiger to show him how she adjusted the seat. He found it slightly high and back and suggested that she bring it down so her foot was resting on the pedal and she was not “toeing down”. He found Mr. McFawn’s seat adjustment to be back and low and suggested that he bring it up and forward. After the seats were adjusted he observed the operators driving on the street and neither of them expressed any further concern to him.

57He testified that two operators had complained to him about the pedal and that he had taken them on a bus and worked with them to adjust the seat and that seemed to deal with their concerns. He said that none of the witnesses who testified had approached him. No reports had come to him. His only involvement with this matter was when he became involved in Mr. McFawn’s and Ms. Sweiger’s work refusal.

58Kazim Kamall was called as a witness by the Commission. He is an operator at the Danforth Division and is a union steward. He is currently a worker representative on the Occupational Health and Safety Committee. He has not experienced any difficulties with respect to the brakes on the Nova RTS bus. His toe has never hit the back panel. He has been on the Health and Safety Committee for approximately one year and in that time no concerns have come to his attention with respect to the braking system on the bus. He does not believe that the brake pedal is too small.

59Counsel for the Ministry of Labour attended on the last day of evidence and called Kevin Bender as a witness. Mr. Bender was the ergonomics consultant who was involved in the first complaint about the brakes in December 1998. (Board File Nos. 3335-98-HS and 3415-98-HS) Mr. Bender was contacted by Inspector Bandera for advice on a list of six concerns presented by the worker representatives on the Health and Safety Committee with respect to the design of the bus including the position of the brake and accelerator. Mr. Bender attended the workplace with Inspector Bandera on December 9, 1998. They decided to proceed with the brake issue first as it had a more immediate safety concern. They returned on December 11 and looked at two different buses. Mr. Bender measured the distance from the floor right behind the heel rest to the panel behind the brake. He assumed, in assessing the situation, that operators can and do use the heel rest. This assumption was based upon his observation that the heel rest was visibly worn and upon materials he received from the training department explaining that that was how it was to be used. He did not proceed on the understanding however that the heel rest must be used and Mr. McNaught demonstrated to him that some operators use it and others have their foot entirely on the pedal. He observed how the toes would hit the pedal in a few applications. He did not observe the bus actually in operation but only when it was stationary in the yard. He then considered a number of sources but found the most relevant information in Human Scale 7/8/9, supra which he said, provided some design information and population ranges. He concluded that there was adequate clearance in the brake envelope and that it does not present a hazard. Mr. Bender was not asked to consider whether some operators would not have the strength to apply the brakes with their heel on the heel rest. He did observe another type of bus but did not do any measurements.

60In cross-examination he agreed that he had been shown Employee Safety Suggestions by three operators with respect to the brakes on the Nova RTS bus but that he did not speak to them individually. He felt that he had adequate information from the worker representative, Mr. McNaught. He acknowledged that he prepared his assessment with little or no reference to the Professional Practice Guidelines of the Human Factors Association of Canada as he did not think them relevant to the situation. He did not consider whether someone in an emergency stop would get his or her heel on the heel plate every time. He explained that his assessment was limited to determining whether there was sufficient space for a male of the 97th percentile in size with a large boot to apply the brake if his heel is resting on the floor. He agrees that a person of such a size who has his foot in front of the heel plate may hit his toe on the panel. In cross-examination he acknowledged that it was possible for someone with very large feet to hit the back panel in an emergency stop if his foot was applied to the top of the brake pedal. He did not make any observation or consider whether the bus could be stopped quickly if the heel plate was used.

61In response to a question from the Board, Mr. Bender explained his response to the problem of the operator’s toes hitting the back panel which was described in the three Employee Safety Suggestions. He advised that the management representatives informed him that it was a training and instruction issue. He accepted that advice in his determination that there was no hazard. He also noted that in the field visit report of December 11, 1998, it was noted that “the management has agreed to post and provide instructions about the positioning of the foot on the accelerator and brake pedals”.

62Mr. Bender was also cross-examined with respect to his determination that 14.5 inches was a sufficient brake envelope based on Human Scale, supra. The page on which he found that dimension appears to show that the distance from the back to the front of a large boot for a male in the 97 percentile in size is 14.5 inches. Therefore it is a measurement of boot size and does not refer to brake envelopes. Mr. McNaught directed him to a page which does show a brake envelope. It is for industrial and construction equipment (high seating) and indicates that a 16 inch brake envelope should be used. Mr. Bender is not of the view that that measurement is relevant as it shows the entire foot rest area for foot comfort. He did agree that he would typically consider a bus driver’s work station “high seating” and he agreed that a bus could be considered “industrial equipment”. He acknowledged that he therefore did not actually use any standard found in Human Scale, supra but determined that a 14.5 inch envelope was sufficient because that was the large boot measurement found in that text. In response to the Board’s request that he explain why he found an area only the size of the large boot to be sufficient, he explained that he took it to be a question of minimal acceptability not good practice design. 14.5 inches was an extremely large boot and there was enough clearance generally to place the entire foot on the pedal and the heel rest. If the boot was larger it could be placed with the heel farther back on the floor. In his view that would not likely endanger the safety of the worker.

63When asked by Mr. McNaught whether it would be easier to stop in an emergency situation with a larger pedal because the operator would not have to think about it Mr. Bender denied that an operator would not have to think about it.

64Mr. McNaught referred, on a number of occasions, to a document which he called in argument the “list of 42 hazards”. No one was able to identify the document however, it appears to be a compilation of comments made after the training. Very few of the comments could be considered to relate to a “hazard”. There were only two comments that referred to the brakes and that is the only issue the Board is dealing with in these appeals.

65Mr. McNaught posited that the blind spots on Nova RTS buses cause more emergency braking situations which impact on the hazardous nature of the brakes. However, as the Board has noted a number of times it is only dealing with whether the brake pedal configuration is likely to endanger the health and safety of the worker in these particular appeals.

66The Commission asked the employees who testified if they could have used their seniority to select routes on which they were less likely to drive Nova RTS buses if they were really concerned about safety. Only Mr. Armstrong said he tried to avoid routes where he would have to drive a Nova RTS bus. However, there are many factors which must go into a driver’s schedule selection and the Board is not prepared to find that an operator who is not prepared to put her or his concern about the brakes ahead of every other consideration, e.g. hours of work, days off etc. is not serious about the safety problem.

67The Board was not provided with any training materials used by the Commission or provided by Nova.

Argument

68The appellants argue that the determination, made by the Inspectors and Ergonomists, that the brake envelope is adequate is based on misapplied theoretical evidence and runs counter to the real life experience of the operators as demonstrated by their testimony. They argue that in an emergency situation there is no room for error and the necessity for considering or readjusting foot position in order to apply the brakes is hazardous. They note that some operators say they do not have the strength to apply the brakes with their heel on the heel rest.

69Mr. McNaught refers in his argument to photographs supposedly taken of Nova RTS buses in other cities. However, no one testified to identify those photographs or how they were obtained and they are therefore not evidence that the appellants can rely upon.

70The appellants emphasize that the Nova RTS bus is the only one in the company’s fleet that has a brake pedal as small as 9 ¼ inches and that all of the others are 11 inches. They also emphasize that none of the other buses has such a small brake envelope.

71The appellants ask the Board to direct that the brake pedal on the 52 Nova RTS buses be replaced with an 11 inch pedal and that the back panel be removed or recessed to provide for a 16 inch, or greater, brake envelope.

72The Commission denies that the “device” i.e. the brake pedal, is a hazard. It argues that the appellants have the onus of proving on the balance of probabilities that it is a hazard and that they have failed to do so. It suggests that almost anything could be a hazard if used in a certain way. It suggests that the Board should view the evidence presented by the operators with some suspicion and that it is not likely that an operator’s toe would hit the back panel when driving the bus. One has to look at the ordinary or customary use of the device. The Commission suggests that Mr. McNaught’s motivation in these matters should be questioned and that he is following his own agenda which is not the safety of the workers driving these buses. The Commission argues that if there is any problem with the positioning of the foot on the brake pedal it is a result of improper positioning of the seat and can be cured by adjusting it.

73The Commission relies upon Mr. Hunt’s evidence that there are more than 20,000 Nova RTS buses in operation in North America but that the only complaint about the brake pedal is this one. According to the Commission the complaints with respect to this bus are just the normal complaints it expects to get in the “shaking out” period after the introduction of any new bus. The brakes are not a safety issue but only require some getting used to. The vast majority of drivers have been using the bus without incident since 1998.

74The Ministry of Labour relies upon the testimony of Mr. Bender which it claims was uncontradicted because the appellants did not call an expert of their own. It emphasized that it is only enforcing minimum standards. The question is not whether a 16 inch brake envelope would be optimal but whether 14.5 inches is unsafe. The issue is not whether there is no risk but whether it is “likely” to endanger a worker. Section 25(2)(h) requires the company to make “reasonable efforts”. The standard is reasonableness not perfection.

75The appellants argue that little weight should be given to the “expert” testimony of Mr. Bender. They claim that he did not apply any standard in determining that there was sufficient space. They also point out that Mr. Bender did not observe anyone actually driving a bus or speak to any of the operators whose complaints were brought to his attention. They assert that his testimony was contradicted by every operator who testified.

Decision

76The relevant sections of the Occupational Health and Safety Act provide as follows:

25. (2) Without limiting the strict duty imposed by subsection (1), an employer shall,

(a) provide information, instruction and supervision to a worker to protect the health or safety of the worker;

(d) acquaint a worker or a person in authority over a worker with any hazard in the work and in the handling, storage, use, disposal and transport of any article, device, equipment or a biological, chemical or physical agent;

(h) take every precaution reasonable in the circumstances for the protection of a worker;

77The Board finds, based on the evidence presented by the appellants that some operators find that sometimes their toes hit the back panel when driving the Nova RTS bus. The Board agrees that that is a hazard as it can prevent proper braking. The Board also finds however, that if the operator’s foot is properly positioned on the heel rest and pedal, his or her toe will not hit the back panel. There is no way to ensure that no operator ever places his or her foot incorrectly. However, the possibility of that happening would be considerably diminished by good training. It appears that some of the operators who testified, particularly those with small feet, feel that they cannot apply the brakes with sufficient force to effect an emergency stop unless their foot is completely over the pedal and not on the heel rest. That belief appears to be a fallacy given the mechanics of the air brake system. All of the operators know how air brakes work but it is not apparent that they were told that these brakes are fully open when the pedal is depressed a mere ½ to ¾ inch. If they were told that, they do not appear to believe it. It is certainly intuitive to feel that one must have the brake pedal to the “floor” to control the brake especially in an emergency situation. However, placing the foot in a position that it can hit the back panel is a hazard no matter the reason for doing so. It should not be difficult to demonstrate to the operators that the bus will stop with something less than pushing the pedal to the floor if that is the case. Such reassurance should go some way to convincing the operators to position their feet properly so as to avoid hitting the back panel.

78It is also apparent that the 14.5 inch brake envelope is the bare minimum space permissible for safety in these circumstances. This brake configuration is safe if used as intended by the manufacturer. A larger brake envelope such as the 16 inches found in the Human Scale, supra diagram would leave a greater margin for human error and might therefore be safer. However, the Board cannot find, given the evidence presented, that Nova RTS bus brake configuration, if properly used, is likely to endanger the health and safety of the worker. However the Board is not satisfied that the Commission has made a sufficient effort to ensure that the brakes are properly used as required by section 25(2)(a) of the Act. Although the Commission’s witnesses attributed the problems operators are having to the positioning of the seat and training in the proper positioning of the feet, the Board was provided with few details as to what training was provided in those respects. A notice of some kind was posted in December 1998 but the Board does not know what it was. The Board does know that Mr. Chamberlain referred the operators’ request for further training to the training department and it was denied. Mr. Gibson never knew of the request and thought more training had to be ordered by the Transportation department. The problems the operators who testified were having with the bus cannot be attributed to the normal “shake out” period for new equipment as they were still experiencing the problems when they testified almost two years after the buses were introduced. Seat adjustment was offered to some of them but does not necessarily appear to have solved the problem.

DISPOSITION

79The Board heard no evidence with respect to Mr. Mullins’ work refusal Board File No. 0830-99-HS and that appeal is hereby dismissed.

80For the reasons outlined above, the Board substitutes the decisions not to issue any orders in the other appeals with the following:

(a) The Board directs the Commission to conduct a training session for all of the operators using the Nova RTS bus in which the proper positioning of the foot on the brake pedal must be reinforced. The training should also explain the mechanics of the air brakes on this particular bus, including the force necessary to depress the pedal. The Commission should also draw the operators’ attention to the potential hazard of not using proper brake application.

(b) The Board directs that any operator with a specific concern about the braking system should be given further one on one training including training on the bus.

81The Board does not find that the brake configuration itself is likely to endanger the health and safety of the worker and declines to direct the retrofitting requested by the appellants.

82I remain seized with respect to any issue arising from the implementation of the above orders.

“Laura Trachuk”

for the Board