30 January 2007
Federal Court Strikes Down Safety Orders Against CPR
Ottawa Ontario - The Federal Court of Canada has set
aside orders issued by a federal tribunal in the case of a CPR railway maintenance employee who argues the company must provide
workers like him with a separate change room and storage area to ensure protection from wet or contaminated work clothing.
The court sent the case back to the Canada Appeals Office on Occupational Health and Safety after concluding that the tribunal's
November 2005 decision was not guided by "procedural fairness" in that it identified new "contraventions" without
giving CPR adequate opportunity to defend itself.
Allan Woollard, the worker, now plans to appeal.
In the tribunal decision, appeals officer Douglas Malanka confirmed a federal health and safety officer's directions to Canadian
Pacific Railway Company, but he also raised an additional concern that "the employer has failed to appoint a qualified person to
carry out the hazard investigation... in respect of the hazardous substances used and handled by track maintenance operators..."
Federal court judge Michel Beaudry concluded "the matter is of great importance" to CPR and there was a reasonable
expectation for the employer to be "given an opportunity to plead evidence and make submission on the new contraventions found by
the Appeals Officer." Beaudry set aside Malanka's directions and referred the case back to the tribunal. Woollard's lawyer, James
Baugh, says he is appealing the judge's decision at the Federal Court of Appeal. "We are concerned that the judge overturned the
appeals officer on the safety order, and we say that was wrong, that there was no basis for him to do that," says Baugh.
The case originates in Ontario but deals with "system-wide" concerns that the union has been taking up in a
variety of different areas and venues, Baugh explains.
Woollard, a member of CPR's surfacing crews, who work outdoors, maintaining the company's railway tracks, initiated the complaint in
2002. The crews operate, refuel and maintain various diesel-powered machines, the court's decision notes. Their clothing
regularly gets wet and contaminated by hazardous substances such as diesel fuel, lubricating grease, ethylene glycol antifreeze, and
hydraulic oils.
While CPR provides them with various types of disposable coveralls, Woollard and others say they're less than adequate.
The surfacing crews work in small numbers in remote regions and are billeted in hotels and/or motels, but the CPR no longer provides,
as it once did, a separate room for changing and storing soiled and contaminated work clothing, even though the job hazards remain the
same, the decision says.
Crews have no option but to leave the work site without changing out of their work clothes, returning to their hotel or motel rooms
directly. They change, shower, dry, and store their contaminated clothing in the same room they sleep in - two workers per room for
periods of several days.
Woollard complained to a federal health and safety officer in November 2002 that these conditions presented a health hazard in that
"the odours from his wet or contaminated work clothes filled the room and made him ill at night, especially when the clothing had
to be dried on the heater in the hotel or motel room," the facts prepared for court say. Moreover, the motels and hotels did not
allow workers to launder their working clothes in their facilities.
Following the investigation, a direction dated 12 Jun 2003 cited CPR for two contraventions under the Canadian
Occupational Health and Safety Regulations (COHSR): failing to make available Material Safety Data Sheets and to provide a
separate change room to ensure workers were protected from exposure to hazardous clothing. CPR's appeal of the second direction sent
the matter before the tribunal.
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