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LABOUR RELATIONS - Employees - Refusal to work - Unsafe work - Working conditions

Monday, July 17, 2017 @ 1:06 PM  


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Application by the Canadian Union of Public Employees, Air Canada Component (CUPE) for judicial review of the decision of an Appeals Officer of the Occupational Health and Safety Tribunal Canada (Tribunal) upholding Air Canada’s finding that there was no danger to employees in working in the presence of certain chemicals in airplanes. On June 23, 2011, flight crew members noticed a strong odour after takeoff and before landing of a commercial flight. The crew members refused to work on the next flight, despite the view of the captain and maintenance that the smell posed no danger. When told why the original crew refused to work, two of the five replacement crew members also refused to work. A similar smell affected another flight crew, with one member refusing to work. Other crew members suffered ill effects from the smell, including nausea and light-headedness. Health and safety officers (HSOs) found that the smell was likely due to a leak of Skydrol LD4. Skydrol was not a dangerous good, but in vapour or mist form could cause adverse health effects. The HSOs concluded there was no danger to crew members. The crew members appealed the findings to the Tribunal. The Tribunal found that the smell was caused by pyrolyzed jet oil or hydraulic fluid. The Tribunal held that there was no danger to flight crews by the presence of the chemicals released during pyrolysis. In a companion decision, the Tribunal found that the health and safety of the flight crew may be endangered by exposure to contaminated cabin air. CUPE submitted that the Tribunal unreasonably interpreted and applied the definition of "danger" in the Canada Labour Code by making two inconsistent findings. Air Canada argued that there was no inconsistency between the two decisions, because the companion decision only found that the Code had been contravened, not that the contaminated air constituted a danger.

HELD: Application allowed. The Tribunal’s conclusion that there had to be a medical or scientific explanation linking the environmental conditions of the work place and the possibility of injury or illness to an employee was not reasonable. Causation was proven on a balance of probabilities. The reasonable expectation of an illness occurring could be established by expert opinions or through inference arising logically and reasonably from known facts. The symptoms suffered by some of the crew members were identical to the symptoms caused when jet oil was pyrolyzed. That fact was not referred to by the Tribunal. In the companion decision, the listed health effects of pyrolyzed jet oil was sufficient evidence for the Tribunal to find a likelihood of health endangerment on a flight where the crew member suffered no health symptoms. The contradictory findings in the Tribunal’s decision and the companion decision were a badge of unreasonableness, and the contradiction was not sufficiently explained so as to maintain the transparency and intelligibility of the Tribunal’s decision. The matter was remitted for redetermination by a different Appeals Officer.

Canadian Union of Public Employees v. Air Canada, [2017] F.C.J. No. 585, Federal Court, E.S. Elliott J., June 6, 2017. Digest No. TLD-July172017002