Canada: Québec's Administrative Labour Tribunal Confirms The Safe Character Of A Mining Practice And Reiterates The Limited Powers Of Occupational Health And Safety Inspectors

Last Updated: April 1 2019
Article by Jacques Rousse and Caroline-Ariane Bernier

Most Read Contributor in Canada, March 2019

On June 22, 2018, Québec's Administrative Labour Tribunal (Tribunal) released its decision in Mines Agnico Eagle ltée et Syndicat des métallos (local 4796),1 confirming the safe character of a mining practice called mucking under loaded holes or holes being loaded (Mucking Procedure), and reiterated that the powers of the Commission des normes, de l'équité, de la santé et de la sécurité du travail (CNESST) and its inspectors are limited.

Context

In October and November 2016, CNESST inspectors visited 15 underground mines in Québec in order to completely prohibit the Mucking Procedure consisting of remotely mucking ore with scooptrams under drill holes loaded with explosives or being loaded therewith. They ordered an immediate ban of the practice on the basis of s. 186 of an Act respecting occupational health and safety (AOHS) whereby a CNESST inspector may order the suspension of work or the complete shutdown of a workplace if such inspector considers that workers' health, safety or physical well-being are endangered.

Under s. 186 of the AOHS, the inspector must substantiate his or her decision in writing and indicate the steps required to eliminate the danger. In this case, all 15 inspectors' reports were almost identical, cited the same risks2 and prohibited the use of the Mucking Procedure. Under the AOHS, a party (employers, employees or unions) who believes to have been wronged by a CNESST inspector's decision may apply for a review of the decision in front of the administrative review branch of the CNESST and, if still unsatisfied with the result, may contest it in front of the Tribunal. Proceedings brought as a consequence of a work stoppage under s. 186 AOHS are to be heard and decided by preference.

The companies operating the 15 underground mines3 contested the decision in front of the CNESST and, subsequently, in front of the Tribunal since they all believed that the Mucking Procedure was safe and did not constitute a danger for workers' health and safety. It should also be noted that the CNESST inspector's decisions had a serious financial impact on the productivity of some underground mines in Québec all the while, ironically, in fact increasing the risk of injuries to workers according to numerous experts and engineers. Two local unions represented a total of seven mines and sided with the CNESST, alleging that the Mucking Procedure was dangerous.

The Tribunal joined all 15 files together and the hearing lasted for 53 days between February 2017 and March 2018. In addition, the CNESST and the Métallos union sought judicial review in front of the Superior Court on two interlocutory issues, without success.

On the merits, the CNESST and the unions argued that the Mucking Procedure represented a risk for the workers' health and safety on the basis of the following scenarios:

  1. The collapse of the bottom part of the excavation may lead to a fall of rocks onto explosives laying on the ground which may lead to their detonation and potentially the detonation of the loaded holes above (and, therefore, the detonation of the entire stope);
  2. A scooptram on fire under drill holes loaded or being loaded with explosives may lead to the detonation of explosives falling in the fire or of the loaded holes above the scooptram (and, therefore, the detonation of the entire stope);
  3. Explosives may fall down a drill hole and the impact on the ground may lead to their detonation and the detonation of the holes above, or once on the ground, may be crushed by a scooptram and detonate. This may also lead to the detonation of the entire stope.

The CNESST and the unions argued that should the Mucking Procedure not constitute a danger, it is nonetheless prohibited by law, more specifically by certain provisions of the Regulation respecting occupational health and safety in mines (Regulation) having to do with circulation of vehicles in loading areas and, as such, it should not be practiced.

The employers' position was that the Mucking Procedure did not constitute a danger — not only is it safe, but, in some circumstances, it is even the safest method of extracting ore and prohibiting it may put the workers' health and safety at risk. The employers relied on scientific data to demonstrate that the CNESST's inspectors scenarios were unsupported theories based on a blatant misunderstanding of the Mucking Procedure, the characteristics of modern explosives and the heat transfer abilities of the rock. The employers also put into evidence the fact that the Mucking Procedure existed elsewhere in Canada (Ontario and British Columbia) and that it had been used in Québec for over 20 years. Furthermore, the employers argued that there were no accidents documented in Québec or the rest of the country regarding the Mucking Procedure. Finally, the employers contended that the Mucking Procedure was not prohibited by law.

The employers presented six expert witnesses, many of which are internationally renowned in the respective fields, to speak about the mechanics of the Mucking Procedure and the safety measures adopted to protect the workers' health, the highly safe character of modern explosives, the scientific improbability that the risks raised by the CNESST inspectors will materialize and the characteristics of rock mass. In response, the CNESST and the unions brought no expert witnesses and no scientific documents or data and, instead, relied on the testimonies of five of their CNESST inspectors (only one of which was a fully certified mining engineer at the time) and several active and retired minors and CNESST inspectors. They also presented extensive documentation regarding old events to attempt to explain why the Mucking Procedure constitutes a danger.

Decision

In the end, the Tribunal found in favour of the employers: it declared that the Mucking Procedure did not constitute a danger to the health and safety of workers and that it was not prohibited by the Regulation. The Tribunal went so far as to confirm that, in light of the expert evidence presented, the Mucking Procedure is a safe practice.

The Tribunal reiterated that a CNESST inspector may only prohibit a practice or procedure as per s. 186 of the AOHS if there is a "danger" for the health or safety of workers. Should there not be any "danger," CNESST inspectors do not have the power to suspend or prohibit the work. The Tribunal explained the difference between a "danger" and a "risk:" although a danger must not be imminent, it must at least constitute a probability, while the risk, on the other hand, is only a possibility. The danger, therefore, must present a probability of realization which is not negligible, and that probability is not to be calculated mathematically. The danger cannot be a simple fear or apprehension and must be analyzed in a factual context. While admitting that the inexistence of past accidents is not an argument to take into account when determining the proper safety precautions to adopt with regards to working procedures, the Tribunal explained that such inexistence can nonetheless constitute an indication that the risks of materialization of the apprehended event are not very high when appreciating the existence or not of a danger.

When analyzing the existence or not of a danger (as opposed to a risk), two elements must therefore be examined: (i) the probabilities of materialization of the risk, and (ii) the gravity of the consequences attached thereto.

The Tribunal also confirmed that inspectors and employers should not pursue a situation of "Zero Risk" since the absence of any risk is in a workplace is impossible to achieve — what the inspectors and employers should strive for is the elimination of dangers.

In the end, the Tribunal rendered a decision of over 200 pages in which it gave a very exhaustive review of the expert evidence presented and harshly criticized the lack of professionalism of the CNESST inspectors and the tools they used to come to the conclusion that the Mucking Procedure was dangerous. It re-established the status quo which existed prior to the CNESST's fall 2016 work stoppages and reiterated that the CNESST inspectors' powers are not unlimited: should an inspector believe that a practice or procedure constitute a danger for the health or safety of workers, he or she better do his or her homework and not simply act on unjustified fears or misguided apprehensions.

Footnotes

1. 2018 QCTAT 3096. McCarthy Tétrault LLP acted as counsel for Glencore Canada Corporation (Matagami and Raglan).

2. The inspectors never once mentioned the words "danger" or "probability" in their reports. Instead, they discussed "risks" and "possibilities."

3. Mines Agnico Eagle Ltée (Goldex, Lapa and Laronde), Glencore Canada Corporation (Matagami and Raglan), Mines Richmond Inc. (Beaufor), IamGold Corporation (Westwood), Integra Gold Corp., Metanor Resources inc. (Lac Bachelor), Stornoway Diamonds (Canada) Inc. (Lagopède), Niobec Inc. (Niobec), Goldcorp (Éléonore), Breakwater Ressources Ltd. (Nyrstar/Langlois), Canadian Royalties (Nunavik Nickel), K+S Windsor Ltée (Seleine).

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