By Ahmad Hathout
The Attorney General of Canada, on behalf of Employment and Social Development Canada, is asking for a legal review of a Canada Industrial Relations Board (CIRB) decision that rejected imposing additional safety requirements on Rogers after a subcontractor’s employee died on site.
On January 26, 2022, a 30-year-old worker employed by Verrascend Technologies fell 400 feet to his death as he was installing a new antenna on the Minden Tower at 2162 Davis Lake Road, 14 kilometres south of Minden, Ontario. Verrascend was hired by Wesbell Communications, which had contracted with Rogers to perform the climbing work on the tower.
The November 21 decision by CIRB found that Rogers did not violate several provisions under the Canada Labour Code and the Canada Occupational Health and Safety Regulations (COHSR) by not developing a fall protection plan. The board has yet to release reasons for its decision.
Because there is a 30-day time limit on appeal applications, the Attorney General filed a bare judicial review application in the Federal Court of Appeal challenging the decision without the board’s reasons. It is challenging the decision on jurisdiction, fairness and errors in law.
The challenge dates back to when the head of compliance and enforcement of the labour program under Employment and Social Development Canada ruled after an investigation in April 2022 that Rogers contravened sections of the Canada Labour Code and COHSR, which respectively requires an employer to develop, implement and monitor a program that provides protective equipment to employees and ensure a fall protection system is in place when work is done on a structure higher than three metres.
Rogers was directed to take steps by May 4, 2022 to eliminate these contraventions and to ensure they did not continue or reoccur.
But the telecom appealed to CIRB on the basis that the labour code provision did not require a fall protection plan and the requirement for protective equipment applies to an employer only when it controls the work activity and was unnecessary if a contractor had a program in place.
That employer, Rogers further argued in relation to the provision under the COHSR, hired the workers in this case. Rogers said it has complied with this requirement by confirming with Wesbell that it had a fall protection plan in place.
During the appeal process, the head of compliance and enforcement requested that the CIRB additional charge Rogers with failing to develop a fall protection plan under another section of the labour code.
The Attorney General is asking for the court to set aside the decision and vary the direction by the head of compliance to include that additional charge, or set it aside and send it back to CIRB for redetermination.
