REASONS

[1] These reasons concern an application for a partial stay of a direction issued on
J une 19, 2014, by Ms. Michelle Sterling, Health and Safety Officer (HSO), that was filed
by Public Works and Government Services Canada (PWGSC) on J uly 15, 2014. An
appeal of the direction was filed on the same date and was accompanied by an application
for a partial stay of the direction until final disposition of the appeal.

Background

[2] The applicant is the owner and custodian of the Crown-owned Paul Martin Sr.
Building, recognized by the Federal Heritage Building Review Office, which is at the
center of the present case. Located in Windsor, ON, it currently houses around 370
employees, approximately 285 of those employed by the Canada Revenue Agency (CRA)
as the major tenant. The applicant has one employee on those premises.

[3] The main building (185 Ouellette Ave.) was built in 1932, has a stone faade, and is
made up of six stories plus a basement. There is an entrance on Ouellette Avenue and an
exit on Pitt Street. In 1959, an addition of a four story building attached to the original
structure. This latest structure does not have a stone faade.

[4] On J une 2, 2014, HSO Michelle Sterling conducted an investigation after a work
refusal by a CRA employee. In general terms, the reason for the work refusal was the
buildings state of disrepair, specifically the condition of the building envelope or faade.

[5] Since 2011, the Read J ones Christoffersen (RJ C) firm of consultant engineers has, on
a monthly basis, monitored the evolving state of disrepair of the main buildings faade.
RJ C inspection reports clearly state that there has been a deterioration of the stone faade
since 1999, the building is in disrepair and that there is the possibility of stones and
debris falling from the building even where as-needed repairs are completed based on
the monthly inspections.

[6] The March 28, 2014, RJ C report that was provided to HSO Sterling specified that if
the building remained in its current state, there are inherent risks associated with
potential falling mortar stone pieces and stones, that the stone faade is in poor
condition and should be rehabilitated immediately, and that the deterioration is
accelerating, which will most likely lead to more frequent and more severe stone failures
with an increasing risk of one or more large pieces of stone falling from the building
down to street level.

[7] Affected by this are the entrances to the older portion of the building located on
Ouellette Avenue (entrance and exit) and Pitt Street (usable solely as emergency exit).
Scaffolding has been placed around the building as a safety precaution to protect
employees from the possibility of falling stone. The scaffolding has been in place for
approximately four years. However, another report, this time from BSG Engineering
limited (BSG) dated March 27, 2014, indicates that the scaffolding is in poor condition
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and in need of rehabilitation. The RJ C inspection report of March 2014 indicated, among
other things, that the building was in need of immediate repairs and that there was a 90-
100% chance of an object 5kg or less falling from the building, a 10-40% chance that
such occurrence would involve an object weighing 5-10 kg, a 0-10% chance of a falling
object weighing 10-15kg and a 0-10% chance that such a falling object would weigh
15kg or more.

[8] At the conclusion of her investigation, HSO Sterling concluded that:

Based on the information contained in the RJ C report it is clear that there
is a hazard associated with stones falling from the older portion of the
building down to the street level below. Although controls have been put
in place (scaffolding), it is clear that this is not an effective risk mitigation
control as the scaffolding itself is in disrepair and in need of immediate
rehabilitation. Furthermore, the engineering report states that there is a
potential of a stone weighing over 15kg falling from the building and the
scaffolding would not effectively safeguard an employee from a stone
over 5kg if it should fall.

[9] She therefore concluded that there existed in that work place a condition that
constituted a danger to an employee while at work. That condition was described by the
HSO in the ensuing direction to the applicant, issued on J une 19, 2014, pursuant to
paragraph 145(2)(a) of the Canada Labour Code (the Code):

IN THE MATTER OF THE CANADA LABOUR CODE
PART II OCCUPATIONAL HEALTH AND SAFETY

DIRECTION TO THE EMPLOYER UNDER
PARAGRAPHS 145(2)(a) AND (b)

On J une 2, 2014, the undersigned health and safety officer conducted an
investigation in the work place operated by Public Works and
Government Services Canada, being an employer subject to the Canada
Labour Code, Part II, at the Paul Martin Sr. Building, 185 Ouellette
Avenue, Windsor, Ontario, N9A 4H7, the said work place being
sometimes known as PUBLIC WORKS CANADA WINDSOR.

The said health and safety officer considers that a condition in the place
constitutes a danger to an employee while at work:

The main entrance to the work place that is located on Ouellette Avenue
and the northeast Pitt Street emergency exit do not allow employees safe
entrance to and exit from the work place. The building faade is in
disrepair and there is a hazard of stone falling to the sidewalk below
which constitutes a danger to employees using either of those
entrances/exits. As is noted in the engineers report dated March 28,
2014 the current scaffolding that is in place is insufficient for the
purpose of protecting employees from the danger.

Therefore, you are HEREBY DIRECTED, pursuant to paragraph
145(2)(a) of the Canada Labour Code, Part II, to protect any person from
the danger immediately.
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You are HEREBY FURTHER DIRECTED, pursuant to paragraph
145(2)(b) of the Canada Labour Code, Part II, not to use the place, in
respect of which the notices of danger numbers 4407 and 4463 have been
affixed pursuant to subsection 145(3), until this direction has been
complied with.

Issued at London, this 19th day of J une, 2014.


[signed]
Michelle Sterling
Health and Safety Officer
[]

To: Public Works and Government Services Canada
Paul Martin Sr. Building
185 Ouellette Ave.
Windsor, Ontario
N9A 4H7

[10] On J une 11, 2014, the HSO ordered that the Ouellette Avenue and Pitt Street
entrances be closed, with notices of closure being posted stating as reason danger of
falling stone. On J une 19, 2014, HSO Sterling issued to the applicant the direction above
to protect any person from the danger. On J uly 15, 2014, the applicant filed a notice of
appeal of the J une 19 direction with the registrar of the Occupational Health and Safety
Tribunal Canada. At the same time, it sought a partial stay of the direction pending
determination of the appeal, seeking that the use of these two exits be allowed for the
limited purpose of emergency exit/evacuation. This would allow CRA, the applicants
major tenant, to meet the requirements of the National Fire Code, failing which the CRA
would need to relocate approximately 70 employees from the building in order to reduce
the demand for exits in an emergency situation.

[11] It is worth noting here that, on J uly 24, 2014, during the teleconference hearing on
this application in the presence of counsel for both parties, the undersigned learned that
an identical direction had been issued to CRA relative to its employees by HSO Sterling
on the same date. That direction described the danger in identical terminology. At the
time of the hearing into the present application, no notice of appeal of that direction had
been filed and no application for a stay of that direction had been made.

[12] The wording of subsection 146(2) of the Code is very clear. The mere filing of an
appeal against a direction does not, in and of itself, operate to stay the application and
execution of that direction and thus, the obligation to comply with said direction as
formulated. That same provision however clearly specifies that an appeals officer has the
authority to order a stay upon application by an employer, employee, or trade union.
Consideration of a stay application is also conditional upon the employer, employee or
trade union having standing to apply for such a stay by being one concerned by the
direction. It can also be added that unless an appeal has been filed against a direction, no
appeals officer may be seized of an application to stay a direction issued by a health and
safety officer.
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[13] An application for a stay is decided by an appeals officer upon consideration of a
three part test or criteria inspired by the pronouncements of the Supreme Court of Canada
in Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local
832, [1987] 1 S.C.R. 110, and adapted to the specificity of the Codes field of
jurisdiction. That three part test must be met in its entirety by the party making the
application. It consists of the following:

1) The applicant must satisfy the appeals officer that there is a serious question to be tried
as opposed to a frivolous or vexatious claim;

2)The applicant must demonstrate that he or she would suffer significant harm if the
direction is not stayed by the appeals officer;

3)The applicant must demonstrate that should a stay be granted, measures will be put in
place to protect the health and safety of employees or any person granted access to the
work place.

I will add that the assessment as to whether the applicant has satisfied the test needs to
take into account the circumstances of the case that prevailed at the time of the issuance
of the direction by the HSO, the circumstances present at the time of the hearing for the
application for a stay of the direction, as well as the nature and extent of the stay sought.

Is the question to be tried serious as opposed to frivolous or vexatious?

[14] The question before the appeals officer is whether a danger within the definition
of the Code was present at the time of the HSOs investigation and subsequent direction,
and whether such a situation persists at the time of the appeal such that the appeals officer
would be required to issue a specific order. Coupled with the wording of the direction,
one can conclude that the appeals officer must hear and decide a serious issue.

[15] While the applicants written stay application is not as generally inclusive as what
precedes, it essentially amounts to questioning the existence of danger. It claims that
sufficient protective measures are already in place without, however, specifying whether
said sufficient protective measures were in place at the time of the HSOs
investigation/inspection or have been put in place following HSO Sterlings direction:

It is respectfully submitted that there is a serious issue to be tried. The
effect of the Health and Safety Officers direction is to require the
relocation of a substantial number of employees from the Paul Martin
Building in Windsor. While PWGSC does not dispute that the building
faade is in need of repair, it is adamant that the protective measures
already put in place are sufficient to ensure the safety of employees.

[16] Counsel also appears to be linking the sufficiency of the protective measures to
the limited extent of the stay being sought. At the teleconference hearing on the stay
application, counsel for the applicant reiterated that by challenging the HSOs direction,
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the appeal does raise the question of whether at the time of the direction existing
conditions amounted to a danger as defined by the legislation. Counsel, however, also
referred to the three engineer opinions obtained since then and also noted the
improvements and repairs brought to the protective scaffolding, arguing that the applicant
has gone above and beyond what was required to satisfy the HSO direction, and that
consequently the danger that may have existed at the time of the direction would no
longer be present. Furthermore, they may raise the question as to whether the matter is
now moot.

[17] On the first part of the test, the respondent initially argued that no serious question
had been raised, since the sole question concerned the merits of the case, something that
needed to be determined at the appeal hearing. However, following some explanation as
to the meaning to be put on the first part of the applicable test, Mr. Yoboua recognized
that the appeal essentially constitutes a challenge to the finding of danger arrived at by
the HSO, that such a question on the merits represents a serious question since what
needs to be determined by the appeals officer is whether a danger existed at the time of
the HSO investigation and direction, and possibly even at the time of the appeal hearing,
given the potential for a claim of mootness alluded to by counsel for the applicant.

[18] Having regard to what precedes as well as the complete submissions of the
parties, I conclude that the question to be tried is a serious one. Consequently, the
applicant has satisfied the first part of the test.

Would the applicant suffer significant harm if the direction is not stayed?

[19] As stated above, my assessment as to whether the applicant satisfies the elements
of the test needs to take into account the nature of the stay that is being sought, in this
instance a partial stay concerning the emergency use of the Ouellette and Pitt exits for the
purpose of evacuating the building. I also need to take into account the information
provided by HSO Sterling at the stay hearing. She said that the applicant, as an employer
under the Code, may already be in compliance with the direction since its sole employee
usually posted at the Paul Martin Sr. Building may already have been displaced. While
this needs to be taken into account, one cannot ignore that the applicant, as owner,
custodian and landlord of the building, is responsible for the actual daily operation of the
building and has health and safety obligations, vis--vis the tenant(s),
employees/members of the federal public service employed there, as well as other
persons such as members of the public who may be admitted to the building. Moreover,
two directions have been issued to two distinct parties, one of whom is the applicant in
this matter, relative to the situation at the Paul Martin Sr. Building. This being said, in its
written submissions, the applicant has dealt with this part of the test on the basis that it
would suffer irreparable harm and would incur prejudice should the stay not be
granted. I have opted to address both elements below.

[20] It is the applicants submission on this point that what it is seeking is a very minor
deviation from HSO Sterlings direction, meaning that the applicant would still be
required to observe the direction that the two exits be closed under normal operational
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circumstances. Restricting the use of the exits for evacuations only would entail a very
low risk because for such risk to materialize, there would have to occur simultaneously
an emergency requiring evacuation and the fall of an object or stone weighing more than
10 kg (the likelihood of an object weighing more than 10kg falling, according to
engineers, ranging from 0-10%) near one of these exits. Such a combination of events is
less likely to occur than the occurrence of each event on its own.

[21] In contrast, should the applicant fail to secure such a stay of the direction, it has
indicated that the major tenant of the building, CRA, would no longer be able to satisfy
fire safety requirements and that consequently it would have to relocate approximately
25% of its workforce in the building to another site. This would seriously affect the
operation of the said building in addition to no doubt being highly disruptive of the
operations of the tenant. The applicant also noted in this regard that there would be
significant expenditures should there occur the need to relocate approximately 70
employees of the tenant, although it recognizes that cost alone is not typically a sufficient
factor in and of itself.

[22] In short, the applicant puts forth that I need to balance the extent of disruption to
operations with the very low likelihood of the hazard, and thus harm to persons,
occurring where the applicant has taken steps in accordance with engineers
recommendations to eliminate the danger.

[23] According to the respondent, the only harm that the applicant is claiming would
be suffered is harm to CRA but has not demonstrated that either CRA or the applicant
itself would suffer any harm. Its position is that there has been no evidence of disruption
of CRA services, and that the potential relocation of 70 employees would amount to very
little harm and disruption to CRA. CRA has more than 40,000 employees in Canada with
approximately 12,000 of those situated in Ontario. In brief, the respondent believes that
the harm claimed by the applicant is only speculative and thus insufficient to support the
granting of a stay.

[24] As I stated above, the nature or type of stay needs to be central to my
consideration of this element of the test. It would be difficult for me to subscribe to most
of the respondents arguments since those would require that I consider circumstances
affecting a party that is not before me.

[25] Furthermore, as I have previously pointed out, while the applicant is an employer,
my consideration of the application needs to apply not only to that characteristic but also
to the applicants function as an owner, landlord, custodian and operator of the building.

[26] Also of importance in my opinion is the fact that generally, the main characteristic
of a stay is that it is temporary pending a final determination of issues on the merits and
in this particular instance, the actual stay being sought would be extremely limited. I have
no doubt that from the perspective of the applicant, a potential relocation of 70 occupants
of the building it operates is disruptive and, without prejudging the appeal per se, should
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the appellant succeed in its challenge of the direction, the applicant may be faced in the
short term with a need to relocate anew the same group of persons.

[27] Given the evidence presented of the measures taken by the applicant to enhance
the protection around the building and the very unique and specific circumstances of this
stay application, I am of the opinion that the applicant has satisfied the second element of
the test.

Has the applicant demonstrated that measures will be put in place to protect the
health and safety of employees or any person granted access to the work place,
should the stay be granted?

[28] The applicants position regarding this part of the test is twofold. First, because it
is challenging the direction on the merits through its appeal, the applicant states that the
danger HSO Sterling determined did not actually exist at the time of her
investigation/inspection. Second, on the assumption, for the purpose of the stay
application, that the danger in fact existed, the applicant states that it has already taken
measures and has made improvements to those protective measures that were already in
place such that the safety of employees and other persons is ensured.

[29] In this respect, it is important to cite anew the conclusion arrived at by HSO
Sterling:

Based on the information contained in the RJ C report it is clear that there
is a hazard associated with stones falling from the older portion of the
building down to the street level below. Although controls have been put
in place (scaffolding), it is also clear that this is not an effective risk
mitigation control as the scaffolding itself is in disrepair and in need of
immediate rehabilitation. Furthermore, the engineering report states that
there is a potential of a stone weighing over 15kg falling from the
building and the scaffolding would not effectively safeguard an employee
from a stone over 5kg if it should fall.

[30] Documentary evidence submitted by both parties has shown that the probability
of a stone weighing more than 15kg falling anywhere alongside the faade of the
building, and not only in the vicinity of the two exits to which the direction applies, as
being 0-10%. This would come with a high risk of serious injury or damage. The RJ C
engineering report puts the likely fall of a stone weighing less than 5 kg at 90-100%, one
weighing between 5-10kg at 10-40% and all weightier stones at 0-10%.

[31] The sidewalks along the faade are closed or blocked save for the two exits in
question, thus reducing the probability of injury due to stone fall in the immediate
vicinity of one or both of the exits as those would be used for the exceptional situation of
emergency evacuation.

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[32] A close examination of the pictures provided by the respondent demonstrates that
evacuated persons would not actually walk directly onto the street because of the blocked
sidewalks, therefore contradicting Mr. Yobouas claim during the hearing.

[33] Additionally, a report from BSG, dated J uly 17, 2014, and thus not available to
HSO Sterling at the time of the issuance of the direction, notes that when the protective
scaffolding was originally designed in 2010/2011, its protective capacity had been put at
5kg and could sustain an impact of up to four times that amount (20kg). That same
engineering firm, in April 2014, reviewed the existing scaffolding and formulated a
number of options ranging from repairs that would maintain the 5kg protective capacity
to upgrades to protect against projectiles 10kg and larger. The firm concluded that our
cursory review from grade level of the building stone envelope did not reveal any
conditions representative of objects greater than 5kg likely to fall.

[34] In its application, counsel for the applicant indicated that PWGSC had elected to
have the scaffolding upgraded to a protective capacity of 10kg and an impact absorbing
capacity of 40kg. At the time of the hearing of this application, I received from the
applicant a copy of a letter dated J uly 22, 2014, addressed to HSO Sterling by Felix Ip,
Engineer and Regional Manager, Major Projects, Professional and Technical Services,
Real Property Branch, PWGSC. That document indicated the applicants
acknowledgment of the continuing deterioration of the building and provided details as to
the objects that had fallen from the building over the four preceding years. It stated:

The samples that have been collected during site visits (from on top of the
hoarding) are mostly mortar chips, varying in length from less than 25mm
to approximately 75mm.
The mortar chips are mostly cement-based mortar [].
The various stone chips that have fallen are all very small pieces (typical
sizes are 35mm x 35mm x 5mm). During the four years of monitoring
[], the biggest piece that was reported measured approximately 100mm
x 100mm x 30mm, and this would weight no more than 0.8kg, if
calculated using the average density of 2.700kg/m
3
for typical Tyndall
stone.
There is no visual misalignment to suggest movement of stones.

[35] That same document also listed what it referred to as the precautionary measures
taken by PWGSC to date to ensure added public safety:

Complete refurbishment of the hoarding protection system to contain
debris up to 10kg in weight []. This work was carried out by the
contractor and certified by BSG Engineering Ltd. Note that BSG further
confirmed in their email of J uly 17, 2014, that their April cursory review
from grade level of the building stone envelope did not reveal any
conditions representative of objects greater than 5kg likely to fall.
Monthly visual inspections at street level, as well as swing stage close-up
visual screening inspection every four months by Read J ones
Christofferson Ltd., who have been engaged by our service provider
(SNC Lavalin).
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If RJ C identifies areas or components of the faade requiring immediate
attention then PWGSC instructs SNC Lavalin to engage a contractor to
take action as recommended by RJ C.
[]

[36] In essence then, the applicants submissions regarding the third part of the test are
that PWGSC has already put in place the necessary protective measures to ensure the
health and safety of personnel and the public while the stay, if granted, would be in place.
Counsel also noted that measures have also been put in place inside the building to ensure
that the two doors not be used. As such, the Ouellette entrance/exit is monitored by
commissionaires and the Pitt side door, an emergency exit door, cannot be used to enter
the building unless opened from the inside. Notices have been posted at both doors and
the Ouellette entrance door has been locked.

[37] Referring to RJ Cs March 28, 2014 report on the likelihood of stone fall, the
respondent voiced the opinion that the information provided relative to protective
measures that would be in place is insufficient to demonstrate or support the claim of
protection by the applicant. Noting that the City of Windsor did not appear to be of the
view that the hoarding or scaffolding in place around the building was sufficient to
protect against falling debris since it had closed/blocked the sidewalks underneath the
scaffolding, Mr. Yoboua said that there was no evidence that those measures are enough
to adequately address the situation.

[38] The respondent expressed the opinion that PWGSC had not addressed the
abnormal situation of structural damage to the building. Mr. Yoboua finally referred me
to the conclusion in RJ Cs March 28 report:

In general, the stone faade is in poor condition and should be
rehabilitated immediately. Based on the continuing review of the faade,
it appears that the deterioration is accelerating, which will most likely
lead to more frequent and more severe stone failures, with an increasing
risk of one or more large pieces of stone falling from the building down to
street level. []

[39] Upon considering all of the above and applying this to the fact that the applicant
seeks a limited stay that would apply solely to two exits of the building strictly for use in
an emergency evacuation - thus seldom and possibly never during the duration of the
stay - and that while the entire faade of the building may be in disrepair, the
space/surface of the faade occupied by the two doors represents only a fraction of that
surface, I have formed the opinion that the measures in place would suffice to ensure the
protection of personnel and public evacuating the building in an emergency. It is thus my
conclusion that the applicant has satisfied the third part of the test.

Decision

[40] Considering all of the above and the fact that the stay of the HSO Sterling
direction sought by the applicant is limited to the use of the Ouellette Ave. and the Pitt St.
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doors of the Paul Martin Sr. Building solely for the purpose of emergency evacuations,
the partial stay is granted upon the following conditions:

- the application of the direction issued to the applicant by HSO Sterling on
J une 19, 2014, is stayed to the extent that the Ouellette Ave. and Pitt St. doors to
the Paul Martin Sr. Building may be used solely for the purpose of emergency
evacuation of the occupants of the said building;

- this partial stay is granted for a period of six (6) months from the date of this
decision and shall peremptorily lapse at the end of that period unless the hearing
into the merits of the applicants appeal of the direction has been scheduled and/or
has begun;

- copy of the monthly or other inspection report prepared by Read J ones
Christoffersen (RJ C) Consulting Engineers for the applicant through SNC-Lavalin
Operations and Maintenance shall be forwarded to HSO Sterling for transmission
to the undersigned and should further degradation of the building be noted, the
partial stay may be terminated upon submissions by the parties in this regard.

I shall remain seized of this matter for the above purpose as well as for determining any
further application in this regard or for hearing the noted appeal by the applicant on the
merits.




J ean-Pierre Aubre
Appeals Officer
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