Canadian Safety Reporter

2 Canadian HR Reporter, a Thomson Reuters business 2018 CSR | April 2018 | News commercial sale. This included searches at border entry points as well as commercial compli- ance — or secondary — ex- aminations conducted at inland warehouses where shipments of goods are taken for storage and examination. The inland warehouses are the property of companies and operators who handle the imported goods and aren't controlled or maintained by the CBSA. Goods in the inland ware- houses were often shipped in marine shipping containers where chemical fumigants were used to kill invasive species that infiltrated cargo loads. The fu- migants were put in the contain- ers before they were sealed and were potentially hazardous to people. As a result, CBSA pro- cedure was for border services officers to only proceed with examinations of these marine shipping containers after ware- house employees entered the containers, unloaded them, and placed the goods to be checked on the warehouse floor. Border services officers only conducted examinations of select, unloaded goods and didn't check other marine containers in the ware- houses, though other containers were often present. Once goods were unloaded from contain- ers, it could take anywhere from hours to days before officers in- spected them. The CBSA implemented a new National Fumigant Pro- gram Policy on Aug. 5, 2014, which set out operating proce- dures for inland warehouse ex- aminations including: • Border services officers were to check with the warehouse operator for any new marine containers brought to the warehouse bay doors within the last five minutes before an examination • The goods to be examined must be on the warehouse floor for at least 10 minutes before examination • Officers must determine a safe walking passage to the goods to be examined • Officers must stay at least three metres away from any containers opened within the last five minutes • Officers must not enter a container or examine containers to perform secondary examinations, nor should they climb upon or crawl between containers or in any enclosed spaces. Officers worried about levels of chemical fumigants On Aug. 20, 2014, Harris and Fauceglia were assigned to con- duct commercial compliance examinations at four differ- ent inland warehouses in the Greater Toronto Area. At one of the warehouses, they noticed that two open marine containers near the bay door of the loading dock were being offloaded. Both officers were concerned that there might be dangerous fumi- gants venting from the contain- ers that could harm them. As a result, they both exercised their right to refuse work in danger- ous conditions under the Cana- da Labour Code. The next day, Fauceglia went to a different warehouse to con- duct a secondary examination. When he arrived, he saw four marine containers with their doors open. He once again ex- ercised his right to refuse work based on a concern the open containers were venting chemi- cal fumigants. Three days after that, on Aug. 24, Fauceglia re- fused work for a third time when he saw five opened marine con- tainers sitting near the loading dock of the warehouse to which he was assigned. On Sept. 11, Harris was as- signed to an inland warehouse to examine select goods from overseas, but saw two marine containers at the loading docks with their doors opened. Wor- ried about venting fumigants in the enclosed space and the fact there wasn't proper ventilation or testing for fumigants, Harris refused to work. More than 40 other border services officers soon also refused to work at the same warehouse after they learned of Harris' refusal. In response to the work re- fusals, a health services officer (HSO) visited all the warehouses where Harris and Fauceglia had refused work. The HSO re- viewed CBSA documents and reports on marine container examination and its policies and programs for employees who may come into contact with fu- migants. He also received guid- ance from an industrial techni- cal engineer. The HSO found there were no signs indicating the presence of fumigants and no documenta- tion on whether the containers had been fumigated. The con- tainers were not vented before being opened and warehouse workers didn't use personal pro- tective equipment when open- ing the containers. However, any gas within a container would be- gin to dissipate as soon as it was opened and the HSO found the three-metre distance and five- minute time allowance for new containers in the CBSA`s new policy were acceptable measures to mitigate the threat of chemi- cals released from opened con- tainers. The HSO determined that the CBSA`s procedures and precau- tionary measures were enough to protect border services of- ficers from exposure to unsafe levels of chemical fumigants and it was unlikely harmful levels of chemicals were in the warehous- es on the occasions that Harris and Fauceglia exercised their right to refuse work. Therefore, there was no danger at the times they refused work, said the HSO. Harris and Fauceglia appealed the HSO's decision, arguing that the CBSA's procedures for preventing exposure to unsafe levels of chemical fumigants were based on "research which does not replicate real life sce- narios and underestimates the concentrations of fumigants to which border services offi- cers are actually exposed." They claimed that fumigants can ex- ceed the CBSA's parameters up to 25 times above the accept- able limit. They argued that the procedures should be developed based on the highest concentra- tions of fumigants that officers were likely to encounter at work. Fumigants pose a serious threat to the health and safety of border services officers and there was a "reasonable possibility" under the Canada Labour Code that the hazard would present itself and cause injury or illness, Har- ris and Fauceglia said in their ap- peal. The tribunal noted that a find- ing of danger "cannot be ground- ed in speculation or hypothesis," but instead needed hard evi- dence that the potential hazard could reasonably be expected to cause injury or illness in the future. The tribunal found that the CBSA's studies showed the in- stance Harris and Fauceglia re- ferred to where the fumigants reached 25 times the acceptable limit happened with one per cent of the containers examined and 71 per cent of the containers showed concentrations below the acceptable limit. In addition, the study was done in the sum- mer months when high tem- peratures could contribute to higher levels of fumigants — the incidence of high levels would be even lower in the winter, said the tribunal. The tribunal also noted that the studies were of fumigant lev- els in containers inside them or shortly after they were opened, so the measured concentra- tions wouldn't reflect what of- ficers would actually be exposed to. Once the containers were opened, the chemicals would start to dissipate, as the HSO determined. Given the CBSA procedures to be followed by officers in inland warehouses, this made it even more unlikely they would be exposed to a dan- ger from high concentrations of chemical fumigants, said the tribunal. The tribunal determined that the danger of exposure to high concentrations of fumigants was "pure speculation" and bor- der services officers perform- ing secondary examinations in inland warehouses would not likely be exposed to unsafe con- centrations. As a result, there was a very low likelihood of a workplace hazard that would reasonably be expected to cause injury or illness. The tribunal dismissed the appeal. For more information see: • Fauceglia v. Canada Border Services Agency, 2017 CarswellNat 6997 (Can. Occupational Health & Safety Trib.). Speculation < pg. 1 Safety procedures were sufficient to avoid chemical fumigants

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