Canadian Labour Reporter

7 Canadian HR Reporter, a Thomson Reuters business 2017 CANADIAN LABOUR REPORTER NEWS reminded him of "blue cheese," "dirty socks," and a "smelly gym bag." After about 15 minutes, the smell disappeared but it was de- tectable again when the aircraft descended towards Vancouver and during its landing. Diaz Delgado checked the plane's logbook and discovered that an odour had been smelled in the cabin on June 18 and 19. The captain and Air Canada's mainte- nance team felt the odour didn't mean danger, but Diaz Delgado and the flight attendants refused to work under the Canada Labour Code, which allowed employees of federally regulated employers to refuse work if there was a dan- ger to them: "danger" being de- fined in the code as "any existing or potential hazard or condition… that could reasonably be expected to cause injury or illness to a per- son exposed to it before the haz- ard or condition can be corrected, or the activity altered… " Air Canada brought in a re- placement service director and two replacement flight atten- dants. However, when they heard Diaz Delgado explaining to mem- bers of the workplace committee his reasons for refusing to work and the mechanics couldn't pin- point the cause of the odour, they also refused to work on the plane for its flight to Toronto. When the captain explained that the odour would only be present for a short period of time during takeoff and landing, three of the flight attendants agreed to work the flight to Toronto. Diaz Delgado and the other service di- rector maintained their refusal. Smell detected on another plane Flight attendant Hadin Blaize was scheduled to work on a different Air Canada plane flying from To- ronto to Calgary and then from Calgary to Vancouver on June 4, 2012. As the aircraft left the gate, she noticed a smell that she described as "similar to vomit/ strongly smelly feet/shoes." As the plane prepared for take- off, the service director told Blaize about an entry in the cabin log that said an inoperative airpack or possible oil leakage had been de- tected, but fixing it had been put off until later. The maintenance log indicated an odour had been detected on the plane during take- off and landing on four different occasions before Blaize's flight, with a crew member noticing a haze in the rear galley earlier that day. The odour dissipated shortly after takeoff, but Blaize had some mild nausea during the flight. When the plane arrived in Calgary, Blaize learned the same plane would be used for the con- tinuation to Vancouver. She then exercised a work refusal. Her symptoms had gone away, but she saw her family doctor the next day. The crew on the plane noticed a "smelly socks" odour on the flight to Vancouver, but no crew mem- bers had any symptoms. However, when the same plane left Van- couver, the crew noticed a strong odour and they had headaches. The first officer reported experi- encing serious nausea. One of the flight attendants had a metallic taste in her mouth and couldn't sleep that night. A health and safety officer in- vestigated the work refusals of Diaz Delgado, Blaize and the other crew members. The of- ficer determined that the smell was likely caused by jet engine oil and hydraulic fuel that could de- compose at high temperatures. The vapours from the jet oil could cause vapours that could be irri- tating or harmful, but the officer found that a low threshold of va- pours wasn't harmful and a smell didn't indicate a hazard. As a result, the officer found there was no danger under the Canada Labour Code. The Canadian Union of Public Employees (CUPE), Air Canada Component, appealed the health and safety officer's findings. An appeals officer of the Occupa- tional Health and Safety Tribu- nal Canada dismissed the appeal, agreeing that there wasn't a real danger and the employees were not permitted to refuse work. In reaching its decision, the tri- bunal considered evidence from experts who agreed the odour was caused by leaking jet oil and other fluids, but didn't believe there was a hazardous level of contaminants in the aircraft cabins and said nau- sea and other symptoms could be psychological responses to foul odours. Airline must warn of hazard However, the health and safety of- ficer also issued two directions to Air Canada under the code on the basis that the airline had failed to warn its employees of a "known or foreseeable health hazard" or to investigate a situation where em- ployees "may be exposed to haz- ardous substances." At the same time the tribunal dismissed the appeal, it upheld the directions against Air Canada. CUPE appealed the tribunal's decision, arguing it was inconsis- tent with its upholding of the di- rections against Air Canada. The court noted that when the tribunal upheld the directions is- sued to Air Canada, it found that the jet oil vapour in the plane's en- vironmental control systems met the requirement of a "foreseeable health hazard" that obligated Air Canada to ensure employees are made aware of the issue. When the tribunal looked at the work re- fusals, it found the evidence didn't show a causal relationship be- tween the odour caused by leak- age of jet oil and other contami- nants and a danger to employee health and safety. The court also said that "cau- sation is proven on a balance of probabilities; that standard of proof does not require certainty." As a result, the court was con- cerned that the tribunal didn't seem to analyze the employees' symptoms from the vapour — symptoms that were consistent with the material safety data sheet for jet oil when there is leakage. The court found that the tribu- nal's appeals officer's decision on its own wasn't unreasonable given the evidence. However, since the same tribunal found the odours indicated a foreseeable health hazard using the same evidence in upholding the directions to Air Canada, this called the decision into question. "The contradictory findings in the decision and the (upholding of the directions) are a badge of unreasonableness, and the con- tradiction was not sufficiently explained so as to maintain the transparency and intelligibility of the decision," said the court. "The (upholding of the directions) finds the employees were endangered while the decision finds that there was no danger to the employees. The words danger and endanger are the same with the former be- ing the noun and the latter a verb." The court also found that the hazard and the way the employees detected it was the same in each decision. The main difference was that the upholding of the di- rections against Air Canada dealt with investigation of a hazardous substance and the main decision dealt with work refusals. The court granted CUPE's ap- peal and set aside the decision of the tribunal's appeals officer on the employees' work refus- als, ordering it to be returned for redetermination using the same evidence. For more information see: • Canadian Union of Public Em- ployees v. Air Canada, 2017 CarswellNat 2627 (F.C.). < CUPE pg. 1 'Contradictory findings' in tribunal decision, court rules Photo: Matej Kastelic (Shutterstock)

• Cover