In Black Sheep Aviation & Cattle Co the appellant appealed a direction issued to it by a health and safety officer (HSO) pursuant to Section 145(1) of the Canada Labour Code. The direction was the result of an aircraft accident that took place on March 31 2011 in Mayo, Yukon Territories, in which a pilot employed by Black Sheep was killed. The direction required Black Sheep to take measures to correct a hazard or condition that constituted a danger to employee health and safety, which according to the HSO was Black Sheep's failure to ensure that employees accurately logged their flight time.

Facts

The essential facts, which were not contested on appeal, were relatively straightforward. Black Sheep is a full-service aviation company based in Whitehorse, with a satellite office in Mayo. Black Sheep offers small aircraft charter services using various aircraft, including a DHC-3 Otter. The accident that ultimately killed the Black Sheep employee involved the Otter. On March 31 2011, the date of the accident, Black Sheep was carrying out its commercial aviation operation pursuant to its company operations manual, which had been approved by Transport Canada. The portion of the manual that was subject to appeal was Article 5.2 on flight and duty time limitations and rest requirements. The two sections that the HSO focused on in issuing her direction read as follows:

"5.2.2 System

An electronic system (FLTDUTY XLS) tracks a running total of each pilot's flight time, duty time and rest periods.

Pilots are responsible for entering all relevant flight time and information into the program. This information shall include flying for other operators and/ or private aircraft. The pilots shall forward the data to the office for copy and retention on the office copy at lease once a month.

FLTDUTY XLS will indicate, on any entry date, whether the assignment or a potential assignment will exceed the limits appropriate at the time. It will indicate ample warning when a limit is approaching and will note a violation with reference to specific CARS in effect.

Should any person become aware that a pilot will exceed the allowed times, that person is to advise the Operations Manager. Once a pilot reaches a flight time limitation he/she is deemed to be fatigued and shall not continue on flight duty or be reassigned to flight duty until such time as he/she has the required rest.

5.2.3 Flight Time

The Company and the pilots share in the responsibility of ensuring that a pilot's total flight time for all flights, including flights in non-company aircraft, conducted by the pilot will not exceed:

· 1,200 hours in any 365 consecutive days;

· 300 hours in any 90 consecutive days;

· 120 hours in any 30 consecutive days, or, in the case of a pilot on call, 100 hours in 30 consecutive days; and

· 60 hours in any 7 consecutive days.

However, Operations Specification 092 allows for an increase in some of the above referenced flight time limitations. During 6 non-overlapping periods of 30 consecutive days within [a] 365 consecutive period, the flight time may be increased to a maximum of:

· 1200 hours in any 365 consecutive days;

· 900 hours in any 180 consecutive days;

· 450 hours in any 90 consecutive days;

· 210 hours in any 42 consecutive days;

· 150 hours in any 30 consecutive days; and

· 60 hours in any 7 consecutive days.

Also, the accumulated 30-consecutive day, 42-consecutive day and 90-consecutive day flight times may be reset to zero if the pilot is provided with at least 5 consecutive days free from duty."

In the HSO's report, it was noted that the Otter appeared to have come apart in the air and spread wreckage over an area measuring 800 feet by 1,300 feet. There were no witnesses to the accident and no distress call was made. The cause of the accident could not be positively determined.

In May 2011, before the issuance of the direction, Black Sheep voluntarily amended its flight and duty time reporting from monthly to daily. The amendment was filed with, and approved by, Transport Canada.

Appeal decision

Two issues arose in the appeal. The primary issue was whether Black Sheep's failure to ensure that the entries in the aircraft journey log made by its employees in accordance with the manual accurately reflected flight times constituted a danger and justified the issuance of the direction under appeal. The second issue was the HSO's refusal, contrary to the order of the appeals officer, to turn over witness statements and notes of interviews on the basis that they were Protected Level B and, in accordance with Section 144(5) of the code, could not be released. The HSO also claimed that the statements were subject to 'informer privilege', while Black Sheep argued that the failure to turn over the documents constituted a breach of its disclosure rights and of procedural fairness.

In addressing the first issue, the appeals officer had to determine whether the direction issued by the HSO was well founded and, as directed by Section 146.1(1) of the code, to examine the circumstances of the direction and the reasons given for it de novo.

The appeals officer first considered the basis for the HSO's direction, which was supposed to have been issued under Section 145(1) of the code. Section 145(1) authorises a HSO to issue a direction when he or she is of the opinion that a provision of Part II of the code or its regulations has been contravened. However, on closer consideration of the direction, the appeals officer determined that Black Sheep had not breached the provisions of the code or its regulations. Rather, the HSO found that Black Sheep had breached its own manual, which was neither a regulation nor a statutory enactment.

The appeals officer also took notice of a reference made in the direction to Section 124 of the code, citing Black Sheep's obligation to ensure the health and safety of every person employed by it. However, the appeals officer found that it was a stretch to interpret the broad obligation under Section 124 of the code as requiring the very specific duty to ensure that the entries of employees in the aircraft journey logbook were accurate.

As the appeals officer found that no breach of the code or its regulations had been specifically established in the direction, he was of the view that a determination of correctness required de novo consideration of whether a condition that constituted a danger existed at the time of its issuance. In considering whether a danger existed, the appeals officer applied Canada Post Corporation v Pollard, 2007 FC 1362, which requires the facts to establish that:

"(i) the existing or potential hazard or condition, or the current or future activity in question will likely present itself; (ii) the employee will be exposed to the hazard; (iii) the exposure to the hazard, condition, or activity is capable of causing injury or illness to the employee at any time; and (iv) the injury or illness will likely occur before the hazard or condition can be corrected or the activity altered."

After considering the circumstances of the case, the appeals officer determined that Black Sheep's failure to verify the accuracy of the entries made did not create a situation that constituted a danger. Of note to the appeals officer was that the manual clearly makes it the pilot's responsibility to enter all relevant flight information, including information pertaining to flights of private aircraft or for other operators, which is information over which Black Sheep had no control. The appeals officer also noted that the HSO had failed to take into account, at the time of issuing her direction, that Black Sheep had already changed the reporting requirements in the manual to daily, which likely reduced the risk of inaccurate information being logged. Finally, it was noted that the underlying hazard - inaccurate entries - was not in and of itself likely to directly cause injury or illness. As such, the appeals officer overturned the direction.

Although the direction was overturned on the merits, the appeals officer took the opportunity to admonish the HSO for refusing to make full disclosure to Black Sheep and found that the disclosure refusal constituted a breach of procedural fairness. However, as the appeal was sustained on the merits, the appeals officer declined to comment on the effect of the breach.

For further information on this topic please contact Carlos P Martins or Elliot Saccucci at Bersenas Jacobsen Chouest Thomson Blackburn LLP by telephone (+1 416 982 3800) or email (cmartins@lexcanada.com or esaccucci@lexcanada.com). The Bersenas Jacobsen Chouest Thomson Blackburn website can be accessed at www.lexcanada.com.

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