Air Canada ordered to notify employees of health hazard
The Federal Court has overturned a health and safety tribunal’s findings that Air Canada flight crew members didn’t have a legitimate reason to refuse work over strange smells on aircraft caused by leaking oil and other fluids.
On June 23, 2011, an Air Canada plane was scheduled to fly from Edmonton to Vancouver, and then from Vancouver to Toronto. The service director on the plane for both flights was Francisco Diaz Delgado and he was accompanied by two flight attendants on each flight.
Shortly after takeoff of the Edmonton to Vancouver flight, Diaz Delgado noticed a smell that reminded him of “blue cheese,” “dirty socks,” and a “smelly gym bag.”
After about 15 minutes, the smell disappeared but it was detectable 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 maintenance 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 danger to them: “danger” being defined in the code as “any existing or potential hazard or condition… that could reasonably be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected, or the activity altered… ”
Air Canada brought in a replacement service director and two replacement flight attendants. However, when they heard Diaz Delgado explaining to members of the workplace committee his reasons for refusing to work and the mechanics couldn’t pinpoint 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 director maintained their refusal.
Smell detected on another plane
Flight attendant Hadin Blaize was scheduled to work on a different Air Canada plane flying from Toronto 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 takeoff, the service director told Blaize about an entry in the cabin log that said an inoperative airpack or possible oil leakage had been detected, but fixing it had been put off until later. The maintenance log indicated an odour had been detected on the plane during takeoff 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 continuation 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 members had any symptoms. However, when the same plane left Vancouver, the crew noticed a strong odour and they had headaches. The first officer reported experiencing 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 investigated the work refusals of Diaz Delgado, Blaize and the other crew members. The officer determined that the smell was likely caused by jet engine oil and hydraulic fuel that could decompose at high temperatures. The vapours from the jet oil could cause vapours that could be irritating or harmful, but the officer found that a low threshold of vapours 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 Occupational Health and Safety Tribunal 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 tribunal 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 nausea and other symptoms could be psychological responses to foul odours.
Airline must warn of hazard
However, the health and safety officer 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 employees “may be exposed to hazardous 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 inconsistent with its upholding of the directions against Air Canada.
The court noted that when the tribunal upheld the directions issued to Air Canada, it found that the jet oil vapour in the plane’s environmental 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 refusals, it found the evidence didn’t show a causal relationship between the odour caused by leakage of jet oil and other contaminants and a danger to employee health and safety.
The court also said that “causation is proven on a balance of probabilities; that standard of proof does not require certainty.”
As a result, the court was concerned 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 tribunal’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 contradiction 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 being 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 directions against Air Canada dealt with investigation of a hazardous substance and the main decision dealt with work refusals.
The court granted CUPE’s appeal and set aside the decision of the tribunal’s appeals officer on the employees’ work refusals, ordering it to be returned for redetermination using the same evidence.
For more information see:
• Canadian Union of Public Employees v. Air Canada, 2017 CarswellNat 2627 (F.C.).
