Toronto school not compelled to tell teachers about asbestos being taken out of basement

An Ontario school board did not violate health and safety protocols when it didn’t inform teachers of asbestos removal work in the school’s basement, an arbitrator has ruled.

Western Technical and Commercial School is in Toronto. In 2017, the Toronto District School Board (TDSB) arranged to have asbestos removed from the school’s pump room in the basement of the building.

The work took place from Sept. 19 to 23 between the hours of 6 p.m. and 1 a.m. Western’s school day ran from 8:30 a.m. to 2:40 p.m. The head caretaker and pump room engineer were informed of the work in advance, as they were the only employees with access to the pump room. The principal received notice the day before the work began.

The TDSB followed its asbestos management program and building materials survey guideline, which stated that the “the project supervisor, team leader, or lead hand is to advise the principal/site manager and the head caretaker in advance of all asbestos work. The principal/site manager and the head caretaker are to inform their site staff and tenants who may be in close proximity to the planned asbestos work.”

The work area was sealed with no airflow to the rest of the building and the project followed proper procedure set out in the Ontario Occupational Health and Safety Act (OHSA).

On Sept. 21, the school hosted a curriculum night for parents in the evening. As with any after-hours event, the TDSB approved it and informed the caretaking staff so they knew who was in the building after hours.

The next day, several teachers contacted the union’s health and safety inspector to express concern that they weren’t notified of the asbestos work.

The inspector passed the concerns to the acting principal, who said that the work was already completed. She then forwarded a report to all staff that summarized the completion of the asbestos work and the air quality testing that had been done.

The union filed a grievance alleging that the TDSB failed to notify teachers about the asbestos removal work. It argued that it was possible for teachers to be in the building in the evenings when the work was performed, as they could sometimes stay past 6 p.m. — and several were at the curriculum night.

The union further argued that the TDSB’s guideline was unreasonable because it only required notice to people in close proximity to the work, despite the fact that asbestos exposure presented a “severe health threat.”

The union also said that the OHSA and the collective agreement required employers to take all reasonable precautions in the circumstances, which the TDSB didn’t in this case.

The arbitrator noted that the OHSA and its regulation on asbestos in building repairs required notification of workers who performed work “in close proximity” to asbestos “and may disturb it.” This excluded someone in a different area of the building, the arbitrator said.

“I note that the language contemplates that a worker must not only be in close proximity to the asbestos work, but their work activity itself is capable of disturbing the material,” said the arbitrator. “This, in my view, would require the worker to be either within the enclosed space or at least close enough that they could still disturb the asbestos.”

The arbitrator also found that the TDSB didn’t violate its guideline, which applied the same concept as the OHSA with regards to people in close proximity being informed.

In addition, since there was no violation of the OHSA and the collective agreement followed the OHSA, there was no violation of the collective agreement.

“I do not see how providing notice to teachers would have protected their health and safety, given the safety protocols that were already in place,” said the arbitrator in dismissing the grievance.