Border officers concerned with fumigants in shipping containers but safety procedures sufficient: Tribunal
The Canada Occupational Health and Safety Tribunal has dismissed an appeal by two border services officers who refused to work because they perceived a potential danger from chemical exposure in warehouses where they inspected imported goods.
Ron Harris and Lucido Fauceglia were border services officers for the Canada Border Services Agency (CBSA). Their job duties included examining and verifying goods imported into Canada for commercial sale. This included searches at border entry points as well as commercial compliance — or secondary — examinations 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 warehouses were often shipped in marine shipping containers where chemical fumigants were used to kill invasive species that infiltrated cargo loads. The fumigants were put in the containers before they were sealed and were potentially hazardous to people. As a result, CBSA procedure was for border services officers to only proceed with examinations of these marine shipping containers after warehouse 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 warehouses, though other containers were often present. Once goods were unloaded from containers, it could take anywhere from hours to days before officers inspected them.
The CBSA implemented a new National Fumigant Program Policy on Aug. 5, 2014, which set out operating procedures for inland warehouse examinations 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 conduct commercial compliance examinations at four different 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 fumigants venting from the containers that could harm them. As a result, they both exercised their right to refuse work in dangerous conditions under the Canada Labour Code.
The next day, Fauceglia went to a different warehouse to conduct a secondary examination. When he arrived, he saw four marine containers with their doors open. He once again exercised his right to refuse work based on a concern the open containers were venting chemical fumigants. Three days after that, on Aug. 24, Fauceglia refused work for a third time when he saw five opened marine containers sitting near the loading dock of the warehouse to which he was assigned.
On Sept. 11, Harris was assigned to an inland warehouse to examine select goods from overseas, but saw two marine containers at the loading docks with their doors opened. Worried 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 refusals, a health services officer (HSO) visited all the warehouses where Harris and Fauceglia had refused work. The HSO reviewed CBSA documents and reports on marine container examination and its policies and programs for employees who may come into contact with fumigants. He also received guidance from an industrial technical engineer.
The HSO found there were no signs indicating the presence of fumigants and no documentation on whether the containers had been fumigated. The containers were not vented before being opened and warehouse workers didn’t use personal protective equipment when opening the containers. However, any gas within a container would begin 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 chemicals released from opened containers.
The HSO determined that the CBSA`s procedures and precautionary measures were enough to protect border services officers from exposure to unsafe levels of chemical fumigants and it was unlikely harmful levels of chemicals were in the warehouses 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 scenarios and underestimates the concentrations of fumigants to which border services officers are actually exposed.” They claimed that fumigants can exceed the CBSA’s parameters up to 25 times above the acceptable limit. They argued that the procedures should be developed based on the highest concentrations 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, Harris and Fauceglia said in their appeal.
The tribunal noted that a finding of danger “cannot be grounded in speculation or hypothesis,” but instead needed hard evidence 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 instance Harris and Fauceglia referred 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 summer months when high temperatures 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 levels in containers inside them or shortly after they were opened, so the measured concentrations wouldn’t reflect what officers 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 danger 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 border services officers performing secondary examinations in inland warehouses would not likely be exposed to unsafe concentrations. 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.).
