At 09:30 hours on March 31st, 2008, the Federal Court of Appeal Canada commenced the hearing into Canadian National Railway’s (CN) Judicial Review Application.
As most of you know CN filed a complaint against the General Chairpersons to the Canada Industrial Relations Board (CIRB) claiming that the strike notice was invalid and any strike by the membership would also be invalid.
The UTU International supported CN’s complaint. CN sought considerable remedies against the General Chairpersons but strangely no damages or relief against the UTU International.
As you are no doubt aware on February 19th, 2007, the CIRB rejected the position of CN and the UTU International saying that the conduct and decisions of the General Chairpersons were in compliance with the Canada Labour Code; AT ALL TIMES.
The Court Hearing
The Respondents (the General Chairpersons) were represented by M. Church of the Law firm of Caley/Wray (Rex Beatty and many other UTU GCA representatives were in attendance in support of the named Respondents).
The Applicant CN Rail sent its two most Senior Counsel. The UTU International sent two Legal Counsel.
Mr. Church raised a preliminary matter advising the Justices that, in the opinion of the Respondents, the issue before the Court was now “moot”, this given everything that happened after the CIRB ruled on February 19th including the Final Offer Selection Process (FOS) which was ruled in favour of CN. As you know CN and the UTU International kept your GCA’s out of the process despite their efforts to help and participate in such. We argued that there were no good reasons to continue with CN’s fight against the Canadian CN - GCAs any further.
The point; why was CN and the UTU International so insistent on continuing this case against us (especially when considering the cost to do so).
The Decision
The Court, in a unanimous decision, after deliberating for only 20 minutes, ruled from the bench in our favour.
The Application for Judicial Review from CN Rail was dismissed by the Court.
Other Comments
More to follow once I return to Sault Ste. Marie – I will keep you posted.
Rex Beatty
Monday, March 31, 2008
Saturday, March 29, 2008
THINGS TO COME
I will be leaving early tomorrow morning (March 30th) for Toronto to attend the Judicial Review on Monday. As earlier stated, I will hopefully have a post after the presentatations are made to the Court.
In addition, Guy Scarrow will be in Cleveland representing GO-105 in regards to the appeal against UTU President Futhey (April 1st). I have a copy of the "written" brief that Guy will be presenting to the UTU Board of Directors and I will post once the argument is made.
Further, with respect to my personal complaint against CN Rail, I have submitted additional arguments given the lates activities of both CN and the UTU International. It is my intent to post this information upon my return from Toronto.
Please keep posted.
Rex Beatty
In addition, Guy Scarrow will be in Cleveland representing GO-105 in regards to the appeal against UTU President Futhey (April 1st). I have a copy of the "written" brief that Guy will be presenting to the UTU Board of Directors and I will post once the argument is made.
Further, with respect to my personal complaint against CN Rail, I have submitted additional arguments given the lates activities of both CN and the UTU International. It is my intent to post this information upon my return from Toronto.
Please keep posted.
Rex Beatty
Thursday, March 27, 2008
RESPONSE TO EMAILS
I have received a number of emails since establishing my blog and have attempted to respond to each and every one.
Having said this, I was recently advised that, although a "notification" of a reply from me was received by the sender, no text was displayed.
For anyone that has emailed this site and did not receive a "text" response, please accept my apology.
Anyone who did not recieve a "text" response from me please advise by sending another email.
Thanks,
Rex Beatty
Having said this, I was recently advised that, although a "notification" of a reply from me was received by the sender, no text was displayed.
For anyone that has emailed this site and did not receive a "text" response, please accept my apology.
Anyone who did not recieve a "text" response from me please advise by sending another email.
Thanks,
Rex Beatty
UPDATE: MARCH 31ST – JUDICIAL REVIEW – DECISION OF THE CIRB – LEGAL STRIKE
I will be traveling to Toronto shortly to attend the hearing on CN Rail’s Judicial Review application, this to be heard on March 31st.
As you may be aware on February 19th, 2007, the Canada Industrial Relations Board (CIRB) ruled that the strike initiated by the former Union Negotiating Team, resulting from a 96% membership strike mandate, was legal under the Canada Labour Code (the Board’s written decision was issued March 2nd, 2007).
CN Rail subsequently appealed the decision of the CIRB by way of a Judicial Review (JR) application.
The positions of all parties have been previously sent to the “Court” by way of “factums”. The Court will now address the issue(s) raised by the parties.
My view and summary of the respective parties’ positions are;
1. The Respondents (the General Chairpersons – and the Canadian Membership) will be represented by M. Church of CaleyWray. – The position of the Respondents is to have the “Court” dismiss CN Rail’s (and the UTU International’s) arguments – in other words, the Respondents position is to persuade the “Court” to let the CIRB decision stand.
2. CN Rail will be represented by their Counsel – essentially requesting that the “Court” take issue with the CIRB decision – in other words, CN Rail’s position is to have the “Court” dismiss the decision of the CIRB.
The UTU International, represented by Brian Shell, - will, as an Intervener – request the “Court” to take issue with the CIRB decision – in other words, as with CN Rail, the UTU International’s position is to have the “Courts” dismiss the decision of the CIRB.
FURTHER UPDATES:
It is my intentions to immediately post the results of the hearing March 31st, if the decision is rendered on that day.
I expect that the hearing will take most of the day so any posts will most likely not be available until later in the evening of March 31st.
Rex Beatty
As you may be aware on February 19th, 2007, the Canada Industrial Relations Board (CIRB) ruled that the strike initiated by the former Union Negotiating Team, resulting from a 96% membership strike mandate, was legal under the Canada Labour Code (the Board’s written decision was issued March 2nd, 2007).
CN Rail subsequently appealed the decision of the CIRB by way of a Judicial Review (JR) application.
The positions of all parties have been previously sent to the “Court” by way of “factums”. The Court will now address the issue(s) raised by the parties.
My view and summary of the respective parties’ positions are;
1. The Respondents (the General Chairpersons – and the Canadian Membership) will be represented by M. Church of CaleyWray. – The position of the Respondents is to have the “Court” dismiss CN Rail’s (and the UTU International’s) arguments – in other words, the Respondents position is to persuade the “Court” to let the CIRB decision stand.
2. CN Rail will be represented by their Counsel – essentially requesting that the “Court” take issue with the CIRB decision – in other words, CN Rail’s position is to have the “Court” dismiss the decision of the CIRB.
The UTU International, represented by Brian Shell, - will, as an Intervener – request the “Court” to take issue with the CIRB decision – in other words, as with CN Rail, the UTU International’s position is to have the “Courts” dismiss the decision of the CIRB.
FURTHER UPDATES:
It is my intentions to immediately post the results of the hearing March 31st, if the decision is rendered on that day.
I expect that the hearing will take most of the day so any posts will most likely not be available until later in the evening of March 31st.
Rex Beatty
Wednesday, March 26, 2008
VIDEO OF THE CANADIANS AT THE UTU CONVENTION
I have just now received a copy of a "disk" that contains the video of the Canadians at the UTU International Convention (August 2007). The video is some 2 hours and 20 minutes long and it is obvious that it took a great deal of time and energy to put it together. I am waiting for authorization to post and give credit to the "main" person who took the time and energy to make it happen.
It is my intent, if at all possible, to have the whole video available for view on this site. I am getting mixed advice as to whether or not it is possible. If anybody has any suggestions on how to make this happen please email this site at;
http://www.fortheworkers@hotmail.com
Please keep posted.
Rex Beatty
It is my intent, if at all possible, to have the whole video available for view on this site. I am getting mixed advice as to whether or not it is possible. If anybody has any suggestions on how to make this happen please email this site at;
http://www.fortheworkers@hotmail.com
Please keep posted.
Rex Beatty
Thursday, March 20, 2008
RIGHT TO REFUSE – A CASE STUDY
PLEASE NOTE: THE RIGHT TO REFUSE UNSAFE WORK IS AN INDIVIDUAL RIGHT UNDER THE CODE AND EACH CASE IS DECIDED ON ITS OWN MERITS. THE FOLLOWING IS PROVIDED FOR INORMATION PURPOSES ONLY.
_______________________________________________________________________
The following is a synopsis of a decision of the “Canada Appeals Office on Occupational Health and Safety”;
The appeal was made in regards to a decision rendered by HSO Helen Kosola on April 2nd, 2003 following the employee’s refusal to work.
The work refusal (a CP Rail Crew) was based on the concern of being involved in an accident while being transported by taxi in inclement weather conditions from Thunder Bay Ontario to Ignace Ontario, a distance of some 235 km.
It was the Train Crew’s view that traveling by taxi, under the weather conditions present, put them in peril.
THE INITIAL DECISION:
In her decision to reject the position of the Train Crew, HSO Helen Kosola, the investigation safety officer, at the time, relied, in part, on the following;
“A public highway is not a work place under the control of an employer.
The employer does not control the weather conditions to which an employee may be exposed.
The Ontario Provincial Police have the authority to close the highway under extreme weather conditions.
Environment Canada described the weather in Thunder Bay at the time of the refusal as, partial fog depositing ice.
There was no weather advisory from the OPP cautioning against travel.
Weather conditions in Thunder Bay at the time of the investigation were cloudy with some clear breaks.
The employer consults with Environment Canada weather watch before making a decision to dispatch a crew.
Information gathered that day by the employer was that the highway was open and weather conditions would not preclude travel by car
If necessary, employees are able to make radio contact en route.
The taxi driver had eighteen months experience as a taxi driver.
The taxi company uses more experienced drivers as well as newer vehicles to do the highway runs. The taxi Company takes into consideration the number of hours the driver has already been on shift.”
THE APPEAL:
The Train Crew, represented by Mr. Mike Church (of the law firm of CaleyWray) appealed the decision of HSO Helen Kosola.
Mr. Church (in referencing various jurisprudence) argued among other things, that the safety Officer did not take into consideration that any potential hazard or condition or future activity can constitute danger and,
The safety Officer did not find a CP official policy on the transportation of employees during various weather conditions.
Mr. Church held that;
“while the risk of being injured in an accident is present anytime an employee travels by car, that risk is normally low. However, when a car is required to travel through inclement weather, the risk of an accident is significantly increased. Inclement weather may include freezing rain, dense fog, or heavy snow”
THE DECISION:
Based on the testimony of the two employees the appeals Officer found that;
“the employees were traveling by taxi on an unlit road;
the headlights on the taxi were improperly aligned, therefore reducing visibility;
because of the fog and improper alignment of the taxi’s headlights they could not see the median line;
there was very heavy fog and freezing rain present;
visibility was impaired to the point of being reduced to 20 to 30 feet or less;
there was a near collision with a transport truck and the taxi; and finally,
because of the poor visibility, the taxi driver had difficulty to orient himself and find a safe place to turn around”
As a result of “these facts” the appeals Officer determined;
“the danger can be prospective to the extent that the hazard or condition or activity is capable of coming into being, not as a mere possibility but as a reasonable one, and that the action is reasonably expected to cause injury or illness to a person exposed to it before the hazard can be corrected or the activity altered.”
On that basis the appeals Officer stated;
“a potential hazard could reasonably happen, the hazard being that of a traffic accident and
the employee could reasonably be exposed to it as the employees are present in the vehicle being driven in the inclement weather;
It could reasonably be expected that this hazard (a traffic accident), would cause injury or illness to the employee; and finally,
It is reasonable to believe that the injury or illness would occur before the hazard or condition could be corrected or the activity altered.”
The appeals Officer therefore concluded;
“CP employees are required to travel by road in inclement weather conditions exposing them to the potential hazard of an accident which can reasonably be expected to cause injury before the conditions are corrected or the activity altered.”
In reaching the above conclusion the appeals Officer issued the following directives to CP;
“Therefore, you are HEREBY DIRECTED, pursuant to paragraph 145(2)(a) of the Code, to immediately take measures to correct the hazard, condition or alter the activity that constitutes a danger.
You are HEREBY FUTHER DIRECTED, pursuant to paragraph 145(2)(b) of the Canada Labour Code, Part II, to immediately cease to have employees travel by road during inclement weather conditions, until this direction has been complied with. The employer is to report to health and safety officer Kosola or another health and safety officer when he is in compliance with this direction.”
MY VIEW:
As earlier stated the right to refuse is an individual right under the Code and each case must be viewed on its own merits.
The above case clearly accepts the principle that;
The right to refuse unsafe work is not restricted to “present” danger but may also include reasonable expectations that there is a future risk of “danger” in regards to the employer’s work directives; this includes being directed by the employer to taxi in inclement weather.
Rex Beatty
_______________________________________________________________________
The following is a synopsis of a decision of the “Canada Appeals Office on Occupational Health and Safety”;
The appeal was made in regards to a decision rendered by HSO Helen Kosola on April 2nd, 2003 following the employee’s refusal to work.
The work refusal (a CP Rail Crew) was based on the concern of being involved in an accident while being transported by taxi in inclement weather conditions from Thunder Bay Ontario to Ignace Ontario, a distance of some 235 km.
It was the Train Crew’s view that traveling by taxi, under the weather conditions present, put them in peril.
THE INITIAL DECISION:
In her decision to reject the position of the Train Crew, HSO Helen Kosola, the investigation safety officer, at the time, relied, in part, on the following;
“A public highway is not a work place under the control of an employer.
The employer does not control the weather conditions to which an employee may be exposed.
The Ontario Provincial Police have the authority to close the highway under extreme weather conditions.
Environment Canada described the weather in Thunder Bay at the time of the refusal as, partial fog depositing ice.
There was no weather advisory from the OPP cautioning against travel.
Weather conditions in Thunder Bay at the time of the investigation were cloudy with some clear breaks.
The employer consults with Environment Canada weather watch before making a decision to dispatch a crew.
Information gathered that day by the employer was that the highway was open and weather conditions would not preclude travel by car
If necessary, employees are able to make radio contact en route.
The taxi driver had eighteen months experience as a taxi driver.
The taxi company uses more experienced drivers as well as newer vehicles to do the highway runs. The taxi Company takes into consideration the number of hours the driver has already been on shift.”
THE APPEAL:
The Train Crew, represented by Mr. Mike Church (of the law firm of CaleyWray) appealed the decision of HSO Helen Kosola.
Mr. Church (in referencing various jurisprudence) argued among other things, that the safety Officer did not take into consideration that any potential hazard or condition or future activity can constitute danger and,
The safety Officer did not find a CP official policy on the transportation of employees during various weather conditions.
Mr. Church held that;
“while the risk of being injured in an accident is present anytime an employee travels by car, that risk is normally low. However, when a car is required to travel through inclement weather, the risk of an accident is significantly increased. Inclement weather may include freezing rain, dense fog, or heavy snow”
THE DECISION:
Based on the testimony of the two employees the appeals Officer found that;
“the employees were traveling by taxi on an unlit road;
the headlights on the taxi were improperly aligned, therefore reducing visibility;
because of the fog and improper alignment of the taxi’s headlights they could not see the median line;
there was very heavy fog and freezing rain present;
visibility was impaired to the point of being reduced to 20 to 30 feet or less;
there was a near collision with a transport truck and the taxi; and finally,
because of the poor visibility, the taxi driver had difficulty to orient himself and find a safe place to turn around”
As a result of “these facts” the appeals Officer determined;
“the danger can be prospective to the extent that the hazard or condition or activity is capable of coming into being, not as a mere possibility but as a reasonable one, and that the action is reasonably expected to cause injury or illness to a person exposed to it before the hazard can be corrected or the activity altered.”
On that basis the appeals Officer stated;
“a potential hazard could reasonably happen, the hazard being that of a traffic accident and
the employee could reasonably be exposed to it as the employees are present in the vehicle being driven in the inclement weather;
It could reasonably be expected that this hazard (a traffic accident), would cause injury or illness to the employee; and finally,
It is reasonable to believe that the injury or illness would occur before the hazard or condition could be corrected or the activity altered.”
The appeals Officer therefore concluded;
“CP employees are required to travel by road in inclement weather conditions exposing them to the potential hazard of an accident which can reasonably be expected to cause injury before the conditions are corrected or the activity altered.”
In reaching the above conclusion the appeals Officer issued the following directives to CP;
“Therefore, you are HEREBY DIRECTED, pursuant to paragraph 145(2)(a) of the Code, to immediately take measures to correct the hazard, condition or alter the activity that constitutes a danger.
You are HEREBY FUTHER DIRECTED, pursuant to paragraph 145(2)(b) of the Canada Labour Code, Part II, to immediately cease to have employees travel by road during inclement weather conditions, until this direction has been complied with. The employer is to report to health and safety officer Kosola or another health and safety officer when he is in compliance with this direction.”
MY VIEW:
As earlier stated the right to refuse is an individual right under the Code and each case must be viewed on its own merits.
The above case clearly accepts the principle that;
The right to refuse unsafe work is not restricted to “present” danger but may also include reasonable expectations that there is a future risk of “danger” in regards to the employer’s work directives; this includes being directed by the employer to taxi in inclement weather.
Rex Beatty
Wednesday, March 19, 2008
TCRC MARCH 14TH SUBMISSION TO THE CIRB
As to my earlier post, please be advised that RunningTrades.com has posted the TCRC March 14th, letter to the CIRB.
You can view this letter at;
http://www.runningtrades.com/
Rex Beatty
You can view this letter at;
http://www.runningtrades.com/
Rex Beatty
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