this newsletter in PDF
In this issue:
1. News & Upcoming Events
2. Random Drug & Alcohol Testing
3. Medical Marijuana and the Transportation Workplace
4. Undue Suffering of Livestock
5. Applicable Law in Aviation Incident
6. Cockpit Voice Recorder Data
7. Transport Canada to Update Flight Crew Rest Requirements
8. Sleep Apnea Update
1. News & Upcoming Events
Transportation Lawyers Annual Conference & Canadian Transport Lawyers Association Semi Annual Meeting, April 26-29, 2017, Santa Fe, New Mexico. Rui Fernandes, Gordon Hearn, Kim Stoll and Louis Amato-Gauci will be attending. Kim Stoll will be moderating a panel on “New Solutions for Old Obstacles: Cross-Border Motor Carrier Operations in North America”. Louis Amato-Gauci will be a speaker on this panel. Kim Stoll will also be moderating a panel on “Through the Spyglass: The Future of Act of God Defence in Intermodal Transport.”
Ontario Trucking Association Annual Spring Golf Classic, May 16th, 2017, Milton Ontario.
North American Rail Shippers Association Annual Conference, May 23-25 2017, San Francisco.
Canadian Board of Marine Underwriters 100th Anniversary Conference, May 24-25 2017, Montreal. Rui Fernandes, Kim Stoll and Alan Cofman will be attending.
Canadian Inland Ports Conference, May 24-25 2017, Calgary.
Rui Fernandes will be speaking at The Chartered Institute of Logistics and Transport (North America) Transport Outlook Conference in Mississauga on June 6th and 7th, 2017. He will be speaking on a panel on “Five Hot Topics in Transportation Law, Risk Management and Insurance” and on a panel on “Governance”.
Toronto Transportation Club’s Women in Transportation Luncheon will be held on June 13th, 2017 at the Palais Royale in Toronto. Kim Stoll, Carole McAfee Wallace and Jaclyne Reive will be in attendance.
The Canadian Maritime Law Association will be holding its annual meeting and seminar in Toronto on June 9th, 2017. Rui Fernandes is the seminar organizer. James Manson is one of the speakers on “Update on Maritime Law”.
Gordon Hearn will be speaking at the Eye For Transport: 3PL & Supply Chain Summit in Chicago, Illinois on June 15. He will be speaking on a panel addressing legal trends in the 3PL and supply chain marketplace.
Fernandes Hearn LLP is one of the sponsors for the Chartered Institute of Logistics and Transport in North America (“CILTNA”) conference in Toronto.
CILTNA invites you to a special two-day event on how to profit from the rapid pace of change facing transportation and logistics professionals today.
Day One: come and discuss with experts the challenges and opportunities arising from disruptive change in the world economy:
• With big policy changes recommended by David Emerson, big infrastructure investments promised by government, and a new roadmap from the Minister of Transport - where do we go from here?
• Taking stock of a post-U.S. election world, what needs to be discussed and who needs to be involved to begin working toward an integrated, long term and modernized sector?
• Recognizing the realities of a trading nation, what needs to happen to position the sector for the next fifteen years’ growth?
Day Two: the 2017 CILTNA Transport Outlook Conference will tackle “disruptive change: positioning the sector to grow and prosper”
The Mississauga Convention Centre
(North West corner of Huronontario Street (HWY 10) & Derry Road West in Mississauga, Ontario)
Tuesday June 6th and Wednesday June 7th, 2017 from 8:00am to 4:30pm
2. Court Provides Insight into Random Drug and Alcohol Testing
Generally speaking, courts and arbitrators in Canada have held random drug and alcohol testing is not permitted. The recent April decision of the Ontario Superior Court in Amalgamated Transit Union, Local 113 v. Toronto Transit Commission, 2017 ONSC 2078 provides some insight into the analysis a court may undertake when assessing random testing.
In 2013 in Communications, Energy and Paper Workers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd (“Irving”), the Supreme Court of Canada confirmed a company may conduct random alcohol testing for a safety-sensitive position where the company can establish it operates a dangerous workplace and there is a general problem with alcohol abuse in the workplace. This two-pronged test is a very high obstacle to overcome.
In Irving The Supreme Court set out three specific instances, even in safety-sensitive industries where testing may occur:
(i) there is reasonable cause to believe that the employee is impaired while on duty,
(ii) the employee has been directly involved in a workplace accident or significant incident,
(iii) the employee is returning to work after treatment for substance abuse.
The Canadian approach to drug and alcohol testing, unlike the situation in the U.S., places significant emphasis on privacy rights.
The fact that a workplace is dangerous or safety-sensitive is merely the beginning of the inquiry and the balancing of interests.
Irving set out the blueprint:
a) No employee can be subjected to random, unannounced alcohol or drug testing save as part of an agreed rehabilitative program
b) An employer may require alcohol or drug testing of an individual where the facts give it reasonable cause to do so
c) It is within the prerogative of management’s rights under a collective agreement to also require alcohol or drug testing following a significant incident, accident or near miss where it may be important to identify the root cause of what occurred
d) Drug and alcohol testing is a legitimate part of continuing contracts of employment for individuals found to have a problem with alcohol or drug use. As part of an employee’s program of rehabilitation, such agreement or policies requiring such agreements may properly involve random, unannounced alcohol or drug testing generally for a limited period of time, most commonly two years. In a unionized workplace, the union must be involved in the agreement which establishes the terms of a recovering employee’s ongoing employment, including random, unannounced testing. This is the only exceptional circumstance in which the otherwise protected employee interest of privacy and dignity of the person must yield to the interests of safety and rehabilitation, to allow for random and unannounced alcohol or drug testing.
Since the Irving decision, random drug testing has been struck down in countless cases.
The case law emphasizes a distinctly Canadian approach requiring cogent evidence of “enhanced safety risks such as evidence of a general problem with substance abuse in the workplace” to justify random testing in a safety-sensitive workplace. Additionally, any testing must be likely to effectively address the problem.
Amalgamated Transit Union, Local 113 v. Toronto Transit Commission (“TTC”)
In this recent decision the Amalgamated Transit Union, Local 113 (“ATU”)applied for an interlocutory injunction restraining implementation of random drug and alcohol testing of members of the ATU until the completion of an arbitration hearing concerning the validity of the TTC’s drug and alcohol testing policy.
In September 2008, the TTC approved implementation of a “Fitness for Duty Policy” (the “Policy”). The Policy took effect on October 17, 2010. The purpose of the Policy was to “[e]nsure the health and safety of Commission employees and the safety of Commission customers and members of the public.”
The Policy was intended to achieve this goal by requiring that TTC employees and senior management be mentally and physically fit to perform their assigned tasks without any limitations resulting from, among other things, the use or effects of drugs or alcohol. The Policy allows for the identification of individuals who create safety risks in the workplace due to drug or alcohol use and for the treatment and return to work of employees with substance abuse disorders. It also provides for disciplinary action against employees in defined circumstances.
The Fitness for Duty Policy, provided for drug and alcohol testing of employees in safety sensitive, specified management and designated executive positions. The Policy required drug and alcohol testing in the following situations:
a) where there is a reasonable cause to believe alcohol or drug use resulted in the employee being unfit for duty;
b) as part of a full investigation into a significant work-related accident or incident;
c) where an employee is returning to duty after violating the Fitness for Duty Policy;
d) where an employee is returning to duty after treatment for drug or alcohol abuse; and
e) as a final condition of appointment to a safety sensitive position.
After the TTC announced its Fitness for Duty Policy but prior to it taking effect, the ATU filed a policy grievance under its Collective Agreement. In the normal course, the policy grievance was referred to arbitration, which started on March 8, 2011 before Arbitrator M.K. Saltman. Even though six years have elapsed, the arbitration is not yet completed. The ATU has not yet completed its case and the TTC’s case has not started.
The ATU’s position before the Arbitrator in the arbitration was that the entire Fitness for Duty Policy is contrary to the Collective Agreement and the Ontario Human Rights Code, R.S.O. 1990, c. H.19.
In the arbitration, the ATU asked for:
a) an order prohibiting the respondent from continuing the implementation of the Fitness for Duty Policy;
b) an order requiring management to receive human rights and antidiscrimination training with respect to the matters raised in the grievance; and
c) damages for breach of its right to be free from discrimination, for mental distress and for other “non-economic losses”.
On October 19, 2011, the TTC amended the Fitness for Duty Policy to require random alcohol and drug testing.
The TTC had advised the applicants that random testing would apply to employees in safety-sensitive, specified management, senior management and designated executive positions including that of the Chief Executive Officer.
Employees randomly selected for testing would take an alcohol breathalyzer test and an oral fluid drug test.
Administration of breathalyzer tests and the collection of oral fluid samples would be carried out by qualified and trained technicians from DriverCheck Inc., a company that provides alcohol and drug testing services to more than 5000 employers in Canada [under agreed contracts with employees].
Random testing was added to the Fitness for Duty Policy in October 2011. The approval of implementation of random testing, however, was delayed for several years. The TTC approved implementation of random testing on March 23, 2016, slightly less than three years after the release of the Irving decision.
When the TTC announced implementation of random testing, the ATU brought the motion for an interlocutory injunction.
The Court looked at the circumstances surrounding the decision to institute random drug and alcohol testing. It noted the following:
• First, external candidates interested in working for the TTC in a safety sensitive or designated management or executive position must pass a pre-employment urinalysis test for drug use.
• The judge was satisfied that a reasonable person would assume that if he or she had to test negatively for drugs and alcohol to get a job with the TTC, then he or she would be required to continue to test negatively for drugs and alcohol to keep that job with the TTC.
• A notable number of TTC employees do not want to work with persons who test positive for drugs or alcohol. “This attitude is not surprising. If a tragic accident happens, its consequences will not be limited to the victims and the person who was possibly unfit. Everyone caught up in the occurrence will be affected by the resulting legal proceedings that can go on for years.”
• It was very likely that an employee with a substance use disorder would report to work in an impaired condition.
• The TTC’s experience between October 2010 and December 2016, was that 187 (or approximately 2.4%) external applicants for designated or safety-sensitive positions — individuals who knew they would be subjected to drug testing — returned positive urinalysis tests for drugs.
• The negative attitude of TTC’s employees towards working with individuals who test positive for alcohol or drugs, was one of the circumstances surrounding the TTC’s decision to institute random drug and alcohol testing. The judge was satisfied that TTC management and its employees, both of whom assist people in making approximately 1.8 million journeys on the TTC’s subway, buses and streetcars every day, expect that steps will be taken to make sure that those in safety critical positions are fit for duty. This safety concern would reasonably diminish their expectation of privacy concerning their drug and alcohol consumption.
• The nature of the workplace was also part of the circumstances surrounding the respondent’s decision to institute random drug and alcohol testing. In Irving, the workplace was a pulp and paper mill. In this case the workplace included the subway, buses and streetcars that travel throughout the city. The workplace genuinely is Toronto itself.
• The procedure for and method of testing were also circumstances surrounding the TTC’s decision to institute random drug and alcohol testing. Just because an expectation of privacy is diminished does not mean it is eliminated.
• The Fitness for Duty Policy contained controls intended to ensure accountability for the information collected. Further, there was no evidence that, under the current testing policy, the results of drug and alcohol tests were used in a manner inconsistent with the reasonable expectations of the persons submitting to the testing.
• The procedures for collection, laboratory analysis and reporting of the drug tests provided for in the Policy gave employees an opportunity to challenge and explain their test results before the results were reported to the respondent.
• The fact that a refusal to submit to a random test was considered a policy violation, just like a positive test result, added a coercive element to the Fitness for Duty Policy. The judge was satisfied that it is impossible to effectively enforce the Policy if an employee can simply refuse to test. “There is no other sensible way to view a refusal to submit to a random test.”
• The judge was satisfied that the nature of the Fitness for Duty Policy was not only disciplinary but also remedial. He was satisfied that employees had some degree of control over the information collected and generated under the policy and that there was accountability for the information collected.
• The judge was satisfied that Fitness for Duty Policy was reasonably tailored to its stated health and safety purpose.
• Part of the circumstances surrounding the TTC’s decision to institute random drug and alcohol testing was the state of the law of damages with respect to breaches of privacy. The Ontario Court of Appeal recognized a common-law tort of invasion of privacy in the context of intrusion upon seclusion in Jones v. Tsige, 2012 ONCA 32 (CanLII). In that case, the Court of Appeal found that the defendant committed the tort when she used her position as a bank employee to access private bank records of her ex-spouse’s common-law partner 174 times. Significantly, for the purposes of this motion, the Court of Appeal awarded damages for the privacy violation committed by the defendant. The judge was satisfied that the considerations in awarding damages outlined in Jones v. Tsige at paragraph 87 can be adapted to this situation so that a court can calculate damages for wrongfully obtaining breath or fluid samples from employees, should that be the result of the arbitration.
• The judge was not persuaded by the evidence that instituting random drug and alcohol testing created the likelihood of psychological harm to the TTC employees. Despite random testing being commonplace in the US, Australia and other foreign jurisdictions, there was is no evidence that employees subject to random testing in those countries suffer any emotional or psychological harm.
By denying the injunction, the Court has permitted the TTC to begin to implement its random drug and alcohol testing program pending the outcome of the arbitration. It has provided important insight into the analysis that a court may undertake when assessing random testing.
Rui M. Fernandes
Follow Rui M. Fernandes on Twitter @RuiMFernandes and on Linkedin. See also his blog at http://transportlaw.blogspot.ca
3. Medical Marijuana and the Transportation Workplace
The Canadian employer must always ensure it is in compliance with a variety of regulatory requirements, from employment standards to workplace safety to human rights. The employer’s obligations are further complicated when an employee has a prescription for medical marijuana. This article examines the regulatory framework applicable to medical marijuana (or more properly “medical cannabis”), its impact on driving and other safety sensitive positions, and provides an overview of the obligations and rights of each of the employer and employee in these circumstances. This article is the first in our continued review of the treatment of cannabis in the transportation workplace. There will be a follow up article to address the use of recreational cannabis, the legalization of which does not give an employee the right to use it in the workplace. Employers can restrict the use and possession of recreational cannabis in the workplace, as they do for alcohol.
Regulatory Framework for Medical Cannabis
The Access to Cannabis for Medical Purposes Regulations, (“ACMPR”), made under the federally Controlled Drugs and Substances Act, and which replaces the Marihuana Medical Access Regulations,sets out the way in which an individual can access cannabis for medical purposes.
Legal access to dried marijuana for medical purposes has developed over the past 17 years. Initially, individuals with authorization from their health care practitioner could access dried marijuana for medical purposes by producing their own marijuana plants, designating someone to produce it for them or by purchasing it from Health Canada. In 2013 the laws were amended to create conditions for a commercial industry responsible for the production and distribution of marijuana for medical purposes. In 2015, the Supreme Court of Canada, in the decision of R. v. Smith ruled that restricting legal access to only dried marijuana was unconstitutional and those with a medical need had the right to use and make other cannabis products. The Federal Court decision of Allard v. Canada (*1), in February 2016, held that a law requiring individuals to get their marijuana only from licensed producers violated liberty and security rights protected by section 7 of the Canadian Charter of Rights and Freedoms, as the individuals did not have “reasonable access” to medical marijuana. These developments in the case law have lead to the current ACMPR, the key features of which are:
Part 1 – framework for commercial production by licensed producers of quality-controlled fresh or dried marijuana or cannabis oil or starting materials (seeds and plants) in secure and sanitary conditions;
Part 2 – individuals can apply to Health Canada to produce a limited amount of cannabis for their own medical purposes; and
Parts 3 and 4 – transitional provisions, consequential amendments to other regulations, and expansion of scope of products beyond dried marijuana
Health Canada is responsible for licensing and overseeing the commercial industry, and for registering individuals to produce a limited amount of cannabis for their own medical purposes (or to have another individual produce it for them). Health Canada has not reviewed information on the safety or effectiveness of cannabis (*2) and has not approved it for therapeutic use; as a result, Health Canada has not assigned cannabis a DIN (drug identifier number). (*3)
There are two basic forms of cannabis, which can be inhaled or ingested. Tetrahydrocannabinol (“THS”), the psychoactive form known for its intoxicating effect, and cannabidiol (“CBD”), which has no psychoactive effects. The two forms can also be mixed in one prescription. (*4) Producers of medical cannabis are highly regulated and subject to rigorous and random inspection.
In order to obtain cannabis for medical purposes, an individual must obtain a prescription from his/her health care practitioner, and the prescription must set out the daily quantity of dried marijuana expressed in grams, for a period of use of up to one year. No matter how an individual obtains cannabis (through a licensed producer or own production), the individual possession limit is the lesser of a 30-day supply or 150 grams of dried marijuana or the equivalent amount if in another form.
Driving and Cannabis
Driving while impaired by any drug, including cannabis, is a criminal offence; however, determining how much cannabis will result in impairment is challenging. Unlike alcohol, there is no clear guidance with respect to how much is too much, and no reliable test to measure impairment.
A number of sources have provided general information about the relationship between cannabis and driving. Health Canada has published on its website a warning that using cannabis or any cannabis product can impair concentration, the ability to think and make decisions, and reaction time and coordination. It can affect motor skills including the ability to drive. It can also increase anxiety and cause panic attacks and in some cases paranoia and hallucinations. The potential therapeutic and adverse effects vary depending on the amount of cannabis used, the concentration of cannabinoids in the product, the frequency of use, the patient’s age, medical condition, previous experience with cannabis, and use of other prescription and non-prescription drugs. In addition, the absorption of cannabinoids when taken orally is slow and erratic, and the onset of acute effects is delayed and generally lasts a lot longer, compared to smoking or vapourizing.
Most importantly, Health Canada further states that the ability to drive or perform activities requiring alertness may be impaired for up to 24 hours following a single consumption.
In that regard, the College of Family Physicians of Canada published, in 2014, some guidelines for the use of medical cannabis including the following:
Patients taking dried cannabis should be advised not to drive for at least:
4 hours after inhalation
6 hours after oral ingestion
8 hours after inhalation or oral ingestion if the patient experiences euphoria
The Canadian Medical Association Driver’s Guide: Determining Medical Fitness to Operate Motor Vehicles (8th edition, 2012), provides current medical information for doctors to use when counselling patients on the effects of the state of their health on their ability to drive. A doctor has a duty to report to the Ministry of Transportation (“MTO”) if a patient is not fit to drive. Such reports are then reviewed by the Medical Review Branch of MTO, referring to the Canadian Council of Motor Transport Administrators: Medical Standards for Drivers (December 2015), which provides that drivers using medical cannabis should be advised not to drive for at least 5 hours and preferably for at least 24 hours after use. Further, drivers using medical cannabis in excess of the average usage rate of 1.5 grams or 2 joints a day should be counseled to avoid driving during over-average consumption. Finally, the standard encourages individual assessment regarding impairment and habitual use and dependence.
The detection and assessment of cannabis use in a driver is more complex than for alcohol. A 2008 amendment to the Criminal Code provides police with authority to demand a driver suspected of being under the influence of drugs to submit to a Standardized Field Sobriety Test (SFST) which consists of 3 tests: walk and turn, one-leg stand and examination of eye movements, known as nystagmus. A driver who shows impaired performance on the SFST is required to accompany the officer to the station for evaluation by an officer trained in the Drug Evaluation and Classification (“DEC”) program. A DEC assessment involves a standardized 12-step procedure to assess the common effects associated with various drugs and concludes with a demand for a sample of blood, urine or oral fluid– refusal to comply is a Criminal Code offence.
Recent amendments to the Ontario Highway Traffic Act, in section 48.0.1 provide that where a police officer is satisfied that a driver’s ability to operate a motor vehicle is impaired by a drug, or a combination of a drug and alcohol (following the administration of the SFST) the officer shall request that the driver’s licence be suspended for:
3 days for a first suspension
7 days for a second suspension
30 days for a third or subsequent suspension
This licence suspension is in addition to any impaired driving charges under the Criminal Code.
In the United States, there is zero tolerance. The Federal Motor Carrier Safety Administration (“FMCSA”) provides that drivers taking medical marijuana cannot be certified. This is not surprising given that US bound drivers are subject to random drug and alcohol testing, and cannabis can remain in the blood stream for up to 30 days. The reality is that a driver can test positive but not be impaired.
Obligations/Rights in the Workplace
An employee has the right to privacy when it comes to his or her medical information. An employer has a duty under occupational health and safety regulations to take every precaution reasonable for the protection of a worker; an employer also has a duty to protect public safety. In all of the circumstances, the best way for a Canadian employer to ensure that it meets its obligations to ensure a safe work environment and to protect public safety, and to ensure the protection of an employee’s private medical information, is by the implementation of a clearly drafted workplace policy.
Key provisions of a workplace policy should include definitions of the following: “medical cannabis”, with reference to the ACMPR; “fitness for duty”; and “safety sensitive position”. The policy should also create a duty on the employee to disclose, to a designated person in the workplace, the fact that they have a prescription for medical cannabis, if employed in a safety sensitive position, or if the indicated or experienced side-effects may cause impairment to their ability to perform their job functions or may compromise their safety or the safety of others. The policy should also clearly provide for the accommodation of the employee with a medical cannabis prescription, under applicable human rights legislation. Finally the policy should set out the consequences for non-compliance.
Under both federal and provincial human rights legislation, an employer must accommodate an employee with a “disability”, which is broadly defined and includes physical disability and mental impairment. A medical condition that requires a prescription for medical cannabis will likely meet this definition. The employer is obligated to accommodate the employee up to the point of undue hardship.
While it may be tempting to implement a policy that prohibits anyone with a medical cannabis prescription from working in a safety sensitive position, an employer needs to proceed cautiously to ensure that its workplace policies are not rendered unenforceable because they are discriminatory. A discriminatory standard will only be upheld if it can be justified as a bona fide occupational requirement (“BFOR”). For US bound drivers, it may be possible to implement a blanket prohibition on driving while being treated with medical cannabis, given the FMCSA standard, and the high risk of failing a random drug test. Whether US bound or not, an employee with a medical cannabis prescription must be accommodated.
Disclosure of the fact of a prescription for medical cannabis may not be enough information for an employer to engage in the accommodation process. While an employer is not entitled to know the medical diagnosis that has lead to this form of treatment, the employer is entitled to confirmation from the employee’s medical professional that the employee has a disability and that medical cannabis is required to treat the disability. The employer may also be entitled to information about the dosage amount, frequency of use, form in which it is taken and the expected duration of the treatment. The medical information requested must be the least intrusive of the employee’s privacy while still allowing the employer to make an informed decision about the form of accommodation to provide.
An employer should proceed with caution if the employee’s doctor provides an opinion that the employee is able to drive, or perform a safety sensitive role. It is difficult to measure an individual’s sensitivities to cannabis and doing so may require an independent medical examination by a physician knowledgeable about occupational health and the impact of medical cannabis on workplace safety. If an employer determines that the employee cannot drive or perform the safety sensitive work, the employer may be required to move the employee to a non-safety sensitive position, or place the employee on a job-protected leave of absence.
The Take Away
In summary, an employee who uses medical cannabis to treat a medical condition that meets the definition of a disability under human rights legislation, must be accommodated by the employer, to the point of undue hardship. While an employer may come to the conclusion that no employee taking medical cannabis can drive or work in a safety sensitive position, the employer must be careful not to implement a discriminatory policy with a blanket prohibition, which fails to take into account individual assessment, unless the standard being implemented can meet the definition of a BFOR.
Going Forward – Legalization of Recreational Cannabis
No doubt our readers have heard that the present government has taken steps to legalize recreational cannabis and has tabled the Cannabis Act with the provinces having responsibility for the laws relating to sale and distribution. It is expected that the law will take effect in July of 2018. The new Act will not allow for the unrestricted use and possession of cannabis in the workplace in the same vein as alcohol use is restricted. Amendments to the Criminal Code include authorizing the police to use oral fluid screening devices and creating new driving offences of being over the legal limit regarding drug impairment are expected.
Employers will soon be required to amend their policies and procedures regarding use and possession of recreational cannabis in the workplace. Until then, use and possession of cannabis continues to be illegal. We will keep our readers apprised.
Kim E. Stoll and Carole McAfee Wallace
Follow Kim E. Stoll on Linkedin
(*1) 2016 FC 236 (CanLII)
(*2) According to the Mayo Clinic the cons also include structural changes in the brain, risk of heart attack, chronic cough, hallucinations, weakening of the respiratory system and compromise of the immune system. Potential benefits of medical cannabis use include mild pain relief, reduction of muscle spasms, tremors and pain of MS and prevention of nausea caused by chemotherapy and increase of appetite in those with HIV.
(*3) The lack of DIN has caused typical group benefits plans to deny claims for coverage for medical cannabis. Recently, however, Loblaw Companies Limited has announced that it has arranged for coverage for its employees for medical cannabis to treat certain limited medical conditions being those that have compelling evidence that supports its use in medical therapy. Shoppers Drug Mart (owned by Loblaw) has apparently applied to be licensed producer of medical cannabis.
(*4) There are other forms of medicinal cannabis not canvassed here including cannabichromene (CBC) and cannabigerol (CBG) and all of the various raw, heated and aged types.
4. Who May Be Liable for Undue Suffering of Livestock during Transport?
When is a consignee liable for the acts of a third party driver that it retained? What is the scope of a consignee’s “control” over goods? When transporting animals intended for slaughter, under what conditions is “undue suffering” deemed to occur? The Federal Court considered all of these issues in its decision on March 7, 2017 in the case of Maple Lodge Farms Ltd. v Canadian Food Inspection Agency (*1).
The Federal Court of Appeal dismissed Maple Lodge Farms’ application for an order quashing the decision of the Canadian Agricultural Review Tribunal (“CART”) that it had transported or caused to be transported spent hens in circumstances where undue suffering was likely to be caused to the hens due to undue exposure to weather, contrary to s. 143(1)(d) of the Health of Animals Regulations (the “Regulations”). (*2) In connection with the decision, the CART imposed an administrative monetary penalty of $6000. (*3)
“Spent hens” are hens which are at the end of their laying life and are usually sold by egg farmers to meat processors. Due to their age and tendency to peck each other in close quarters, spent hens have very few feathers. As a result of their careers laying eggs, many have calcium and muscle loss, and are fragile. Accordingly, they are vulnerable to environmental changes and the cold. (*4)
Maple Lodge Farms, located in Brampton, operated as a meat processor and was accepting a transfer of 7,680 spent hens from an egg farmer in New York. A trailer arrived at the egg farm at 7:30am to transport the hens to Maple Lodge Farms, where it arrived at midnight the same day. A finding of fact was made that Maple Lodge Farms did not have control over the transportation or the hens until they arrived in Brampton that night. (*5)
That morning (in January), the temperature ranged from -7 to -14 degrees Celsius and it was windy. It took four hours in the extreme cold to round up and catch the hens, place them in drawers and load them. The unheated trailer had mechanical problems with closing the tailgate and the hens remained stationary therein for four hours. The spent hens that were in the middle and close to each other may have been warmed but those near the outside would not. (*6)
It took 12 hours to get to Brampton. The weather in Quebec when the trailer entered the province was -18.1 (-27 with windchill). The trailer which was owned by Maple Leaf Farms used passive ventilation where very cold outside air infiltrates the trailer through gaps in the tarp as it moves, resulting in the hens’ exposure to cold temperatures over a long period of time. The driver also reported a strong headwind all the way and an expert witness testified that this would have pushed even more cold air into the trailer. (*7)
When the trailer arrived in Brampton, it was -5.9 (-8 with windchill). Upon arrival, the driver reported that there were 100 dead hens while Maple Lodge staff noticed only 12. The facility was undergoing a mandatory sanitation process and accordingly, the hens could not be slaughtered right away. Instead, they were kept in an unheated barn for 12 hours (a stage referred to as “lairage”) where the temperatures ranged between -2 and -4. The parties agreed that lairage is considered part of the transportation process and should be considered under s. 143(1)(d) of the Regulations. Staff took external temperatures of the crates in the trailer in the barn and they raged from 2 degrees to 12.4 degrees, although the inside temperatures were thought to be warmer. (*8)
When the trailer was finally unloaded 12 hours later, 863 hens (12% of the load) were found dead. (*9) Based on these facts, the CFIA issued a notice of violation against Maple Lodge Farms and an administrative monetary penalty of $7,800.
Section 143(1)(d) of the Regulations reads as follows:
“No person shall transport or cause to be transported any animal in a railway car, motor vehicle, aircraft, vessel, crate or container if injury or undue suffering is likely to be caused to the animal by reason of […] undue exposure to the weather.”
This is an absolute liability offence, meaning that the Minister must only show that the person named in the notice of violation committed the violation on a balance of probabilities. There is no requirement to prove the mental element / that there was intent and there is no due diligence defence. (*10)
These Regulations were made under s. 64(1) of the Health of Animals Act, which allows for regulations to be made for “the humane treatment of animals” including “the care, handling, and disposition of animals”, “the manner in which animals are transported” and “the treatment or disposal of animals that are not cared for, handled or transported in a humane manner.” (*11)
Maple Lodge Farms argued that the CART improperly accepted the CFIA’s expert witness’ evidence but the Federal Court of Appeal found that his testimony was supportable on the evidentiary record and therefore was within the range of acceptability and defensibility. (*12)
The CFIA’s expert, a veterinarian with training in animal welfare, husbandry and livestock transportation, testified that the hens would have been shocked from the extreme cold at the outset of the transport from the four hours that were taken to round them up and then the further time spent waiting at the egg farm before departing. [*13) He stated that they would never have fully recovered during the drive from New York to Brampton because of the temperature and additional cold air being forced into the trailer. He testified that the hens would not recover until they were in heated facilities. (*14)
This expert went on to say that their time spent in the unheated barn upon arrival at Maple Lodge Farms resulted in continued suffering and increased the risk of a negative outcome. (*15)
Reasoning of the CART
Based on the CFIA’s expert witness’ testimony, the CART concluded that the spent hens should never have been subjected to further unheated transport once they were shocked by the cold. (*16)
The CART found that “the fact of arrival of a compromised load, irrespective of the knowledge of Maple Lodge Farms as to the state of compromise, mean[s] that a violation has thereby been committed by Maple Lodge Farms” where “compromise” means actual or potential injury or undue suffering, due to undue exposure to the weather. It found that injury or undue suffering was likely from the time the hens were originally loaded and that Maple Lodge Farms “from the time of assumption of control, is responsible for any condition of the load existing at that time.” (*17)
Reasoning of the Federal Court of Appeal
The Court found that the CART erred in its application of absolute liability by applying automatic or vicarious liability. When it decided that Maple Lodge Farms was liable for causing undue suffering at the instant that the hens arrived at their facility, it neglected to consider that the suffering was actually caused by others and not Maple Lodge Farms. By doing so, the CART made Maple Lodge Farms automatically liable without considering whether it was actually culpable for the act in question under the Regulations, or alternatively, the CART made it vicariously liable for the acts of others rather than its own acts. (*18)
That being said, the Court noted that when a re-determination by an administrative decision-maker, such as the CART, could not reasonably result in a different outcome, then the decision should not be quashed. It held that when applying the law to the facts, the CART could only reasonably reach one conclusion, being that Maple Lodge Farms is still liable for a violation of s. 143(1)(d) of the Regulations, but for a different reason. (*19)
The Court noted that the Regulations should be interpreted to mean that the slaughter of animals is a legal activity and to consider that subsection (d) refers to “undue” suffering rather than any suffering. It follows previous case law that suggests that “undue” in connection with this section means “undeserved”, “unwarranted”, “unjustified” or “unmerited”. (*20)
The Court noted and Maple Lodge Farms conceded that the prolongation of undue suffering during lairage (which is considered part of transportation) can fall within s. 143(1)(d) and that wounded animals should not be subjected to greater pain by being transported. Accordingly, any further suffering from the transport is “undue”. (*21)
The Court held that “if a party has control over animals that, as a result of the conduct of others, have suffered unduly by reason of undue exposure to the weather and will continue to suffer unless something is done, and if that party has the ability to prevent further undue suffering but does nothing, it extends or prolongs undue suffering and can be liable under paragraph 143(1)(d).” (*22)
The CART found that the undue suffering of the hens continued while they were under the control of Maple Lodge Farms during the lairage as a result of Maple Lodge Farms’ inaction. The only way that it could escape liability is if it could prove that it was not culpable as there was nothing it could do to prevent the prolongation of the suffering. As this was not the first time that Maple Lodge Farms had received a shipment with spent hens who were suffering from undue exposure to weather, it should have anticipated the circumstance and made protocols or contingency plans to deal with it. (*23)
The CART found that Maple Lodge Farms’ operations and practices were deficient as there was no plan in place to deal with compromised shipments arriving during mandatory sanitization. It also had no procedure in place to allow for advice by the egg farm or driver that the load was compromised or the amount of time that the hens had spent at the egg farm in the extreme cold. If it had received that information, it could have declined the load and instructed the driver to transfer it to the nearest slaughterhouse rather than deliver it all the way from New York to Brampton. Additionally, it could have provided some heating in the barn at times where sanitization was occurring or delayed shipments so that spent hens only arrived when the facility was operating. (*24)
Accordingly the Court of Appeal upheld the CART’s decision that Maple Lodge Farms was liable under s. 143(1)(d) of the Regulations, but on the basis that it failed to take action to avoid prolonged undue suffering once the spent hens were in its care.
Based on the facts of this case, the Court held that the consignee’s control over the animals did not start until it actually had them in its possession. The consignee was also not found to be liable for the undue suffering of the animals that occurred while in they were in the possession of the shipper or the carrier, as the consignee did not “cause” that suffering. However, the Court found that pursuant to s. 143(1)(d) of the Regulations, the consignee was liable for prolongation of the animals’ suffering once they were in its possession because the consignee failed to act to avoid the prolongation and the circumstances of their suffering during “lairage”, a period that is still considered “transportation”, fell under the scope of the section at issue of the Regulations. While the consignee may not have been able to reverse the situation, it could have acted to avoid aggravating the undue suffering of the animals upon their delivery.
When arranging (i.e. causing) the transportation of livestock, in order to avoid liability associated with undue suffering of animals under s. 143(1) of the Regulations, shippers should ensure that the livestock is kept in suitable conditions to avoid undue suffering prior to the transportation. The shipper should also ensure that it provides the carrier with information regarding the state of the livestock and any precautions to be taken during transport.
Similarly, consignees should have proper procedures in place to avoid a situation to the present case where there is a period of lairage upon delivery of the livestock and the undue suffering of the animals either commences or is prolonged during that time.
Given that this section of the Regulations imposes liability on any “person who transports or causes to be transported” any animal, whether in a railway car, motor vehicle, aircraft, vessel, crate or container, carriers across all modes of transportation are more likely to be caught by this sub-section and the remainder of the section in general.
Accordingly, carriers should take the following precautions when transporting livestock:
(1) Consider the animal being transported and whether it is subject to any particular vulnerabilities. If so, extra precautions may need to be taken.
(2) When arriving to pick up the load of livestock, request a report from the shipper as to the conditions that the livestock have been in for the past few hours. Consider whether there are any risks of undue suffering if the livestock is then transported.
(3) Ensure that the method of transportation / means of containment is adequately constructed and does not have any insecure fittings, the presence of bolt-heads, angles or other projections.
(4) Ensure that the fittings and other parts method of transportation / means of containment are adequately padded, fenced off or otherwise obstructed.
(5) Ensure that the method of transportation / means of containment has adequate ventilation.
(6) If the method of transportation / means of containment is a railway car, motor vehicle, aircraft or vessel, ensure that it is (a) strewn with sand or fitted with safe and (b) secure footholds for the livestock and littered with straw, wood shavings or other bedding material. If the livestock is being transported for less than 12 hours, you need only comply with (a) or (b) but not both.
(7) Sea carriers must ensure that, if they are taking an equine on board a vessel for exportation out of Canada during November 1 to March 31, the facilities and equipment on board are provided and maintained so as to ensure that the equine does not become ill from sea-sickness due to rough seas.
(8) Ensure that you monitor the state of the livestock and keep records to show their condition upon receipt, during transportation, and upon delivery.
(9) Consider including in contracts of carriage a requirement that shippers notify the carrier of any concerns with the state of the livestock upon pickup and/or any extra precautions that may be needed, failing which the shipper is required to indemnify the carrier for any charges under the Regulations that arise out of the shipper’s failure to inform the carrier as described above.
(10) Similarly, consider including in contracts of carriage, a provision denying liability for any undue suffering that may result from the acts or omissions of the consignee during lairage and ensure that the proper consignee to whom the livestock is delivered is the named consignee on the bill of lading.
(*1) 2017 FCA 45.
(*2) CRC, c. 296.
(*3) Supra note 1, para 2.
(*4) Ibid., paras 4, 6.
(*5) Ibid., para 5.
(*6) Ibid., paras 7-8.
(*7) Ibid., paras 7-9.
(*8) Ibid., paras 7, 9-11.
(*9) Ibid., para 11.
(*10) Ibid., para 16-17.
(*11) SC 1990, c. 21, s. 64(1)(i).
(*12) Supra note 2, para 38.
(*13) Ibid., para 35.
(*15) Ibid., para 36.
(*17) Ibid., paras 40-41.
(*18) Ibid., para 45.
(*19) Ibid., paras. 46, 51, 56.
(*20) Ibid., paras 61-62.
(*21) Ibid., para 64.
(*22) Ibid., para 67.
(*23) Ibid., paras 68, 73.
(*24) Ibid., paras 74-75
5. Applicable Law in Aviation Incident / Loi applicable à l’évaluation des dommages des ayants droit de la victime d’un accident aérien
Following the crash of a small aircraft in Ontario, upon a planned stop during a flight from Alberta to Quebec, the family members of a passenger sued the pilot and his professional corporation. All occupants of the aircraft resided in Quebec whereas four of the family members of the deceased passenger resided in B.C. The parties asked the Court to determine the law governing the calculation of damages. The plaintiffs invoked Ontario law as the lex loci delicti (the law governing the tort claim), whereas the defendants preferred Quebec law. The Court of Appeal confirmed the decision of first instance that these circumstances represented a rare case where it was appropriate to derogate inter-provincially from the application of the rule of lex loci delicti given that the plaintiffs not from Quebec did not even have a legal right to claim except under Quebec law.
Le crash mortel d’un avion Lake 250 à l’aéroport de Pickle Lake en Ontario en octobre 2012 a donné lieu à une importante décision de la Cour d’appel du Québec concernant la loi applicable à la quantification de dommages dus aux ayants droit d’une victime (*1).
Jean Nadeau venait d’acheter l’aéronef et il s’était rendu en Alberta avec son neveu Yannick ainsi qu’avec un pilote et un mécanicien pour prendre livraison de l’avion. Le pilote opérait le vol pour rapatrier le groupe au Québec où ils résidaient tous. L’accident a eu lieu lors de l’atterrissage lors d’une escale à Pickle Lake. Jean Nadeau fut le seul survivant.
Les ayants droit de Yannick Nadeau ont déclenché une action contre les héritiers du pilote ainsi que sa société, alléguant que l’accident avait résulté d’erreurs du pilote.
Les parties ont soumis une question de droit à la Cour conformément à l’article 209 du Code de Procédure Civile (*2) afin de déterminer quelle était la loi applicable à l’évaluation du préjudice subi par les demandeurs. Les demandeurs ont invoqué la loi ontarienne tandis que les défendeurs alléguaient que le droit québécois régissait cette question.
La règle de base pour déterminer la loi applicable à l’obligation de réparer un préjudice est prévue à l’article 3126 du Code Civil (*3) qui dispose que la loi applicable est celle de l’État où le fait générateur du préjudice est survenu. Toutefois, si le préjudice est apparu dans un autre État, la loi de cet État s’applique si l’auteur devait prévoir que le préjudice s’y manifesterait.
Le juge de première instance a décidé que cette première exception prévue au premier alinéa de l’article 3126 était inapplicable étant donné que le pilote Nadeau n’était pas censé prévoir qu’un préjudice par ricochet apparaitrait au Québec et en Colombie Britannique lors de sa prétendue négligence (*4).
En son second alinéa, l’article 3126 prévoit une deuxième exception lorsque l’auteur et la victime ont leur domicile ou leur résidence dans le même État, auquel cas c’est la loi de cet État qui s’applique. En l’espèce, quatre demandeurs étaient domiciliés en Colombie Britannique et donc cette dérogation à la lex loci delicti était inapplicable. Par conséquent, a priori selon l’article 3126 du Code Civil, la loi ontarienne s’appliquait.
En revanche, le juge Beaupré JCS a écarté la loi ontarienne au profit de la loi québécoise au motif que « la loi du centre de gravité réel» de la situation est la loi québécoise, notamment les domiciles québécois de la plupart des parties impliquées et le fait que la quasi-totalité de la réclamation monétaire est celle de la veuve et des orphelins de feu Yannick Fournier, lesquels sont domiciliés au Québec (*5).
Les demandeurs ont interjeté appel de cette décision de première instance. L’appel était entendu par trois juges, dont Mainville JCA qui a exprimé la décision unanime du banc ayant rejeté l’appel.
Mainville JCA a d’abord confirmé que les deux exceptions à la règle de la lex loci delicti prévues à l’article 3126 étaient inapplicables en l’espèce.
La première exception requiert que le lieu d’apparition du préjudice soit géographiquement distinct du lieu du fait générateur et que cette survenance étrangère soit prévisible. En l’espèce, les réclamations par ricochet portant sur la souffrance subie par le feu Yannick Nadeau suite au crash, et le solde des réclamations portaient sur les pertes directes des membres de la famille résultant de la perte du soutien financier ainsi que de la souffrance morale causée par le décès de M. Nadeau. Selon la Cour d’Appel, il serait incongru que la loi ontarienne régisse certaines réclamations tandis que les lois québécoises et britanno-colombiennes régissent d’autres réclamations.
Pour la seconde exception prévue au deuxième alinéa de l’article 3126, celle-ci était manifestement inapplicable étant donné que quatre demandeurs/appelants résidaient en Colombie-Britannique.
La Cour d’appel a aussi confirmé le jugement de première instance en ce qu’il a écarté la loi ontarienne a priori applicable en application de l’article 3126 du Code Civil. Le juge Mainville a invoqué l’article 3082 du Code Civil au soutien de cette conclusion. Cette disposition permet exceptionnellement que « la loi désignée par le présent livre n’est pas applicable si, compte tenu de l’ensemble des circonstances, il est manifeste que la situation n’a qu’un lien éloigné avec cette loi et qu’elle se trouve en relation beaucoup plus étroite avec la loi d’un autre État ».
Mainville JCA a expliqué qu’il n’est qu’à titre exceptionnel, extraordinaire et très rare que la loi d’une province du Canada où a lieu le fait générateur de la responsabilité civile soit écartée pour manque de lien avec la situation. Malgré ce seuil très élevé, il était atteint dans le cas de l’espèce.
En l’espèce, à l’exception des réclamations relativement mineures portées par les beaux-parents britanno-colombiens, la deuxième exception de l’article 3126 s’appliquait. En outre, les réclamations des beaux-parents ne seraient pas recevables en application de la loi ontarienne (*6).
Or, les appelants niaient l’application de la loi québécoise au profit de la loi ontarienne pour évaluer les dommages sur la prémisse que certains appelants résidaient en Colombie Britannique arguant ainsi de l’inapplicabilité de la deuxième exception trouvée à l’article 3126, alors que ces mêmes appelants n’ont une cause d’action recevable qu’en vertu de la loi québécoise.
Ces circonstances justifient, selon Mainville JCA, la rare et exceptionnelle application de l’article 3082 du Code Civil pour écarter la lex loci delicti au profit de la loi du for québécois.
(*1) Giesbrecht c. Nadeau (Succession de) 2017 QCCA 386
(*2) Code de Procédure Civile C-25.01
(*3) Code Civil du Québec CCQ-1991
(*4) Giesbrecht c. Nadeau (Succession de) 2016 QCCS 4929
(*5) Jugement de première instance para. 41
(*6) La Loi sur le droit de la famille LRO 1990, c F.3 de l’Ontario prévoit d’une manière exhaustive les parents ayant une cause d’action lorsqu’une personne subit des lésions ou décède à cause de la faute d’autrui. Selon l’arrêt Orden c. Grail  3 RCS 437 de la Cour Suprême du Canada, il ne convient pas pour les tribunaux d’ajouter à la liste des personnes admises à agir afin de compléter la disposition législative.
6. TSB Ordered to Produce Cockpit Voice Recorder Data
Six survivors of a plane crash near the Vancouver airport commenced an action against the Thunderbird Air Inc. in the BC Supreme Court.(*1) The pilots died in the crash, but the plane had been equipped with a cockpit voice recorder. The Plaintiffs sought access to audio data, which was in the possession of the Transportation Safety Board (the "TSB") - who had seized the device as part of its investigation. The Plaintiffs also sought access to a transcript that the TSB produced and annotated.
The seizure had been made pursuant to the Canadian Transportation Accident Investigation and Safety Board Act (the “Act”) (*2), which authorizes the TSB to investigate incidents like the underlying crash, including making findings as to the causes and contributing factors underlying them. However, those findings are not binding on any parties and the Act specifically provides that the findings may not be construed as assigning fault or liability, even if that inference might logically follow.
It is worth noting that this type of evidence would ordinarily be discoverable in civil litigation but for the Canadian Transportation Accident Investigation and Safety Board Act, which grants it to the TSB. In other words, the legislation has the effect of inhibiting a plaintiff's procedural rights.
Counsel for the TSB appeared on the motion to assist the Court, but the TSB took no formal position. Although one would likely consider it to be in the interest of the TSB to see such requests denied, it is not their role to take a position.
The Honourable Chief Justice Hinkson released reasons for judgment in February of 2017. His Lordship referred to two prior cases where the legislation had been considered. The first was a Federal Court of Canada maritime case, Wappen-Reederei GmbH & Co. KH v. M.V. Hyde Park.(*3) The other was an Ontario Superior Court of Justice air case, Société Air France et al v. Greater Toronto Airports Authority.(*4)
In the Wappen-Reederei marine case, litigants had sought the production of bridge recordings addressing the collision of two vessels. In that case, the Honourable Madam Justice Gauthier, found that the statutory privilege was not absolute. She found that the exercise of judicial discretion ought to include an assessment of the nature of the litigation; the probative value of the evidence and whether it was necessary for the proper determination of a core issue before the court; whether there are other means to get the information; and the possibility of a miscarriage of justice. In the circumstances, the Court declined to order production, finding that the recordings were of poor quality and they offered "little evidentiary value"(*5). In any event, there was insufficient evidence before Her Honour with respect to the necessity(*6).
In the Société Air France case, the Honourable Mr. Justice Strathy, then a trial level judge (now Chief Justice of the Ontario Court of Appeal), also found that a balancing was necessary. However, His Honour came to a different result. In conducting his review, Strathy J. emphasized the public interest in the administration of justice and the importance of the privilege. On the facts before him, His Honour found that "there [was] no basis on which one could conclude that the release of the CVR [cockpit voice recorder] under appropriate restrictions of confidentiality, would interfere with aviation safety, would damage relations between pilots and their employers, or would impede investigation of aviation accidents"(*7). Thus, an order was made that the data be disclosed to the parties, their lawyers, and their experts, on condition that it not be disclosed to anyone else.
In BC's Thunderbird Air case, the Honourable Mr. Justice Hinkson ordered production of the voice recorded data, but not the annotated transcript. His rationale was the following:
I accept that the litigation in which the disclosure is sought is of import not just to the parties but requires the disclosure requested to satisfy the public interest in the administration of justice, which in this case outweighs in importance the privilege attached to the on-board recording by virtue of s. 28 of the Act.
While there is a large volume of evidence from other sources, the death of the two pilots makes their evidence unavailable and obviates any suggestion of reliability pertaining to their evidence.
While it contains some idle conversation between the two pilots, and any concerns as to privacy can be addressed pursuant to a confidentiality order and the limited scope of disclosure of the CVR.
There are no pending disciplinary or criminal proceedings against the pilots, and any concerns as to privacy can be addressed pursuant to a confidentiality order and the limited scope of disclosure of the CVR.
Given the evidence of Mr. Graham, the expert witness for the plaintiffs, I a satisfied that there is a real risk that the parties and the trier of fact will not have the best and most reliable evidence concerning the central issues in this case if the CVR is not released to counsel for the plaintiffs.
I therefore order that the TSB produce a copy of the CVR, but not the partial transcript it prepared, to counsel for the plaintiffs and the defendants for use in this litigation.(*8)
Thus, although the case law is extremely thin, it would appear that there is now a good likelihood that TSB-seized cockpit voice recorder data will be ordered disclosed, at least to counsel and experts, if it has real value. The TSB's own notes and documents will not be ordered disclosed. The caveats are simply that the data will not be available for use at trial and that its further disclosure to other parties will be prohibited. It may require expert evidence for an applicant to confirm for the court that the same value of evidence could not otherwise be obtained.
In a crash scenario, particularly where key witnesses – such as pilots – have been injured or killed, it is hard to imagine that an applicant would not generally be able to obtain on-board recordings, particularly given the court's willingness to impose conditions as necessary.
Alan S. Cofman
(*1) Cohen et al. v. Northern Thunderbird Air Inc., 2017 BCSC 315.
(*2) S.C. 1989, c. 3
(*3) 2006 FC 150.
(*4) 2009 O.J. No. 5337 (S.C.).
(*5) supra note 3 at para. 75.
(*6) ibid. at para. 76.
(*7) supra note 4 at para 137.
(*8) supra note 1 at paras. 23-28.
7.Transport Canada to Update Flight Crew Rest Requirements
On February 12, 2009, Colgan Air Flight 3407, operating as Continental Connection, crashed en route from Newark to Buffalo, killing all aboard. The National Transportation Safety Board in the United States cited fatigue of crew as a contributing cause, albeit recognizing that the degree of contribution could not be quantified (*1).
There followed sweeping changes to the regulatory environment. On November 19, 2009, the Council of the International Civil Aviation Organization (“ICAO”) enacted Standards governing crew rest and fatigue, which had been approved in March, 2009 (*2). On June 13, 2011, the same Council adopted further standards governing Fatigue Risk Management Systems (“FRMS”).
ICAO Standards are however not proactively enforced by coercive sanctions. Accordingly, despite setting up a Fatigue Management Working Group in 2010, the Canadian Aviation Regulations have not been amended. Progress has been delayed by a change of domestic administration, as well as by delicate discussions with industry stakeholders with competing interests.
Crew and their representatives advocate for more stringent regulations citing the overarching principle of public safety. On the other hand, operators are concerned about the lack of flexibility afforded in a heavily regulated sphere and the consequential economic impact lf complying with reduced flight/duty times for flight crew.
The Canadian context, with many thin routes connecting northern regions with small communities, poses a particular problem, given that these services are barely economical to operate. The industry has already served notice that routes may be axed if new regulations require the flights to be “double crewed” with the second crew required to operate the second flight (*3).
These risks notwithstanding, in the time since the Colgan air disaster, Air Canada fortunately averted a disaster aboard AC878 flight to Zurich. Pilot fatigue was cited by the Transportation Safety Board as having contributed to the first officer’s error in mistaking the planet Venus for another aircraft. This mistake resulted in the first officer engaging in a descent to avoid collision, which caused injuries to 14 passengers who were not wearing seatbelts (*4).
After various delays, Transport Canada published a revised Notice of intent to amend the Civil Aviation Regulations in the Canada Gazette on March 25, 2017 (*5). These are not the final draft regulations, which will follow likely in June 2017 and be subject to formal consultation.
The publication by Transport Canada represents the department’s latest iteration of regulating this sensitive component of the industry. The draft foresees a 12-month period for airline operators to implement the stricter rules, whereas a 48-month grace period is to be afforded to commuter and air taxi operators.
This distinction recognizes that the passenger airlines have much less work to do to ensure compliance, as their incumbent systems are already more stringent than the existing regulatory framework, owing to the strength of the collective bargaining mechanism in guaranteeing certain operating conditions for pilots.
The new rules will reduce the maximum flying time of a pilot in any 28-day period to 112 hours. Pilot advocates argue that this remains insufficient to guarantee safety, citing the fact that only Bangladesh and India report a threshold of higher than 100 hours per 28-day cycle, while countries such as Argentina, Brazil, Colombia and Korea have a threshold of 90 hours or less for pilots’ 28-day cycle flight time (*6).
Other prescriptive rules to be revised under the Notice will be an increase of time between last consumption of alcoholic beverage and operation of an aircraft from 8 hours to 12 hours. In addition to the 112-hour rule for a 28-day period, ceilings of 300 hours in any 90 consecutive days and 1000 hours in any 365 consecutive days will also apply.
Maximum fight duty periods are also abbreviated under the Notice. The total number of hours will be determined by taking accounting of numerous variables including the number of flight sectors operated, start time of flights, and whether the flight is conducted under visual flight rules. The total number of hours permitted oscillates between 9 and 13 hours, down from the current maximum of 14 hours. The maximum flight duty period may be augmented with the presence of additional flight crew members, with the duration of extension contingent also upon the quality of crew rest facilities provided to the crew while non-operational.
The proposal also envisages the possibility for an operator to escape the rigid application of the prescriptive rules where a FRMS plan is put into place to ensure operational flexibility and flight crew alertness.
These proposals will certainly go through further refinement before taking effect. Pilots already consider the proposal to be “watered down” (*7), while operators will resist more stringent rules that will threaten the economics and even viability of their operations in this vast and thinly populated country.
(*1) National Safety Transportation Board, Accident report – Loss of control on approach Colgan Air, Inc. operating as Continental Connection Flight 3407 Bombardier DHC-8-400, N200WQ
(*2) ICAO is the United Nations agency for international civil aviation. It legislates through annexes to the Convention on International Civil Aviation (“Chicago Convention”), and in this case through Annex 6, Operation of Aircraft
(*3) Comments of Mr. John McKenna, President of the Air Transport association of Canada
(*4) Transportation Safety Board of Canada, Aviation Investigation Report A11F0012
(*5) Canada Gazette Vol. 151, No. 12 - March 25, 2015
(*6) Air Canada Pilots Association, Flying too close to the edge: Canadian Flight and Duty Times: The Urgent Need for Change
(*7) Comments of Capt. Dan Adamus, president of the Canadian arm of the international Air Line Pilots Association (“ALPA”)
8. Sleep Apnea Update
At the end of last year two Federal Motor Carrier Safety Administration (FMCSA) advisory committees (the Medical Review Board and the Motor Safety Carrier Advisory Committee) provided their approval on recommendations regarding which truck operators should be screened for obstructive sleep apnea before being cleared to drive.
The final version of the recommendations retains the conditional criteria to refer truckers for sleep apnea testing, based mostly around their BMI and other factors that could indicate obstructive sleep apnea.
Truck operators with a Body Mass Index of 40 or higher would be flagged for sleep apnea screening. Those truckers would receive a 90-day medical certification, during which time they must have an in-lab or at-home sleep study. If diagnosed with obstructive sleep apnea, they would need to begin treatment within the 90-day period.
Truckers with a BMI of 33 or higher would also be subject to screening if they meet at least three of the following criteria:
**Is 42 or older
**Is a postmenopausal female
**Has high blood pressure
**Has a neck size greater than 17 inches (males) or 15.5 inches (females)
**Has a history of heart disease
**Has had witnessed apneas
**Has a small airway to the lungs
**Has untreated hypothyroidism
**Has micrognathia (undersized jaw) or retrognathia (clinical terminology for a kind of overbite)
Such truckers would receive the same 90-day certification during which time they must have an in-lab or at-home sleep study. If diagnosed with obstructive sleep apnea, they would need to begin treatment within the 90-day period.
Truckers diagnosed with moderate to severe obstructive sleep apnea could receive a medical certification from their examiner that lasts no longer than a year, rather than the standard two-year certification.
Toronto Rehab Foundation is in the process of setting up a study to determine the extent of sleep apnea in the trucking industry in Canada. It will also look at whether there is a causal connection between sleep apnea and accidents. The following is an excerpt on what the Foundation, is doing.
From Toronto Rehab
Toronto Rehab is home to the top rehabilitation research centre in the world, and has been at the forefront of sleep apnea research since the 1970’s. Obstructive Sleep Apnea (OSA) is a condition in which a person stops breathing at least 10-15 times during each hour of sleep. OSA is associated with a number of health concerns, such as high blood pressure, stroke, and heart failure, and puts patients at increased risk for motor vehicle accidents. OSA affects approximately 8% of adults, but traditional diagnosis is expensive, inconvenient, and can involve long wait times – causing many patients to go undiagnosed.
Given the major health concerns and driving safety risks linked to the condition, OSA poses a major concern for the Canadian trucking industry. Toronto Rehab is helping expand and accelerate specialized research, teaching and clinical work to improve diagnosis and develop new treatments surrounding this complex disorder.
We are proud to share this report which highlights the incredible work made possible by our generous partners in support of Canada’s first large-scale study to identify the prevalence of Obstructive Sleep Apnea in the trucking industry. Thank you to our partners, Northbridge, Old Republic Canada, Canadian Trucking Alliance, Intact Insurance, Marsh, Aviva and Transure for your generous investments that is helping reform and improve Canadian road safety.
Toronto Rehab – Where Incredible Happens
Our society is in the midst of a long-term trend where resources devoted to preventative medical care will far exceed those for acute care. This new model will focus on keeping people healthy rather than treating them after they become ill. Toronto Rehab is leading the way in meeting this demand through ground-breaking research, outstanding clinical practice, and advanced education that builds on the incredible work that we do.
Toronto Rehab is home to iDAPT (Intelligent Design for Adaptation, Participation and Technology), the top rehabilitation research centre in the world that combines the strength of the University of Toronto’s Engineering Program and world-class Medical School and Computer Science Program with the University Health Network (UHN), Canada’s largest academic health sciences centre. Toronto Rehab’s research efforts have led to the invention of new assistive devices, products and technologies; and therapeutic solutions, to support injury recovery; accessible and independent living; and prevention of injuries and illness.
In 2012, Toronto Rehab developed BresoDx®, a portable device to diagnose OSA from home without the need for traditional testing in sleep labs. With the advent of this technology, and in response to emerging industry concerns about the risks OSA poses to truck driver performance and road safety, TRI is collaborating with leading industry partners to embark on Canada’s first large-scale study to identify the prevalence of OSA in the trucking industry. Currently there is no reliable scientific data indicating the scope of the problem of OSA among Canadian truck drivers.
OSA among truck drivers – What we know
Legislation is currently under way to implement OSA screening as a requirement for truck drivers traveling into and across the U.S. Similar domestic regulations may also be implemented in Canada. Recent Federal Motor Carrier Safety Administration (FMCSA) estimated figures for large truck accidents in the U.S. show that:
1) There are close to 5,000 annual driver deaths, with more than 1,400 due to drowsiness and OSA;
2) Property costs caused by a large truck crash typically exceed $75,000 USD. In a fatal crash, or a crash involving serious injuries, costs escalate to almost $3.4 million per crash (www.itamarmedical.com).
The repeated awakenings caused by OSA make it impossible for sufferers to achieve normal, deep sleep. Therefore, sufferers often suffer from excessive daytime sleepiness, which has been implicated in their 2-5x higher risk of getting in a motor vehicle accident. This elevated risk of crashes while driving makes evaluating OSA in commercial drivers a particularly urgent public safety concern.
Cessations in breathing experienced by those with OSA cause sudden drops in blood oxygen levels throughout the night, which puts a strain on the cardiovascular system. As a result, OSA is associated with some serious cardiovascular conditions, such as high blood pressure, heart attack, heart failure, and stroke. Untreated OSA is associated with a 4x increased risk of stroke; 3x increased risk of heart failure; and a 4x higher risk of hypertension.
Schneider Trucking reported a 73% reduction in preventable driving accidents and a marked reduction in healthcare costs when a comprehensive OSA management program was implemented (www.fleetowner.com).
Trucking Study Progress
In 2016, Toronto Rehab Foundation successfully raised over $670,000 of its $1M goal to support the study. With almost three quarters of funding received, Toronto Rehab’s research team began the implementation of the study, first with the hiring an Associate Scientist to coordinate and lead the trucking study recruitment.
Dr. Laura Gibson joined Toronto Rehab Research Institute in September 2016. She completed her PhD in psychology at McMaster University in 2015, and a postdoctoral fellowship in neuroscience at the University of Madison-Wisconsin in 2016. Dr. Gibson has extensive experience recruiting and performing research with various special populations of individuals and patients.
“I look forward to the opportunity of applying my research expertise in a commercial
industry setting. I am confident the trucking study will increase the safety of Canadian
roadways, while simultaneously improving driver health, well-being, and confidence on
the road”. – Dr. Laura Gibson
In November of 2016, Toronto Rehab Institute (TRI) successfully received approval from the University Health Network’s Research Ethics Board to proceed with the study recruitment. The study team is currently engaged in negotiations with trucking fleets and interested in participating in the study (i.e., Challenger Motor Freight, Canadian Tire). Our insurance partners and the Canadian Trucking Alliance have been instrumental to liaising with fleets and identify study partners.
Objectives of the study:
• Study a population of 1,000 long-haul truck drivers to determine the prevalence of OSA
• Determine whether there is any relationship between the presence of OSA and occurrence andrate of motor vehicle accidents.
• Evaluate the U.S. practice standard for biomarker identification of OSA; i.e. neck circumference, weight, age, etc.
• Explore the feasibility and logistics of conducting large scale, cost-effective OSA screening
programs for truck drivers.
• Improve health and well-being of truck drivers.
• Enhance road safety for all Canadians.
Toronto Rehab is seeking to recruit several fleets with a range of safety ratings for the study with the hope to initiate the study with at least 500 drivers by December 2017.
Additionally, Toronto Rehab is finalizing a partnership with a reputable company to offer comprehensive OSA screening and diagnostic services, to assist in fast-tracking OSA physician consultations, in-lab testing when needed, and a treatment plan for participating drivers. With locations across Ontario, this partnership will help considerably to expedite testing and make treatment options available quickly for drivers diagnosed with Sleep Apnea.
Elements of the study procedure include:
• With the driver’s consent, a researcher will meet him or her at a convenient location (e.g., truck station).
• There, the researcher will obtain various body measurements (e.g., neck circumference, weight, age) from the driver, and instruct him/her on how to use BresoDx®.
• The driver will use BresoDx® during sleep for one night at home or in the sleeping cabin of their truck.
• The researcher will retrieve the BresoDx® from the driver, and results will be analyzed at TRI.
• Researchers at TRI will obtain the driver’s accident records from their trucking company.
• Confidential results of the BresoDx® test will be sent to the driver. If results suggest the driver might have OSA, TRI will recommend the driver visit a sleep physician. TRI will provide a list of
sleep doctors who have agreed to provide participating drivers rapid diagnosis and treatment if
needed. The decision to proceed with diagnosis and treatment will rest with the driver.
• All individual test results will remain confidential and will not be shared with the employer or
We look forward to working with industry partners to execute the study and, with their help, plan on testing our first 500 drivers by December of 2017.
Toronto Rehab: Where Incredible Happens
Toronto Rehab is home to the number one rehabilitation research centre in the world and truly pursuant to its adopted mantra “Where Incredible Happens”. Toronto Rehab is proud to partner with trucking and insurance industry leaders in this study that will influence the development of an effective OSA diagnosis and management strategy to result in reduced accident rates and increased productivity, driver wellness, and morale.
Thank you for leading the way in ensuring safer roads and for helping make incredible happen.
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