Executive Summary: Key Legal and Evidentiary Issues

• The scope of the employer’s duty to identify, control, and eliminate exposure to hazardous crystalline silica was central to the dispute.

• Effectiveness of personal protective equipment policies, particularly regarding mask use and facial hair, was critically examined.

• The employer’s defense of due diligence, including preventive programs and enforcement, was tested and found lacking.

• Interpretation of statutory terms such as “dust” and the broad application of occupational health and safety legislation were addressed.

• Evidence of actual risk exposure and the sufficiency of the employer’s workplace supervision played a decisive role.

• The adequacy of disciplinary measures following regulatory inspection was scrutinized.

Facts of the case

On August 22, 2023, a CNESST inspector visited a construction site operated by 9329-3900 Québec Inc. and observed three employees working with cementitious materials containing crystalline silica. Two workers were spraying the cement mixture onto steel structures without masks, and one had dried cement on his face. The third worker, responsible for mixing, wore a mask and work suit, but all three had beards of at least three days’ growth, compromising the effectiveness of their respiratory protection. The inspector halted the work and ordered that the workers shave and use properly fitted masks before resuming.

Positions of the parties

The employer argued that the cement mixture, being wet during application, did not generate dust, so masks were unnecessary for those spraying. For the worker mixing the product, the employer acknowledged some risk but claimed to have exercised due diligence through a prevention program, regular safety meetings, training, and enforcement of safety protocols, including mask use and shaving requirements. The CNESST maintained that the spraying process created a hazardous airborne mist containing crystalline silica, requiring all workers to use proper respiratory protection and be clean-shaven for an effective mask seal.

Discussion of policy terms and legal obligations

The case centered on the employer’s obligations under Québec’s Loi sur la santé et la sécurité du travail (LSST), which requires employers to eliminate hazards at their source and protect workers from workplace dangers. The employer’s prevention program, training records, and disciplinary actions were presented as evidence of compliance. However, the tribunal found that the employer failed to recognize and address the inhalation risk posed by the mist generated during cement spraying. The court interpreted the term “dust” broadly, consistent with the protective intent of the LSST, to include airborne mists and vapors that could carry hazardous substances like crystalline silica.

Analysis and outcome

The tribunal concluded that the employer did not fulfill its legal obligations. Testimony, video evidence, and the presence of cement residue on workers’ faces demonstrated that the spraying process produced a hazardous mist. The employer’s safety measures were inadequate, especially since all three workers had facial hair that compromised mask effectiveness, and immediate corrective action was not enforced. The court rejected the employer’s due diligence defense, citing failures in risk identification, supervision, and disciplinary response.

Ruling and monetary order

The court found 9329-3900 Québec Inc. guilty of the alleged infraction. The company was ordered to pay a fine of $2,326 and all legal costs associated with the proceedings. The judgment granted the company 90 days to pay the amounts due. The successful party in this case is the CNESST, which obtained both the conviction and the monetary penalty against the employer. No additional damages beyond the statutory fine and costs were specified, and the exact amount of costs was not determined in the judgment.