Imminent or serious threat - Exceptions - IPG-092
Effective date: September 1, 2019
Revised date: January 9, 2023
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This Interpretations, Policies and Guidelines (IPG) intends to define the expression, "imminent or serious threat". This expression appears in sections 169.1, 169.2, 173.01, 173.1 and 174.1 under Division I of Part III of the Canada Labour Code (Code).
Note: This IPG does not apply to classes of employees who were granted an exemption and/or modification to specific provisions as per the Exemptions from and Modifications to Hours of Work Provisions Regulations.
This IPG is to be applied only if it has previously been established that a "situation that the employer could not have reasonably foreseen", as defined in IPG-091, had occurred.
The following provisions have been added to the Code:
- break - 169.1
- rest period - 169.2
- notice — work schedule - 173.01
- shift changes - 173.1 and
- right to refuse - 174.1
The interpretation and application of the expression, "imminent or serious threat" must be standardized nationally. This IPG addresses the following:
- the meaning of the expression, "imminent or serious threat” in relation to the above-mentioned sections
- criteria used to determine whether an employer confronted an imminent or serious threat
As stated in Securitas Transport Aviation Security Ltd v. Doyle, 2018 OHSTC 10, a real or possible threat must be genuine and based on or deduced from established facts. It must be based on material facts establishing the reasonable possibility that an employee's health will be endangered, either immediately (imminent) or over the longer term (serious).
A threat is something that constitutes or warns of a danger. Allegations concerning a threat must not be based on supposition but on tangible information and facts that would lead a reasonable person to believe that the threat constitutes a real danger.
The threat does not need to materialize. A person may simply determine the circumstances in which such threat is likely to materialize.
"Imminent threat" means a threat about to occur and is expected of being harmful (for example, to people, property or proper operation of the institution) in the very near future.
Where a harmful impact is expected in the near future (within minutes or hours), the threat will be determined to be imminent.
"Serious threat" means a threat that could significantly affect the existence or functioning of a person or an operation of a thing. While the threat is unlikely to occur within minutes or hours, it could arise in the short or medium term.
The following criteria will be considered:
- the extent to which the event or element alleged by the employer constituted a threat as defined above
- the probability that this threat will manifest itself
- the supposed moment when its harmful consequences materialize, or
- the extent of the damage envisioned by the threat
Before determining that an imminent or serious threat exists, each situation should be assessed on its own merits. What constitutes an imminent or serious threat in one context could be considered quite differently in another context. Concrete information and factors will be considered, such as the size of the company, continuous service requirements, the employer's legal obligations, the context in which the threat is alleged and other criteria.
An imminent or serious threat exists only if the evidence shows that the suspected threat was plausible.
Examples of “imminent or serious threat”
After an inspection of its railway network, an employer is informed by its employees of unusual wear and tear on a portion of the track. Based on the wear and tear observed, a derailment could occur in the next few days. Rail cars carrying fuel travel on this track daily. The threat would therefore be considered imminent.
An employer operating a cellular communication network must constantly protect itself against cyberattacks that threaten the security of the infrastructure of its information systems. The risk is real and an attack can occur at any time. To protect itself against these ubiquitous threats over the Internet, this employer must regularly invest significant amounts of money to keep its security levels high and up‑to‑date as technology develops. In light of the preceding, a cyberattack would be a serious threat for this employer. Although the attack is considered a serious threat in this case, since the employer is well prepared against this threat given the preventative measures taken in preparation for such a circumstance, unless an extraordinary attack thwarts all the protective measures put in place, the attack would be considered foreseeable and therefore the exception would not apply.
An employer working in the road transportation field refused to give a yardman his 30-minute break when it discovered that a truck trailer bearing the company's logo was soiled with mud and about to leave shortly on a trip. The employer asked the employee to clean the trailer immediately. The employer alleged that the soiled truck had to be cleaned immediately or the company's corporate image would suffer. In this situation, the employer's argument did not amount to an imminent or serious threat within the meaning of the Code.
At the close of business, the door to the vault of a bank branch would not close securely. The branch manager submitted the appropriate service request, but employees must remain on site until specialized technical staff arrive on site and complete the work to secure the vault. The manager then asked 2 of her employees to stay after their regular hours of work, but one of them alleged family obligations and refused to work overtime. The threat was imminent because branch security would have been truly compromised in the immediate future. The employer was entitled to require that these employees work overtime.
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