Imminent or serious threat - Exceptions - Canada Labour Code, Part III Division I - 802-1-IPG-092

Coming into force: September 1, 2019

Note: In accordance with the Interpretation Act, words in the following text importing male persons include female persons.

Guideline

1. Purpose

The purpose of this IPG is to define the term, "imminent or serious threat" specified in subsections 169.1, 169.2, 173.01, 173.1 and 174.1 of Part III of the Canada Labour Code (Code) respectively.

This IPG is to be applied only if it has previously been established that a "situation that the employer could not have been reasonably foreseen", as defined in IPG-091, had occurred.

Image of a Flowchart of a situation that the employer could not have reasonably foreseen: description follows
Text description of Situation that the employer could not have reasonably foreseen

The image is a flowchart that shows the interrelation between the four Interpretations, policies and Guidelines (IPGs) about "Imminent or serious", "To the life, health or safety of any person", "Of damage to or loss of property" and "Of serious interference with the operation of the establishment" which must be applied in complementarity.

2. Point

The following provisions have been added to the Canada Labour Code, Part III:

  • breaks - 169.1
  • rest periods - 169.2
  • notice of schedule - exceptions - 173.01
  • work shift changes - exceptions - 173.1 and
  • limited right to refuse overtime to carry out family responsibilities - 174.1

These modifications come into force on September 1, 2019.

The interpretation and application of the expression, "imminent or serious threat" must be standardized nationally.  Therefore, the following two questions will be addressed:

  • what is the scope of the expression, "imminent or serious" threat used in the aforementioned sections?
  • what criteria must an inspector consider when determining whether an employer confronted an imminent or serious threat?

3. References

"As stated in Securitas Transport Aviation Security Ltd v. Doyle (2018), 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)."

4. Interpretation

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 (to people, property, proper operation of the institution, etc.) in the very near future.

Where a harmful impact is expected in the near future (within minutes or hours), an inspector will determine the threat 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 mid term.

The inspector will consider, but not be limited, the following criteria:

  • 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
  • the extent of the damage envisioned by the threat, etc

Before determining that an imminent or serious threat exists, the inspector should assess each situation on its own merits. What constitutes an imminent or serious threat in one context could be considered quite differently in another context. The inspector will take into account concrete information and factors 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 that may impact the inspector's analysis.

The inspector will find that an imminent or serious threat exists only if the evidence shows that the suspected threat was plausible.  

Examples

  • 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 cyber attacks that threaten the security of the infrastructure of its information systems. The risk is real and an attacks 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 cyber attack 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 employee filed a complaint for being denied his break. In its defence, the employer alleged to the inspector 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 two 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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