2010 OHSTC 17

Date: 2010-12-02

Case No.: 2009-15

Between:

Patrick Romo, Appellant

and

Correctional Service of Canada, Respondent

Redacted decision – Security information

Matter: Appeal under subsection 129(7) of the Canada Labour Code of a decision rendered by a health and safety officer.

Decision: The decision that a danger does not exist is confirmed.

Decision rendered by: Ms. Katia Néron, Appeals Officer

Language of decision: French

For the appellant: Mr. John Mancini, Counsel - Confédération des syndicats nationaux (CSN), Union of Canadian Correctional Officers

For the respondent: Mr. Sean F. Kelly, Counsel - Labour and Employment Law Group, Department of Justice Canada

Reasons

[1] This concerns an appeal brought under subsection 129(7) of the Canada Labour Code (the Code) by Patrick Romo, Correctional Officer with Correctional Service of Canada (CSC), of a decision that a danger does not exist rendered on April 21, 2009 by Health and Safety Officer Manon Perreault (HSO Perreault).

Background

[2] The following is from the testimony of HSO Perreault, her investigation report and the related documents, the testimony of Mr. Patrick Romo and that of Mr. Jean Simard, who at the time of the investigation by HSO Perreault held the position of Assistant Warden, Operations, Donnacona Institution (Quebec).

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[4] The task that was to be performed by P. Romo is known as a motorized patrol, because each guard uses a small van to monitor the Institution's perimeter.

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[14] [P. Romo alleges that he had not received any training in intercepting suspicious vehicles.

[15] [CSC representatives maintained that there was no danger to P. Romo, who continued to refuse, and they contacted the Labour Program at Human Resources and Skills Development Canada to have a health and safety officer investigate the situation.

[16] [During her investigation, HSO Perreault recorded the reasons given by P. Romo for his refusal. J. Simard then explained to HSO Perreault the reasons for maintaining the assessment of absence of danger as follows.

[17] [Despite the implementation of the new standards described above, if a situation requiring it should arise before or during a morning shift, a second motorized patrol could be added during that shift. A form entitled Operational Adjustment – Risk Assessment Tool, commonly known as a "TRA"^{Footnote 5}, is then filled out.

[18] [Moreover, there are security measures in place, including directives issued to every officer assigned to the task in question. These measures and directives were described by J. Simard as follows.

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[27] [This case was heard on April 7, 8, 9 and 29, 2010 in Quebec City.

Issue

[28] Was the decision that a danger does not exist rendered on April 21, 2009 by HSO Perrault well-founded?

Submissions of the parties

A) Appellant's submissions

[29]Mr. Mancini, representing the appellant, maintained that even though no armed altercation had ever occurred with an individual or a vehicle during the performance of the task in question on a morning shift, and that the inmates are confined to their cells overnight, this does not mean that this task is not dangerous in and of itself. Mr. Mancini maintains that, on the contrary, there is a risk that an armed confrontation could occur during the performance of this task.

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[32]In support of this argument, Mr. Mancini called Mr. François Davidson, Mr. Robert Jacques, P. Romo and Mr. Rémi Lalancette. I note the following from their testimonies on this issue.

[33]F. Davidson stated that he had been a Correctional Officer II (CO-II) at the Donnacona Institution since June 2000. R. Jacques stated that he was a Correctional Officer II (CO-II) and had been working at the Donnacona Institution since October 1986. P. Romo stated that he was a Correctional Officer I (CO-I), that he had worked at the Port-Cartier Institution in that capacity between 1992 and 2001, and since June 2001 at the Donnacona Institution. R. Lalancette stated that he was now retired but had worked at the Donnacona Institution for several years as a correctional officer.

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[43]F. Davidson and P. Romo also stated that a guard conducting a motorized patrol during the morning shift could encounter a hostile and armed individual, as follows.

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[54]Mr. Mancini also maintained that deploying additional resources following the observation or indication of an abnormal situation is an after-the-fact approach, and does not sufficiently protect the guard, particularly when the consequences for this employee can be serious, even fatal.

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B) Respondent's submissions

[58]Mr. Kelly maintained, representing the respondent, that in order for danger to exist as defined in subsection 122(1) of the Code, it was necessary to demonstrate that there was a reasonable possibility, as opposed to a mere possibility, of the following:

the current or future situation or risk that could cause injury or illness to the employee will occur
the employee will be exposed to this situation or risk when it occurs
exposure to this situation or risk is likely to result in injury or illness for the employee at any point, but not necessarily every time
the injury or illness will likely occur before this situation or risk can be corrected or avoided

[59] In support of this argument, Mr. Kelly referred to the Federal Court's decision in Canada Post Corporation v. Pollard^{Footnote 12} and the above-cited cases of Verville (Federal Court) and Martin (Federal Court of Appeal).

[60] According to Mr. Kelly, the risks alleged by P. Romo to justify his refusal are based on hypotheses and conjectures. For this reason, Mr. Kelly alleges that none of the 4 elements of the test described above are met.

[61] In support of this argument, Mr. Kelly called J. Simard and Mr. Yves Guimont. I note the following from their testimonies on this issue.

[62] J. Simard stated that he had worked for the CSC since 1981. Between 1981 and 2007, he had worked as a correctional officer, correctional supervisor, and director of security in institutions in Quebec. Since 2007, as indicated above, J. Simard had been the Assistant Warden, Operations, at the Donnacona Institution.

[63] Y. Guimont stated that he had been working for the CSC since March 1989, and in September 2009 had been appointed Acting Director at the CSC National Monitoring Centre in Ottawa. Before September 2009, Y. Guimont worked in different institutions in Quebec as a correctional officer, parole officer, cell block coordinator, acting unit manager, correctional operations coordinator, security information officer and acting deputy director, and he was also a member of the National Committee in charge of reviewing and implementing the deployment standards for correctional officers between October 2003 and September 2008 and between January and September 2009.

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[97] J. Simard indicated that every correctional officer in the Institution during the morning shift can be deployed as back-up during this shift, and that the Correctional Manager will send those individuals who can be deployed the fastest.

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[103] J. Simard indicated that in order to avoid situations where an officer falls ill during his or her shift, including officers assigned to a motorized patrol, officers are required to inform their manager of any illness that might cause them to feel unwell during their work, just as managers must ensure that their staff are healthy before the start of a shift. J. Simard added that every employee is entitled to take sick leave.

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[107] Y. Guimont indicated that the information collected by the Committee also revealed that the inmates in maximum security institutions were confined to their cells at night. Y. Guimont stated that in light of this procedure, the Committee concluded that the likelihood of an escape attempt was practically nil during the morning shift in these institutions.

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[109] Based on this evidence, Mr. Kelly maintained that it was unlikely that a confrontation with an inmate attempting to escape, with an individual attempting to help an inmate escape, with an individual driving a suspicious vehicle or an individual trying to throw a package over the institution's fences would occur while the task in question was being performed during the morning shift, as Mr. Mancini alleged.

[110] Mr. Kelly alleged that it is unlikely that an officer assigned to the task in question would be exposed to either of the confrontations indicated above if there was an attempted escape or intrusion or if a suspicious individual tried to throw a package over the institution's fences, for the following reasons.

[111] Given that the motorized patrol is within the Institution's perimeter while the inmates are confined to their cells for the night, and that before an inmate attempting to escape could come in contact with this patrol this inmate would first have to get through all the security measures set up in the Institution to prevent the inmate from escaping, Mr. Kelly maintains that it is unlikely that it will occur. Moreover, according to Mr. Kelly, an inmate trying to escape, even if he or she managed to get through the security measures, would be more likely to avoid being seen by the motorized patrol because everybody knows that the officer assigned to this patrol drives a vehicle and is armed.

[112] Mr. Kelly maintains that it is also unlikely that an officer assigned to the task in question would be exposed to a confrontation during the morning shift with an individual driving a suspicious vehicle during an escape attempt because the individual's goal, according to Mr. Kelly, would be to help the inmate get away as quickly as possible, and not to initiate a confrontation.

[113] Mr. Kelly alleges that it is highly unlikely that a confrontation would occur during the morning shift between the motorized patrol and an individual attempting to throw a package over the Institution's fences because, in Mr. Kelly's opinion, if such an individual were to appear, his or her objective would be to throw the package without being seen and to get away as quickly as possible, and again not to initiate a confrontation.

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[117] With respect to the allegation that an officer assigned to the motorized patrol would fall ill and be unable to ask for assistance, given that any officer can take sick leave if he or she is ill, and must notify his or her employer of any illness before starting a patrol, and that managers must ensure that officers are able to do their work, Mr. Kelly maintains that it is unlikely that a guard would be taken ill during the task in question.

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[119] Based on all of the preceding, Mr. Kelly maintains that there was no danger according to the definition in the Code to P. Romo in the course of his performance of the task in question without the presence of a second motorized patrol during the morning shift of April 20, 2009.

[120] If I were to find, moreover, that there was a danger in this case, Mr. Kelly maintained that this danger would be a normal condition of employment under which P. Romo is not entitled to refuse to work pursuant to paragraph 128(2)(b) of the Code.In view of the measures in place and the directives issued to every guard who is asked to perform the task in question, Mr. Kelly maintains that the allegations of violence, including aggression, constituted a normal condition of employment for P. Romo on the night of April 20, 2009.

[121] For these reasons, Mr. Kelly asked that the decision that a danger does not exist rendered by HSO Perrault be confirmed.

Analysis

[122] The issue to be decided in this case is whether the decision that a danger does not exist rendered on April 21, 2009 by HSO Perreault was well-founded.

[123] The term "danger" is defined as follows in subsection 122(1) of the Code:

"danger" means any existing or potential hazard or condition or any current or future activity that could reasonably be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected, or the activity altered, whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity, and includes any exposure to a hazardous substance that is likely to result in a chronic illness, in disease or in damage to the reproductive system;

[My emphasis]

[124] In regard to the criteria that apply when determining the presence of a current or possible danger under subsection 122(1) of the Code, Gauthier J. of the Federal Court stated as follows in paragraph 36 of her decision in Verville:

[36] In that respect, I do not believe either that it is necessary to establish precisely the time when the potential condition or hazard or the future activity will occur. I do not construe Tremblay-Lamer's reasons in Martin above, particularly paragraph 57, to require evidence of a precise time frame within which the condition, hazard or activity will occur. Rather, looking at her decision as a whole, she appears to agree that the definition only requires that one ascertain in what circumstances it could be expected to cause injury and that it be established that such circumstances will occur in the future, not as a mere possibility but as a reasonable one.

[My emphasis]

[125] Similarly, in Martin, Rothstein J.A. of the Federal Court of Appeal, stated as follows:

[37] I agree that a finding of danger cannot be based on speculation or hypothesis. However, when attempting to ascertain whether a potential hazard or future activity could reasonably be expected to cause injury before the hazard could be corrected or the activity altered, one is necessarily dealing with the future. Tribunals are regularly required to infer from past and present circumstances what is expected to transpire in the future. The task of the tribunal in such cases is to weigh the evidence to determine whether it is more likely than not that what an applicant is asserting will take place in the future.

[My emphasis]

[126] The reason for refusal given by P. Romo was that he had to monitor the perimeter of the Donnacona Institution during the morning shift on April 20, 2009 without a second motorized patrol having been deployed for this task during this shift.

[127] In order to determine whether there was a danger to P. Romo in the performance of his duties at the time of his refusal, and referring to the definition of "danger" in the Code, as provided above and as interpreted by Gauthier J. in Verville, I must determine whether one can reasonably expect that doing the motorized patrol during the morning shift on April 20, 2009 at the Donnacona Institution without a second motorized patrol could have caused P. Romo to suffer injury.

[128] To this end, I must first identify the risks related to the task in question and the circumstances in which these risks could reasonably cause injury to the employee.

[129] After that, I shall examine whether there was a reasonable possibility that the circumstances could have occurred during the morning shift on April 20, 2009.
The risks related to a motorized patrol during the morning shift in the workplace in question and the circumstances in which these risks could reasonably cause injury to an employee

[130] The evidence submitted reveals that the risks to which a guard assigned to the task in question might be exposed during the morning shift include exposure to an armed inmate attempting to escape from inside the Institution, or exposure to a hostile and armed individual outside the Institution helping an inmate escape or throwing drugs in over the fences.

[131] Based on this information, I find that the circumstances in which these risks might reasonably cause injury to a guard performing the task in question are as follows:

an altercation with an inmate attempting to escape
an altercation with an armed individual attempting to help an inmate escape by car or by some other means of transportation
an altercation with an armed individual attempting to throw a package over the Institution's fences

[132] I shall now assess whether there was a reasonable possibility that these circumstances could have occurred during the morning shift on April 20, 2009.

Altercation with an individual attempting to escape

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[139] I believe that the measures described above that were set in place by the employer reduced to a minimum the possibility that an inmate could manage to escape from the Institution in question during the morning shift and, consequently, that the occurrence of the first circumstance described above did not constitute a reasonable, but merely a simple, possibility on April 20, 2009.

Altercation with an armed individual attempting to help an inmate escape by car or by some other means of transportation, or attempting to throw a package over the Institution's fences

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[148] If a guard assigned to a motorized patrol during the morning shift were nonetheless confronted by an inmate attempting to escape or an intruder who had gotten into the perimeter, I believe that the possibility that the guard could have been injured before this risk was eliminated would have been reduced to a minimum in view of the following.

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[152] In regard to the allegation by P. Romo that he had not received any training in how to intercept a suspicious vehicle, the evidence submitted indicates that a clear security procedure on what to do if a suspicious vehicle should appear within the Institution's perimeter had been distributed before April 20, 2009 to all employees who might be assigned to a motorized patrol or to the MCCP during the morning shift.

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[154] In view of this procedure, I believe that P. Romo had all the necessary information with which to proceed safely with the interception of a suspicious vehicle.