2011 OHSTC 28

Citation: Robert J. Wellon v. Canada Border Services Agency, 2011 OHSTC 28

Date: 2011-11-15
Case No.: 2010-44
Rendered at: Ottawa

Between:

Canada Border Services Agency, Applicant

and

Robert J. Wellon, Respondent

Matter: Application to have the matter dismissed based on mootness

Decision: The appeal is dismissed as moot

Decision rendered by: Mr. Jean-Pierre Aubre, Appeals Officer

Language of decision: English

For the Applicant: Mr. Martin Charron and Mr. Richard Fader, Counsel, Legal Services, Treasury Board Secretariat

For the Respondent: Mr. James Cameron, Counsel, Raven, Cameron, Ballantyne & Yazbeck LLP

REASONS

[1]   The following are the reasons for the decision I rendered on September 30, 2011, concerning a motion made by the Canada Border Services Agency (CBSA) on April 21, 2011, to have this appeal struck as it is their contention that the appeal concerns a matter that is now moot.

Background

[2]   This appeal was lodged by appellant Robert J. Wellon, a Border Services Officer (BSO) in the service of the CBSA, pursuant to subsection 129(7) of the Canada Labour Code (the Code). The appeal is against a decision of no danger issued by Health and Safety Officer (HSO) Glen O’Neil, pursuant to subsection 129(4) of the Code, on November 10, 2010. Both parties filed written submissions on this matter and were afforded the opportunity to make additional submissions regarding the issue raised by the motion on the occasion of a pre-hearing teleconference with the undersigned Appeals Officer held on May 16, 2011, as well as subsequently to the said conference to respond to a question raised by said Appeals Officer.  

[3]   While the decision that follows deals only with the motion filed by the respondent and not the actual substance of the appeal, it is nonetheless necessary, for a better understanding of this decision, to briefly describe the factual circumstances at the origin of this case. As stated above, the appeal concerns a decision of no danger issued by a HSO. That decision came at the conclusion of an investigation that the said HSO conducted relative to a work refusal made by the appellant and a number (6) of other BSOs.

[4]   In his investigation report, the HSO stated that the refusal to work by these officers, including the appellant, “was initiated because the BSOs were asked to assist the Royal Newfoundland Constabulary (RNC) with the search of a travel trailer. The BSOs indicated that they considered this search assignment to be high risk/danger because they were not permitted to wear their defensive equipment in carrying out this work (contrary to CBSA work procedures when conducting similar type searches under CBSA mandate). The BSOs indicated that this request was contrary to their training and that (by) carrying out this work without their defensive equipment was placing their health and safety and life at risk. (…).” HSO O’Neil conducted an extensive investigation into the refusals to work by the seven BSOs and the circumstances of such. For the purposes of dealing with the present motion by the respondent, it is however not necessary to state at this time the reasons for the HSO arriving at a conclusion of absence of danger, as this would not be necessary in resolving the present matter, save to note that this decision was communicated to all parties concerned on November 10, 2010, and obviously is at the origin of the present appeal.

[5]   Central to the matter at hand however, and serving as foundation for the motion by the respondent, is the fact that shortly after the decision of no danger of November 10, 2010, and the filing of the present appeal by the appellant Wellon on November 16, 2010, CBSA, through its Director General, Programs Branch, put an end to its practice of providing assistance to domestic law enforcement agencies in a memorandum dated December 23, 2010, addressed to all Regional Directors General, under title: The Discontinuation of CBSA Assistance to Domestic Law Enforcement Agencies, which specifically states that this participation is outside the framework of the enforcement or administration of CBSA program legislation, in other words, is outside CBSA’s mandate. It is important to quote at length from said document as it demonstrates that said discontinuation did not occur as a knee-jerk reaction to these refusals. It reads in great part as follows:

Annually, the Canada Border Services Agency (CBSA) receives requests from other law enforcement agencies for assistance in matters relating to domestic law enforcement. This assistance is usually in the form of specialized tools or expertise. This CBSA participation is outside the framework of the enforcement or administration of CBSA program legislation.

In 2007, when the Agency practice of providing assistance to law enforcement agencies was examined in light of the intro-duction of arming, it was decided that while the CBSA would continue to provide assistance, in the interest of officer safety, all premises must be secured by police prior to the engagement of CBSA personnel.

In June 2009, regions were notified that they must ensure that management approval is secured for each operation. The communiqué also indicated that the practice of assisting law enforcement agencies would be re-examined.

Following careful consideration, it has been decided that the CBSA should discontinue this activity. It is recognized that cooperation among law enforcement agencies is an essential element of positive relationships; however, in consideration of the gaps in officers’ authorities and protections coupled with the significant challenges that currently exist with respect to operational resources, the CBSA is better advised to direct its attention to areas of primary responsibility.

For these reasons, effective immediately the CBSA will discontinue providing assistance to external law enforcement agencies, where the nature of that assistance falls outside of CBSA’s mandate or the legislative authorities provided for in either the Canada Border Services Agency Act or other legislation that CBSA officers administer.

[6]   The short picture therefore is that appellant Wellon exercised his right of refusal to work because he was being asked to provide assistance to an external law enforcement agency, claiming that to do so while not being permitted to wear, carry or be equipped with all of the defensive equipment usually at his disposal when fulfilling his normal duties under the CBSA mandate constituted a danger within the Code. The investigating HSO concluded that the situation represented no danger and Mr. Wellon is appealing this decision. Since that decision, and yet, when one considers the memorandum reproduced above, one can confidently say also that while the refusal process was running its course, the decision was being made at CBSA to put an end to this assistance activity and this decision was rendered official through the above-cited memorandum which bears the stamped date of December 23, 2010.

Issue

[7]   While the decision of no danger by HSO O’Neil is being appealed, the sole issue to be determined at this time is not whether there existed or not a danger at the time of the refusal to work by Mr. Wellon, but rather whether that issue or the determination of such has been rendered moot or academic by CBSA’s decision to put an end to its assistance practice, which in essence prevents the occurrence of such a situation vested with potential danger.

Submissions of the parties

A)    Applicant’s (Respondent) submissions

[8]   The applicant puts forth a simple argument in support of its application. According to the latter, the purpose of the work refusal and appeal provisions of the Code is not to challenge employer policy on an academic level, since the right to refuse provisions of the Code, and therefore the actual exercise of the refusal, need to be factually based, if one is to apply a recent precedent by this Tribunal in Eugenia Martin-Ivie v. Canada Border Services Agency, 2011 OHSTC 6, and where the Federal Court of Appeal stated in Canada (Attorney General) v. Fletcher 2002 FCA 424, that the “mechanism provided by the Code calls for a specific fact finding investigation to deal with a specific situation.” As such then, since CBSA’s change in assistance policy, there is no longer a factual basis to argue this case in anything other than an academic way. The practice that was being challenged by the refusal action and subsequently by the appeal by Mr. Wellon is no longer in place and as a result, according to the applicant, the matter is now moot as there is no longer any live controversy between the parties. Counsel also added that should I decide against the motion and opt to hear the matter on the merits, the fact that an end had been brought to the assistance policy would make it very difficult, if not impossible, to fashion a remedy, should I arrive at a finding of danger.

[9]   Regarding the possibility that the appellant may be continuing to challenge what amounts at this time to a non-existent policy for the purpose of guarding against the possibility that such policy may be re-instated in the future, the applicant notes that the Federal Court of Appeal has stated in Fletcher cited above that this is not appropriate under the appeal provisions of the Code as follows:

The mechanism (right to refuse to work) is a continuing one available whenever, and as often as, an employee has reasonable cause to remove himself from the workplace.(…) The right is not meant to be used as a tool to obtain a ruling from a safety officer, the Board or this Court with respect to a policy which is not implemented at the time of the investigation.

In this case, the policy may have been in force at the time of the refusal and the investigation, but it is the applicant’s position that the application of the principle enunciated by the Federal Court of Appeal is not affected by the fact that CBSA’s policy ceased to be in application only after the investigation into the refusal by the appellant and the decision by the HSO. This means that in the future, an employee who would face a re-application of the policy would retain his or her right to refuse to work. Along those lines, counsel for the applicant also notes that in circumstances not unlike those in this case, the Tribunal stated in Tremblay v. Air Canada, OHSTC-09-004, that “determining that the appeal is moot would not have the effect of preventing the issues it raises from being considered in other matters where circumstances warrant.”

[10]           In conclusion, the applicant also notes that it would not be accurate to maintain that refusals such as the present one and invoking the same circumstances, have occurred across the country. In fact, according to counsel for the applicant, only two such instances have occurred including the present case, the other one having resulted, on September 29, 2010, in a decision of no danger confirmed by this Tribunal. Finally, given the fact that there is no longer any live controversy between the parties, the applicant maintains that the undersigned Appeals Officer should adhere to the position taken by the Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 to the effect that where there is no more live controversy, scarce judicial resources should be applied to cases where there is a tangible dispute between the parties.



B) Respondent’s (Appellant) submissions

[11]           It is the position of the respondent to the motion that there is no basis on which to conclude that this appeal is moot. In support of this, the respondent formulates a twofold argument. First, as regards the applicant resting in part its position on the Federal Court of Appeal Fletcher decision, the respondent seeks to distinguish the present case, stating that the question in Fletcher was narrow and thus distinguishable from the present case. In that case, the issue was whether, in a refusal to work situation, the existence of a danger could be determined by considering the situation as it existed only at the time of the actual investigation by the Health and Safety Officer or whether the situation at the time of the actual refusal could also be considered by an appeals officer. Noting that the Court did state that to “understand and determine whether a danger exists in the workplace, it must be permissible to consider all the evidence, whether it be historical or present at the time of the investigation”, the respondent concludes that the Federal Court of Appeal effectively recognized that to properly assess whether a danger exists in the workplace, a proper consideration of all the evidence must be made, which can only occur in a hearing on the merits. Counsel pointed out that in its Fletcher decision, the Court did explicitly state that the right to refuse to work is not meant to be used as a tool to challenge a policy that is not yet implemented at the time of the investigation into the refusal, noting that in this particular instance, it is really the applicant who is doing just that by seeking to have the appeal dismissed on the basis of a policy that was not in place at the time of the refusal.

[12]           The second part of the respondent’s argument is founded on a recent decision by a member of this Tribunal (Lelonde and Canada (Correctional Services), [2007] C.L.C.A.O.D. No. 24) dismissing an identical motion to the present one, emphasizing that measures unilaterally taken by the employer to address an alleged danger could be rescinded at any time, and that the review by an appeals officer is to be restricted to all the circumstances that existed at the time of the work refusal. This would exclude, according to counsel, consideration of the changed policy in this case, a change which occurred a short time following the issuance of the no danger decision by HSO O’Neil presently at appeal. It is counsel’s position that the Tribunal properly dismissed the motion for said moot declaration based on policy changes subsequent to refusal action because to have decided otherwise could lead to situations where employers would adopt and rescind policies as a litigation shield. That being said, the respondent to the motion maintains that there is nothing academic about this case. According to counsel, at the time of the work refusal, BSOs were asked to participate in search and seizures without their full defensive equipment, according to the policy in place at the time. Only after such action was there unilateral action by the employer which resulted in a new policy being unilaterally adopted. As such it remains unclear as to what impact, if any, this changed policy will have or even whether it will be applicable to emergency situations and/or joint operations where portions of those operations may be outside the mandate of the CBSA. Accordingly, it is counsel’s view that it is only after a full determination of the merits that the undersigned can properly assess and weigh the evidence.

[13]           As a final point of argument, respondent’s counsel maintained that even if the appeal is deemed moot, I would still retain the jurisdiction and discretion to consider the merits of the issue, assuming the circumstances of the case would come within the exceptions outlined by the Supreme Court in Borowski, cited above and which is essentially the reference decision on the mootness doctrine. According to this decision, despite the cessation of the issue at hand as moot, the continued presence of an adversarial relationship or the recurring nature of an issue could validate the exercise of jurisdiction by the Court, and thus this Tribunal to exercise its discretion to hear the matter on the merits. It is thus the position of the respondent to the motion that notwithstanding the change in policy which serves as basis for the claim that the appeal be considered moot, there remains an underlying “live controversy” at the root of this case such that the hearing before the Appeals Officer should be allowed to continue. As to the capacity of the undersigned to fashion a remedy to the situation in this case, counsel insisted on the necessity to hear this matter on the merits because the issue went beyond remedy in this particular case and should serve as basis or precedent for future situations.

Analysis

[14]           Central to the determination of this application is the understanding of what constitutes a moot case. In this respect, as referred to above, the decision by the Supreme Court of Canada in Borowski represents the leading explanation of the doctrine and concept of mootness and thus warrants referring to the words of the Court:

The doctrine of mootness is part of a general policy that a court may decline to decide a case which raises merely a hypothetical or abstract question. An appeal is moot when a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties. Such a live controversy must be present not only when the action or proceeding is commenced but also when the court is called upon to reach a decision. The general policy is enforced in moot cases unless the court exercises its discretion to depart from it.

The approach with respect to mootness involves a two step analysis. It is first necessary to determine whether the requisite tangible and concrete dispute has disappeared, rendering the issues academic. If so, it is then necessary to decide if the court should exercise its discretion to hear the case. (In the interest of clarity, a case is moot if it does not present a concrete controversy even though a court may elect to address the moot issue.)

The second stage in the analysis requires that a court consider whether it should exercise its discretion to decide the merits of the case, despite the absence of a live controversy. Courts may be guided in the exercise of their discretion by considering the underlying rationale of the mootness doctrine.(…)

The first rationale for the policy with respect to mootness is that a court’s competence to resolve legal disputes is rooted in the adversary system. A full adversarial context, in which both parties have a full stake in the outcome, is fundamental to our legal system. The second is based on the concern for judicial economy which requires that a court examine the circumstances of a case to determine if it is worthwhile to allocate scarce judicial resources to resolve the moot issue. The third underlying rationale of the mootness doctrine is the need for courts to be sensitive to the effectiveness or efficacy of judicial intervention and demonstrate a measure of awareness of the judiciary’s role in our political framework. The Court, in exercising its discretion in an appeal which is moot, should consider the extent to which each of these basic factors is present. The process is not mechanical. The principles may not all support the same conclusion and the presence of one or two of the factors may be overborne by the absence of the third, and vice versa.(…)

Mootness

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. (underline added)

While the undersigned would not presume to be viewed as a member of the judiciary and the functions I fulfill are not those of a court but are of a quasi-judicial nature, the adversarial nature of the parties intervention before an appeals officer does allow, in my opinion, the undersigned to follow the various steps of the mootness doctrine noted above in considering the matter at hand.

[15]           The first question therefore is whether the present case, which concerns the issue of BSOs being asked to provide search assistance to Domestic Law Enforcement Agencies, in this particular instance the RNC, while not permitted to wear their defensive equipment, is moot. In formulating their written submissions on this issue, both parties provided the undersigned with limited information as to the specifics of the case at hand, and while the Code does offer what I would call a generic description or definition of danger at its section 122, since the work refusal exercise is factually driven, it is the specific description of what motivates the refusal to work that must be considered. The work refusal narrative originally presented by the refusing employee (Wellon) is a lengthy description that while offering specificity to the refusal facts, is longer than necessary for the purpose at hand.  The investigation report of the HSO, which has been forwarded to the undersigned as well as both parties in preparation for the formal hearing of this appeal does offer, under title “statement of the refusal to work”, a sufficiently specific description to satisfy the purpose of consideration of the present motion. It reads as follows:

“Labour Program Health and Safety Officers interviewed seven CBSA Border Services Officers to determine the reason(s) why these BSOs were exercising their right to refuse to work under the Canada Labour Code, Part II. The BSOs reported that the refusal to work was initiated because the BSOs were asked to assist the Royal Newfoundland Constabulary (RCN) with the search of a travel trailer. The BSOs indicated that they considered this search assignment to be high risk/danger because they were not permitted to wear their defensive equipment in carrying out this work (contrary to CBSA work procedures when conducting similar type searches under CBSA mandate). The BSOs indicated that this request was contrary to their training and that (by) carrying out this work without their defensive equipment was placing their health and safety and life at risk.” (my emphasis)

[16]           As a first point of consideration, it is important to note that both the “statement of refusal to work” and the memorandum cited at paragraph four above and dealing with the “discontinuation of CBSA Assistance to Domestic Law Enforcement Agencies” deal with the same subject to wit, assistance duties that fall outside the CBSA’s mandate. In this respect, one would be tempted to conclude that the decision, the change in policy represented by that memorandum, would represent the remedy to the problem raised by the refusal to work formulated by Mr. Wellon. At first glance, this would appear to represent a very simple answer to the mootness motion, as disposing of any live controversy between the parties to the appeal, presented by the Applicant who happens to be the Respondent to the appeal against the decision of no danger formulated by the HSO. This would however ignore the fact that the said change in policy occurred after the work refusal made by the appellant Wellon on October 12, 2010, the investigation by HSO O’Neil into the matter which was initiated on October 21, 2010, and the decision of no danger that followed on November 10, 2010. Thus, since in dealing with a matter that is being appealed, an appeals officers is to consider the circumstances of the case as they stood at the time of the refusal and at the time of the investigation and decision by the HSO, this could be interpreted as meaning that at the time of the appeal, since the policy on assistance had not yet been changed, the question raised by the appeal as to whether there existed a danger at the time of the refusal remained whole and thus there remained a live issue at the time of the appeal of which the undersigned is seized.  This would however, in my opinion, ignore the fact that an appeals officer’s authority vis-à-vis any appeal of which the latter may be seized has been described repeatedly by judicial pronouncements as de novo in nature, thus allowing an appeals officer to review the facts of a case anew. While this may mean that in deciding on the merits of an appeal, an appeals officer may consider all the factual elements of a case as they existed at the time of the formulation of a refusal to work (or other initiating action by an HSO), investigation and decision by an HSO, whether or not available to the HSO at the time, it would be my opinion that in a case such as a motion or claim of mootness, where it is claimed that the contentious element or controversy at the root of the originating action or situation causing the intervention of a HSO resulting in a decision of no danger or issuance of any direction has disappeared, all elements of the case up to the moment of decision by said Appeals Officer ought to be considered as relevant. In this, I align myself with the position formulated by the Supreme Court of Canada in Borowski (previously cited) relative to this issue of mootness where the court stated that “ …if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot.” Of great relevance to the matter at hand, the Court also stated that a live controversy, an “essential ingredient” to use its words, “must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision”. In the present case, the central factual circumstance is that at the time that this matter, an appeal against a decision of no danger made pursuant to subsection 129(7) of the Code, comes for consideration by this Appeals Officer, the practice from which originated the work refusals that brought about the said decision of no danger has been revoked.

[17]           The claim of mootness in the circumstances of the case at hand also requires that the remedial capacity of the undersigned Appeals Officer be considered. The Code, at section 146.1, provides that in appeals brought pursuant to subsection 129(7), in the case of decisions of no danger such as the present one, or section 146 relative to direction(s) issued by a health and safety officer, an appeals officer may confirm, vary or rescind such decision or direction. Where decisions of no danger are confirmed, no further action would normally appear to be called for. However, where a decision of no danger is challenged, as in this case, a conclusion by the Appeals Officer that said decision should be rescinded, as the present appeal is seeking, would of necessity require that a finding of danger or contravention be arrived at, that as part of the inquiry by the Appeals Officer, any measures that the employer may have taken to address the alleged danger be considered, whether or not adequate, and that corrective or remedial action be ordered where found necessary. In light of this, one has to consider the specifics of the present case where upon a decision of no danger being challenged following a claim that a certain employer practice constituted a danger, the finding sought by the appellant is that said practice, as it existed at the time of the refusal to work, constituted a danger, and where said practice, subsequent to said decision of no danger by a HSO, has been cancelled such that the danger would appear to be no longer in existence. In such a situation, I would have no difficulty in finding that the cancellation of a practice ultimately found to constitute a danger would represent the best and fullest remedy. As such then in the present case, were I to consider the merits of the present appeal and arrive at a conclusion of danger as sought, a conclusion that would call for corrective or remedial orders, it is my opinion that the issuance of such would constitute an empty exercise since remedy would already have been brought.

[18]           Finally, it has been claimed that where the employer in this case has cancelled its policy of assistance outside the mandate of the CBSA, this has been done essentially as a litigation shield and that there is nothing preventing it from reverting to the previous policy at any time. As such, the respondent to the motion is seeking that I not conclude to mootness and opt to consider the merits of the appeal, presumably to prevent this from happening, and thus essentially acting in a prospective manner. In answer to this, one has to note that pursuant to the Code, the authority/jurisdiction of an appeals officer is vis-à-vis a direction or decision first made by a health and safety officer, thus an appeals officer does not have the authority to initiate a case. It may be true that decisions by appeals officers may carry some precedent authority and thus have some impact relative to actions that an employer may envisage. However, at best such authority is only persuasive, and however persuasive such authority may be, my opinion is that it cannot inhibit, prevent or prohibit future changes to departmental or governmental policy. As such then, it is true that the employer could revert at any time to its former practice or policy. This however is of no consequence to the protection afforded any employee pursuant to the Code since the right of refusing work perceived to constitute a danger would not be affected by an employer’s decision to reinstate such assistance policy. I am supported in this by the statement of the Federal Court of Appeal in Fletcher (previously cited) to the effect that “the mechanism is a continuing one available whenever, and as often as, an employee has reasonable cause to remove himself from the workplace.” Furthermore, as stated earlier, cases such as the present are and must be factually based and as such, consideration by a health and safety officer and/or an appeals officer must attach to the factual circumstances of a case as they existed at the time of the refusal and investigation, not factual circumstances that have yet to occur.

[19]           Considering all of the above, it is my conclusion that there is no longer any live controversy between the parties in this case and in the absence of a tangible and concrete dispute, I find that this appeal is moot. Having come to this conclusion, there remains the question of whether I will nonetheless exercise my discretion to hear this case on the merits despite the absence of a live controversy. This I have decided not to do, for the following reasons.

[20]           First, the substance of the case at hand concerns essentially two basic employer obligations to wit, provide employees with prescribed personal protective equipment, including the instruction and training necessary to make proper use of said equipment, and the general obligation of the employer to ensure the health and safety at work of its employees, whether at work in a place controlled by said employer or not, where the employer controls the activity of said employees. These obligations have been the subject of numerous decisions by this Tribunal, albeit on the basis of their own specific circumstances, thus constituting a substantial corpus of precedents to assist in the determination of future cases offering their own specific factual circumstances and needed redress.

[21]           Second, in the case at hand, given the actions already taken by the employer in putting an end to the assistance practice in question, there is no doubt in my mind that proceeding nonetheless to hear this appeal on the merits would in the end have no or very little practical side effects on the rights of the parties directly concerned by this case.

[22]           Third, as I stated above, any action or position by the employer in the present situation or any other or any pronouncement that I might arrive at in the present case would have no effect on the continued right of employees to exercise their right to refuse what they would consider to be dangerous work.

Decision

[23]           For all the above stated reasons, I find the issue raised by this appeal to be moot and consequently dismiss the appeal.

Jean-Pierre Aubre
Appeals Officer

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