2013 OHSTC 16

Background

[4] The background information necessary for a complete understanding of the circumstances of the case and of the conclusions arrived at by HSO Tomlin can be derived from the testimony provided by the numerous witnesses presented by both the appellant and the respondent. While I have taken into account the considerable information supplied through such testimony, the Assignment Narrative Report prepared by HSO Tomlin provides a complete picture which has provided the undersigned with the necessary background information which, although somewhat lengthy, I find useful to reproduce at length herein. In a nutshell, complainant CO Ludlow had identified the following three issues that, in her opinion, adversely affected the health and safety of staff at Fenbrook Institution:

• The offender profile of Fenbrook Institution had changed and had become significantly different than the design of the Institution intended;
• On the morning shift, which is between [text redacted];
• [Text redacted].

The appellant employer’s response to those concerns was essentially that:

• Fenbrook Institution deploys staff in accordance with the National Deployment Standards for Correctional Officers;
• The statistical data regarding inmate profile(s) at the Institution demonstrates no significant change in the offender population that would have an impact on staff or inmate safety;
• Inmates can be restricted to different levels of mobility at the cell and range level within each unit, depending on the unit design they are housed in , and all inmates can be secured at the unit level.

[5] HSO Tomlin based his conclusions on the following categorized factual elements. Those are essentially also reflected in the evidence presented to the undersigned by the parties to the appeal, as well as the health and safety committee investigation report into the complaint made pursuant to section 127 of the Code by CO Ludlow. On the first element, change in offender profile, the HSO retained the following. Opened in 1998, Fenbrook is a medium security level facility designed to receive inmates or offenders who demonstrate or have demonstrated the ability to live within the open concept of a mostly open environment or free egress design and thus adhere to the increased behavioural expectations associated with such an institution. It is made up of [text redacted] accommodation/residential units with [text redacted] ranges[text redacted], including [text redacted] handicapped ranges [text redacted] and [text redacted] segregation cells. [Text redacted] units are constructed [text redacted] in a typical residential style, and are described as [text redacted]. A [text redacted] unit, [text redacted] is described as the secure unit of the Institution because the inmates can be secured at the range and unit levels. As will be seen later and was noted by the HSO, emergency response, in particular fire emergency response, will differ in the secure unit. At the time of the HSO’s investigation, Fenbrook housed approximately 422 inmates. Fenbrook opened in 1998 and is situated in Gravenhurst, Ontario. Because of its somewhat isolated location, its personnel generally live some distance away from the actual establishment. There is some evidence that such distance may vary from [text redacted], a fact that seemed to carry some weight with HSO Tomlin in assessing the capacity to bring in additional personnel to respond to emergency situations that would require a re-call of personnel.

[6] When Fenbrook opened, it was commonly understood that the Institution would receive offenders demonstrating the capacity to live within an open concept model and thus would accept medium security offenders with a rating of “low institutional adjustment”, meaning for any given inmate that the latter’s criminal history record would reflect little or no involvement with the criminal justice system, his offence severity record would reflect little or no harm to society in general and victims in particular, and his sex offender history would reflect little or no sex offending. This is described in the Fenbrook Population Profile as follows:

Medium security offenders with ratings of low institutional adjustment, moderate escape risk and moderate risk to public safety. It is felt that an emphasis on inmates with low institutional adjustment will be necessary given the open atmosphere that the institution provides, as well as the need for inmates to be relatively self directed in managing their time, household duties, and finances. It is felt that inmates with a rating of high in the area of public safety will represent an unassumable risk to both staff and other inmates given the relatively unstructured environment.

According to Commissioner Directive CD 710-6 Review of Offender Security Classification, such low adjustment rating signifies that the offender has demonstrated:

1. a) A pattern of satisfactory institutional adjustment where no special management intervention is required; and
2. b) The ability and motivation to interact effectively and responsibly with others, individually and in groups, with little or no supervision; and
3. c) Has shown motivation towards self-improvement by actively participating in a Correctional Plan designed to meet his or her dynamic factors, particularly those relating to facilitating his or her reintegration into the community.

[7] However, according to HSO Tomlin, there appeared to be an agreement at the time of the committee’s investigation that between 2008 and 2010, there had been a documented increase in inmates with a moderate level of institutional adjustment, with the number going from 66 in September 2008 to 140 in July 2010. In the case of an inmate with a moderate institutional adjustment rating, the offender has demonstrated :

1. a) Some difficulties causing moderate institutional adjustment problems and requiring some management intervention;
2. b) The potential to interact effectively with others, individually and in moderately structured groups, but needs regular and often direct supervision; and
3. c) An interest and active participation in a Correctional Plan designed to meet his or her dynamic factors, particularly those that would lead to a transfer to a less structured environment and ultimately, to his or her reintegration into the community.

[8] Furthermore, HSO Tomlin noted comparatively that at the time of his investigation, inmates with gang affiliations numbered about [text redacted] at Fenbrook while at two other medium institutions, Warkworth and Joyceville, [text redacted], such gang affiliation inmates numbered respectively [text redacted] and [text redacted]. Management, on the other hand, presented the HSO with statistical information indicating a minimal change in offender profile respecting age, sentence term, low reintegration potential and high risk cases, although between June 2007 to August 2009, there had occurred a substantial increase in segregation admissions, [text redacted]. On this matter of changing offender profile, HSO Tomlin appears to have given much credence to not only the 2009 statement by the CSC Commissioner to the Standing Committee on Public Safety & National Security to the effect that “over the last decade, due to a number of factors, we’ve seen significant change in the offender population profile, and this reality has posed serious challenges for the Correctional Service”, but also to the joint UCCO-CSC working group 2009 report (National Working Group Report on Medium Security) which stated that “in recent years the offender population has been increasingly characterized by offenders with extensive histories of violence and violent crimes, previous youth and adult convictions, affiliations with gangs and organized crime, serious substance abuse histories, and serious mental health disorders”.

[9] Additionally, the HSO makes also mention of the October 2007 report of the Correctional Service of Canada Review Panel according to which the changing offender profile means that the CSC “is now faced with an offender population that is more violent and requires either more interventions or possibly different types of intervention and this must be done in an even shorter time frame than in the past.” One can derive from the HSO investigation report that those documents are of a general nature and do not concern specifically or solely Fenbrook Institution.

[10] The second element considered by the HSO in arriving at his conclusion concerned emergency response. HSO Tomlin noted that [text redacted] and that inmates in these units can use a telephone in the kitchen area of their unit to contact a correctional officer (CO) to provide assistance if necessary. Furthermore, [text redacted], inmates have free egress at the range and cell level to evacuate. [Text redacted]. In this respect, HSO Tomlin noted that [text redacted] who usually end up being assigned to a post to backfill leave situations and therefore do not actually represent extra staff to respond to emergencies.

[11] Concerning the specific situation of the Fenbrook Institution, HSO Tomlin concluded that a Correctional Service Canada Security Branch document released in August 2008 did not appear to consider the mobilization of security staff on morning shift for a fire response in such a free egress institution where [text redacted] and that although that document indicated the need to respond within 120 seconds of the sounding of an alarm, at Fenbrook it appeared that such an objective could not be met should there occur a secondary event requiring an emergency response.

[12] [Text redacted]. That Standard was implemented in April 2009 with consultation with the National Policy Committee, local committees and the affected unions, although at the time of HSO Tomlin’s investigation, there apparently remained a number of subjects where agreement had not been reached. It was however HSO Tomlin’s understanding that due to the NDS broad approach, individual institutions could request that a security assessment be conducted to ensure that their complement of COs meet adequately the needs of their particular site. [Text redacted]. The HSO’s report notes that the roll call report for the morning shift at Fenbrook identifies [text redacted] post positions, including [text redacted], as well as [text redacted] substitute relief positions, meaning that if all report for work, there would be [text redacted] staff to operate the Institution on the morning shift.

[13] The HSO however points out that all parties agreed that the substitute relief officers are usually needed to backfill post positions and therefore cannot be used in spare or extra relief. While inmates have free egress from cells and in at least [text redacted] from the range, [text redacted]. On the morning shift at Fenbrook Institution, the method of conducting a security patrol is [text redacted].

[14] HSO Tomlin also noted the following general information:

• management at Fenbrook commented that the staff at the Institution are very competent in applying dynamic security and that such ability has had the effect of reducing incidents of aggressive inmate behaviour;
• inmates are expected to stay in their rooms over the morning/midnight shift. However, they are nonetheless free to leave their rooms and the range at any time. Correctional Officers have indicated that inmates are active at all hours;
• [text redacted];
• bed pressure is increasing across Ontario region, resulting in double bunking at Fenbrook, with no end in sight.

[15] On the basis of all the above, HSO Tomlin’s conclusion was twofold. First, on the question of changing offender profile and the increase in inmate aggressiveness, he found that the primary hazard in the Institution is unpredictable inmate behaviour with such hazard being increased because of the change in offender profile with conditions on the morning shift not being considered in the Security Risk Assessment. This led the HSO to conclude that CSC had not demonstrated that it had considered the effectiveness of their hazard prevention program for the said morning shift. Second, HSO Tomlin concluded to the incapacity on the morning shift to respond to a second emergency in sufficient time, [text redacted] and the increased bed pressure expected to continue, all those constituting a danger under the Code.

[16] HSO Tomlin testified at the hearing at the behest of the undersigned and was cross-examined by counsel for both parties. Generally, the latter’s testimony did not detract from the substance of his investigation report. He did add however that institution statistics demonstrated a reduction in the number incidents at the Institution in recent years, but that he had paid little attention to this since, in his opinion, these statistics tend to fluctuate from year to year. Furthermore, while aware of the tools at the disposal of COs, such as baton, spray, personal protective equipment (p.p.e.) in addition to training, he considered those to be reactive tools to an attack, whilst he put his main concern as being prevention.

[17] [Text redacted]. He also noted anew that Fenbrook Institution is unique in that inmates cannot be secured (locked) in their cells or rooms and that the active inmate population can be up and about at all hours, a characteristic that was of considerable weight in his conclusion.

Issue(s)

[18] As stated above, the direction issued by HSO Tomlin was based on his conclusion that the factual circumstances of this case, which need to be specified here as being the circumstances concerning solely the morning (also identified as midnight) shift at Fenbrook Institution, although the Institutions functions on a regime of three shifts (day, evening, morning also referred to as midnight), showed a failure by the appellant to abide by the general employer protection obligation stated at section 124 of the Code, thereby creating a danger for the employees working that particular shift.

[19] Consequently, the issue to be determined is whether at the time of the complaint by CO Ludlow, the investigation and direction by HSO Tomlin, the factual circumstances justified a finding of danger, such that a direction could be issued pursuant to subsection 145(2) of the Code. In determining this issue, I have considered the evidence received from both parties in the form of testimony and exhibits, which will be recounted in abbreviated form in dealing with each party’s submissions.

Submissions of the parties

Analysis

[79] Presentation of this case by both parties has resulted in the undersigned being provided with a great deal of information, factual and other, that has tended to overcomplicate an issue that would have appeared much simpler when it was first expressed through the s. 127 complaint made by CO Ludlow and its eventual consideration by HSO Tomlin. At the heart of this appeal however lies, in my opinion, a simple issue of staffing or rather of sufficient staffing for correctional personnel, mostly COs, to execute safely, within the meaning of the Code, certain tasks during the morning/midnight shift, those being patrols and counts as well as responding to a second emergency incident. Those tasks are to be executed at Fenbrook Medium Security Institution, a penitentiary characterized by the much greater freedom of its inhabitants to circulate and function in an environment described as free egress and designed initially to house a complement of some 400 low institutional adjustment inmates.

[80] With notions of unpredictable inmate behaviour and normal conditions of employment brought forth by both parties, the two sides of the issue were expressed quite clearly by counsel for the appellant in her submissions when she stated that the respondent argues “that the number of COs deployed on the morning shift for FMI is not sufficient to allow the institution”, which I take to mean the correctional personnel, “to safely carry out their routine securities activities such as counts and patrols and to deal with more than one emergency situation”. Counsel stated the appellant’s contrary position regarding staffing on the morning shift, which is the sole shift under consideration in the present appeal, as being that:

the Morning shift at FMI is sufficiently staffed to carry out the requisite security activities. Emergency situations in penitentiaries are handled in accordance with a combination of relevant CSC policies, the primary ones being the Commissioner’s Directive on the Management of Emergencies (CD 600) and the Commissioner’s Directive on the Management of Security Incidents (CD 567). In accordance with CSC policy, the staffing level at FMI during the morning shift is sufficient to allow initial response to one or more emergency situations.

As such then, the position advanced by the appellant employer is based on the validity of its policies, standards such as deployment standards and statistics which, it claims, when based or applied to known or expected factual circumstances, would ensure safety.

[81] On the other hand, the respondent has based its position on unexpected or varying factual circumstances with a view to state that while models (theory) work when applied to these circumstances that base their formulation and rationale, the situation may differ greatly when something happens outside or varies from the model, as may be evidenced or supported by acceptance that inmate behaviour may be unpredictable, thereby bringing to the fore the question of whether there is evidence that such elements outside the model have materialized, at least sufficiently, so as to support intervention by the HSO or the undersigned.

[82] Consideration of all the evidence and the arguments presented by the two parties has also resulted in the undersigned coming to the realization that determination of this appeal will turn essentially on evaluation of the facts and circumstances existing or presented as existing at FMI vis-à-vis what I would refer to as the model made up of the various policies, systems and practices put in place generally and specifically by the appellant, as well as the further realization that on a great deal of elements, there is commonality of view and understanding by both sides and little in terms of contentious issues. Before getting to this however, a number of observations and comments need to be made.

[83] Counsel for the appellant has argued that contravention of s. 124 of the Code on which HSO Tomlin based his direction constitutes a “very serious allegation” and that the courts have exacted a heavy onus of proof (“beyond a reasonable doubt”) where such a contravention is being prosecuted. Section 124 of the Code is the expression of the general employer obligation to ensure the health and safety of its employees while at work, and as such is important because its general wording makes it possible to extend its coverage beyond more specifically worded obligations stated in other provisions of the legislation. In the case at hand however, one needs to underline the fact that an appeal pursuant to s.146 of the Code is not a prosecution and that there is no specific onus of proof to be satisfied in addressing such a case, other than the appeals officer having to determine on the balance of probabilities, as in this case, whether the danger identified by HSO Tomlin existed. This would be the case not only for the present appeal, but also for any appeal instituted under the Code, and I would add that an alleged contravention of s. 124 of the Code is no more serious than allegations of violation of any other provision of the legislation.

[84] Counsel for the appellant has also argued, relative to CSC’s NDS, that I lack proper jurisdiction to “question” the employer’s policy, drawing this opinion from a pronouncement by Justice Desjardins of the Federal Court of Appeal in Canada (Attorney General) v. Fletcher 2002 FCA 424, to the effect that an appeal such as the present one “is not meant to provide a forum for an analysis of the employer’s policy”. It is counsel’s position that deployment of staff in an enterprise or undertaking remains an exclusive management right.

[85] Counsel for the respondent has argued otherwise, stating that the CCRA and any CSC policy or directive such as the deployment standards are all secondary to the Code. Although counsel was referring to a work refusal situation to base that opinion, the fact is that at appeal, I would make no distinction as to what I can or cannot examine between a work refusal or a referred complaint pursuant to section 127. In all cases, what is before the undersigned is a decision by a health and safety officer. Counsel thus has argued that despite CSC claiming that the staffing level on morning shift at Fenbrook Institution is set by the CSC deployment standards, the respondent is not asking the undersigned to analyse the employer’s policy, but rather to “properly consider whether compliance with that policy is a factor in the health and safety of the COs on the midnight shift”, and should I conclude that it is so, I have authority to direct that the hazard be corrected.

[86] It has been clearly established at case law that an appeals officer proceeds in a de novo manner, which means that the undersigned can take into account any and all information relevant to the issue of which the latter is seized, whether that information was or was not available at the time of the investigation by the HSO, the sole restriction being relevance. At the same time, my jurisdiction does not extend to an employer’s authority or prerogative to establish or apply policy, but rather to whether in its application, among other evidentiary elements, a danger is created to an employee. If I find that this is the case, the undersigned has no choice but to take action to protect the employee or employees and that action, derived from the authority pursuant to subsection 145(2) of the Code, allows an order to “correct the hazard or condition or alter the activity that constitutes a danger or protect (the employee) from the danger”. I would therefore add on this point that actual application by the employer of its properly established policy or policies does not automatically equate to satisfying the obligation to safeguard the health and safety of its employees.

[87] Both counsel have also addressed the question of “normal condition of employment”. In the case of the appellant, its claim is that once all of its policies and measures have been implemented, thereby reducing to a minimum the hazards associated with the tasks of its COs, and the latter have been provided with the necessary p.p.e., the remaining risks or hazards need to be regarded as normal conditions of employment that would not justify the issuance of a direction such as the one under review in the present case. In this case, the general exposure to inmate has to be seen as an unalterable essential characteristic of the position of CO, and thus not subject to evaluation within the scope of normal condition of employment, as the methodology to execute a task or function could.

[88] On the other hand, the respondent has put forth the argument that the appellant has not properly and sufficiently alleviated the hazards associated with the tasks of the employees such that even though said employees may have been provided with the necessary p.p.e., those residual hazards or risks cannot be considered normal conditions of employment.

[89] This issue is central to the determination of the present case and as such, has been repeatedly interpreted in both Tribunal and Court decisions. Under the Code, this concept stems from the application of section 122.2 which, although titled Preventive measures, has historically been described as the Hierarchy of controls, because it establishes an order of priority in seeking to address the hazards associated with a particular function or task. Under the general purpose of the legislation which calls for the prevention of accidents and injury to health arising out of, linked with or occurring in the course of employment to which the Code applies, s. 122.2 states that:

preventive measures should consist first of the elimination of hazards, then the reduction of hazards and finally, the provision of personal protective equipment, clothing, devices or materials, all with the goal of ensuring the health and safety of employees.

It is interesting to note in this respect that both sides appear to be somewhat in agreement that in a correctional environment, total elimination of the hazards that flow from general exposure to inmates may not be possible due to the fact that it is human (inmate) nature in its unpredictable state that is at the center of the issue. Both rely on the decision by my colleague Lafrance in Glaister and Canada (Correctional Service) [2007] C.L.C.A.O.D. No. 11, who stated at paragraph 81:

To completely eliminate the risk of assault is unthinkable in the present circumstances. The only way to totally eliminate the risk would be to completely segregate the inmates from the COs so that no physical contact would be possible between them. As C. Blanchette pointed out, Mission Institution is a medium-security prison, where the environment is very open as there are no barriers between staff and inmates. However control measures should be in place to bring the hazard within safe limits.

[90] In Stone v. CSC (Springhill Institution) OHSTC Decision No. 02-019, Appeals Officer Cadieux stated along the same lines that:

[49] In a medium security institution, ensuring the protection of all the staff all the time may be unrealistic. Locking up inmates twenty four hours a day is manifestly not an option. Assessing the risk that individual inmates represent is one measure adopted by Correctional Service Canada to comply with its general duty under the Code (…). There are many elements to be considered when assessing the risks that offenders represent and the best measures to adopt to deal with these risks. There exists however no single measure that would guarantee the health and safety of staff.

[50] Inmates are human beings who have free will and as such can decide at any point in time and without warning to carry out an assault against a member of the staff. This has to do with he unpredictability of human behaviour that I have addressed at paragraph 155 of the Parks Canada Decision, supra, in which I wrote:
“155.It is clear from the above that one cannot ascertain with any degree of reliability whether a law enforcement situation resulting in injury will occur. In cases of this nature, the “who”, the “what”, the “where”, the “when” and the “under what circumstances” are important criteria necessary to establish objectively the likelihood of injury and therefore of danger. Evidently, the concept of “danger” as defined in the Code is not in harmony with the unpredictability of human behaviour, an inherent characteristic of law enforcement. In professions where “intentionality” is a dominant element of the job, establishing whether factually the “danger” as defined in the Code exists may prove to be a challenge on its own. In the absence of specific facts that will eliminate the unpredictability aspect of human behaviour, the health and safety officer will likely have to conclude on the absence of “danger” as defined in the Code since he will be faced strictly with a hypothetical or speculative situation”.

[91] I will add here that I find myself in complete agreement with the statements above. Furthermore, relative to the unpredictability of inmate behaviour which cannot be separated from that of reasonable expectation of injury in the consideration of normal condition(s) of employment, I am of the view that such cannot be based on hypothesis or conjecture or on a HSO’s assertion to that effect where not supported by relevant and cogent information. One must take into account that case law of this Tribunal and of the Federal court has clearly stated that danger cannot be assessed in a vacuum or on the basis of hypothetical or speculative situations. Thus, in my opinion, determination of danger and evaluation of the normalcy of conditions cannot ignore the specificity of the work environment where employees need to execute their tasks. Specific statistics relative to the morning shift therefore need to be looked at seriously and taken into account.

[92] As stated above, I have found that there is a great deal of commonality of view and understanding between the parties on many elements:

• Fenbrook is a medium security institution destined initially to house some 400 inmates at the rating of low institutional adjustment in a free egress environment, with an adjusted staff complement under the NDS to account for this type of unconventional environment. It is situated in a somewhat isolated location with staff residing at various distances, entailing varying times in reaching the Institution upon recall to attend various emergency situations. There is agreement however that generally, the morning shift staff would be adequate to attend at a first emergency situation without having to go to staff recall. As to staff recall for whatever reason, there is agreement that a staff recall list exists, although views vary as to its quality. The disagreement lies in the capacity to attend to a second emergency situation with the shift staff, even with the assistance of relief or multi-function officers since the claim by the respondent is that the said supplementary staff is normally assigned to cover for the absence of regularly scheduled employees, thus bringing the staff complement to “just enough”. The appellant on the other hand claims that it can temporarily pull staff from other positions without risk pending arrival of recalled employees, although in such instances, some posts would be temporarily short staffed. No evidence was presented as to the frequency of such occurrence, or actually of the more than isolated occurrence of such second emergency during the morning shift.
• The job description of COs stipulates, among many other elements, the possibility of exposure to threats or assault with the risk of injury or death, exposure to aggressive behaviour from inmates, the need to intervene in various situations with or between inmates, staff or the public that conceivably could result in injury to a CO, as well as the direct daily exposure to inmates who may be agitated, unpredictable or uncooperative or who may attempt to intimidate or resort to violence. The exactness of the job description has not been challenged.
• In 1998, when FMI opened, it was programmed to receive a population of approximately 400 inmates who would be rated low institutional adjustment inmates, signifying less problematic and more compliant inmates. That population remained the same for a number of years and around 2008, with changes to the selection of low institutional adjustment inmates, there began a slow increase in the total population, mostly due to double bunking, and to the number of moderate institutional adjustment inmates, thus inmates requiring more work and intervention from correctional staff. Thus, before double bunking in or around 2010, the total population at FMI was estimated at 420, although at the time of the hearing in the present case in October 2011, it stood at 457 and remained at 450 on March 5, 2012 when this hearing was continued. Fenbrook can house inmates of a moderate adjustment rating as long as the behaviour that allows for that higher rating does not compromise security. The number of such inmates has steadily grown since 2008, where it stood at 66, to 109 in April 2009, 132 in April 2010, 140 in July 2010 and 152 in March 2012, with a peak at 184 in November 2011, and thus now represents approximately one third of the total FMI population.
• Both parties have agreed that the primary impact of that population increase and the change in inmate profile has been the need for more intervention on the part of correctional staff and is evidenced in the evolution in the nature and quantity of institutional charges and by the nature of the transfers out. The unchallenged evidence from Warden Tempest has however been that of the five medium security institutions in Ontario, FMI has consistently remained at the highest number of transfers out to lower (minimum) security institutions for the past five fiscal years while recording the second lowest number for transfers out to higher (maximum) security institutions. At the same time, the uncontested statistics for security incidents show that for a nine year period since 2003/2004 fiscal year, the overall count of security incidents recorded for the 24-hour cycle at FMI stood at 2620, with only [text redacted] of such incidents occurring during the midnight shift at the center of the present case, and only [text redacted] incident of assault on staff, [text redacted] of assault on an inmate, [text redacted] medical emergency during the same nine year period and no fire.
• There is agreement between the parties that COs receive initial formal training, including in relevant offender management strategies and in personal safety and fire reaction and drills, that there is refresher training yearly with a very high rate of compliance and that the officers are supplied with the full array of p.p.e.. At the same time, in the case of morning shift patrols and counts, it is not contested that officers going down range can [text redacted].

[93] Apart from what precedes, I have considered all the evidence presented by both parties and have examined at length all the submissions that were formulated in writing by counsel and which are part of the record. It is trite law that the notion and presence of “danger” cannot be assessed in a vacuum nor grounded in speculation or hypothesis. Moreover, the risks or hazards at the source of a possible finding of danger must be assessed as to their true nature, absent any exceptional element or characteristic. In the present case, as I stated earlier, the appellant has established a strong basis for its position by presenting evidence of its staffing rationale and actions, including the special or added staffing actions to meet the requirements of the special environment at FMI and, more lately, the possible necessity of answering medical emergencies, but also by providing a complete picture or explanation of the FMI concept, its operation and what I would describe as what differentiates it from other medium security establishments and the changes incurred by its population. At the same time, through statistical data, it has supplied to the undersigned what I would describe as a historical picture, on a shift by shift basis, of the various occurrences that may characterize or affect the functioning of the Institution on a yearly basis. Not surprisingly, the respondent has indicated its disagreement with the conclusion that the appellant felt I should reach, and in addition to structuring a strong argument based on precedent from this Tribunal and the courts, has provided the undersigned with a number of examples of various occurrences within the Institution that it feels should tilt the balance in favour of my concluding to the presence of danger that would exceed the normalcy of working conditions on both sets of elements noted by HSO Tomlin in his direction to CSC.

[94] In addition to accepting that “danger” cannot be evaluated in a “vacuum” nor grounded on hypothetical or speculative situations, I am also guided by the many times repeated and employed test for danger that was articulated by both Federal courts in the Canada Post Corporation v. Pollard 2007 FC 1362, case and which requires the facts invoked to support a claim of “danger” to establish that:

• the existing or potential hazard or condition, or the current or future activity will likely present itself;
• an employee will be exposed to the hazard, condition or activity when it presents itself;
• exposure to the hazard, condition or activity is capable of causing injury or illness at any time, but not necessarily every time;
• the injury or illness will likely occur before the hazard or condition can be corrected or the activity altered.

[95] I will also add that in accepting that danger cannot be evaluated in a vacuum, I consider that in proceeding with such evaluation or assessment vis-à-vis a certain type of task or work, one cannot ignore, in fact one must take into account, the intrinsic nature of said work or task as well as the personal and or physical environment where such is being accomplished. In short, I am of the opinion that in seeking to minimize the risks that an employee may face, one cannot expect to alter essentially the nature of the said work and/or environment. Stated rather simplistically, a penitentiary environment is not an office environment and consequently, evaluation of danger and determination of normalcy of conditions must take this into account.

[96] This would, in my view, relate to the essence of what constitutes normal conditions of employment. In addition, while seeking to minimize or do away with hazards in any given task may represent a prospective exercise, in my opinion this cannot be achieved without obtaining information and support from the past, and even the present. In this, I also share the views expressed by Rothstein J. in Martin v. Attorney General of Canada 2005 FCA 156:

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 the 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.
[Underlining added]

[97] While HSO Tomlin indicated in his testimony being concerned with prevention rather than past circumstances, I would venture to say that the test above would equally apply to an HSO determination. As I stated above, counsel for the respondent provided the undersigned with evidence of a number of incidents, albeit somewhat isolated when one considers the time span covered, that could be looked at as encouraging a conclusion of “danger” even when considered singularly. I have also to add that this consideration cannot be made in the vacuum of leaving aside the information provided by the appellant, which counsel expressed as follows:

“similarly, in this case, the sensational aspects of the changing offender profile across the board and double bunking should not be allowed to overshadow the real nature of the hazard or risk involved. According to the testimony, the manner in which patrols and counts are conducted [text redacted]. Inmates being awake past midnight is historically not uncommon nor has it been associated with significant security activity or issues. There is no evidence of an increase in assaultive or harmful behaviour by inmates as a result of the increased inmate activity during the morning shift. (…) Furthermore, Ms. Ludlow testified that she had never had to deploy her portable alarm during the morning shift.”

It is important to note here once again that this appeal concerns solely the morning/midnight shift dealt with in HSO Tomlin’s direction.

[98] While I recognize that there has been a change in inmate population profile at the Institution, at least in the proportion mentioned above, and that this has translated into some inmate attitude changes that may have taxed somewhat more the COs in the execution of their duties, the evidence submitted in this respect has not been sufficient to satisfy the undersigned that “something is bound to happen” at Fenbrook. At the same time, regarding the personnel in place capacity to respond to a second emergency situation during the morning shift, there certainly has not been sufficient evidence adduced that would convince the undersigned that such a scenario would be other than hypothetical. I also see no reason to disagree with Warden Tempest’s evaluation that although there has been a change in the Fenbrook inmate population profile, such change has proven more of an administrative nature and has not had the actual impact on day-to-day functioning of the Institution, including the execution of their tasks by the COs, that the respondent would put forth based on what I would consider a limited number of incidents over time and a general description of inmate attitude.

[99] All this being said, I have considered all the evidence submitted regarding both aspects of the direction to wit, the execution of patrols and counts on the morning shift and also the capacity at the Institution to respond to a second emergency incident, including the capacity to react to a medical emergency on that particular shift, and have also taken into consideration the uncontested change in the inmate population at FMI as well as the type of work environment. In conclusion, I have found that the evidence adduced, on balance as previously indicated, does not support a conclusion of danger.

Decision

[100] For these reasons, the appeal is granted and the direction issued to Correctional Service of Canada by HSO Tomlin on September 15, 2010 is rescinded.

Jean-Pierre Aubre
Appeals Officer