2013 OHSTC 16

Date: 2013-05-02

Case No.: 2010-35

Rendered at: Ottawa

Between:

Correctional Service of Canada, Appellant

And

Union of Canadian Correctional Officers-CSN, Respondent

Redacted version

Matter: Appeal under subsection 146(1) of the Canada Labour Code against a direction issued by a health and safety officer.

Decision: The direction is rescinded.

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

Language of decision: English

For the appellant: Ms. Caroline Engmann, Counsel, Treasury Board Secretariat Legal Services

For the respondent: Ms. Peggy E. Smith, Counsel

Reasons

[1] The present appeal has been brought by the Correctional Service of Canada pursuant to subsection 146(1) of the Canada Labour Code (Code) against a direction issued on September 15, 2010, by Health and Safety Officer (HSO) Bob Tomlin, pursuant to paragraph 145(2)(a) of the Code. That direction ordered the appellant employer to take measures to correct the hazard or condition that, in the HSO’s opinion, constituted a danger. The normal descriptive used to refer to such a direction is that it constitutes a “danger direction”. The said direction was issued by HSO Tomlin at the conclusion of the latter’s investigation into a complaint that had been made by a Correctional Service of Canada Officer (Kerri Ludlow) pursuant to subsection 127.1 (1) of the Code concerning certain existing conditions at the Fenbrook Medium Security Institution.

[2] The internal complaint resolution process under section 127.1 of the Code that had been followed in the case of that complaint had not brought satisfactory results, in the opinion of CO Ludlow, who had then requested that the matter be investigated by a Health and Safety Officer. The text of the direction that describes the condition constituting a “danger”, although quite lengthy, needs to be cited at length because it provides a fairly comprehensive picture of the HSO’s conclusions regarding factual circumstances creating the need for a “danger direction”. HSO Tomlin thus describes the condition(s) that constitute a danger to an employee, in this instance CO Ludlow, while at work at Fenbrook Institution as follows:

Inmates have free egress from bedrooms and ranges in at least [text redacted] of the living units and are known to be active during all hours. Officers conducting counts and patrols on the morning shift [text redacted]. The current method of conducting counts and patrols on morning shift requires [text redacted]. Further, it is not unexpected that a second event requiring emergency response, such as a cell alarm, would be required after the first response had been implemented. [Text redacted].

Further to this, Correctional Service Canada has become aware of changes in Offender profiles through a 2009 internal report titled National Working Group Report on Medium Security. The report indicates the inmate population is increasingly characterized by offenders with a violent criminal history. In June of 2009 the Commissioner gave evidence to the Standing Committee on Public Safety and National Security indicating the offender profile had changed significantly and posed serious challenges to the service. There is a substantial increase in inmates with a moderate level of institutional adjustment, gang affiliations and admissions to segregation at Fenbrook. I understand this institution was designed to accommodate inmates with a low institutional adjustment based on the open concept and free egress design of the facility. Added to this is the increase in bed pressure in the region, resulting in double bunking that is expected to continue.

[3] The HSO’s finding was thus based on two main factors to wit, security activities (counts and patrols) in a free egress setting on the so-called morning/midnight shift, and the changing offender profile in the Institution population linked to unpredictability of offender behaviour. Given the multiple elements identified by HSO Tomlin and recounted above in the body of the direction, he issued his “danger direction” based on the general employer obligation at section 124 of the Code that obviously he had concluded had been contravened and which requires every employer to which the Code applies to ensure that the health and safety at work of every person employed by the said employer be protected.

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

A) Appellant’s submissions

[20] The appellant based its submissions on numerous documents that were received as exhibits as well as on the testimony of six witnesses ranging from the Manager of Deployment Standards and Scheduling and the Manager Fire Safety Program, two CSC HQ positions, to that of the Fenbrook Warden, Assistant-Warden (management services), Correctional Operations Manager and Correctional Manager. All of this was considered in formulating the present decision and provided a great deal of detail as to the structure and functioning/operation of the Institution as well as the main security areas such as control and secure posts and horseshoe area, the composition of its population and interaction with correctional staff and the deployment of personnel on the various shifts and for various specific functions, including more particularly counts and patrols, emergency response and operational adjustments, reaction to incidents and dynamic security execution.

[21] The allocation or distribution of necessary personnel to operate any correctional institution as well as any shift within any given institution is based on the application of standards, national in scope for purposes of consistency, and intended to apply generally, but with capacity for adjustments as dictated by peculiarities of particular sites. Those standards, titled National Deployment Standards for Correctional Officers, and the site deployment levels developed in accordance, were the result of a development methodology that saw the local standards previously used at individual institutions collected to establish a theoretical model that was then tested locally. There resulted adjustments made locally to take into account those local peculiarities. There is thus a generic deployment standard for medium security institutions, with an adjusted site deployment for Fenbrook that was developed to take into account the specificity of that Institution, particularly the free egress characteristic of the [text redacted] responsibility units.

[22] According to witness M. Velichka, manager/deployment standards, who led the working group that developed the national standards destined to achieve the consistency that previously was lacking in the deployment of personnel locally, the [text redacted] personnel at Fenbrook on the morning shift represents many variances from the NDS to take into account the peculiarities of that Institution, in particular the mobility of inmates which is higher ([text redacted] units free egress within range on midnight shift) than at other medium security institutions. It bears noting that under the NDS, at sites where inmate mobility is restricted to [text redacted], while where inmate mobility extends [text redacted].

[23] On the issue of emergency response capability, it would appear that the constant general standard at CSC has always been to have sufficient staff on post for one incident [text redacted]. According to witness Velichka, the deployment of staff on the morning shift at Fenbrook meets that standard and thus offers sufficient response capability, with or without mobilizing officers from other units, because of the presence of the multi-function officers afforded to Fenbrook because of its inmate mobility characteristic. While HSO Tomlin may have concluded to a change in inmate profile at Fenbrook, it would appear that this would not have been a factor in the application of the site deployment levels because of the capacity for local adjustment. At the stage of the development of that standard, it would appear that for Fenbrook Institution, the general characteristics of a medium security institution were taken into account with the result that the Institution received the normal complement for such institution plus additional personnel to take into account its particular structure, even though it was designed to house a less challenging population.

[24] On the subject of emergency response capability, evidence was received regarding fire emergency response at Fenbrook. As required, the Institution has a complete fire safety plan established pursuant to CSC’s Fire Safety Manual and meets the requirements of the CSC Fire Safety Program itself developed in accordance with Commissioner’s Directive 345 as well as the National Fire Code and the Canada Occupational Health and Safety Regulations. This being said, it would appear that generally, there had been no reported fire at Fenbrook prior to 2005, and in particular, no reported fire to this day on the morning shift, with those fires that occurred being for the most part, if not all, accidental and mostly from the segregation unit. At the time of their induction into the service, COs are trained in fire response, more particularly on basic fire safety, fire suppression, fire emergency procedure and use of self-contained breathing apparatus (SCBA). This is supplemented at the institution level by environment orientation, annual and on-going refresher training, fire drills and specific purpose periods such as fire prevention week. The particularity of Fenbrook, [text redacted], means under the fire safety plan limited use of SCBA equipment by COs and evacuation of units and even possibly a complete building evacuation in case of fire.

[25] Witness Randy Gaw, manager of Fire Safety Programs at CSC national headquarters, indicated that COs are not trained as full fledged firefighters nor have they received training in structural firefighting. Regarding the specific situation of Fenbrook Institution, Mr. Gaw indicated that he had no specific knowledge and could only speak of fire response at the Institution in general terms, although of the general opinion that the fire safety plan at Fenbrook satisfies the general objectives of a good fire safety plan and that Fenbrook appears to have sufficient fire response staff. The Fenbrook Medium Institution (FMI) Fire Safety Plan provides that during times of minimum staff level, when there is a fire in the Institution, required extra resources may be brought in by applying [text redacted].

[26] However, the evidence has shown clearly contradictory positions regarding the capacity to effectuate a safe evacuation in case of fire in [text redacted] unit during the morning shift. Following a full evacuation drill of [text redacted] unit conducted during lunch with a [text redacted] staff complement (the morning shift staff complement being put at [text redacted]), but simulating such an event during the morning shift, with inmates and staff pre-informed and briefed, a memorandum from institutional fire chief L. Duern, who himself did not testify at the present hearing, stated that he was of the opinion that the morning shift could “ perform an emergency evacuation and can maintain the security of the Institution [text redacted]”, while the testimony from J. L. Chamaillard, who is the fire safety and emergency response instructor at Fenbrook, but who was not present during that simulation, was to the effect that a complement of [text redacted] officers [text redacted] and that [text redacted] officers were needed to effectuate such an evacuation safely.

[27] Central to the complaint brought by CO Ludlow and the ensuing investigation by HSO Tomlin as well as the present appeal is the issue of the changing inmate population at Fenbrook Institution, which had been designed to receive a low institutional adjustment population in its free egress responsibility units. Warden Tempest readily recognized that in recent years, Fenbrook has incurred a change in its population profile. The general evidence from the appellant is basically to the same effect and from such general standpoint, coincides with that of the respondent.

[28] When it opened in 1998, the responsibility model intended for Fenbrook, which would have called for a low institutional adjustment population, was based on compliance/capacity by the inmate population to function on a daily basis in a free movement environment devoid of barriers, thus requiring inmates to demonstrate a willingness to comply with rules. As inmates could shop for groceries, cook their own food and conduct an array of normal activities, the target was to have inmates function as closely to reality of the community with rehabilitation being the sought after end result. This did not mean an absence of correctional personnel or security measures, but rather a population that, through its motivation, attitude and involvement in various programs, would require less intervention by correctional staff.

[29] At the outset, the intent was to bring in at Fenbrook inmates that would establish a positive base culture that would set the standards for later occupants. According to Warden Tempest, the need to have compliant and motivated inmates within that established culture has not changed. What has changed however is the ability within the Institution, because of the established culture, to receive other inmates, those being of the moderate institutional adjustment category, who can eventually attain the low institutional adjustment rating. It is thus within that point of view that the warden noted his agreement with HSO Tomlin that the offender profile has changed somewhat at Fenbrook, and that this increase in moderate adjustment rating inmates does require more staff intervention (counselling, motivating, case management, segregation). Warden Tempest however qualifies the impact as being more of the administrative than actual correctional kind, and that therefore this change in population profile has had no noticeable impact, except administratively, and has not adversely impacted the institutional culture of compliance.

[30] The Warden supported his opinion through the use of institutional statistics taken from the Offender Management System. As to transfers to a lower, higher or same security institution, it would appear that out of the five medium security institutions in Ontario, Fenbrook has consistently had the highest number of transfers out to lower security institutions over the past five years, while for the same period, it recorded the lowest number of transfers to a higher security institution. As for the number of recorded security incidents, over a nine-year period Fenbrook has recorded [text redacted] security incidents during the midnight/morning shift. Those incidents that have the most impact on staff safety are assaults on either staff or inmate and over that same period for that same shift, there was recorded [text redacted] assault on staff and [text redacted] on inmates. Comparatively, for that same nine-year period, the overall security incident recorded count for the 24-hour cycle is 2620 out of which only [text redacted] occurred during the said morning shift. As Fenbrook is the Institution with the highest number of inmates in the country transferred to minimum security institutions and the lowest or next to lowest number of transfers to a maximum security establishment, this would reflect that Fenbrook houses more inmates with low institutional adjustment rating and present low escape risk and low public safety concerns.

[31] The Work Description of a correctional officer 1 (CX 01) was also adduced as evidence. It offers a long list of the risks that a CO could face and of which CO Ludlow confirmed her awareness. While it is part of the record, counsel for the appellant nonetheless pointed to the following partial list:

  • active prevention of or intervention in disputes between inmates, staff or members of the public, which may involve tactics aimed at intimidating staff;
  • direct, daily exposure to inmates who may be agitated, unpredictable or uncooperative or who may attempt to intimidate or resort to violence;
  • threats may be made against the incumbent, their family, other staff, inmates or visitors.

[32] While the list offers a view of other types of risks inherent to the work that appeared to the undersigned to be more serious, the above were listed with the obvious intent of underlining the skills and knowledge required of COs to execute their duties. The Work Description thus outlines that COs require:

  • knowledge of practices for assessing and responding to security threats, including the use of security equipment to ensure the safety and security of the public, staff and inmates;
  • knowledge of inmate population and its values, codes and group dynamics to detect unusual or suspicious activities, to recognize gang mentalities, inmate subculture, cultural diversity, mental health problems and criminal behaviour;
  • skills to identify risks and actively manage situations employing the safest and most reasonable intervention techniques to resolve situations in accordance with applicable policy and law including the crisis management model and the situation management model;
  • skills to employ the safest most reasonable intervention, in accordance with the approved crisis management model to subdue, restrain and control inmates acting in a violent and threatening manner.

[33] Considerable testimony was received from numerous witnesses that training relative to all the above is offered and received, including annual one-day refresher training on personal safety, with the officer training compliance report for Fenbrook indicating a 95.68% compliance rate for the personal safety refresher training, which focuses on self-defence, defensive tactics, general techniques of arrest, control and restraining techniques, all being crucial for the conduct of specific security activities of patrols and counts during all shifts.

[34] In light of all the above, counsel for the appellant developed an extensive argument in support of the appellant employer’s position and made abundant reference to law and case law, all of which has been considered by the undersigned. That being said, that argument can be stated in somewhat abbreviated form as follows.

[35] To the extent that the present appeal may call into question the employer’s NDS implemented in 2009, the appellant is of the opinion that this is not a matter that would be properly within the jurisdiction of a health and safety officer or an appeals officer when one considers the provisions of the Code. According to the appellant, deployment of staff in an enterprise or undertaking remains an exclusive management right and the purpose of an appeal under the Code or an investigation by an HSO is not to question the employer’s policy. The said Deployment Standards was implemented for the efficient deployment of COs at each level of security and type of facility to achieve consistent levels of safety and security while ensuring effective dynamic interaction and intervention with inmates.

[36] The Standards uniformly provides for minimum staffing levels on a generic basis subject to minor customization that may be necessary to reflect unique local environments provided that the customization does not detract from the essential elements of security activities. In the case of Fenbrook, CSC adjusted the standard deployment level for the morning/midnight shift in order to account for its unique environment (free egress units) and staffed the [text redacted] free egress units at the level of [text redacted] COs while staffing the secure units with [text redacted] CO during the morning shift. The appellant thus disagrees with the position taken by the respondent and effectively by HSO Tomlin that such staffing on that shift at Fenbrook is insufficient to safely carry out the routine activities such as counts and patrols and to deal with more than one emergency situation.

[37] It is the view of the appellant that the morning/midnight shift at Fenbrook is sufficiently staffed to safely carry out those activities. Emergency situations in penitentiaries are handled in accordance with a combination of relevant policies enunciated by CSC. In accordance with the Commissioner’s Directive on the Management of Emergencies and the Commissioner’s Directive on the Management of Security Incidents, the staffing level at Fenbrook during the morning shift is sufficient, in the opinion of the appellant, to allow an initial response to one or more emergency situations. The appellant sees the position taken by both the respondent and the HSO as raising a simple question as to whether given the free egress environment, there has been a significant change in the population profile at Fenbrook so as to affect the staff’s ability to respond safely and effectively to emergencies during the morning/midnight shift. On this, the appellant’s initial position is that there has been no significant change in offender profile at Fenbrook in the past three years. What change there may have been has not affected the staff’s ability to respond safely and effectively to emergencies during any shift.

[38] Furthermore, while Fenbrook was designed to receive low institutional adjustment offenders, there is no adverse relationship between the open concept/free egress design at Fenbrook and the housing of moderate adjustment rating offenders. It is the appellant’s position that there is nothing in CSC policy to support the supposition that offenders with a moderate adjustment rating cannot be housed there. Furthermore, the institutional adjustment rating is but one of a number of factors, such as risk of escape and risk to public safety, that serve to assess through a Custody Rating Scale if an offender should be housed in a minimum, medium or maximum security facility.

[39] The appellant noted that HSO Tomlin identified two risks or hazards to support the issuance of the latter’s direction. The first, the occurrence of simultaneous multiple emergency situations during the morning shift and the insufficiency of personnel in place to respond to such, is not supported by the evidence and furthermore, according to counsel, even if such a risk or hazard existed, no evidence was adduced to suggest that there existed a reasonable possibility of such occurrence. The appellant in fact maintains that the experience at Fenbrook demonstrates that few incidents occur on the morning/midnight shift in circumstances where a secondary response is required, nor has there ever been a situation during such shift where a secondary response has been required. Security incidents during that shift have rarely resulted in multiple or simultaneous emergencies and Fenbrook does have in place a well-developed plan for handling emergencies, as set out in its contingency plan and relevant CSC policies.

[40] The other risk noted by HSO Tomlin concerns the changing offender profile and the unpredictability of human behaviour in the Fenbrook free egress environment. The position set forth by the appellant is that exposure to potential violence from inmates and a degree of unpredictability of human behaviour constitutes an inherent element of the duties of a unit COs. The employer however makes every effort to keep employees safe through training, provision of safety equipment as well as institutional guidelines and procedures, such as the Situational Management Model (SMM) found in Commissioner Directive 567.

[41] In the opinion of appellant counsel, unit COs are thus armed with the training, tools and procedures to protect themselves, with the result that any residual risk remaining and stemming from the unpredictability of offender behaviour constitutes a normal condition of employment which cannot be eliminated or reduced by any change in staffing level on any shift. It is thus the appellant’s conclusion that the NDS for Fenbrook during the morning/midnight shift allows for sufficient staff resources to conduct routine patrols and counts as well as to respond to emergencies, and that the health and safety at work of unit COs during the morning shift at Fenbrook remains protected at all times through a combination of operational, physical and safety measures that are in place. There would therefore be no foundation to the HSO’s conclusion that section 124 of the Code has been violated and consequently the appeal should be granted and the direction rescinded.

B) Respondent’s Submissions

[42] The respondent’s submissions are developed around the testimony and evidence already submitted by the appellant and in addition, that which was obtained from seven witnesses, six being employed at Fenbrook as CO or CX, with the sole outside witness being employed at Millhaven Penitentiary as a CO2. That witness is the UCCO Ontario vice-president and was member of the National Working Group on Medium Security which issued a report in 2009 confirming a changing offender population 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 problems and serious mental health disorders, all of which presenting significant security challenges for CSC. In addition to those witnesses, numerous documents were produced, in addition to reference to documents filed as evidence by the appellant, and abundant reference to case law was made. I have considered all of the above in reaching the decision below. The following are the more salient points in abbreviated form based on the six headings under which they were categorized:

  • method of conducting a security patrol;
  • securing the control desk;
  • staffing for a response to a second security incident;
  • fire drills on the midnight/morning shift;
  • changes to the conditions of work;
  • changes in the offender profile.
Method of conducting a security patrol

[43] The working conditions of COs, as outlined in the job description of a CO-1, support the contention that those officers working on the midnight shift are exposed to danger on a daily basis, as their core activities are security oriented. Those COs are responsible for primary security activities, including the supervision of inmates in various institutional sectors. More on point, COs (1 and 2) usually would supervise patrols, counts, searches and inmate movement during that shift, [text redacted].

[44] Historically, since Fenbrook’s opening in 1998, [text redacted] officers have been assigned to do walks and patrols on the midnight shift. Until the 2009 application of the NDS for medium security institutions, including Fenbrook, the staffing for the midnight shift at Fenbrook was done locally and was based on the free egress design and low institutional adjustment of the population. The advent of the National Standards saw the standard for the midnight shift set at [text redacted] per unit (there are [text redacted] for each of the day and evening shifts). However, because of the free egress design of Fenbrook, [text redacted] officer was added to each of the [text redacted] responsibility units, thus maintaining the historical status quo, plus an additional multi-function officer and an extra patrol mobile officer, bringing the total staff [text redacted]. None of these positions are deemed to be operationally adjustable.

[45] The day and evening shifts security patrols are done [text redacted] remaining at the control desk. CO Ludlow testified that officers have not been trained to do patrols alone. [Text redacted]. The vestibuling officer must be able [text redacted]. Witnesses stated that the hall in the area [text redacted].

[46] [Text redacted].

Securing the control desk

[47] Many witnesses have referred to the unit “control desk”. It is located on the main floor of the unit in an area described as the “horseshoe”, behind which are situated various rooms used as offices (case management, unit manager, parole officer, CO work area, etc.) and other purposes, and to which inmates have access once searched.

[48] [Text redacted].

Staffing for a response to a second security incident

[49] The evidence provided by the appellant employer is that on the morning/midnight shift, there are very few and infrequent security incidents, thereby explaining why Fenbrook is staffed on that shift to respond to [text redacted] security incident. On the other hand, evidence in the form of testimony was adduced by assistant-warden Allen for the appellant relative to an increase in the personnel roster on the morning shift to ensure sufficient staff on site to respond to emergencies. Assistant warden Allen’s testimony for the employer was that the roster had been recently brought to [text redacted] posts not operationally adjustable and [text redacted] substitute officers (from [text redacted]) to which were added [text redacted] operationally adjustable medical escort officers), thus ensuring that there would always be personnel to man the [text redacted] non-operationally adjustable posts. This would entail that once the substitute list had been exhausted on any given morning shift, multi function officers would need to be called in to respond. The respondent’s evidence on the other hand is that relief or substitute officers are typically backfilling for vacant posts arising from sick leave, vacation or other absence, meaning that on most nights, there would be “just enough staff” to man the posts, thereby necessitating resorting to multi-function officer(s) to provide assistance.

[50] The occurrence of a second incident would bring about initiation of the recall process to increase the staff complement. If needed, additional staff can be pulled from other units, temporarily reducing the staff complement of a unit to [text redacted] CO. As all posts are non-operationally adjustable, staff would need to be called by the MCCP officer to fill the vacant position(s). Should there occur an incident jeopardizing the security [text redacted].

[51] [Text redacted].

[52] The Warden gave evidence that the recall list is organized according to who lives closest to the Institution, although he had no experience with how long it would take to respond to a call-in for assistance. His estimate was that 50% of the officers live within a [text redacted] drive from the Institution. As to the composition of the recall list, the warden’s evidence was contradicted by more than one witness, whose testimony was to the effect that the list was in alphabetical order. Additional evidence from MCPP officer Foster (the list is kept in MCPP for use in case of call-in) stood for the fact that the said list may be far from accurate. As such, he testified that while the alphabetical list provides an employee’s name, number, job classification and phone number, on the two occasions where he reviewed the said list, he found it inaccurate. He reviewed that list first in the fall of 2011, at which time he found it to contain [text redacted] names of employees who no longer worked at the Institution or were deceased. On the occasion of a subsequent review on March 5, 2012, there were still [text redacted] names of former or deceased employees on the list and many new employees were not listed.

Fire drills on the midnight shift

[53] The respondent’s evidence on this particular subject makes note of documents filed as exhibit E-2 by the appellant, those being the CSC Fire Safety Manual and a document titled Considerations for a minimum SCBA response to draw attention to parts of the appellant’s evidence to establish the following: fires are a fact of life in the prison environment, with a large proportion being set [text redacted]; “failure to evacuate promptly due to confusion and delayed unlocking of exits is the primary reason for tragedy”; “regularly practiced fire evacuation shall be conducted in all institutions and all occupied areas of all institutions (or rehearsed as applicable) as required by Treasury Board Occupational Safety and Health Manual (…). Drills shall be conducted so that all shifts are practiced within the specified frequency (…)”. It is worth noting that the CSC Fire Safety Manual establishes a required frequency to conduct evacuation drills. In the case of a medium security institution, such drills are to be conducted [text redacted]. [Underlining added]

[54] CO Ludlow testified for the respondent that a full evacuation has not yet been completed during the midnight shift. In 2009, a paper drill was done based on a fire in a garbage can on [text redacted] unit (free egress) during the midnight shift. Following this and staff discussion on what a full evacuation would be like and how many staff would be needed, the witness became concerned that there was not sufficient staff on the midnight shift to respond to a full fire. Following her s.127 complaint, a mock midnight evacuation [text redacted] was completed during the day shift, using [text redacted] staff. [Text redacted]. Staff and inmates were told ahead of time and evacuation of all inmates proceeded through the front door. Following that drill, a memorandum to assistant warden Allen from fire chief Duern listed a number of concerns expressed by various individuals. CO Ludlow indicated that the CX staff required [text redacted] minutes to don the SCBA and get ready to enter the affected range and during the exercise, staff were running low on air for the SCBA. Finally, no directions were given to inmates to evacuate and where to relocate. Assistant warden Allen’s reported comments formulated in a memorandum, included that more immediate action was needed, staff were not comfortable doing what they were supposed to be doing and more practice was needed.

[55] In the case of Environmental and Safety Officer J. Sutey, who did not testify in the present case, she reportedly indicated that no direction had been given by staff regarding the evacuation, [text redacted], one of the CX designated to use SCBA [text redacted] and a CX with no SCBA was holding open the range door where the fire was, which in a real situation would have meant smoke exposure smoke dissemination through the main vestibule. In that same memorandum, while the fire chief expressed the opinion that the morning staff could perform an emergency evacuation and maintain security until arrival of the call back staff, he did note more important concerns that essentially repeated those expressed by the staff noted in the memorandum. It should be noted that Fire Chief Duern was also not called to testify.

[56] CO Ludlow did not agree with that conclusion. Exhibit E-2 filed by the appellant specifies under title Considerations for a minimum SCBA response that the response time to an alarm is [text redacted], which provides a [text redacted] margin of error since the smoke level of a range fire will descend at a rate such that it would reach the five foot breathing zone within [text redacted] minutes. The respondent’s evidence by J.-L. Chamaillard, who is instructor at Fenbrook ([text redacted], SCBA, personnel safety, carbon monoxide and chemical agent) was that not [text redacted] officers on staff were needed to perform a full evacuation of [text redacted] unit (the [text redacted] free egress units would require less) in the event of fire on the morning/midnight shift. During that shift, CO Ludlow testified that inmates on [text redacted] unit can only use their [text redacted] to exit the range for specific hours. At all other times, in order for an inmate to leave the range, staff must open the doors. [Text redacted]. CO Ludlow further testified that if there is a fire in a cell, two officers are required to respond to verify the fire and as there are [text redacted] officers on staff during the morning shift, a call would have to be made for a [text redacted] officer to be assigned to the unit to man the horseshoe before verification and response could be completed. At the hearing, CO Ludlow completed her testimony by saying that no further exercises or drills have taken place since that mock fire drill.

Changes to the conditions of work

[57] Under this title, a great deal of evidence presented by the respondent either repeats or emphasizes evidence already presented. What follows is essentially limited to new or differently accented information. When Fenbrook opened, correction facilities rated as minimum, medium or maximum security were sub-classified on a scale of S-1 to S-7, with S-3 to S-5 covering medium security institutions. Of those three, S-3 was defined as a medium security facility with a double fence perimeter and armed perimeter response capability, with minimal physical internal restraints. The risk of riotous conditions and of danger to staff and inmates were unlikely. Housing units in an S-3 facility are based on the free egress, residential model with openings alarmed to detect unauthorized egress. The [text redacted] responsibility buildings [text redacted] at Fenbrook fall under [text redacted].

[58] In an S-4 facility, housing units are based on a residential model with restricted egress at the “apartment” level and free egress at the individual inmate room level. [Text redacted] unit at Fenbrook, which can be secured at the range level, is S-4. In 2008, inmate grievances caused CSC to adopt a stricter policy and as a result, it was no longer possible for Fenbrook Institution to hand pick lower institutional adjustment inmates, which brought about an increase, at the Institution, of the number of moderate institutional adjustment inmates. [Text redacted] unit had been a reception or intake unit at the time when the NDS was developed, and historically received new transfers for initial assessment and identification of needs and issues not previously identified prior to being assigned a bed in the [text redacted] free egress units [text redacted]. The [text redacted] range of [text redacted] Unit has also traditionally housed more problematic inmates, particularly those with [text redacted] problems. Warden Tempest previously testified that because of increased bed pressure, new transfers are no longer automatically assessed in [text redacted] unit, but rather are assigned to an available bed in any unit. Witnesses Mike Dafoe and Mike Ainger testified for the respondent that this has been the source of problems and gave as example the “escape” by [text redacted] whose placement had not been supported by the case management team and who was returned to the unit because of the interim measure in place, because of the CO Ludlow complaint, [text redacted]. Another example related to such direct placement was the almost immediate attack and stabbing [text redacted].

[59] As part of changes to the conditions of work, the issue of changes in the offender profile in the Institution has been central to the present case, and such a change has been recognized in the appellant’s evidence, in particular in testimony by Warden Tempest, whose testimony, among other things, stood for the point that Fenbrook can house moderate institutional adjustment inmates as long as the behaviour that allows for that higher rating doesn’t compromise security. The evidence presented by the respondent has been to the same effect and thus there would be no need in repeating here what I would consider as established. There were however a number of clarifying points that were brought by witnesses for the respondent that need to be mentioned.

[60] Under the general descriptive of changes in the offender profile, increase in the Institution population was the object of testimony and exhibits. In 2010, the number of inmates reached 420, which was considered a full complement. In October 2011, it had reached 457 and was slightly down, at 450, on March 2012. During the same period, the introduction of double bunking increased the total capacity of individual units by 12, thus a total increase of [text redacted] inmates. This measure was introduced to address the projected national and regional pressure on beds over the coming decade, and has resulted in a 10% increase to each range, with the result, according to witness M. Ainger, that the ability to perform dynamic security has been affected, like the dynamics of the range.

[61] CO Ludlow testified on this that since double bunking has been introduced, frustration in the ranges has increased, with more inmates cooking and hanging out in the common area during the night. On this, respondent counsel alluded to the National Group report on Medium Security, filed as exhibit by the appellant, which identified the architecture of the various medium institutions in Canada as a key toward the ability to effectively manage a changing inmate population. Based on the architecture of Fenbrook, the conclusion was that “it is clear that Fenbrook needs a population that would reflect inmates that are relatively low on the institutional adjustment scale in order to safely manage 400 inmates”. Inmates with a rating of moderate institutional adjustment have progressively grown in number since September 2008, when there were 66, to 152 in March 2012, with a peak of 184 in November 2011. These inmates, who according to Warden Tempest, “require more intervention” and have as a consequence “that people are busier dealing with them”, thus now represent approximately one third of the total population of the Institution.

[62] Somewhat coinciding with this change in population, the evidence submitted by the respondent through witnesses Ludlow, Foster and Ainger, which is in great part confirmed by evidence offered by the appellant, indicates that since 2009, COs have noted a progressive increase in the number of inmates awake and active in various ways late at night with increasing resistance, verbal and otherwise, and increased number of incidents. According to numbers collected by various COs in July and August 2010, inmates active through the night vary in numbers, with in general, approximately 50% being awake at the [text redacted] count, gradually decreasing to 10% at [text redacted] and then starting to climb again at [text redacted]. The corresponding evidence from both parties has been that medium institutional adjustment inmates have a higher need for intervention on a daily basis.

[63] From the standpoint of minor and major incidents, the evidence emanating from both Warden Tempest and Mike Ainger for the respondent was generally to the same effect. As such, for the period 2008-2011, the aggregate number of incidents spiked in 2008 ([text redacted] minor, [text redacted] major), was followed by a short drop in the 2009 numbers, a gradual increase in 2010 and a sharp increase in 2011. According to Mr. Ainger, in 2011, there was a total of [text redacted] minor charges and [text redacted] major charges, a significant increase in inmate activity from the 2008 level. This was described by witnesses Ainger and Foster as indicative of a change both in inmate culture and in the willingness of inmates to comply with orders, with more verbal resistance and an increase in inmate fights since the introduction of double bunking. Witness Ainger describes this as a more “oppositional” attitude and culture within the Institution.

[64] On the basis of all that precedes, counsel has formulated a lengthy argument making abundant reference to case law and the law. While I have considered this argument at length, only the salient points follow. The general conclusion formulated by counsel is that a danger exists for CO Ludlow on the morning/midnight shift, one that satisfies the definition of danger found in the Code. This is based on a number of elements.

[65] First, relative to unpredictable inmate behaviour, counsel notes that CO Ludlow’s and other officers job description supports the conclusion that COs at Fenbrook are exposed to the risk of injury arising from the unpredictable nature of inmate behaviour through daily contact, exposure to volatile inmates and the requirement to intervene to defuse violence. The CSC SMM confirms that human behaviour is unpredictable and inmate behaviour can go from cooperative to grievous bodily harm and death instantly, with the escalation not necessarily progressive. This concept has been recognized by the Federal Court Verville v. Canada (Service Correctionel) 2004 FC 767, as covered by the said definition of “danger”, thereby requiring that the criteria to determine the existence of said “danger” be applied to recognized relevant evidence such as job description, anecdotal past incidents, regardless of their outcome or consequences and protective equipment issued to employees.

[66] It is counsel’s opinion that employer documents can serve to demonstrate the employer’s own recognition of risk and hazard, and that the undersigned can draw an inference from the established facts drawn from said employer prepared documents to conclude that a changing and growing population of inmates at Fenbrook Institution presents an elevated level of risk that can reasonably be expected to cause injury to CO Ludlow in the future, this being buttressed by the evidence of past incidents and other information provided by other COs who have the necessary experience.

[67] Counsel also argues that the evidence obtained in great part from officers whose proximity to the existing and/or evolving situation within the Institution and the inmates therein puts them in a better position to form a valid opinion, supports the position that the changes to the institutional use and population have resulted in noticeable changes to the culture in which the COs are being asked to perform their security duties on the midnight/morning shift, said changes presenting a heightened level of risk or harm.

[68] Among other things, that evidence is to the effect that inmates, a large proportion of those now being of medium institutional adjustment rating, are more aggressive, more oppositional, less willing to comply with verbal orders, becoming less responsive to dynamic security and are more active and aggressive at night. On the performance of security patrols, the respondent acknowledges the relevance of the NDS in assessing the issue of danger since the method of performing the security walks on the midnight/morning shift is based on those Standards that provide for [text redacted], as opposed to officers working [text redacted] on all other shifts.

[69] The respondent however is not questioning management’s right to set staffing levels, but rather is concerned that the changing inmate population and change to the CSC housing policy has elevated the level of risk and tensions between the inmates and the guards, and that this risk must be assessed in the context of how CO Ludlow is expected to perform her duties. Counsel is thus of the opinion that the whole of the evidence demonstrates that it is neither speculative nor hypothetical to believe that a CO working on the midnight shift could be injured in the future while performing security patrols, responding to a fire or to a security incident.

[70] The appellant has based much of its position on the claim that the risk or hazard claimed by the respondent constitutes a normal condition of employment, since measures and steps taken through the implementation of the NDS adapted to Fenbrook and other policies and mitigating measures such as equipment and training would serve to bring down the hazard level to that of normal condition of employment. On this, the respondent argues that it has been recognized at case law that a normal condition of employment does not include a risk that is dependent upon the method used to perform the job.

[71] In the present case, the conditions of employment have been altered significantly by the changes to the institutional use and population, changes that have been identified by the witnesses, including Warden Tempest, and CSC documents as having a significant impact on their level of responsibility. In this respect, while the appellant claims, under its assertion of normal condition of employment, that it is not required to take additional steps, such as seeking a variance (permanent) to the standards of deployment, vis-à-vis the situation claimed by CO Ludlow, it has not established or no evidence has been presented to show that it has properly assessed the risks presented by the change in the institutional use or population. This would be the initial step prior to establishing that it had then taken the trilogy of steps required by the Code at s. 122.2 to mitigate the danger, the residual being capable of being accepted as normal condition(s) of employment.

[72] Counsel reiterates that the danger that has been identified in this case is based on the unpredictable nature of inmate behaviour. As such, the first step enunciated by the Code, elimination of the hazards, has been recognized at case law as impossible in this correctional environment since it would mean total segregation of the inmates from the COs so as to eliminate all physical contact.

[73] On the second step, reduction of the hazards, counsel argues that a number of options were identified towards that purpose, not the least of which was the permanent addition of [text redacted] to each of the units, so as to allow the officers on the midnight shift to modify the method of doing their security duties, as well as ensure sufficient staff in the event of a [text redacted] security incident, or if full evacuation of [text redacted] unit was required in the case of fire. Counsel noted that the warden did testify that this could be a valid option, but that “a business case” to support this, in other words an assessment, would need to be made, something which has not been done. According to counsel, CSC policies, directives and standards, including the NDS, are secondary to the Canada Labour Code, whether it be in the case of a work refusal or a case as the present one, and that as such, the role of an appeals officer is not to ascertain conformity but to determine whether a danger, as defined by the Code, exists. In line with the requirement to reduce the danger, the principle of “low frequency, high risk” finds application. In other words, though injuries to COs may be infrequent, and this has been demonstrated, should there be an inmate attack, someone could get killed or severely injured.

[74] Finally, the provision of protective equipment constitutes the third and final step an employer can take under s. 122.2 of the Code before asserting that a hazard is a normal condition of employment. The respondent recognizes that needed protective equipment has been provided to COs. It argues however that this does not mean that further mitigating measures should not and could not be considered and implemented to further reduce the risk of injury that is a stated hazard in the job description. The fact that the appellant/employer has demonstrated having provided protective equipment serves to support the existence or presence of hazard. However, the respondent submits that given the failure of the appellant to establish that it had acted vis-à-vis the first two steps or grounds formulated by the Code, the appellant cannot now rely on the provision of protective equipment to argue that the situation between the inmates and COs, a situation described as elevated tension, is a normal condition of employment.

[75] As regards the position put forth by the appellant regarding the jurisdiction of an appeals officer vis-à-vis or relative to the employer`s policy, more specifically its Deployment Standards, counsel argues that the respondent is not asking the appeals officer to analyse the employer`s policy, but rather to consider whether compliance with that policy is a factor in the health and safety of the COs on the midnight/morning shift and in the event of finding that it is a factor, then the appeals officer can direct that the hazard be corrected.

Reply

[76] The appellant has provided a lengthy reply to the respondent’s submissions. That reply is premised on the statement that the “employer adopts and relies upon its earlier submissions”. This premise is important because having examined at length the said reply, what has transpired is that the appellant has sought to do generally three things in replying to the respondent to wit, forcefully indicate its disagreement with the evidence presented by the respondent or question the interpretation put on it’s own evidence by the latter or the weight it should receive, indicate in the same manner and repeatedly its disagreement with the interpretation put on the appellant’s evidence by the respondent in its own submissions or formulate what it considers should be the proper interpretation or weight put on the evidence it has presented, and finally advance new evidentiary elements or seek to clarify evidence it had already presented and indicate its intention to seek the opportunity to present further or clarifying reply evidence on subjects or points it had not initially considered important or relevant, but which had been broached by the respondent, in case the appeals officer should consider such evidence critical to his determination.

[77] Having said this however, in my review of those reply submissions I have attached particular attention to two specific comments made by counsel for the appellant. The first one concerns the issue of staffing to respond to a second security incident, a subject over which the respondent has put some emphasis on the isolated location of the Institution and the time needed for recalled officers to arrive on site. Counsel thus noted that “it must be clarified that in an emergency situation, the deployment standards and whether a post is operationally adjustable or not become moot points. The management of the emergency becomes the institutional head’s primary focus and staff may be directed to address the emergency.” Counsel found support for this in paragraphs 18 and 19 of CSC Operational Adjustment Guidelines:

In emergency situations, Correctional Officers may be redeployed to another security activity to assist in isolating, containing and controlling and resolving the incident…redeployment of correctional officers during emergencies may include but is not limited to the following security activities: Unit Officers.

[78] The second comment concerns the evidence provided by Warden Tempest for the appellant’s case. While it does underline that counsel for the appellant is of the view that such evidence should receive major consideration, it also serves to show the appellant’s perception of CO Ludlow’s actions in the present case. Again, those comments are to the effect that “the evidence of Warden Tempest was clear and cogent and his opinions must be given more weight than those of the officers. His opinion is based on the totality of the reports submitted by the officers themselves and an analysis of the facts. He attends the operations meetings daily where all reports are reviewed as well as security intelligence reporting (is) completed by the security intelligence officers. He reviews security reports compiled at regional and national levels on FMI issues (and) therefore he has a better and more wholistic view than CO Ludlow whose opinion is based on second-hand information with practically no rigorous analysis. In Correctional Service Canada and John Carpenter UCCO/SACC/CSN Decision No. 05-012, the Appeals Officer accepted the opinion of the officers regarding the institutional mood of “heightened tension within the units” because a riot took place 48 hours after the refusals to work and less than 24 hours after the HSO’s investigation, giving credit to that feeling of heightened tensions, furthermore, inmates had made threats against staff. There was and has not been any such circumstance at FMI. CO Ludlow’s entire complaint started on a whim and a speculation and has remained so during this entire period.”

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

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