2015 OHSTC 18

Date: 2015-10-20

Case No.: 2013-34

Between:

Mirela Samson, Appellant (Respondent to Motion)

and

Correctional Service of Canada, Respondent (Applicant to motion)

Indexed as: Samson v. Correctional Service of Canada

Matter: Motion to dismiss for mootness an appeal of a decision rendered by a health and safety officer under subsection 129(7) of the Canada Labour Code.

Decision: The appeal is dismissed on the grounds of mootness.

Decision rendered by: Mr. Pierre Hamel, Appeals Officer

Language of decision: English

For the appellant: Herself

For the respondent: Ms. Geneviève Ruel, Counsel, Labour and Employment Law Group, Department of Justice Canada

Citation: 2015 OHSTC 18

REASONS

[1] These reasons concern an appeal brought under subsection 129(7) of the Canada Labour Code (the Code) by Ms. Mirela Samson against a decision of “absence of danger” rendered on June 19, 2013, by Health and Safety Officer (HSO) Francesco Misuraca. HSO Misuraca’s decision of “absence of danger” was issued further to his investigation into the appellant’s work refusal of May 22, 2013.

[2] The matter was set down for hearing from October 19 to 23, 2015. On June 16, 2015, counsel for the respondent raised a preliminary objection with the Occupational Health and Safety Tribunal Canada (the Tribunal), and sought the dismissal of the appeal on the basis that the matter was now moot as a result of the passing of the individual who had allegedly threatened the refusing employee and justified her work refusal. The broader factual context of the matter is summarized in the following pages.

[3] After considering the parties’ written submissions on the motion and the Tribunal’s record, I concluded that the matter of the appeal was moot and that the respondent’s objection was well founded. Accordingly, on September 17, 2015, the parties were informed of my decision to dismiss the appeal as being moot, with written reasons to follow, and of the cancellation of the hearing as a result.

[4] I hereby set out the reasons for my decision.

Background

[5] The factual background set out below is largely taken from HSO Misuraca’s Investigation Report and is by no means a complete description of the underlying issues raised by the appeal on its merits. The present background provides a summary of what I consider to be the salient facts that are necessary for understanding the reasons in support of my decision to declare the appeal moot and dismiss it on that basis.

[6] The appellant is employed with Correctional Service of Canada (“CSC” or “the employer”) as a Parole Officer, and works out of the Toronto West Parole Office. On May 22, 2013, she refused to work on the basis that a situation in her work place presented a danger to herself. The work refusal stated the following grounds:

On Thursday May 16th, 2013, at approximately 2:30 in the afternoon, IPO Gauthier (BCI) informed me that this offender had told another inmate (P) [Name redacted] that he had plans to sexually assault me after WED [Warrant Expiry Date]. He provided a full plan of action which was disturbing to say the least.

[…]

I also called Claudia on the 17th to advise her of the situation as I felt nothing was being done to protect me. At the time the management’s concern was the credibility of the informant and his safety. I was also told that since his plan of action was to start at his WED the risk to me was minimal. My personal safety is at risk as well as to the public as I feel that (C) [Name redacted] is in his offence cycle; his statement is in keeping with his sex offender profile.

[…]

Today, I was advised that they have not issued a warrant for his arrest as they did not want to aggravate the offender.

At this time, I feel that there are no real safety measures put in place for me and I feel unsafe with (C) [Name redacted] out in the community. Therefore I am using my right to refuse to work under section 128 under the Canada Labour Code.

[…]

[7] The work refusal relates to statements alleged to have been made by inmate C to inmate P when both offenders were incarcerated at Beaver Creek Institution in 2012. The statements relayed by inmate P to authorities of the institution were that while he was incarcerated, inmate C expressed his intent to sexually assault Ms. Samson after his warrant expiry date in August of 2013. In 2012, Ms. Samson was the Parole Officer for offender C and she had at one point requested that his statutory release be suspended for deteriorating behaviour. As a result, offender C was taken back into custody and committed to further incarceration. He was released on March 21, 2013 and was placed, at his request, under the supervision of the Downtown Toronto Parole Office.

[8] After being apprised of offender C’s comments, Ms. Samson became very concerned for her personal safety as she felt that they were in keeping with that sex offender’s profile. She felt that a suspension of his release and the laying of criminal charges were in order given the risk factors in this case, and she felt unsafe with offender C being out in the community.

[9] The employer assessed the matter and did not consider that the issuance of an arrest warrant was appropriate in the circumstances. The Downtown Toronto Parole Office Case Management team ultimately made the decision not to suspend offender C. The employer apparently considered the fact that: the information provided by inmate P was unreliable, offender C had been under supervision in the community for over two months without incident, and the offender was not currently under the supervision of Ms. Samson, nor of the office where she worked. Overall, the employer considered that the risks associated with the offender were manageable and did not pose a safety risk to the public or to Ms. Samson. The employer also agreed to develop a safety plan for Ms. Samson and revise it periodically.

[10] Suffice it to say that the appellant was not satisfied with the measures taken by the employer in the circumstances and remained of the view that her personal safety was in jeopardy. She felt, and continues to feel, that the level of risk had not been adequately assessed and the employer’s actions in response to the threat should have gone further and should have considered other more robust measures directed at the offender, such as obtaining a “peace bond” requiring offender C to keep the peace and be of good behaviour (section 810 of the Criminal Code).

[11] HSO Misuraca conducted his investigation into the refusal and, after considering all of the above, determined that Ms. Samson was not exposed to a danger, within the meaning of the Code, in the prevailing circumstances. HSO Misuraca briefly set out his reasoning that the employer had assessed the risk and had taken a number of steps to mitigate the hazard: it contacted and consulted local police, doubled supervision appointments, verified the credibility of the report of threat, confirmed the security of the work place, consulted with the offender’s attending psychologist and conducted a staff safety assessment (HSO Misuraca’s Report, page 13).

[12] The appeal followed its normal course before the Tribunal until the employer became aware of the fact that offender C had passed away in December of 2013. This event caused the employer to present its preliminary objection seeking the dismissal of the appeal on the grounds of mootness, without the need for a hearing on the merits. In the employer’s view, the situation which caused the employee to refuse to work had disappeared and there was no longer a live issue to be dealt with at this time by the appeals officer.

[13] Upon receiving the employer’s preliminary objection, the Tribunal invited the appellant to file written submissions in response. In the course of the correspondence exchange on the matter, the Tribunal was informed that the Public Service Alliance of Canada no longer represented Ms. Samson in her appeal. Ms. Samson’s submissions were received by the Tribunal on September 3, 2015.

Issue

[14] The issue raised by the present motion is whether the appeal has become moot as a result of offender C’s passing in December 2013, and should be dismissed for that reason.

Submissions of the parties

A) Respondent’s (Applicant to the motion) submissions

[15] The applicant essentially submits that since the work refusal was specific to an offender’s alleged threats against the refusing employee and since that offender is deceased, the matter is moot.

[16] The applicant stresses that the right to refuse to perform work in the presence of a danger is an individual right associated with a specific hazard, condition or activity in the work place. The Tribunal has confirmed that a determination that an appeal is moot would not have the effect of preventing Ms. Samson or another employee from raising a work refusal in similar circumstances in the future, where circumstances so warrant. (Manderville v. Correctional Service of Canada, 2015 OHSTC 3; Maureen Harper v. Canadian Food Inspection Agency, 2011 OHSTC 19; Denis Leclair and Correctional Services Canada, Appeals Officer Decision No. 01-024; Dominique Tremblay and Air Canada, Appeals Officer Decision No. OHSTC-09-004).

[17] The applicant refers to the Supreme Court of Canada’s judgment in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, which sets out the test for mootness and reviews a number of situations where the Tribunal dismissed the appeal for mootness (See: Harper; Robert J. Wellon v. Canada Border Services Agency, 2011 OHSTC 28; Tanya Thiel v. Correctional Service Canada, 2012 OHSTC 39; Correctional Service of Canada v. Mike Deslauriers, 2013 OHSTC 41 and Manderville.

[18] The applicant concludes in stating that Ms. Samson is no longer exposed to the alleged danger while at work. The offender, specific to the appellant’s work refusal, is deceased. Therefore, a decision would not have any concrete effect on the parties and for that reason the appeal should be dismissed for mootness.

B) Appellant’s (Respondent to the motion) submissions

[19] The appellant presented extensive submissions (237 pages), including the supporting documentation to her argument. The submissions reiterate in some detail her position on the merits of the appeal, i.e. the circumstances that prompted her to invoke section 128 of the Code, the inadequacy of the employer’s measures to ensure her safety and the flaws in HSO Misuraca’s report and decision of “absence of danger”.

[20] In summary, the appellant submits that once apprised of the threat made against her by offender C, the employer should have implemented the Commissioner’s Directive on Recording and Reporting Security Incidents (568-1) (the Commissioner’s Directive 568-1) and should have conducted a Threat Risk Assessment (TRA), which she claims the employer failed to do in a timely manner. Ms. Samson reiterates that an offender should be suspended when he or she makes a threat.

[21] In the appellants view, the respondent did not perform the steps they were required to initially and in a timely manner as per the Commissioner’s Directive. This inaction affected her ability to move forward with her own safety by preventing her from having the option to charge the offender and/or obtaining a peace bond because the evidence required to action these options were not being gathered properly or in a timely manner. She takes objection to the position expressed by her superiors that pressing charges against offender C could have risked aggravating the situation. She points out that she was supported in her plea for action by a number of colleagues from the Toronto West Parole Office, the chief psychologist and an Ontario Provincial Police officer.

[22] Ms. Samson stresses that this situation caused her anxiety and stress, as she feared for her personal safety, including outside of work and where she lived. This situation left her feeling demoralized, disrespected and unsafe, and caused her to absent herself from work for an extended period of time.

[23] Finally, the appellant submits that HSO Misuraca “completely missed” the fact that the Downtown Toronto Parole Office case management team did not follow Commissioner’s Directive 568-1, that he was provided with the wrong TRA documents initially and questions the fact that his decision of absence of danger appears to pre-date the TRA, suggesting that the employer may have tampered with the documents to make it appear that they followed the protocol and that offender C posed no risk to her.

C) Respondent’s (Applicant to the motion) reply

[24] The respondent stated in reply that Ms. Samson’s submissions simply did not address the preliminary issue of mootness. The respondent stresses that the underlying context of the situation in which the work refusal arose is not relevant for the purpose of a motion for mootness, which is to avoid wasting valuable resources on a question that has become academic.

[25] In response to Ms. Samson’s contention that the employer has not complied with a number of its own policies and questioning certain documents obtained through access to information, the employer argues that the sole jurisdiction of the appeals officer is with respect to decisions of “absence of danger” following their investigation into a work refusal and to the extent Ms. Samson has other issues to raise, there are other appropriate fora and recourses to do so.

Analysis

[26] As I indicated at the outset, the present decision decides solely the issue of whether the appeal ought to be dismissed on the basis of its mootness. It makes no judgement on the merits of the appeal.

[27] A motion for mootness such as the one presented by the employer in the present case, is founded on the principle that it may not be appropriate for a tribunal to hear a matter on the merits when, once the matter has reached the hearing stage, the source of the dispute has disappeared and renders the proceedings academic, as there is no longer any concrete matter to be determined.

[28] In the present case, the issue raised by Ms. Samson’s appeal is whether she faced a danger, as defined in the Code, in the circumstances set out above, and whether HSO Misuraca’s decision of “absence of danger” is well founded. Although in these types of cases, appeals officers must base their findings and conclusions on the circumstances that prevailed at the time of the refusal, appeals officers have nevertheless considered motions for mootness in situations where events occurring after the appeal was filed have rendered the dispute academic, namely where the source of the alleged danger had disappeared.

[29] The underlying principles to the mootness doctrine are set out in the Supreme Court of Canada’s judgement in Borowski, cited by the applicant. In that judgement, the Court states as follows, at page 353:

The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. The relevant factors relating to the exercise of the court's discretion are discussed hereinafter.

[30] The Court then sets out the circumstances which could lead a tribunal to hear a case in spite of it being moot, as follows:

The first rationale for the policy and practice referred to above is that a court's competence to resolve legal disputes is rooted in the adversary system. (at page 358)

[…]

The second broad rationale on which the mootness doctrine is based is the concern for judicial economy. […] The concern for judicial economy as a factor in the decision not to hear moot cases will be answered if the special circumstances of the case make it worthwhile to apply scarce judicial resources to resolve it. (at page 360)

[…]

[…] The mere fact, however, that a case raising the same point is likely to recur even frequently should not by itself be a reason for hearing an appeal which is moot. It is preferable to wait and determine the point in a genuine adversarial context unless the circumstances suggest that the dispute will have always disappeared before it is ultimately resolved.

There also exists a rather ill-defined basis for justifying the deployment of judicial resources in cases which raise an issue of public importance of which a resolution is in the public interest. […] (at page 361)

[31] In order to determine whether a live issue continues to exist, we must examine the purpose of the present proceedings. The appeal brings up the question of whether Ms. Samson, having exercised her right to refuse to work under section 128 of the Code, was exposed to a danger caused by a reported threat of her being sexually assaulted by an offender under her supervision as a parole officer. The record shows that the employer has taken some measures, as noted by HSO Misuraca in his report. Ms. Samson is of the view that those measures were inadequate and that additional protective measures ought to have been taken to ensure her safety.

[32] The common denominator to each perspective of that dispute is that the risk assessment of the situation is entirely founded on the individual who had allegedly uttered the threat (offender C). Factors that were considered include the possibility of those threats having in fact been made given the credibility Error 2029 in light of that offender’s criminal history, the offender’s level of dangerousness. In turn, the type of protective measures that Ms. Samson was seeking were also directed towards the individual in question, such as obtaining a peace bond, filing charges against offender C and revoking or suspending his parole.

[33] In sum, the dispute clearly centers on the apprehended conduct of offender C towards Ms. Samson. It is clear that the source of the alleged danger is offender C and the fear felt by Ms. Samson that he would act on the threat that he is alleged to have made.

[34] It is common grounds that offender C passed away in December of 2013. In my view, his passing results in the disappearance of the alleged source of danger and renders the present proceedings without purpose.

[35] Although Ms. Samson’s submissions do not address the employer’s motion of mootness, they clearly show that in her view, a dispute persists regarding the extent of the measures taken by her employer in the circumstances. However, such a dispute becomes entirely theoretical in light of the context in which it arises, i.e. the presence or not of a danger as defined in the Code, further to a work refusal under section 128.

[36] A decision on the merits of the present appeal, whatever it may be, would only have a declaratory effect, as the condition precedent to the operation of section 128 has disappeared. This is not the objective and purpose of the right set out in section 128 of the Code, which is to allow an employee to refuse to perform his/her duties in case of danger, with a view to have the employer apply forthwith corrective measures to remove the danger in order to enable the employee to resume his/her duties safely.

[37] In this instance, the purpose of the appeal is to rescind HSO Misuraca’s decision of “absence of danger” and have the appeals officer issue directions to the employer pursuant to subsection 145(2) of the Code that would ensure that the danger facing the appellant, the apprehended conduct of offender C towards the appellant, is removed. Thus, such corrective measures would, by necessity, address the source of the danger, namely offender C. That individual now being deceased, the raison d’être of the appeal has quite simply disappeared.

[38] This case is quite similar to the facts set out in the Manderville decision. In that case, the refusing employee, a correctional officer, filed a work refusal because an inmate had behaved in a lewd and offensive manner and allegedly presented a danger to that employee and other female correctional officers. The appeals officer considered the effect of the permanent removal of that inmate from the population of the institution where the refusing employee worked. In support of his decision to accept the mootness argument presented by the employer, the appeals officer states the following, at paragraphs 15 to 19:

[15] In addressing the first step of the mootness test, I will need to determine whether a decision on my part, and the resulting remedy, could potentially have a tangible, concrete or practical effect that will impact on the rights of the parties based on the facts of the case.

[16] The Supreme Court of Canada, in Borowski, stated that “if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot.”

[17] In the present case, there is no debate that the inmate who triggered this work refusal as a source of potential danger is no longer in the work place. The source of the alleged danger has been removed, which therefore means that the refusing employee is no longer exposed to the alleged danger.

[18] Moreover, were I to consider the merits of the present appeal and decide that a danger existed, as requested by the appellant, it is my opinion that the issuance of a danger direction would be a futile exercise given that the situation has already been corrected by the removal of the inmate in question.

[19] Considering all the above, I find that there is no longer a live controversy that can affect the rights of the parties and the appeal has therefore become moot.

[39] Appeals officers have also applied the mootness doctrine regarding other appeals of decisions of “absence of danger” in situations where the refusing employee, at the time of the hearing of the appeal, no longer worked in the work place where the refusal took place. The rationale for these findings of mootness was that the employee simply was no longer exposed to the alleged danger and the condition precedent to the application of that section of the Code had disappeared. Whatever the outcome of the appeal may be on its merits, it would have no concrete purpose in light of the objective of section 128 of the Code (See: Breen Ouellette v. SaskTel, 2010 OHSTC 13; Harper; Wellon; and Thiel).

[40] A similar conclusion was reached in the situation where the work place no longer existed. In Deslauriers, the appeals officer states as follows, at paragraph 42:

[42] Based on my review of the facts and evidence presented to me, I find that there is no live issue or controversy in this matter, the resolution of which could potentially have a tangible, concrete or practical effect on the rights of the parties. To hear an appeal related to a work place which no longer exists renders the entire appeal process purely academic. I therefore find the appeal to be moot.

[41] Conversely, appeals officers have rejected the mootness argument in situations where a direction was issued to the employer, or where the mootness resulted from the employer’s decision to alter or abandon the practice or policy that had given rise to the refusal. In such cases, appeals officers found that a live controversy remained (Aviation General Partner Inc. c.o.b. as Jazz Aviation LP v. Mohamed Gus Jainudeen, 2013 OHSTC 32; Nelson Hunter v. Canada (Correctional Service), 2013 OHSTC 12; see also: Laroche v. Canada (Attorney General), 2011 FC 1454).

[42] Having come to the conclusion that no live controversy exists in the present case in light of offender C’s passing, I now need to determine whether I should exercise my discretion to hear the appeal on the merits despite its academic nature. I am of the view that it would not be appropriate to do so, essentially for the considerations set out above and for the reasons that follow.

[43] Firstly, the circumstances of the dispute regarding the existence of a danger are entirely case-specific to this appeal. Even if it is conceivable that similar situations could happen in the future, the risk analysis in each case would, as I have already explained, be based on very specific facts and variables, and a finding of danger would be entirely dependent on the circumstances of each situation. In that sense, a decision on the merits in this case would have no precedential value, as the circumstances are specific to a particular offender.

[44] Secondly, the right to refuse is an individual right relating to a particular condition in the work place. Should a similar situation occur in the future involving a different offender, Ms. Samson and any employee who may believe that his/her safety is in peril would be entitled to invoke the right to refuse set out in the Code. I echo the appeals officer’s comments in the Manderville decision, at paragraphs 20 and 21:

[20] In this case, an employee engaged in a work refusal in a specific circumstance. This refusal is an individual right and subject to an independent assessment by a HSO. I have already determined that the circumstances from the time of refusal to now have changed such that the source of the alleged danger is no longer present and there would be no effect should I make a determination on the merits.

[21] In addition, given my determination that the case is moot, it does not preclude future work refusals under similar circumstances. Each work refusal is assessed on a case by case basis and an appeal is heard in light of the facts and circumstances in each case.

[45] In other words, this is not a case raising a systemic issue, or a question of general application of the Code or one of its foundations, and no prejudice is suffered as a result of my finding of mootness.

[46] Thirdly, the present decision that the appeal should be dismissed for mootness is issued in a preliminary way, on the basis of the Tribunal’s record and the written submissions of the parties, without a hearing on the merits. This approach serves the second consideration mentioned by the Supreme Court in Borowski, that of judicial economy, in assessing whether the parties and a tribunal ought to expend resources in pursuing a matter in spite of the case no longer presenting a live issue.

[47] Finally, Ms. Samson raises a number of other issues in her submissions, namely that the employer failed to apply some of its own policies and regulations in a timely fashion, or may have tampered with relevant documentation. These matters are at best collateral to the central issue of the appeal, which is to determine whether the appellant was exposed to a danger, and fall outside the scope of the present proceedings.

Decision

[48] For these reasons, the appeal is dismissed as being moot.

Pierre Hamel
Appeals Officer

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