2016 OHSTC 3

Date: 2016-04-15

Case No.: 2012-76

Between:

Jordan Schmahl, Appellant

and

Correctional Service Canada, Respondent

Indexed as: Schmahl v. Correctional Service Canada

Redacted version

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

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

Decision rendered by: Mr. Peter Strahlendorf, Appeals Officer

Language of decision: English

For the appellant: Ms. Arianne Bouchard, Counsel, Confédération des syndicats nationaux, UCCO-SACC-CSN

For the respondent: Ms. Vanessa Reshitnyk, Counsel, Labour and Employment Law Group, Department of Justice

Citation: 2016 OHSTC 3

Reasons

[1] This case concerns an appeal brought under subsection 129(7) of the Canada Labour Code (the Code) of a decision rendered by Health and Safety Officer (HSO) Bob Tomlin on November 8, 2012.

Background

[2] On the day of the work refusal, November 6, 2012, the appellant, Jordan Schmahl, was a Correctional Officer level 1 (CX-01) at Warkworth Institution (WI), a medium security institution, operated by the respondent, Correctional Service Canada (CSC or “the employer”), and located near Campbellford, Ontario.

[3]On November 6, 2012, the appellant was working on the day shift (7:00 am to 3:00 pm). He was assigned to contractor escort duties. In this capacity the appellant’s job was to escort visiting contractors (e.g. plumbers or electricians) while on the premises, during which time there could be inmates present.

[4] A number of events had transpired recently which convinced the appellant that there had been a “dramatic increase” in the number of “throw overs”, and thus an increase in the introduction of contraband and other material into WI. Contraband in the hands of inmates created a risk of injury to staff.

[5] A “throw over” occurs when a person outside the institution throws, or projects, contraband or other unauthorized items over the institution’s fence into an area where inmates can retrieve the package. The package may contain tobacco, drugs, cellphones and other items.

[6] Given the increase in the number of throw overs, the appellant did not believe that the existing measures taken by the employer to protect him and other employees from the risk of harm from contraband and other unauthorized items in the hands of inmates were adequate.

[7] The appellant initiated a work refusal pursuant to section 128 of the Code, referring to the “dramatic increased throw overs/ introduction of contraband”. The appellant notified his supervisor, Correctional Manager (CM) Ms. Tammy Gildon, that he was exercising his right to refuse work in the presence of a danger.

[8] CM Gildon investigated the appellant’s work refusal and decided there was no danger.

[9] The appellant’s work refusal was then investigated by the employer’s representative, CM Mr. Tim Gunter and the employee’s representative, Mr. Scott Huizinga. CM Gunter decided there was no danger.

[10] The Department of Human Resources and Skills Development Canada (now known as Employment and Social Development Canada) was notified of the appellant’s work refusal. On November 7, 2012 HSO Bob Tomlin was present at WI and engaged in an investigation of the work refusal.

[11] On November 8, 2012, HSO Tomlin completed an Investigation Report and rendered his decision that the throw overs were not a “danger” as defined in the Code at the time of the work refusal.

[12] On November 9, 2012 the appellant filed an appeal of the HSO’s decision to an appeals officer, and described the basis of his work refusal as: “dramatic increase of throw overs/introduction of contraband”.

[13] The appeal hearing was held before me in Ottawa from October 14 to 17, 2014.

Issue

[14] I have to determine the following issues:

  1. Whether the appellant was exposed to a danger under the Code when he exercised his right to refuse dangerous work.
  2. If a danger existed, whether the danger was a normal condition of employment so as to preclude the appellant from exercising his right to refuse work under the Code.

Submissions of the parties

A) Appellant’s submissions

[15] The appellant’s witnesses were:

  1. Mr. Jordan Schmahl, the appellant, and a Correctional Officer (CO) with a classification of CX-03 currently, and a CX-01 at the time of the work refusal;
  2. Mr. Rob Essex, a CX-02 at WI; and
  3. Ms. Pamela Davidson, a CX-02, a dog handler at WI.

[16] The appellant provided evidence to support his position that a number of events preceded his work refusal which, taken together, indicated that there was a danger to him from contraband and unauthorized items in the possession of inmates resulting from a dramatic increase in the number of throw overs, combined with an absence of appropriate measures to mitigate the risks arising from throw over material.

September 16, 2012 – Attempted throw over

[17] The appellant testified that he was informed of an attempted throw over, which occurred on September 16, 2012, from his reading of an observation report [text redacted].

[18] During daylight hours, the mobile patrol circumnavigating the exterior WI fence interrupted a throw over. A suspect had approached the fence. When he spotted the patrol vehicle he attempted to hide by lying down on a slope near the fence. He then fled to the tree line, ignoring calls to stop. He left the area in a car that had been parked outside the WI property. The Ontario Provincial Police were contacted but were unsuccessful in intercepting him.

[19] There was evidence from CO Davidson that the suspect had an accomplice waiting in the escape vehicle, which was parked so that the driver could see a portion of WI’s perimeter road. [Text redacted].

[20] It is the appellant’s view that, [text redacted] it would be uncertain whether the suspect would have been detected.

[21] Packages were found containing marijuana, tobacco, cell phones, cell phone chargers, an MP3 player and an unspecified number of lighters and rolling papers. The value of this material in the hands of inmates was estimated to be about $25,000 to $45,000.

October 3, 2012 – The garbage bag

[22] On October 3, 2012 a piece of black garbage bag was found [text redacted] hanging from the inner fence. According to CO Davidson, the bag was torn open at one end. It was empty. In her opinion, because of the way the bag was positioned, and how it was torn, the bag was not brought to the fence by the wind. As well, WI uses transparent bags, not black ones.

[23] Along the inside of this portion of the fence the inmates were often unsupervised for periods of time. There were garden tools available so that an inmate could reach the bag to rip it open and obtain any possible contents.

[24] Ms. Davidson said the bag was tested for drug residues and the result was negative. In her view, if contraband was wrapped in another bag before being placed in the black garbage bag then a negative result wouldn’t necessarily mean that the inner bag did not contain drugs. In the appellant’s opinion, the black garbage bag represented a successful throw over.

October 15, 2012 – The cell search

[25] On October 15, 2012, a search of an inmate’s cell resulted in the seizure of a package containing 8 syringes, 15 syringe plungers, 4 bottles of liquid steroids, 2 packages of steroid pills and 31 alcohol swabs.

[26] In the appellant’s opinion, the package had entered WI as a throw over [text redacted].

[27] There was some evidence from intelligence reports that inmates in the area of the seizure were organizing throw overs. In the appellant’s opinion this cell seizure represented contraband from a successful throw over.

October 28, 2012 – The pop cans

[28] On October 28, 2012, three pop cans were found on the ground in the outside recreation area by COs during a search of the yard. The cans contained marijuana, tobacco, matches, lighters and rolling papers. This material had a value of about $13,500 in the hands of inmates.

[29] There was no disagreement that the cans were thrown over the fence, although the appellant counted the 3 cans as 3 throw overs while the respondent viewed them as constituting a single throw over event. HSO Tomlin counted the incident as 3 throw overs.

[30] Later the same day, [text redacted] posted in the tower overlooking the recreation yard, reported two inmates in the garden portion of the yard apparently looking for something.

[31] There was some evidence from an intelligence report filed November 1, 2012, by [text redacted].

[32] It is the appellant’s position that the events described above represent 6 throw overs, or attempted throw overs. In addition, there were other events which indicated to the appellant that throw overs were increasing.

September 21, 2012 – The hacksaw

[33] On September 21, 2012 a WI employee, [text redacted], found a hacksaw lying in the middle of the road outside the fence but on WI property. Traffic on the road is limited. The hacksaw was not the property of WI. [Text redacted] testified that the discovery of such a tool is a concern because it can be used to cut through the fence. While not a throw over, the event contributed to the appellant’s concerns.

Late September, 2012 – Email [text redacted]

[34] The appellant became aware of an email by [text redacted] the Assistant Warden of Operations at WI, toward the end of September, 2012 that referred to throw overs continuing to occur at WI on a regular basis.

October 18 and 19, 2012 – Review of the National Deployment Team

[35] On October 18 and 19, 2012 a National Deployment Team from CSC visited WI to determine whether resources for a “throw over post” should be provided to WI. A throw over post would constitute 2.63 persons (“full time equivalents”). The appellant stated that the Team’s visit was a response to his repeated requests.

[36] The Team determined that WI did not meet the requirements for such a throw over post. According to HSO Tomlin, who contacted the Team during his investigation, the rationale for the refusal was that WI was not in an urban area, there was a lack of nearby forest that could serve as cover, and there was not a high rate of throw overs.

[37] The appellant disagreed with the Team’s conclusion. In the appellant’s view there was a forested area near WI and there was a high rate of throw overs.

[38] While the Team’s review did not support a new throw over post, it did identify a number of shortcomings in how resources at WI were being deployed. The appellant stated that the Warden testified that he was not familiar with any recommendations of the Team. The appellant views the dissonance between the Team’s results and the Warden’s lack of awareness of the contents of the report as being evidence that inadequate measures were in place to protect employees.

[39] It is the appellant’s position that all of the above events, taken together, indicate the seriousness of the throw over issue at the time of the work refusal.

[40] In addition to the above events, the appellant stated that on October 26, 2012 the Institutional Joint Occupational Safety and Health Committee (IJOSH) made a formal recommendation to the Warden that a tower be manned from 7:00 to 23:00 hours as a preventive security throw over post, and that a second mobile post from 23:00 to 7:00 hours should be established. It was recommended that these measures be put in place for a trial period of 30 days to act as a deterrent for throw overs and to potentially result in the apprehension of the perpetrator(s). The Warden did not accept this recommendation.

[41] There were 11 members of the IJOSH committee which made the recommendation. One of the respondent’s witnesses, Mr. Gunter, testified that all 9 employee members of the IJOSH committee supported the recommendation, the 2 employer members did not. The appellant noted that 5 of the 9 employee representatives were not COs, indicating that the concern about throw overs was widespread among employees.

[42] The appellant was of the view that emails entered into evidence showed that the Warden did not accept the IJOSH committee recommendation because the Warden believed that the throw overs were best addressed through searches and intelligence information.

[43] On the day of the work refusal, the Warden met with the employee representative, Mr. Huizinga, just prior to the work refusal and once again refused to accept the IJOSH committee recommendation. The Warden’s refusal prompted the appellant to refuse to work on that day.

[44] Another factor the appellant said was significant was the change in the type of inmates present in the institution. Mr. Essex testified that there was an increase from earlier years in the number of younger inmates with gang connections and drug problems. This change has increased the risk of violence.

[45] Finally, the appellant relied on the evidence of the respondent’s witness, Ms. Bird, who testified that the Security Information Office at WI had information of impending throw overs which were not ultimately detected. The appellant is of the view that this means that there were probably more throw overs than the six referred to above.

Existing preventive measures

[46] The appellant’s position is that the various preventive measures in place at WI were not sufficient to reduce the risk from the increase in the number of throw overs, and the concomitant increase in the amount of throw over material in the hands of inmates, and therefore there was a danger to the appellant.

Searches of areas

[47] There are particular areas within the fence at WI where throw over material can more readily be recovered by inmates:

[Text redacted].

[48] Areas are to be searched before the inmates enter so that any throw over material inside the fence is recovered before it can be found by inmates. The appellant’s position is that the searches are not always done and when they are, they are not always done effectively.

[49] To support the position that searches are not always done when they should be done, the appellant pointed to missing observation reports; reports that should exist to record the results of searches. The appellant’s witness, Rob Essex, testified that the reports are short and the requirement to complete them is clear, so that a missing report indicates a non-existent search. He said searches may not be done due to a shortage of staff.

[50] The appellant noted that, on cross-examination, Tim Gunter agreed that not all searches may have been done, and that this information had not been available to HSO Tomlin during his investigation. Inmates have a greater probability of recovering throw over material when they are in an area that has not been searched prior to their entry. [Text redacted].

Searches of inmates leaving areas

[51] The appellant stated that inmates are not usually searched when leaving the recreation yard. When they are searched it is via a metal detector, which would not detect drugs, matches, tobacco, brew or other non-metallic material. There must be reasonable grounds to believe an inmate is carrying unauthorized material before an inmate can be more thoroughly searched.

Searches of inmates’ cells

[52] Inmates’ cells are searched [text redacted], unless reasonable grounds exist to do further searches. Mr. Gunter testified that contraband is regularly found during cell searches. It can be concluded that contraband is not always prevented from entering the installation and that contraband can be in inmates’ possession for long periods before being found. This increases the risk that officers will be harmed.

Searches by the “detector dog”

[53] The Search Plan for Warkworth Institution was entered into evidence. Some areas [text redacted].

[54] The appellant is of the view that searches by the detector dog are not a completely reliable way to search an area for contraband.

Security Intelligence Office (SIO)

[55] The SIO at WI was acknowledged by the appellant to have an important role in collecting information about past and future throw over events but that such information is not always available, precise, or shared effectively with personnel [text redacted]. It does not always result in extra precautions being taken. The appellant relied on the testimony of Ms. Davidson and the respondent’s witness, Ms. Bird, for these observations.

Cameras

[56] The appellant’s position is that the presence of cameras to observe the perimeter is not entirely effective in detecting throw overs. The evidence from various sources indicated to the appellant that:

[Text redacted].

Mobile patrols

[57] [Text redacted].

[58] The appellant’s position is that the mobile patrols are not completely effective in detecting throw overs because:

[Text redacted].

Fences

[59] [Text redacted]. The appellant’s position is that the fences are not a completely effective means to prevent throw overs because:

  1. [Text redacted];
  2. The appellant’s witness, Ms. Davidson, did an experiment and successfully threw material over the fences and into the yard.

Contraband and unauthorized items

[60] The appellant referred to the definition of “contraband” in section 2 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (CCRA):

  • 2 (1) (a) an intoxicant,
  • (b) a weapon or a component thereof, ammunition for a weapon, and anything that is designed to kill, injure or disable a person or that is altered so as to be capable of killing, injuring or disabling a person, when possessed without prior authorization,
  • (c) an explosive or a bomb or a component thereof,
  • (d) currency over any applicable prescribed limit, when possessed without prior authorization, and
  • (e) any item not described in paragraphs (a) to (d) that could jeopardize the security of a penitentiary or the safety of persons, when that item is possessed without prior authorization;

[61] An “unauthorized item” is defined in section 2 of the Corrections and Conditional Release Regulations, SOR/92-620 as:

an item that is not authorized by a Commissioner’s Directives or by a written order of the institutional head and that an inmate possesses without prior authorization

[62] Both the appellant and the Warden, Mr. Beattie, testified that the presence of contraband and unauthorized items inside WI increases the risk of violence and injuries.

[63] Various witnesses provided details on the manner in which contraband and unauthorized items can increase risk of violence and injury:

  1. Inmates under the influence of drugs tend to be more aggressive, violent and unpredictable;
  2. Drugs and other items such as tobacco create an underground economy and increases the presence of organized crime and hence an increase in violence;
  3. Unauthorized cell phones allow inmates to communicate with associates on the outside and can lead to an attack on an inmate’s escort to a hospital.

[64] There was ample evidence that contraband and unauthorized items enter WI from many sources:

  1. Throw overs;
  2. Visitors;
  3. Staff;
  4. Inmates’ effects
  5. Mail; and
  6. Merchandise.

[65] The appellant noted that the Warden stated that the purpose of the CSC’s “zero‑tolerance policy” for drugs and other contraband is the security of the staff, the inmates and the community. It was not contested that from time to time inmates assault both staff and fellow inmates.

[66] The appellant’s position is that HSO Tomlin’s no danger decision was wrong and must be rescinded. The appellant states that there was ample evidence that there was an increase in throw overs in November 2012 and that the protective measures put in place by CSC to deal with throw overs were inadequate. The appellant is particularly concerned that [text redacted] which is not as effective in detecting and preventing throw overs as [text redacted]. The hazard related to an increase in throw overs was likely to cause harm to the appellant (and other employees) before it could be corrected.

[67] The appellant further stated that the danger constituted by the increased number of throw overs was not a normal condition of his employment. The appellant’s view is that the work refusal was not improper, as the respondent alleges, as being a work refusal about policies of the employer.

[68] The appellant referred to the statement of Appeals Officer (AO) Malanka in M. Gervais and Correctional Service Canada, Decision No. 04-040 (OHSTC) to the effect that the danger does not have to be “imminent”.

[69] The appellant also referenced the Federal Court decision in Verville v. Canada (Service correctionnel), 2004 FC 767 (Verville), where it was said that a “danger”:

  1. Does not require that a reasonable expectation of injury will exist every time the condition or activity occurs; and
  2. The condition or activity must be capable of causing injury at any time but not necessarily every time.

[70] The appellant relied also on the four part test to determine whether a “danger” exists as set out by the Federal Court in Canada Post Corporation v. Canada (Attorney General), 2007 FC 1362 (Pollard):

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

[71] The appellant’s position is that each of the four criteria in Pollard is satisfied in the situation the appellant was in on November 6, 2012 and therefore a “danger” existed.

[72] Regarding the first criterion in Pollard, the appellant’s position is that the potential hazard faced by the appellant was the throw overs, which lead to the contraband and other unauthorized items being present in the institution, and that this potential hazard was likely to present itself in the future at the time of the appellant’s work refusal.

[73] To support this position, the appellant relied on evidence showing that:

  1. There is agreement between the parties that throw overs can occur without being detected, and the appellant is of the view that evidence suggests that throw overs were happening that were not detected;
  2. In the fall of 2012, there were between 2 and 6 throw over incidents (the employer says 2, the HSO said 4 and the appellant says 6);
  3. The physical layout of the institution is such that there is a risk of throw overs. There is sufficient forest on two sides of WI, plus ditches, that provide cover for people engaged in throw over activity;
  4. It is easy to throw material over the fences as demonstrated by Ms. Davidson’s experiment;
  5. It is possible, as indicated by the September 16, 2012 incident, that someone in a getaway car can observe the perimeter from a distance and communicate to an accomplice when to safely approach the fence to throw over material; and
  6. The preventive measures in existence were insufficient to reduce the risk of throw overs. The mobile patrols, the cameras and the area searches were shown to be not as effective as represented by the employer.

[74] As for the second criterion in Pollard, the appellant stated that there is no dispute that an employee will be exposed to the hazard when it presents itself.

[75] The job description of COs states that COs would be required to intervene in any “threatening or violent situations to protect members of the public, staff and inmates, including incidents where the use of force may be necessary.” Such situations would include those involving contraband or unauthorized items in the possession of inmates.

[76] The third criterion for “danger” in Pollard is the possibility of injuries; that the alleged hazard is capable of causing injury at any time, but not necessarily every time.

[77] To support the position that the third criterion has been satisfied, the appellant stated:

  1. Throw overs are capable of causing injury because inmates come into the possession of contraband and unauthorized items;
  2. Contraband and unauthorized items are prohibited specifically because they can increase the possibility of injuries;
  3. No witness contradicted the conclusion that inmates in possession of contraband and unauthorized items are, to a varying extent and for different reasons, more dangerous;
  4. The risk of assaults by inmates on officers is high; assaults have occurred in the past;
  5. As per Verville, a hazard may be based on unpredictable human behaviour;
  6. Throw overs increase the possibility of injury to officers because:

Drugs can make inmates feel invincible;
Steroids and knives can make inmates feel strong;
Cell phones allow communication with accomplices on the outside, which can facilitate attacks; and
The general tension in the institution can increase when debts are owed in the underground economy created by the presence of throw over material.

[78] The appellant cited Verville again for the principle that the reasonable expectation of injury cannot be based on hypothesis or conjecture. Verville set out the possible bases for determining that there is a reasonable expectation of injury:

[51] … there is more than one way to establish that one can reasonably expect a situation to cause injury. One does not necessarily need to have proof that an officer was injured in exactly the same circumstances. A reasonable expectation could be based on expert opinions or even on opinions of ordinary witnesses having the necessary experience when such witnesses are in a better position than the trier of fact to form the opinion. It could even be established through an inference arising logically or reasonably from known facts.

[79] On the third criterion in Pollard, the appellant stated that it is not necessary to show that an employee has actually been injured by an inmate as the result of a throw over; the evidence has to demonstrate that it is likely to cause injury at any time in the future. The appellant concludes that the increase in throw overs is likely to cause injury.

[80] The fourth criterion in the Pollard test is that injuries will likely occur before the hazard is corrected. The appellant stated that this means that once contraband or unauthorized material from throw overs is in the hands of inmates, it is likely that officers will be injured. Hence, the only relevant preventive measures are those which prevent the material from getting in the hands of inmates in the first place.

[81] The appellant stated that the evidence shows that the current preventive measures such as patrols, cameras, fences and area searches are not sufficient to keep throw over material out of the hands of inmates.

[82] The appellant’s view is that preventive measures to find and seize material once it is in the hands of inmates (cell searches, inmate searches) are too late to mitigate the risk.

[83] The appellant concluded that the four criteria of “danger” in Pollard have been met.

[84] The appellant recognized that even if there is a “danger”, that danger may be a normal condition of employment and therefore not the proper basis for a work refusal, citing subsection 128(2) of the Code:

128(2) An employee may not, under this section, refuse to use or operate a machine or thing, to work in a place or to perform an activity if
[…]

(b) the danger referred to in subsection (1) is a normal condition of employment.

[85] The appellant’s position is that the danger posed by throw overs is not a normal condition of employment for a number of reasons.

[86] While acknowledging that correctional institutions are prone to violent situations and that the CX-01 job description anticipates the risk from inmate violence, this does not mean that a CO cannot refuse to work where the risks are higher than usual.

[87] In support of his position, the appellant referred to Johnstone, Allain and Martin and Correctional Service Canada, Decision No. 05-20 (OHSTC) (Johnstone). The case involved a work refusal where the CO was unarmed and was to accompany a violent inmate suspected of being in possession of weapons. AO Cadieux found that this situation was not a normal condition of employment, stating:

[136] The normal business of a maximum security institution implies working with dangerous people. The level of risk is very high. However, where the circumstances demonstrate that there exists evidence that one inmate has the means and intent to carry out a criminal act, that increases the level of risk to an abnormal level. In response to such a threat, additional measures must be taken that will meet or exceed the level of risk normally associated with this environment. It is not reasonable to decide to change the status of an escort without fully considering the impact this decision will have on the health and safety of correctional officers and not taking measures that correspond to the level of risk. In this regard, while correctional officers are prepared to accept that the normal danger of their job is a normal condition of their employment, it is not a normal condition of employment to have to face a violent inmate that is suspected to actually be in possession of weapons without additional measures taken to protect them from injury. In my opinion, if there exists a reasonable possibility that injury can occur outside the normal conditions of employment, then danger exists that is not a normal condition of employment.

[88] The appellant submitted that the risk posed by the contraband and unauthorized items entering the institution from throw overs had increased, in the fall of 2012, to an abnormal level. Additional security measures were not being taken to deal with the increase in risk.

[89] Following Johnstone, the appellant argued that since the evidence shows that the appellant was facing an abnormal level of risk from throw overs on November 6, 2012, the dangerous situation he faced was not a normal condition of employment.

[90] The appellant submitted that the danger continues and suggested that it may be even higher due to the possible use of airborne drones to carry material into the institution.

[91] The appellant requests that:

  1. The no-danger decision of HSO Tomlin of November 8, 2012 be rescinded; and
  2. A direction be issued to address the risks from throw overs. The direction should address [text redacted].
B) Respondent’s submissions

[92] The respondent’s witnesses were:

  1. Mike Velichka, Deputy Director of Security Operations, CSC National Headquarters, Ottawa;
  2. Tim Gunter, currently Assistant Warden of Operations at WI, and a correctional manager (CM) at the time of the work refusal;
  3. Ryan Beattie, Warden at WI; and
  4. Cheryl Bird, Security Intelligence Officer (SIO) at WI.

[93] The respondent stated that there was no evidence presented by the appellant at the hearing to counter the employer’s determination of “no danger” and, similarly, no evidence to counter the HSO’s determination of “no danger” at the time of the appellant’s work refusal. The HSO’s decision of “no danger” should be affirmed and the appeal should therefore be dismissed.

[94] The respondent stated that there was no evidence that there had been a “dramatic increase” in throw overs and, insofar as there was any risk from material in the hands of the inmates that had entered by way of throw overs, the employer had mitigated the risks.

[95] The respondent submitted that only material entering by way of throw overs is relevant to this case (and not material entering by other means).

[96] In the respondent’s view, it is important to note that WI is a medium security institution and, as such, requires moderate supervision and control of inmates as well as some controlled movement around the institution. This means that some possible severe measures to control throw overs would be incompatible with WI’s mission.

[97] The respondent’s witnesses testified that there had been no dramatic increase in throw overs prior to the work refusal on November 6, 2012. They viewed the discovery on October 28, 2012 of three pop cans on the grounds as being one throw over attempt, not three. There was only the interrupted and unsuccessful throw over of September 16, 2012 and the three pop cans on October 28th. Two unsuccessful throw overs did not constitute a “dramatic increase” in throw overs.

[98] The respondent also stated that there was no evidence of a dramatic increase in the number of attacks by inmates against correctional officers.

[99] The respondent’s view was that any other incidents cited by the appellant were not linked to throw overs. It was speculative to connect other incidents with throw overs.

[100] Based on the evidence of Ms. Bird, a SIO at WI, the respondent stated that there were no throw overs in 2011, two throw overs in 2012 (one attempted throw over and one incident in which the material thrown over was recovered by officers), no throw overs that the respondent’s witnesses knew of in 2013, and two throw overs in 2014, further supporting the position that there was no “dramatic increase” in throw overs.

[101] The respondent submitted that the evidence showed that the measures in place to prevent material from throw overs entering the inmate population were working.

[102] While agreeing that there are hazards associated with contraband or unauthorized items in the hands of inmates, there was no evidence presented that the appellant was in danger of being injured by an inmate with a weapon or by an inmate who had ingested drugs that had entered by way of a throw over.

[103] The employer takes a “multi-layered approach” to dealing with the risks associated with throw overs:

  1. Measures for preventing or deterring throw overs;
  2. Measures for finding contraband or unauthorized items which have been thrown over WI’s perimeter fences;
  3. Measures for finding material from throw overs that has entered the inmate population; and
  4. Measures for protecting the health and safety of correctional officers from risks posed by unpredictable inmate behaviour.

Measures for preventing or deterring throw overs

[104] Text redacted] the location of a patrol vehicle is unpredictable to anyone attempting to approach the fence to throw material over.

[105] The patrolling officers observe individuals inside and outside the perimeter, look for objects near the two fences, and check for damage to the fences. [Text redacted]. The respondent points to the thwarted throw over on September 16, 2012 as evidence that the mobile patrols are effective.

[106] [Text redacted].

[107] [Text redacted]. WI is in a rural area that is not heavily forested. There are an insufficient number of trees close to the fences to provide cover for anyone attempting a throw over.

[108] [Text redacted].

[109] The Security and Intelligence Office at WI collects information from a variety of sources which is assessed and acted upon to thwart attempts to smuggle material into the institution. Evidence of successful use of this information was provided at the hearing. Ms. Bird testified that they had intelligence in advance of the September 16, 2012 attempted throw over and thus were able to alert staff to be extra vigilant. She said that information from the Ontario Provincial Police (OPP) can be of assistance as well.

Measures for finding throw over material

[110] Several of the respondent’s witnesses testified as to the effectiveness of searching areas such as the work and recreation areas prior to inmate presence. WI’s “search plan” requires such areas to be searched daily by COs or CSC staff. Mr. Gunter testified that it was common practice to have:

[Text redacted].

[111] Mr. Gunter also described how the movement of inmates around WI is controlled and subject to an “inmate pass system”. Inmates in transit are closely monitored by COs and security cameras. During recreation time, five COs are stationed in the recreation yard and/or gym and another CO is stationed in the tower above the recreation yard.

[112] COs performing the regular search of the recreation area on October 28, 2012 discovered the three pop cans containing illicit material. In the respondent’s view, this illustrates the effectiveness of area searches.

Measures for finding material that has entered the inmate population

[113] WI has a detailed “search plan” whereby inmates and the entire institution are searched regularly to discover any contraband or unauthorized items possessed by inmates. Many searches involve detector dogs. There are many specific types of searches of inmates involving, for example, inmates returning to WI from an excursion, inmates attending special events where visitors are present, inmates exiting the visiting area and the work area, entering or leaving the segregation unit, inmates leaving their cells during a cell search, and inmates entering or leaving private family visits.

[114] WI also has walk-through metal detectors and hand wands are available. The search plan requires that all persons entering WI pass through a metal detector. Personal packages are x-rayed or visually inspected.

[115] Inmates may be tested for ingested drugs and alcohol. If irregular behaviour is observed, an inmate may be subject to urinalysis or be placed in a “dry cell”. Random urinalysis testing of a minimum 10% of the inmate population is done monthly.

[116] Where there is suspicion that an inmate is carrying contraband or unauthorized items, an inmate may be subjected to a frisk search, a detector dog search, a strip search, an x-ray search or a body cavity search. Under certain circumstances the Warden may authorize a frisk search or strip search of all inmates.

[117] Inmates’ cells are routinely searched [text redacted] and may be searched on a non-routine basis. Inmate accessible areas are routinely searched [text redacted].

[118]The respondent submitted that contraband found during cell searches that could have entered WI by way of a throw over demonstrates the effectiveness of the search procedures.

Measures to protect CO’s from risks posed by unpredictable inmate behaviour

[119] The respondent’s position is that the likelihood of injury to a CO by an inmate who has obtained contraband by way of a throw over (or other means) has been minimized by various measures such as:

  1. Training, updated yearly, in use of force, self-defence, “dynamic security” and gangs;
  2. Contingency plans for any incidents arising;
  3. Reporting and recording of any incidents; and
  4. Staffing levels in accord with national deployment standards.

[120] Prior to his work refusal the appellant had successfully completed training courses on:

  1. Personal safety for COs;
  2. Applied “dynamic security” (constant observation and interaction with inmates);
  3. Use of force;
  4. Use of weapons;
  5. Use of chemical agents;
  6. First aid;
  7. Gangs; and
  8. Refresher courses on personal safety and use of force.

[121] Mike Velichka testified that a team from the CSC’s National and Regional Headquarters conducted an assessment of WI’s deployment of COs in October, 2012. As a result, a Threat Risk Assessment, dated February, 2013, concluded that “the complement of security staff in the areas reviewed is sufficient to appropriately manage the risk”.

[122] The respondent stated that HSO Tomlin’s report had indicated that, prior to the final report, the CSC’s team conducting the deployment assessment had determined that WI did not meet their criteria for a specific post position to deal with throw overs because:

  1. WI is not near an urban area;
  2. WI is not near a minimum security institution;
  3. There is not a heavily forested area near the entire perimeter of fence; and
  4. There was not a higher rate of throw overs at the time of the assessment.

[123] Mike Velichka testified that the staffing levels at WI are in accordance with the CSC’s national deployment standards and that existing staffing levels do not give rise to risk that is higher than that factored into the normal working conditions of a CO.

[124] The Warden, Mr. Beattie, testified that WI is resourced properly to deal with the issue of throw overs. He said that, in his opinion, there had not been many throw overs or attempted throw overs in the years leading up to November, 2012. He said that resources would be allocated if deemed necessary.

[125] COs working with inmates possess personal protective equipment including stab‑proof vests, handcuffs, OC spray, personal protective alarms, radios, CPR masks and cut-resistant search gloves.

[126] Risk assessments are performed on all inmates to mitigate the risk of conflict. Inmates in a medium security institution such as WI are not high risk. There are strategic plans in place to deal with emergencies such as violent behaviour by an inmate.

[127] Inmates engaged in misconduct (including assaulting a CO) may be disciplined (including placing them in segregation) and may be transferred to a maximum security penitentiary. Such measures are a deterrence aimed at protecting CSC staff.

[128] The risk of injury to a CO at WI is highly unlikely because:

  1. There has been no violent incident in which an inmate has seriously injured a CO in the two years prior;
  2. In the opinion of senior personnel at WI throw overs posed no danger within the meaning of the Code;
  3. There was no evidence that throw overs posed any unordinary risk on November 6, 2012;
  4. There was no intelligence at the time of the work refusal regarding material obtained by way of a throw over; and
  5. There was no intelligence at the time of the work refusal that an attack against a CO by an armed or drugged inmate was likely to occur.

[129] In summary, the respondent argued that there are numerous measures in place to mitigate the risks posed by throw over material in the hands of inmates.

Abuse of intent of the Canada Labour Code

[130] It is the position of the respondent that the appeal should be dismissed on the basis that the appellant’s work refusal was an improper use of the Code. The appeal should be dismissed on this basis alone, without considering whether there was a danger, or whether the risk to the appellant was a normal condition of employment.

[131] The respondent cited case law to the effect that the right to refuse work is a serious emergency measure and should not be used to challenge the respondent’s policies and procedures (Pierre Brulé et al., [1999] CIRB No. 2 at paragraph 16).

[132] Nor should the right to refuse work be used to bring long-standing OHS issues to a resolution (Canada (Attorney General) v. Fletcher, 2002 FCA 424 (Fletcher) at paragraph 22 and Leary v. Treasury Board (Department of National Defence) et al., 2005 PSLRB 35 at paragraph 66).

[133] The respondent stated that the appellant engaged in his work refusal only after it was apparent that the Warden was not going to agree to a recommendation from the health and safety committee to add an extra mobile patrol to the morning and evening shifts. There was nothing unordinary about the particular day on which the work refusal took place.

[134] The respondent referred to the Appeals Officer’s decision in Jack Stone and Correctional Service of Canada, Decision No. 02-019 (Stone) at paragraphs 41 and 51 where Mr. Stone, an employee of a medium security institution, had refused to work in order to bring an issue concerning staffing to a head, on a day when nothing out of the ordinary was happening or about to happen. The Appeals Officer held that long standing problems concerning adequate staffing are best dealt with through the institution’s health and safety committee.

[135] The respondent submitted that the appellant’s work refusal was in a context similar to that in Stone. Adding additional posts to deter or prevent throw overs had been a labour-management issue before the health and safety committee and the health and safety committee remains the proper forum for such an issue. The respondent stated that the appeal should be dismissed on this basis alone; that the appellant’s work refusal was an improper use of the Code.

No danger

[136] The respondent asserted that the concern of the appellant was speculative at the time of the work refusal as there was no evidence of a “dramatic increase” in throw overs. There has been no dramatic increase from November 6, 2012 to the date of the hearing. There is no evidence for the appellant’s belief that the hacksaw blade found on September 21, 2012 was related to a throw over incident.

[137] The October 3, 2012 incident with the plastic bag found on the fence razor wire was not supported by any evidence that it was related to a throw over. An ion scan of the bag did not show evidence of contact with drugs. The height of the fence made contact of an inmate with the bag improbable. The respondent noted that the appellant himself suggested it was hypothetical that the bag was related to a throw over.

[138] The material found in the cell search of October 15, 2012 was not shown to have come from a throw over. Its size and its bubble wrapping could be explained in other than a throw over context. The bubble wrap could have been used to prevent breakage when the material was concealed in a ceiling vent.

[139] The respondent disputed the significance of the email sent by Janice Sandeson on September 27, 2012, noting that it was in the context of a previous work refusal in which the HSO concluded throw overs were not increasing and there was no danger from them.

[140] The respondent stated that the appellant on cross-examination could not specify any particular danger on the day of the work refusal. The appellant testified that he was not aware of any throw overs or attempted throw overs on that day. Nor did the appellant testify that he had a compelling belief at the time that he would be subject to an attack by an inmate in the near future as a result of a successful throw over.

[141] The respondent submitted that the evidence was inconclusive as to whether searches were being done but not recorded (in the view of the respondent), or not being done at all (the appellant’s view). There was evidence that inaccurate records do not mean that searches are not done.

[142] The respondent submitted that the appellant gave insufficient weight to the experience and opinions of the respondent’s witnesses who had decades of correctional experience as well as access to all security data.

[143] Contraband or unauthorized items enter WI through various means including throw overs, visitors, inmates returning from excursions, contractors, staff, inmates’ effects, vehicles, and mail. The respondent stated that the appellant did not challenge the evidence that throw overs are not a common method of entry of contraband or unauthorized items.

[144] The respondent argued that there must be a reasonable possibility that the circumstances could be expected to cause injury. The possibility cannot be based on speculation or hypothesis. The respondent cited a number of authorities for this proposition: Verville at paragraphs 33-36; Martin v. Canada (Attorney General), 2005 FCA 156 at paragraph 37; Pollard at paragraph 68; Fletcher at paragraph 18; and Martin‑Ivie v. Canada (Attorney General), 2013 FC 772 (Martin-Ivie) at paragraphs 50, 52 and 56.

[145] On this point, the respondent quoted the AO in Wade Unger v. Canada (Correctional Service), 2011 OHSTC 8 at paragraph 50 (Unger):

…The appellant has provided many scenarios that, if they were to occur in a particular order or in a chain of unfortunate events, could potentially result in injury. Without a doubt, the circumstances in which the situation could cause injury are highly speculative and are based on the piling of hypothetical situation upon one another.

[146] Acknowledging that the absence of past incidents does not rule out a future occurrence, the respondent cited paragraph 74 of the decision in Weagant v.Canada (Correctional Service), 2013 OHSTC 22, for the principle that it is “reasonable to take the record into account when considering whether the prospects for such incidents occurring in future are likely or unlikely." The record showed that the appellant’s concerns had not materialized around the time of his work refusal. Ms. Bird testified that there were 6 recorded assaults against staff in 2012. None of the assaults resulted in serious injury.

[147] The respondent characterized the appellant’s apprehension of danger as being purely speculative. There was no reasonable expectation that the unsupported claim of an increase in throw overs would lead to an injury. As well, it was speculative to assume that if a throw over package is found, then there must be others.

[148] The respondent submitted that there was no evidence of any hazard beyond what a CO normally encounters in the presence of the inmates. It is part of the job description of a CO to handle violence from inmates. COs, including the appellant, were trained and equipped to deal with such violence.

[149] The respondent stated that there was no evidence that the morning of November 6, 2012 would be anything other than a “quiet and uneventful” morning. There was no threat of a potential assault on the appellant. As the appellant has not shown a reasonable expectation of injury, there was no danger, and the appeal should be dismissed.

Normal condition of employment

[150] If there was a danger to the appellant, the respondent’s position is that such danger would be a residual level of risk that would be a “normal condition of employment” under the Code and so could not be the basis of a work refusal.

[151] In support of its position, the respondent referred to P & O Ports Inc. v. International Longshoremen’s and Warehousemen’s Union, Local 500, 2008 FC 846 at paragraph 46 in stating that a danger that constitutes a normal condition of employment is a “residual hazard” that remains after the employer has followed all “reasonable steps” to mitigate it.

[152] The respondent argued that it is a well-established principle that the possibility that a CO may encounter inmate violence is a normal condition of employment, citing Canada (Attorney General) v. Lavoie, [1998] F.C.J. No. 1285, FCT-2420-97 (FC) at paragraphs 25 and 26, Stone at paragraphs 46, 49-51, and Bouchard et al. v. Correctional Service of Canada, Decision No. 01-027 at paragraphs 18-22.

[153] The respondent notes that the appellant testified that he was aware of the hazards inherent in his position as a CO as set out in his work description. The appellant admitted in his testimony that his job involved a variety of risks related to inmate violence.

[154] Citing Unger, the respondent submitted that, for the appellant’s job, which involves unpredictable human behaviour, there was a mere possibility that circumstances could be expected to arise that could cause injury, not a reasonable possibility (respondent’s emphasis).

[155] In conclusion, the respondent’s position is that the evidence shows that the respondent had taken reasonable steps, through the protective measures described, to ensure the health and safety of officers in the presence of inmates. Any residual danger is a normal condition of employment.

[156] The respondent requested that the appeal be dismissed. In the alternative, the respondent requested time to address any specified danger in consultation with the WI health and safety committee.

C) Appellant’s reply

[157] The appellant reiterated that HSO Tomlin had determined that there were 3 throw overs not one on October 28, 2012 (the 3 pop cans). As well, HSO Tomlin had noted that there was a large forested area to the east of WI, which the appellant submits offers cover for those attempting throw overs. There was no supporting evidence for SIO Bird’s comment that the Security Intelligence Office had received information about a prospective throw over attempt prior to September 16, 2012. The appellant also noted that the OPP has not been of much assistance regarding throw overs; no information about prospective throw overs had been received for a long time and the OPP has a rather slow response time when an incident at WI occurs given the distances involved.

[158] Regarding the respondent’s position that the appellant’s work refusal was an abuse of the Code, the appellant agrees that challenging an employer’s policies and procedures or bringing a long-standing dispute to a head might not be appropriate circumstances for a work refusal ordinarily, but if an employee believes the policies or procedures constitute a danger within the meaning of the Code then a work refusal is appropriate. In Duguay v. Canadian Broadcasting Corp. Decision OHSTC 08-022 (Duguay), the Appeals Officer held that a history of tensions or disagreements between the employer and employees about a certain issue should not preclude the exercise of the right to refuse work about that issue if it amounted to a danger.

[159] The appellant also disagrees with the respondent’s reliance on the Fletcher decision. In Fletcher, the policy that was being challenged by the employee was one that was not actually in effect, hence the Court’s conclusion that the policy couldn’t be the subject of a work refusal. In the situation before us, the appellant is concerned with the employer’s response, or lack thereof, to the threat of throw over material; the appellant is not concerned with a non-existent policy as in Fletcher.

[160] The appellant recognizes that there are some similarities between the situation in Stone and the case at hand. However, in Stone there was a single incident of concern whereas here there were a number of incidents prior to the appellant’s work refusal that indicated a danger. In the appellant’s view, it is not speculative or hypothetical to infer a danger from the objective facts of these incidents.

[161] In addition, the appellant stated that Stone can be distinguished from the case at hand because in Stone the search plan was effective and well-enforced, whereas the evidence here indicates that the search plan at WI was not being carried out effectively.

[162] Regarding the respondent’s emphasis on November 6, 2012 being a quiet and uneventful day, and therefore there was no danger facing the appellant, the appellant referred to Verville for the point that just because nothing actually happened on November 6th does not mean the situation was not “capable of causing injury at any time”, in the words of the Verville decision.

[163] The appellant took issue with the testimony of Ms. Bird that “in 2012, there were six recorded assaults against CSC staff, none of which resulted in any serious injury.” The respondent provided no statistical evidence to support Ms. Bird’s opinion as to the number of assaults. The appellant also noted that the CSC’s view of what constitutes a “serious injury” does not match the broader definition of injury in the regulations under the Code. The cross-examination of Ms. Bird did show that some officers had been seriously hurt in the past, to the point of hospitalization.

[164] On the issue of what constitutes a “normal condition of employment”, the appellant argued that the evidence shows that all safety measures were not taken (an additional mobile patrol) and that measures in existence (searches) were not enforced effectively.

[165] The appellant stated that the question of whether all reasonable steps to mitigate the risk have been taken will “depend in part on the gravity of the risk; the greater the risk the further the employer must go to mitigate it.” ( Martin-Ivie at paragraph 47) Since the injuries caused by contraband in the hands of inmates can be very severe, the measures taken by the CSC are not sufficient.

[166] The appellant is of the view that the measures enumerated by the respondent that are not aimed at preventing throw overs, but which are aimed at finding contraband already in the hands of inmates, are problematic since inmates are in possession of the contraband for undetermined lengths of time before the contraband is seized.

Analysis

[167] The appellant engaged in a work refusal pursuant to subsection 128(1) of the Code:

128. (1) Subject to this section, an employee may refuse to use or operate a machine or thing, to work in a place or to perform an activity, if the employee while at work has reasonable cause to believe that
the use or operation of the machine or thing constitutes a danger to the employee or to another employee;
a condition exists in the place that constitutes a danger to the employee; or
the performance of the activity constitutes a danger to the employee or to another employee.

[168] A “danger” is defined in subsection 122(1) of the Code:

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

[169] A work refusal is not permitted if the danger is a normal condition of employment, as stated in subsection 128(2) of the Code:

128(2) An employee may not, under this section, refuse to use or operate a machine or thing, to work in a place or to perform an activity if
[…]
(b) the danger referred to in subsection (1) is a normal condition of employment.

[170] HSO Tomlin made a decision on November 8, 2012 that a danger did not exist in the appellant’s circumstances. The appellant then appealed the decision pursuant to subsection 129(7):

129(7) If a health and safety officer decides that the danger does not exist, the employee is not entitled under section 128 or this section to continue to refuse to use or operate the machine or thing, work in that place or perform that activity, but the employee, or a person designated by the employee for the purpose, may appeal the decision, in writing, to an appeals officer within ten days after receiving notice of the decision.

[171] Subsection 146.1(1) of the Code sets out the authority of an AO when an HSO’s decision of “no danger” is appealed. I may vary, rescind or confirm the decision of “no danger”. If I find that there was a danger, I may issue a “danger direction” under subsections 145(2) or (2.1):

146.1 (1) If an appeal is brought under subsection 129(7) or section 146, the appeals officer shall, in a summary way and without delay, inquire into the circumstances of the decision or direction, as the case may be, and the reasons for it and may

vary, rescind or confirm the decision or direction; and

(b) issue any direction that the appeals officer considers appropriate under subsection 145(2) or (2.1).

[172] Normally, in a case such as this, I would have two issues to deal with; whether HSO Tomlin was correct in his decision of “no danger”, and if he was not – there was a danger – whether the danger was a normal condition of employment, thus not permitting
the appellant to engage in a work refusal. However, the respondent raised a third issue, which the respondent claimed comes before the first two.

[173] The respondent alleges that the appellant’s work refusal is an abuse of the Code. The appellant is allegedly using the right to refuse work as leverage to obtain a desired outcome in what is characterized by the respondent as primarily a dispute about staffing. The respondent submitted that I should dismiss the appeal on the basis of abuse of the Code and therefore not proceed with the merits of the case.

[174] For the following reasons, I have decided to deny the respondent’s request to dismiss the appeal on the basis of abuse of the Code.

[175] To begin with, I do not believe that I have the power to do what the respondent is requesting. In accordance with subsection 146.1(1) of the Code, the mandate of an appeals officer when seized of an appeal under subsection 129(7) of the Code is to inquire into the circumstances of the case to determine on an objective standard whether or not a danger existed. My role is not to determine whether or not the appellant had reasonable cause to believe that a danger existed.

[176] The facts alleged by the respondent to support its argument about abuse of the Code may well be relevant to the question of whether danger existed on November 6, 2012, but I cannot dismiss the appeal at the outset without first fulfilling my mandate as per subsection 146.1(1) of the Code.

[177] Moreover, the Code contains an express provision governing the situation where an employee has abused his or her rights. Pursuant to section 147.1 of the Code, an employer may, after the appeals process has been exhausted, take disciplinary measures against an employee who the employer believes has wilfully abused his rights. This matter however does not fall within the mandate of the appeals officer.

[178] I will now proceed to examine the merits of the appeal.

Was there a danger from a “dramatic increase” in throw overs?

[179] To decide this issue, I will apply the four-part test developed in Pollard which requires the following :

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

[180] The appellant’s appeal is based on his belief that there was a dramatic increase in the number of throw overs and that the employer was not responding effectively to this new development. The appellant’s desire for a new throw over post may be what triggered his work refusal, but the lack of a throw over post is not mentioned expressly in his work refusal statement – “dramatic increased throw overs/ introduction of contraband”. It is entirely possible that throw over material in the hands of inmates is a danger regardless of whether there is a throw over post or not. The appellant’s witnesses referred to many areas where it was alleged that the employer has taken insufficient steps to deter and stop throw overs and to secure material once it is in the institution.

[181] The appellant states that if the decision of the HSO is rescinded, and I find that there was a danger on November 6, 2012, then there are a number of steps the employer could take to reduce the risk other than creating a new throw over post. The appeal is not just about the appellant’s disagreement with the Warden’s decision regarding the committee’s recommendation; it is not just about policy or staffing. An appeal hearing under the Code is a de novo hearing, and so it is open for me to find that there were other reasonable measures the employer should have been taking in regard to the throw over problem.

[182] Having considered all the evidence, I do not think the facts indicate there was a “dramatic increase” in the number of throw overs around the time of the work refusal. Moreover, any apparent increase in throw overs may be nothing more than insignificant statistical “noise” given the low number of events, however they are counted.

[183] There are only two events that can be said with certainty to be a throw over and an attempted throw over – the three pop cans on October 28, 2012 and the thwarted throw over on September 16, 2012. The three cans were found next to each other. The chances are very low that there could be three independent throw overs resulting in:

  1. Similar containers being used;
  2. The three containers landing next to each other;
  3. Landing next to each other in a relatively large recreation yard;
  4. Landing next to each other in a yard with a long perimeter from which to launch a container; and
  5. The containers arriving on the same day (most likely).

[184] The situation is almost identical to one bag being thrown over containing 3 pop cans – clearly one throw over. Throw overs should be counted as events, not as the number of packages that arrive together.

[185] As far as is known, there were no throw overs in 2011 and none in 2013 (although there were apparently two in 2014).

[186] It cannot be said with certainty that any material from throw overs entered the institution’s population around the time of the work refusal. It is possible that the garbage bag incident and the bubble-wrapped package represented material that entered the population through throw overs; the latter material was retrieved, the former, if it existed, was not. If these two events count as throw overs, the total is 4 throw overs or attempted throw over events.

[187] There is only one incident where there is some probability that throw over material entered the population where, un-retrieved, it could be the source of increased risk of violence to the appellant – the garbage bag incident. That incident occurred on October 3, 2012, over 30 days prior to the day of the work refusal. Although a minor point, even if material had entered via the garbage bag, much of the material was likely consumed or distributed uneventfully prior to November 6th. Cells are searched once a month. There is an incentive for inmates to use what they have before it is found.

[188] There is nothing that connects the hacksaw incident to throw overs.

[189] There is nothing clear that emerged from the email of [text redacted] in late September, 2012.

[190] If we assume there were 4 throw over incidents in 2012 prior to the appellant’s work refusal (the pop cans, the thwarted attempt, the plastic bag and the bubble wrapped contraband from the inmate’s cell), that is not a situation of “dramatic increase”. When dealing with such small numbers, 0-6 per year, it cannot be said that there is any significant increase at all. One does not need to be a mathematician to understand that variation among numbers this small is just statistical “noise”. Even if there were 6 throw over incidents, as the appellant alleges, the situation doesn’t change.

[191] In any event, it is not proper to count suspicious events in 2012 as possible throw overs without counting suspicious events in other years as possible throw overs; which, if they existed, would likely even out the total number of events over the years.

[192] It is possible that there were successful throw overs in 2012 that were never detected. It is also possible that there were some in previous years. There was no evidence that there was any significant change from year to year.

[193] Having considered all of the evidence there does not appear to be any significant change in the number of throw overs prior to November 6, 2012.

[194] Even if there was a significant increase in the number of throw overs, would the amount of material reaching the inmates necessarily increase as well? Would any such increase in the amount of material reaching the inmates be significant? The number of throw over events doesn’t determine the amount of throw over material – the amount per event can vary greatly. What affects the risk is the amount of material and the number of inmates who have their hands on it, not directly the number of throw over events.

[195] More importantly, the evidence was quite clear that contraband and unauthorized items can enter the institution by many paths. Throw overs were not considered to be a major pathway by either the appellant or the respondent. It is quite reasonable to suppose that the percentage of the total amount of contraband that comes from throw overs is relatively quite low. Hence, fluctuation in the amount from throw overs is unlikely to have any significant impact on the total amount of contraband present in the institution. Plus or minus 5 kilograms of contraband from throw overs would not have much effect on the probability of violence if 500 kilograms of contraband is entering the institution by other routes (the numbers are by way of illustration only).

[196] Even if there was a significant increase in the amount of contraband from throw overs in the hands of inmates prior to the work refusal, that would not automatically cause a significant increase in the risk of violence caused by the presence of contraband from throw overs.

[197] Violence from inmates can be caused by many other things than contraband from throw overs. Contraband from throw overs – even if there was a significant increase – would only be a portion of all the causes of violence. But there was no clear evidence about an increase in violence from inmates from any cause prior to the work refusal. There were 6 incidents of violence against staff by inmates in 2012. The appellant questioned the accuracy of this number, but did not provide further details. Even assuming that this is an underestimation, the number of incidents can fluctuate randomly from year to year without being significant in terms of an actual increase. If there was no significant increase in violence in general, then it is reasonable to believe that there was no increase in violence due to material from throw overs.

[198] Nevertheless, even if harm from a risk has not materialized that does not mean that the risk is not there. The lack of significant change in the level of violence is only one factor. Even if there is no reason to believe there was a significant increase in:

  1. Throw overs;
  2. The amount of materials from throw overs in the hands of inmates;
  3. The amount of violence from inmates due to possession of material from throw overs …

… there could still be some static level of risk from violence due to material from throw overs.

[199] Although there was no significant change in circumstances at the time of the work refusal, perhaps there was some indication that things were about to change and there would soon be an increase in throw overs and ultimately an increase in material in the hands of inmates? But there was no evidence that the situation was about to change with respect to throw overs. There was no intelligence to suggest anything significant on the horizon.

[200] Was the appellant faced with a danger on November 6, 2012? Under the first criterion of the Pollard test, was it likely that the hazard would present itself? Was the appellant facing the prospect of violence from inmates caused by contraband that arrived through a throw over? There was a possibility but it was not likely. It is true that the severity of an injury due to inmate violence can be extreme, even fatal. Severity of harm is a factor in risk.

[201] The issue, under the first criterion of Pollard, however, is probability. It was not likely the appellant would be harmed by inmate violence from any cause that day, or into the foreseeable future, let alone violence caused by throw over material in the hands of inmates. A hazard can have a low probability of causing harm and it should be addressed by the employer under its general duty or one of the duties in section 125 of the Code. A hazard has to be at a high level of risk to be a hazard that is a “danger”. Under Pollard, the probability has to be high for there to be high risk. The first Pollard criterion requires a high degree of probability – likely.

[202] For all the above reasons, I find that there wasn’t anything that would make it likely that the appellant would be the subject of inmate violence due to contraband material. On November 6, 2012, it was not likely:

  1. That throw overs were increasing in or about November of 2012;
  2. That a throw over had occurred successfully (in the sense of significant amounts of throw over material un-retrieved in the hands of inmates) in or about November of 2012;
  3. That in November of 2012 a throw over would occur at some time in, the then, foreseeable future;
  4. That the appellant, or another employee, would be subject to inmate violence from any cause in November of 2012 or at some time in, the then, foreseeable future;
  5. That the appellant, or another employee, would be subject to inmate violence in November of 2012, or in, the then, foreseeable future, caused by contraband or unauthorized material in the hands of inmates.

[203] If there was no dramatic increase in throw overs, and no significant increase in throw over material in the hands of inmates, then it would seem unnecessary to consider new measures to be taken by the employer. The control measures that were in place to deter or prevent throw overs were not perfect, but they were not defective in any way that would make it likely that the appellant would be the subject of inmate violence due to contraband material.

[204] Although unlikely, if the appellant was to have faced violence from inmates, there was considerable evidence about a range of control measures to deal with inmate violence itself: training of various sorts, personal protective equipment, controlled movement of inmates, number and location of COs, profiling of inmates, intelligence data, among others. Without getting into the finer details, after reviewing all the evidence there was no sign of any significant deficiencies in these control measures.

[205] Even if there was reason to believe in November 2012 that the throw over situation would worsen in the future, there was nothing to suggest that existing control measures aimed at deterring, detecting and intercepting throw overs could not handle things. The Warden said that if the situation changed then further measures could be taken as necessary.

[206] I find further support for my conclusion that there was no condition or nothing unusual on the day the appellant exercised his right to refuse to work that could expose him to a danger when I review the long history of the events that took place prior to that date. The evidence before me has revealed that there has been a long-standing dispute between the appellant and his employer on the issue of throw overs.

[207] A reasonable interpretation of events on November 6, 2012 is that the appellant’s work refusal was in response, to a very large degree, to the Warden’s rejection of the IJOSH committee’s recommendation.

[208] There was no throw over or attempted throw over on November 6, 2012. There was no evidence that a throw over was planned or expected at that time. It was on September 16, 2012 that an unequivocal throw over occurred (the 3 pop cans). In no sense was there an emergency on November 6th. It appeared to be a routine day. On the morning of November 6, 2012, the co-chair of the IJOSH committee, Mr. Scott Huizinga, met with Warden Beattie and re-stated the IJOSH committee’s recommendation that a throw over post be established for a trial period of 30 days. The Warden did not agree with the recommendation.

[209] It is the appellant’s position that it was at this point, hearing of the Warden’s decision, that he became convinced there was a danger and so engaged in his work refusal. If the Warden had accepted the recommendation it is unlikely that the appellant would have engaged in his work refusal on November 6th.

[210] The substance of the IJOSH committee recommendation was the creation of a throw over post. That is what concerned the appellant primarily. It is a reasonable characterization of the appellant’s work refusal that it was primarily about a staffing issue.

[211] It was a relatively long standing dispute. Although the details were not covered at the hearing, there was some evidence that there had been a work refusal concerning throw overs prior to the appellant’s work refusal. The HSO attending at that prior work refusal had made a no-danger decision and the employer at WI had increased the number of searches it did to detect throw over material as set out in an Assurance of Voluntary Compliance. As well, the appellant stated that the National Deployment Team had visited WI because of his repeated requests. Their visit was on October 18 and 19, 2012. The IJOSH committee had discussed the issue and had made their original recommendation on October 26th.

[212] CSC has policy and process for deciding staffing issues. The appellant did not agree with that policy or, at the very least, did not think the process for determining the staffing issue was executed properly.

[213] The Warden has discretion to institute a throw over post if the need arises. In his judgment, on November 6, 2012, the need had not arisen. The appellant did not agree with the Warden’s decision regarding staffing.

[214] There are many ways to characterize the causes of workplace injuries. It is common to distinguish between immediate direct causes, such as conditions and behaviours, and indirect, or root causes, which refer to missing or defective elements in the management system – policies, programs and procedures.

[215] Under subsection 128(1), employees have a right to refuse to do work regarding:

  1. the use or operation of the machine or thing;
  2. a condition exists in the place; or
  3. the performance of the activity.

[216] The content of subsection 128(1) is not concerned with management system elements. The Code is not silent on the latter. They are addressed elsewhere. The employer has a duty to consult with the workplace health and safety committee regarding OHS programs. The Committee has the right to participate in decisions regarding programs.

[217] The Code requires the creation of a national OHS policy committee for large employers. The CSC has such a committee. Between the national policy committee and the workplace committee, the planning, development, implementation and monitoring of OHS management system elements are addressed. The appellant has the right to participate, through his employee representatives, in virtually all matters concerning the indirect or root causes of injuries.

[218] The appellant exercised his right to participate. The appellant’s concerns were addressed by the IJOSH committee. The committee agreed with the appellant and sent its recommendation to the employer. The employer has to consider the recommendation but does not have to accept it.

[219] The Code provides that issues can be taken from the workplace committee to the national policy committee. There was no evidence that this was done or even contemplated.

[220] At that point the Code falls silent. There is no express pathway to take things further. The work refusal process, however, may result expressly in the possibility of an HSO being called in to resolve matters the employee and employer cannot agree on. As well, the dispute resolution process set out in the Code may result expressly in the possibility of an HSO being called in. There is no express provision in the Code for such calling in of an HSO to decide matters should the employer disagree with a committee recommendation.

[221] It would seem that it was not the legislature’s intent to have the employer’s decision regarding a Committee recommendation to be subject to oversight by the HSO.

[222] All of this makes a great deal of practical sense. The investigations that follow immediately a work refusal are not well suited to an enquiry concerning elements of a management system such as policies and programs. There are a limited number of people involved in a work refusal. There are usually constraints of time and resources. The HSO has expertise in the regulations under the Code and in the nature of direct and immediate causes of injuries. The HSO is not well positioned to explore the more complex issues involving the management system. Employee-employer OHS committees are a much better forum in which to discuss OHS policies, programs and procedures. They have the people, the experience and knowledge, the time and the resources to deal with more complex issues.

[223] I do not accept the respondent’s argument that the Stone decision should be taken as establishing an iron clad rule that long-standing disputes and disputes over the employer’s policies can never be the subject of a work refusal. In my view, the Code is designed in a way that signals an intent that such disputes are best handled through workplace health and safety committees and that high risk, direct causes of harm are more suitable for action under the work refusal process. Nevertheless, it all depends on risk, as suggested by the Duguay decision. There may be other issues at play and the refusing employee may have mixed motives, but the OHS aspect of the work refusal must still be considered.

[224] The four part test in Pollard is conjunctive. If the first criterion is not satisfied then it is not necessary to determine whether the other three criteria have been satisfied.

[225] Since I have concluded that there was no danger to the appellant on November 6, 2012, there is no need to determine whether the alleged danger was a normal condition of employment.

Decision

[226] For these reasons, I confirm the no danger decision of HSO Tomlin of November 8, 2012.

Peter Strahlendorf
Appeals Officer

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