2016 OHSTC 19
Date: 2016-11-18
Case No.: 2015-14
Between: Correctional Service of Canada, Appellant and Pat Ketcheson, Respondent and Union of Canadian Correctional Officers-Syndicat des Agents Correctionnels du Canada Confédération des Syndicats Nationaux (UCCO-SACC-CSN), Intervenor
Indexed as: Correctional Service of Canada v. Ketcheson
Matter: Appeal under subsection 146(1) of the Canada Labour Code of a direction issued by an Official delegated by the Minister of Labour.
Decision: The direction is rescinded.
Decision rendered by: Mr. Peter Strahlendorf, Appeals Officer
Language of decision: English
For the appellant: Mr. Richard E. Fader, Senior Counsel, Labour and Employment Law Group, Department of Justice
For the respondent: Himself
For the intervenor: Ms. Arianne Bouchard, Counsel, UCCO-SACC-CSN
Citation: 2016 OHSTC 19
Reasons
[1] This case is an appeal brought under subsection 146(1) of the Canada Labour Code (the Code) of a direction issued by Mr. Lewis Jenkins, an Official Delegated by the Minister of Labour (hereinafter the “Ministerial Delegate”), on June 5, 2015.
Background
[2] The respondent is a Correctional Manager (CM) at Millhaven Institution (MI), a Maximum Security Institution operated by the employer, Correctional Service of Canada (CSC), near Bath, Ontario. He has worked for the appellant in a Maximum Security Institution for 17 years; approximately seven of which have been as a CM.
[3] On May 7, 2015, the respondent emailed the Institution’s Warden, Mr. Snedden, requesting that OC spray (oleoresin capsicum, a debilitating spray used to subdue inmates) and handcuffs be issued to CMs, including himself. The respondent asked that a decision be made by May 31, 2015. He did not receive a response to his request.
[4] On June 1, 2015, the respondent exercised his right to refuse to do dangerous work under section 128 of the Code.
[5] The respondent stated that his refusal was due to “violations to Sections 122.2, 124, 125(1)(l) and 126(1)”. He said that he and other CMs at MI were in danger “due to activity that could reasonably be expected to be an imminent or serious threat”.
[6] The respondent’s supervisor, Jack Coimbra, Assistant Warden of Operations (AWO), investigated the work refusal. Upon being interviewed by AWO Coimbra, the respondent provided details of his work refusal:
1) His duties as a CM placed him in potentially dangerous situations (e.g., “on-scene controllers, minor court, N-area and major court”).
2) As a CM he has had to use force to gain compliance from an inmate.
3) Five years previously, CMs were asked to turn in their handcuffs.
4) CSC has recently required CMs to wear stab-resistant vests. If there is a danger such that vests are necessary for CMs, then CMs should have the rest of the personal protective equipment (PPE) that Correctional Officers (COs) receive. If he does not receive handcuffs and OC spray because there is no danger, then the CMs ought not to have to wear the vests.
5) CMs have been receiving training under the National Training Standards (NTS) which includes training on chemical agents and Personal Self Defence Training. If he is trained on the use of chemical agents then he should be issued OC spray. If he is trained on the use of handcuffs then he should be issued handcuffs.
[7] AWO Coimbra determined there was no danger, making the following points:
1) The requirement for CMs to wear stab resistant vests did not require the NTS training.
2) As a CM, the respondent does not require handcuffs or OC spray to fulfill his duties.
3) As a CM, the respondent is not required to respond to emergency situations as are COs and so does not need the PPE.
4) If a CM is at risk, other measures such as the presence of COs and personal protection alarms (PPAs) mitigate the risk.
5) If a CM is called upon to perform the duties of a CO as a responder then full PPE would be provided at that time.
6) While the job description states that “there is a risk of verbal and physical assault” there is nowhere an implication that a CM is a responder. A CM provides “leadership during emergencies”.
7) The job description of the two levels of COs, CX-1s and CX-2s, clearly state that COs respond to emergencies - “there is a requirement to intervene in threatening or violent situations….”
8) Standing Order 567-2 identifies responders but does not include CMs. In an emergency the CM is “providing leadership and managing the emergency”.
9) MI has many security mechanisms which contribute to a safe environment (e.g., policies, controlled inmate movement, range patrols, armed control posts, training, other PPE, etc.).
10) Any residual risk would be a normal condition of employment.
[8] An employer and employee member of the work place health and safety committee investigated the work refusal but consensus was not reached.
[9] On June 3, 2015, Ministerial Delegate Lewis Jenkins, attended at MI and commenced his investigation of the work refusal. On June 5, 2015, the Ministerial Delegate determined that there was a “danger” and issued a direction under paragraph 145(2)(a) of the Code. The relevant portions of the direction are:
[…]
The said Official Delegated by the Minister of Labour considers that the performance of an activity constitutes a danger to an employee while at work:
The employer has failed to provide Correctional Managers the same level of personal protection equipment (handcuffs and OC Spray) that Correctional Officers carry on their persons while performing work in the same work area that Correctional Managers perform their work, thereby placing the Correctional Managers in danger.
Therefore, you are HEREBY DIRECTED, pursuant to paragraph 145(2)(a) of the Canada Labour Code, Part II, to protect any person from the danger immediately.
[…]
[10] In a memorandum of June 10, 2015, Larry Ringler, the Acting Warden (AW) stated that, as an interim measure in response to Ministerial Delegate Jenkins’ direction, CMs were to carry handcuffs and OC spray on their person while performing work in the same areas as COs. It stated that during an emergency the CM’s role is to provide direction, guidance and leadership and not to function as a responder.
[11] On June 15, 2015, the appellant filed an appeal before the Occupational Health and Safety Tribunal Canada (the Tribunal) of the Ministerial Delegate’s direction.
[12] The appeal hearing was held before me in Ottawa, Ontario, from July 28 to 31, 2015.
[13] Amendments were made to Part II of the Code under the Economic Action Plan 2013 Act, No.2, which came into force on October 31, 2014. Along with other changes, the Code was amended to provide a new definition of “danger”. The new definition was in effect when the respondent engaged in his work refusal on June 1, 2015.
[14] The intervenor, UCCO-SACC-CSN, is the union representing COs at MI. The union does not represent CMs, such as the respondent. The respondent was not represented by counsel at the hearing. As this case is one of the first to consider the meaning and application of the new definition of “danger”, and since the intervenor’s members are governed by the same definition of “danger”, the intervenor was concerned that an interpretation of the new definition other than that of the employer be provided to the Tribunal. With the consent of the parties, the intervenor was given status at the hearing on the basis that it could cross-examine the witnesses of both parties and submit written arguments on the meaning and application of the new definition of “danger”.
Issues
[15] I have to determine the following issues:
1) Whether the Ministerial Delegate’s direction was well-founded; more specifically, whether the respondent was exposed to a danger as defined under the Code when he exercised his right to refuse to work.
2) If a danger existed, whether the danger was a normal condition of employment so as to preclude the respondent from exercising his right to refuse to work under the Code.
Submissions of the parties
A) Appellant’s submissions
[16] The appellant’s witnesses were:
1) Larry Ringler, AW at MI;
2) Jack Coimbra, the then AWO at MI;
3) Chris Hill, Director of Security Operations (DSO), CSC; and
4) Kevin Snedden, Warden at MI.
Regarding the definition of “danger”
[17] According to the appellant, the new definition of “danger” in the Code is significantly different than the previous definition, which was in effect from 2000 to 2014. The scope of what is a “danger” is now similar to what it was prior to 2000, when a “danger” was understood to be an “imminent danger”. The new definition has a greater sense of immediacy of the danger because there is no longer mention of a “potential hazard” as there was from 2000 to 2014. The new definition of “danger” is more restrictive than the previous definition.
[18] The appellant began its submission by illustrating how the definition of “danger” is used in the Code. The Code is said by the appellant to be “bifurcated” - the majority of the Code consisting of various mechanisms to prevent accidents and injuries, with the second part consisting of the employee’s right to unilaterally refuse to work under section 128 of the Code when faced with a danger.
[19] The appellant views the main part of the Code to consist of: 1) specific employer and employee obligations in sections 124 to 126; 2) provisions regarding health and safety committees in sections 134.1 to 138; 3) an internal complaint resolution process in section 127.1; and 4) a significant body of regulations made under the Code. These provisions operate independently of the work refusal provisions.
[20] The second, but minor, part of the Code, concerning a section 128 work refusal, has “danger” as a central concept. An employee may refuse to work if the employee has reasonable cause to believe that the work constitutes a danger. In brief, the question of danger is then considered by the employer and then by the health and safety committee and then possibly by the Ministerial Delegate. The matter could be resolved at any step along this process of investigation. If the Ministerial Delegate concludes there is a “danger” this provides the basis for the Ministerial Delegate’s authority to issue a “danger direction” under subsection 145(2) of the Code.
[21] The appellant provided an in-depth analysis of the history of the definition of “danger” in the Code to support its position that the new definition of “danger” is meant to return the scope of “danger” to that which existed prior to the amendment of the Code in 2000. The pre-2000 meaning of “danger” was more limited than the definition that existed between 2000 and 2014. The word “imminent” was removed from the work refusal provisions in 1985 but case law continued to view the word “danger” to mean imminent danger. The appellant believes that even though the new definition of “danger” does not contain the term “imminent danger”, its meaning is similar to the pre-2000 definition.
[22] To summarize the appellant’s account of how the definition of “danger” has evolved over the years:
1) The right to refuse to work in the 1978 amendments to the Code was based on the employee’s belief that there was an “imminent danger”, neither word being defined.
2) In 1980, in the Alan Miller v. Canadian National Railways, [1980] 39 d.i. 93 (C.L.R.B.) (QL) (“Miller”) decision, the Canada Labour Relations Board ( as it then was) interpreted “imminent danger” to mean “likely to happen at any moment without warning” and “the injury might occur before the hazard could be removed”. The employee’s belief must be “reasonable”. A concern that does not meet the standard of imminent danger should be addressed by other provisions of the Code.
3) The case law following Miller emphasized the restricted meaning of “imminent danger” and the availability of other resources under the Code for less immediate threats.
4) In 1985 the Code was amended. The word “imminent” was removed and a definition of “danger” added: “‘danger’ means any hazard or condition that could reasonably be expected to cause injury to a person exposed thereto before the hazard or condition can be corrected”.
5) In 1988, in the David Pratt v. Gray Coach Lines Limited, [1988] 73 d.i. 218 (C.L.R.B.) (“David Pratt”) decision at pages 8, 9 and 11, the Canada Labour Relations Board (as it then was) held that the 1985 amendment had changed little - the 1985 definition of “danger” had virtually the same meaning as “imminent danger”. The appeal board also reaffirmed the principle that the right to refuse to work is not the primary vehicle for attaining the objectives of the Code.
6) The case law following David Pratt was generally consistent in holding that “danger” was synonymous or very similar to “imminent danger”.
7) In 2000, the Code was amended to provide a new definition of “danger”. This definition was in effect until October 31, 2014:
“[D]anger” 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;
8) The 2000 definition of “danger” added the concept of “potential hazard” (the hazard does not have to be immediately present) and the idea that the harm does not have to occur immediately after the exposure.
9) In 2001, in the decision Welbourne v. Canadian Pacific Railway Co., [2001] C.L.R.C.R.S.O.D.) No.8, at page 6 (QL) (“Welbourne”), the Appeals Officer (AO) held that the 2000 definition of danger was less restrictive than the “imminent danger” standard - the danger does not have to be immediate and present; “the danger can also be prospective to the extent that the hazard, condition or activity is capable of coming into being or action and is reasonably expected to cause injury or illness”.
10) In the Welbourne decision it was noted that hypothetical and speculative situations are to be excluded from the concept of “danger”. A number of factors were set out that would mitigate the danger such as training, procedures, PPE, past history and the actual risk at issue. The AO also noted that the health and safety committee could address problems that were not dangers.
11) The case law following Welbourne continued to support the notion that hypothetical situations do not meet the definition of “danger” and that the question is whether a situation could reasonably be expected to cause injury. A breach of the Code or its regulations does not necessarily constitute a “danger”. The definition of danger is established around the probability of the hazard occurring and not the seriousness of the consequences if the hazard occurs.
12) In Canada Post Corporation v. Pollard, 2008 FCA 305 (“Pollard”) at paragraphs 16 & 17, the Federal Court of Appeal summarized the meaning of the 2000-2014 definition of “danger”:
[…] one must ascertain in what circumstances the potential hazard could reasonably be expected to cause injury and to determine that such circumstances will occur in the future as a reasonable possibility (as opposed to a mere possibility); that for a finding of danger, the determination to be made is whether it is more likely than not that what the complainant is asserting will take place in the future; that the hazard must be reasonably expected to cause injury before the hazard can be corrected; and that it is not necessary to establish the precise time when the hazard will occur, or that it occurs every time.
13) In Canada (Correctional Service) v. Glenn Brown and Kevin Kunkel, 2013 OHSTC 20 (“Glenn Brown”), AO Aubre noted that the threshold for danger “… is certainly lower than certainty that such aggression will happen”. AO Aubre upheld the Health and Safety Officer’s finding of “danger” on the basis that there was a “reasonable possibility” that violence from inmates would occur. In the appellant’s view this represents a very low threshold for the existence of a danger under the 2000-2014 definition. Contrasting the Welbourne decision with that in Glenn Brown, the 2000-2014 definition of “danger” does little to distinguish between “mere possibility” and a “reasonable possibility”.
14) Under both the 1985 and 2000 definitions of “danger” it was recognized that the work refusal provisions are not a mechanism for bringing labour relations issues to a head. Canada (Attorney General) v. Fletcher, 2002 FCA 424 at para. 19 (“Fletcher”); Stone v. Canada (CSC), [2002] C.L.C.A.O.D. No. 19, at para. 51 (“Stone”); and Joel Gartner v. Canada Border Services Agency, 2015 OHSTC 10 at para. 61 (“Gartner”).
[23] In summary, the appellant’s position is that the new 2014 definition of “danger” is intended to return the scope of “danger” to its pre-2000 meaning of “imminent danger”, in particular by the removal of the terms “potential” and “future activity”. The appellant says that the 2000-2014 definition was overbroad and imprecise, and that it resulted in over-reliance on the work refusal provisions in the Code. A more restrictive meaning of “danger” will restore balance to the Code by encouraging the use of the other mechanisms in the Code that can address problems.
[24] In Glenn Brown, at paragraph 73, it was established that the addition of the word “potential” to the 2000-2014 definition of “danger” had a profound effect (appellant’s emphasis) on the right to refuse to work because actual danger no longer needed to exist at the time of the work refusal. The appellant says that if inclusion of the word “potential” in 2000 had a profound effect, then its removal from the new 2014 definition of “danger” should have an equally profound effect. Hence, actual danger is now required to exist at the time of the work refusal.
[25] The appellant compares the 1985 and new 2014 definitions of “danger”:
1985 - “…could reasonably be expected to cause injury or illness…”
2014 - “…could reasonably be expected to be an imminent or serious threat to…”
The appellant does not view the difference between “injury or illness” and “imminent or serious threat” to be significant - they are both consequences. What is significant is the common wording “could reasonably be expected to…”.
[26] If the intent of the 2014 change in the definition of “danger” was to return the scope of “danger” to the 1985 meaning, then the appellant believes the 1988 decision in David Pratt becomes significant; the test being whether:
…the risk of injury or illness is so acute that the use of the machine, thing or place must cease until the situation is rectified. [appellant’s emphasis]
[27] In a correctional environment, the appellant argues that the test in David Pratt means that until the moment the inmate acts in a manner which endangers a CO, there is no danger, citing Stephenson v. Treasury Board (Solicitor General), [1991] P.S.S.R.B. File No. 165-02-83, at page 30.
[28] In the appellant’s view, this restricted meaning of “danger” does not diminish the protection of employees. Instead, it enhances their protection by shifting the focus back to other more appropriate mechanisms in the Code to deal with occupational health and safety (OHS) concerns.
[29] The appellant summarized with approval the Federal Court of Appeal’s view, in Fletcher, of the role of the work refusal provisions by quoting the following:
[17] This argument, with respect, is based on a misconceived perception of the refusal to work mechanism set out in the Code.
[18] The mechanism is an ad hoc opportunity given employees at a specific time and place to ensure that their immediate work will not expose them to a dangerous situation. It is the short-term well-being of an employee which is at stake, not a hypothetical or speculative one.
[19] The mechanism is an emergency measure. It is a tool placed in the hands of the employee when faced with a condition that could reasonably be expected to cause injury or illness to him before the hazard or condition can be corrected. See Scott C. Montani (1994), 95 di 157, at page 7:
The Board has stated that Parliament did not intend to deal with danger in the broadest sense of the word. See David Pratt (1988), 73 di 218; and 1 CLRBR (2d) 310 (CLRB no. 686). Danger within the meaning of the Code must be perceived to be immediate and real. The risk to employees must be serious to the point where the machine or thing or the condition created may not be used until the situation is corrected. Also, the danger must be one that Parliament intended to cover in Part II of the Code.
The right to refuse is an emergency measure. It is to be used to deal with situations where employees perceive that they are faced with immediate danger and where injury is likely to occur right there and then. It cannot be a danger that is inherent in the work or that constitutes a normal condition of work. Nor is the possibility or injury or potential for danger sufficient to invoke the work refusal provisions; there must in fact be danger. See Stephen Brailsford (1992), 87 di 98 (CLRB no. 921); and David Pratt, supra. Nor is the provision meant to be used to bring labour relations issues and disputes to a head. Where such refusals coincide with other labour relations disputes, the Board will pay particular attention to the circumstances of the refusal. See Stephen Brailsford, supra; Ernest L. LaBarge (1981), 47 di 18; and 82 CLLC 16,151 (CLRB no. 357); and William Gallivan (1981), 45 di 180; and [1982] 1 Can LRBR 241 (CLRB no. 332).
[30] In summary, the appellant is of the view that the new definition of “danger” has restored balance to the Code. The caselaw under the 1985 definition is applicable.
Application to the facts
[31] The appellant says that Ministerial Delegate Jenkins made his decision using the 2000-2014 definition of danger, as evidenced by his citing of a pre-2014 decision. In his investigation report, the Ministerial Delegate quoted from AO Aubre’s decision in Glenn Brown regarding the requirement that CMs wear stab-resistant vests: “there was a reasonable possibility that the respondents could be assaulted and injured prior to being properly protected”. AO Aubre’s decision was made under the former definition of “danger”. The appellant submits that the Ministerial Delegate relied incorrectly on the concept of “potential” threat. The appellant submits that the terms “imminent threat” and “serious threat” are of the same nature (ejusdem generis) and it is incorrect to suggest that “serious threat” means “potential substantial threat”.
[32] As well, Ministerial Delegate Jenkins relied on his finding that CMs and COs work in the same area to conclude that there was a danger to CMs. The Ministerial Delegate misunderstood the role of the CM.
[33] At the time of the work refusal, and of the Ministerial Delegate’s investigation, the evidence showed that there was nothing out of the ordinary, there were no specific threats to the respondent, and the mood of the institution was calm. The respondent refused to work as a means to bring a long-standing issue to a head.
[34] At the hearing, the respondent’s examples of situations that demonstrate the need for CMs to carry handcuffs and OC spray actually showed that handcuffs and OC spray were immediately available as they were carried by the attending COs.
[35] The appellant submits that the existence of the measures set out by AWO Coimbra in his investigation of the work refusal would mitigate the risk even if a speculative scenario did arise.
[36] The appellant pointed to the incident where a CM was assaulted by an inmate through spitting; there was no way in which the possession of handcuffs or OC spray would have prevented the assault. In another incident, where an inmate kicked a table into a CM, the possession of handcuffs and OC spray would not have prevented the assault.
[37] The appellant believes that the Ministerial Delegate’s direction contributes to role confusion between CMs and COs. The evidence from their job descriptions makes it clear that the COs respond to emergencies whereas CMs are to avoid intervening physically so they can manage the situation. There was also evidence about the training of CMs, which indicates the distinction in roles between CMs and COs. Chris Hill, DSO, testified that giving handcuffs and OC spray to CMs would be giving them a mixed message; that they are to intervene physically and yet direct the response by COs. Where CMs intervene there is a downgrading of the implementation of the “management response model”. The evidence of Jack Coimbra, the then AWO, was similar to that of Chris Hill.
[38] Larry Ringler, AW, testified that confusion about the role of CMs in an emergency would extend to other staff who would expect a physical response from CMs. In an emergency, CMs give direction to staff other than the COs in the immediate vicinity. An incident may be a ruse to divert attention from events unfolding elsewhere in the institution; a CM must be able to have the big picture of what is going on, which would be difficult if the CM was directly involved with an inmate. Providing handcuffs and OC spray would be confusing and would make the environment less safe.
[39] The respondent’s witness, CM Bird, gave evidence about one particular incident involving work place violence. The appellant says that CM Bird’s testimony actually demonstrated the existence of role confusion between CMs and COs. His evidence also showed that in that particular incident there were many COs present with handcuffs and OC spray, which indicated that there was no need for the CM to be similarly equipped.
[40] AW Ringler also testified that the issue of handcuffs and OC spray was never raised before the institution’s health and safety committee, nor was it the subject of a section 127.1 complaint (dispute resolution process).
[41] In his investigation report, the Ministerial Delegate referred to the Employment and Social Development Canada (ESDC) Labour Program’s Interpretations, Policies and Guidelines (IPGs) 905-1-IPG-062 and its definitions of “imminent threat” and “serious threat”. The Ministerial Delegate also referred to the document 905-1-IPG-070 for the definition of “normal condition of employment”. In 905-1-IPG-062, “serious threat” is defined so as to include “potential substantial threat”. The appellant says that such interpretive guidelines are not binding on this Tribunal and have no force or effect.
[42] The appellant points to the testimony of the respondent, CM Ketcheson, that at the time of his work refusal “there was no imminent or serious risk to me on the day”. In the appellant’s opinion, this statement by the respondent is dispositive of the issue.
[43] The appellant concludes by saying that the evidence establishes that there was no danger to the respondent as a result of not carrying handcuffs and OC spray on his person at the time of his work refusal, or at the time of Ministerial Delegate Jenkins’ investigation.
Normal condition of employment
[44] Even if there was a danger to the respondent, the appellant points to evidence that there was a wide range of measures in place to mitigate the risk. Assaults on CMs are rare. Exposure to inmates is part of the CM’s job. Exposure to inmates while not carrying handcuffs and OC spray is a “normal condition of employment” within the meaning of paragraph 128(2)(b) of the Code, and hence there is no basis for Ministerial Delegate Jenkins’ direction.
[45] The appellant notes that there are hypothetical scenarios where the danger to CMs would not be a normal condition of employment - such as a CM going into a yard full of rioting inmates without the Emergency Response Team and protective equipment - but such hypothetical scenarios are quite distinct from the day-to-day exposure of CMs to inmates generally.
[46] In conclusion, if there was a danger, it is a normal condition of employment and so the Ministerial Delegate’s direction should be rescinded.
B) Respondent’s submissions
[47] The respondent’s witnesses were:
1) The respondent, Pat Ketcheson, a CM at MI; and
2) Chris Bird, a CM at MI.
[48] The respondent’s written submissions were relatively brief. As noted, the respondent was not represented by counsel. His submissions were primarily factual in nature.
[49] The respondent submits that his employer’s requirement that CMs wear a stab-resistant vest was proof that he faced an “imminent threat”, which was why, in his email to Warden Snedden and others on April 28, 2015, he requested that handcuffs and OC spray be issued to CMs. He re-sent his concerns on May 7, 2015. He requested a response by May 31, 2015 or he “would be forced to take these concerns further”. When his deadline passed without response he “felt forced to invoke [his] right under section 128” on June 1, 2015.
[50] The respondent’s position is that Ministerial Delegate Jenkins made the right decision on June 5, 2015, that he faced a danger and should be issued handcuffs and OC spray.
[51] The respondent submits that he has been required to wear a stab-proof vest because of the decision in Glenn Brown. He believes that the Glenn Brown decision has already established that a danger of inmate violence exists for CMs.
[52] In addition, the respondent stated that:
1) He is “in the same places at the same times in the same dangers as Correctional Officers…”
2) It is only COs and CMs that are directed to respond to emergency situations before the area is confirmed safe and secure.
3) He has been assaulted by offenders and has been involved in several incidents involving use of force.
4) MI houses violent offenders, gang members and inmates with severe mental health issues.
5) Regardless of CSC’s written policy that CMs are not front line responders, at any time, due to unpredictable human nature, he “may be placed in an unwanted position as a front line responder”.
[53] The respondent does not agree that there is any confusion of roles. In his view, the videos shown at the hearing demonstrated that CMs were able to continue to give direction while involved in crisis situations.
[54] The respondent did not dispute the appellant’s position that there was nothing out of the ordinary at the time of the work refusal. The respondent believes that it would be irresponsible for him to wait and refuse to work once a situation arises.
[55] The work place health and safety committee at MI does not have a representative for CMs. The respondent does not believe it is proper to take concerns of CMs to a committee dominated by COs. To do so would “defy rank and structure”.
[56] The respondent believes that if there is any confusion about the role of CMs in emergencies it is because CSC’s policy requires CMs to respond to the area of an incident and give direction and guidance - placing CMs “in the area of hazard”. This places CMs in “positions of danger”.
[57] The respondent points out that the testimony of Chris Hill, DSO, was that some CMs in several CSC institutions across Canada are in possession of handcuffs. This means that the employer has already deemed it necessary to provide handcuffs to CMs elsewhere as personal protective items.
[58] The respondent also notes that the testimony of Larry Ringler was that seven of the 15 CMs at MI are in an acting capacity and that these individuals still carry the handcuffs that were issued to them as COs.
[59] CMs are involved in what are called “disciplinary court proceedings” with inmates. The CM is in the presence of an offender with only one escorting CO. If a physical altercation with the offender occurs, the respondent argues that the expectations of the appellant are contradictory - the appellant expects the CM to respond as a peace officer but at the same time it believes that when CMs intervene “they lose managerial capacity”.
[60] Following the June 5, 2015, direction of Ministerial Delegate Jenkins, CMs were issued with handcuffs and OC spray as an interim measure. In the respondent’s opinion, this has not resulted in any confusion of roles between CMs and COs.
[61] The respondent disputes the appellant’s argument that there are many employees at MI who are not provided with handcuffs and OC spray - parole officers, teachers, native liaisons, and others - and so CMs are similarly situated. The respondent says CMs are not comparable to these other groups of employees because CMs are required to respond to crisis situations and the others are not.
[62] The respondent makes no distinction between hazards of varying risk. If the CM is at risk, the respondent says that the CM is in danger. The respondent believes that CMs are in a general, on-going state of danger.
[63] The respondent concludes by saying that the appellant has not provided any relevant evidence that would warrant any change to the Ministerial Delegate’s finding of “danger” and so the direction should be confirmed.
C) Intervenor’s submissions
[64] The intervenor supports the respondent’s position that he was in danger and that Ministerial Delegate Jenkins’ direction should be confirmed.
[65] The intervenor’s primary concern is to provide assistance as to the meaning of “danger” as amended in October of 2014, and as to the effect of the new definition on the applicability of the caselaw to date. In summary, the intervenor strongly disagrees with the appellant’s position on the meaning of “danger” and is of the view that the scope of “danger” remains approximately the same as it was prior to amendment. Hence, the caselaw from 2000-2014 remains applicable.
[66] The intervenor cited authority to the effect that an employee’s apprehension of danger could be subjective when considering the meaning of “imminent danger” in the period 1978-2000, citing Miller at p. 11 and Bell Canada v. Labour Canada (1984), 56 di 150 (C.L.R.B.), p. 10.
[67] During the period 1985-2000, when the word “imminent” was removed from the concept of “imminent danger” but danger was still interpreted as retaining the essence of immediacy, it was recognized that a violent event could occur at some undetermined time in the future but that the daily risk of violence meant that a danger was present. Canada (Revenue, Customs and Excise) and Edwards [1991] C.L.C.R.S.O.D. No. 23, para. 10 and 11.
[68] During the 2000-2014 period, the expression “could reasonably be expected” came to be understood to mean that an injury did not have to result every time the hazard was present but only that the hazard “must be capable of causing injury at any time but not necessarily every time”, citing Verville v. Canada (Service correctionnel), 2004 FC 767 (“Verville”) at para. 35. In a correctional institution, this meant that an employee did not have to show that the employee would be hurt every time there was an assault by an inmate but that any assault could result in an injury. The risk of injury does not have to be acute.
[69] Also during the period 2000-2014, it became established that a danger could be based on the unpredictability of human behaviour, citing the Federal Court’s and the Federal Court of Appeal’s decisions in Verville and in Martin v. Canada (Attorney General), 2005 FCA 156 at para. 35.
[70] Regarding the 2014 amendment of the definition of “danger”, the intervenor’s position is that Parliamentary debates and government publications indicate the purpose of the amendment was to reduce the complexity of the definition and not to return the scope of danger to its original, restricted meaning which did not include potential hazard.
[71] The intervenor cited the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 RCS 27 (“Rizzo Shoes Ltd.”) to the effect that it is permissible and appropriate to consider Parliamentary debates when determining legislative intent. Statements made by the minister sponsoring a bill in the legislature are particularly persuasive as to intent.
[72] On second reading of the bill amending the Code, the then Minister of Labour, the Honourable Kelly Leitch, stated:
I want to make it very clear that the right of employees to refuse dangerous work is paramount and remains. The definition still provides protection from all hazards: imminent, serious and long-term. Employees would continue to have the right to refuse all dangerous work. Employers would still be responsible for ensuring that their workplaces were safe and would be required to take action if they were not. (House of Commons, 41st Parl., 2nd Sess. (2013, Oct. 29) “Economic Action Plan 2013 Act No. 2”. Canada. Parliament. House of Commons. Edited Hansard 147(10) at p. 551. Retrieved from http;//publications .gc.ca/ collections/ collection 2013/parl/X3-412-10-eng.pdf.)
[73] The intervenor says that the government’s stated intent was to clarify the definition of “danger” because “more than 80% of refusals to work in the last 10 years have been determined to be situations of no danger, and that is even after appeal”.
[74] The intervenor says that there was no indication by the government that the Code gave a right to refuse in too many situations or that this Tribunal and the courts had interpreted the 2000-2014 definition of “danger” too broadly.
[75] It is the intervenor’s view that the government’s intent for the 2014 amendment was to reduce the number of work refusals that were unsubstantiated, not the number of cases in which the presence of danger was confirmed - the latter cases including some cases where the hazard was a potential hazard.
[76] The intervenor cited a consultation paper that described the purpose of the 2014 amendment:
Over 80% of refusals to work in the last 10 years - from 2003 to 2103 - have been determined to be situations of no danger, even after appeals. By clarifying the definition of “danger” employees and employers will be better able to deal with health and safety issues through the Internal Responsibility System. (2014 Department of Finance, Bill C-4 - Economic Action Plan 2013 Act, No. 2, Ottawa, Government of Canada, 2013, part 3, Division 5.)
[77] When comparing the wording of the 2000-2014 definition and the new 2014 definition of “danger”, the intervenor noted that the term “potential” qualified the words “condition” and “hazard”. Yet dictionary meanings of “hazard” (or the French “risque”) include the concept of “potential”. The Oxford dictionary defines “hazard” to be “a potential source of danger”. The concept of potentiality is inherent in the concept of hazard. Therefore removing the word “potential” in 2014 simply reduced the complexity of the definition of “danger”. Implicitly, removing the word “potential” did not reduce the scope of “danger”.
[78] The 2014 amendment of “danger” also removed the words “current or future”, which qualified the word “activity” in the 2000-2014 definition. In 2000, the right to refuse to work was expanded to include a refusal based on a belief that an activity (not just a thing or condition) could constitute a danger. The circumstances under which an employee may refuse to work do not require that the employee must be performing the activity at the time of the work refusal. The implication is that the removal of the word “future” in the definition of “danger” is a simplification and not a restriction since an employee can still refuse to work in respect of an activity not yet occurring.
[79] The intervenor also notes that the words “current” and “existing” were removed from “danger” in 2014. If Parliament had intended to restrict the definition of “danger” to existing hazards or current activity then it would have only removed the words “potential” and “future”. By removing all qualifiers, Parliament’s intention was to simplify the definition of “danger”, not to restrict its scope.
[80] Another change in the definition of “danger” in 2014 was the removal of the expression:
…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 danger to the reproductive system;
[81] The intervenor submits that the above expression was added to the 2000 definition of “danger” because tribunals had been interpreting “danger” to mean that the injury or illness must occur immediately upon exposure to the activity in order to constitute a danger.
[82] The intervenor notes, however, that this Tribunal and the Federal Court, in Welbourne and Martin v. Canada (Attorney General), 2003 FC 1158, held that, under the 2000-2014 definition, hazards that have long term consequences could be considered to be dangers. The implication is that removal of the above expression is a simplification and not a restriction. Hazards with long-term effects can still be “dangers”. In support of this view, the intervenor cites Minister Leitch’s statement that “the definition still provides protection from all hazards: imminent, serious and long-term”. (Supra)
[83] The intervenor disagrees with the appellant’s position that the 1985 and 2014 definitions of “danger” are so similar that the intent of the legislature must be to return the scope of “danger” to its more restrictive meaning of 1985. The 2014 definition of “danger” contains the word “threat” as an “imminent threat” or “serious threat”. The word “threat” refers to the possibility of harm. Under the 2014 definition there must be a reasonable expectation that something could possibly happen, while the 1985 definition requires a reasonable expectation that something will happen. The implication is that the 2014 definition of “danger” is broader than the 1985 definition and not the same, as the appellant suggests.
[84] Focussing on the new definition of “danger” in the context of the role of the right to refuse to work, the intervenor refers to the purpose of the Code found in section 122.1, which is central to any interpretation of the Code.
[85] The intervenor disagrees with the appellant’s view that the Code is bifurcated, the two parts being the right to refuse and everything else. The intervenor’s position is that the Code, and the majority of OHS legislation in Canada, are based on three fundamental rights of employees:
1) The right to know about work place hazards;
2) The right to participate in identifying and correcting OHS concerns; and
3) The right to refuse dangerous work.
[86] The intervenor states that the prevention of occupational injuries requires that these three rights receive full recognition and implementation. Some limitations in the Code on the right to refuse to work do not detract from its status as an important right.
[87] The intervenor agrees that the right to refuse to work should not be used to address non-OHS labour relations concerns. But the existence of those concerns does not preclude an employee from refusing to work, quoting the Canada Industrial Relations Board (CIRB) in Simon v. Canada Post Corp. (1993), 91 di 1, (CLRB Decision no. 998), at p. 10:
…the existence of tensions or disagreements between employer and employees on specific issues does not preclude an employee’s refusing to work and enjoying the protection of the Code if that employee personally and sincerely believes that he/she has reasonable cause to believe that a danger exists.
[88] The intervenor agrees that the right to refuse to work is an “emergency measure”, but that does not mean the employee must “try it and see” before refusing to work. A work refusal can be “anticipatory”.
[89] The intervenor states that there are publications of the Labour Program of ESDC which contain IPGs which are intended to help ensure a consistent interpretation of legislation across the country. The intervenor’s position is that where there is doubt these IPGs are relevant and should be considered by this Tribunal. The intervenor referred to the Supreme Court of Canada decision in Harel v. Deputy Minister of Revenue (Quebec), [1978] 1 SCR 851 at p. 859:
…the administrative interpretation could [not] contradict a clear legislative text; but in a situation such as I have outlined, this interpretation has real weight and, in case of doubt the meaning of the legislation, becomes an important factor.
[90] The intervenor also notes that the CIRB and this Tribunal have considered government publications, including IPGs, in its analyses in the past.
[91] The intervenor referred to the IPG issued by the Labour Program in October 2014 on the new definition of “danger” (905-1-IPG-062) which stated that the definition was amended so as to “clarify and reduce the complexity of the definition”.
[92] The intervenor notes that this IPG describes “imminent threat” as a threat that is on the point of happening and “serious threat” as “a substantial threat to health or life and includes “potential substantial threat”. The implication is that as long as the threat expected is serious it does not have to be imminent as well. While the word “potential” was removed as a qualifier of “hazard”, the new term “threat” includes a potential threat.
[93] In summary, the changes to the definition of “danger” do not, as the appellant contends, reduce its scope. The amendment only clarified the definition. Therefore, the caselaw developed prior to the amendment is still applicable.
[94] The intervenor is of the view that even if the new definition is similar to the 1985 definition, the evolving caselaw since 1985 would mean that a more liberal interpretation would be given today.
[95] Therefore, the intervenor believes that the test of “danger” in Pollard is still relevant with a few adjustments:
1) The hazard alleged by the employee existed when the employee refused to work;
2) An employee was exposed to this hazard, condition or activity;
3) The exposure to this hazard, condition or activity is capable of causing death, injury or illness at any time, but not every time; and
4) The threat to life or health will likely occur before the hazard or condition can be corrected or the activity altered.
[96] In applying the Pollard test to the situation faced by the respondent on June 1, 2015, the hazard existed at the time of his refusal since the hazard was “the risk of being attacked by inmates without having the proper protective equipment”. Since the word “hazard” includes “potentiality” the respondent need only show a reasonable risk existed, not that he actually experienced a dangerous situation.
[97] The intervenor contends that the current case is similar to other CSC cases where the hazard arises from the unpredictability of human behaviour.
[98] The Pollard test requires that an employee will be exposed to the hazard, condition or activity. Even though CMs are not front-line staff like COs, the evidence showed that they are exposed to the hazard. Mr. Coimbra’s evidence was that CMs spend at least two to three hours a week in direct contact with inmates. CMs may be alone with inmates or may have only one CO present.
[99] The evidence of CM Bird was that CMs and COs are the only employees who “go to the problem” when there is a disturbance, whereas all other employees “exit from the problem”. Unlike other staff, CMs wear a uniform similar to that of COs.
[100] The evidence of the respondent and of CM Bird was that CMs are fully aware that their role is to direct and coordinate and not to intervene directly during a disturbance, but there are situations when CMs need to assist COs in order to regain control of a situation.
[101] Under the Pollard test, the exposure to the hazard must be capable of causing harm at any time but not every time. The intervenor notes that in Verville it was said that it is not necessary to have proof that an officer was injured in exactly the same circumstances. It is not disputed that inmates can be very violent and that they have access at times to various kinds of weapons. The evidence showed several incidents where there were assaults on CMs.
[102] The intervenor says that, following Pollard, the threat to life or health will occur before the hazard or condition can be corrected or the activity altered. The absence of handcuffs and OC spray on the person of a CM who is involved in an altercation with an inmate must be reasonably expected to cause injury before handcuffs and OC spray can be brought by a CO, or before any other means of control is provided. The evidence of the respondent was that 20 to 30 seconds may elapse before a CM receives help; the CM can be severely harmed during this time.
[103] The intervenor, in summary, states that the Pollard test is satisfied in the current case.
[104] The intervenor’s position is that the danger faced by the respondent was not a normal condition of employment. Correctional institutions are places where violent situations can occur on a frequent basis. A CM’s work description states that the job entails “risk of verbal and physical assault”. Nevertheless, a CM can still refuse to work if the danger is greater than normal. The caselaw shows that there were situations where it was found that the danger to COs from violence was not a normal condition of employment, citing Verville, Armstrong v. Canada (Correctional Service), 2010 OHSTC 6 (Armstrong), Glenn Brown and Johnstone v. Correctional Service Canada, OHSTC-05-020 (Johnstone).
[105] The intervenor concludes by stating that amendments to the definition of “danger” in 2014 were not intended to limit its scope and the evidence showed that the respondent faced a danger at the time of his work refusal. The appeal should therefore be dismissed and Ministerial Delegate Jenkins’ direction regarding danger should be confirmed.
D) Reply
[106] In its reply, the appellant reiterated its position that the primary theme that arises from an overview of the case law decided prior to the 2000-2014 definition of danger is that the right to refuse to work was meant to address hazards that constitute emergencies - the hazard was directly before the employee. A related theme emerging from the caselaw up to the current time is that work refusals are only one of many mechanisms in the Code for resolving problems and that work refusals should not be used to deal with longstanding work place disputes more suited to such other mechanisms. In the appellant’s view, the cases cited by the intervenor are “outlier cases”; they do not represent the majority of the cases.
[107] Regarding the intervenor’s use of Parliamentary debates to assist in understanding the meaning of the new definition of “danger”, the appellant’s position is threefold:
1) The statements in the Parliamentary debates do not support the intervenor’s position;
2) The text of the amendments to the Code is clear and unambiguous and therefore the statements in the Parliamentary debates are of little weight; and
3) Reliance on extrinsic aids to interpretation (the intervenor’s main approach) is less helpful than reliance on the legislative evolution of the definition of danger in the Code over the years.
[108] On the usefulness of the legislative evolution approach to interpretation, the appellant cited the Supreme Court of Canada in R. v. Ulybel Enterprises Ltd., [2001] SCC 56 at para. 33:
To understand the scope of [a provision], it is useful to consider its legislative evolution. Prior enactments may throw some light on the intention of Parliament in repealing amending, replacing or adding to a statute. […].
[109] On the weakness of relying on extrinsic aids such as legislative debates, the appellant cited Rizzo Shoes Ltd. where the SCC allowed their use but noted their limitations: “the frailties of Hansard evidence are many” and that “it can play a limited role in the interpretation of legislation”.
[110] The appellant notes that one of the intervenor’s references supports the appellant’s position that a purpose of the 2014 amendments was to reduce the reliance on work refusals and to place greater emphasis on the internal responsibility system (IRS).
[111] The appellant disagrees with the intervenor’s suggestion that the removal of the words “potential” and “future” from the 2000-2014 definition of danger was insignificant since those terms are already embraced in the term “hazard”. The appellant says that when the terms “potential” and “future” were incorporated into the 2000-2014 definition of “danger” their inclusion had a profound effect, citing Glenn Brown at paragraph 73. If the addition of “potential” to the definition of “danger” meant that actual danger no longer needed to exist when the work refusal took place, then the removal of the word “potential” in the 2014 amendment should mean that actual danger is required to exist at the time of the work refusal.
[112] Contrary to the intervenor’s reliance on section 122.1 of the Code (the purpose section) in its criticism of the appellant’s interpretation, the appellant’s position is that its interpretation of “danger” does serve the purpose of the Code by “restoring balance to the Code” - worker safety will be enhanced by shifting emphasis from work refusals to other methods in the Code for resolving issues.
Analysis
[113] The respondent engaged in a work refusal pursuant to subsection 128(1) of the Code:
Refusal to work if danger
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
(a) the use or operation of the machine or thing constitutes a danger to the employee or to another employee;
(b) a condition exists in the place that constitutes a danger to the employee; or
(c) the performance of the activity constitutes a danger to the employee or to another employee.
[Emphasis added]
As can be seen above, “danger” is a key concept in the exercise of the employee’s right to refuse to work.
[114] On June 5, 2015, Ministerial Delegate Jenkins determined that there was a “danger” and issued a direction under paragraph 145(2)(a) of the Code:
Dangerous situations - direction to employer
145. (2) If the Minister considers that the use or operation of a machine or thing, a condition in a place or the performance of an activity constitutes a danger to an employee while at work,
(a) the Minister shall notify the employer of the danger and issue directions in writing to the employer directing the employer, immediately or within the period that the Minister specifies, to take measures to
(i) correct the hazard or condition or alter the activity that constitutes the danger, or
(ii) protect any person from the danger; and
[Emphasis added]
As can be seen above, “danger” is a key concept in the exercise of the Minister’s power (through the Ministerial Delegate) to issue a direction to the employer under paragraph 145(2)(a).
[115] The respondent referred to the employer’s breach of several sections of the Code as a basis of his work refusal. The contravention of a provision of the Code or of the Canada Occupational Health and Safety Regulations (the Regulations) is not the basis of a work refusal unless the contravention is of sufficiently high risk so as to constitute a “danger”. There was no reference by the parties or the intervenor to these alleged contraventions. The response to a contravention is a “contravention direction” under subsection 145(1) of the Code not a “danger direction” under subsection 145(2).
[116] The appellant then appealed the direction pursuant to subsection 146(1):
Appeal of direction
146. (1) An employer, employee or trade union that feels aggrieved by a direction issued by the Minister under this Part may appeal the direction in writing to an appeals officer within 30 days after the date of the direction being issued or confirmed in writing.
[117] Subsection 146.1(1) of the Code sets out the authority of an AO when a direction concerning a “danger” is appealed. An AO may vary, rescind or confirm the direction:
Inquiry
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
(a) vary, rescind or confirm the decision or direction […]
[118] I must determine if a danger existed at the time of the work refusal. If there was no danger, then I must rescind the Ministerial Delegate’s direction. The work refusal occurred after the definition of “danger” in the Code was amended in 2014. I must therefore use the new definition of “danger” in making my determination. If the new definition of “danger” is significantly different than the old definition, as the appellant claims, then the prior case law will be of little assistance in my determination. I will have to set out what the new definition means. If the new definition of “danger” is a matter of housekeeping, merely simplifying and clarifying the concept, as the intervenor claims, then the prior case law is still applicable.
[119] The appellant’s argument is that an analysis of the evolution of the definition of “danger” over the years, and a close comparison between the wording of the new definition and the older definitions will show that the meaning of the new definition has changed significantly, and is now similar to the meaning of “danger” prior to 2000.
[120] The appellant puts little weight, if any, on the use of Parliamentary debates or publications of the Labour Program of ESDC. The intervenor argues that these extrinsic aids should be given weight in the interpretation of the new definition of “danger”. The intervenor is of the view that a comparison between the old and new definitions shows that the meaning of “danger” was not changed significantly in 2014.
[121] From 2000 to 2014, the concept of “danger” was defined in subsection 122(1) of the Code as:
“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;
[122] The current definition of “danger” is:
[…] any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered.
[123] Unlike many other statutes, the Code is intended by the legislature to be read and understood and used by all the work place parties, including the front-line employees. The Code requires in subsection 125(1) that a copy of the Code is to be made available in the work place for employees to use. In contrast, one does not see 100s of pages of the Food and Drug Act regulations posted in grocery stores for shoppers to read or 100s of pages of the Aeronautics Act regulations posted in airport waiting areas for travellers to peruse. The Code is meant to be used by employers and employees. It would be very difficult for the work place parties to use the Code when handling a work refusal if the text meant something other than what a reasonable person in the circumstances would make of it.
A) The interpretation of the concept of danger
Governing principles of statutory interpretation
[124] In Rizzo Shoes Ltd., the Supreme Court of Canada has established the approach to follow when interpreting legislation as follows:
[21] Although much has been written about the interpretation of legislation (see, e.g., Ruth Sullivan, Statutory Interpretation (1997); Ruth Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994) (hereinafter “Construction of Statutes”); Pierre-André Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)), Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
[125] As stated in the Interpretation Act (R.S.C., 1985, c. I-21), the text should be given a liberal interpretation in light of the purpose of the statute:
Enactments deemed remedial
12. Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.
[126] The Federal Court in Canadian Pacific Railway Company v. Woollard, 2006 FC 1332 stated the following regarding the necessity to adopt a liberal and large interpretation of the provisions of the Code that is consistent with its purpose:
[28] […] In addition, the Appeals Officer did not err in law in ascribing a liberal and broad meaning in keeping with the objectives of Parliament when it adopted this legislation. To do otherwise as was urged by the Applicant who advocated the adoption of a technical definition, would be to limit the intentions of Parliament to prevent accidents and injury to health in the workplace.
1) The text of the definition
[127] The first step is to consider the grammatical and ordinary sense of the words used in the definition of “danger”. This can be said to be the “natural meaning which appears when the provision is simply read through” as stated by Gonthier, J. in Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Association, [1993] 3 S.C.R. 724, at p. 735. On the face of it, an employee would understand that there are two types of dangers, those that could reasonably be expected to be an imminent threat to life or health, and those that could reasonably be expected to be a serious threat to life or health.
[128] The appellant says that “imminent threat” and “serious threat” are of the same nature, referring to the principle of ejusdem generis. The latter principle applies to the interpretation of open-ended lists; it does not apply to a disjunctive dichotomy. They have the same nature in the sense that they are both the result of hazards that are dangers, but they are different concepts. If they referred to the same concept then the legislature might have used the phrase “imminent and serious threat”. A serious threat need not be imminent. An imminent threat need not be serious (in terms of severity). If they meant the same thing, the legislature would have likely used one term such as “imminent danger”.
[129] The New Shorter Oxford English Dictionary (1993) defines “imminent” in the following way: “of an event esp. danger or disaster: impending, soon to happen”. Thus, in my view, to say that something is “imminent” is to say two things. That something can happen or exist soon and that something has a high probability of happening or existing. One would not ordinarily say that something is “imminent” if it could happen soon but the probability of it happening is a mere possibility. But there is no connotation of the severity of harm. An imminent threat can be something that results in either a severe harm or a minor (but not trivial) harm. An employee should not have to do work where there is an imminent threat of either dying or cutting a finger. In the work place, an employee would view something as “imminent” if it can reasonably be expected to happen or exist in a matter of minutes or hours.
[130] A “serious threat” is one that is not necessarily imminent. The New Shorter Oxford English Dictionary defines the term “serious” to mean: “important, grave, having (potentially) important esp. undesired consequences; giving cause for concern; of significant degree or amount worthy of consideration”. In the ordinary usage of words, an employee would understand that a “serious threat” refers to the severity of harm. There is no time frame as to when the harm might occur. Death, a major injury or an illness requiring medical attention could be reasonably expected to occur. An employee should not have to work with high levels of a potent human carcinogen even though, with a latency period, the exposure might be reasonably expected to result in cancer years down the road.
2) The Object and Scheme of the Code
[131] The text of a statute should make sense in light of the overall purpose of the legislation. The purpose of Part II of the Code is set out in section 122.1:
The purpose of this Part is to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment to which this Part applies.
Since the text in question is a definition and not a substantive provision, it is best to examine the definition in terms of how it is used in the Code. The work refusal provisions of the Code in which the word “danger” is a key term are to be used by the work place parties, often when time is short and people are under stress. An interpretation of “danger” that best suits the purpose of the Code is one that is useable by front-line employees.
[132] The meaning of text in a statute should not be considered in isolation from the statute as a whole. The scheme of the statute should be considered. Given the purpose of the statute, what was the legislature’s intent as to how the purpose is to be achieved?
[133] The content and structure of the Code makes it clear that the purpose of protecting employees from harm is to be achieved in certain ways, by certain mechanisms. The appellant and the intervenor differ in how the purpose of the Code is achieved.
[134] With all due respect, the appellant’s argument that the Code is bifurcated into the work refusal provisions and everything else is inaccurate. As far as bifurcation is concerned, it would be more accurate to say that the meaning of “hazard” is bifurcated into high risk hazards which are “dangers” and which are subject of work refusals, and lower risk hazards, which are not “dangers” and which are dealt with through mechanisms other than a work refusal.
[135] It is understandable that the right to refuse to work is perceived by some as one of a dichotomy of measures to fulfill the purpose of the Code. It is work refusals that engage the attention of officials, lawyers, AOs and the courts. It must be kept in mind that this is a misperception. OHS isn’t “done” through work refusals. It is done primarily through duties. If OHS was “done” through work refusals, work would grind to a halt.
[136] The intervenor’s argument that the Code is not bifurcated, as the appellant argues, but is primarily a triad of employee rights, is also inaccurate. It would be more accurate to say that the purpose of the Code is intended to be fulfilled primarily by the duties of employers and employees assisted by the triad of employee rights. This combination of duties and rights is commonly referred to in OHS practice as an expression of the “internal responsibility system” (IRS).
[137] The purpose of the Code is to be achieved by protecting employees in the work place through the IRS - a system of duties and rights wherein the employer and employees are meant to identify and evaluate hazards, eliminate or substitute for hazards if they can and then control the risks posed by hazards such that risk is driven down as low as it can reasonably go in the circumstances so that harm is brought to zero for as long as possible. The role of the regulator, primarily through the Ministerial Delegate, is to ensure that the IRS is functioning well, and if not, to independently enforce the standards in the Code and its regulations.
[138] Juxtaposed with the Code’s purpose is section 122.2 which establishes what is referred to in OHS practice as the “hierarchy of controls”:
Preventive measures
122.2 Preventive measures should consist first of the elimination of hazards, then the reduction of hazards and finally, the provision of personal protective equipment, clothing, devices or materials, all with the goal of ensuring the health and safety of employees.
[139] The role of the Ministerial Delegate is to inspect the work place, recognizing that hazards and contraventions discovered are symptoms of a less than adequate IRS. If there is a well-functioning IRS, the Ministerial Delegate should not find anything wrong.
[140] The design of the Code recognizes the potential imperfections of the main parts of the IRS by providing mechanisms to serve the purpose of the Code when such imperfections arise (or to prevent them in the first place). The right of employees to know of hazards and controls is one way to ensure that the work place practices are better equipped to fulfill their duties. The right of employees to participate in the process of risk reduction is largely effected through the activities of employee representatives, singularly or as members of work place health and safety committees. The right of employees to refuse to work is not the normal, routine manner in which risk is to be driven down; it is an emergency “back up” mechanism when the main elements of the IRS have not been effective. Except when some unpredictable high risk hazard presents itself, an employee should never be faced with a high risk hazard, a danger. But if so faced with a danger the employee is entitled to refuse to work and this triggers various activities under the Code’s work refusal provisions. Importantly, such “danger” situations are intended to be addressed first by the parties internal to the work place, and only when they cannot solve the problem does the external authority, the Ministerial Delegate, arrive at the work place to investigate and make a decision.
[141] It may be thought that the main way OHS issues are to be dealt with is through the work place health and safety committee. Instead, it is through the employer and employee duties that together constitute the primary manner in which the purpose of the Code is to be achieved. Aside from the many regulation-dependent duties in the Code, the two general duties of the employer and the employee stand out:
General duty of employer
124. Every employer shall ensure that the health and safety at work of every person employed by the employer is protected.
Health and safety matters
126. (1) While at work, every employee shall
(c) take all reasonable and necessary precautions to ensure the health and safety of the employee, the other employees and any person likely to be affected by the employee’s acts or omissions;
[142] Every employee has a personal duty to take care. Every employee also has a right to participate in OHS matters. A right can be exercised or not. The right to participate is largely effected through the employee’s health and safety representative or the employee member of the work place health and safety committee. The point is that on a day to day basis the purpose of the Code is to be fulfilled by the carrying out of duties by the work place parties - the employer and employees - considering the OHS implications of their decisions and actions. The overwhelming majority of defects, contraventions, hazards and so on should be dealt with by the work place parties routinely without recourse to the work place committee, the dispute resolution process or the work refusal procedures. The routine reduction of risk by everyone in the work place is the main element of the IRS. Where there are disagreements, disputes, unresolved issues, then most of these can be dealt with by the committee. The committee also functions proactively to assist with many OHS programs that are to be put in place.
[143] Taking an overview of the scheme of the Code makes it clear that the right to refuse to work is not the usual way in which hazards are to be addressed and risk is to be driven down. The right to refuse to work is a “back up” or “failsafe” mechanism.
[144] It is important to note that the right to refuse to work is not contingent on an employee having attempted to deal with OHS issues through means other than a work refusal. An employee can choose to refuse to work when he has reasonable cause to believe that there is a danger, regardless of what else has gone on before. It is a powerful and important right. Yet it is very clear from the design of the Code that it is intended to be used as an emergency measure and that the bulk of the effort to reduce risk and protect employees lies elsewhere.
[145] There is another way in which the scheme of the Code sheds some light on the scope of “danger” and that is the distinction between direct causes of accidents and injuries to health and their more indirect causes. The right to refuse to work covers “machines”, “things”, “conditions” and “activities”. These have a common feature - they are direct causes of accidents and injuries to health. Subsection 128(1) does not refer to systems, programs or policies. Hazards are usually direct causes of accidents and exposures. Hazards are not distant, root causes in the management system such as policies and programs. It is very effective to search for the root causes of hazards in missing or inadequate policies and programs. Fixing root causes can eliminate hazards or reduce their presence or effect. Other root causes are budgeting, resource allocation, staffing, etc. Root causes of accidents and exposures are important but, in general, they are best suited to being dealt with by other mechanisms under the Code. From an ordinary sense of the word “hazard”, an employee would picture direct causes of harm and not typically root causes, which are more abstract.
[146] Examining the scheme of the Code, it is apparent that the work place health and safety committee is intended as a forum in which to address root causes (but not just root causes) of accidents and exposures in the management system. An examination of the following duties of the work place health and safety committee makes it clear:
Duties of committee
135(7) A work place committee, in respect of the work place for which it is established,
(b) shall participate in the implementation and monitoring of the program referred to in paragraph 134.1(4)(c);
(c) where the program referred to in paragraph 134.1(4)(c) does not cover certain hazards unique to the work place, shall participate in the development, implementation and monitoring of a program for the prevention of those hazards that also provides for the education of employees in health and safety matters related to those hazards;
(d) where there is no policy committee, shall participate in the development, implementation and monitoring of a program for the prevention of hazards in the work place that also provides for the education of employees in health and safety matters related to those hazards;
(f) shall participate in the implementation and monitoring of a program for the provision of personal protective equipment, clothing, devices or materials and, where there is no policy committee, shall participate in the development of the program;
(i) shall participate in the implementation of changes that might affect occupational health and safety, including work processes and procedures and, where there is no policy committee, shall participate in the planning of the implementation of those changes;
(l) where there is no policy committee, shall participate in the development of health and safety policies and programs.
[Emphasis added]
[147] There is no sign anywhere else in the Code that individual employees are to deal with root causes such as policies and programs. The wording of the employee duties in subsection 126(1) is about direct causes. Indeed, it is clear that an employee is to cooperate with the committee, not substitute the employee’s judgement for that of the committee:
Health and safety matters
126. (1) While at work, every employee shall
(f) cooperate with the policy and work place committees or the health and safety representative;
[148] While there might not always be a bright line between direct causes and root causes, it can be said that the scope of “danger” is intended to cover direct causes and not root causes. It is recognized that one cannot be overly definitive here. Staffing decisions are usually in the realm of policies; they involve budgets and the allocation of resources. But there are narrow circumstances where staffing could be a hazard; not in the sense that the policy is the hazard but that the result of the policy can be a direct cause. If an employee is asked to do a task that is clearly a two-person task, that task can be an activity that is a hazard and that can constitute a danger if the risk is high enough.
[149] It would not be a “danger” if an employee was concerned with a policy in the abstract about the provision of protective devices such as spray and handcuffs. If the effect of the policy was that an employee was actually faced with a situation where the spray and handcuffs were necessary, then the lack of such PPE could be a “danger”.
[150] When it is said that the work refusal is a “back up” or “failsafe” mechanism it might be thought that the work refusal process is the proper way in which to “bring matters to a head” when the usual methods of dealing with OHS issues do not seem to be working well. Perhaps the committee is dysfunctional. Perhaps management is not taking the committee seriously. There is nothing improper about a work refusal if an employee is faced with a direct cause that is a result of such dysfunction or indifference. Prior to the 2014 amendments, a work refusal was a guaranteed method of ensuring the involvement of the Health and Safety Officer (HSO). If, for example, the committee was stalemated or the employer was ignoring a committee recommendation, why not get a second opinion by getting the HSO involved through engaging in a work refusal?
[151] An overview of the scheme of the Code indicates that it was not the intent of the legislature to have the Minister/Ministerial Delegate function as a mediator or as an adjudicator of appeals from committees. For better or worse, there is no express pathway in the provisions dealing with committees for a right to appeal to the Minister/Ministerial Delegate. Prior to the 2014 amendments, the HSO was required to attend where there was an unresolved work refusal, but there was (and is) no requirement for the HSO to attend otherwise with respect to the committee.
[152] There was, and is, however, a requirement for the HSO (now the Minister/Ministerial Delegate) to attend where there is an unresolved dispute under the complaint resolution process in section 127.1 of the Code: “127.1(9) The Minister shall investigate the complaint referred to in subsection (8)” [Emphasis added]. The complaint resolution process can be initiated for matters other than a danger:
Complaint to supervisor
127.1(1) An employee who believes on reasonable grounds that there has been a contravention of this Part or that there is likely to be an accident or injury to health arising out of, linked with or occurring in the course of employment shall, before exercising any other recourse available under this Part, except the rights conferred by sections 128, 129 and 132, make a complaint to the employee’s supervisor.
[Emphasis added]
[153] As noted, the employee does not have to have used the complaint resolution process before exercising the employee’s right to refuse to work, but it is clear that the threshold for initiating the process is lower than that for a work refusal - the word “danger” is not used in subsection 127.1(1). And, to the point, it is a way to require the Ministerial Delegate to attend.
[154] The powers of the Minister (and Ministerial Delegate) are very broad. Paragraph 141(1)(a) provides as follows :
141 (1) Subject to section 143.2, the Minister may, in carrying out the Minister’s duties and at any reasonable time, enter any work place controlled by an employer and, in respect of any work place, may
(a) conduct examinations, tests, inquiries, investigations and inspections or direct the employer to conduct them;
[155] There is nothing preventing an employee from contacting the Minister at any time with a concern. The Minister (or Ministerial Delegate) has discretion as to whether to attend at the work place or not to enquire about or investigate an employee’s concern. The employee is protected from repercussions if the employee seeks the enforcement of the Code:
General prohibition re employer
147. No employer shall dismiss, suspend, lay off or demote an employee, […] because the employee
(c) […] has sought the enforcement of any of the provisions of this Part.
[156] An overview of the Code indicates that there are ways in which an employee can attract the attention of the Minister (Ministerial Delegate) other than through a work refusal. One of the changes in 2014 is that the employee is no longer guaranteed to secure the attendance of the Minister (Ministerial Delegate) through a work refusal.
[157] In summary, the scope of the term “danger” can be ascertained to some degree merely by examining the overall content and structure of the Code. The new definition of “danger”, in the context of the Code, is not meant to capture low risk hazards, root causes or disputes about issues other than direct causes of accidents and injuries to health.
3) Intention of Parliament
[158] The next consideration is whether insight as to the meaning of “danger” can be gained from a comparison of the old and new work refusal processes. This is an exercise involving the legislative evolution of specific provisions in the same statute.
[159] The 2014 amendments to the Code changed both the definition of “danger” and the work refusal provisions. Given that “danger” is a key concept in the work refusal provisions, it is reasonable to suspect that the two changes are related; that insight into how and why the work refusal provisions changed in 2014 can shed some light on the meaning of “danger”. The principle of statutory interpretation applicable here is that portions of a statute should not be read in isolation from each other.
[160] Prior to the 2014 amendments to the Code, when an employee exercised his or her right to refuse to work, if the employer agreed that a danger existed, the employer was to take immediate action and inform the work place health and safety committee (for simplicity only “the committee” will be referred to here and not the health and safety representative).
[161] Under the 2014 amendments, the employer does not immediately contact the committee. The employer first investigates the matter in the presence of the refusing employee and then prepares a written investigation report. If, following the investigation, the employer agrees there is a danger, the employer takes immediate action. The employer then informs the committee.
[162] Under the old process there was no written employer investigation report required by section 128. If the matter was not resolved initially between the employer and the employee, then the employer was to report the matter to the committee. Then the employer would investigate the continuing work refusal in the presence of the employee as well as a worker representative from the committee.
[163] Under the new process, where there is a continuing work refusal, the committee is to investigate, designating an employee and a management member of the committee as joint investigators. The investigation is in the presence of the refusing employee. Following their investigation the committee investigators are to prepare a written investigation report, which is to be provided to the employer. The employer can provide further information to the committee investigators at this point and the investigators may submit a revised report to the employer.
[164] Under the old process there was no independent investigation by the committee members. There was only the presence of the worker member of the committee during the employer’s investigation. If the matter was not resolved the employer was to notify the HSO. The employer would inform the committee if it had taken any remedial steps. It is important to note that the HSO was required to investigate the work refusal. There was no discretion to do otherwise. The HSO’s investigation was done in the presence of the work place parties and the HSO was then required to make a decision whether a danger existed. If the HSO decided there was a danger the HSO was required to issue a “danger direction” under subsection 145(2).
[165] Under the new process, the Ministerial Delegate is not contacted immediately. The employer receives the committee investigators’ report, or revised report, and decides whether a danger exists or not. The employer may also decide that a danger does exist but that it is a normal condition of employment. The employer is to take action if it decides there is a danger, and it then informs the committee. If the employer decides that there is no danger, that the danger is a normal condition of employment or that the refusal puts the life, health of safety of another person directly in danger, the employer so informs the employee in writing. The employee can accept the decision or not. If not, the employee can continue the work refusal.
[166] An important difference between the old and the new work refusal processes is that the Minister has discretion as to how to proceed at this point. Where there is a continuing work refusal the employer provides its report and the committee investigators’ report to the Minister.
[167] Based on the two written investigation reports, the Minister may or may not investigate the work refusal through the Ministerial Delegate. The Minister may decide not to investigate because the Minister is of the opinion that the matter could be more appropriately dealt with under Part I or Part III of the Code or under another Act. The Minister might also decide not to investigate because of an opinion that the matter is trivial, frivolous or vexatious or because the continued refusal by the employee is in bad faith.
[168] If the Minister does not investigate, the employer is so informed. The employer then informs the committee investigators. The employee is no longer entitled to continue the work refusal.
[169] Otherwise, the Minister proceeds with the investigation in the presence of the work place parties. During this investigation the Minister must determine if there are previous or on-going work refusals involving substantially the same issues. If there was a previous investigation, the Minister may rely on the findings of the previous investigation to decide if a danger exists. Or, the Minister may combine an on-going investigation with the current one and issue a single decision. The Minister then makes a decision whether there is a danger or not, and if there is a danger, whether it is a normal condition of employment. The employer and refusing employee are informed. If there is a danger, then the Minister will issue a “danger direction” under subsection 145(2) and may issue a direction under subsection 145(2.1).
[170] Upon comparing the changes, it appears that the 2014 amendments are not trivial and they are not intended to simply clarify or simplify the work refusal process. The amendments are intended to strengthen the IRS during work refusals:
1) The committee does an investigation independent of the employer’s investigation;
2) There are two written investigation reports, the employer’s and the committee investigators’;
3) There is a “back and forth” interaction between the employer and the committee investigators - further information and revisions;
4) With more people involved in formal investigations, the need to put things in writing and the opportunity for dialogue, it is clear that the intent is to have more work refusals resolved by the work place parties than in the past; and
5) The intent is that there should be a reduction in the need for Ministerial Delegates to attend and investigate.
[171] The 2014 change in the definition of “danger” should be understood in the light of this encouragement of work place parties to put more effort into resolving work refusals by themselves with less involvement by the Ministerial Delegate.
[172] Do the changes fulfill the purpose of the Code? One might suspect that reducing access of employees to an investigation by the Ministerial Delegate in some cases would mean less protection of employees. That would be a superficial reaction. The purpose of the Code is best served if the government’s resources are deployed effectively and efficiently. A Ministerial Delegate investigating a repetitious, trivial, frivolous, vexatious or bad faith work refusal could instead be inspecting and investigating at some other work place which has serious health and safety issues. As well, as much as Ministerial Delegates are knowledgeable in health and safety and the detailed requirements of the regulations under the Code, it is the work place parties who have a wealth of information, local knowledge and experience about their work place. They have the time, the resources and the interest to go further than the direct causes of accidents and exposures and probe weaknesses in, and discover opportunities to improve, the root causes of accidents and exposures in the elements of the management system. The abilities of the work place parties are one of the strengths of the IRS.
[173] The changes to the Code regarding work refusals do not prevent work refusals that cannot be resolved by the work place parties from reaching the Minister and the Minister is still required to issue a “danger direction” where there is a danger. The Minister’s decision is based initially on written reports from the work place parties and, only if necessary, on an investigation by the Ministerial Delegate. The increased involvement of the work place parties is intended to improve the quality of the Minister’s investigation and decision.
[174] Does the change in the wording of “danger” assist with encouraging greater efforts by the work place parties to resolve work refusals in line with the purpose of the changes in the work refusal processes? The answer must be ‘yes’. In the first place, the old definition of “danger” was verbose, complex and unclear. If employees cannot easily understand the meaning of “danger” they are likely to engage in work refusals when some other mechanism under the Code would have been better suited to resolve the matter.
[175] I have considered the main feature of the new definition of “danger” - the existence of two types of dangers, those which are imminent threats and those which are serious threats. There are some other aspects of the definition to be examined.
[176] For convenience, the 1985, 2000 and 2014 definitions of “danger” can each be broken into three equivalent parts:
Part 1
1985: “[…] means any hazard or condition that […]”
2000: “[…] means any existing or potential hazard or condition or any current or future activity that […]”
2014: “[…] means any hazard, condition or activity that […]”
Part 2
1985: “[…] could reasonably be expected to cause injury or illness to a person exposed thereto […]”
2000: “[…] could reasonably be expected to cause injury or illness to a person exposed to it […]”
2014: “[…] could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it […]”
Part 3
1985: “[…] before the hazard or condition can be corrected.”
2000: “[…] 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.”
2014: “[…] before the hazard or condition can be corrected or the activity altered.”
[177] For Part 1, the 1985 and 2014 definitions are very similar. The 2014 definition includes “activity”. The 2000 definition is different from the other two. It includes “existing or potential” and “current or future”. The intervenor says that the elimination of these two phrases in 2014 is just a simplification. The appellant places great emphasis on the elimination of the two phrases. The appellant says their elimination means the 2014 definition is restricted to actual, immediate hazards; the 2014 definition is intended to mean “imminent danger” as the 1985 definition was interpreted to mean.
[178] I agree with the intervenor’s position that the elimination of these terms is a simplification. As noted by the intervenor, the terms “ current” and “existing” were also removed which indicates to me that the intention was not to reduce the scope of the definition. I also agree with the intervenor’s argument to the effect that if it had been Parliament’s intent to restrict the definition, it could have done so by simply removing the word “potential “and “future”.
[179] The appellant is correct that Part 1 of the 1985 and 2014 definitions are almost the same. But that observation does not take into account the second part of the 2014 definition which adds “imminent threat” and “serious threat” - concepts missing from both the 1985 and 2000 definitions. Both the appellant and the intervenor place too much emphasis on Part 1 of the definitions.
[180] The second part of the three definitions is critical. The 2014 definition is substantially different from both the 1985 and 2000 definitions. “Imminent threat” and “serious threat” in the 2014 definition indicate that the legislature intended to take a new approach to “danger”.
[181] Indeed, if the 2014 definition of “danger” is a reversion to the same scope of danger as pre-2000, then why didn’t the legislature use the term “imminent danger”? The 1985 definition did not use the term “imminent danger” expressly, but was interpreted to mean imminent danger.
[182] The third part of the three definitions is not significantly different in spite of the loss of considerable verbiage between the 2000 and 2014 versions. The third part of the 2000 definition makes it clear that the harm can occur at some later date. When the harm occurs is a different concept than when the hazard is present or the person is exposed to a risk from the hazard. The appellant and the intervenor are not disagreeing about when the harm occurs. They are disagreeing about when the hazard and risk are present. The purpose of the Code would not be served by reading out long-term or chronic harm in the 2014 definition. Otherwise, an employee would not be able to refuse to work with chemical X, which will not kill the employee today but could be reasonably expected to kill the employee from disease in a few years.
[183] “To be an imminent or serious threat” is a substantial change from “to cause injury or illness”. The appellant says both phrases are consequences, and the difference in wording is not significant. “To be an imminent or serious threat” is not the harm. It is a statement about risk. In ordinary language, if X threatens the life or health of Y, X has not caused harm to Y. X is letting Y know that Y is currently facing a certain probability of a certain severity or type of harm.
[184] What the appellant emphasizes in Part 2 of all three of the definitions is “could reasonably be expected to…” which is about probability, not consequences. The appellant cited Laroche v. Canada (Attorney General), 2011 FC 1454 at paragraph 30 (“Laroche”) for the view that “danger” is about probability and is not concerned with the severity or nature of the consequences “if the hazard occurs”.
[185] It may be that Laroche considered only the probability factor in the risk from a hazard and not the severity of harm, but Laroche cannot be easily applied to the new 2014 definition in its entirety because of the addition of “serious threat”. It is true that severity of harm is not relevant to the question of “imminent threat”, but, as mentioned, severity is implicit in the concept of “serious threat”.
[186] In summary, the legislative evolution of the definition of “danger” suggests that, in spite of some similarities in terminology, the 2014 definition is different in nature from its predecessors - both of them. It is neither a reversion to a pre-2014 “imminent danger”, nor is it merely a simplification of the 2000-2014 definition. There are two types of “danger”. They are both high risk, but for different reasons. The new definition adds a time frame for assessing probability. It adds the concept of severity of harm. In the context of the rest of the Code, a “danger” is a direct cause of harm rather than a root cause.
[187] Are there other sources of insight which might change the above conclusions as to the meaning of danger?
[188] The intervenor believes that the comments of the Minister of Labour in Parliamentary debates are relevant and that they show that there was no intention to change the meaning of “danger” in 2014. The comments of the Minister cited by the intervenor do not assist in any significant way. The comments are too general. Assuring people that the right to refuse to do dangerous work remains in place does not add anything to the meaning of “danger”.
[189] In my view, interpretive aids such as the Labour Program publications are of little weight or assistance in this case because an understanding of the 2014 amendments can be achieved by considering the text and scheme of the Code, supplemented with a consideration of the legislative evolution of “danger”. The IPGs noted by the Ministerial Delegate, and considered by the intervenor, have an effective date of October, 2014. There is no evidence that they are documents considered by the legislature in 2013.
B) New test for a finding of danger
[190] To reiterate, the new definition of “danger” is:
[…] any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered.
[Emphasis added]
[191] The new definition of “danger” is simpler and clearer than the previous one. It is misleading to focus on the question of whether the new definition takes us back to an old, more restrictive meaning, as suggested by the appellant, or whether the new definition hasn’t changed substantively, as suggested by the intervenor. The new definition of “danger” is different than previous definitions. It represents more clearly what the reasonable employee would perceive as worthy of triggering a work refusal. In context, it is likely to encourage employees to sometimes recognize that their concern is not of high enough risk to be a “danger” and should be handled by other means and the basis of their concern is more of a root cause than a direct cause, and again, is more suitable to be addressed by other mechanisms under the Code.
[192] The definition of “danger” includes the phrase “a threat to the life or health of a person”. “Life or health” is very broad. It is intended to cover threats that involve death, injury or disease/ill health as outcomes. “Health” can include the lack of disease as well as bodily integrity (no injuries). The phrase refers to a large category of harms involving people. It is not about a threat to property, the environment, productivity, quality, business continuity, or other categories of loss associated with accidents and exposures. The purpose of the Code is the protection of people and not things.
[193] The caselaw during the period 2000-2014 contained many expressions for probability: “more likely than not”; “likely”; “reasonable possibility”; and “mere possibility”. What was often left unstated was the time period in which the probability was to be assessed: the day of the work refusal; the foreseeable future on the day of the work refusal; a year from the refusal? Is something likely? It may be almost certain to occur in the next five years, reasonably foreseeable to occur in the next year, but merely possible in the next five minutes. It is meaningless to talk about probability without specifying the time period. Unlike the 2000-2014 definition of “danger”, the 2014 definition, by distinguishing between “imminent threat” and “serious threat”, is adding a time frame for probability.
[194] Imminent threat to health would not cover a chronic effect, but it would cover an acute effect. Skin irritations, harm from impact noise, heat stroke, allergic responses, these would be the harms that might be relatively low severity but the probability that the harm would occur, and occur soon, would make threats of these harms imminent threats.
[195] Exposure to a carcinogen would not be exposure to an imminent threat, but it could be exposure to a serious threat. A carcinogen is a hazard. The risk from a carcinogen is the probability cancer will occur and the severity of harm the cancer would cause should it occur. A serious threat is not imminent; it has to do with the severity of outcome. As long as the probability of getting cancer is a reasonable expectation and the probability is getting cancer of a certain level of severity that is high (e.g., death) then exposure to the carcinogen would be a serious threat.
[196] If the hazard can be corrected before the threat (risk) exists then the hazard is not a danger. The hazard can be corrected via many forms of controls (countermeasures, precautions). As mentioned, the Code sets out one version of the “hierarchy of controls” in section 122.2. A hazard can be eliminated or isolated. A lower risk hazard can be substituted. Then correction of the hazard through engineering controls should be considered - putting physical barriers between the hazard and the employee. Then correction of the hazard is done through administrative controls and PPE. The logic of the hierarchy of controls has been widely accepted and used in OHS practice for many decades. The Code reflects this practice. So, a hazard is not a danger if there is a reasonable expectation that the hazard can be corrected before there is an imminent or serious threat from the hazard.
[197] Imminent threats from hazards mean those hazards are less likely to be corrected than hazards resulting in serious threats can be corrected. There is simply very little time to correct hazards whose risks are imminent. The level of harm can be quite low (but not trivial) but the risk is still an imminent threat where the hazard cannot be corrected in time. A serious threat, not being imminent, means that the hazard that produces the serious threat is more likely to be corrected than hazards resulting in imminent threats can be corrected.
[198] In the New Shorter Oxford English Dictionary (1993) the word “threat” is defined as: “a person or thing regarded as a likely cause of harm”. Thus, it can be said that based on that definition, a threat entails the probability of a certain level of harm. Some risks are threats and some are not. A very low risk, either because of low probability or because of low severity, is not a threat. Both probability and severity each have to reach a minimum threshold before the risk can be called a threat. It is clear that a low risk hazard is not a danger. A high risk hazard is a danger.
[199] To simplify matters, the questions to be asked whether there is a “danger” are as follows:
1) What is the alleged hazard, condition or activity?
2) a) Could this hazard, condition or activity reasonably be expected to be an imminent threat to the life or health of a person exposed to it?
Or
b) Could this hazard, condition or activity reasonably be expected to be a serious threat to the life or health of a person exposed to it?
3) Will the threat to life or health exist before the hazard or condition can be corrected or the activity altered?
[200] The purpose of the Code will be served by this interpretation of “danger”. The various provisions of the Code address all non-trivial hazards and risks. This interpretation of “danger” covers a small subset of hazards and risks that people in the work place may face. If the other means of addressing OHS concerns are dealt with adequately by the work place parties it should be rare that a person is faced with a “danger”. Conversely, inadequate efforts using other mechanisms in the Code will result in “dangers” that can then best be addressed by work refusals.
C) Application to the facts
[201] Applying the new test for “danger” set out in paragraph 199, the first question to be asked is what is the alleged hazard, condition or activity? As previously mentioned, the hazard, condition or activity is something with the potential to do harm to a person. The alleged hazard, condition or activity is normally a direct cause of harm and not a root cause in the management system that could lead to a direct cause. It may or may not involve a contravention.
[202] It is probably true that we could call a potentially violent inmate a “hazard” (a “ticking time bomb”), but since the hierarchy of controls requires us to consider eliminating the hazard, that is not appropriate. However, it could be said that exposure to potentially violent inmate without being provided with PPE (handcuffs and OC Spray) could be a hazardous “condition”, and if the respondent was engaged in an activity with a potentially violent inmate, that could be a hazardous “activity”.
[203] The parties and the intervenor cannot be in disagreement with the conclusion that, based on all the evidence, the respondent, as a CM, on various occasions and for varying lengths of time, could be in a hazardous condition or engaged in a hazardous activity. The evidence was clear. The job description of CMs indicates that violence from inmates can occur. The evidence of various witnesses showed that CMs had been subject to violence from inmates in the past. The respondent had been subject to violence in the past. The training of CMs indicated that violence from inmates was expected. At the hearing, videos were shown of CMs involved in violent incidents. The respondent was sometimes in the mere presence of a potentially violent inmate and sometimes engaged in activities with potentially violent inmates such as meetings and interviews with inmates and when engaged in disciplinary “court” sessions.
[204] The next question to be asked is whether these conditions or activities could reasonably be expected to be an imminent threat to the life or health of the respondent on June 1, 2015.
[205] An imminent threat is established when there is a reasonable expectation that the hazard, condition or activity will cause injury or illness soon (within minutes or hours). The degree of harm can range from minor (but not trivial) to severe. A reasonable expectation includes a consideration of: the probability the hazard condition or activity will be in the presence of a person; the probability the hazard will cause an event or exposure; and the probability the event or exposure will cause harm to a person.
[206] There is no doubt the level of harm from inmate violence can range from minor to severe, but that is not the issue. There was nothing in the evidence put before me to indicate that there was a reasonable expectation that the respondent would be exposed to violence from an inmate on the day of the work refusal and that he would be harmed through inmate violence. The testimony of the respondent was that he was not exposed to an imminent or serious threat on the day of his work refusal. I have given some weight to this statement of the respondent, however, I do not believe that it is dispositive of the matter as was argued by the appellant since it is not clear to me that the respondent understood the meaning of imminent or serious threat as intended by the Code.
[207] Moreover, the respondent chose to engage in a work refusal when he did, not because there was an imminent threat, but because he was frustrated by the lack of response to his concerns. He set the date of his work refusal in advance. If he did not get a response from his employer by a certain date he would be “forced” to engage in a work refusal. There was no emergency. Neither exposure nor harm was “on the verge of happening”. He was “bringing matters to a head”. He was engaging in a work refusal in part on behalf of all the other CMs at MI. The respondent said it would be irresponsible for him to wait until he was faced with a potentially violent inmate. The test does not require him to “try it and see” in the words of the intervenor, but it does not allow for characterizing generic, hypothetical scenarios as “dangers” when such issues are best considered though other problem-solving mechanisms in the Code.
[208] There was no reasonable expectation that exposure to the hazard, violence from the hazard, or harm from the violence would be occurring within minutes or hours on June 1, 2015. There was no imminent threat to the respondent at the time of his work refusal.
[209] Having answered this question in the negative, I will now need to determine whether these conditions or activities could reasonably be expected to be a serious threat to the life or health of the respondent.
[210] A serious threat is a reasonable expectation that the hazard, condition or activity will cause serious injury or illness at some time in the future (days, weeks, months, in some cases years). Something that is not likely within the next few minutes may be very likely if a longer time span is considered. The degree of harm is not minor; it is severe. A reasonable expectation includes a consideration of: the probability the hazard condition or activity will be in the presence of a person; the probability the hazard will cause an event or exposure; and the probability the event or exposure will cause harm to a person.
[211] Having reviewed the totality of the evidence put before me, I conclude that the respondent was not exposed to a serious threat to his life or health for the reasons that follow.
[212] In order to conclude that the respondent was exposed to a serious threat to his health or life, the evidence has to show that there was a reasonable expectation that the respondent would be faced in the days, weeks or month ahead with a situation that could cause him serious harm as a result of not being able to carry OC Spray and handcuffs on his person.
[213] The respondent did not appear to appreciate the difference between a hazard that is a danger and a hazard that is not. The respondent made reference to several contraventions as being the basis for his assessment of danger. A contravention may or may not be a danger in addition to being a contravention. The respondent made no distinction. The respondent said he was always in a state of “danger” because he was always required to wear a stab-resistant vest. He did not make any argument or provide any evidence that distinguished between “imminent” or “serious”.
[214] While the evidence presented in this case has made clear that the respondent is exposed to violent inmates in the performance of his regular duties and that the possibility of an assault by an inmate is always present in a correctional institution, I was not presented with any evidence that would serve to demonstrate how the carrying of handcuff or OC Spray would prevent assaults on CMs or would decrease the level of violence from inmates particularly in light of the fact that these two pieces of equipment are already provided to CO officers. Moreover, the appellant has provided evidence to establish that numerous measures are in place at the Millhaven institution to mitigate against risk to CMs and all other staff in the performance of their duties.
[215] I am therefore not convinced that violent incidents seriously threatening the life or health of the respondent can reasonably be expected to occur if he cannot carry OC Spray and handcuffs on his person. In light of my conclusion with respect to the second branch of the test, I do not need to proceed to the final element of the test.
[216] Based on all of the above, I conclude that the respondent was not exposed to a danger on the day he exercised his right to refuse to work. Given my conclusion on the danger issue, I do not need to consider whether the danger constitutes a normal condition of employment.
Decision
[217] For these reasons, I rescind the direction issued by Mr. Lewis Jenkins, Ministerial Delegate, on June 5, 2015.
Peter Strahlendorf
Appeals Officer
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