2016 OHSTC 4

Date: 2016-04-18

Case No.: 2014-69

Between:

Steven Somers, Appellant

and

Canada Post Corporation, Respondent

Indexed as: Somers v. Canada Post Corporation

Matter: Appeal under subsection 129(7) of the Canada Labour Code of a decision rendered by an Official Delegated by the Minister of Labour

Decision: The appeal is dismissed on the ground of mootness

Decision rendered by: Mr. Pierre Hamel, Appeals Officer

Language of decision: English

For the appellant: Himself

For the respondent: Mr. Stephen Bird, Counsel Bird, Richard

Citation: 2016 OHSTC 4

REASONS

[1] These reasons concern an appeal brought under subsection 129(7) of the Canada Labour Code (the Code) by Mr. Steven Somers against a decision that a danger does not exist rendered on December 3, 2014 by Ms. Fancy Smith in her capacity as Official Delegated by the Minister of Labour (Delegated Official). Ms. Smith’s decision of “absence of danger” was rendered further to her investigation into the appellant’s work refusal of November 3, 2014.

[2] Mr. Somers is employed as a letter carrier with the Canada Post Corporation (“Canada Post” or “the employer’) in Sudbury, Ontario. He represents himself in the present proceedings.

[3] I convened the parties by way of teleconference held on September 28, 2015 to determine the procedure to deal with the appeal. Both parties agreed that the appeal could be dealt with by way of written submissions, on the basis of the information and documentation contained in the Delegated Official’s report, dated December 12, 2014.

[4] A statement made by Mr. Somers during the teleconference that the work method that had led him to make a refusal was no longer in use at his Sudbury Depot, caused counsel for the employer to inquire further as to whether the matter had become academic at this time. Mr. Bird asked that the matter be held in abeyance in order to allow him to confer with his instructing clients and with the appellant, to obtain more detailed information as to where things stood at the present time.

[5] Shortly thereafter, on October 2, 2015, counsel for the employer informed the Tribunal that he was withdrawing his request to hold the matter in abeyance and wished to proceed as had been determined and agreed to at the teleconference. The parties filed submissions with the Tribunal in accordance with the timetable I had set out. Final reply submissions from Mr. Somers were received on November 23, 2015.

[6] The first point of argument raised by the respondent in its written submissions is that the matter is now moot and that Mr. Somers’ appeal should be dismissed on that ground.

Background

[7] The factual background to this appeal is taken from Ms. Smith’s report and attachments. On November 3, 2014, Mr. Somers invoked his right to refuse to perform work that he considered dangerous, pursuant to subsection 128(1) of the Code. It is worth noting that Mr. Somers’ refusal was made under the provisions of the Code that were recently amended by the Economic Action Plan 2013 Act, No.2, S.C. 2013, c. 40, including a new definition of “danger”, and that came into force on October 31, 2014.

[8] The reasons invoked by Mr. Somers for his work refusal are as follows:

I Steve Somers under part II of the Canada Labour Code am invoking my right to refuse what I believe is unsafe work.

With the "National Standards" that Canada Post has introduced it puts us at risk of injury in many aspects of this new delivery model.

For year[s]we have been instructed not to flip through the mail while walking because it is unsafe and now we're being told to do the opposite. We've always prepared our mail for delivery inside the depot and now we're being forced to do a lot of this work on route. Our mail used to be arranged so that each point of call was presorted and ready for delivery and now we are carrying multiple bundles of mail, flyers, and parcels separately and forced to organize them on route. Flipping through mail and trying to organize our next point of call while walking is totally unsafe and the risks for injury will increase as weather conditions change.

Also, some of us are now using Ford Transits on our routes to replace "relay boxes". In the back of these vehicles is where we are to prep our mail for delivery. Gathering manual mail, parcels, flyers as well as flipping through and putting elastics around presorted mail. While doing this work outside exposed to the elements we are also being put at risk of injury or possible death by being unprotected while working with our vision impaired by the rear vehicle doors being open and our backs exposed to potential hazards i.e: vehicle, public, animals, etc.

If we can limit the amount of time we spend gathering mail from the back of the vehicle while on route we would minimize the risk of possible injury.

[9] At the time of the work refusal, Mr. Somers was to perform his normal letter carrier duties following a new delivery model identified as the “CPC Three Delivery Options for Handling Two Bundles”. He was assigned to CPC route 201 which is identified as a Vehicle Tray System (VTS) motorized park and loop route. The employee utilized a Ford Transit while performing his work and was required to park the vehicle, then conduct foot delivery in a loop, return to the vehicle, move and repeat this process in various locations along this route.

[10] After conducting its investigation into the refusal, the employer concluded that Mr. Somers was not exposed to a danger. The employer’s report of investigation states that the employee understands that there are risks completing his regular duties, but feels that by bundling his sequenced and manual mail in the depot, it minimizes the amount of time spent at the back of the vehicle procuring his mail, therefore minimizes his risks out on the street. It also minimizes his time spent in the elements. The employee was also informed that he is expected to “procure” his mail from the vehicle only, not expected to “work” from the back of his vehicle. He also understands that he will always have to be at the back of the vehicle several times during the work day to perform regular duties. The employer reiterated a number of safety precautions that an employee should apply when retrieving mail from the back of the vehicle, but ultimately determined that no danger existed.

[11] Mr. Somers did not agree with that conclusion and the matter was brought forward to the committee for their review, pursuant to the procedure set out in subsections 128(10) to (10.2) of the Code. The committee determined that a danger existed but that it was part of the employee’s normal working conditions. The committee suggested that the danger could be minimized by bundling mail inside the depot, putting cones around the vehicle when it is stopped, wearing safety vests while outside the vehicle and the addition of a flashing light to the vehicle.

[12] The employer indicated that it would forward these recommendations to the National Joint Health and Safety Committee (the national committee) to take advantage of the opportunity to further improve safety, but remained of the view that the process was safe to begin with and confirmed its view that a danger did not exist.

[13] As the matter was not resolved, Mr. Somers called upon Human Resources and Skills Development Canada to assign an official to investigate the refusal. Ms. Smith attended Mr. Somers’ workplace on November 4, 2014 and conducted her investigation, which included accompanying letter carriers on their routes and reviewing documentation provided by the employer relating to the implementation of its new mail delivery model, including material dedicated to training employees.

[14] During the course of her investigation, Ms. Smith noted that the employer and the workplace health and safety committee (the committee) had not completed an investigation in reference to both the reasons that the refusing employee had identified. Only the second reason, gathering (procuring) the mail from the back of the vehicle, had been investigated.

[15] The first reason supporting the refusal relates to the work method by which letter carriers are required to carry multiple bundles of mail, flyers, and parcels separately and forced to organize them on route, whereas before, the mail used to be arranged so that each point of call was pre-sorted and ready for delivery. The two-bundle delivery method can be succinctly described as follows: new generation sorting equipment and systems allow Canada Post to automate the sequencing of letter mail which was currently performed manually by letter carriers inside the depot. As a result of that new technology, machine sequenced mail arrives at the depot in containers, ready to be loaded into the vehicle or relay bags for a foot route, along with the corresponding manually sorted mail.

[16] The reason given by the employer for not investigating that first ground was that this issue was dealt with separately on a national level, via the grievance procedure set out in the collective agreement. Ms. Smith’s investigation report establishes that such a method had been the subject of extensive litigation between the employer and the Canadian Union of Postal Workers before arbitrator Kevin Burkett. In an award dated October 17, 2013 issued after an 18-day hearing, Arbitrator Burkett ruled that the hazards arising from the method originally used by Canada Post to effect the two-bundle delivery had not been properly assessed and that such a method presented a greater risk of slip, trip and fall injuries for letter carriers. That method essentially required letter carriers to carry mail horizontally across the forearm while walking on their route. No specific remedy was fashioned by Arbitrator Burkett at that point, leaving it to the parties to reach an agreement on an appropriate remedy.

[17] As the parties were unable to do so, Arbitrator Burkett issued a supplementary ruling on February 24, 2014 ordering Canada Post to discontinue the original two-bundle method of delivery. However, Arbitrator Burkett confirmed that three optional delivery methods for two-bundle delivery of mail were safe and acceptable in the interim. The new delivery model was implemented in Sudbury on October 20, 2014. At that time, letter carriers began to deliver mail using the “Three Delivery Options for Handling Two Bundles” of sorted mail. On that date as well, approximately 15 routes changed from foot delivery to motorized delivery, such as route 201 to which Mr. Somers was assigned on November 3, 2014.

[18] Ms. Smith requested documentation regarding the risk assessment for the Multi Bundle delivery model. She was advised by the employer that the national committee had this item on their agenda and that both parties were working to complete this joint risk assessment in a timely fashion. She also requested documentation regarding the risk assessment for the task of procuring mail from inside of a Canada Post vehicle. She was informed that such assessment had not been completed. She also obtained a large variety of documentation from the employer in reference to safe work procedures, risk assessments, job safety analysis that related to the concerns raised by Mr. Somers’ refusal.

[19] Ms. Smith concluded that the employer had provided extensive health and safety information, instruction and training to letter carriers regarding the new delivery model which was implemented in Sudbury in October 2014. As the hazard assessment for the “Three Delivery Options for Handling Two Bundles” of mail was already being addressed via the grievance procedure, and that the arbitrator continued to be seized of the matter, she did not address that issue, although she would periodically verify the status of that risk assessment. However she found that employees, including Mr. Somers, had been adequately trained on such a work method.

[20] Ms. Smith nevertheless identified a number of contraventions of the Code. Those contraventions related to the employer’s failure to investigate both reasons for the refusal to work, the assignment of Mr. Somers’ route to another letter carrier without mentioning that Mr. Somers had refused to perform that work because of danger pursuant to the Code, and the lack of a job hazard assessment of the motorized delivery procedure in reference to procuring mail from a Canada Post vehicle. In her view, while letter carriers were provided with extensive information and training on working in and around a vehicle, the training did not address the task of procuring mail from within the vehicle. Accordingly, she issued directions under subsection 145(1) that ordered the employer to correct the contraventions she had identified. Those directions were not appealed and are not before me.

[21] Regarding Mr. Somers’ claim of danger, Ms. Smith concluded that the employee had not provided sufficient evidence that the new delivery model identified as the “Three Delivery Options for Handling Two Bundles” and working at the rear of the vehicle would constitute a danger when the health and safety information, instruction, training and personal protective equipment are in place. She was not persuaded by Mr. Somers’ argument that retrieving his bundled mail from inside of the vehicle, from the side door of the vehicle or from the rear, exposed Mr. Somers to a danger within the meaning of the Code. She formed the opinion that these activities “could not 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”, to paraphrase the (new) definition of danger in the Code.

Scope of the Appeal

[22] In his Notice of Appeal dated December 11, 2014, Mr. Somers sets out the grounds on which he relies to challenge Ms. Smith’s decision that a danger did not exist. After noting that she identified a number of violations of the Code by the employer, Mr. Somers restricts his grounds of appeal to the second set of reasons which he had originally invoked to justify his work refusal:

(…)

Hazards and risks are the very things that make situations dangerous. Canada Post has been given direction to do a hazard a risk assessment on working out of the vehicles. How can there be a decision of "a danger does not exist" if a hazard and risk assessment hasn't been completed, or even started? This decision is allowing Canada Post to continue to put the lives of employees at risk. It is my understanding that "health and safety" is about being proactive, and trying to reduce or eliminate potential hazards or risks.

It seems reasonable to me that working from the back of a vehicle on the side of the road for extended periods of time with the doors impairing your peripheral vision and not being able to see behind you could cause serious injury or death. The work being performed in the back of the vehicle can be done safely inside the postal facility as it was previously. An arbitrator has directed Canada Post to look into alternative delivery methods for the current delivery model that is now being used. A year has past (sic) with no progress.

Canada Post is being allowed to disregard the health and safety of its employees while they complete their postal transformation. Many hazards associated with our current delivery methods will be eliminated once the postal transformation is complete but meanwhile we are being forced to work in unsafe conditions.

[23] Based on the foregoing and as confirmed by the parties’ submissions which I will set out shortly, I consider this appeal to be concerned solely with the work method by which Mr. Somers is called upon to procure his mail from inside of the Canada Post vehicle, in particular from the rear of the vehicle. All issues relating to the delivery of bundled mail while on foot was pending before an arbitrator at the time of the events and it would be inappropriate for an appeals officer to consider this matter concurrently. Such duplication would lead to confusion, unnecessary expenditure of resources and would not serve the parties’ broader interest that their disputes ought to be resolved with finality and in a consistent manner. I am reinforced in my conclusion by the fact that neither party touched on this subject matter in their written submissions.

Issues

[24] The first issue is whether the appeal has become moot as a result of the fact that the work method at the source of the alleged danger is no longer in force at the Sudbury depot where the appellant works.

[25] Should I find the matter not to be moot, the issue on the merits is whether the appellant was exposed to a danger within the meaning of the Code in circumstances prevailing on November 3, 2014, when procuring bundled mail from the rear of the Canada Post vehicle.

Submissions of the parties

Appellant’s submissions

[26] The appellant’s submissions are reproduced verbatim in the following paragraphs:

“During our conference call I mentioned that I am only a letter carrier and feeling overwhelmed in this situation. Almost a year ago when I submitted my work refusal, management, union reps, coworkers, and eventually HSO Fancy Smith were involved with this process and now there is myself, appeals officer, and a lawyer. Doesn’t seem fair that Canada Post is represented by a lawyer instead of the managers who were involved with the work refusal, investigation, and violations of the Labour Code, and I have no representation.”

“The employer determined that no danger exists. Where is the evidence or proof of their investigation that brought them to this conclusion? This decision was made in a conference room @ 122 Dell St. by management who never left the building to investigate an issue that involves vehicles on route.”

“Management recommended:

-using 4way flashers when parked (this is not allowed because too many batteries would die while on route in the Ford Transit

-“PDT’s have texting and 911 capabilities”

-PDT’s are seldom reliable enough to perform the tasks they were designed for like scanning barcodes and recording signatures. There are continuous issues with the system and batteries for the PDT’s don’t last a whole shift.

-PDT’s would only be useful after an accident

-Texting on a PDT is very time consuming and most letter carriers rely on their cellular phones as do our supervisors because they contact us on our cell phones not our PDT’s

-How is a PDT going to save me from being hit by a vehicle I can’t see coming?

-“Ensure you are aware of your surroundings prior to exiting your vehicle” (common sense)

When working from the back of the vehicle your surroundings are constantly changing without your knowledge because your vision is impaired and you are preoccupied with your duties.”

“LJOSH- is made up of management and employees they identified that danger exists and agreed that bundling mail inside could minimize danger as well as other recommendations.

During HSO Smith’s investigation I was reassigned to deliver “foot routes” and was not permitted to use my 21 years seniority to bid on assignments because I was being “accommodated.” Contrary to HSO Smith’s report, I did not continue to perform the new delivery model and don’t to this date along with everyone else in my Depot.”

“Canada Post was found to be in violation of the Labour Code. The employer had not carried out a job hazard analysis to address hazards associated with the changeover from foot delivery to motorized delivery in reference to procuring mail from a Canada post vehicle. It seems logical to me that hazards and risks are what determine whether or not there is a danger. How can a decision be made without this assessment, without all the facts?”

“Arbitrator Kevin M Burkett said Canada Post failed to undertake a comprehensive workplace risk assessment in connection with the introduction of the two-bundle delivery method. Canada Post is constantly making changes that impact their employees without first conducting the proper hazard and risk assessments until they are forced to do so, and employees are still performing duties that haven’t been proven safe in the absence of these reports.”

“Health and Safety in my opinion is about being proactive and taking steps to prevent or reduce the risk of a preventable accident. This work has always been performed inside, where employees and the mail are protected from the elements!”

“There is a safer way to do this work! That should be the only consideration. It seems changes are only considered or made after someone is hurt or killed. This is clearly a potential preventable injury or death! Please accept this as well as my original appeal of Dec 11, 2014 as my submissions. (…)”

Respondent’s Submissions

[27] The respondent first points out that Canada Post did not require Mr. Somers or other employees in his postal facility to bundle mail outside the vehicle. They have in fact been directed not to perform sort and bundling behind the vehicle, with the result that the circumstances which led to Mr. Somers’ refusal do not exist at this time.

[28] Counsel for the respondent therefore submits that the matter is moot. He refers to the legal test established by Supreme Court of Canada’s decision in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, at pages 353-354, 360-362 (Borowski)) to determine whether a matter is moot. The question to ask is whether the requisite tangible and concrete dispute has disappeared, therefore rendering the issue academic. If so, the next question is whether the Tribunal should exercise its discretion to hear the case, based on three considerations: the presence of an adversarial context, the concern for judicial economy, the need for the Tribunal to be sensitive to its role as an adjudicative branch in our political framework. (Canada (Correctional Service) v. Deslauriers, 2013 OHSTC 41; Canada Post Corporation v. Canadian Union of Postal Workers, 2013 FCA 35).

[29] This test has been adopted by the Tribunal in Robert J. Wellon v. Canada Border Services Agency, 2011 OHSTC 28 (Wellon), where the appeals officer found the appeal to be moot because no live controversy was present at the time of the hearing, as the practice underlying the work refusals had been revoked and any direction that may have resulted from the proceedings would have no object since the remedy would already have been implemented and would be an empty exercise. The fact that the employer could revert back to its earlier practice was said to be of no consequence, since the right to refuse would be available to employees if that were the case.

[30] With respect to the appeals officer’s discretion to hear the matter nevertheless, the respondent submits that the concern of judicial economy has been met. The appellant’s future rights are not affected. Adjudicating a factual situation which is no longer occurring and may never again occur (or if it does, in a different factual context) does not serve the interests of the parties or the public at large.

[31] The respondent’s submissions on the merits of the appeal may be summarily set out as follows. A new definition of “danger” was introduced in the Code and became effective on October 31, 2014. The new definition is more restrictive and is similar to the notion of “imminent danger” that was found in an earlier version (pre-1985) of the Code. Counsel for the respondent contrasts that pre-1985 definition of danger (as it was applied in Re: CP Air [1983] 52 di 26 (CLRB Decision No. 411 (Re: CP Air)) with the definition as it read prior to the 2014 amendments (as applied in Verville v. Canada (Service Correctionnel), 2004 FC 767).

[32] Canada Post submits that the sources of concern as identified could not reasonably be expected to be an imminent or serious threat to the life or health of Mr. Somers, as he was not in a situation where something out of the ordinary was so likely to occur almost immediately and without warning” that he “should withdraw himself from the scene”, as stated in Re: CP Air.

[33] The respondent stresses that Mr. Somers bears the onus of convincing the Tribunal that Ms. Smith’s decision is incorrect. Yet, he provides no additional information or submissions which would support such a determination by the Tribunal. Counsel submits that Mr. Somers’ concerns of feeling unprotected while working with his vision impaired by the rear vehicle doors being opened and backs exposed to the elements and potential hazards. i.e. vehicles, public, animals, etc., do not relate directly to merging mail behind his vehicle. He would have been exposed to all of these concerns when performing foot delivery functions, as they constitute normal conditions of his employment.

[34] As correct as Mr. Somers is in his statement, the work refusal procedure is not designed to be used to review or make directives or recommendations regarding existing policies. It is something to be used by an employee to keep himself or others from serious harm that appears to be about to occur. As such, there is no reasonable cause to believe that the bundling of mail at the back of the vehicle constituted a danger within the meaning of the Code. The appellant’s concerns are hypothetical and speculative, and accordingly, not supportive of a finding of danger (Martin v. Canada (Attorney General), 2005 FCA 156, at para 37; Martin-Ivie v. Canada (Attorney General), 2013 FC 772, at para. 49)

Appellant’s Reply

[35] I have chosen to replicate in their entirety the appellant’s reply submissions, as they are determinative of the outcome of the appeal.

“First I’d like to start with correcting Mr. Bird in misquoting HSO Smith in saying;

“the employee was also informed that he is expected to “procure” his mail from the vehicle only, not expected to “work” from the back of the vehicle. He also understands that he will always have to be at the back of the vehicle several times during the work day to perform regular duties.” This was taken from the Employer’s description of the events! In fact during a meeting with HSO Smith, myself, management and union reps, HSO Smith was very specific in correcting management that procuring mail or any other duty /function being performed by an employee is considered work! I’m sure HSO Smith as well as everyone else in attendance would confirm this.”

“Mr. Bird claims that Canada Post did not require myself or other employees to bundle mail outside the vehicle and the process was never instituted nor authorized by Canada Post, if this was correct there would have been no need to refuse work that we weren’t required to do! Currently there are a few employees who continued to follow the procedure of procuring mail from the rear of the vehicle. On Friday Nov. 20 2015 some employees were informed by management that they would be enforcing the “no early starts rule” and that we would also be forced to bundle and procure mail outside of the depot! In Canada Post’s submissions, under “background” #3. It states… As Mr. Somers and other employees have been directed not to perform sort and bundling behind the vehicle, the circumstances which led to Mr. Somer’s refusal do not exist at this time. If this was correct there would have been no need to proceed with these submissions as I requested that Canada Post confirm that we would not be required to procure mail from the rear of the vehicle and the current methods we are utilizing remain status quo until such a time that the current delivery model changes. The current delivery model was created as an interim practice until all door to door delivery was converted to community mailboxes which has now been put on hold as we now have a new Liberal government who have promised to keep door to door delivery.

Last winter during a snow storm, our local Manager Melissa Levesque announced on the work floor that she did not want anyone procuring mail from the back of their vehicles for “safety” reasons. It was around this time that the procedure stopped being enforced.”

“At the time of my work refusal I had been a volunteer firefighter for 5 years and through training learned of several cases where emergency vehicles with flashing lights were struck and personnel were either injured or killed. Companies like Bell and Hydro like emergency vehicles have flashing lights as well as orange cones to mark a perimeter around the vehicle when parked and although this doesn’t offer any physical protection it offers a visible warning to others that you are there. Fire trucks as well as Bell, Hydro vehicles are used to store tools and equipment to perform work, where the actual work is not being performed from the vehicle unlike Canada Post where the work is being performed at the rear of the vehicle with no personal protection or warning system to alert others to your presence.”

“In my submissions I asked about the evidence or proof that brought Canada Post to the conclusion that there was no danger, HSO Smith clearly submitted her investigation and findings, I was questioning the fact that management never left their conference room and were able to determine that there was no danger with their investigation.”

“In reference to #31 of Canada Posts submissions, I agree that I am exposed to all of the concerns while performing foot delivery however when I am delivering on foot I don’t have my head in the back of a van with a door on both sides of me blocking my vision as well as the distraction of trying to bundle my mail. When delivering on foot we are afforded the luxury of being able to react to certain dangers and possibly avoiding them, not so easy when you have no warning they are coming.”

“It was said that the scenarios I gave were hypothetical and speculative. If they weren’t this would have been a different type of case and investigation as a result of an injury or fatality. We don’t let our kids play on the road because we don’t want them to be killed being struck by a vehicle, this isn’t to say that if they did play on the road they would be killed but its considered dangerous or unsafe.”

“There are many potentially dangerous situations that are “hypothetical” until they result in an injury or death, and could continue to be performed until the next injury or death but if these situations are preventable they should be prevented! If there is a safer way to do something it should be done safer.”

“Is it unreasonable to think that someone losing control of their vehicle due to carelessness or weather conditions could be an imminent or serious threat to life, or any other potential hazard without me being aware, as I am preoccupied working at the back of my vehicle with my vision impaired. Why wait for an injury or death to happen before working safer and smarter, especially when the means are available to us?”

“I entered into this process with genuine concern for my own safety and for that of all my coworkers and the hope of making a positive change. I had no idea that I would be in what feels like a legal battle by myself against a corporation.”

“This is not Moot because this practice was originally enforced and is now potentially going to be again, and some employees have been following this procedure.”

“A danger does exist because to say that there is no potential hazard or risk associated with working on a roadway at the back of a vehicle with your vision impaired and no way of protecting yourself is ridiculous! When delivering on foot you are moving and able to protect yourself unlike working at the back of a vehicle, not visible and unprotected.”

Analysis

[36] This appeal is filed pursuant to subsection 129(7) of the Code against the decision of Ms. Smith, in her capacity as Official Delegated by the Minister of Labour, that Mr. Somers was not exposed to a danger within the meaning of the Code.

[37] Ms. Smith’s decision was rendered after her investigation into Mr. Somers’ refusal, on November 3, 2014, to perform duties that involved that he procure his bundled mail from the rear door of his Canada Post vehicle, under the Vehicle Tray System (VTS) in place at the Sudbury Depot where he was employed at the material time. Mr. Somers’ refusal was made pursuant to subsection 128(1) of the Code, which reads as follows:

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.

[38]Section 122 defines “danger” in the following manner:

122. (1) In this Part,

“danger” means 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;

[39]Subsection 129(7) reads as follows:

129. (7) If the Minister makes a decision referred to in paragraph 128(13) (b) or (c), the employee is not entitled under section 128 or this section to continue to refuse to use or operate the machine or thing, work in that place or perform that activity, but the employee, or a person designated by the employee for the purpose, may appeal the decision, in writing, to an appeals officer within 10 days after receiving notice of the decision.

[40] I must first consider the respondent’s first line of argument that the appeal should be dismissed on the basis of mootness.

[41] After reviewing the material on the Tribunal’s file and the parties’ written submissions, I have concluded that the conditions that led Mr. Somers to invoke the right to refuse are no longer present, which renders the present appeal without practical purpose and moot. I will set forth my considerations in reaching that conclusion in the following paragraphs.

[42] The argument that a matter has become moot is founded on the principle that it may not be appropriate for a tribunal to hear a matter on the merits when, once the matter has reached the hearing stage, the source of the dispute has disappeared such that it renders the proceedings academic.

[43] The ability for an appeals officer under the Code to decline to hear an appeal on its merits by reason of mootness has been applied with some regularity over the years. The underlying principles to the mootness are set out in the Supreme Court of Canada’s judgement in Borowski, cited by the respondent. In that judgement, the Court states as follows, at page 353:

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

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

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

[…]

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

[…]

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

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

[45] In order to determine whether a live issue continues to exist, we must examine the purpose of the present proceedings. The appeal of a decision by Ms. Smith that there was no danger arises in the context of a work refusal under subsection 128(1) of the Code by Mr. Somers. The right to refuse to perform dangerous work is an individual right conferred by the Code and its application is highly dependent on the specific facts and particular circumstances of each case.

[46] Decisions made by delegated officials in that context are generally not “policy driven”: they are reached on the basis of an analysis of the circumstances prevailing at the time of the refusal and the investigation by the delegated official. Thus, a determination of danger under the Code is a fact-specific question.

[47] In that same vein, an appeal procedure would serve little purpose where it is shown that the source of the alleged danger is no longer present at the time the appeal is to be heard. Any direction that an appeals officer could issue under subsection 146.1(b) of the Code, i.e. an order to the employer to take appropriate measures to remove the danger forthwith, would have no practical purpose. The purpose of the refusal provisions in the Code is to provide an immediate remedy to a condition, task or work process that is seen as presenting a danger to an employee. The very purpose of the refusal procedure is satisfied where, by virtue of the fact that circumstances that created the alleged danger no longer exist, the source of danger has disappeared. There is simply no purpose to be served and no place for a decision that would in essence be a declaratory judgement, in such a statutory context.

[48] I echo the appeals officer’s words in Wellon, at paragraph 17 of his decision:

[17] (…) In light of this, one has to consider the specifics of the present case where upon a decision of no danger being challenged following a claim that a certain employer practice constituted a danger, the finding sought by the appellant is that said practice, as it existed at the time of the refusal to work, constituted a danger, and where said practice, subsequent to said decision of no danger by a HSO, has been cancelled such that the danger would appear to be no longer in existence. In such a situation, I would have no difficulty in finding that the cancellation of a practice ultimately found to constitute a danger would represent the best and fullest remedy. As such then in the present case, were I to consider the merits of the present appeal and arrive at a conclusion of danger as sought, a conclusion that would call for corrective or remedial orders, it is my opinion that the issuance of such would constitute an empty exercise since remedy would already have been brought.

(Underlining added)

[49] Likewise, in Manderville v. Correctional Service Canada, 2015 OHSTC 3, the appeals officer stated as follows, at paragraphs 16 to 19:

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

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

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

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

(Underlining added)

[50] I must now review the facts of the case as they are reported in the delegated official’s report and the parties’ submissions to determine whether in fact, the matter is academic or whether there remains a “live controversy” between the parties, in the legal context in which this appeal is situated.

[51] In his submissions dated October 22, 2015, the appellant states rather clearly as follows, at page 2:

(…)

Contrary to HSO Smith’s report, I did not continue to perform the new delivery model and don’t to this date along with everyone else in my Depot.

(Underlining added)

[52] In his submissions, counsel for the employer states at paragraphs 3 and 11, that:

[3] Canada Post did not require Mr. Somers or other employees in his postal facility to bundle mail outside the vehicle. In fact, the process being utilized by employees was never instituted nor authorized by Canada Post. As noted by the HSO, “the employee was also informed that he is expected to “procure” his mail from the vehicle only, not expected to work” from the back of the vehicle. He also understands that he will always have to be at the back of the vehicle several times during the work day to perform regular duties.” As Mr. Somers and other employees have been directed not to perform sort and bundling behind the vehicle, the circumstances which led to Mr. Somers’ refusal do not exist at this time.

[11] (…) Mr. Somers is not required to perform the bundling of mail at the back of his vehicle.

(Underlining added)

[53] In his reply submissions, the appellant states as follows:

Currently there are a few employees who continued to follow the procedure of procuring mail from the rear of the vehicle. (page 1)

In Canada Post’s submissions, under “background” #3. It states… As Mr. Somers and other employees have been directed not to perform sort and bundling behind the vehicle, the circumstances which led to Mr. Somer’s refusal do not exist at this time. If this was correct there would have been no need to proceed with these submissions as I requested that Canada Post confirm that we would not be required to procure mail from the rear of the vehicle and the current methods we are utilizing remain status quo until such a time that the current delivery model changes. The current delivery model was created as an interim practice until all door to door delivery was converted to community mailboxes which has now been put on hold as we now have a new Liberal government who have promised to keep door to door delivery. (page 1)

Last winter during a snow storm, our local Manager Melissa Levesque announced on the work floor that she did not want anyone procuring mail from the back of their vehicles for “safety” reasons. It was around this time that the procedure stopped being enforced. (page 2)

This is not Moot because this practice was originally enforced and is now potentially going to be again, and some employees have been following this procedure.

(Underlining added)

[54] This exchange of views in the parties’ submissions persuade me that the matter is moot, as there is no longer any live controversy in the absence of a tangible and concrete dispute. Clearly, there does not seem to be any question that at least since some time during the winter of 2015, the practice of bundling or procuring mail from the back of a Canada Post Ford Transit vehicle is not in force in the Sudbury Depot where Mr. Somers works. The possibility that the practice may be reinstated in the future is hypothetical at this time. If it ever came that the practice was reinstated at a future point in time, then Mr. Somers would have the full protection of the Code, including the right to refuse to work if he felt that he was exposed to a danger. This condition would then be assessed on the basis of all the circumstances prevailing at that time.

[55] I find support in my conclusion with the following statement of the appeals officer in Wellon, at paragraph 18:

[18] Finally, it has been claimed that where the employer in this case has cancelled its policy of assistance outside the mandate of the CBSA, this has been done essentially as a litigation shield and that there is nothing preventing it from reverting to the previous policy at any time. As such, the respondent to the motion is seeking that I not conclude to mootness and opt to consider the merits of the appeal, presumably to prevent this from happening, and thus essentially acting in a prospective manner. In answer to this, one has to note that pursuant to the Code, the authority/jurisdiction of an appeals officer is vis-à-vis a direction or decision first made by a health and safety officer, thus an appeals officer does not have the authority to initiate a case. (…) As such then, it is true that the employer could revert at any time to its former practice or policy. This however is of no consequence to the protection afforded any employee pursuant to the Code since the right of refusing work perceived to constitute a danger would not be affected by an employer’s decision to reinstate such assistance policy. I am supported in this by the statement of the Federal Court of Appeal in Fletcher (previously cited) to the effect that “the mechanism is a continuing one available whenever, and as often as, an employee has reasonable cause to remove himself from the workplace.” Furthermore, as stated earlier, cases such as the present are and must be factually based and as such, consideration by a health and safety officer and/or an appeals officer must attach to the factual circumstances of a case as they existed at the time of the refusal and investigation, not factual circumstances that have yet to occur.

(Underlining added)

[56] The fact that other employees may have followed the contested procedure of their own volition is immaterial to Mr. Somers’ refusal and perhaps an indication that some of his co-workers do not consider that work method to present a danger to them. Be that as it may, the right to refuse is an individual right and the scope of this appeal is confined to Mr. Somers’ situation.

[57] Having found, on the basis of the parties’ submissions, that the work method that Mr. Somers considered to be the source of the danger is not being currently implemented in his work place, and has not been for some time, I must decide whether it would nevertheless be in the broader interest of the parties and of justice that the appeal be disposed of on its merits.

[58] I have decided not to exercise my discretion to hear this case on its merits despite it being moot, for the following reasons.

[59] First, the context in which the matter arises, a work refusal under subsection 128(1) of the Code, is predominantly fact-based and is aimed at correcting a danger to which an employee may be exposed. A decision on the merits of the present appeal would only have a declaratory effect, as the condition invoked in support of the refusal has disappeared. In other words, the source of the danger has been removed and the corrective action sought by the appellant is satisfied. A decision that a danger existed at the time of the refusal would have no practical purpose in such a context, and could only have a prospective effect on possible future situations, without those conditions even being known at this time. In my opinion, this is an unnecessary and unwise venture.

[60] Secondly, the right of Mr. Somers and other employees to refuse to work should the work method be enforced again in the future is not prejudiced nor diminished by a decision that the present appeal is moot. In other words, nothing is lost for Mr. Somers or anyone else working at the Sudbury Depot of Canada Post.

[61] Thirdly, I have noted that Ms. Smith has also issued a direction to the employer under subsection 145(1) of the Code, citing paragraphs 125(1)(z.03) of the Code and 19.7(1)(b) of the Canada Occupational Health and Safety Regulations. The direction arises out of the same events, and orders the employer to carry out a “Job Hazard Analysis to address hazards associated with the changeover from foot delivery to motorized delivery in reference to procuring mail from a Canada Post vehicle”. That direction addresses the source of the alleged danger and one of the grounds stated by Mr. Somers in his appeal notice.

[62] The work refusal provisions are one of many ways by which the objective of the Code to prevent injuries and ensure a safe workplace is achieved. The employer did not appeal that direction before the Tribunal and as it is required by law to comply with a direction issued by the Minister or his delegated official, I will assume that such an analysis, which is aimed at identifying all hazards associated with a particular task and corresponding mitigating measures, has been completed, or is being monitored by the delegated official, as part of the Labour Program’s compliance continuum. Should this analysis fail to reassure Mr. Somers and should he feel that he is exposed to a danger if the contested mail delivery method is to be implemented again in the future in his workplace, he will be at liberty to avail himself of the protections of the Code.

[63] Before closing, I will point out that the analysis on the merits of the circumstances prevailing at the time of Mr. Somers’ refusal would be carried out in light of the new statutory definition of “danger” that came into force on October 31, 2014. The Tribunal has not yet had the opportunity to interpret and apply that new definition, which is central to an important aspect of the architecture of protection afforded by the Code. Counsel for the employer has presented extensive submissions on the legislative history of the definition of “danger” and on the interpretation the current wording ought to be given. The appellant is not represented by legal counsel or by his union and, understandably, has not addressed those legal points in his submissions. Although this factor is not determinative in my decision not to deal with the present appeal on its merits, I believe that it is preferable for such a significant and precedent-setting legal question to be analyzed where a live controversy continues to exist between the parties and, where possible, with the benefit of more substantive legal submissions.

Decision

[64] For the above reasons, I dismiss the appeal on the ground of mootness.

Pierre Hamel

Appeals Officer