2016 OHSTC 7

Testimony of CO Doug White

[11] CO White testified that certain inmates in a prison institution are placed on administrative segregation for control and discipline reasons while certain others are placed there to protect them from injury at the hands of inmates in the general population. Inmates placed in administrative segregation for control and discipline reasons are referred to by management as being in involuntary administrative custody. Inmates who are placed in administrative segregation to protect them are said to be in protective custody and are referred to in this decision as PC inmates. Inmates not on administrative segregation are referred to in this decision as general population inmates or GP inmates.

[12] CO White testified that not all inmates in a prison are regarded as equals and that an inmate's standing in the hierarchy is dictated by a Con Code that exists in prisons.  CO White explained that PC inmates generally include inmates who were convicted of sex offences, who own debts to inmates or gangs in the general population, who are regarded as informants and/or low functioning inmates. PC inmates are generally hated and reviled by GP inmates who will attack them if the opportunity arises. CO White also held that PC inmates are normally housed separately from GP inmates in other institutions and recreate separately. 

[13] CO White stated that incidents occur daily where PC inmates are verbally and physically assaulted by GP inmates. CO White cited an extreme situation where a PC inmate was killed within 6 hours of being reintroduced into the general population. CO White added that the Con Code dictates that new inmates must divulge the nature of the conviction that led to their incarceration to GP inmates. CO White stated that weapons are omnipresent in prisons including Springhill Institution. These weapons are in the form of make shift knives and cutting devices made in prison by prisoners from a variety of materials. These devices are referred to in prison as shanks and shivs and are present despite management's best efforts to rid institutions of these through intelligence gathering and frequent surprise cell and inmate searches.

[14] On the subject of escorting, CO White testified that escorts in Atlantic region facilities are normally conducted using 2 COs per inmate. CO White opined that the practice at Springhill Institution of escorting PC inmates en masse from the housing unit they share with GP inmates to the Gym and back with only 2 COs exposes the COs to injury.

[15] CO White testified that COs are required by their job description to protect inmates and that this duty exposes them to the risk of physical and mental injury during an assault. CO White agreed that COs are trained and equipped to deal with incidents and that there are processes to assist in their protection. However, CO White stated that the training, equipment, processes in the form of directives, post orders etc. and the intelligence gathering activities of management in prisons do not ensure that COs will not be physically or psychologically injured while protecting PC inmates during an assault.  On the subject of training, CO White testified that CO training is not kept current on gangs in the institution.

Testimony of CO Rob Waye

[16] CO Waye testified regarding the layout of Springhill Institution in HUs #10 and 8, the relationship between PC and GP inmates in HU #8, GP inmate assaults on PC inmates and the daily tension between the two inmate populations in question.

[17] CO Waye testified that he worked in various posts at Springhill Institution including HU #8 and HU #10 and stated that it really gets dicey when PC inmates are mixed with GP inmates. The meeting room outside of the barrier to the range housing PC inmates and the four Parole offices (two to the left and right of the immediate entry point to HU #8) are only equipped with light wooden doors that could be breached by inmates during an altercation.

[18] CO Waye testified that there is an opportunity for GP inmates to assault segregated PC inmates being escorted between Unit 8 and the Gym for the following reasons:

• The doors at HU, #50, #51 and #58 are unsecured during the escorted trips between HU#8 and the Gym;
• The gateway between HU#50 and HU#51 is unsecured;
• The gateway at the breezeway is unsecured; and
• The inside-outside yard is not always used to access the Gym and back;

[19] The hearing adjourned before CO Waye's cross-examination was completed and his cross-examination was carried over to the next hearing session which resumed on September 9th, 2013. On September 11, 2013, CO Waye testified with regard to new procedures being followed in connection with PC inmate escorts from HU #8 since the adjournment.

Testimony of CO Jeff Wilkins

[20] Mr. Wilkins has been a Correctional officer since 2002 with 7 years experience at Springhill Institution at the time of the hearing. CO Wilkins testified that Springhill Institution has a higher institution security rating than other prisons in the Atlantic region due to the violent nature of crimes committed by inmates there, the presence of multiple gangs in the institution and the number of inmates who have an increased number of charges.

[21] CO Wilkins stated that all new inmates in the Atlantic region are sent to Springhill Institution for assessment and subsequent assignment to a minimum, medium or maximum security prison. Inmates requiring protective custody protection can be moved to housing unit # 8 during the assessment period if the Reception Centre becomes over populated even though the inmate has not been fully assessed. These factors put Springhill Institution at the high end of medium security classification. Springhill Institution has previously been designated as a high end medium facility until CSC reduced the classification levels.

[22] CO Wilkins referred to item #5 of a document entitled, National Standard for the Deployment of Correctional Officers: Medium Security to support his view that Springhill Institution constitutes a high-medium security prison. Item 5 of the document reads:

Beginning in fiscal year 2009-10, CSC will implement a revised strategy to deal with "unresponsive inmates" in medium security institutions. This comprises those inmates who opt not to follow their correction plans, or who otherwise lack the motivation or desire to rehabilitate themselves and who can cause significant disruption in a penitentiary, through either their gang affiliations or their involvement in the drug trade. Specifically, each region has designated one medium security institution where unresponsive inmates will be situated in separate units.

[23] CO Wilkins also testified that weapons are omnipresence in Springhill Institution and that assaults occur on a regular basis. CO Wilkins stated that PC inmates are normally fully segregated in other prisons with individual cells, double doors to housing units so that there is no opportunity for the two populations to come in contact with each other.

[24] CO Wilkins held that infrastructure and procedural changes need to be implemented in the housing unit to ensure that contact between the two populations can't occur. To mitigate the opportunities for attack on PC inmates, CO Wilkins testified that a recreation yard should be built behind housing unit # 8 and clear written policies and procedures should be developed by the health and safety committee regarding escorts.

[25] With regard to infrastructure changes, CO Wilkins testified that a second barrier gate to the entrance of the PC inmate range on HU #8 is needed to enable the CO in the Control office to defeat any effort by GP inmates to tamper and disable the range barrier gate or to swarm the gate and overpower it from closing. CO Wilkins stated that GP inmates determined to assault a PC inmate could breach the doors to the offices located in HU #8 because they are constructed of wood and open inwardly. In his opinion, these doors should be constructed of steel.

[26] CO Wilkins testified that GP inmates are employed as kitchen help and are able to return to their housing unit early during the program/work hours contrary to paragraph 86 of Post Order 310, # 10 Housing Unit Operations CO II.  They are not locked in their cell or their range as required despite the fact that this corresponds to the time when PC inmates are going to their meetings on the unit. CO Wilkins additionally testified that he has raised his concerns with management over time but the infraction continues to occur. Paragraph 86 reads:

86.  All inmates not participating in a program/work assignment will be locked in their unit during the program/work day hours.  From 1300 hours to 1630 hours.  Inmates will not be locked in their cells however will be required to remain on their respective ranges.

[27] CO Wilkins testified that inmates are not routinely frisked for weapons when they leave the work shop and have an opportunity to hide a weapon on the grounds between HU #50 and #51 for retrieval later should they succeed in fabricating a lethal weapon.

[28] With regard to escorting PC inmates, CO Wilkins stated that Springhill Institution normally assigns 2 COs per inmate for escorts and that escorting up to 18 PC inmates en masse to the Gym and back with only two COs for inmates constituted a danger to him.

[29] CO Wilkins testified that GP inmates behind HU#10 and by the Sweat Shop on the opposite side had opportunity to contact PC inmates being escorted from HU #10 to the Gym and back. PC inmates had to be escorted by HU #10 if the inside outside yard was closed in winter due to snow and GP inmates going to or returning from work in programs could contact them.

[30] Finally, CO Wilkins testified that COs are required by their job descriptions to protect inmates and other COs and that withdrawal from an attack is not a realistic option every time. CO Wilkins added that unprovoked, unexpected and instantaneous assaults can make withdrawal from the event impossible and can cause him physical or psychological injury before backup arrives.

[31] Mr. Mancini, counsel for the appellant,  held that the case law establishes that the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the CCRA) and any CSC policy or directive, assessment standard or other documents are secondary to the Code when dealing with refusals to work under section 128 of the Code. That is, the question is not whether CSC is conforming to departmental directives, post orders etc., but whether a danger under the Code exists in the circumstances present in the workplace. Mr. Mancini cited paragraphs 289, 291, 331, 328, 334, 336, 342, 344 and 349 in the Eric v. and al. v. Correctional Service of Canada, OHSTC 09 09 (Vandal), and paragraphs 57 and 74 in Armstrong v. Canada (Correctional Service) 2010 OHSTC 6 (Armstrong).

[32] Mr. Mancini submitted that the Appeals Officer must consider the opinions expressed by correctional officers based on their experience. He referred me to paragraph 50 of the Federal Court judgment in Verville v. Canada, 2004 FC 767 (Verville), and paragraphs 287, 288, 314 and 317 in Vandal and paragraphs 49, 51 and 52 of Armstrong, to support of his position.

[33] Mr. Mancini maintained that the definition of danger includes potential hazards and that the definition does not require a reasonable expectation of injury every time the activities occurs. Rather, the hazard must only be capable of causing injury at any time but not necessarily every time. In this regard, Mr. Mancini cited: paragraphs 31, 32 and 34 in Verville; paragraphs 286, 330 and 346 in Vandal; paragraph 49 in Armstrong; and paragraphs 37 and 38 in Martin v. Canada (Attorney General) 2005 FCA 156 (Martin).

[34] Mr. Mancini held that the danger for CO Wilkins does not constitute a normal condition of employment and referred to paragraph 297 in the Vandal decision of the Tribunal cited previously, where the appeals officer clarified with constitutes a normal condition of employment. Mr. Mancini submitted that the appeals officer's interpretation in that case was upheld in the Federal Court decision in P&O Ports Inc. v. International Longshoremen's and Warehousemen's Union, Local 500, 2008 FC 846 (P&O Ports Inc.). 

[35] Mr. Mancini submitted that the employer implemented a risky unprecedented experiment at Springhill Institution of housing PC inmates in the same housing as GP inmates in a range dubbed by officials as the "Enhanced Supervision Range (ESR)" or "transition range". Mr. Mancini referred to the CCRA which he held specifies that PC inmates must be protected from GP inmates and that this has historically meant that PC inmates are fully segregated from GP inmates in prisons.

[36] Mr. Mancini held that the practice of housing PC inmates with GP inmates has not been established under the CCRA or national policy direction and was implemented without consultation with employees. Mr. Mancini held that this unprecedented practice increases risk to the health and safety of COs employed in the shared housing unit and COs escorting PC inmates en masse to the Gym and back to the housing unit.  Mr. Mancini referred to the testimony of Cos White and Wilkins to the effect that housing PC inmates with GP inmates is not done at other prisons or other units at Springhill Institution such as the Reception.

[37] Mr. Mancini submitted that the testimony of CO Wilkins establishes that Springhill Institution is a high end medium security prison that houses a higher percent of violent inmates and gang members than other Atlantic region prisons and that gangs run the underground movement of drugs and money. Mr. Mancini also referred to the documentary evidence produced by Deputy Warden Breen that confirms the dangerous nature of the inmate population at Springhill Institution and the level of violence of those inmates that led to their incarceration.

[38] Mr. Mancini argued that GP inmates generally despise PC inmates within the Institution. In this regard, Mr. Mancini referred to the testimony of COs White and Wilkins that inmates in the general population enforce a Con Code that puts PC inmates at the bottom of the hierarchy and at risk of assault by GP inmates. Mr. Mancini additionally referred to the testimony of CO Waye that there is regular taunting of PC inmates by GP inmates; there are past incidents of violence including murder; GP inmates damaged water pipes to flood PC inmates on the bottom floor with water and urine when the PC inmates were being housed in HU #10; GP inmates throw garbage at the entrance to the range where PC inmates are housed; there are overflows from the Reception area; and there have been close calls during escorts.

[39] Mr. Mancini submitted that a single barrier gate to the entrance of the PC inmate range in housing Unit #8 is inadequate because GP inmates can tamper with the gate or swarm the barrier to gain access to the PC inmates range. Mr. Mancini also submitted that the meeting room outside of the barrier to the range housing PC inmates and the four Parole offices (to the left and right of the immediate entry point to HU#8 are only equipped with light wooden doors that could be breached by inmates.

[40] Mr. Mancini maintained that the testimony of CO Wilkins established that there are times when GP inmates can move freely during the day within the Institution and in housing HU #8. Mr. Mancini maintained that all this movement creates occasions where GP inmates have an opportunity to assault PC inmates and that unsecured kitchen workers present in HU#8 is of particular concern.

[41] Mr. Mancini held that Deputy Warden Breen knew that GP inmates from HU# 8 as kitchen workers in Unit 8 were returning to their unit during the work/program period during the day and, contrary to Post Order 310, were not being locked in their ranges.  Mr. Mancini further held that Deputy Warden Breen knew that GP inmates were moving freely in Unit 8 when GP inmates return to Unit 8 from shops or evening recreation.

[42] Mr. Mancini held that escorting up to 18 PC inmates to and from the Gym with as few as 2 COs is contrary to normal practice at Springhill Institution and constitutes a danger for Cos.

[43] Mr. Mancini stated that the testimony of CO Waye that followed the lengthy adjournment of the hearing established that the CSC changed the routine used to escort PC inmates from HU #8 to the Gym and back. Mr. Mancini accepted that the new routine eliminates the risk involved in escorting PC inmates from HU #8 and stated that these changes are part of the remedy sought by the appellant. Mr. Mancini held that escorts are still being conducted with too few COs.

[44] Mr. Mancini held that the assertion by the employer that COs can simply withdraw if they feel that their health and safety is at risk during an attempted assault is inconsistent with the CO's job description and the training and protective equipment that the employer provides to COs and is not practicable.

[45] Mr. Mancini requested that the present appeal be upheld and that HSO Gallant's finding of no danger be rescinded. Mr. Mancini further requested that the appeals officer require the employer to install a second barrier at the stairs leading to the PC inmates range and secure the four offices on unit 8 with steel doors.

[46] Furthermore, Mr. Mancini requested that the employer and the local section of UCCO SACC CSN Union at Springhill Institution be ordered to implement the above measures through the local health and safety committee, and produce a clear protocol for implementation of the present order. Similarly, Mr. Mancini requested that the appeals officer remain ceased of the appeal for 60 days while the requested remedies and any other ordered remedies are put in place.

[47] With regard to escorts, Mr. Mancini requested that the appeals officer order that escorts be conducted through the "outside inside" yard and that: the doors to HUs #50, #51 and #58, the gateway between HUs #50 and #51, the breezeway, the barrier to the service road be secured during escorts; and that the barrier to the service road be secured.  Mr. Mancini also requested the appeals officer to order that: GP inmates are not ever to be unsecured in HU #8; the SM 9 post be made permanent; and that the snow in the "inside outside" yard be removed during winter months.

Testimony of Correctional Manager Greg McCloud

[49] CM McCloud worked at Springhill Institution for 6 years and served as CM at HU #10 for fourteen months. CM McCloud testified regarding his responsibilities, CO job descriptions, the responsibilities of COs while on duty, the layout in Unit 10 and on how inmate movement is to be monitored and controlled in accordance with Commissioner Directives, policies and directives. CM McCloud also testified regarding searches conducted on inmates and their cells, staffing levels and responsibilities during shifts and measures that mitigate risk should GP inmates attempt to attack PC inmates.

[50] CM McCloud further testified regarding CSC Post Orders and staffing levels for HU #8, the responsibility of COs with respect to dynamic security, static security, responding to emergencies, inmate counts and the inmate movement pass system at Springhill Institution and the normal inmate routine that occurs on HU #8 and during escorts.

[51] CM McCloud stated that PC inmates housed in HU #10 that have been assigned as kitchen staff or cleaners have never stormed the gate to the range housing PC inmates and or participated in an incident where a CO was injured attempting to protect a PC inmate from assault.

[52] During cross-examination, CM McCloud agree that GP inmates are a threat to PC inmates and that an attack could happen any day despite measures taken in the prison to mitigate against this. CM McCloud further agreed that situations arise where GP inmate kitchen workers in HU #8 are not secured in their cells as required when they return early from their shift and when they go to their range or to the Gym contrary to rules, that inmates are not always frisked at work areas as required and that anywhere from 4 to 6 inmates are employed as labours in restricted areas and the garden and that GP inmates could attack PC inmates despite the fact they are being supervised.

[53] CM McCloud also agreed that GP inmates could run from the work shop to attack a PC inmate and that GP inmate kitchen workers in other housing units are not secured in their cell and could possibly leave their housing unit to attack a PC inmate. CM McCloud countered that kitchen staff and cleaners are screened by a Board before they are appointed and pose minimal risk.

Testimony of Deputy Warden Lorne Breen

[54] Deputy Warden Lorne Breen who had held the post since July of 2009 testified regarding the number and types of inmates at Springhill Institution, the nature of administrative segregation, and the number of COs employed in the Institution.

[55] Deputy Warden Breen testified extensively regarding CSC policies and procedures in the form of CSC Commissioner Directives, Standing Orders, Post Orders and Policy Bulletins in place at Springhill Institution to mitigate every risk including housing PC inmates in HU #8. Deputy Warden Breen maintained that there was no additional risk having PC inmates housed with GP inmates in HU # 8 or 10.

[56] Deputy Warden Breen testified extensively regarding information gathering procedures performed daily at the Institution by the various staff at the Institution including COs that ensures that Management and staff are aware of the mood and tenor at the prison on a daily basis.

[57] Deputy Warden Breen stated that it is highly unlikely that a CO working in HU #8 (or previously HU #10) or escorting PC inmates to the Gym and back would be injured given the training and protective equipment that COs receive from the employer to ensure their health and safety on the job as well as all the measures that are taken to mitigate the risk to the COs health and safety.

[58] Mr. Kelly, counsel for the respondent, submitted that the Federal Court of Appeal in both Martin and Canada Post Corporation v. Pollard, 2008 FCA 305 (paragraphs 37 and 16 respectively) found that in order to arrive at a conclusion of danger under the Code, one must weigh the evidence to determine whether it is more likely than not that the alleged hazard will injure an employee before the hazard can be corrected.

[59] Mr. Kelly held that the evidence demonstrates that there is no danger for CO Wilkins connected with practice of housing PC inmates in a HU for GP inmates or escorting the PC inmates to the Gym and back.

[60] Mr. Kelly held that the testimony of CM McCloud and Deputy Warden Breen and documents entered as evidence in connection with their testimonies demonstrate that CSC ensures a physical presence of 4 COs in Unit 8 which is one CO above the normal staffing level in medium security housing unit. Mr. Kelly submitted that this ensures a physical presence of a minimum of 33 COs during the day shift (06:30 to 14:30) and 29 COs during the evening shift (14:30 to 22:30) some of whom could respond to any emergency.

[61] Mr. Kelly submitted that the testimony of the COs, witnesses for the respondent in addition to the documentary evidence presented confirm that CSC ensures that all COs are highly trained to perform their duties and are equipped with personal protective equipment. Furthermore, the training is updated in areas such as the use of force, self-defence, dynamic security and gangs.

[62] Mr. Kelly held that CSC plans and conducts regular searches of inmates as well as the entire Institution in accordance with Commissioner's Directives 566-7, 566-8, and 566 9 to mitigate the presence of any inmate weapons.

[63] Mr. Kelly submitted that the testimony of Deputy Warden Breen establishes that CSC ensures additional physical presence of highly trained Emergency Response Team with access to additional equipment such as batons, shields, firearms and gas in the event of an emergency and CSC Directives 567, 567-1, 567-2 and Standing Order 567-2 provide a strategic plan to properly respond to any emergency including but not limited to any violence in Housing Unit 8.

[64] Mr. Kelly submitted that CSC training courses, documents, guides, summaries and course material related to gangs and organized crime ensure that COs are highly trained in many areas such as the use of force, self-defence, dynamic security and gangs. Mr. Kelly stated that the training is updated.

[65] Mr. Kelly submitted that COs constantly observe and interact with inmates to identify inordinate safety risks in accordance with Commissioner's Directives 568-1 and Post Orders cited by Deputy Warden Breen and the incidents are reported by COs to identify inordinate safety risks.

[66] Mr. Kelly held that the testimony of Deputy Warden Breen establishes that CSC conducts risk assessments of all inmates prior to assigning a PC inmate to HU #8 to mitigate risk in accordance with Commissioner's Directive 706. Mr. Kelly further added that the evidence establishes that there is no danger for CO Wilkins because CSC can implement a myriad of options to deal with attacks or the threat of attacks by GP inmates on PC inmates including increasing the number of COs in the Institution or reducing or eliminating inmate activities in the event additional risk is identified.

[67] Mr. Kelly held that CSC plans and conducts regular searches of inmates as well as the entire institution in accordance with Commissioner's Directives 566-7, 566-8, and 566 9 to mitigate the presence of any inmate weapons.

[68] Mr. Kelly stated that Commissioner's Directive 567, COs instructs COs not to take any measures that would jeopardize their safety and to withdraw from the situation if their personal safety is at risk.

[69] Mr. Kelly held that the testimony of Deputy Warden Breen and documents reviewed by Deputy Warden Breen establish that CSC is able to discipline any inmate in order to dissuade them from any misconduct including assaulting a PC inmate in accordance with Commissioner's Directives 580 and 709 and Standing Order 709.  Mr. Kelly added that there is no evidence of any attempted attacks by GP inmates on PC inmates in Housing Unit 8 since PC inmates were housed on GP inmate housing units.

[70] Mr. Kelly submitted that Deputy Warden Breen and CM McLeod, are experienced senior officials at Springhill Institution and both are of the opinion that housing PC inmates in Housing Unit 8, and previously at housing Unit 10, pose no danger within the meaning of the Code.

[71] Mr. Kelly held that the testimony of CM McCloud and Deputy Warden Breen establish that the front of the range housing PC inmates in Unit 8 is equipped with a security grill of Lexan Glass and that the existing doors and barrier gate in the unit are sufficient for delaying GP inmates from reaching PC inmates in the housing unit until help arrives. Mr. Kelly added that each cell door on the range in Unit 8 housing PC inmates is equipped with a steel door which can be closed and locked by the PC inmates or controlled by the COs. A GP inmate wishing to attack a PC inmate in Unit 8 would have to breach the security door of the individual cell(s) giving COs time to respond safely.

[72] Mr. Kelly noted that Deputy Warden Breen testified that the four offices in HU #8 are equipped with solid oak doors that can be locked and offer protection from and delay to potential assault.

[73] Mr. Kelly referred to the testimony of Deputy Warden Breen that clarified that GP inmates in HU #8 are not permitted to move within the housing unit during the day with the exception of a small proportion of inmates such as cleaners, or inmates returning from work. Mr. Kelly maintained that GP inmates from HU #8 who return early from their work are generally secured in their cells throughout the day. Mr. Kelly added that the barrier to the range in Housing Unit 8 housing PC inmates is always closed.

[74] Mr. Kelly held that the testimony of Deputy Warden Breen shows that CSC ensures that a CO is posted in the secured control post next to the range housing PC inmates on HU #8 to observe all movement and respond to any situation if necessary. Mr. Kelly submitted that there is no evidence that the hazards alleged by the appellant relative to housing PC inmates in housing units for GP inmates support a finding of danger under the Code. Mr. Kelly further argued that the employer has taken all reasonable steps to mitigate risk and that any danger found thereafter constitutes a normal condition of work under the Code.

[75] Mr. Kelly submitted that the uncontested evidence in this appeal was that measures have been implemented to address all hazards associated with escorting PC inmates to the Gym and back to Housing Unit 8 with the exception of securing doors of the other housing units.

[76] Specifically, Mr. Kelly stated that the evidence of Deputy Warden Breen and CO Waye establishes that: (a) presently the inside-outside yard is always used for escorts (unless there is snow at which time the escort is cancelled); (b) the gateway between units 50 and 51 is secured; (c) the gateway at the breezeway is secured during escorts; (d) the barrier to the service road is secured during the escorts; and (e) the multifunction post previously known as SM 9 is operational.

[77] Mr. Kelly held that any risk of violence during an escort if doors to HU #s 50, 51 and 58 are unlocked is limited to the short window of time in which PC inmates are in the inside yard or courtyard (i.e., the moment they leave HU #8 and before they enter the inside outside yard) as the escort takes place behind locked barriers at all other times.  Mr. Kelly added that the escort protective measures in place, including the fact that GP inmates are not permitted to exit other housing units during an escort, are in effect during this short window of time.

[78] Mr. Kelly added that the testimony and evidence of Deputy Warden Breen revealed that:

• GP inmates in housing Unit 8 are secured behind the barrier in the ranges before the commencement of an escort;
• the inside yard or courtyard is swept visually before the start of an escort to ensure no inmate is present;
• the Gym is visually swept and locked before the start of an escort to ensure no inmate is present;
• Central Control monitors the escort via the camera system and can call for reinforcements if necessary;
• at least 2 COs escort the PC inmates and other COs may join them; and
• movement of PC inmates to the Gym and back to Housing Unit 8 is now conducted via the inside-outside yard; and the escort is cancelled if the inside outside yard is covered with snow.

[79] Mr. Kelly held that the hazards were remediated due to CSC's constant efforts to update and improve its policies and procedures to ensure the health and safety of COs is protected. In support of this position, Mr. Kelly cited paragraph 46 in P&O Ports Inc., and to paragraph 47 in the Martin-Ivie v. Canada (Attorney General), 2013 FC 772 decision and to paragraph 48 in Jack Stone v. Correctional Service of Canada, OHSTC-02-019 wherein the appeals officer considered an analogous fact scenario at Springhill Institution.

[80] Mr. Kelly referred to paragraph 46 of the P&O Ports Inc. decision cited previously, where the Federal Court held that a danger that constitutes a normal condition of employment is a residual hazard that remains after an employer has taken all reasonable steps to mitigate it. Mr. Kelly held that any danger that exists in this appeal is a normal condition of employment.

[81] Mr. Kelly submitted that there is no evidence that the hazards alleged by the appellant relative to escorting PC inmates to the Gym and back to Unit 8 support a finding of danger under the Code. Mr. Kelly further argued that the employer has taken all reasonable steps to mitigate risk and that any danger found thereafter constitutes a normal condition of work under the Code.

[82] On the basis of all the foregoing, Mr. Kelly requests the dismissal of the appeal.