2017 OHSTC 3

Reasons

[1] This concerns two appeals that were filed respectively on June 25 and December 5, 2013, against decisions that a danger does not exist rendered by Health and Safety Officers (HSO) Bob Tomlin and Lewis Jenkins. In both cases, these decisions that a danger does not exist came at the conclusion of investigations conducted by the two HSOs into work refusals registered by the two appellants pursuant to section 128 of the Canada Labour Code (Code), claiming to have reasonable cause to believe that (1) a condition existed in their work place that constituted a danger to them as employees and (2), that the performance of an activity by the latter employees constituted a danger to them or to another employee.

[2] One must note here that at the time, both appellants worked at the same work place, Warkworth Institution, in the capacity of correctional officer and that each represented the other in the course of the investigation of their respective work refusals by HSOs Tomlin and Jenkins. Additionally, at the time of their respective work refusal, both were co-chair, employee side, of the Institution Joint Occupational Safety and Health (IJOSH) committee. In registering their individual work refusal, both appellants described in considerable detail the danger they were alleging to exist, be it a condition in the work place or the performance of an activity therein.

[3] In the case of Mr. Schmahl, his words were:

the issuance and control of inmate razors at Warkworth Institution is not effective and (is) dangerous. There is an unknown amount of inmate razors in the population and limited control mechanisms in place. The union and management met on 12 June 2013 and agreed on a razor issuance protocol to make the work place safer. This protocol was presented to the warden who subsequently refused to implement it or change the current razor protocol at all. The current razor protocol has allowed inmates to modify razors in a dangerous manner with an unknown quantity in the population. On June 04, 2013, an inmate's cell was searched where razor blades were taped out of sight in a manner to purposely injure an officer. This underscored the danger and need to control these razors in a more efficient fashion.

[4] The words used by appellant Huizinga in describing the danger alleged to support his refusal to work were as follows:

the issuance and control of inmate razors at Warkworth Institution is not effective and (is) dangerous. There is an unknown amount of inmate razors in the population and the control mechanisms implemented by the employer are not being adhered to. The razors are tampered with and abused by inmates for purposes of weaponry and illegal activity. The employer's lack of implementation and follow-up on their own preventative measures/razor policy is a danger.

[5] Once passed the clear similarity in the wording used by both appellants in the initial formulation of what they claim as basis for their respective refusal, an attentive reading of each complete formulation also evidences a slight distinctive import. In the case of appellant Schmahl, his claim goes in essence to the insufficiency of control measures given the warden's refusal to modify the existing razor protocol and accept the additional more stringent control measures recommended through the IJOSH committee that would constitute a new razor protocol. In the case of appellant Huizinga, his claim goes essentially to the lack or incomplete implementation of existing control measures in place at the time and, as evidence will show, were in part at least put in place in the interim period between the two refusals.

[6] Given the obvious similarity between the two described dangers presented by the appellants as having warranted their respective work refusals, leading counsel for the appellants to state that both appeals are on the exact same issue, albeit with different evidence for each, it was suggested by both counsel and accepted by the undersigned that it would be beneficial for all parties to proceed to hear these appeals in a common hearing.

[7] Regarding the appeals, the position taken by the appellants was enunciated briefly by counsel at the outset as follows:

• the unknown presence or quantity of razors in the inmate population and individual cells on June 13 and October 29, 2013 (dates of the refusals), presented a danger to the correctional officers in the performance of their duties;
• the danger that they identified does not constitute a normal condition of employment;
• the employer has failed on those dates to take adequate measures at Warkworth Institution to ensure the health and safety of the correctional officers on duty with respect to their ability to monitor the use of razors by inmates on a daily basis.

[8] For its part, referring to the undersigned being asked by the appellants to determine that the unknown presence or quantity of razors in the inmate population constituted a danger, counsel for the respondent briefly stated the latter's position as follows:

• the appellants have failed to prove that any of the factors (unknown presence or quantity of razors) pose a threat to staff, that on the broadest level, the evidence does not support that razors themselves constituted a danger to staff, regardless of their number, the knowledge of their whereabouts or how they were controlled, that as such, there is no link between an ''unknown presence of or quantity of razors'' and a danger to staff, and there is no evidence that the ''issuance and control of inmate razors'' itself is dangerous.
• on the days of the work refusals in particular, there was no evidence whatsoever that either Mr. Schmahl or Mr. Huizinga were in danger from razors and that if anything, their work refusals were simply a means of bringing to a head a longstanding occupational health and safety dispute.
• any hazards posed by razors are a normal condition of employment and Warkworth Institution had sufficient measures in place to minimize any risks posed by razors in order to ensure the health and safety of staff.

Background

[9] While there is considerable similarity in the general factual circumstances of each appellant's case, there is also a certain specificity to each situation, as recounted in great part by each investigating officer and also presented in evidence at the hearing in more details. What follows is what is relevant generally or specifically to each appellant.

[10] Jordan Schmahl is a correctional officer at Warkworth Institution, which is a federal medium security institution located in the town of Campbellford, Ontario. At the time of his work refusal, his level was CX-01 and he was president of the local section of the Union of Canadian Correctional Officers-Syndicat des Agents Correctionels du Canada (UCCO-SACC-CSN) as well as a regular member of the IJOSH. His degree of daily contacts with inmates would vary depending on his daily assignments, be they at his substantive CX-01 level or at the CX-02 and CX-03 level assignments that he has also occupied. In the execution of their duties, correctional officers are equipped with stab resistant protective vests, search gloves, OC spray, handcuffs, personal portable alarms and portable radios.

[11] HSO Tomlin recounted that said search gloves had been successful in protecting an officer's hands from being cut by a razor blade hidden "in booby trap fashion" in an inmate's cell. Furthermore, on the day of Mr. Schmahl's refusal (June 13, 2013), the latter was not being confronted with the alleged danger as he was assigned to other security and union duties and therefore, HSO Tomlin considered the refusal to be based on the concern for potential danger and future activity, it being agreed that inmates at Warkworth and other institutions "have in the past and will probably in the future" modify razor blades to be used as weapons or in booby traps. Noting that Warkworth houses over 600 inmates, the investigating officer calculated on the basis of statistics provided by the employer that there occurs or would occur one incident per year at the institution that would involve razors.

[12] In point of fact, HSO Tomlin noted that in the short period of time preceding the Schmahl refusal and investigation, there had been two incidents of razors being used in booby traps (one being eventually accepted as accidental upon review) and that while the employer and the union did not agree on what constituted an act of aggression or a weapon in those instances, he opined that the razor blades in all of these incidents had not been used or stored as per the original intended purpose of a razor and thus represented acts of undesirable conduct by inmates. Documentary evidence presented at the appeal hearing shows that in the five years preceding the Schmahl refusal, there were five seizures of "weapons" that involved razors.

[13] In his investigation report, HSO Tomlin referred to the position of the employer that there is no history at Warkworth of inmates utilizing weapons made of razor blades in assaults against inmates or staff, although inmates have been known to attack other inmates and make suicide attempts with such weapons made from altered razor blades, pointing out that in such situations, a quantity of blood may be present at the scene. Since a large number of inmates are infected with hepatitis and/or HIV/AIDS, officers who are expected to intervene in these events may be exposed to blood borne pathogens.

[14] Mr. Schmahl first became aware that the presence of razor blades in the work place could create a hazard when a correctional officer in maximum security Kent Institution in British Columbia was slashed and seriously injured by an inmate in the summer of 2012. He became concerned about what he considered to be the lack of controls and policies in place to track the numbers and location of razors at Warkworth and between August 2012 and June 2013, had a total of 10 meetings with the Institution's Warden, Ryan Beattie, on this particular issue.

[15] From an historical perspective, in August 2012, inmates at Warkworth could purchase Mach 3 or disposable razors at the canteen, with the only limitation as to the number that could be purchased being a $90.00 bi-weekly canteen spending limit. In addition, 10 disposable razors were also issued directly to individual inmates by Institutional Services (SIS) upon entering the Institution. Inmates could exchange up to 10 razor blades/razors on a one-for-one basis but there was no procedure in place to monitor the return of unused or used razors upon an inmate exiting the Institution, resulting in the number of razor blades in the inmate population at any given time being unknown. In August 2012, the other appellant in the present case, Mr. Scott Huizinga, complained pursuant to section 127.1 of the Code that the policy of issuing razors, along with the sale of razors, constituted a danger.

[16] That complaint was investigated by members of the IJOSH committee, which found that there were inadequate controls in place at Warkworth to track the number as well as the disposal of disposable razors within the Institution and that despite the absence of any history of razors being used as a weapon at Warkworth, the lack of controls presented a safety concern. A number of recommendations were made by those investigating the complaint. Generally speaking, those were that controls be put in place to verify that inmates keep all 10 issued razors in an unaltered form and to limit the number of razors that could be purchased at canteen and verify that all razors purchased at canteen be held in unaltered form by inmates prior to their being allowed to purchase others or released from the Institution. In April 2013, changes were made by the Warden to the procedures for acquiring new razors.

[17] From this time on, inmates would be required to exchange razors at SIS on a one-for-one basis for a maximum quantity of five. Furthermore, the practice of allowing inmates to purchase Mach 3 disposable razors and razor blades at canteen would come to an end after a grace period ending in October 2013. Added to the practices in place that included the one-for-one weekly SIS exchange, the monthly search of inmates cells that resulted in the removal of any altered razors and a charge brought against the inmate as well as ad hoc search officer authority on reasonable and probable grounds, the warden considered that appropriate measures had been taken to mitigate any potential risk associated with razors. At the same time, noting that approximately 20 inmates leave the Institution on a monthly basis, HSO Tomlin pointed out that the inmates remained unrequired to return all razor blades upon exiting the Institution and that the number of razor blades in the inmate population at any time thus remained unknown.

[18] On May 27 and June 4, 2013, two incidents occurred that reinforced appellant Schmahl's concern that controls in place at Warkworth continued to be insufficient. The first incident involved a rusty razor blade taped to the back of a request form passed by an inmate to the Warkworth school principal who has no search equipment such as gloves, and the second, a routine search of an inmate cell where a number of razor blades had been hidden throughout the cell, including four bundled and taped to the inside lip of a shelf, with the searching officer's search gloves being cut. Evidence presented at the hearing established that the first incident (razor blade taped to a request form) had eventually been accepted as accidental when the matter was reviewed in the charge review process or inmate court.

[19] Given the above as well as the previously mentioned incident at Kent maximum security Institution, the appellant and IJOSH committee members R. Campney (deputy warden), P. McGee (coordinator of correctional operations) and Lee-Ann Langman met on June 12, 2013, and upon having discussed razor issues, including that there was no process in place to track razors coming in and out of the Institution, the unknown number of razors in the inmate population and the modification of razors and blades by inmates, this group agreed to forward a set of seven recommendations to Warden Beattie. Those were enunciated as follows in HSO Tomlin's investigation report:

• All inmates will be issued 5 institutional razors and be permitted to have these in their cell. These razors must be placed on the desk during cell searches and identified as such by the inmate. Failure to follow this regulation may result in an institutional charge.
• Inmates may switch razors at institutional services (SIS) in a 5 for 5 format. All 5 used razors must be handed in to acquire 5 new razors. Any inmate attempting to hand in less than 5 razors will have the razors seized by SIS. The Correctional Manager (CM) will then be notified and a cell search conducted for the missing razors. The inmate will be served with an institutional charge.
• When an inmate leaves (transfer, release, etc.) all 5 razors must be returned to SIS and accounted for by SIS staff. If the inmate does not return these razors, the CM will be notified and a cell search conducted.
• All inmates will be given a 14 day grace period to dispose of all excess razors above the 5 limit as prescribed.
• On July 4^th and 5^th 2013, a search team of 9 officers will be staffed and searching for excess razors will be conducted in each unit of the Institution.
• All razors purchased from the canteen will be permitted to be in an inmate's possession from April 29, 2013 until October 29, 2013. At this point they will become unauthorized items and can be seized.
• Inmates who have purchased canteen razors and are in this "grandfathered process" will be identified by a memo posted on their cell wall indicating the make and model of the razor and blades and the quantity in their possession.

[20] Referring to the actual document, dated June 12, 2013, that was sent to the Warden to inform the latter of this so-called agreement, one must note that it introduces the set of recommendations by referring to UCCO issues in the following manner: "We have no way to identify the # of razors in inmate possession and no future process to manage this via the existing up to 5 for 5 exchange. What UCCO wanted is a 1 for 1 plus a sweep of Institution and all other razors pulled." The document also noted that UCCO would accept the recommendations, including a general cell search as opposed to a lock down and search of the Institution, ending with the following: "If you are not in agreement we will be into a 128 (work refusal) this afternoon."

[21] As previously mentioned, Warden Beattie did not accept the said recommendations, noting that some of the measures recommended were already in place and that at Warkworth, there was no known history of inmates utilizing razor blades to make weapons nor any history of inmates utilizing weapons made from razor blades in assaults against inmates or staff. In concluding that there were sufficient controls in place to manage razors within Warkworth Institution without the need for more, Warden Beattie stated more specifically that:

Control mechanisms are in place for issuing razor blades, specifically a one for one exchange through SIS up to a maximum of 5 per week. The maximum of 5 per week is a reduction from the 10 razors that inmates are permitted to have in their possession as per CD 566-12. Also of note, in response to a 127 CLC complaint (by appellant Huizinga), an additional control measure was implemented by removal of razors for sale through the inmate canteen. A grandfather clause was enacted for those inmates in possession of those razors until the end of October 2013. Inmates in possession of more than 5 institutional issued razors may be subject to an offence report.

[22] Adding to his answer of there being sufficient controls in place to manage razors within Warkworth Institution, the warden pointed to the institutional search plan, particularly the routine monthly searches, as providing opportunities to detect altered razor blades and to the fact of staff being afforded personal protective equipment in the form of injury resistant gloves and training in effective search techniques as acknowledgment of the potential hazard presented by razors.

[23] This answer by Warden Beattie led appellant Schmahl, on June 13, 2013, a work day during which he would have been in limited contact with inmates in the course of his various movements through the Institution for the purpose of discharging his duties and union duties, to file the refusal to work that eventually brought about the present appeal. According to the evidence at the hearing, it would appear that sufficiently numerous officers refused to replace the refusing employee, such that a complete lock down of the Institution resulted.

[24] As stated above, the refusal to work by Mr. Schmahl did lead to a decision that a danger does not exist by investigating HSO Tomlin, that decision being the subject of one of the present appeals. The reasons upon which the HSO based his decision are as follows:

There is a continuing need to supply inmates with razor blades at Warkworth Institution. Officers are trained on core standards by Correctional Service Canada and are provided with personal protective equipment. It was recently shown that the search gloves were effective in protecting the Officer from injury after his hand came in contact with a razor blade. The Institution has incorporated a degree of control measures for the distribution of razors to inmates. (no danger) I determine there are further preventative measures the employer should consider in minimizing the risk of exposure to hazards associated with razor blades [...].

[25] HSO Tomlin nonetheless did find the respondent to have been in contravention of paragraph 125(1)(z.04) of the Code for having failed to develop and implement adequate preventative maintenance measures related to the program of hazard prevention associated with razor blades and accordingly issued a direction in this regard. That direction is not part of the appeals by neither Messrs. Schmahl nor Huizinga, and the sole interest of such mention is that the appeal by Mr. Huizinga came after the issuance of that direction.

[26] That direction by HSO Tomlin required the employer to address the issue of lacking preventative measures as follows:

• elimination of the hazard, including by way of engineering controls which may involve mechanical aids, equipment design or redesign that take into account the physical attributes of the employee;
• reduction of the hazard, including isolating such;
• provision of personal protective equipment, clothing, devices or materials;
• administrative procedures such as the management of hazard exposure and recovery periods and the management of work patterns and methods.

[27] It is important to note here that the wording of the direction replicates essentially verbatim the general wording of subsection 19.5(1) of the Canada Occupational Health and Safety Regulations (Regulations). Between the issuance of that direction on June 18, 2013, and the end of August 2013, there were a number of exchanges between the HSO and the employer regarding compliance with the direction or lack thereof, this culminating on August 22, 2013, with the finding of what has been described in documentary evidence as well as in the words of the appellants at the hearing as several weapons being found outside an inmate's cell window and the granting of authorization to perform an exceptional search throughout the entire Institution under section 53 of the Corrections and Conditional Release Act to detect the presence of contraband.

[28] That search was conducted between August 22 and 25, 2013, and resulted in a large number of excess razors, altered razors, loose razor blades and blades involved in the fashioning of objects by inmates described as capable of being used as weapons or for a dangerous purpose. While the employer and employees differ as to the numbers found, this would range in total between 600 and 1000. This apparently caused another correctional officer, Mr. Curtis Jones, to refuse to work on August 27, 2013, claiming that the hazards associated with the number of razors and the lack of adequate control measures constituted a danger under the Code. The present appeals do not, however, concern that particular refusal action.

[29] The case of Scott Huizinga, who is also a correctional officer (CX-01 at time of refusal) and member of the IJOSH committee and whose refusal to work occurred on October 29, 2013, therefore some months after that of Jordan Schmahl (and Curtis Jones), generally concerns the same issue regarding razors and razor blades and the controls of their numbers and location within the institution. For the major part, the factual circumstances recounted above that concern the case of appellant Schmahl find equal application in the case of Mr. Huizinga since both appellants worked in the same institution and environment at essentially the same time. It is thus not necessary to repeat those in broaching Mr. Huizinga's case. However, the danger alleged by Mr. Huizinga more specifically contends that the control measures put in place regarding such razors and razor blades were not being followed as established and constituted an ineffective tool, with the amount or number of razors in the inmate population remaining largely unknown, as evidenced by several incidents that had occurred in the months that followed the Schmahl refusal and conclusion that a danger does not exist by HSO Tomlin. As such, a memo to all staff had been issued on August 30, 2013, by the Assistant Warden which reviewed the phasing out of non-institutional issued razors (Mach 3 razors and blades) and the removal of such items from the items that could be purchased from canteen with the phasing out and disposal of such items from the Institution being set for October 31, 2013, following an audit of inmates having commercial razors and blades in their possession that had been conducted on August 27, 2013.

[30] This was followed, on October 8, with the employer implementing an IOP (Institutional Operating Procedures) on the use of razors by inmates that presented the following features or "process for managing disposable razors": the requirement that inmate razors, maximum complement of five, be displayed at all times in a cup on individual inmates desks, the requirement that correctional officers conducting their weekly security checks ensure that inmates had five razors in the their desk cups, the establishment of a procedure to address the return of razors by inmates prior to their leaving the Institution, the initiation of weekly spot audits to ensure compliance with the said policies as well as the stating of consequences for failing to abide with the said restrictions and procedures, that including the putting of a violating inmate on a one-for-one razor use/exchange restriction (modified razor routine). Staff and inmates were informed of those measures by Correctional Manager Gunter as well as by Warden Beattie.

[31] Following the implementation of those measures, a group of correctional officers searched (section 53 special search) all units of the Institution during four days (October 21, 24, 25 and 29, 2013), resulting in the finding of numerous excess or altered razors as well as loose razor blades in all units. Over those four days, 162 statements/observation reports (SOR) were filed issuing inmates warnings relative to observation of the razor policy, in addition to which 92 charges were brought against inmates, including charges against eight inmates on Unit 4 for a variety of razor issues, with many of the charged inmates not having been put on the modified 1/1 razor routine. The results of the said searches caused Assistant Warden Campney to recognize that those caused concern to management as the management team had believed that the inmates would be using the issued razors in adherence to the recent policies and that the new processes that had been put in place had helped to reduce the razor numbers in the inmate population. October 29, 2013, was also a day where Mr. Huizinga was to work the day shift. In light of the number of razor violations identified during those four search days, the failure by the employer to implement some elements of the IOP and to place many charged inmates on the one-for-one protocol provided in that IOP, as well as the failure to properly inform staff about the said IOP, Mr. Huizinga formed the opinion that this evidenced a hazard in the work place that constituted a danger under the Code. He consequently informed the employer of his decision to exercise his right to refuse dangerous work, even though the 30-day trial period for the application of the October 8 IOP had not expired. At the conclusion of his investigation into the Huizinga refusal, HSO Jenkins additionally found that as of the date of that refusal, Correctional managers had not completed the weekly spot audits envisaged as part of the institutional search plan nor had information regarding the razor policy or implementation strategies been shared at shift briefings. The officer also found the following:

• page 40 of the inmate handbook clearly indicates the requirement to have 5 razors and that if an inmate has less or more, this constitutes a chargeable offence;
• the policy on razors was shared with all staff of the Institution on October 8, 2013, via email that included a copy of the policy;
• when management became aware of correctional managers' confusion in the reporting of the spot audits results, this was standardized;
• Correctional officers have the authority to require inmates to produce their razors at any time;
• searching of inmates cells occurs on a monthly basis, in addition to security checks on a weekly basis, giving the correctional officers additional opportunities to ensure compliance to the razor protocol;
• a copy of the razor protocol had been provided to correctional officers and, where they do not understand such, it is the responsibility of each CO to address that with their correctional manager.

[32] Furthermore, HSO Jenkins' report notes the following additional facts that were established through the latter's investigation of the Huizinga refusal, some of those also being germane to the Schmahl refusal situation:

• there is a razor protocol/policy in place at this institution [...];
• this policy confirms that during weekly security checks and monthly searching, should an inmate be found with excess razors, it will be considered an unauthorized item and the surplus razors will be seized and a charge will be considered based on the inmate's history;
• it (policy) also confirms that correctional managers are required to complete spot audits on a weekly basis;
• it (policy) confirms that inmates are to keep their razors in the display cup on their desk;
• as of this investigation, there are no longer any canteen razors authorized in the Institution "and therefore that issue is now moot";
• the policy clearly lays out the procedure to address razors on release (of inmates);
• in addition the policy indicates that a review will occur in 30 days to test the system and address any concerns of non-compliance with regular monitoring occurring after this date. The 30 day period was (to end) on November 7, 2013. The employees self (conducted)-audits commenced on October 21, 2013, only 2 weeks into the implementation of the new policy;
• communication was first announced to inmates on the WITV message in April 2013;
• inmates were further advised via memo (also posted on WITV) on April 29, 2013, of the removal of canteen razors;
• on September 30, 2013, inmates were advised of the new policy on WITV;
• on October 8, 2013, inmates were advised by memo and again posted on the WITV of the new routine.

[33] In more specificity, the decision that a danger does not exist by HSO Jenkins invoked the following reasons:

The Institution has implemented a comprehensive policy to control the distribution and collection of razors in the Institution. It clearly states the requirements of Correctional Officers and Correctional Managers in the implementation of this policy. It provided for a 30-day review period with an ongoing review in the future. The razor policy is sound and the health and safety committee should monitor the progress going forward through their monthly inspections of the workplace to ensure compliance to the policy. Correctional Officers do weekly security checks and monthly searches and as part of this process they should be checking that the razors are on display in the cup provided to the inmate. Correctional Managers do routine spot audits of the razor protocol and consistent logging of this information now occurs.

Issues

[34] It has been stated numerous times in case law, and in particular by appeals officers, that the right to refuse work presented as dangerous is a personal right, the validity of such right's exercise needing to be examined relative to the individual exercising that right as well as, in certain cases, relative also to other employees than the refusing employee and this, at the time that the said refusing right is being exercised, and on the basis of circumstances germane to the refusing employee(s) at that time. This being said, in the two cases at hand, it was stated at the outset that both refusing employees, now the appellants, had described the "danger" that they were and are claiming to justify the action they took in refusing to work, albeit at different times and in what they described as differing and justifying circumstances, in very similar if not identical terminology.

[35] The governing words in both statements read as follows: "The issuance and control of inmate razors at Warkworth Institution is not effective and (is) dangerous." A minimal difference does however appear in the two descriptives, one that I attribute, as supported by the evidence, to certain actions taken by the respondent employer in the interim between the separate dates of exercise of those work refusals, a difference that in my opinion does not alter the essential nature of the issue at hand. In the case of Mr. Schmahl, he adds to the first element of his description that "there is an unknown amount of inmate razors in the population and limited control mechanisms in place," whilst in the case of Mr. Huizinga, the added element to his description of the danger is that "there is an unknown amount of inmate razors and the control mechanisms implemented by the employer are not being adhered to." To put this in perspective, one must point out that while Mr. Schmahl did refuse to work on June 13, 2013, Mr. Huizinga exercised his right of refusal some four months later on October 29, 2013. In essence therefore, the issue that I have to determine appertains to the number of razors disseminated within Warkworth's inmate population and is whether at the time of refusal, the issuance and control of razors at Warkworth Institution constituted a danger within the meaning of the Code.

[36] In considering this issue and thus the evidence and submissions presented by all parties, certain elements will be taken into account. These elements arise from the uncontested evidence presented by both sides. As such, Warkworth Institution is a medium security institution where a considerable portion of the population is made up of sex offenders and so-called "lifers", although in recent years, the composition of that inmate population has changed somewhat to account, among others, for gang members. It constitutes a work environment or work place that presents inherent risks with the persons employed therein, primarily in our case CX-01 and CX-02 officers, being exposed to "risk of verbal or physical assault and/or psychological trauma due to the daily performance of security duties in direct contact with potentially volatile inmates who may have low-level cognitive skills and alternate social values/attitudes", as per their work descriptions. It has been a constant policy of Correctional Service of Canada (CSC) to allow inmates to have razors in their possession. While the total number of inmates at Warkworth may vary and has varied somewhat in recent times, at the time of the work refusals by Messrs. Schmahl and Huizinga, it stood at or around 600 inmates. Pursuant to Commissioner's Directive 566-12, effective 2012-06-13, medium security inmates are generally entitled to have in their possession 10 disposable razors, which, in the case of Warkworth's population, irrespective of the additional Mach-3 razors that could be purchased at canteen prior to April 2013, and those razors unaccounted for through the one-for-one exchange system in place, could at any given time potentially amount to 6000+ razors in circulation in the population.

[37] Such numbers would however have been considerably reduced, potentially by half, through the April 2013 warden decision to restrict to five the number of disposable razors that could be obtained and exchanged at any given time, albeit on the same one-for-one (up to 5) system and the additional warden decision following the Huizinga section 127 complaint to end the sale of Mach-3 razors at canteen. Furthermore, apart from a serious assault committed with a razor on a correctional officer at maximum security Kent Institution, said incident being presented by appellant Schmahl as his initial awareness of the risk presented by razors/blades in the inmate population, the evidence is to the effect that only two, one being questionable, incidents have occurred at Warkworth where a razor or razor blades would have been used, placed or disposed in a manner intended to cause injury to a correctional officer. Furthermore, while it has been offered in evidence that razors and razor blades are not a weapon of choice for inmates, as evidenced by the rarity of inmate on inmate assaults using such, the unquestioned evidence is that while there may occur inmate assaults on correctional officers, at Warkworth no such assault on an officer using a razor or razor blade has occurred in at least the last 20 years, and according to counsel for the respondent, has ever happened.

Submissions of the parties

Analysis

[76] The Code defines the concept of danger at section 122 through a trilogy of notions, the first being the presence of a hazard, condition or activity, be it existing, potential, current or future, the second, a reasonable expectation of injury or illness causation prior to correction or alteration occurring and the third, the absent requirement that injury or illness occur immediately following exposure. That being said, the governing element of those three notions is the reasonableness of the expectation of injury or illness. As a starting point, one needs to state anew what has been repeated numerous times at case law to wit, the test of "reasonable expectation" that needs to be met in determining the existence or not of danger is a more demanding test than that of a "mere possibility".

[77] Furthermore, while under section 146.1 of the Code, my jurisdiction requires that without delay and in a summary way I inquire into the circumstances of the decisions rendered by the health and safety officers in the present cases as well as their reasons for concluding as they have in each case, this for the purpose of either varying, rescinding or confirming said conclusion and even potentially issue any direction I may eventually consider appropriate, this review process has been determined, again at case law, to be a de novo process, meaning that one looks anew at the entire case with a "new eye" so to speak and may receive in doing so information in the form of evidence that may not have been brought to the attention of the originator of the decision(s) under review. This, however, does not mean that a new case can be presented for an appeals officer review and determination and that I can stray from what constitutes the essence of the case(s) under review since the legislation restricts my inquiry, and consequently my role as an appeals officer, to the circumstances of the decision or direction previously issued by a health and safety officer. In this respect, this signifies that the information or evidence obtained by said health and safety officer in the course and for the purpose of assessing the validity of an employee's refusal action remains relevant to the appeals officer inquiry.

[78] Taking this into account, a central element or circumstance that one cannot stray from in proceeding in the present appeals is the fact that all elements concern work by employees, and thus conditions or circumstances, occurring in a correctional institution or, to use a very direct descriptive, a "prison". In this regard, I am of the view that one cannot ignore, in remaining cognizant of this particular element, the words of the appeals officer in the Stone decision, that underline the peculiarities of reviewing the conclusion by a HSO concerning a correctional environment:

As it stands today, the right to refuse provisions in the Code are not meant to address long standing problems [...]. The right to refuse (to work) in the Code remains an emergency measure to deal with situations where one can reasonably expect the employee to be injured when exposed to the hazard, condition or activity. However, it cannot be a danger that is inherent to the employee's work or is a normal condition of employment. This statement alone is fraught with consequences for correctional officers. Given that the likelihood of encountering violence is a normal condition of employment of the job of correctional officers, who are specifically trained to deal with these situations, it is very difficult to envisage a situation, in that environment, where a refusal to work for violence could be justified in a specific and exceptional circumstance.

[79] While I agree with the preceding words by the appeals officer, one must reiterate however that this does not mean that law enforcement activity or, to be more precise, the circumstances in which such is exercised, and the work of correctional officers does, in my opinion, come within that descriptive which, by its very nature, involves the unpredictability of human behaviour, cannot meet the exigencies of the definition of "danger" in the Code. It does however mean that because of the nature of such activity, the task of satisfying those exigencies will be more difficult.

[80] Through their submissions, counsel for both sides have demonstrated a common understanding of the concept of "danger" as defined in the Code and thus of the various principles, for the most part developed at case law, to be taken into account in applying the elements of the definition to the facts and circumstances of the situation invoked by an employee to justify exercising the right of work refusal. As I am in agreement with the understanding demonstrated by counsel, it will consequently not be necessary for the undersigned to discuss the legal basis needing to be applied in considering the circumstances of either Mr. Schmahl's or Mr. Huizinga's actions.

[81] I will add however that given the circumstances in which these two refusal cases arose and the reasons invoked by the two refusing employees to explain their resorting to such refusal action, which is characterized as an emergency measure, the reasoning developed through the Martin and Pollard decisions by the Federal Court of Appeal is particularly on point: "tribunals must infer from the past and present circumstances what is expected to transpire in the future. The task of the tribunal in such cases is to weigh the evidence and determine whether it is more likely than not that what an applicant is asserting will take place in the future", and thus, on the same rationale, I also make mine the words of the appeals officer in Patrick Weagant v. Canada (Correctional Service), 2013 OHSTC 22, regarding the absence of past incidents not ruling out a future occurrence(s) to the effect that it is "reasonable to take the record into account when considering whether the prospects for such incidents occurring in the future are likely or unlikely". In this regard, it is important to note that while the appellants produced considerable evidence of large amounts of excess razors and/or blades being found or discovered through searches and audits in recent years, more particularly since 2013 when more stringent controls were put in place, a fact which causes the undersigned to at least conceive that prior to this, when it would appear that such controls may have been practically non-existent, those numbers may have been even higher, they (appellants) have managed to put in evidence only three incidents in the same period where razor blades may have been fashioned into a form of weapon or placed in such a way as to seek to cause harm to a correctional officer, with one such incident (Kent) occurring in a maximum security institution, thus a vastly differing environment than a medium security institution.

[82] In the appellants submissions, counsel described in very clear terminology the hazard in the work place invoked by both employees in their refusal action as being "the unknown number and state of razors in the inmate population", pointing out that "the alteration or improper use of these razors is susceptible to the unpredictable nature of human behaviour, and therefore, it is not possible to determine when the harm will occur". In this regard, counsel described the triggering element of the two refusals in terms that, in my opinion, lack specificity. In the case of appellant Schmahl, it is put forth that his refusal, which occurred on June 12, 2013, had been triggered by incidents that had occurred on May 27 and June 4, 2013, which, it is argued, the appellant felt suggested a real and imminent possibility of danger from the inappropriate use and presence of unknown razors in the inmate population.

[83] While this may be so to a certain degree, the evidence has shown that other elements are entirely relevant to the appellant's action. As such, the evidence has shown that over a period of almost one year, from August 7, 2012, to June 2013, appellant Schmahl had had 10 meetings with Warden Beattie regarding the issue of controls and policies to track the number and location of razors at Warkworth, and that while a number of steps had been taken in this regard, those were clearly not to the satisfaction of Mr. Schmahl who had been working through the IJOSH committee towards having an even more stringent razor protocol accepted by Warden Beattie at a meeting with the latter on June 12, 2013, which became the day of Mr. Schmahl's refusal. It can be derived from the evidence, and even more specifically from appellant Schmahl's testimony that had this more stringent protocol been accepted by the Warden, there would not have been a need for Mr. Schmahl to refuse to work. The fact that Mr. Schmahl chose to exercise his right of refusal immediately upon Warden Beattie's refusal of the proposed protocol, one on which appellant Schmahl and members of the IJOSH committee had put much effort according to the testimony of the appellant, such action having actually been forecasted if the outcome of the warden meeting proved unsatisfactory, gives considerable credence to the suggestion that there was an additional element to the motivation for refusing to work.

[84] In the case of appellant Huizinga, counsel described the triggering element as being the discovery of a large number of razors in the inmate population during multiple days in October 2013, including the day on which Mr. Huizinga was scheduled to work. The evidence has shown that those days in October 2013 refer to the days during which searches were conducted voluntarily by a number of correctional officers, it would appear again from testimony, at the instigation of appellant Schmahl and also following the finding of danger by another health and safety officer following refusal action by CO Jones.

[85] In his testimony at the hearing, Mr. Huizinga specified that he had refused to work for the reason that the control measures put in place regarding razor blades, measures that had been derived or brought about following his own section 127 complaint in 2012, the refusal by Mr. Schmahl and the refusal by Mr. Jones, were not being followed as established, thus proving to be ineffective tools, with the lack of implementation and follow-up by the employer of its own measures resulting in the amount of razors in the inmate population remaining unknown. The evidence adduced at the hearing has shown that the principals Schmahl, Huizinga and Jones had all been involved through the IJOSH committee, in some capacity or other, in the development of the various measures, protocols and IOPs directed at the control of the number of razors and/or blades within the inmate population adopted at Warkworth, with the latest IOP ("Process for managing disposable razors", October 8, 2013) adopted following the HSO "danger" finding in the Jones case being the subject of a 30 day trial period, the conclusion to which appellant Huizinga chose not to wait for to refuse to work because, to use his words at the hearing, "the IOP did not work and he did not feel he had to adjust to the employer's time frame".

The evidence has shown that the fault appellant Huizinga found with the said IOP or its implementation was the fact that although the searches previously mentioned and spoy audits, had demonstrated numerous violations by inmates to the razor protocol, prompting involved COs to bring numerous charges against inmates, very few of those inmates were being put on the 30 day razor protocol (1 razor for 1 hour) by correctional managers who had the discretionary (the witness used the qualifier "subjective") authority to do so.

[86] This being said, the evidence, as well as the submissions by both sides, have shown that there is common ground between their positions, ground that is either established through the evidence or that can be either deducted or surmised through that evidence. This common ground is that, on any given day at Warkworth, be it after the various measures instituted following the various employee actions starting with the Huizinga section 127 complaint that preceded Mr. Schmahl's refusal, or historically prior to any of those actions, there is or there was a very large number of razors, authorized razors and or excess razors or razor blades, present in the inmate population, if only due to the fact that under Commissioner Directive, inmates are entitled to have in their possession five disposable razors, or were previously entitled to have 10 such razors as well as any amount of canteen or "Mach" razors that $90.00 could buy.

[87] Notwithstanding the established historical fact of the presence of large numbers of razors in the inmate population and that these may not have been the object of stringent controls prior to employee actions culminating in the present refusals, counsel for the appellants chose to address this matter of the number of razors in the inmate population as being improperly controlled from the standpoint of the recognized unpredictability of human (inmate) behaviour in altering or improperly (dangerously) using these razors, making it impossible to determine when harm would occur, yet presenting a reasonable expectation of harm. In short, counsel recognizes that it is not only razors as objects, however numerous they may be, that can represent the hazard, but the objects as part or factored into human behaviour which may be unpredictable. Counsel for the respondent, on the other hand, while being on the same page as counsel for the appellants regarding the unpredictability of human (inmate) behaviour, chose to address this question of numbers and by extension that of controls, from an historical as well as a statistical standpoint, linking the historical fact of large numbers of razors in the inmate population, the (inmate) population itself in terms of (average) numbers and the security level of the institution, with the number of daily officer/inmate interactions, the fact of no razor attacks on or injury to staff ever occurring at Warkworth or any other medium security correctional institution, the rarity of inmate assaults on staff (none with weapons) to conclude to the hypothetical characterization of the "danger" alleged by the refusing employees and only a "mere" possibility of injury causation circumstances.

[88] From the stand point of the personal at-work individual situation of both appellants on the days of their refusal, no evidence was presented that on those days, either employee was exposed to a hazard when they exercised their work refusals. As such, no evidence was presented that there was anything out of the ordinary on either of the dates in question, more precisely no evidence of razor weapons found or threats of assaults on officers. Furthermore, there were no actual assaults on officers with or without razors nor was there any intelligence of threats posed to staff by razors. On the day of his refusal, appellant Schmahl was working a union duties post where he would have had very little contact with inmates in the short period of time prior to his meeting with the Warden which was immediately followed by his refusal. In appellant Huizinga's case, the same circumstances found application and since his refusal occurred at the tail end of a series of audits where considerable amounts of excess or altered razors had been found and removed, one can also assert that there was even less of a hazard present.

[89] Counsel for the respondent has argued that a razor attack, or injury due to an altered razor or blade was not probable or even likely at the time of the refusals and, based on the evidence that was presented, I would share that opinion. In point of fact, apart from the razor attack against an officer (Kent) which represents the sole such incident in recent times in the entire Correctional Service, there have been no others and given the number of inmates and staff across CSC and even solely Warkworth, the volume of interactions between inmates and staff on a daily basis, and the significant volume of razors in circulation, which is comparatively less at Warkworth due to control measures in place, the statistical impact of the Kent incident from the stand point of probability is virtually zero. On the same basis of statistical probability, one cannot ignore the fact that no evidence was presented of razor attacks against staff or injuries to staff caused by razors ever occurring at a medium security institution and no evidence was presented of razor attacks against staff ever occurring at Warkworth Institution. The evidence further reflected that while assaults by inmates against staff at Warkworth do occur, they do so on rare occasions and no evidence was presented that such assaults have involved weapons. Finally, while the number of weapons fashioned out of a variety of objects seized per year at Warkworth may be considered generally low, of those, there are typically only one or two that are fashioned out of razors or razor blades.

[90] Having considered all of the above as well as having taken into account those elements that I indicated at the outset were not contested, I find that both from the statistical elements put forth by the respondent as well as from the evidence concerning the increased seizures of excess razors or altered blades not translating into a corresponding increase in either threats or assaults to officers involving razors, the absence of threats to either officers on the day of their refusals and the actual hazards integral to the work of a correctional officer, the appellants have not managed to establish that the hazard claimed to justify their refusals is other than speculative in the circumstances of their case. Even taking into account that the work performed by the two appellants involves human behaviour, a degree of which will always be unpredictable, given all other elements that make up the evidence, I am of the view that the appellants have not managed to take the potential for injury associated with their work situation, at the time of refusal, beyond a mere possibility, thus not satisfying the threshold of reasonable expectation of injury provided under the definition of "danger" in the Code. In arriving at this conclusion, I have also taken into account the reasons that based the decisions that a danger does not exist arrived at by both HSO Tomlin and Jenkins and with which I concur. I thus find that in both cases, no danger existed at the time of refusal.

[91] In formulating its final arguments in the present cases, the respondent also submitted that both appellants had sought to use the refusal to work process as a means to challenge the respondent's policies and procedures or to bring a long-standing occupational health and safety matter to resolution instead of adhering to the intent and purpose of the refusal process which is a serious measure needing to be based on a genuine and reasonable belief of danger. More precisely, the respondent claimed that since the appellants had not managed to get their way with the razor protocol at the IJOSH committee and with the warden, they were trying to get their way through other means, that being resorting to refusing to work, thus abusing the rights provided under the Code. Although the respondent made a compelling argument for the undersigned to put his mind to this question, given my preceding conclusion, it is not necessary for this appeals officer to consider this particular matter, if only because doing so would be exceeding my jurisdiction under the Code and would be usurping the role of a party to the work place. In clear, under the Code, specifically section 147.1, an employer may exercise its disciplinary authority against an employee where the employer can demonstrate a wilful abuse of rights by the said employee once all investigations and appeals have been exhausted by the employee who has exercised his refusal rights under sections 128 and 129, with the validity of such disciplinary action being subjected to examination in a forum different from the one offered by an appeals officer.

Decision

[92] For all the above reasons, I confirm the decisions that a danger does not exist rendered by HSO Tomlin and HSO Jenkins. Consequently, the appeals are dismissed.

Jean-Pierre Aubre
Appeals Officer