2017 OHSTC 5

Date: 2017-03-29

Case No.: 2012-79 / 2012-73

Between:

Brian Donohue & Robert Burke, Appellants

and

Canada Border Services Agency, Respondent

Indexed as: Donohue v. Canada Border Services Agency

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

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

Decision rendered by: Mr. Peter Strahlendorf, Appeals Officer

Language of decision: English

For the appellants: Mr. Jean-Rodrigue Yoboua, Representation Officer, Public Service Alliance of Canada

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

Citation: 2017 OHSTC 5

Reasons

[1] This case concerns an appeal brought under subsection 129(7) of the Canada Labour Code (the Code) of a decision rendered by Health and Safety Officer (HSO) Chris Wells on November 5, 2012.

Background

[2] Brian Donohue (Donohue) is a Border Services Officer (BSO) employed by the Canada Border Services Agency (CBSA) at the Toronto Pearson International Airport, Terminal 3 (the airport) in Mississauga, Ontario. Robert Burke, BSO, (Burke) is similarly employed.

[3] Incoming international travelers are first processed in the Immigration area in the airport where they are required to show that they can enter Canada legally. They would then normally collect their baggage and proceed to the Customs area where their baggage is inspected. Both Immigration and Customs have secondary inspection areas where some travelers are subject to further examination.

[4] At approximately 8:15 pm on October 18, 2012, two female travelers (#1 and #2) arrived at the airport on a flight from Hong Kong. At the Immigration area the two were detained for further examination. When told that they were to be fingerprinted, both women refused and became uncooperative.

[5] Force had to be used by the BSOs present in order to fingerprint traveler #1. Neither Donohue nor Burke was directly involved in this fingerprinting. After being fingerprinted, traveler #1 was taken to the Toronto Immigration Holding Centre at 2:45 am on October 19, 2012.

[6] At 12:40 am on October 19, 2012, BSO Donohue was asked by Superintendent Celluci to assist other BSOs with the two travelers. BSO Donohue was asked to watch traveler #1 while traveler #2 was being fingerprinted. Both travelers were handcuffed at that time. When the second traveler, #2, was brought to the fingerprint room to be fingerprinted, she resisted. She began to scream and she became violent. She was physically restrained to ensure she would not harm herself. The BSOs were not able to fingerprint traveler #2. At 1:10 am she was taken to a Customs detention area in the airport and put in a “wet cell”. She became cooperative at that point. At 6:00 am she was taken back to Immigration where she was fingerprinted. She was then transported to the Vanier Detention Centre in Milton.

[7] BSO Donohue was told by the Immigration Superintendent that he was to be part of the team that would supervise traveler #2 while she was being held in the wet cell in the Customs detention area. At about 1:40 am, BSO Donohue advised Superintendent Desrochers that he was initiating a work refusal. BSO Donohue then informed the employee OHS committee representative, BSO Burke, of his work refusal.

[8] On being advised by BSO Donohue of his reasons for his work refusal, BSO Burke also exercised his right to refuse to do dangerous work on the same grounds.

[9] BSO Donohue’s work refusal was based on the risk traveler #2 posed to him and to herself if she became even more violent while she was being supervised in the wet cell. He did not believe he was properly equipped to deal with such a situation because of a lack of:

• Training on cell detention techniques with violent individuals;
• Training on cell extraction techniques (removing a person from a cell);
• Tools (restrain chairs, spit masks or tie down straps); and
• Proper facilities (no overnight cells).

[10] The Labour Program within Employment and Social Development Canada (the Labour Program) was called at 2:36 am on October 19, 2012. HSO Chris Wells began his investigation into the two work refusals on October 20, 2012. HSO Wells determined the following:

1. BSOs are equipped with pepper spray, baton, handcuffs, protective vests and steel-toed boots.
2. BSOs are trained in Control and Defensive Tactics (CDT) which teaches skills to handle such situations in the context of an Incident Management Intervention Model.
3. A Memorandum of Understanding (MOU) exists between the CBSA and the Peel Regional Police which allows CBSA to request police assistance with violent individuals. The police have been called in the past. The police are equipped with full riot gear.
4. CBSA provides no guidance as to when to call the police to assist. It is in the discretion of the BSO to assess a situation and to inform his or her supervisor if the BSO has a concern.
5. There was no cell extraction required. Both the women calmed down after they were separated, with traveler #2 being placed in a wet cell. BSO Donohue believed he was inadequately equipped if a cell extraction of traveler #2 were to be necessary.
6. The cells in the Customs detention area accommodate an overnight stay. They have a toilet and a place to lie down.
7. BSOs are regularly spit on with no personal protective equipment (PPE) provided. The OHS committee has requested such PPE from the employer with no response.

[11] On November 5, 2012, HSO Wells rendered his decision that no danger existed. Given the MOU, if at any time a BSO feels an individual is showing signs of aggression that the BSO believes he or she is unable to handle, the police can be called to assist. HSO Wells was of the view that BSO Donohue’s concerns would been better handled as a complaint to the employer under section 127.1 of the Code.

[12] Pursuant to subsection 129(7) of the Code, the appellants, Donohue and Burke, submitted a Notice to Appeal dated October 23, 2012, with respect to HSO Wells’ decision of that a danger does not exist.

[13] HSO Wells issued two directions to the employer on October 23, 2012, regarding this matter. The employer appealed those directions on November 19, 2012, pursuant to section 146 of the Code.

[14] Both appeals were heard together on March 7 to 11, 2016, in Toronto. The employer’s appeal will be dealt with in a separate decision.

Issues

[15] I have to determine the following issues:

1. Whether the appellants were exposed to a danger as defined under the Code when they exercised their rights to refuse to work.
2. If a danger existed, whether the danger was a normal condition of employment so as to preclude the appellants from exercising their rights to refuse work under the Code.

Submissions of the parties

A) Appellants’ submissions

[16] The appellants’ witnesses were:

1. Mr. Brian Donohue, BSO;
2. Mr. Robert Burke, BSO;
3. Mr. Marc Villeneuve, CBSA use of force instructor;
4. Ms. Tammy Carson, Provincial Health and Safety Corrections OPSEU Co-Chair;
5. Ms. Lisa Morgan; and
6. Dr. Kevin Katz, Medical Director of Infection and Control, North York General Hospital.

[17] The appellants’ position is that the circumstances were such on October 19, 2012, that a danger existed and therefore HSO Wells’ decision should be rescinded and a decision of “danger” be substituted.

[18] BSO Donohue testified that while he was watching traveler #1, he could hear traveler #2 screaming in the fingerprint room. Subsequently he was told by BSO Cescon that traveler #2 behaved violently in the fingerprint room. He was told that she had spit at the two BSOs present, tried to bite a BSO, had banged her head on the floor and tried to vomit. Traveler #2 was struggling as she was taken from the fingerprint room to the wet cell in the Customs detention area.

[19] The employer’s witness, Ms. Rhonda Raby, testified that she reviewed a video of the fingerprinting of traveler #2 and that she did not see any spitting. However, the witness was unable to provide details about the video and the video was not introduced in evidence. Ms. Raby’s own notes referred to the traveler spitting. The appellants believe that an adverse inference should be drawn regarding Ms. Raby’s testimony regarding the video.

[20] BSO Donohue refused to work at the point he was asked to supervise traveler #2 while she was held overnight in the Customs wet cell. If she became violent while in the cell, he did not believe he was adequately equipped to enter the cell and subdue her or extract her from the cell. He said he lacked training regarding violent individuals and lacked appropriate equipment to handle such persons. He referred to the risk posed by the size of the holding cell as it would interfere with a BSO’s ability to subdue an inmate.

[21] The appellants provided evidence that there were previous incidents involving violent persons, bodily fluids and that some of these incidents illustrated the difficulties of handling violent persons in confined spaces. BSO Morgan gave testimony about some of the incidents and reference was made to descriptions of the incidents in Hazardous Occurrence Reports, OHS committee minutes and the Health and Safety policy committee minutes. These incidents can be summarized as follows:

• November 5, 2011. A detained individual became ill and vomited in his cell. He became aggressive and BSOs were exposed to bodily fluids while subduing the inmate.
• January 17, 2012. A cell inmate, who had previously slit his wrist, behaved violently in his cell. BSOs had to enter the cell to subdue him.
• February 6, 2012. A traveler in a cell tried to escape. While restraining the inmate, a BSO suffered minor injuries.
• November 21, 2012. A female traveler had to be extracted from a bathroom. The police were called to assist the BSOs. A taser was used. A police officer was bitten.
• July 26, 2015. A detained traveler went into a washroom and cut himself with pieces of glass. There was much blood when BSOs entered the bathroom. The traveler shut himself in a washroom stall while possessing broken glass. The BSOs were reluctant to enter such a confined space under the circumstances. The police arrived but did not immediately extract the traveler. The attending BSOs did not believe their batons or pepper spray would be adequate in the confined space of the stall. When the traveler was finally extracted from the stall at least two BSOs came into contact with blood. One BSO got blood in his eyes and mouth. None of the BSOs had face shields. Subsequently, it was determined that the traveler was infected with the herpes virus.
• August 24, 2015. A female in a holding cell began to harm herself and several BSOs had to enter to restrain her.

[22] Evidence of other incidents involving bodily fluids was provided:

• In 2011 a traveler spat in the eye of a BSO.
• BSO Burke testified he has been spat on at least three times in the past 10 years.
• In 2011 a BSO was exposed to feces from a traveler in a cell.
• In May of 2013, a traveler who had a cut was spitting and uttering threats.

[23] While the appellants are issued with handcuffs, batons and OC spray, they are of the view that the use of a baton in a confined space is limited due to the reduced arm movement of the user, and that the use of OC spray in a confined space is problematic because the BSO using the spray will be exposed to the spray and be adversely affected by it. They are also concerned that the size of a cell limits the number of BSOs who can be present in a cell.

[24] The appellants’ concerns were supported by the testimony of Marc Villeneuve, a CBSA use of force instructor who has taught Control and Defensive Tactics and Subject Movement for over 15 years. Mr. Villeneuve made the following points:

• Very little of the training provided to BSOs applies to confined spaces such as a holding cell.
• Batons and OC spray are not very effective in a confined space.
• While BSOs could await the arrival of other BSOs, the latter would not have sufficient training either.
• The current training does not address a “team approach” to BSOs operating in a confined space.
• One of the training scenarios used that is meant to simulate a detention area is not an accurate reflection of the difficulties of working in a confined space.
• Training should take place in an actual holding cell.
• A body shield should be available when exercising force in a holding cell.
• The concern over the lack of training and equipment has been expressed to the employer on numerous occasions (reference was made to a number of OHS committee minutes dated subsequent to the work refusal).
• Health and Safety Policy Committee minutes dated February 17, 2016, showed that both employee and employer representatives agreed that there was a lack of training and equipment with respect to operating in a holding cell.

[25] The witnesses Villeneuve, Carson and Donohue testified that the size of a traveler was not determinative of the difficulties BSOs faced when subduing a traveler. This point was made because the travelers in the current case were small females.

[26] The employer’s direction to “tactically reposition and wait for reinforcements” when BSOs believe they are in a difficult situation in a confined space is not always a valid option. BSOs have a duty to intervene when a traveler is harming him or herself. Reinforcements have the same training and equipment as the initial BSOs and there is little training on how to respond as a team. A Management Review Report dated July 26, 2015, recommended that a firearm be deployed in such situations. The appellants believe other options are better than a firearm and that there are risks when discharging a firearm in a confined space. The employer did not consider the use of OC foam or body shields as alternatives (OC foam is different than OC spray).

[27] The appellants noted that the employer’s witness, Chief Raby, testified that BSOs have a duty to intervene when a fellow BSO is threatened, and BSOs may be disciplined if they fail to assist. Thus, in the appellants’ view, the direction to reposition and wait is a contradiction and can result in confusion.

[28] CBSA created a flow chart on December 4, 2012, to assist BSOs in assessing risk in these circumstances. BSOs are to use blocks, strikes, OC spray and their batons. When facing the risk of grievous bodily harm or death, BSOs are to call Peel Police for assistance. The appellants believe the flowchart is inadequate for a number of reasons:

• BSOs can be injured at levels that do not amount to grievous bodily harm.
• The flow chart does not address the training or equipment necessary in such situations.
• Batons and OC spray are not valid options (for reasons given above).
• The police can take some time in responding.
• The police are not obligated to intervene in every situation, and in the past they have on occasion refused to intervene.
• The practice of calling the police is not always enforced.
• The police have use of a taser which BSOs do not possess.
• A more recent guideline states that BSOs who are armed will no longer be able to call for police assistance, and a firearm is not always appropriate in confined spaces.

[29] BSOs Donohue and Morgan testified that N95 masks and face shields are not readily available. The N95 masks are usually kept locked in a supervisor’s office. They are often out of stock. Masks are not stored in the room with the holding cells. Spit shields have been purchased but their location is uncertain. N95 masks and face shields became accessible one week prior to the hearing. The accessibility of spit shields has been raised before the OHS Committee (minutes of December 19, 2012 and July 15, 2015).

[30] The appellants’ witness, Dr. Kevin Katz, was qualified as an expert in infectious diseases. His testimony was that the risk of transmission of blood borne pathogens - hepatitis B and C was about 0.1%, which is comparable to the risk of HIV transmission through a contaminated needle stick (0.3%). The risk of transmission from someone with blood in their saliva where the blood comes into contact with an open wound or a mucous membrane was low but significant.

[31] Dr. Katz testified that there is risk from less severe infectious diseases such as Epstein- Barr virus, mumps and herpes-6. Some of these diseases have vaccines and others do not. Vaccines can be specific to some strains and not others.

[32] Dr. Katz testified that there is risk of transmission of an infectious disease even where there is no blood in the saliva. There is also a risk of infection from feces and urine.

[33] Dr. Katz recommended that, even though the risk of transmission of an infectious disease is low, precautions should still be taken. BSOs should have training on how and when to use relevant personal protective equipment and they should know where it is stored.

[34] The respondent notes that the BSOs’ work description and Job Hazard Analysis recognize the risk of contracting infectious diseases.

[35] The appellants’ witness, Tammy Carson, is the Provincial Health and Safety Corrections OPSEU Co-Chair. She testified that for cell extractions in provincial correctional institutions there are a number of resources:

• Institutional Crisis Intervention Teams (ICITs) have at least five members.
• They intervene when there is a threat to the safety of any person in an institution.
• They are trained as a team.
• They receive cell extraction training.
• They receive a minimum of 80 hours of training.
• They have the use of body shields and OC “foam spray” (which reduces the risk of cross-contamination relative to regular OC spray).

[36] HSO Wells concluded that there was no danger present at the time of the appellants’ work refusals. He said the appellants’ concerns were hypothetical and were about future possible events.

[37] When assessing whether a danger exists, potential hazards and future activities must be considered as well as past events. Without considering these factors it would be virtually impossible to meet the test for “danger”. Whether additional mitigating measures could reduce the risk of injury should also be considered. Martin v. Canada (Attorney General), 2005 FCA 156 (Martin).

[38] The injury or illness may not happen immediately upon exposure. Rather it needs to happen before the condition or activity is altered. It is not necessary that every time the condition or activity occurs, it will cause injury. It must be capable of causing injury at any time but not necessarily every time. It is not necessary to establish precisely the time when the potential condition or hazard or the future activity will occur. One is only required to ascertain in what circumstances it could be expected to cause injury and that such circumstances will occur in the future, not as a mere possibility but as a reasonable one. Verville v. Canada (Service correctionnel), 2004 FC 767 (Verville), paras. 34-36, and Martin.

[39] The appellants faced a “danger” at the time of their work refusal. Following Verville, the threat did not have to be immediate but could relate to future events. Traveler #2 was combative and screaming while being fingerprinted. She spat at and bit one of the BSOs. The BSOs were unable to forcibly fingerprint her. She struggled while being brought to the Customs area. It is not relevant that traveler #2 was not violent while in the holding cell because that was after the work refusal began. If the traveler had acted violently in the cell, the BSO would have been required to enter the cell to subdue or extract her. Entering a cell to subdue or extract such a person poses a risk of injury to the entering BSO, particularly since the intervention occurs in a confined space.

[40] During the hearing, there were many examples given of incidents where BSOs were exposed to bodily fluids when engaging with travelers. While such incidents did not always lead to injury, it is reasonable to conclude that such situations could potentially lead to an injury. In Verville it was stated at paragraph 51:

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

[41] The employer’s witness, Cathy Christenson, testified that training sessions did not take place in a holding cell because the risk of injury would be too great, thus constituting recognition of risk of injury to BSOs when entering cells in the course of their duties.

[42] The case of Kerry Gresty et al. v. Correctional Service Canada, 2012 OHSTC 29 (Gresty) can be taken to mean that if a pattern of violence continues, in spite of the measures the employer puts in place, then risk of injury is established. The pattern of violent incidents shown in evidence here demonstrates the risk of injury associated with operating in a holding cell.

Normal Condition of Employment

[43] The appellants’ position is that the danger the appellants faced did not amount to a “normal condition of employment”. The elements of a normal condition of employment were set out in P&O Ports Inc. & Western Stevedoring Co. Ltd. v. International Longshoremen’s and Warehousemen’s Union, Local 500, Decision No. CAO-07-030 (P&O Ports), paragraphs 152-153:

I believe that before an employer can say that a danger is a normal condition of work, he has to identify each and every hazard, existing or potential, and he must, in accordance with the Code, implement safety measures to eliminate the hazard, condition, or activity; if it cannot be eliminated, he must develop measures to reduce and control the hazard, condition or activity within safe limits; and finally, if the existing or potential hazard still remains, he must make sure that employees are provided with the necessary personal protective equipment, clothing, devices and materials against the hazard, condition or activity. This of course, applies, in the present case, to the risk of falling as well as to the risk of tripping and slipping on the hatch covers.

Once all of these steps have been followed and all the safety measures are in place, the "residual" hazard that remains constitutes what is referred to as the normal condition of employment. However, should any change be brought to this normal employment condition, a new analysis of that change must take place in conjunction with the normal working conditions.

[44] The appellants state that the employer has not met this standard of “normal conditions of employment” because there are measures the employer has not taken:

• There is a demonstrated need for training for BSOs with regard to exercising force in a holding cell; and
• BSOs have not had adequate equipment to protect them from exposure to bodily fluids when entering confined spaces.

[45] Further, the appellants state that both employer and employee representatives on the OHS Committee signed a letter in February, 2016, that detailed gaps in training and equipment for BSOs with respect to these situations.

[46] It is the appellants’ position that the decision that a danger does not exist by HSO Wells be rescinded and a decision of “danger” be substituted.

B) Respondent’s submissions

[47] The respondent’s witnesses were:

1. Ms. Rhonda Raby, Chief of Operations for CBSA;
2. Ms. Cathy Christenson, Senior Programming Advisor for CBSA ; and
3. Dr. Robert Gervais, Public Health Agency of Canada.

[48] The respondent made an initial argument that the scope of appeal is much narrower than the respondents have argued. A hearing in front of an appeals officer is a de novo hearing, which means that evidence that was not before the investigating HSO may be considered by the appeals officer. However, the appellants may not raise new issues on appeal. Specifically, the appellants in this case may not raise issues regarding:

• Exposure to bodily fluids other than saliva;

• Areas other than holding cells; and

• “Confined spaces”, which is a term which has a specific meaning under the Canada Occupational Health and Safety Regulations (Regulations).

[49] In this regard, the respondent relied on the decision in Fletcher v. Canada (Treasury Board), 2002 FCA 424, paragraphs 20, 21 and 38, wherein the Court said that the right to refuse to work is not the means by which the bulk of the objectives of the Code is achieved and that an appeal is not a vehicle for an employee to adjudicate issues that were not before the HSO.

[50] The respondent referred to the work description of BSOs such as the appellants, which indicated the risks faced by BSOs in the course of their duties.

[51] The respondent’s expert witness, Dr. Robert Gervais, of the Public Health Agency of Canada, made the following points in his testimony:

• Not all exposures to infectious microorganisms such as bacteria and viruses lead to a transmission of infection due to the many factors involved such as the characteristics and numbers of microorganisms, the way the microorganisms are transferred and the integrity of the host’s defences.

• To cause infection through spitting, the saliva must contain a sufficient number of microorganisms and the saliva must contact the mucous membranes or breaks in the skin of the person spat upon.

• The risk of contracting HIV from saliva is negligible unless the saliva contains blood. Even so, the risk of infection by HIV from infected blood contacting mucous membranes is estimated to be less than 1/1000 (0.09%).The risk of transmission is even lower if the infected blood contacts an individual’s broken skin.

• There are no known cases of hepatitis B being transmitted through saliva alone, unless the saliva contains blood. The hepatitis B vaccine is very effective in preventing infection.

• There are no known cases of hepatitis C being transmitted through saliva alone. Where saliva contains blood, there have rarely been cases where hepatitis C is transmitted when the saliva contacts mucous membranes, and no evidence hepatitis C is transmitted by way of contact with broken skin.

• Tuberculosis bacteria are spread through the air when a person with active TB coughs or sneezes. For transmission to occur there would have to be a prolonged exposure of many days, months or even years. The transmission of TB through spitting is unlikely, particularly when a person is not showing active symptoms of disease.

• The Routine Practice and Additional Precautions for Preventing the Transmission of Infectious Disease in Healthcare Settings is intended for those working in a healthcare setting.

[52] Ms. Rhonda Raby, Chief of Operations for CBSA at the airport, provided evidence about the procedure for detaining travelers. A detainee is brought to a holding cell by two BSOs. The detainee may be handcuffed en route but handcuffs are removed once the traveler is in the cell. BSOs are provided with pepper spray, batons, handcuffs, Kevlar gloves and N95 masks. The N95 masks were kept in the secondary inspection area, the superintendent’s office and in the storeroom.

[53] Ms. Raby stated that BSOs have a duty to intervene if a traveler is harming him or herself, but at no time are BSOs expected to do so at risk to their own safety.

[54] As the employer co-chair of the OHS committee, Ms. Raby met with HSO Wells and the two appellants on October 20, 2012, to discuss the circumstances of the work refusal. It was her understanding that BSO Donohue was told by another BSO that traveler #1 had bitten someone. BSO Donohue’s decision to refuse work was based on information given to him from another BSO. She said that traveler #1 was compliant once she was in the cell and was held overnight without incident.

[55] Ms. Cathy Christenson, Senior Programming Advisor for CBSA described the Control and Defensive Techniques (CDT) training provided to BSOs. CDT training includes an initial eight day course, refresher training every three years and an 18 day firearms course. BSOs are provided with the fundamental skills to conduct a risk assessment and decide a course of action. A BSO has discretion to choose the best intervention in the circumstances. The choice of intervention may vary by BSO. When engaged in risk assessment, BSOs take into consideration situational factors, subjective behaviours, officer’s perceptions and tactical considerations.

[56] Regarding cell extractions, Ms. Christenson stated that in her 19 years of experience most travelers are cooperative and that a BSO would not normally require more than handcuffs to remove a traveler from a cell.

[57] Ms. Christenson stated that it is difficult to simulate a holding cell in training scenarios. While there is no specific training on cell extraction, BSOs are trained on the skills required to perform cell extractions. BSOs are taught to establish a plan prior to entering a cell. One BSO might distract the occupant while another BSO gained control over the occupant. A baton, OC spray and the “closed mode strike technique” could be used in a cell to subdue the occupant.

[58] Regarding the effective use of a baton in a holding cell, the respondent’s position is that the evidence of Christenson, Raby and Carson showed that a baton can be swung, and where it cannot, the butt end of the baton can be used. Ms. Carson said that in correctional institutions, batons are used in cells.

[59] Ms. Christenson stated that the size of the traveler and the number of BSOs present are factors to be taken into consideration when assessing the risk.

[60] Ms. Christenson stated that training provided in correctional institutions is specific to correctional institutions, a situation very different from an airport setting.

[61] The right to refuse to work is an emergency measure. It is not meant to be used to address long standing problems as noted in Stone v. Canada (Correctional Service), 2002 C.L.C.A.O.D. No. 27 (Stone):

[51] As is stands today, the right to refuse provisions in the Code are not meant to address long standing problems such as the problems identified by Mr. Stone in the instant case. The right to refuse 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 it is a normal condition of employment. This statement alone is fraught with consequences for correctional officers. Given that the likelihood of encountering violence in 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 other than in a specific exceptional circumstance.

[62] The test for “danger” under the Code has been set out in Canada Post Corporation v. Pollard, 2007 FC 1362, affirmed 2008 FCA 305 (Pollard):

• The existing or potential hazard or condition, or the current or future activity in question will likely present itself;

• An employee will be exposed to the hazard, condition, or activity when it presents itself;

• Exposure to the hazard, condition or activity is capable of causing injury or illness to the employee at any time, but not necessarily every time; and

• The injury or illness will likely occur before the hazard or condition can be corrected or the activity altered.

[63] According to the respondent, the evidence shows that:

• Traveler #2 did not bite, nor did she attempt to bite, either BSO Donohue or Burke.

• Traveler #2 did not spit upon, nor did she attempt to spit upon, either BSO Donohue or Burke.

• Neither of the BSOs had any information to believe that traveler #2 had an infectious disease.

• Traveler #2 was compliant once she was placed in the cell and remained overnight without incident.

• At no time was either BSO Donohue or Burke in the cell with traveler #2.

• At no time were either of the BSOs required to remove traveler #2 from the cell.

• BSO Burke had no direct interaction with traveler #2. He merely “supported” BSO Donohue’s work refusal.

• BSO Donohue’s concern was “what could happen”.

• No illness or injury occurred to a BSO as a result of spitting or as a result of performing a cell extraction.

Normal condition of employment

[64] If is determined that not having spit shields or specific training on cell extractions represented a “danger”, then the respondent’s position is that this “danger” is a “normal condition of employment” as set out in paragraph 128(2)(b) of the Code.

[65] A “normal condition of employment” is the residual danger that cannot be eliminated despite any safety measures taken by the employer, citing D. Morrison et al. & C. McDonnell et al. v. Canada Post Corporation, Decision No.: OHSTC-09-032, paragraphs 218-220, 337 and 343-344.

[66] As indicated in the BSO work description, there is an element of danger for BSOs. The latter deal with a degree of unpredictability of human behaviour. The respondent provides extensive and on-going CDT training as well as PPE in order to keep employees safe. The keystone of the training is the Intervention Model which teaches BSOs how to identify risks and actively manage situations. Whatever residual risk is present is a danger that is a normal condition of employment.

[67] The respondent states that the issues in this case were being addressed in another forum in the work place. The evidence of Ms. Morgan was that the issues regarding the provision of spit shields and training on cell extraction were before the OHS committee prior to the work refusals on October 12, 2012. The OHS committee has referred the matter to the Policy committee. The respondent believes this is the proper manner in which such issues should be addressed.

[68] The respondent believes that the decision that a danger does not exist rendered by HSO Wells should be confirmed.

C) Reply

[69] Since the employer and the employees’ appeals were heard jointly, both parties were given the opportunity to submit reply submissions.

Appellant’s reply

[70] In response to the respondent’s argument that the appellants’ reference to “confined spaces” raises new issues, the appellant’s reply that they mean “limited spaces”, not “confined spaces” as defined in the Regulations.

[71] In response to the respondent’s argument that references to bodily fluids other than saliva, and to areas other than holding cells, raise new issues, the appellants referred to the decision in Brink’s Canada Limited v. La Croix, Stewart and Faulds, 2015 OHSTC 2 (Brink’s) at paragraph 21:

This, however, does not mean that in reviewing the decision or direction issued at another level, an appeals officer cannot receive evidence that would go beyond what the health and safety officer would have based its initial conclusion on, conditional upon such additional information satisfying evidentiary requirements and being relevant to the issue at hand, in the present cases whether a "danger" exists or existed. In acting de novo, an appeals officer gets to take a fresh look at what has been previously concluded by a health and safety officer and in doing so, may receive evidence that would not have been provided to the health and safety officer. There is actually no restriction as to what such additional information may be, short of satisfying on a balance of probabilities and, where the issue is whether "danger" exists, that such information be presented as part of the constellation of elements that would be considered generating a "danger" within the meaning of the Code and thus pertain to the merits or substance of what needs to be determined by the appeals officer.

[72] Based on the decision in Brink’s, the appellants believe that examples given of incidents involving areas other than holding cells are relevant as such areas pose concerns regarding training and equipment that are similar to the concerns the appellants have about holding cells. The examples involving bodily fluids other than saliva are relevant, as in all cases a traveler is using a bodily fluid to resist detention and the means of protection against the bodily fluids are in most cases identical.

[73] In response to the respondent’s statements that the incidents cited by the appellants did not result in injury to the BSOs involved, the appellants’ position is that the lack of injury is not relevant as the Court in Verville held that for a “danger” to exist the condition or activity does not have to cause injury every time the condition or activity occurs. The condition or activity need only be capable of causing injury at any time but not necessarily every time.

[74] Regarding the location of the spit shields and the respondent’s allegation that BSOs Burke and Morgan never enquired about their location, the appellants state that the BSOs’ testimony was that they did not get a reliable answer from management about their location; they did not testify that they never inquired into the spit shields’ location.

[75] Contrary to the respondent’s position, an examination of the protocols, training and equipment of other agencies is relevant as such examples illustrate a gap in the respondent’s measures; a demonstration that the respondent has not taken sufficient steps to address the dangers associated with operating in holding cells.

[76] Contrary to the respondent’s position that BSO Donohue was not tasked with watching traveler #2 and therefore was never in a situation of danger, the appellants state that:

• BSO Donohue’s notes indicate that Superintendent Desrochers had him “relieved” so to remove him from the situation; there would have been no need to “relieve” BSO Donohue if he was not going to be required to supervise traveler #2.

• BSO Donohue testified he was told by a supervisor he would likely have to watch over traveler #2.

• The requirement to supervise travelers is a regular task for a BSO.

[77] In any event, the cases hold that employees are not required to actually perform a task before exercising the right to refuse work; they can refuse to work upon being notified that they will be required to perform a task, citing Air Canada v. Ron Andrews, Gerald Dodds and Terry Hanson, 2012 OHSTC 19 and Canada Post Corporation v. George Stout, 2013 OHSTC 39.

[78] The respondent does not believe BSO Burke’s work refusal was valid as he was simply supporting BSO Donohue’s work refusal. In reply, the appellants state that:

• BSO Burke engaged in a work refusal for the same reasons as BSO Donohue.

• BSO Burke never stated that his work refusal was based on a concern for BSO Donohue.

• BSO Burke’s notes referred to the risks to himself of the lack of training and PPE.

• BSO Burke was on site at the time of BSO Donohue’s work refusal.

• BSO Burke had a duty to assist BSO Donohue if the latter was in trouble, and in doing so, BSO Burke would face the same problems as BSO Donohue.

[79] Moreover, the respondent’s argument that BSO Burke’s work refusal should never have been considered by HSO Wells because the work refusal was invalid should have been raised at the beginning of the hearing before the merits of the case were addressed; it is too late to take this position. Laroche v. Canada (Attorney General), 2011 FC 1454, at paragraph 26.

[80] Regarding the respondent’s position that the danger faced by BSOs in holding cells is a “normal condition of employment” and therefore not the basis for a work refusal, the appellants reiterate their position that the respondent has not taken sufficient measures to be able to claim that the residual risk amounts to a normal condition of employment. Gresty at paragraphs 114-162 and P&O Ports at paragraphs 152-153.

[81] The respondent’s position that BSOs have sufficient training is contradicted by the evidence previously set out by the appellants.

[82] Contrary to the respondent’s position that BSOs have access to the equipment necessary to protect them from a spitting traveler, the appellants note that Ms. Raby’s testimony did not address the fact that N95 masks are not sufficiently stocked. While spit shields may be available in the workplace, the respondent’s managers have been unable to identify their location.

Respondent’s reply

[83] Regarding the appellants’ submission, the respondent had a number of comments:

• BSO Donohue was never alone with traveler #1. BSO Orujela was present with him.

• While Ms. Raby’s notes indicated that BSO Donohue had said that traveler #2 had spit, BSO Donohue testified that he had not seen traveler #2 spit, but had heard about it. There was no evidence at the hearing from anyone who had seen traveler #2 spitting.

• There was no evidence that BSO Donohue was directed to supervise traveler #2.

• There was no evidence that BSO Burke was asked to perform any duty or function in relation to traveler #2. BSO Burke had briefly observed traveler #2 entering and exiting the fingerprinting area. HSO Wells should not have entertained BSO Burke’s work refusal.

• BSOs do not “routinely face violent situations in confined spaces”. Of the eight incidents over four years that the appellants referred to as examples of violent situations, only four of them occurred in a cell.

• The scope of this appeal is limited to holding cells and not to “confined spaces” generally. “Confined space” has a specific meaning as set out in section 11.1 of the Regulations, which is inapplicable to the holding cells under consideration in this case.

• With respect to the November 5, 2011 incident cited by the appellants, there was no evidence about direct contact with bodily fluids and no indication a BSO was harmed thereby.

• With respect to the November 21, 2012 incident, it occurred in a bathroom, not a cell, and there was no indication of harm to a BSO.

• There was no indication of harm to a BSO in the January 2, 2015 incident.

• The January 2012 incident did not occur in a cell.

• There was no indication of harm to a BSO in the January 17, 2012 incident.

• With respect to the February 6, 2012 incident, it took place prior to the traveler being placed in a cell.

• There was no indication of harm to a BSO in the August 24, 2015 incident.

• The July 26, 2015 incident did not occur in a cell, but in a bathroom. There was no evidence of infection due to the BSO’s contact with the traveler’s blood.

• There was no evidence that BSO Burke reported any of the incidents in which he said he had been spit upon in the past.

• In the spitting incidents relied upon by the appellants there was no evidence that harm to a BSO resulted.

• The Management Review Report of July 26, 2015 did not identify any gaps in training or equipment; hence there was no need to consider OC foam or shields.

• With respect to Ms. Raby’s statement that a BSO who fails to come to the assistance of a fellow BSO under threat may be subject to discipline, this would not apply if the BSO would be putting themselves in danger not inherent to their job requirements.

• The spit shields had been present for four years. BSOs Donohue and Morgan said they did not know their location. It is questionable whether the BSOs felt the spit shields were critical when they did not inquire about their location during the four years.

• The issue as to whether there are better protocols, training and equipment to address the risks associated with holding cells is outside the scope of the appeal.

Analysis

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

128. (1) Subject to this section, an employee may refuse to use or operate a machine or thing, to work in a place or to perform an activity, if the employee while at work has reasonable cause to believe that

1. a) the use or operation of the machine or thing constitutes a danger to the employee or to another employee;
2. b) a condition exists in the place that constitutes a danger to the employee; or
3. c) the performance of the activity constitutes a danger to the employee or to another employee.

[85] At the time of the refusal to work the concept of “danger”^{Footnote 1} was defined in subsection 122(1) of the Code as follows:

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

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

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

[…]

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

[87] HSO Chris Wells made a decision on November 5, 2012, that a danger did not exist in the appellants’ circumstances. The appellants appealed the decision pursuant to subsection 129(7):

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

[88] Subsection 146.1(1) of the Code sets out the authority of an appeals officer when an HSO’s decision that a danger does not exist is appealed. I may vary, rescind or confirm the decision that a danger does not exist:

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

1. a) vary, rescind or confirm the decision or direction; and
2. b) issue any direction that the appeals officer considers appropriate under subsection 145(2) or (2.1).

[89] I will first deal with the preliminary issues raised by the respondent regarding the scope of the inquiry. The respondent is of the view that the appellants may not raise issues regarding bodily fluids other than saliva and issues regarding “confined spaces”, as these issues were not before HSO Wells at the time of his investigation. I do not believe that reference to bodily fluids other than saliva is raising new issues. It is clear that HSO Wells was considering the issue of harm to BSOs from violent detainees in holding cells in general and harm from a variety of bodily fluids is a subset of the main concern, not a new separate issue.

[90] The appellants were using the term “confined space” in a non-technical generic manner. They made no reference to the definition under the regulations, nor did they refer to specific requirements for confined spaces in the regulations. They used the term “confined space” the way any layperson would use the term. It is clear that HSO Wells was focused on the potential harm BSOs faced entering a holding cell, which is a relatively small, cramped area within the non-technical meaning of “confined space”. To be clear, the requirements of the regulations regarding “confined spaces” were not an issue in this case, and reference to “confined spaces” by the appellants is not the raising of a new issue not considered by HSO Wells. While evidence provided by the appellants about incidents involving limited spaces other than holding cells may be relevant to some degree, the case before us concerns danger associated with the traveler in the holding cell at the time of the work refusals.

[91] The issue that needs to be resolved in this appeal is whether a danger existed for the appellants at the time of their work refusals. To decide this issue, I will apply the four-part test developed in Pollard which requires the following:

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

[92] At the time of the work refusal, what was the probability that the appellants would be harmed in specific ways if the appellants had continued to work? Considering the situation of BSO Donohue first, what was the risk to BSO Donohue from the traveler in the holding cell? I accept that BSO Donohue was assigned, or about to be assigned, the task of supervising the traveler in the cell at the time of his work refusal. I accept that an employee does not have to have begun the activity that may cause harm; a work refusal may commence when an employee is assigned or is imminently to be assigned the activity. At the time of his refusal, there were several possibilities in sequence:

1. The possibility that the traveler would behave in the cell in such a way that BSO Donohue might have to enter the cell to subdue the traveler or extract the traveler from the cell.
2. The possibility that BSO would enter the cell.
3. The possibility that the traveler would then behave in a manner that could cause injury or illness to BSO Donohue.
4. The possibility that BSO Donohue would be injured or become ill by such behaviour.

[93] At the time of his refusal BSO Donohue did not know that the traveler would remain compliant while in the cell. The fact that the traveler did not become violent has some small relevance to the question of whether her potential for violence was accurately gauged at the time of the refusal but is not determinative.

[94] The more important factors concern the traveler’s behaviour prior to the work refusal. I accept that, while he did not directly observe the traveler in the fingerprint room, he did hear from co-workers that she was violent, had spit at a BSO and had tried to bite a BSO. It is reasonable to give credence to comments by trusted, experienced co-workers when an employee is thinking about exposure to a hazard. I also accept that BSO Donohue observed that, or was informed that, the traveler struggled leaving the fingerprint room. Given what BSO Donohue believed at the time of his refusal, there was a reasonable expectation that the traveler would become violent in her cell to a degree that it would be an issue whether the attending BSO should enter the cell. If the traveler were behaving in a way that could cause significant injury to herself, CBSA would have a responsibility to prevent her from harming herself.

[95] It is not necessarily the case that a BSO or BSOs would enter the cell themselves. It’s possible that the police could be called and that the police alone could enter the cell. That is a possibility. But even if the police were called, the police have discretion. A traveler wielding a sharp object as a weapon in a public place like a washroom is a different scenario than an unarmed traveler already detained in a holding cell. It is more reasonable that given the immediacy of harm to herself, and the scope of a BSO’s duties, a BSO or BSOs would enter the cell. I believe the first two elements of the Pollard test are satisfied.

[96] If BSO Donohue were to enter the cell because of the traveler’s behaviour, is the third element of the Pollard test satisfied? Would the exposure to the hazard, condition, or activity be capable of causing injury or illness to the employee at any time, but not necessarily every time? It was the appellant’s contention that if they had received better training about entering a cell and subduing or extracting a traveler, and that if they also had better PPE, there would have been no danger. There would always be some risk, but the risk would not amount to the hazard being a danger. Without such training and PPE would there be a reasonable expectation of injury or illness if BSO Donohue entered the cell?

[97] This is a circumstance where the fourth element of the Pollard test can be considered simultaneously with the third element. Even though time may be pressing, it would be up to the BSOs when exactly they entered the cell. They would have some time to assess the situation and decide on a course of action. This is not a scenario where, suddenly and without warning, a detainee might be violent.

[98] There was evidence at the hearing that BSOs receive training on how to assess and decide upon a course of action, that they receive training on how to handle violent or non-compliant individuals, and that they have uniforms, boots, gloves, batons and OC spray. The evidence was that BSO supervise a traveler in a cell in pairs. Other BSOs would be available on short notice. It is very unlikely that BSO Donohue would have to enter a cell alone. While a cell is a cramped environment at least three or four BSOs could enter at the same time.

[99] The appellants were of the belief that their training focused on how individual BSOs handled non-compliant individuals and not on a team approach. That might seem relevant on the face of it, but there was no evidence as to what additional special techniques would be relevant for such a team approach. It was evident that BSOs do have experience working together to handle detainees; the group effort to subdue a traveler in order to obtain fingerprints would be an immediate example.

[100] The appellants were also of the opinion that batons cannot be used effectively in a cramped space such as a holding cell. It seems rather obvious that taking a full swing at an inmate with a baton would not be the first step upon entering a cell, particularly where the concern is initially to avoid harm to the inmate. Various holds, strikes and blocks would be a first consideration, and the evidence was that BSOs are trained in such movements. The BSOs in the fingerprint room did not hit the travelers with batons. There was evidence that a baton could be used fully in a cramped space and testimony that a baton could be used effectively in a cramped space without needing to have room to take a full swing at the inmate. The butt end can be used. The baton can be used to keep someone beyond arm’s length.

[101] At the hearing, mention was made of body shields. An inmate could be pressed against the wall to limit the inmate’s movement. It was the appellants’ witness, Mr. Villeneuve, who said that a body shield should be available. The appellants’ witness, Ms. Carson, said that correctional officers in provincial institutions have the use of body shields. Regarding prisons, there was no evidence as to how often body shields are deemed necessary, how effective they are in a cramped space or whether the risks from travelers are similar to the risks from prison inmates. Many prison inmates have a history of violence, mental health problems, substance abuse problems and gang membership.

[102] The risks seem categorically different. It does not seem obvious that a body shield would be effective if the traveler was not on his or her feet at the time of entry. The use of a body shield as a first response to prevent a traveler from harming him or herself seems like an excessive use of force. If the situation were such that a body shield were necessary - a large, fit individual, under the influence of drugs and having shown signs of violence beyond mere struggling to resist fingerprinting - that might be a scenario where the police might be called for assistance. That was certainly not the case here. It is hard to imagine a BSO using a body shield against the traveler in question.

[103] BSOs are equipped with OC spray. There is a foam version, which BSOs do not have, which was said to be less likely to cause cross-contamination of the BSO using it. This seems like a relatively minor concern. OC spray is widely used by various public safety officers in many circumstances where there is some contact by the user with the spray. While uncomfortable, it is not at all like getting a direct face full of the spray, even which does not cause more than extreme discomfort. In any event, it is hard to imagine that BSOs entering the cell with this traveler would resort to the use of OC spray or foam as a first resort.

[104] A major concern of the appellants was exposure to saliva from spitting. In addition to the expert witnesses at the hearing, the respondent cited the 2012 decision in R. v. Ratt, 2012 SKPC 154 (Ratt). To reiterate, the Court in that case stated: “there is no evidence [...] of any documented, verifiable transmission of any disease to a police officer in a spitting incident”. The appellants did not cite any caselaw to the contrary. However, in the Saskatchewan Court of Appeal decision in R. v Charlette, 2010 SKCA 78 (CanLII), Madame Justice G. Jackson stated: “Spitting on someone is a particularly distasteful and harmful form of assault. It is almost always accompanied by the veiled or express threat of transmitting a communicable disease. The possibility of contracting a disease is real [...]”. In R. v. Natomagen, 2016 SKPC 108 (CanLII) R.J Lane, J. stated:

The judgment in R. v. Ratt, supra, seemed to be based primarily on the conclusion of the learned trial judge that there was virtually no risk of diseases being transmitted by sputum or by blood. With all due respect, I do not agree with that analysis and it would seem that the Saskatchewan Court of Appeal in R. v. Charlette, supra in para. 9 as referred to in paragraph 15 of this decision does not either.

[105] There are many other administrative and court decisions involving risks from spitting that were not submitted by the parties in this case. In most of them there is actual spitting and in some cases blood is involved. There are varying degrees of expert evidence in such cases. The point to be made is that the very strong statement about the risks of disease transmission in Ratt appears definitive and categorical on its face, but should not be taken as such.

[106] I believe I must focus on the facts of this case and on the expert testimony of the two expert witnesses. The evidence from both expert witnesses was that the probability of a BSO becoming ill from being spit upon by the traveler was extremely low. The traveler would have to spit. The spit would have to reach the mucous membrane (e.g. eye) of the BSO. The spit would have to have blood present to have much of a chance of causing an infection. Very importantly, there would have to be a probability that a spitting traveler was actually infected with a transmissible disease. In this case, there was no sign that the traveler was infected with a disease. There was no evidence that there was blood in the saliva that the traveler expectorated in the fingerprint room. There was no evidence that BSO Donohue suffered from broken skin or open wounds. It is true that the traveler could puncture a BSO’s skin through biting. But once again, this is not a scenario where suddenly and without warning there was a reasonable expectation of a successful bite. A BSO entering the cell would know in advance that this was an individual with a propensity to bite, much reducing the chance of a successful bite.

[107] I do not wish it to be understood that I am denigrating or downplaying the seriousness of spitting as an occupational concern. It is disgusting, it may constitute an assault and it can cause stress from worry. In some circumstances there is a small chance of disease transmission. It is regrettable that some employees such as BSOs must deal with such situations in the course of their work.

[108] But at the end of the day, it cannot be said that at the time of BSO Donohue’s work refusal there was a reasonable expectation of illness or injury to him from spitting by the traveler in the cell. I do not believe the third and fourth elements of the test in Pollard are satisfied.

[109] As for BSO Burke’s work refusal, the respondent believes that HSO Wells should not have entertained it as a legitimate work refusal for the reasons stated above. I am of the view that an employee can come to a conclusion about risk based at least in part on the comments of trusted and experienced co-workers, as in the case of BSO Donohue relying on comments from fellow BSOs about the traveler’s conduct while in the fingerprinting room. BSO Burke’s position is somewhat more attenuated than BSO Donohue’s situation. I accept that BSO Donohue was assigned or was imminently to be assigned the job of supervising the traveler in the holding cell. There was no evidence that BSO Burke was assigned or was to be assigned that duty. It can be said that BSO Burke’s refusal was in support of BSO Donohue’s work refusal. It is the case that BSO Burke said that he could be involved in coming to BSO Donohue’s assistance should the latter need to enter the cell and should he require assistance. However, there was no evidence at the hearing about BSO Burke’s situation that night that would support a conclusion that he would have been a BSO called upon to assist BSO Donohue.

[110] In any event, even if it were to be concluded that BSO Burke was in the same relative position as BSO Donohue in terms of likelihood of supervising the traveler in the cell, the same conclusion reached above would apply -- there was no reasonable expectation of harm or injury to BSO Burke at the time of his work refusal.

[111] Since I have concluded that there was no danger to the appellants on October 19, 2012, there is no need to determine whether the alleged danger was a normal condition of employment.

Decision

[112] For these reasons, I confirm the decision that a danger does not exist by HSO Wells of November 5, 2012.

Peter Strahlendorf

Appeals Officer