2017 OHSTC 6

Date: 2017-03-29

Case No.:
2012-79
2012-73

Between: Canada Border Services Agency, Appellant and Brian Donohue & Robert Burke, Respondents

Indexed as: Canada Border Services Agency v. Donohue

Matter: Appeal under subsection 146(1) of the Canada Labour Code of directions issued by a health and safety officer.

Decision: The directions are confirmed.

Decision rendered by: Mr. Peter Strahlendorf, Appeals Officer

Language of decision: English

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

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

Citation: 2017 OHSTC 6

Reasons

[1] This case concerns an appeal brought under subsection 146(1) of the Canada Labour Code (the Code) against two directions issued by Health and Safety Officer (HSO) Chris Wells on October 23, 2012.

Background

[2] The directions were issued following HSO Wells’ investigation into two related refusals to do dangerous work.

[3] 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. The respondents, Donohue and Burke, were the two CBSA employees who engaged in work refusals.

[4] On the evening of 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. 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.

[5] At 12:40 am on October 19, 2012, BSO Donohue was asked to watch traveler #1 while traveler #2 was being fingerprinted. The BSOs were not able to fingerprint traveler #2 because she became violent. She was taken to a Customs detention area in the airport and put in a holding 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.

[6] 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 detained in the holding cell in the Customs detention area. 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. 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.

[7] 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).

[8] 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:

BSOs are equipped with pepper spray, baton, handcuffs, protective vests and steel-toed boots.
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.
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.
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.
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.
The cells in the Customs detention area accommodate an overnight stay. They have a toilet and a place to lie down.
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.

[9] 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. BSOs Donohue and Burke appealed the decision that a danger does not exist.

[10] HSO Wells issued two directions to the employer on October 23, 2012 regarding this matter.

IN THE MATTER OF THE CANADA LABOUR CODE
PART II – OCCUPATIONAL HEALTH AND SAFETY

DIRECTION TO THE EMPLOYER UNDER SUBSECTION 145(1)

On October 20, 2012, the undersigned health and safety officer conducted an investigation in the work place operated by Canada Border Services Agency, being an employer subject to the Canada Labour Code, Part II, at Toronto Pearson International Airport Terminal III, Mississauga, Ontario, L5P 1A2, the said work place being sometimes known as Canada Border Services Agency.

The said health and safety officer is of the opinion that the following provision of the Canada Labour Code, Part II, has been contravened:

No. / No: 1

Paragraph 125.(1)(z.04) – Canada Labour Code Part II.

Without restricting the generality of section 124, every employer shall, in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls the activity, where the program referred to in paragraph (z.03) does not cover certain hazards unique to a work place, develop, implement and monitor, in consultation with the work place committee or the health and safety representative, a prescribed program for the prevention of those hazards that also provides for the education of employees in health and safety matters related to those hazards;

Section 19.4 – Canada Occupational Health & Safety Regulations

The employer shall identify and assess the hazards in the work place in accordance with the methodology developed under section 19.3 taking into account

(a) the nature of the hazard;

(b) the employees’ level of exposure to the hazard;

(d) the effects, real or apprehended, of the exposure on the health and safety of employees;

(e) the preventive measures in place to address the hazard;

(f) any employee reports made under paragraph 126(1)(g) or (h) of the Act or under section 15.3; and

(g) any other relevant information.

The employer has failed to develop a process to identify and assess the hazard that an individual may pose to an officer that is detained in a cell. The employer relies solely on an officer’s discretion to assess whether or not a detained individual may pose a hazard that the officer is not trained or equipped to deal with.

Therefore, you are HEREBY DIRECTED, pursuant to paragraph 145(1)(a) of the Canada Labour Code, Part II, to terminate the contravention no later than December 13, 2012.

IN THE MATTER OF THE CANADA LABOUR CODE
PART II – OCCUPATIONAL HEALTH AND SAFETY

DIRECTION TO THE EMPLOYER UNDER SUBSECTION 145(1)

The said health and safety officer is of the opinion that the following provision of the Canada Labour Code, Part II, has been contravened:

No. / No: 1

Paragraph 125.(1)(l) – Canada Labour Code Part II.

Section 12.6 – Canada Occupational Health & Safety Regulations

Where there is a hazard of injury to the eyes, face, ears or front of the neck of an employee in a work place, the employer shall provide eye or face protectors that meet the standards set out in CSA Standard Z94.3-M1982, Industrial Eye and Face Protectors, the English version of which is dated May, 1982 and the French version of which is dated February, 1983.

The employer has failed to provide the necessary face and eye protection against the threat or hazard of an officer being subjected to a spitting individual.

Therefore, you are HEREBY DIRECTED, pursuant to paragraph 145(1)(a) of the Canada Labour Code, Part II, to terminate the contravention no later than December 13, 2012.

Further, you are HEREBY DIRECTED, pursuant to paragraph 145(1)(b) of the Canada Labour Code, Part II, within the time specified by the health and safety officer, to take steps to ensure that the contravention does not continue or reoccur.

Issued at Toronto, this 23rd day of October, 2012.

[signed]

Chris Wells
Health and Safety Officer

[…]

To: Canada Border Services Agency
Toronto Pearson International Airport Terminal III
Mississauga, Ontario
L5P 1A2

[11] The employer, CBSA, appealed the directions on November 19, 2012, pursuant to section 146 of the Code.

[12] The employees’ appeal of the decision that a danger does not exist and the employer’s appeal of the directions were heard together on March 7 to 11, 2016 in Toronto. The employees’ appeal will be dealt with in a separate decision.

Issue

[13] I have to determine the following issue -- whether, as requested by the appellant, I should rescind the directions issued by HSO Chris Wells.

Submissions of the parties

A) Appellant’s submissions

[14] The appellant’s witnesses were:

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

[15] The appellant 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 respondents may not raise new issues on appeal. Specifically, the respondents 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.

[16] In this regard, the appellant relied on the decision in Fletcher v. Canada (Treasury Board), 2002 FCA 424, paragraphs 20, 21 and 38, wherein the Court said that an appeal is not a vehicle for an employee have issues adjudicated that were not before the HSO.

[17] In terms of the facts, the appellant referred to the work description of BSOs such as the respondents, which indicated the risks faced by BSOs in the course of their duties.

[18] The appellant’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.

[19] 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.

[20] 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.

[21] 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.

[22] 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.

[23] 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.

[24] Regarding the effective use of a baton in a holding cell, the appellant’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.

[25] 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.

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

[27] According to the appellant, 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.

[28] 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 appellant 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.

[29] The appellant submits 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 appellant believes this is the proper manner in which such issues should be addressed.

Direction #1 - contravention of paragraph 125(1)(z.04) of the Code and section 19.4 of the Canada Occupational Health & Safety Regulations (the Regulations).

[30] HSO Wells stated the following as the particulars of the appellant’s contraventions:

[31] The appellant’s position is that paragraph (z.04) has no application to the situation at hand because there is no hazard unique to the airport that is not encompassed by a Job Hazard Analysis, dated June 2003, performed pursuant to paragraph (z.03).

[32] The appellant’s witness, Ms. Raby, testified that the Job Hazard Analysis performed pursuant to paragraph (z.03) did not refer specifically to cell extraction. Nevertheless, a risk analysis regarding cell extraction was encompassed by the comprehensive Job Safety Analysis of June 2003.

[33] In the alternative, the appellant’s position is that it did establish a process to identify and assess the hazard that an individual detained in a cell may pose to a BSO. This process is covered by the provision of CDT training and related training.

[34] The CDT training is based on the Intervention Model. The purpose of this Model is to enable BSOs to assess the various situational factors around them. Those factors include the size of the place the BSO is operating in. The risk of injury in an enclosed space is one factor to be considered by a BSO when conducting a risk assessment in a given situation.

[35] The appellant states that, in any event:

Ms. Raby testified that in her 27 years with CBSA she was not aware of any incident requiring a BSO to perform a cell extraction;
BSO Donohue was aware of only two cell extractions in his 18 years with CBSA, and there was no supporting evidence concerning these events; and
BSOs do not “routinely face violent situations in confined spaces” as there were only four incidents occurring in a cell over a four year period, and in none of those incidents was there any evidence of injury to a BSO.

[36] Although the appellant appealed Direction #1, it prepared a Process Chart to comply with the direction. The Chart provides BSOs with an additional tool to use when they detain an individual. The Chart sets out the different options in the Intervention Model that a BSO should consider, including options when faced with violent individuals. In addition, the Chart refers to PPE that should be considered by BSOs depending on the traveler’s behaviour.

[37] The appellant believes that it has provided extensive training and appropriate PPE to BSOs to minimize the risk as much as reasonably possible in the circumstances, and therefore, there was no breach of paragraph (z.04).

Direction #2 - contravention of paragraph 125(1)(l) of the Code and section 12.6 of the Regulations

[38] The particulars of the appellant’s non-compliance were expressed in the direction as: “The employer has failed to provide the necessary face and eye protection against the threat or hazard of an officer being subjected to a spitting individual.”

[39] The appellant’s position is that BSOs have the necessary equipment to protect themselves against a spitting individual. Protection against bodily fluids other than saliva is outside the scope of the appeal.

[40] The appellant made the following points:

BSOs Burke and Donohue could not cite any incident where a BSO had contracted an infectious disease from a spitting traveler;
There was no other evidence of such incidents;
Ms. Raby testified that N95 respirators were available to employees in the work place;
Dr. Gervais testified as to the effectiveness of these respirators when being spit upon;
CDT training allows BSOs to anticipate the potential of spitting individuals and to then access the necessary PPE, including an N95 respirator;
The duties of a BSO involve dealing with a degree of unpredictability of human behaviour;
CBSA provides extensive and on-going CDT training as well as an array of PPE (batons, spray, handcuffs and N95 respirators);
The keystone of the training is the Intervention Model which teaches BSOs how to identify and assess risks and actively manage situations.

[41] In any event, it is the appellant’s position that it complied with Direction #2:

CBSA purchased spit shields for BSOs;
The spit shields have continued to be accessible in the work place;
To Ms. Raby’s knowledge, these spit shields have yet to be used by any BSO.

[42] With respect to the respondents’ position that a direction could be issued under section 12.9 of the Regulations, the appellant states that section 12.9 refers to a hazard “to or through” the skin. It does not apply to this situation as infectious diseases do not penetrate the skin but rather enter through mucous membranes or open wounds.

[43] The appellant believes there has been no breach of paragraph 125(1)(l) and therefore Direction #2 should be rescinded.

[44] Alternatively, since the evidence given at the hearing related only to the Pearson International airport, the direction should be varied to apply only to that work place with the CBSA.

B) Respondents’ submissions

[45] The respondents’ witnesses were:

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

[46] The respondents’ position is that the circumstances were such on October 20, 2012, that HSO Wells’ directions should be confirmed.

[47] 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 holding cell in the Customs detention area.

[48] 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 respondents believe that an adverse inference should be drawn regarding Ms. Raby’s testimony regarding the video.

[49] 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.

[50] The respondents 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.

[51] 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.

[52] While the respondents 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.

[53] The respondents’ 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.

[54] 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.

[55] 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 respondents 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).

[56] The respondents noted that the employer’s witness, Ms. 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 respondents’ view, the direction to reposition and wait is a contradiction and can result in confusion.

[57] 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 respondents 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.

[58] 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).

[59] The respondents’ 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.

[60] 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.

[61] 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.

[62] 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.

[63] The respondents note that the BSOs’ work description and a Job Hazard Analysis recognize the risk of contracting infectious diseases.

[64] The respondents’ 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).

[65] The appellant’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.

[66] The respondents 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.

Direction #1

[67] The respondents note that the appellant’s witness, Ms. Raby, testified that following the issuance of Direction #1, the appellant did no further work to comply with section 19.4 of the Regulations other than to prepare a flow chart setting out when to call the police for assistance.

[68] The respondents state that the appellant has always taken the position that BSOs should be able to extrapolate from their training when operating in a holding cell even though BSOs have expressed difficulty on many occasions in relying on their training with either the baton or the OC spray.

[69] Contrary to section 19.4 of the Regulations, the appellant has undertaken no adequate process to assess the circumstances in which force is exercised in a holding cell. The appellant has not taken any initiative to determine whether additional training or equipment might enhance the safety of BSOs when using force in a holding cell.

[70] The flow chart prepared by the appellant so as to comply with Direction #1 did not clarify when Peel Police should be contacted.

[71] The respondents cited the decision in Correctional Services of Canada and Union of Canadian Correctional Officers – CSN, 2013 OHSTC 11 at paragraphs 148-149 (Correctional Services). As in the case at hand, an HSO had issued a direction based on the contravention of paragraph 125(1)(z.04). Correctional Officers (COs) testified that they had received training on how to enter a prison yard during an emergency but that they still felt unqualified to enter a yard in part because of its odd shape. Although the employer had conducted a generic Job Hazard Analysis, the employer had failed to tailor one that was specific to the yard. The appeal officer confirmed the HSO’s direction stating:

[…] this matter would be properly resolved by not only conducting a JHA that takes into account the particular configuration of the yard at Millhaven Institution, but also the development and implementation of a hazard prevention program that specifically deals with the hazard(s) encountered within the context of this configuration. I am of the opinion that the issue would also be resolved if the above was done in consultation with the local health and safety committee.

[72] The respondents’ position is that BSOs are in similar situation as the COs in the Correctional Services decision. In spite of the appellant’s efforts to assess the generic hazards of the job, the appellant has failed to consider the particular risk posed by exercising force in the limited space of a holding cell. On this basis, Direction #1 should be confirmed.

Direction #2

[73] The respondents’ position is that the evidence showed that there is inadequate access by BSOs to face protection, such as N95 masks and face shields.

[74] In the respondents’ opinion, even though there may be a debate about the level of risk associated with the transmission of disease through saliva, it remains a hazard that needs to be addressed. The evidence also showed that BSOs may be exposed to other hazardous bodily fluids such as feces, urine, vomit and blood, all of which carry a risk of infection.

[75] The respondents state that BSOs are not asking to carry face protection all the time. They are asking that they be able to access the PPE in a timely manner in cases where there is a risk of exposure to bodily fluids.

[76] The respondents’ position is that the second direction could also be made under section 12.9 of the Regulations: Where there is a hazard of injury or disease to or through the skin in a work place, the employer shall provide to every person granted access to the work place

(a) a shield or screen;

(b) a cream to protect the skin; or

[77] It is the respondents’ position that Direction #2 issued by HSO Wells should be confirmed.

C) Reply

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

Appellant’s reply

[79] Regarding the respondents’ submission, the appellant 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 respondents 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 respondents, 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 incidents where he said he had been spit upon in the past.
In the spitting incidents relied upon by the respondents 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.

[80] At the hearing, the respondents gave their opinions as to the adequacy of their training but they did not provide any documentary evidence to support their opinions, such as statistical information, rates of injury or a comprehensive comparative analysis.

[81] The Brink’s Canada Limited v. La Croix, Stewart and Faulds, 2015 OHSTC 2 (Brink’s) decision supports the raising of new evidence not the raising of new issues, and the concern about bodily fluids other than saliva is a new issue.

[82] There are significant differences between limited spaces that are holding cells and limited spaces that are not holding cells. The controls and procedures established when a traveler is detained in holding cell are unlike the context in which other limited spaces exist.

[83] The fact that no injuries to BSOs resulted from the incidents cited by the respondents suggests that the training and PPE provided by the appellant is sufficient to address circumstances where the unpredictability of human nature is an issue.

[84] The fact that BSOs do not have the PPE that other law enforcement agencies have does not mean that the BSOs’ PPE is insufficient because an airport environment is different than, for example, a provincial correctional institution.

[85] The respondents’ concern about discipline being applied if they did not come to the assistance of a colleague in danger was misplaced, as Ms. Raby’s testimony was that discipline would be an issue if there was no assistance to a colleague when no danger existed and not otherwise.

[86] At no time has the appellant been advised by any representative of ESDC that it has not complied with HSO Wells’ directions. To suggest that the appellant should be taking further actions implies that ESDC has not properly enforced the Code.

[87] At no time did Ms. Raby testify that N95 masks were not sufficiently stocked, and there was no evidence that CBSA managers did not know the locations of the spit shields.

[88] The appellant concludes that HSO Wells’ directions should be rescinded.

Respondents’ reply

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

[90] In response to the appellant’s argument that reference to bodily fluids other than saliva and areas other than holding cells raises new issues, the respondents referred to the decision in Brink’s at para. 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.

[91] Based on the decision in Brink’s, the respondents 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 respondents 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.

[92] Regarding the location of the spit shields and the appellant’s allegation that BSOs Burke and Morgan never inquired about their location, the respondents 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.

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

[94] The appellant’s position that BSOs have sufficient training is contradicted by the evidence previously set out by the respondents.

[95] Contrary to the appellant’s position that BSOs have access to the equipment necessary to protect them from a spitting traveler, the respondents 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 work place, the appellant’s managers have been unable to identify their location.

[96] Contrary to the appellant’s position that, since the issues of training and PPE for cell extraction are before the Health and Safety Committee and “being adequately addressed in another forum”, the appeal should not address those issues, the respondents note that the direction predates the Committee’s involvement. The appellant ought not to be able to rely on the involvement of the Committee since the appellant has done very little to address the issues since 2012. Specifically, the appellant has not conducted further risk analyses.

[97] The appellant’s position is that paragraph 125(1)(z.04) is not applicable because the risks of exercising force in a holding cell were covered in the Job Hazard Analysis of June 2003. The respondents note that this JHA does not address the issue. Moreover, the JHA of September 2010 mentions that BSOs had concerns about their training and that standard operating procedures should be used.

[98] The appellant’s position is that BSOs have sufficient training so as to be able to identify and assess risks posed by an individual detained in a cell. The respondents’ position is that this training is insufficient for a number of reasons:

Batons and OC spray cannot always be relied upon in a holding cell because of the limited space;
BSOs have repeatedly raised concerns about operating in areas with limited space;
BSOs do not have access to PPE that other law enforcement agencies possess such as body shields and OC foam spray;
Multiple BSOs in an area with limited space is a challenge without adequate training and simulations;
BSOs cannot “tactically reposition” without fear of discipline in cases where colleagues are in danger;
CBSA intends to require BSOs with side arms to be the last resort in violent situations despite the gap in training;
The Chart the appellant referred to does not cover situations where there is risk of injury that is less than the risk of grievous bodily harm or death;
Calling Peel Police does not guarantee that the police will intervene in a timely manner, or at all;
CBSA does not always follow the Chart (e.g. during the July 25, 2015 incident, the superintendent called the ICET rather than the Peel Police); and
The respondents’ concern is about using force in the limited space of a holding cell and not solely about cell extractions.

[99] Ms. Raby testified that N95 respirators were available in the work place, but there was un-contradicted evidence that the N95 masks were not sufficiently stocked.

[100] While spit shields have been made available in the work place, CBSA managers have been unable to identify their location.

[101] The respondents conclude that the two directions of HSO Wells should be confirmed.

Analysis

[102] Subsection 146.1(1) of the Code sets out the authority of an appeals officer when an HSO’s direction is appealed. I may vary, rescind or confirm the direction:

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

(a) vary, rescind or confirm the decision or direction;

[103] I will first deal with the preliminary issues raised by the appellant regarding the scope of the inquiry. The appellant is of the view that the respondents 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.

[104] The respondents 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 respondents is not the raising of a new issue not considered by HSO Wells. While evidence provided by the respondents about incidents involving limited spaces other than holding cells may be relevant to some degree, the case before us concerns the adequacy of training and PPE associated with BSOs dealing with travelers detained in the holding cells.

[105] The analyses for determining whether there was a “danger” facing the respondents on October 19, 2012, and for determining whether the two directions issued by HSO Wells on October 23, 2012, are very different. The main issue for a “danger” analysis is risk – what was the possibility of harm to the respondents when faced with a potentially violent individual in a holding cell? Whether the employer has contravened sections of the Code or the Regulations has very little to do with risk per se, but very much to do with determining whether what the employer did or did not do prior to the HSO’s investigation fit within the meaning of the relevant provisions or not. Further, while events following the work refusals can have some weight when determining whether there was a danger at the time of the work refusals, such events have very little relevance for the question of compliance at the time of the HSO’s investigation. To be clear, whether or not, or to what degree, the appellant complied with HSO Wells’ directions is not within the scope of this appeal. It is a question for the Labour Program whether an HSO’s direction has been complied with.

Direction #1 Contravention of paragraph 125(1)(z.04)

[106] Direction #1 was based on paragraph 125(1)(z.04) which references paragraph (z.03). These two paragraphs read as follows:

(z.03) develop, implement and monitor, in consultation with the policy committee or, if there is no policy committee, with the work place committee or the health and safety representative, a prescribed program for the prevention of hazards in the work place appropriate to its size and the nature of the hazards in it that also provides for the education of employees in health and safety matters;

(z.04) where the program referred to in paragraph (z.03) does not cover certain hazards unique to a work place, develop, implement and monitor, in consultation with the work place committee or the health and safety representative, a prescribed program for the prevention of those hazards that also provides for the education of employees in health and safety matters related to those hazards;

[Underlining added]

[107] One argument the appellant has made is that paragraph 125(1)(z.04) is inapplicable because paragraph 125(1)(z.03) applies. The appellant says there is nothing unique about the hazards of detainees in holding cells at the airport. The appellant says it did a JHA under paragraph 125(1)(z.03) and that the JHA, while not specifically dealing with the adequacy of training and PPE when entering holding cells, covered the latter because of the JHA’s broad, generic nature.

[108] Paragraphs (z.03) and (z.04) both refer to the employer’s duty to develop, implement and monitor a program for the prevention of hazards as detailed in the Regulations. The details are found in section 19.1 to 19.8 of the Regulations. The main difference between the two paragraphs lies in who is to be involved. Paragraph (z.03) requires the employer to consult with the policy committee. In accordance with subsection 134.1(1) of the Code, if an employer employs 300 or more employees in total across the organization, it must establish a policy committee. CBSA has a policy committee. Because the policy committee is involved, the scope of the program to be developed by the employer covers the whole of the employer’s organization; all of its locations. But a particular work place may have a hazard unique to it and the organization-wide program may miss this hazard or may misunderstand it or underestimate its significance. That is why paragraph (z.04) exists. In such cases, the employer must, in addition to the hazard program provided in (z.03), develop, implement and monitor in consultation with a local work place health and safety committee a prevention program that covers the unique hazard.

[109] For example, a CBSA location on the border with Alaska may have a grizzly bear problem. No other CBSA has a bear problem. Assuming that the CBSA-wide hazard prevention program under (z.03) does not cover bears as a hazard, paragraph (z.04) would then apply. The local committee is consulted as the employer develops a program that includes an assessment of the bear hazard. As a result, there will be a “bear safety program” at the Alaskan border location.

[110] Assuming for the moment that the appellant is correct that paragraph (z.03) applies and not (z.04), then the question would be whether the appellant complied with paragraph (z.03). An examination of the 70 page document “Customs Inspectors and Superintendents Job Hazard Analysis, dated June 2003 reveals that the employer is correct -- there is nothing in it about the hazards associated with holding cells at the airport or at other locations. The JHA of 2003 is a CBSA-wide JHA. Of the 30 or so specific recommendations none of them is about hazards of holding cells. Two of the recommendations are about the need for local emergency plans, but nothing is said about the scope of such emergency plans. The JHA document might have recommended that local procedures for handling violent detainees in holding cells should be developed, but it did not. It might have recommended that each location go through the development etc. of a local hazard prevention program so as to comply with paragraph (z.04), but it did not. It cannot be said that the JHA of 2003 covered the adequacy of training and PPE when entering holding cells, either expressly, or implicitly.

[111] There is also the 40 page document Job Hazard Analysis 3 Final Report, dated September 10, 2010. This JHA is specific to BSOs. It is a CBSA-wide analysis. The very first specific recommendation states:

The CBSA should develop and implement standard operating procedures (SOPs) for the following Immigration and Refugee Protection Act (IRPA) processes:

Arrest and detention
Care and control of persons in custody
Search

[112] The JHA of 2010 did not itself contain a process for developing SOPs and did not itself contain any description of measures such as training and PPE for dealing with detainees in holding cells. It might have recommended that each location go through the development of a local hazard prevention program so as to comply with paragraph (z.04), but it did not. There was no evidence at the hearing of SOPs having to do specifically with the hazards of detainees in holding cells.

[113] The appellant’s position is that the CDT training given to BSOs represents compliance with the requirement to develop a hazard prevention program. It is said that the CDT training provides BSOs with the ability to assess the risks of particular situations and to decide on appropriate control measures in the circumstances. In particular, it is said that the CDT training is built around the Incident Management Intervention Model. Examining the content of the 8 day core CDT training, and the 5 day skills maintenance training that refreshes the core training, it can be said that the Incident Management Intervention Model is covered in 2.5 hours of the 60 hours of core training and 2 hours of the 37.5 hours of refresher training. The rest of the CDT training appears quite comprehensive in terms of techniques to control and subdue people. It covers the use of handcuffs, OC spray and batons. While it covers “vehicle extractions” it does not mention cell extractions. Nor does it mention expressly issues involving holding cells.

[114] The difficulty with the appellant’s position is that there are fundamental differences between the formal, in-depth hazard analyses the employer is responsible for under paragraphs (z.03) and (z.04) and the on-the-spot risk assessment that an employee must engage in in particular scenarios. Control measures such as training and PPE emerge as a result of a proper hazard analysis by the employer. Control measures are elements of the hazard prevention program that comes out of hazard analysis. The specific risk assessment that an employee is capable of, and the techniques and PPE the employee can then use, are the results of a proper hazard analysis and development of a hazard prevention program by the employer. What must be shown for compliance with either paragraph (z.03) or paragraph (z.04) is the process the employer went through that formed the basis for the Incident Management Intervention Model, the CDT training and the available PPE.

[115] The respondents’ position is that the CDT training and available PPE are not adequate to deal with violent detainees in holding cells. Maybe they are and maybe they are not. The point is that one cannot tell whether they are or not if the issues were not addressed in the process the employer must go through to comply with either paragraph (z.03) or (z.04). It is clear, however, that there was no evidence that the particular hazards of detainees in holding cells were the subject of analysis under either paragraph. The contravention that forms the basis of Direction #1 is not the lack of training or PPE to deal with detainees in holding cells. It is the lack of a hazard analysis by the employer that included the hazards of detainees in holding cells.

[116] In my opinion HSO Wells was correct in his determination that the facts do not demonstrate that the appellant had gone through the process that is at the core of paragraphs (z.03) and (z.04) such that the hazards of detainees in holding cells was assessed.

[117] But did HSO Wells make a mistake in citing paragraph (z.04) instead of paragraph (z.03)? The appellant says he did. The appellant says there is nothing unique about the hazards of detainees in holding cells at the airport relative to the appellant’s other locations. That depends on what “unique” means in the context of the Code. Going back to the example of the bear safety program, suppose there are two CBSA locations in which bears are a problem. Therefore bears as a hazard at either location is not a unique hazard. On that interpretation of “unique” the employer would not have to comply with paragraph (z.04). Hence, no bear safety program at all, unless the locations with bears can attract the attention of the organization-wide policy committee. A broader meaning of “unique” is “particular” or “specific”. The purpose of the Code, as stated in section 122.1, would best be served by a very broad meaning of “unique”. The purpose of paragraph (z.04) is to ensure that hazards specific to a particular location are not over-looked when an employer embarks on an organization-wide hazard analysis. This becomes very important when an employer has many locations scattered across the country. It is not necessary that a location should be the only one with the hazard. What is important is that the organization-wide process of hazard analysis, and the resulting hazard prevention program, might be too generic and not detailed enough for the purposes of protecting workers in a particular location.

[118] In this regard, the respondents’ citing of the Correctional Services decision is appropriate. The real issue in that case was that the hazard analysis that was done was not specific enough; it did not consider the peculiar shape of the Millhaven yard. It was not relevant that no other correctional institution has a similarly shaped yard. The appeals officer did not have to undertake a review of the shapes of all the other correctional institutions before concluding that the Millhaven yard was the only one that was an odd shape. What was important was that the hazard analysis and its results were too generic and not detailed enough.

[119] The respondents raised many issues concerning the adequacy of the training and PPE available when dealing with violent detainees in holding cells. It is fair to say that many of those issues were in existence at the time of HSO Wells’ investigation even if he did not consider them. What concerned HSO Wells was the MOU between the appellant and the Peel Police. It was not specific or detailed enough. It was also unique to the airport as that was the only CBSA location it covered. The HSO described the problem of when to contact the police as follows:

An MOU is in place with the Peel Regional Police that allows the CBSA to call for assistance with extremely violent or out of control individuals. Peel Regional Police have been called in the past to assist the CBSA and equip their officers with full riot gear in the event they are called to interact with a potentially violent individual.

There is no policy, procedure or any threshold as to when to call Peel Regional Police to assist. There is no risk assessment of an individual that is detained by the CBSA, to assess how to properly deal with a violent individual and if Peel Regional Police should be called to intervene. It is left to the discretion of the BSO to assess the situation and to inform his/her supervisor if they feel uncomfortable dealing with a particular situation.

[120] An examination of the MOU, dated December 19, 2001, between what is now CBSA and the Peel Regional Police, reveals 5 pages of details concerning the interaction between the two parties when CBSA turns over a detainee to the police. There is nothing in the document about the criteria CBSA should use when deciding to call for police assistance.

[121] The appellant developed a Chart to assist BSOs in making decisions when faced with violent individuals, including when to call the police. This Chart was the appellant’s compliance with Direction #1. There was no evidence of a hazard analysis that went into developing the Chart. The respondents are not satisfied with the Chart or how it has been used. Those concerns are not relevant to this appeal. Whether the appellant has complied with the direction is the Labour Program’s concern, not an appeals officer’s. The issue for me to decide is whether HSO Wells was correct in issuing the direction. Based on all the evidence and the reasoning set out above, I can only conclude that HSO Wells was correct. The appellant had not gone through a process of developing a hazard prevention program that considered the unique hazards of violent detainees in holding cells at the airport.

Direction #2 - contravention of paragraph 125(1)(l) of the Code and section 12.6 of the Regulations

[122] Direction #2 is based on the appellant’s contravention of paragraph 125(1)(l) of the Code and section 12.6 of the Regulations:

Section 12.6 – Canada Occupational Health & Safety Regulations

[123] The particulars stated by HSO Wells are: The employer has failed to provide the necessary face and eye protection against the threat or hazard of an officer being subjected to a spitting individual.

[124] To comply with Direction #2, the appellant has purchased spit shields. Whether this constitutes compliance with the direction is ESDC’s concern, not an appeals officer’s.

[125] Much of the evidence at the hearing about the hazard of spitting individuals had to do with possibility of harm and whether the appellants faced a “danger” at the time of their work refusals. For the purposes of this appeal of Direction #2, the probability of harm is not the key issue. As long as spitting is a hazard and the circumstances fit within the scope of the above paragraph and section, then the direction would be sound.

[126] The primary concern of the respondents was exposure to saliva from spitting. In addition to the expert witnesses at the hearing, the appellant 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 respondents 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.

[127] 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.

[128] 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. While the possibility of harm may not amount to a “danger” there is still a small chance of disease transmission. What jumps out from all the cases involving employees being spit upon is the severe anxiety and stress the employees go through, not knowing whether they will contract a serious disease. Health effects can arise from stress. Spitting may constitute an assault, and it is clear that employers have an obligation to reduce the risk of assault; a form of work place violence. As the respondents’ witness, Dr. Katz recommended, 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.

[129] At the time of the issuance of the direction, there were N95 masks available in the work place. Whether there were enough of them and whether they were easily available is not the main concern. An N95 mask does not cover the whole face and it does not cover the eyes. Broken facial skin is not the key issue. The key issue is the eyes.

[130] The eyes constitute a mucous membrane. As such they are a route of entry for pathogens into the body. The expert witnesses were both quite clear on this. One might argue that section 12.6 does not apply because it refers to “injury to the eye”, and the eye is only a portal into the body for an infectious microorganism. I would disagree. For many types of disease agents the infection begins in the eye and then spreads. Perhaps the greater harm occurs elsewhere in the body, but an infected eye is still an “injury” in my view. A generous interpretation of “injury to the eye” would better suit the purpose of the Code.

[131] The respondents’ suggest that a direction could be based on section 12.9 of the Regulations which states that “where there is a hazard of injury or disease to or through the skin in a work place, the employer shall provide to every person granted access to the work place (a) a shield or screen […]” The appellant disagrees on the basis that the eyes are not “skin”. I think “skin” in this context just means the outer surface of the body. In any event, technically eye cells are formed from epithelial cells, which are “skin cells”. I agree with the respondents on this point, but find it is unnecessary in the end to base a direction on section 12.9 as I believe section 12.6 applies.

[132] The appellant has argued that if the direction is essentially well-founded, since the evidence given at the hearing related only to the airport, the direction should be varied to apply only to that work place within the CBSA. There is nothing to indicate that this is a Canada-wide direction. The HSO has clearly identified the Pearson international airport as the work place to which the direction applies. The appellant's request is, in my view, unnecessary. There is no need to vary the direction.

[133] Based on all the evidence, I conclude that HSO Wells was correct in his finding that there was a threat of injury to eyes from spitting individuals and that Direction #2 was well-founded.

Decision

[134] For these reasons, I confirm the directions issued on October 23, 2012, by HSO Chris Wells.

Peter Strahlendorf
Appeals Officer

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Date modified:: 2017-07-04