2017 OHSTC 8

Date: 2017-05-18

Case No.: 2014-2

Between:

Kevin Gordon, Appellant (Respondent to Motion)

and

Correctional Service of Canada, Respondent (Applicant to motion)

Indexed as: Gordon v. Correctional Service of Canada

Matter: Motion to dismiss for mootness an appeal of a decision rendered by a health and safety officer under subsection 129(7) of the Canada Labour Code

Decision: The appeal is dismissed on the grounds of mootness

Decision rendered by: Mr.. Michael Wiwchar, Appeals Officer

Language of decision: English

For the appellant: Ms. Corinne Blanchette, Union Advisor, CSN

For the respondent: Mr.. Michel Girard, Counsel, Labour and Employment Law Group, Department of Justice Canada

Citation: 2017 OHSTC 8

Reasons

[1] This matter concerns an appeal filed pursuant to subsection 129(7) of the Canada Labour Code (the Code) by Mr. Kevin Gordon, a correctional officer at the Pacific Institution, Correctional Service of Canada (CSC). Mr. Gordon’s appeal is based on a June 6, 2014, finding that a danger does not exist following an investigation by Health and Safety Officer (HSO) Dave Montrose into the appellant’s work refusal of May 29, 2014. On October 20, 2016, CSC filed a preliminary objection seeking the dismissal of the appeal based on mootness.

Background

[2] On May 29, 2014, Mr. Gordon exercised his right under the Code to refuse to work when he was assigned to conduct an Escorted Temporary Absence (ETA) of an inmate attending a family member’s funeral. He stated the following grounds as the basis for his work refusal:

As a peace officer I refuse to partake in a non-security escort of an offender due partially to the fact this offender is medium security and do not believe all mitigating factors were not (sic) taken into account during wardens TRA.

[3] Mr. Gordon believes that given the inmate’s mental health assessment, this particular escort should have been qualified as a security escort which would have allowed him to carry a firearm. However, after assessing all the available information, the Warden allowed the ETA and decided that a non-security was appropriate in the circumstances given that the risk posed by this escort was deemed to be manageable.

[4] On June 6, 2014, HSO Montrose conducted an investigation into Mr. Gordon’s work refusal and decided that the ETA presented no danger to Mr. Gordon for the following reasons:

The question that had to be answered is have all the mitigating factors been considered as to whether there was an existing or future activity that “could reasonably be expected to cause injury or illness to a person” exposed to the inmate’s behavior during the ETA. In order for there to be a decision of danger the inmate’s behavior had to present a reasonable or imminent possibility of causing injury or illness to a person.

The employer’s hazard identification and assessment procedures considered all of the mitigating factors and determined that the risk from the inmate was manageable for an ETA.

The employee was willing to conduct the ETA providing it was secure with firearms and restraints. To justify a secure ETA, the employee had to prove that the inmate’s behavior would present a reasonable or imminent possibility of causing injury or illness to a person. The employee was not able to do this as his argument was speculative and inconclusive. Specifically the employee did not provide any concrete evidence of “events that could occur” that would increase the risk. Nor the fact that the inmate may be stressed at the funeral necessarily present an imminent risk.

Based on these conclusions, I decided that this ETA presented no danger.

[5] On June 11, 2014, Mr. Gordon filed a notice of appeal of the HSO’s finding that a danger does not exist.

[6] On October 20, 2016, the respondent raised the issue that the appeal has been rendered moot since the circumstances surrounding the employee’s work refusal will never be replicated as every decision concerning a request for an ETA is taken based on a set of unique circumstances. Moreover, the inmate who was the subject of the ETA (inmate A) has since been transferred from Pacific Institution to William Head institution.

Issue

[7] The issue raised by the present motion is whether the appeal has become moot since the escort has already occurred and the inmate has been transferred to another institution.

Submissions of the parties

A) Respondent’s submissions (Applicant to the motion)

[8] The applicant states that prior to an ETA decision, a parole officer must first make an assessment pursuant to Commissioner’s Directive (CD) 710-3. Then, based on the parole officer’s assessment which includes recommendations on how to conduct the ETA, the institutional head must make a decision to either proceed with a non-security escort, a security escort, or deny the escort altogether. In the present matter, a non-security escort was determined to be appropriate. A non-security escort falls under the application of rule CD-566-5, under which the institutional head also has to determine the level of supervision of the inmate at the time of the ETA, based on risk. The assessment of risk is based on various dynamic factors such as the inmate’s security classification, physical and mental health, behaviour as well as the purpose and destination of the escort and intelligence information.

[9] Because of the uniqueness of every situation, the applicant argues that any future ETA involving Inmate A would be based on an entirely different set of circumstances and would require a new decision with new parameters. The circumstances surrounding the May 29, 2014, work refusal would therefore never be replicated. The applicant asserts Mr. Gordon is no longer exposed to the alleged danger while at work; there is no live issue.

[10] The applicant refers to the Supreme Court of Canada’s judgment in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 (Borowski) which sets out the test for mootness, as well as numerous decisions rendered by appeals officers dismissing appeals on the grounds of mootness (See: Maureen Harper v. Canadian Food Inspection Agency, 2011 OHSTC 19, paras 29-37; Robert J. Wellon v. Canada Border Services Agency, 2011 OHSTC 28, paras 16 and 18; Tanya Thiel v. Correctional Service Canada, 2012 OHSTC 39, paras 66 and 68; Correctional Service of Canada v. Mike Deslauriers, 2013 OHSTC 41, paras 41-42 and 46; Samson v. Correctional Service of Canada, 2015 OHSTC 18 at para 43; and Gauthier v. Correctional Service of Canada, 2016 OHSTC 12 at para 38).

[11] Subsequent to the appellant’s initial submissions filed on October 20, 2016, inmate A was transferred from the Pacific Institution on October 27, 2016. The appellant provided additional submissions on November 3, 2016, in which it argued that as result of the transfer, Mr. Gordon is no longer exposed to the alleged danger, rendering the issue under appeal academic.

[12] For the reasons aforementioned, the applicant requests that the appeal be dismissed on the grounds of mootness.

B) Appellant’s submission (Respondent to the motion)

[13] The respondent contends that it must be allowed to submit evidence on the employer’s objection, and that the appeals officer ought to reserve its decision on the objection to allow the parties to provide evidence on both the preliminary objection and the merits of the case.

[14] According to the respondent, the principles in Borowski have no useful application in the present case. The Borowski case was found moot because the appellant’s standing relied on provisions of the Criminal Code that were already revoked. The appellant asserts that there is still a live issue between the parties in the case at hand.

[15] The respondent further claims that the circumstances of his work refusal deal with the equipment, instructions and training to be provided to correctional officers when asked to conduct non-security escorts of medium or maximum security inmates. Inmate A’s transfer to another institution is not determinative of the issue since he can at any time and for a multitude of reasons, be transferred back to Pacific Institution. The resolution of this issue by the appeals officer would have a tangible, concrete and practical impact on the rights of the parties (Nelson Hunter v. Canada (Correctional Service), 2013 OHSTC 12).

[16] The respondent argues that the suggestion that the exact same set of circumstances must be replicated in order to have an appeal being heard on its merits is ludicrous. The fact that the applicant has a policy in place for non-security escorts is an indication that these types of escorts occur frequently.

[17] The respondent submits that the cases cited by the applicant are of no assistance in the determination of the mootness motion.

[18] The respondent requests that the preliminary objection be dismissed. In the alternative, the respondent requests that a hearing be held on the preliminary motion.

C) Reply

[19] According to the applicant, Mr. Gordon refused to perform the ETA because he felt it was unsafe to escort a particular offender, namely Inmate A. Every escort is assessed on its own set of risks. Mr. Gordon did not mention in his complaint that the task of escorting itself is unsafe, but instead referred to Inmate A’s security classification and mental health issues. If Mr. Gordon felt that the task of escorting is unsafe, he could have refused other escorts or made health and safety complaints under section 127.1 of the Code.

[20] The applicant alleges Mr. Gordon refused to escort Inmate A under the particular circumstances of May 29, 2014, and under the conditions established in the assessment for decision of the Threat Risk Assessment (TRA). The applicant also claims Mr. Gordon’s work refusal was based on two primary circumstances that do not exist anymore: the stress Inmate A would suffer when attending the funeral, and the security and mental status of Inmate A.

[21] The applicant asserts that a review of HSO Montrose’s investigation report shows that the appellant’s work refusal was based on the unique set of circumstances surrounding Inmate A’s ETA and on the assessment for decision written by the parole officer.

[22] The applicant concludes by stating that the respondent has failed to articulate any reason to support his assertion that the matter remains a live issue.

Analysis

[23] The present decision deals only with the employer’s preliminary objection to dismiss the appeal on the grounds of mootness. I need to first address the respondent’s request that I reserve my decision on the preliminary objection to allow the parties to submit evidence and that I should issue one decision dealing with both the preliminary motion and the merits of the case.

[24] I find that a hearing to hear evidence on the preliminary motion is unnecessary given that the facts relevant to its determination can be found in the investigation report of the HSO and in the parties’ written arguments. In addition, based on the concern for judicial economy, which is one of the rationale of the doctrine of mootness, I believe that it is more appropriate to render a decision on the preliminary objection before hearing the case on its merits.

[25] The principles underlying the doctrine of mootness are set out as follows in the Supreme Court of Canada decision in the Borowski:

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

[26] The Court described the two-step analysis that should be applied in deciding if a matter has become moot as follows:

The approach with respect to mootness involves a two-step analysis. It is first necessary to determine whether the requisite tangible and concrete dispute has disappeared, rendering the issues academic. If so, it is then necessary to decide if the court should exercise its discretion to hear the case. (In the interest of clarity, a case is moot if it does not present a concrete controversy even though a court may elect to address the moot issue.)

The second stage in the analysis requires that a court consider whether it should exercise its discretion to decide the merits of the case, despite the absence of a live controversy. Courts may be guided in the exercise of their discretion by considering the underlying rationale of the mootness doctrine.

[27] In applying this approach to the present case, I will first need to determine whether the issue raised by this appeal has become academic or whether there remains a live controversy between the parties.

[28] Mr. Gordon exercised his right to refuse dangerous work granted to him by section 128(1) of the Code because. Section 128(1) reads as follows:

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

(a) the use or operation of the machine or thing constitutes a danger to the employee or to another employee;

(b) a condition exists in the place that constitutes a danger to the employee; or

(c) the performance of the activity constitutes a danger to the employee or to another employee.

[29] It is an established principle that the right to refuse dangerous work conferred by the Code is an individual right applicable to very specific facts and circumstances.

[30] After having reviewed the investigation report of the HSO, I find that the employee’s work refusal was made under a very specific set of circumstances. Specifically, the fact that the employee disagreed with the result of the TRA that was conducted for the escort of inmate A to a funeral. The employee felt that not all the mitigating factors were considered in the decision to grant the ETA and still had some concerns regarding the stress that the funeral could cause to inmate A.

[31] Therefore, contrarily to what has been argued by the respondent, I find that it is very clear that the concerns raised by the employee on the day he exercised his right to refuse to work were very specific to inmate A and not the task of escorting in general.

[32] Consequently, it is reasonable to conclude that because of inmate A’s transfer to a different institution, the employee is no longer exposed to the alleged condition that created the danger for which he exercised his right to refuse to work.

[33] A similar conclusion was reached by the appeals officer in Manderville v. Correctional Service Canada, 2015 OHSTC 3, on the issue of whether the transfer of an inmate to another institution had caused the source of danger to be removed and had rendered the case moot:

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

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

[34] I share the views of the appeals officer and consider that in the present case, a decision on my part would have no concrete effect on the rights of the parties as the circumstances that gave rise to the appellant’s work refusal have now disappeared with the removal of the inmate from the institution. As submitted by the employer, every escort is assessed depending on its own set of risks, making every assessment exclusive not only to the inmate himself or to his assigned level of security as well as the mental state of the inmate at the time the ETA is requested.

[35] When hearing an appeal filed under subsection 129(7) in the context of a work refusal, the role of the appeals officer is to determine whether the employee was exposed to a danger as defined in the Code. If the appeals officer finds that a danger existed and persists, a danger direction will be issued pursuant to subsection 145(2) of the Code to the employer to correct the situation and-or protect the employees from the identified danger. In the present case, I find that any direction that I could issue under subsection 145(1)(2) of the Code would have no practical purpose.

[36] I also find that the following statement made by the appeals officer in Gauthier v. Correctional Service of Canada, 2016 OHSTC 12 to be applicable to this case:

(40) I therefore find that the appeal is now without purpose and that any decision I could make on the appeal would only have declaratory value, as the prerequisite for application of section1 28 of the Code, i.e the existence of a danger at a specific time and in specific circumstances related to the workplace, no longer exists.

[37] For these reasons, I find that this appeal has become moot. Having come to this conclusion, I now need to determine whether I should nonetheless exercise my discretion to hear the case despite it being moot.

[38] I find it important to note that the right to refuse dangerous work is an extraordinary measure subject to an independent assessment by a HSO. My decision does not preclude the appellant’s right to refuse to partake in a future ETA. Each work refusal is assessed on a case by case basis and an appeal is heard in light of the facts and circumstances of each case. Consequently, I have decided not to use my discretionary power to hear the case on its merits.

Decision

[39] For these reasons, the appeal is dismissed as being moot.

Michael Wiwchar

Appeals Officer