2017 OHSTC 9

Date: 2017-06-16

File No.: 2016-34

Between:

Brink’s Canada Limited, Appellant

and

Robert Dendura, Respondent

Indexed as: Brink’s Canada Limited v. Dendura

Redacted version

Matter: Appeal under subsection 146(1) of the Canada Labour Code of a direction issued by an Official Delegated by the Minister of Labour

Decision: The direction is rescinded

Decision rendered by: Mr. Pierre Hamel, Appeals Officer

Language of the decision: English

For the appellant: Mr. Gregory J. Heywood, Roper Greyell LLP

For the respondent: Mr. Leslie Murphy (Respondent’s Co-worker)

Citation: 2017 OHSTC 9

Reasons

[1] These reasons concern an appeal brought under subsection 146(1) of the Canada Labour Code (Code) by Brink’s Canada Limited (“Brink’s” or “the employer”) against a direction issued on August 18, 2016, by Mr. Jason Elliott, in his capacity as an Official Delegated by the Minister of Labour (hereinafter the “Ministerial Delegate”).

[2] On July 17, 2016, Mr. Robert Dendura, an armed guard for Brink’s exercised his right to refuse to work alleging that the “new” crew structure implemented by his employer, herein referred to as the “All Off” delivery model (A/O), exposed him to a danger. The A/O crew is comprised of a two person crew where both crew members exit the vehicle and enter customer locations to drop-off or pick-up valuables. After the completion of the work, both crew members return to the vehicle together.

[3] Mr. Dendura stated the following to the Ministerial Delegate as the reason for his refusal:

The employer has switched the new crew structures of several runs to use an all off model. Using the three person crew, the driver would stay with the armoured truck and advise the employees doing the work inside if it is safe to exit the customer location. Using the all off model, the armoured truck is unattended and the crew inside are not aware if is safe to exit the customer location or if they will be facing bandits when they exit the location to proceed to the armoured truck.

Two man crew unsafe = death sentence. Two man exit any location no third in truck to warn guys inside. 3 man crew everywhere equal safe.

[4] On July 26, 2016, the Ministerial Delegate conducted an investigation into the circumstances that led Mr. Robert Dendura to refuse to perform his regular duties. Following his investigation, the Ministerial Delegate concluded that the activity described by the refusing employee constituted a danger and issued a direction to the employer under paragraph 145(2)(a) of the Code. The relevant portion of that direction reads as follows:

The said official delegated by the Minister of Labour considers that the performance of an activity constitutes a danger to an employee while at work:

The “All Off” model that is currently being used (in which the driver/ guard exists the armoured vehicle and escorts the messenger carrying the valuables, into customer locations for drop-offs and pickups) does not sufficiently mitigate against the danger of employees being assaulted during a robbery attempt. The model does not provide the employees with any information of suspicious persons or activities occurring outside while they are inside the customer's location. As a result, the employees have a diminished ability to avoid potential ambush upon returning to the armoured vehicle.

Therefore, you are hereby directed, pursuant to paragraph 145(2)(a) of the Canada Labour Code, Part II, to alter the activity that constitutes the danger immediately.

[underlining added]

[5] The appellant applied for a stay of the direction pursuant to subsection 146(2) of the Code. The stay was granted by Appeals Officer Olivier Bellavigna-Ladoux on September 12, 2016, upon certain conditions to be met by the employer. The reasons for the decision granting the stay are set out in Brink’s Canada Ltd. v. Robert Dendura, 2016 OHSTC 18

[6] I convened the parties to a pre-hearing teleconference on December 22, 2016. The employer raised a number of concerns regarding the confidentiality of many aspects of the information recorded in the Ministerial Delegate’s report now on the Occupational Health and Safety Tribunal Canada’s (Tribunal) record, and the need to ensure the protection of that confidential information, both regarding the contents of the Ministerial Delegate’s report, as well as the evidence to be presented at the hearing of the appeal.

[7] On January 17, 2017, the employer formally sought an order that the hearing of the appeal be held in camera without the presence of the public, and only in the presence of specifically identified authorized persons.

[8] I granted the appellant’s application, with reasons to follow. My decision was communicated to the parties by letter dated January 24, 2017. A copy of this letter is appended to the present reasons.

[9] I now briefly set out the reasons for my Order.

[10] Paragraph 146.2(h) of the Code provides that the appeals officer may determine the procedure to be followed in the appeal proceeding. Appeal proceedings under section 146 of the Code are quasi-judicial proceedings and must be conducted in compliance with the fundamental rules of justice. The open court principle is a cornerstone of our legal system and seeks to ensure that such proceedings are conducted in a fair and transparent manner, and be seen to be so conducted. Quasi-judicial proceedings, including the Tribunal’s record, are therefore open to the public. The Federal Court of Appeal recently reiterated this important principle in Lukács v. Canada (Transport, Infrastructure and Communities), 2015 FCA 140.

[11] However, there are situations where the need to protect the confidentiality of certain information outweighs the importance of an open process. Those situations are exceptional and should minimally impair the intrusion on the open court principle (City of Ottawa (OC Transpo) v. MacDuff, 2016 OHSTC 2).

[12] The appellant’s motion is akin to a request for a publication ban. In reaching my decision on the appellant’s motion, I have applied what I consider to be the appropriate legal test governing such a matter. That test has been set out by the Supreme Court of Canada and is commonly referred to as the Dagenais/Mentuck test, adapted of course to administrative proceedings such as the present proceedings (Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. V. Mentuck, 2001 SCC 76). The question is whether the salutary effect of protecting the information from being publicly disclosed outweighs the right for the general public to have access to the appeal process. And perhaps as importantly, whether the order sought would compromise the ability of the parties to present their case fully.

[13] I was persuaded by the employer’s argument that the appeal is entirely concerned with the sufficiency of the measures developed by the employer to ensure the protection of its employees while carrying out their duties in the context of its armoured car operations, against possible assaults and robbery attempts. Operational procedures on the A/O delivery method, training material for employees, job hazard analysis and risk assessments are all very sensitive information. It was not contested by anyone that there is a real and substantial risk that the security of its system and the safety of its employees could be undermined if persons with unlawful intentions became aware of what I described in my Order as “Confidential information”. Indeed, Mr. Dendura’s representative confirmed the necessity for such protection.

[14] Accordingly, the hearing proceeded in camera. Persons who were authorized to attend the hearing as observers included representatives of the parties and representatives of the Teamsters Union, Local 362, the certified bargaining agent for the employees in the Edmonton operations of the employer. All participants signed the undertaking mentioned in the Order, which is kept on the Tribunal’s record.

[15] In addition, I hereby confirm that all documentation on the Tribunal’s record and filed in evidence is to be sealed and kept confidential at all times. More specifically, the documentation shall not be subject to public disclosure.

[16] It is also worth mentioning that the respondent, Mr. Dendura, chose not to participate in the proceedings. He was not present at the hearing and was not called to testify. I was informed that Mr. Dendura had been apprised of the notice of the hearing and of its purpose, and that his decision was entirely voluntary. He was represented at the hearing by Mr. Leslie Murphy, a fellow employee also providing armoured car services for the employer.

[17] The appeal was heard in Edmonton on January 30 and 31, 2017. Final written submissions were filed with the Tribunal on March 3, 2017.

Background

[18] The respondent is employed by Brink’s to provide armoured car services in the Edmonton area. He was scheduled to work on Friday, July 15, 2016, and on Sunday, July 17, 2016, that latter shift being his first night shift utilizing the A/O model, on run 72. Mr. Dendura had voluntarily bid on run 72, knowing that it was an A/O run, on July 8, 2016. On July 15, Mr. Dendura requested to have the night of July 17 off, for personal reasons. He wanted to spend the night with his family, as reported by Mr. Hernadi, Brink’s Area Manager for Alberta North. In light of staffing issues, his request was denied.

[19] Approximately one hour after the employer confirmed to Mr. Dendura that he was expected to report to work for July 17 shift, Mr. Dendura communicated his refusal to work by way of text message.

[20] The record shows that on July 8, 2016, an employee of Garda World was attacked in Edmonton while performing his duties armoured car services using an A/O model. The two crew members were sprayed with pepper spray by the two robbers. One of the crew members discharged his firearm at the fleeing suspect and killed the individual.

[21] As reflected in the statement of refusal to work, the respondent felt it was not safe to work on an A/O crew since the lack of a driver remaining in the car while the delivery is taking place left him vulnerable to a similar attack, as there was no one to provide information on what may be developing outside of the location.

[22] Mr. Rudolph Hernadi, Brink’s Area Manager, conducted the investigation into the refusal on July 18 and 20, 2016. It is not necessary to go into every detail of the discussion that took place during the meetings. Suffice it to say that the thrust of the employee’s concern was related to not having a third person (driver) remain in the armoured truck while the other crew members were making their delivery under the A/O model, and more precisely when the crew returned to the truck coming out of the client location. The incident involving Garda made him feel unsafe to work on an A/O crew since the lack of a driver to provide him with information on the situation outside the location left him vulnerable to a similar attack.

[23] At the hearing, Mr. Hernadi referred to Mr. Dendura’s behaviour during the meetings, which caused him and other participants to be concerned with Mr. Dendura’s state of mental health. I consider this discussion not to be material to the issue I must deal with in the appeal, in light of the fact that the object of the present appeal is the validity of the direction issued by Mr. Elliott regarding the work method or the A/O model, and not the refusing employee’s motivation.

[24] The employer considered that Mr. Dendura did not face a danger and that his refusal was not justified. The Workplace Health and Safety Committee (WHSC) made the following recommendation to the employer further to the investigation: “Contingency plans (NCC going down) need to be better defined and communicated. Phones should be connected to cameras on trucks for viewing when exiting a call”.

[25] The employee maintained his refusal to work and the Labour Program was contacted to report Mr. Dendura’s continued refusal. Ministerial Delegate Jason Elliott conducted his investigation on July 26, 2016, and found a danger to exist. In his report, he explains the considerations that led him to find that the employee was exposed to a danger. His conclusion of danger was not based on the presence of a particular situation or set of circumstances on the day of the refusal. Rather, it is based on his assessment of one particular aspect of the A/O delivery model that places employees, in all circumstances in which this model is used, in a situation that constitutes a danger under the Code.

[26] The following excerpts of Mr. Elliott’s report illustrate his rationale for his conclusion of danger.

Previously with a three-man crew, the driver would remain with the vehicle and observe the environment outside the customer location. The driver would alert the guard and messenger inside the customer's location of any suspicious persons or activity by radio communication of any conditions that may endanger their safety.

With the new model, the employer has not implemented a communication procedure to inform the two-man crew of suspicious persons or activities that develop outside the customer location while their work is being conducted inside. The crew exits their location without any intelligence of outside activity exposing the employees possible ambush and attack by perpetrators.

[…]

Twelve attacks reported by various news sources (Appendix A) which have occurred since 2013 were reviewed. These crimes were perpetrated on cash in transit crews using a model with two employees. Of the twelve attacks, six incidents involved gunfire by either the employees or the suspects. One of the incidents resulted in an employee being shot by a suspect. Three other incidents resulted in a suspect being shot by one of the employees. Three of the incidents reported that the employees were pepper sprayed. One of the incidents resulted in an employee being assaulted with a machete.

[…]

It is the decision of this officer that it can reasonably be expected that when the employee returns to the armoured truck from the customer's location without the knowledge of any suspicious persons or activities developing while in the location is a serious threat to the health

and safety of the employee. Therefore, this constitutes a danger as per the Canada Labour Code definition.

[…]

Brink’s Canada Limited states in their Employee Handbook, dated July 2000 that the driver is to be alert to conditions that may endanger the crew. The employer has identified a hazard to employees and has put a control in place to mitigate the danger.

Since the A/O model eliminates the person in the position to alert the crew, Brink’s Canada Limited are required to mitigate the hazard that they have previously identified.

[…]

Brink’s Canada Limited have not applied any controls that alert the crew to conditions that would endanger them upon exiting the customer's location.

[…]

The investigating officer concludes that returning to the armoured truck from a customer location without any current or available information, previously provided by a driver stationed in the vehicle constitutes at danger and is not a normal condition of employment.

[underlining added]

[27] While the employer has maintained that the Ministerial Delegate had incorrectly used the former definition of “danger” in the Code, the evidence is clear that the “new” definition of danger which came into effect on October 31, 2014, was, correctly so, the statutory reference on which Mr. Elliott based his findings. The issue is whether such definition was properly applied to the facts at hand.

Issues

[28] The issues in this appeal are two-fold:

a) is the direction issued on the basis of a finding of danger by the Ministerial Delegate well-founded? More specifically, was Mr. Dendura exposed to a danger as defined under the Code when he exercised his right to refuse unsafe work; and

b) if a danger existed, was the danger a normal condition of employment, under paragraph 128(2)(b) of the Code?

Evidence led by the parties

[29] The appellant called a number of witnesses who described the features of the A/O delivery model introduced by Brink’s in its operations.

[30] Mr. Martin Deslauriers is Senior Director of Security for Brink’s. He has held that position for seven years. He has over 22 years of experience in the cash-in-transit (CIT) sector. He is responsible for overseeing Brink’s Corporate Security Department, all aspects of Brink’s Risk Management Program, for managing Brink’s Physical Security Systems, Brink’s Technical and Firearm Division and overseeing the National Call Centre and its operations.

[31] Brink’s introduced the A/O model in its operations in November 2015. Brink’s decision to move to an A/O crew was motivated, in large part, by a need to remain competitive in the industry. The A/O model has been in use by most of Brink’s’ competitors since 2003. However, prior to the model’s implementation, Brink’s was satisfied that sufficient and tested technology existed that was safe and secure and that Brink’s’ model would address some of the disadvantages found in more “traditional” models, including the 3-person crew.

[32] One of Mr. Deslauriers’ responsibilities as the Director of Security is to monitor and report on the crime and criminality involved in CIT robberies or attempted robberies. Because Canada does not have a system or organization that monitors CIT robberies, his primary source of information is other key actors in the industry - both at a Regional and National level.

[33] He tracks and keeps a record of all known incidents of CIT robberies or attempted robberies within Canada since 2000. This record includes information relating to the: type of crew - in other words 2-crew, 3-crew or A/O crew; type of incident - in other words organized or opportunistic; type of force used - in other words pepper spray, handgun, shotgun, simulated; timing of the attack - in other words exiting vehicle, inside location, returning to vehicle; location of the incident - in other words city, province; and whether the attack was a success or failure.

[34] In his capacity as Director of Security, he is also responsible for approving the Standard Operating Procedure (SOP) for Brink’s’ operations nationwide. The purpose of a SOP is, as the name suggests, to outline standard operating procedures to ensure the safety of Brink’s’ employees.

[35] The SOP for the A/O model specifically addresses the procedure to be followed when crew members return to the vehicle. Mr. Deslauriers stated that based on his review of the data, in most, if not all, of the incidents that occur when an A/O crew is returning to the vehicle, the perpetrator is successful because [text redacted]. The SOP for the A/O model specifically addresses these factors. The SOP was developed based on intelligence gathered over time and statistics of attacks.

[36] He testified that Brink’s operated the A/O model for over 55,000 hours without incident prior to the model’s implementation in Edmonton.

[37] CIT incident statistics compiled by Brink’s between 2000 and 2015 indicate that the number of crew members on board a vehicle has little to no effect on a criminal’s decision-making process. Since 2000, of the 57 incidents involving A/O crews in the whole industry, 11 occurred while the crew was returning to the vehicle; 17 occurred while the crew was exiting the vehicle; and 22 occurred while the crew was in the location. These statistics suggest that in the majority of cases, the criminals were already on site when the crew arrived at the customer location.

[38] He testified that he was involved in the preparation of the SOP. A key feature of the procedures is the Site Risk Assessment (SRA). The assessment takes the form of Data Sheet setting out the particularities of the location. It includes drawings, graphics and pictures. The Sheet is signed off by management and employee representatives for each location to be serviced. These SRAs are to be periodically reviewed and updated as required.

[39] Mr. Deslauriers stated that a SRA is completed for all customer sites that utilize an A/O crew and obvious environmental hazards are addressed and modified by clients (trimming of bushes, additional lighting etc.). SRAs address not only a robbery threat but the other health and physical hazards identified by the Code, pursuant to a methodology for assessing risk at each site (a risk assessment priority matrix table was developed for that purpose and was introduced in evidence).

[40] The SOP provides for specifically designed crew movement protocols. The training material includes highly classified risk mitigation protocols designed specifically for the A/O crew. The arrival and entry into a customer’s premises is a highly coordinated and choreographed movement. Each crew member has specific roles and responsibilities to mitigate risk. [text redacted]

[41] The SOP also addresses the return to the vehicle. It sets out a mandatory [text redacted] by the armed driver-guard before allowing the messenger to come back from the location. [text redacted]

[42] Mr. Deslauriers testified that he is not aware of any instance where an armed guard was attacked or harmed when he was not carrying any liability or when he was not in proximity to the messenger who was carrying liability. In other words, it is statistically unlikely that a guard will be attacked or exposed to any danger while performing [text redacted] or a [text redacted]. Accordingly with respect to the danger of exiting a client’s premises, Mr. Deslauriers considers the probability of an attack on a guard while performing a [text redacted] as being low.

[43] Mr. Deslauriers stated that a guard performing a [text redacted] is in a better position to identify any threats or security concerns than a driver sitting in a truck with a limited field of vision. In particular, a guard performing a [text redacted] has the benefit of additional and unobstructed sight lines, the ability to hear sounds that a driver would not, the ability to smell (in other words cigarette smoke) that the driver would not, and the ability to investigate suspicious behaviour that the driver, who is precluded from exiting the vehicle, would not. [text redacted]

[44] He also pointed out that in a conventional 3-person crew, access to the truck is controlled by the driver and requires coordination with the driver. [text redacted]

[45] In his view, a conventional 3-person crew, in some instances, may beget complacency amongst employees and gave examples of those situations, whereas an A/O crew does not, as the crew never assumes a third party will ensure their safety.

[46] Mr. Deslauriers also pointed out that the A/O SOP requires greater separation between the guard and messenger, thereby reducing the ability of an assailant to disable or threaten both employees simultaneously.

[47] The secure cargo door allows for the messenger to secure the liability expeditiously (and thus eliminate the incentive for a robbery), while both the messenger and guard are able to monitor the surrounding and keep a gun hand free.

[48] Mr. Deslauriers stated that A/O crews are required to wear superior bullet proof vests provided by the employer.

[49] He also testified that Brink’s has put in place a National Control Centre (NCC), created in 2015, that provides resources dedicated exclusively to A/O crews. [text redacted].

[50] A protocol for situations of distress has been established and is described in the training material.

[51] Mr. Deslauriers referred to the consultation with union partners, in this case the Teamsters, with regards to Brink’s’ Edmonton operations, at the National Health and Safety Policy Committee (Policy Committee), indicating that nothing would be approved until the committee agreed to it, which eventually occurred. The committee minutes introduced in evidence reflect those discussions and the general agreement to proceed with the A/O model.

[52] Mr. Deslauriers retained the services of the TRAK firm, to advise Brink’s on the safety of the model during its development stage. It was felt important to obtain independent advice during the development stage of the model. The fifteen (15) recommendations of this Report were implemented except for one, which caused concern at the Policy Committee. It did not implement Recommendation #7 - [text redacted]. Moreover the feedback from the Policy Committee (NHSPC) did not support the recommendation of [text redacted]. Brink’s accepted the recommendations of the Policy Committee.

[53] Mr. John Honan is the Senior Manager, Operational Compliance for Brink’s and has 25 years of experience in the armoured car industry. He provided updated evidence current to the day of the hearing that Brink’s has been operating the A/O model for over 100,000 hours without incident.

[54] He testified that Brink’s competitors also use A/O models. It is important to note that all of the previous statistics regarding assaults on the A/O crews involved a different model than the model developed and employed by Brink’s. Brink’s’ competitors do not mandate that their employees conduct [text redacted] when entering a client’s premises or [text redacted] upon exiting the premises. Mr. Honan stated that the A/O model used by Brink’s’ competitors is also not as sophisticated as Brink’s’, particularly with respect to its communications technology, personal protective equipment, theft mitigation devices and armoured truck design.

[55] He echoes Mr. Deslauriers’ testimony that it is statistically unlikely that a guard will be attacked or exposed to any danger while performing a [text redacted] or [text redacted]. Accordingly with respect to the danger of exiting a client’s premises the probability of an attack on a guard while performing [text redacted] is low.

[56] Mr. Honan confirmed that Brink’s management created a Standard Operating Procedure for the A/O model that addresses, among other matters, the procedure to be followed when crew members return to the vehicle. The SOP mandates that the crew members remain vigilant, perform the necessary exterior checks, and maintain prescribed separation both inside and outside of the customer location.

[57] Under its A/O model, Brink’s provides its employees with enhanced technology tools such as the Personal Remote Device (PRD). The PRD attaches to an employee’s bullet resistant vest and [text redacted]. Both crew members can use the PRD to initiate a signal call for law enforcement assistance (referred to as a Crew Initiated Alarm (CIA)). Once generated,

[58] Mr. Honan testified that Brink’s also created the NCC to provide a 24-hour support and emergency monitoring resource exclusively to the A/O crews. A remote alarm that is generated through an employee’s PRD is monitored by the NCC and the [text redacted] when communicating with the NCC in the case of an emergency.

[59] Mr. Honan testified that the configuration of A/O trucks is very different from the trucks used in traditional models. Brink’s has equipped its vehicles with additional internal and external video surveillance, which allows the crews to view potential suspicious activity [text redacted] when they are entering or exiting the truck. Every A/O vehicle has [text redacted].

[60] Mr. Honan described the specifically-modified armoured vehicles for use for A/O crews. The trucks are retrofitted to provide a single crew department, fitted with a personnel hatch, access changed to [text redacted]. All vehicles have a cargo hatch such that liability is never carried in or out the personnel door. [text redacted] best possible view of surrounding area and is utilized prior to the crew departing the vehicle and while in the process of boarding. The vehicle has multiple sensors to detect any tampering with the vehicle while the crew is servicing the client, [text redacted]

[61] Brink’s provides its employees with an enhanced smartphone [text redacted] that is equipped with GPS tracking software. It has many unique features including: GPS enabled, such that crew movement can be monitored in addition to vehicle positioning by the NCC; [text redacted]. Crews are directed to ensure phones are fully charged prior to their shift, or to secure alternate devices. Crews are also provided with a charger for use in the armoured vehicle as an added redundancy.

[62] The phone can also be used to generate a distress alarm to the NCC and has an active person down feature that signals the NCC [text redacted]

[63] [text redacted]. The interior of the hatch is also equipped with a [text redacted] that requires [text redacted]. Both of these security measures are required before a crew member is granted access to the interior crew area. The comparative chart introduced by Mr. Honan is quite clear that the configuration of the trucks and the equipment provided to employees assigned to an A/O run is unique and significantly different from those used on the “conventional” 3-person crew model.

[64] Brink’s has developed new protocols for the testing of personal protective equipment (PPE) for A/O crew members. Such testing is required on a daily basis. All A/O employees must wear a [text redacted], which is provided by Brink’s. [text redacted].

[65] Brink’s also ensures that all employees received a minimum of four hours of classroom training, a minimum of three hours of practical training as well as a written knowledge test on the A/O model. Crews are also to be shadowed by Brink’s’ training personnel [text redacted], to ensure that they understand the procedures and apply them correctly.

[66] Before Brink’s implemented any of the above-mentioned measures, it retained the services of TRAK, a security consulting firm that specializes in corporate security, risk assessment and risk management. Based on its comprehensive review of the A/O model, current Canadian market characteristics along with Brink’s’ enhancements to its training program, PPE, communication technology and operating procedures, TRAK concluded that if the 15 recommendations it made were implemented, the A/O configuration would provide an adequate level of safety and would not offend the provisions of the Code.

[67] Mr. Pierre Brien also testified for the employer. He is a Security Consultant with the TRAK Group. He had a 30 year career in law enforcement during which he held strategic operational and administrative functions at the municipal and provincial levels. During his career, Mr. Brien was involved with national issues on crime prevention, intelligence and police management with Criminal Intelligence Service Canada (CISC) as Quebec’s bureau director. Since retiring in 2007, he has been retained by national and international clients to address security concerns in the fields of risk mitigation, emergency planning, airport security, crisis management, community policing and training. From 2012 to 2014, he acted as project director for the Haitian national police academy. He was professor at the Canadian Critical Infrastructure Institute (2008). He recently completed a guide to community policing for Francopol, the international French speaking police training organization. This guide is destined to OIF (Organisation internationale de la francophonie) member countries involved in democratic reinforcement or post conflict reconstruction.

[68] Mr. Brien introduced his report (the TRAK report). He testified that, in his expert opinion, the risk of death or injury resulting from a robbery or attempted robbery when a Brink’s’ A/O crew member leaves the vehicle to provide services to customers and then returns to the vehicle, is low.

[69] The following excerpts from the TRAK report summarizes Mr. Brien’s mandate and conclusions:

At the outset of this mandate, we were tasked with the following:

  • Assess the specific risks of injuries resulting from robbery or attempted robbery when armoured car crews leave the vehicle to provide services to customers and then return to the vehicle;
  • Assess if the proposed two person A/O configuration constitutes an unacceptable danger under sections 122 to 128 of the Canada Labour Code;
  • Formulate recommendations regarding all facets of the job hazard analysis and the two persons A/O crew configuration.

In view of the difficulties involved with finding reliable official data, we elected to use a qualitative methodology using available industry data, existing literature, interviews, consultation, document analysis and on site observations to gain a comprehensive representation of the situation. This resulted in an accurate review of the cash-in-transit processes on which to base our recommendations.

The risks of injury or fatality resulting from robbery or attempted robbery when armoured vehicle crews leave the vehicle to provide services to customers and then return to the vehicle, remains difficult to determine with mathematical precision. Based on our analysis of available data and the industry's track record, we concluded that this risk is low.

Recognizing that all fatalities or serious injuries are dramatic events, the nature of the cash in transit industry does carry such a risk. With a low fatal injury level and a similarly low robbery related injury level during the 2000 to 2015 period, the present situation in Canada can be considered an acceptable inherent risk for armoured vehicles crewmembers.

Moreover, we strongly believe that existing mitigation measures and procedures and the implementation of further mitigation strategies and actions in view of the A/O crew configuration deployment will maintain the risk at a level acceptable for both, management and Labour.

[…]

As we have demonstrated, in the present situation, implementing the A/O configuration without additional training, and mitigation measures would likely represent an unacceptable danger by the Occupational Health and Safety Tribunal of Canada.

On the other hand, by implementing the recommendations of this report and continuing to push forward present security / operational/health and safety initiatives, Brink’s will be in a position to demonstrate that the residual risk constitutes an inherent condition of work and is acceptable based on the criteria set by the Board (sic).

Our research and fieldwork resulted in 15 recommendations to enhance the safety of Brink’s crew members and reduce the inherent consequences of criminal attacks against armoured vehicle crews.

[70] The recommendations in question that have been implemented by Brink’s are all included in the various operating procedures, equipment, PPE and prevention measures that witnesses have testified upon at the hearing and that I have set out above. Mr. Brien confirmed, during his testimony, the view that he had expressed to the employer that in his expert opinion, deferring recommendation #7 did not have an adverse impact on the risk level of the A/O model, as the other recommendations were implemented to an acceptable level. It is Mr. Brien’s opinion, based on his experience and knowledge of security principles and factors related to criminal motivation, that the A/O model provides an equivalent or superior level of safety than that of the conventional 3-person model.

[71] The evidence of Mr. Brien and Mr. Deslauriers regarding their assessment of the risk of an attack and injury was supported by both statistical evidence of Canadian operations and a review of considerable literature dealing with CIT operations in other countries, as the TRAK report shows.

[72] The respondent’s representative did not cross-examine the three witnesses who explained the functioning of the A/O model and did not contest their evidence, the extent of their experience nor their assessment of the risk involved when using the A/O delivery method.

[73] The respondent’s representative, Mr. Murphy, called one witness, Mr. Alessandro DeFazio, and testified himself.

[74] Mr. DeFazio has been employed by Brink’s for almost 10 years. He testified that he had concerns with the A/O model, because of the absence of a third man remaining in the truck as a look-out who would radio him if it was safe to come out. Under the A/O model, every time he is exiting a building or bank, he feels “blind coming out and unsafe”. He states that he was not followed by supervisory or training staff for his first two A/O shifts and was never shown the SRAs for the A/O runs that he worked on.

[75] In cross-examination, Mr. DeFazio agreed that he had never requested to see a SRA, although he is aware that there are SRAs for each location. He acknowledged that the training he received was thorough and that the technological tools employees operating an A/O run are given are superior to the traditional crews. He agrees that when working on a traditional 3-person crew, he has had, at times, to draw the driver’s attention before exiting a building. He has worked a number of A/O shifts and has never experienced a problem or incident with it. He agrees that he is very alert when he is the guard and he always performs [text redacted] upon exiting the location. He agrees that a guard with a handgun and no valuable with him is not likely to be attacked. Mr. DeFazio admitted having been disciplined by the employer for having deliberately failed to apply an operational procedure designed to ensure the safety of employees, which he found cumbersome and time consuming.

[76] Mr. Leslie Murphy testified. At the material times, he was the employee representative on the WHSC. He first pointed out that he received his A/O training immediately after one of his shifts, at a time he should have been sleeping, and had trouble focussing. He indicated that he had [text redacted] on a few occasions; the supervisor had to come and reset it so they could continue with the run. [text redacted].

[77] On December 19, 2016, Mr. Murphy had a VIA. The interior personnel hatch door on 16218 did not close properly, the truck went into alarm and the [text redacted] activated. He was curious how long it would take for the NCC to call him and check on his well-being, so he did not call them to report the false alarm. NCC did not contact him at all that night. In his view, this incident contradicts the employer’s statement that all VIA occurrences are responded to by the NCC.

[78] He also testified that the [text redacted] phones do not always work properly, as he has had issues with the “push to talk” button on a few occasions.

[79] He stated that Brink’s security model always involved a third person, as it is reflected in the employees’ handbook that he was handed when joining Brink’s and the A/O model is a very serious departure from previous policy.

[80] In cross-examination, Mr. Murphy agreed that he has worked on several A/O runs and never filed a work refusal, although he is aware of that statutory protection under the Code. Mr. Dendura is the only employee in the Edmonton area who refused to work on an A/O crew. He did not ask management to have the training a second time, at a different time. He states that he has not been followed by supervisory or training staff for one complete shift. However, he has been followed 11 times during which he was given feedback, and he was doing everything he was supposed to do. He agreed that his training was sufficient to allow him to perform his duties correctly.

[81] He agreed with the suggestion that when banks are located in malls or shopping centres, the driver remaining in the car under the 3-person crew model, would not see what was going on inside and the driver could not provide additional assistance or intelligence. Regarding the malfunction of the [text redacted] located in the personnel vault, he agrees that he was not really at risk since by then, the valuables are already in the valuable vault of the truck. Mr. Murphy states that he has not reported the technical malfunctions that he testified on, to the WHSC. He recognizes that the frequency of technical problems has declined over time.

[82] Mr. Murphy ended his cross-examination by stating that he had learned a lot from the testimony of the witnesses called by the employer, particularly regarding the thought process underpinning the A/O model, such that his perspective had changed to the point where he no longer considered that the A/O model presents a danger. However, he still has “concerns” with it.

Submissions of the parties

Appellant's submissions

[83] The appellant’s submissions may be summarized as follows.

[84] The appellant first refers to the new definition of “danger” that came into force on October 31, 2014, and to the two decisions issued by appeals officers that have interpreted and applied the new definition of danger: Correctional Service of Canada v. Ketcheson, 2016 OHSTC 19 (Ketcheson), and Keith Hall & Sons Transport Limited v. Robin Wilkins, 2017 OHSTC 1 (Keith Hall & Sons).

[85] Flowing from these decisions, the test under the new definition of danger is as follows:

(i) what is the alleged hazard, condition or activity?

(ii) could this hazard, condition or activity reasonably be expected to be an imminent threat to the life or health of a person exposed to it?

or

could this hazard, condition or activity reasonably be expected to be a serious threat to the life or health of a person exposed to it?

(iii) will the threat to life or health exist before the hazard or condition can be corrected or the activity altered?

[86] The appellant submits that the Tribunal in Ketcheson was clear that a “hazard”, “condition” or “activity” only applies to direct causes of accidents and injuries. It is not meant to capture low risk hazards, root causes, such as policies and programs, or disputes about issues other than direct causes of accidents and injuries to health (at paras. 145 and 157).

[87] In this case, the respondent and the Ministerial Delegate say that the performance of the ATM Services using an A/O crew constitutes a danger. While Brink’s disagrees with this position, it acknowledges that if Mr. Dendura was the subject of an attempted robbery during an A/O run, this could be a hazardous “activity” as contemplated by the Tribunal in Ketcheson. The issue is related to the probability of such an incident occurring.

[88] On the issue of whether the activity constitutes an “imminent threat” to the employee, the appellant contends that it clearly does not. There is simply no evidence before this Tribunal to indicate that there was a reasonable expectation that Mr. Dendura would be exposed to violence during his Sunday night shift. On the contrary, Brink’s submits that the preponderance of evidence establishes that Mr. Dendura’s refusal to work was self-serving and motivated by his unfounded belief that he was entitled to two consecutive days off.

[89] The employer argues further that even if Mr. Dendura refused to work, as he alleged during the Ministerial Delegate’s investigation, because the elimination of a driver who remains in the vehicle leaves employees vulnerable to an ambush when they exit a customer location, the Tribunal in Ketcheson is clear that the Code does not permit employees to characterize generic, hypothetical scenarios as “dangers”. While there is no doubt the level of harm from a potential ambush can range from minor to severe, that is not the issue. Because Mr. Dendura did not attend work for the A/O shift in question, he could not have had a reasonable expectation that exposure to the activity, violence from the activity, or harm from the violence would be occurring within minutes or hours on July 17, 2016.

[90] Consequently, the appellant submits that this activity could not reasonably be expected to be an imminent threat to the life or health of Mr. Dendura on July 17, 2016.

[91] On the question of whether Mr. Dendura was exposed to a serious threat on the day of his refusal, the appellant argues that an adverse inference should be drawn from Mr. Dendura’s failure to appear and to testify at the hearing of the appeal. As such, no weight should be given to his claim that he was exposed to a threat of serious harm.

[92] The appellant also suggests that the testimony of his two co-workers should not be given weight, although it is important to note that Mr. Murphy acknowledged at the end of his testimony that his perspective has changed: he no longer considers the A/O model to be a danger in light of the evidence related to mitigation of the risks associated with same, presented by Brink’s at the hearing. Furthermore, neither Mr. DeFazio nor Mr. Murphy ever exercised their right to refuse work, presumably because the work was not unsafe.

[93] Brink’s submits that there is no evidence demonstrating that there was a reasonable possibility that the performance of the ATM Services on July 17, 2016 would cause Mr. Dendura substantial harm. On the contrary, Brink’s submits that the evidence establishes that the probability that an A/O crew member will be ambushed after exiting the customer location and returning to the vehicle is low and does not constitute a threat.

[94] The appellant reiterates that the Ministerial Delegate did not conclude that all aspects of the A/O model constitute a danger. Rather, in his view, the danger was limited to when the employee returns to the armoured truck from the customer’s location. The appellant submits that the Ministerial Delegate failed to appreciate the efficacy or practical implications of the numerous risk mitigation strategies implemented by Brink’s in their A/O model. The Tribunal in Ketcheson was clear that a very low risk, either because of low probability or because of low severity, is not a threat (at para. 198). The appellant submits that the testimony of Messrs. Deslauriers and Brien establishes that the probability that an A/O crew member(s) will be ambushed when exiting a customer location and returning to the vehicle is low and therefore not a serious threat.

[95] The appellant reviewed in detail the evidence establishing that numerous measures are in place to mitigate the risk to its employees in the performance of their duties as part of an A/O crew. Those measures include training and administration; the creation of, and support from, the NCC; strict procedures and protocols to be adhered to; and enhanced equipment and communication tools that were described in the evidence.

[96] The appellant further stressed that it retained the services of TRAK, a security consulting firm that specializes in corporate security, risk assessment and risk management. Based on its comprehensive review of the A/O model, current Canadian market characteristics along with Brink’s’ enhancements to its training program, PPE, communication technology and operating procedures, TRAK concluded that, if the 15 recommendations it made were implemented, the A/O configuration would not offend the provisions of the Code.

[97] The appellant implemented 14 of the 15 recommendations prior to moving forward with the A/O model. It did not implement Recommendation #7 - [text redacted]. Moreover, the feedback from the Policy Committee did not support the recommendation.

[98] In light of the foregoing, the appellant submits that Mr. Dendura’s performance of the ATM Services on July 17, 2016 as part of an A/O crew could not reasonably be expected to cause him substantial harm and, therefore, constitute a serious threat to his life or health.

[99] Finally, with respect to whether any danger that may be found to exist was a normal condition of employment, the appellant submitted that a danger that constitutes a “normal condition of employment” is a “residual hazard” that remains after the employer has followed all “reasonable steps” to mitigate it (see P & 0 Ports Inc. v. International Longshoremen's and Warehousemen's Union, Local 500, 2008 FC 846 at para. 46).

[100] Moreover, the appellant submits that it has provided considerable and uncontested evidence to establish that numerous measures are in place to mitigate the risk to its employees in the performance of their duties as part of an A/O crew. Those measures include training and administration; the creation of, and support from, the NCC, strict procedures and protocols to be adhered to; and enhanced equipment and communication tools.

[101] The appellant submits that it is well-established in the Tribunal’s jurisprudence that the armoured car industry involves a somewhat high level of inherent danger particular to the nature of the business. Brink’s submits this danger exists regardless of the methodology used to perform the ATM Services - namely, an A/O crew or a 2-person crew with driver. Indeed, in the circumstances of this case, in the context of this particular A/O model, Brink’s submits that the additional security protocols and safeguards that have been implemented for the A/O model make it safer than a 3-person crew with driver.

[102] For these reasons, Brink’s submits that it has taken all reasonable steps to mitigate the hazard to A/O crews returning to the vehicle from the customer location. In particular, Brink’s stresses that it has implemented mandatory SOPs that effectively replace the surveillance a driver would provide with enhanced security. In these circumstances, Brink’s submits that the danger inherent in the performance of the ATM services using an A/O crew was a normal condition of employment for Mr. Dendura, certainly no greater than existing operations and therefore could not the basis of a work refusal.

Respondent's submissions de l’intimé

[103] At the outset of his submissions, the respondent’s representative Mr. Murphy wrote as follows:

I went into the OHSTC Hearing (January 30-31 2017) with the belief that the All Off Model employed by Brinks was more dangerous than the 3 Person (One on-two off) Model. Because I have been better educated about the risks and risk mitigation strategies, my opinion has changed. I still feel it would be superior to have an attentive driver remain in the vehicle and in communication with their other crew mates.

[underlining added]

[104] The respondent’s representative submitted that the SOP outlined in the A/O model look great on paper. However, management has directed him on a few occasions to break from the SOP, because they are viewed as inconvenient.

[105] One of the recommendations by the TRAK Group was to have each new A/O crew followed for [text redacted] working A/O. This recommendation was accepted by the Policy Committee. Mr. DeFazio (run 75) and himself (run 74) both testified (under oath) that they were not followed [text redacted] A/O shifts.

[106] Mr. Murphy described various incidents and malfunctions of the tools and devices related to the A/O model. In addition to the incident related to the personnel hatch door malfunction, he referred to a situation on January 10, 2017, where the [text redacted] in truck 16201 was reported to not work by the day crew working that specific shift. He reported this to the supervisor on duty and asked him what he should do. He was told to just take it.

[107] He also mentioned another incident that occurred on January 12, 2017, where he was assigned to work out of truck 16203. His driver informed him that the truck only responds to the CMRD (Personal Remote Device for the truck, with door pop feature, and red hold up button) when the truck is totally off. If the engine is running, or even the key turned so the power is on, the truck does not respond to either CMRD at all. He remembered working out of a truck with the exact same problem in summer 2016. He informed the supervisor on duty about the issue with the truck and he was instructed to shut it off at every stop. With overnight lows of -18°C, he did not feel this was an acceptable solution. He asked if there were any other trucks he could take. The supervisor assigned him truck 16201, and reassigned 16203 to another crew for them to use, knowing that it did not work properly.

[108] Mr. Murphy submits that he has many times been issued equipment that doesn't work as designed. [text redacted]

[109] The respondent’s representative submitted that it was only during the hearing that he learned that the [text redacted], while the driver/guard exits the location to perform the [text redacted] (a point he indicated he might have missed in training because he was over-tired).

[110] The representative stressed that Mr. Dendura’s work refusal was genuine and not a way of obtaining the day off which had been denied to him. He did it before reporting to work, which was less disruptive to the employer’s operations. He could have chosen other options such as sick leave.

[111] Mr. Murphy refers to Keith Hall & Sons and to Ketcheson, in support of his submissions that the definition of danger has not changed, but was merely refined and simplified for clarity. It was not the intention of Parliament to restrict the definition of danger, nor to limit the scope with which one could claim danger.

[112] While Mr. Dendura was not in imminent danger at the time of his work refusal, he still unquestionably had the right to refuse work he felt would be a danger to him. While using the Internal Resolution Process was one method available to Mr. Dendura for him to raise his concerns, he is in no way required to do so before exercising his right to refuse dangerous work. It is Mr. Dendura’s position that the activity of coming out of a customer location without any knowledge of what is outside constitutes a danger. Working A/O would have exposed him to this hazardous activity. The exposure to this hazardous activity is capable of causing injury, grievous bodily harm, or death at any time, but not every time, with little or no warning.

[113] With respect to the cameras on the truck [text redacted] of the environment, Mr. Murphy pointed out that the only place [text redacted] can be viewed is from inside the personnel hatch. It would be impossible for a crew to [text redacted] around the vehicle when they are entering the truck.

[114] Mr. Murphy disputes the employer’s statement that members of the WHSC were involved in the process prior to the A/O model’s implementation. As a member of that Committee since January 2016, his only involvement with the A/O model’s implementation was being trained to do SRAs, performing SRAs and filling out the associated paperwork. He was trained on the model like every other truck employee was before being sent out to work the model.

[115] He also disputes the employer’s statement that employees are required to review the SRAs for every customer location prior to carrying out the ATM Services. During his training, Mr. Murphy claims that they were informed that crews could see an SRA upon request, but would not be given a copy. An SRA is considered a secure document, and is to stay under tight control. Crews are not required to review SRAs, but can if they ask.

[116] In closing, the following excerpt from Mr. Murphy’s submissions (page 5) captures the thrust of the position put forward on behalf of the respondent:

While my opinion of the Brinks All Off Model as it exists on paper has changed, I feel that the level of risk is increased, every time we are directed by management to deviate from the established SOPs in the model. Every time equipment fails to function as designed, and is sent out anyways, we are increasing the risk to our people. Every time we apply pressure on the crews to work faster, they will find ways to short-cut, usually [text redacted]. This undoubtedly increases the risk to our crews. The Brinks All Off Model is arguably safe, if we're working the model that's written down in Brinks Policy. I have many times been issued equipment that doesn't work as designed.

[…]

Often it seems that management is either unaware of what those Policies are, or they don't care, and they want work to get done. The Brinks All Off Model is only “safe”, if it is utilized properly, where standards are followed, and procedures performed correctly. All too frequently they are not, often at the direction of management, and that constitutes a danger under the Code.

[underlining added]

Appellant's reply

[117] Counsel for the appellant replied to each paragraph of the respondent’s submissions. Counsel first points out that much of the facts outlined in the submissions were not given under oath at the hearing and should therefore not be given any weight.

[118] In summary, the appellant replies that the evidence established that the training on the A/O model was adequate and the materials were developed in consultation with the National Health and Safety Policy Committee (NHSPC) and delivered by certified trainers.

[119] The appellant points out that the respondent admits that the A/O model is safe if it is operated in compliance with Brink’s policies and procedures. He deliberately breached the SOP and failure by employees to follow those procedures is beyond the ability of any employer to adequately plan and prevent.

[120] Regarding the defective equipment argument, the appellant referred to Mr. Honan’s testimony that as many as 10% of the A/O runs are not using the A/O model as a result of management discretion when an equipment issue occurs or some other operational contingency. This is clear evidence that Brink’s is vigilant in ensuring the safety of its crews and that its equipment is operational.

[121] Brink’s dispose d'un Comité local de santé et de sécurité à Edmonton et on s’attend à ce que des préoccupations en matière de sécurité soient soulevées auprès du comité afin qu’il y ait un consensus sur la façon de faire face aux contingences futures.

[122] Counsel for the appellant reiterates that Mr. Dendura’s refusal to work was not motivated by a concern for his safety. Brink’s further says that if the true motivation for Mr. Dendura’s refusal to work was a legitimate concern over the A/O model, one would have expected the refusal to have occurred within an hour or two of the Garda incident on July 8, 2016. That is not what happened. Rather, subsequent to the Garda incident, Mr. Dendura indicated his intention to work the A/O model with one adjustment in his schedule - namely, having Sunday night off. The significance of Mr. Dendura’s confirmation of his intention to operate the A/O route (albeit with a schedule adjustment) subsequent to the Garda incident cannot be overstated.

[123] As in Ketcheson, the issue in this case is whether there was a reasonable expectation that Mr. Dendura would be faced in the days, weeks or months ahead with a situation that could cause him harm as a result of his performance of the ATM Services using the A/O model. Suffice it to say that an employee is not, in accordance with the Tribunal’s decisions in Ketcheson and Keith Hall & Sons, entitled to refuse to work simply because they can “anticipate the dangers [they] could face” in the performance of a hazardous activity. That is not the test.

[124] In closing, the appellant argues that the law with respect to the amendments to the definition of “danger” in 2014 is now settled. The amendments did move the goal posts in several respects. The new definition adds both a time frame in which to assess the probability of danger and the concept of harm rather than root cause. As the Tribunal noted in Ketcheson (at para 191):

The new definition of “danger” is different than previous definitions. It represents more clearly what the reasonable employee would perceive as worthy of triggering a work refusal. In context, it is likely to encourage employees to sometimes recognize that their concern is not of high enough risk to be a “danger” and should be handled by other means and the basis of their concern is more of a root cause than a direct cause, and again, is more suitable to be addressed by other mechanisms under the Code

[125] The Tribunal in Ketcheson clearly said that not all risks are threats. A low risk either as a result of a low probability or low severity, is not a danger under the Code. Both the probability and severity elements must reach a minimum threshold before an activity can be considered a danger. In the case at hand, focused specifically on the A/O crew leaving the clients premises, the probability of an attack is extremely low with no evidence of any attacks in similar circumstances (guard performing [text redacted] without liability) or a guard and messenger traveling to an armoured truck following [text redacted] that conformed with Brink’s’ SOPs. Moreover, there was little if any analysis with respect to the severity of injury to employees involved in an attack aside from a review of newspaper clippings gathered by the Ministerial Delegate following his decision.

Analysis

[126] The respondent engaged in a refusal pursuant to subsection 128(1) of the Code, which 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.

[127] “Danger” is the key concept in the exercise of the employee’s right to refuse to work and in the exercise of the Minister’s power (through a Ministerial Delegate) to issue a direction to the employer under paragraph 145(2)(a) of the Code. Section 122 defines “danger” in the following manner:

122. (1) In this Part,

“danger” means any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered;

[128] The appellant appealed the direction pursuant to subsection 146(1):

146. (1) An employer, employee or trade union that feels aggrieved by a direction issued by the Minister under this Part may appeal the direction in writing to an appeals officer within 30 days after the date of the direction being issued or confirmed in writing.

[129] Subsection 146.1(1) of the Code sets out the authority of an appeals officer when a direction concerning a “danger” is appealed. An appeals officer 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 […]

[130] The definition of danger cited above was introduced with amendments brought to the Code by the Economic Action Plan (2013) Act, No.2, S.C. 2013, c. 40, and came into effect on October 31, 2014. The circumstances that gave rise to the refusal and the present appeal occurred subsequently to that coming into force. This new definition of danger must therefore be applied to determine whether the situation described in the evidence presented a danger to Mr. Dendura.

[131] The new wording of that definition has given rise to many commentaries and opinions by interested parties on the intended effect of the change. Some have expressed the view that the new wording had significantly narrowed the circumstances where a danger may be found to exist and significantly curtailed the situations where refusals to perform dangerous work may be justified. Others have advanced a contrary thesis, arguing that the new definition is a re-enactment of the former definition and is essentially conveys the same idea and the same legal principle, albeit in a less wordy manner.

[132] In two recent appeal decisions, appeals officers have had the opportunity to provide an interpretation on the meaning of the new definition: Ketcheson and Keith Hall & Sons. The parties in the present case were informed of those decisions and asked to consider them in the preparation of their submissions. Both parties referred to them as the starting point of their argument and I will do the same in my reasons.

[133] In Ketcheson, the appeals officer conducted an extensive review of the arguments presented to him regarding the meaning of the new definition. His conclusion was that the current definition of danger is different in nature from its predecessors and states as follows at paragraph 186:

[186] In summary, the legislative evolution of the definition of “danger” suggests that, in spite of some similarities in terminology, the 2014 definition is different in nature from its predecessors - both of them. It is neither a reversion to a pre-2014 “imminent danger”, nor is it merely a simplification of the 2000-2014 definition. There are two types of “danger”. They are both high risk, but for different reasons. The new definition adds a time frame for assessing probability. It adds the concept of severity of harm. In the context of the rest of the Code, a “danger” is a direct cause of harm rather than a root cause.

[134] The appeals officer states further, at paragraph 193:

[193] The caselaw during the period 2000-2014 contained many expressions for probability: “more likely than not”; “likely”; “reasonable possibility”; and “mere possibility”. What was often left unstated was the time period in which the probability was to be assessed: the day of the work refusal; the foreseeable future on the day of the work refusal; a year from the refusal? Is something likely? It may be almost certain to occur in the next five years, reasonably foreseeable to occur in the next year, but merely possible in the next five minutes. It is meaningless to talk about probability without specifying the time period. Unlike the 2000-2014 definition of “danger”, the 2014 definition, by distinguishing between “imminent threat” and “serious threat”, is adding a time frame for probability.

[135] And then moves on to define “threat”, as follows at paragraph 198:

[198] In the New Shorter Oxford English Dictionary (1993) the word “threat” is defined as: “a person or thing regarded as a likely cause of harm”. Thus, it can be said that based on that definition, a threat entails the probability of a certain level of harm. Some risks are threats and some are not. A very low risk, either because of low probability or because of low severity, is not a threat. Both probability and severity each have to reach a minimum threshold before the risk can be called a threat. It is clear that a low risk hazard is not a danger. A high risk hazard is a danger.

[underlining added]

[136] Likewise, the appeals officer in Keith Hall & Sons stated as follows:

[40] It also warrants noting that the concept of reasonable expectation remains included in the amended definition. While the former definition required consideration of the circumstances under which the hazard, condition, or activity could be reasonably expected to cause injury or illness, the new definition requires consideration of whether the hazard, condition, or activity could reasonably be expected to be an imminent or serious threat to the life or health of the person exposed to it. In my view, to conclude that a danger exists, there must therefore be more than a hypothetical threat. A threat is not hypothetical where it can reasonably be expected to result in harm, that is, in the context of Part II of the Code, to cause injury or illness to employees.

[41] For a danger to exist, there must therefore be a reasonable possibility that the alleged threat could materialize, in other words, that the hazard, condition or activity will cause injury or illness soon (in a matter of minutes or hours) in the case of an imminent threat; or that it will cause severe injury or illness at some point in the future (in the coming days, weeks, months or perhaps even years) in the case of a serious threat. It warrants emphasizing that, in the case of a serious threat, one must assess not only the probability that the threat will cause harm, but also the seriousness of the possible harmful consequences from the threat. Only those threats that can reasonably be expected to cause severe or substantial injury or illness may constitute serious threats to the life or health of employees.

[underlining added]

[137] I entirely endorse the analysis and conclusions reached by the appeals officers in those cases. The excerpts quoted above aptly summarize the legal concepts that will be relevant to the present case. Thus, the legal test to be applied to the facts in order to determine whether Mr. Dendura was in the presence of a danger (as currently defined in the Code) on July 17, 2016, may be set out as follows:

(i) what is the alleged hazard, condition or activity?

(ii) could this hazard, condition or activity reasonably be expected to be an imminent threat

or

could this hazard, condition or activity reasonably be expected to be a serious threat

to the life or health of a person exposed to it?

(iii) will the threat to life or health exist before the hazard or condition can be corrected or the activity altered?

[138] The first question then is to identify the “hazard, condition or activity” that is alleged to be a threat to the life or health of the employee. In the present case, the threat may be described by framing the issue as follows: the risk of being subject to a robbery attack when a crew returns to the armoured vehicle from a client’s location without a driver having remained in the vehicle to keep a watch on the surroundings and provide “fresh” intelligence to the crew upon exit.

[139] I will spend little time on the first element of the threat analysis, in other words whether the activity constitutes an imminent threat. The appeals officer in Ketcheson aptly described what would be required to establish that an employee is facing an imminent threat, at paragraphs 205 and 206:

[205] An imminent threat is established when there is a reasonable expectation that the hazard, condition or activity will cause injury or illness soon (within minutes or hours). The degree of harm can range from minor (but not trivial) to severe. A reasonable expectation includes a consideration of: the probability the hazard condition or activity will be in the presence of a person; the probability the hazard will cause an event or exposure; and the probability the event or exposure will cause harm to a person.

[206] There is no doubt the level of harm from inmate violence can range from minor to severe, but that is not the issue. There was nothing in the evidence put before me to indicate that there was a reasonable expectation that the respondent would be exposed to violence from an inmate on the day of the work refusal and that he would be harmed through inmate violence. The testimony of the respondent was that he was not exposed to an imminent or serious threat on the day of his work refusal. I have given some weight to this statement of the respondent, however, I do not believe that it is dispositive of the matter as was argued by the appellant since it is not clear to me that the respondent understood the meaning of imminent or serious threat as intended by the Code.

[underlining added]

[140] The parties are on the same page on this question in their submissions. Both submit that there was no evidence of an imminent threat being present on the day of the refusal. Mr. Dendura did not attend work for the shift in question and no particular factors or circumstances on that day were invoked that could support a finding that Mr. Dendura would be exposed to an imminent threat within minutes or hours on that day. The Ministerial Delegate never came to that conclusion either. I agree with the appellant that this activity could not reasonably be expected to be an imminent threat to the life or health of the respondent on the day of the refusal, in the circumstances of the present case.

[141] I turn to the next question, whether the “hazard, condition or activity” could reasonably be expected to be a serious threat to the life or health of the respondent. The combination of the concepts of “reasonable expectation” and “threat” in the statutory definition of “danger” evokes the notion that there must be a reasonable possibility that the hazard will materialize and cause harm to the life or health of the employees. The appeals officer in Ketcheson stated as follows, at paragraph 212:

[212] In order to conclude that the respondent was exposed to a serious threat to his health or life, the evidence has to show that there was a reasonable expectation that the respondent would be faced in the days, weeks or month ahead with a situation that could cause him serious harm as a result of not being able to carry OC Spray and handcuffs on his person.

[underlining added]

[142] Again, I agree with such formulation of the question that must be answered to satisfy the requirements of the definition of “danger”. I also agree that in order to find that an activity may “reasonably be expected to be a (…) serious threat to the life or health to a person exposed to it”, there must be more than a purely hypothetical threat. A threat is not hypothetical where it can reasonably be expected to occur and result in harm, that is, in the context of Part II of the Code, to cause injury or illness to employees.

[143] The determination of whether a threat is a real possibility as opposed to a remote or hypothetical possibility is not always an easy task. It is a matter of fact in each case and will depend on the nature of the activity and the context within which it is executed. Statistical information is relevant to make an informed factual finding on that question, although in the final analysis, it involves a question of appreciation of facts and judgement on the likelihood of occurrence of a future event, in the present case an event that is linked to unpredictable human behaviour..

[144] The appellant submits that the evidence establishes that the probability that an A/O crew member will be ambushed after exiting the customer location and returning to the vehicle is low and does not constitute a threat.

[145] Mr. Honan testified that Brink’s has operated its A/O model without incident for over 100,000 hours. Information provided by Brink’s to Mr. Elliott, and cited in his report, reveal that there have been ninety-nine (99) Cash-in-Transit incidents in Canada between 2000 and 2015. The statistical breakdown of these incidents shows that [text redacted] of incidents occurred on location, [text redacted] occurred exiting the vehicle, and [text redacted] of incidents occurred returning to the vehicle. Their statistics show that [text redacted] of these incidents were organized attacks. The type of force used in the attacks is broken down in the statistical information provided that [text redacted] were classed as other (Ram[m]ing-Physical-NA).

[146] Mr. Deslauriers testified that since 2000, of the 57 incidents involving A/O crews in the whole industry, [text redacted] occurred while the crew was returning to the vehicle; [text redacted] occurred while the crew was exiting the vehicle; and [text redacted] occurred while the crew was in the location. These statistics suggest that in the majority of cases the [text redacted]. Those statistics tend to show that the number of crew members on board a vehicle has little to no effect on a criminal’s decision-making process. The TRAK report states that “the overview of the literature does not provide any evidence that the number of armed guards or their specific role have a significant impact in explaining the frequency, severity and patterns of attacks” (TRAK report, page 36).

[147] Witnesses have also testified that the risk of an armed guard being attacked while conducting [text redacted] to allow the crew to re-enter the vehicle is low. In fact, there is no evidence of such an event ever having occurred or having been reported. The appellant highlights the importance of that [text redacted] as a preventive measure, reiterates that the guard is in a better position than a driver to fully explore the environment when exiting the location. The operational procedures, include the greater separation between the guard and the messenger, which reduces the ability of an assailant to disable or threaten both employees simultaneously. The appellant stresses the possibility for the employees to trigger alarms if attacked.

[148] In light of this evidence, the question for me to decide is whether there is a reasonable possibility that employees, whether on a 3-person or a 2-person crew, could be subject to a robbery attempt when they return to the armoured truck after finishing their task in the client location. Having thought this matter through, the submissions of the appellant do not persuade me that employees are not exposed to a danger when they are engaged in the activity of providing armoured car services to clients in general, and while they are engaged in the activity that is at the heart of the present appeal. In other words, in spite of the mitigation and protective measures adopted by the employer, the activity of carrying cash-in-transit inherently entails the real possibility that there will be attacks and robbery attempts on employees, whether working on a 2-person or 3-person crew. The statistics cited above speak for themselves. In fact, it is the very essence of the work performed by employees in that industry. The raison d’être of armoured car services is precisely to protect cash and valuables that are in transit, from robbers and criminals.

[149] This protection is ensured by an architecture of means involving physical assets (armoured trucks, tools, NCC) and employees, who are provided with protective equipment (firearm, bullet-proof vest, communications tools). All those layers of protection are designed, in their fundamental purpose, to dissuade criminals from attempting a robbery by making such an attempt more difficult or risky for them, or to reduce the risk of injury to employees in case of an attack. In other words, the genesis of those measures is, without question, the real possibility that an attack by criminals may occur at any point in time, without forewarning, and that such an event could be a serious threat to the life or health of employees. The hazard of being attacked is an ever-present feature of the work of an armoured car employee. The Job Hazard Analysis and Work Descriptions for the driver/guard and the messenger functions establish clearly that such a hazard is central to their work. The evidence before me refers to 57 attacks against A/O crews between 2000 and 2015 in the armoured car industry. Mr. Elliott’s report refers to 99 attacks altogether over the same period of time. Those attacks often involve the use by the assailant of a firearm or other weapon.

[150] Although the probability that the hazard materializes is characterized as low by the appellant’s representative, the possibility is real and substantial insofar as the armoured car industry is concerned and occurs with some regularity, as the statistics tend to show. It is not a purely hypothetical or speculative scenario.

[151] In Verville v. Canada (Service correctionnel), 2004 FC 767 (Verville), Gauthier, J. stated her view on the question of the reasonable expectation that a hazard materializes. I believe her thoughts continue to be relevant to the application of the new definition of danger, and the question it poses as I have framed it above:

[34] (…) the injury or illness may not happen immediately upon exposure, rather it needs to happen before the condition or activity is altered. Thus, here, the absence of handcuffs on a correctional officer involved in an altercation with an inmate must be reasonably expected to cause injury before handcuffs are made available from the bubble or through a K-12 supervisor, or any other means of control is provided.

[35] Also, I do not believe that the definition requires that it could reasonably be expected that every time the condition or activity occurs, it will cause injury. The French version “susceptible de causer” indicates that it must be capable of causing injury at any time but not necessarily every time.

[36] In that respect, I do not believe either that it is necessary to establish precisely the time when the potential condition or hazard or the future activity will occur. I do not construe Tremblay-Lamer's reasons in Martin above, particularly paragraph 57, to require evidence of a precise time frame within which the condition, hazard or activity will occur. Rather, looking at her decision as a whole, she appears to agree that the definition only requires that one ascertains in what circumstances it could be expected to cause injury and that it be established that such circumstances will occur in the future, not as a mere possibility but as a reasonable one.

[underlining added]

[152] The Court goes on to explain further:

[41] (…) If a hazard or condition is capable of coming into being or action, it should be covered by the definition. As I said earlier, one does not need to be able to ascertain exactly when it will happen. The evidence is clear that in this case, spontaneous assaults are indeed capable of coming into being or action.

[42] In the risk assessment report concerning the routine issue of restraint equipment dated November 8, 2001, the potential risk of confrontation between correctional officers working in the living units and the inmates

is said to be high (page 20) and the risk of assault is of low frequency but high severity (page 21) [6]. As indicated, Warden Urmson confirmed that such assaults were expected to occur and that was why handcuffs were available in the bubble.

[43] Thus, if those assaults could reasonably be expected to cause injury, they will come within the definition of danger. However, if that danger constitutes a normal condition of his employment, the employee will not have the right to rely on it to refuse to work (s. 128(2)(b)). But, that is very different than saying that unpredictability of inmates' behaviour is alien to the concept of danger in the Code.

[underlining added]

[153] I am therefore of the view that the performance of the activity described above could reasonably be expected to be a serious threat to the life or health of the respondent. There is no question that the risk of harm from a potential ambush can be severe, even fatal, even if I accept the employer’s characterization of the probability of the risk as low. The litany of mitigation measures set out by the employer in its evidence and submissions are indeed designed to reduce the risk of injury to a minimum, but will not prevent attacks from occurring. I consider that the discussion on the effect of those measures is more relevant to the question of whether the hazard/activity is a normal condition of employment, as opposed to the determination of whether employees performing the task are facing a reasonable possibility of being exposed to a serious threat, and as a result, exposed to a danger as defined in the Code.

[154] I find the following excerpt from Martin-Ivie v. Attorney general of Canada, 2013 FC 772, at paragraph 47, where the Court discusses the “low frequency, high risk” principle, to be relevant to the present analysis:

[47] As for the Appeals Officers’ decisions, they apply the principle not in determining whether a “danger” exists, but, rather, in assessing whether a work refusal is permitted under paragraph 128(2)(b) of the Code, which prohibits work refusals - even if a “danger” exists - in situations where the danger is a normal condition of the refusing employee’s employment. These cases, as well as Verville, establish that before a risk may be said to constitute a normal condition of an employee’s employment, the employer must have taken all reasonable steps to mitigate it. In such circumstances, the reasonableness of the steps taken by the employer will depend in part on the gravity of the risk: the greater the risk the further the employer must go to mitigate it (see e.g. Armstrong at paras 62-63; Éric V at paras 295-297, 301). Thus, the “low frequency, high risk” principle is applied to the assessment under paragraph 128(2)(b) of the Code but not to determining whether a danger exists. Moreover, in applying this principle, the required analysis under the Code necessarily involves consideration first of whether a “danger” exists and then, if so, consideration of whether such “danger” is a normal condition of the employee’s employment.

[underlining added]

[155] It also seems evident to me that should the possibility of an attack materialize, the employee would be exposed to the hazard before the activity could be altered, notwithstanding the measures put in place. The direction focusses on one particular aspect of the work method applied to the A/O delivery model, returning to the armoured truck. I conclude therefore that the activity of returning to the truck from the client’s location constitutes a danger to the employees concerned, as defined in the Code.

[156] This takes me to the next part of the analysis for the parties: is the activity in question, and the danger that it presents, a normal condition of employment? If that question is answered in the affirmative, employees cannot invoke the right to refuse under section 128 of the Code and accordingly, the Ministerial Delegate could not issue a direction based on a finding of danger in those circumstances.

[157] Subsection 128(2) reads as follows:

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

a) the refusal puts the life, health or safety of another person directly in danger; or

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

[underlining added]

[158] I turn again to the Verville judgment to provide guidance on that question. At paragraphs 52 to 57, the Court states as follows:

[52] Turning now to the conclusion in ii) at paragraph 40 above that the risk was inherent to the applicant's employment, the applicant concedes that his job description involves a risk of possible hostage taking, injury or danger when dealing with violent and hostile offenders. But he argues that the order given to him on September 24, was a variation of his normal conditions of employment and constitutes an increase of the risk or danger described above. The applicant relies on the Public Service Staff Relations Board's decision in Fletcher v. Treasury Board (Solicitor General Canada - Correctional Service), [2000] C.P.S.S.R.B. No. 58; Danberg and Treasury Board (Solicitor General Canada), [1988] C.P.S.S.R.B. No. 327 and Elnicki v. Loomis Armored Car Service Ltd, 96 di 149, CLRB Decision No. 1105, in which the Board acknowledged, in the context of refusals to work by correctional officers and security guards, that even though risk of injury or death was a normal condition of employment for these employees, an increased danger resulting for example from a change in the employer's policy (such as minimum staffing), was not automatically excluded under paragraph 128(2)(b) [7].

[53] There is no indication in the decision under review that the appeal officer considered this argument. His finding appears to be based on the simple fact that a risk of assault is always present in an environment such as the Kent penitentiary. As mentioned, he could not evaluate if the increased risk of injury was a normal condition of employment because he did not consider it to be more than an unproven hypothesis.

[54] […]

[55] The customary meaning of the words in paragraph 128(2)(b) supports the views expressed in those decisions of the Board because "normal" refers to something regular, to a typical state or level of affairs, something that is not out of the ordinary. It would therefore be logical to exclude a level of risk that is not an essential characteristic but which depends on the method used to perform a job or an activity. In that sense and for example, would one say that it is a normal condition of employment for a security guard to transport money from a banking institution if changes were made so that this had to be done without a firearm, without a partner and in an unarmoured car?

[56] […]

[57] In my opinion, the decision under review is unreasonable, in particular in that the appeal officer failed to consider evidence on a core issue on which his final conclusion rests.

[underlining added]

[159] The issue therefore is whether the employer has taken appropriate measures to guard against the danger identified above, and to reduce it to an acceptable level such that the activity and the residual hazard that it presents (the danger) can be said to be a normal condition of employment, as provided in paragraph 128(2)(b) of the Code. I must therefore consider the particular features of the A/O model and determine whether the measures implemented by the employer mitigate the risk to an acceptable level and fulfills the employer’s obligations under the Code. Any residual hazard remaining - being subject to an attack - would be a normal condition of employment.

[160] In P&O Ports Inc. and Western Stevedoring Co. Ltd. v. International Longshoremen’s and Warehousemen’s Union, Local 500, 2008 FC 846, the Federal Court set out the following analysis with regard to the question as to whether a danger constituted a normal condition of employment:

[46] The Appeals Officer held as follows at paragraph 152:

[152] 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.

[153] Once all 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.

[154] For the purpose of this case, I find that the employers failed, to the extent reasonably practicable, to eliminate or control the hazard within safe limits or to ensure that the employees were personally protected from the hazard of falling off the hatch covers.

[161] Such analysis stems from sections 122.1 and 122.2 of the Code, which sets out the purpose of the Code and the hierarchy of preventive measures an employer is required to implement:

122.1 The purpose of this Part is to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment to which this Part applies.

122.2 Preventive measures should consist first of the elimination of hazards, then the reduction of hazards and finally, the provision of personal protective equipment, clothing, devices or materials, all with the goal of ensuring the health and safety of employees.

[162] At para 214 of the Ketcheson decision, the appeals officer states as follows:

[214] While the evidence presented in this case has made clear that the respondent is exposed to violent inmates in the performance of his regular duties and that the possibility of an assault by an inmate is always present in a correctional institution, I was not presented with any evidence that would serve to demonstrate how the carrying of handcuff or OC Spray would prevent assaults on CMs or would decrease the level of violence from inmates particularly in light of the fact that these two pieces of equipment are already provided to CO officers. Moreover, the appellant has provided evidence to establish that numerous measures are in place at the Millhaven institution to mitigate against risk to CMs and all other staff in the performance of their duties.

[underlining added]

[163] I note, as the employer does, that the danger identified by the Ministerial Delegate and by the employees is circumscribed to one specific step in the A/O process: returning to the armoured truck and the greater risk of being attacked because employees no longer have information of suspicious persons or activities occurring outside while they are inside the customer's location. Accordingly, my conclusions will relate specifically to that aspect of the process, which is the sole basis of the direction. That being said, I believe that the A/O model and all of its features must be looked at in their entirety in order to make an informed determination on the specific problem the direction purports to address.

[164] The answer to the question must therefore be based on the whole of the evidence that was placed before me at the hearing. First, there is no relationship established between the number of crew members and the number of attacks: 3-person crews have been the subject of attacks, as 2-person crews have been as well. There was no evidence presented that being attacked when working in a 2-person crew has created a higher rate of injury or fatality than working in 3-person crew. With respect to Brink’s A/O runs, there were no attacks reported since they implemented them in November 2015 in the Edmonton area.

[165] Taken narrowly, the situation created by the absence of the driver in the truck could conceivably lead one to conclude that one of the hazards that had been identified under the traditional 3-person model - and the corresponding preventive measure that was established to mitigate the hazard -, has simply not been addressed under the A/O model. This is the equation that formed the basis of Mr. Elliott’s finding. But this is not what the evidence reveals, in my view. In all fairness to Mr. Elliott, he did not have the benefit of the comprehensive presentation of the employer’s rationale made at the hearing of the appeal, which is de novo process. I find on the basis of the evidence and the submissions presented, that the hazard present when the crew returns to the truck is not ignored or left unaddressed, but is rather being dealt with in a different manner by the appellant. Both parties seem to agree that employees should be provided with timely and accurate information about the risks they might encounter when returning to the armoured car. Where the parties part company, though, centers on how this should be done. I accept the appellant’s argument that the situation at hand is capable of being assessed differently than under the “3-person crew paradigm”.

[166] The hazard present in this case is related to unpredictable and criminal human behaviour, and as such cannot be eliminated. Having considered all of the evidence before me, I am persuaded that the employer has reduced the risk associated with such hazard to the extent reasonably practicable.

[167] First, the operating procedures relating to the A/O work method have been updated to address this new environment: separation between the guard and the messenger, increased vigilance, etc. Crew members are required to review the SRAs for every customer location prior to carrying out the ATM Services and must conduct a premise inspection. The relevant part of the SOP, as it relates to the “return to the vehicle” process, reads as follows:

Returning to the vehicle

1. Once the service has been completed and the crew is ready to exit the secure transaction room, they are both to confirm they are prepared prior to unlocking the door.

2. Driver/Guard and messenger are to maintain prescribed separation inside premise when outside the secure area.

3. [text redacted].

4. [text redacted].

5. [text redacted.

6. [text redacted].

7 [text redacted].

[168] Second, I have described at length earlier in these reasons the various elements put in place to support the A/O model and will only repeat their essential features:

  • The truck configuration is significantly different and presents layers of preventive measures to make it more difficult for robbers to be successful and presents improved ease of access and visibility around the truck.
  • The mandatory preparation of an SRA for each client site to be serviced, that must be signed off by management and the employee representative on the local WHSC, as demonstrated with run 72. The site risk assessments for run 72, the A/O run in question, were completed well in advance of Mr. Dendura’s July 17, 2016, shift. Mr. Murphy signed off as the Worker Assessor on all SRAs for run 72. With a preventive purpose, the SRA identifies the potential problems and risks created by the configuration of each location, so that corrective measures can be taken ahead of time.
  • The communication tools are sophisticated and the crew is supported by a NCC which is in constant communication with the employees and effectively controls the vehicle, as required.
  • The employees are also provided with high quality PPE (e.g. bulletproof vests) and can easily trigger alarms and distress calls as required.
  • Employees are required to take training specific to the A/O model, which includes both a classroom (4 hours minimum) and practical (3 hours) component, before they are permitted to work an A/O shift. The training material is substantial and I was given no basis to find that it was inadequate.

[169] In other words, I am persuaded that the implementation of Brink’s A/O model has been carefully planned and the hazards carefully considered by management, with the assistance of Mr. Brien, a person with considerable experience in the field of risk assessment in a context of security and criminal activities. Furthermore, the evidence presented by the witnesses called by the employer and based on many years of experience in the armoured car industry, is that it is highly unlikely that a guard doing a [text redacted] or a [text redacted] before allowing the messenger to return to the vehicle will be subject to an attack. Understandably, as the guard does not carry any valuables and is armed, he is an unlikely target for robbers. There was no evidence adduced of a guard being attacked or harmed when he was not carrying any liability or when he was not in proximity to the messenger who was carrying liability. In other words, it is statistically unlikely that a guard will be attacked or exposed to a danger while performing a [text redacted] or [text redacted]. The respondent witnesses did not challenge such assertion.

[170] Moreover, it is submitted that the [text redacted] that A/O crew members are required to perform as part of the SOP effectively replaces the surveillance a driver would provide with an enhanced level of security, because it provides the armed guard with the ability to observe the immediate surroundings without being impacted by potential “blind spots” that may result when the driver surveys the environment from the seating area of the truck. In fact, it was mentioned that robbery attempts have taken place near the truck in the past without the driver even noticing them. That assessment was expressed by Mr. Deslauriers, an individual with 27 years in the security industry and 22 in the CIT industry, and was not challenged by the respondent.

[171] It was demonstrated that the armed guard may actually take a view of areas that could not be seen by the driver and gain a better sense of whether suspicious activities are taking place. While camera views are also possible from the dash, I have no reason to reject the appellant’s assertion that it is the value of the [text redacted] and the constant observation and vigilance by the A/O crew when returning to the vehicle that provides the crew with the best information regarding any potential hazard(s) and the ability to take appropriate action to abate said hazard(s).

[172] The traditional 3-person crew presents the risk that the driver might be inattentive, or that the other 2 crew members place too much reliance on the presence of the driver: it was stressed that not having the driver present in the truck was likely to result in heightened vigilance on the part of the two crew members, thereby enhancing their safety. Both Mr. Deslauriers and Mr. Honan went as far as saying that in many respect, the A/O model is safer that the traditional 3-person crew. Without necessarily endorsing that conclusion, I conclude from the evidence that 3-person crews and A/O crews each have their strengths and weaknesses and that employees working on Brink’s’ A/O crews are not in a more dangerous situation than when they are part of a 3-person crew.

[173] The respondent’s representative, himself an employee of Brink’s in Edmonton, agreed at the end of his testimony that he no longer considered the A/O model to be unsafe, although he still “had concerns with it”. The argument and evidence presented on behalf of the respondent to illustrate that concern are mainly related to equipment failure or failure to apply the work procedures with diligence. It is likely that those concerns are present under any operational model. I find the examples of such equipment failure given in evidence by Messrs. DeFazio and Murphy to be anecdotal at best. The witnesses speak of equipment failures or not following the procedures “on a few occasions”. There is no evidence of a systemic negligence or tolerance on the part of the employer, or that local management allowed the transgression of operational procedures or ignored faulty equipment, to the point where the integrity of Brink’s’ A/O model would be jeopardized. The evidence led before me is quite to the contrary and the instructions given to staff are that the rules and procedures should be followed at all time, subject to disciplinary action. Mr. DeFazio indeed acknowledge in his testimony that he was disciplined for having “cut corners” on a safety precaution. The evidence establishes that equipment failures are dealt with on a case by case basis and reported. Mr. Honan testified that when particular issues were identified, Brink’s would address the contingency by putting a third person in the truck, or taking some other remedial measure that may be required. This occurred on 10% of the A/O runs.

[174] If supervisors or employees are at fault in complying with procedures, or if the equipment fails, these matters ought to be reported to the WHSC in due course. It would not be appropriate for me to determine the issue raised by the appeal on the assumption that the equipment may be defective or the possibility that operational procedures may not be followed. Had such a situation been demonstrated, I would agree that the evaluation of the risk and hazard could be different. It is not the case here.

[175] I also note that none of these scenarios were invoked by Mr. Dendura the day of the refusal or found to exist by Mr. Elliott. No evidence was adduced showing that the equipment or vehicle was not functioning properly, or that Mr. Dendura had not been trained on the A/O model, or that there was anything abnormal on that day. The refusal, even when looked under its most favourable light to the employee, was allegedly made because of the attack of a 2-person crew that had taken place on July 8, 2016, involving a Garda employee. As I stated earlier, the nature of the business is that there have been attacks in the past against 3-person crews, and against 2-person crews, and there will likely continue to be robbery attempts in the future, whatever delivery model is being used. Thankfully, Brink’s has had no attack on its A/O runs to date.

[176] Furthermore, I find it of significant importance the fact that the Teamsters Policy Committee has been consulted and involved in the assessment of the A/O model, the development of the work methods and procedures, and has not opposed the implementation of the A/O model for the employees it represents.

134.1 (4) A policy committee

[…]

(h) shall participate in the planning of the implementation and in the implementation of changes that might affect occupational health and safety, including work processes and procedures.

[underlining added]

[177] The evidence is uncontested that Brink’s’ A/O model was implemented in consultation with the Policy Committee. In Edmonton, local WHSC members were involved in the process prior to the A/O model’s implementation. This involved training on the model, risk assessments, reviewing the SOPs, the roll out schedule, etc. The involvement of the Policy Committee is consistent with the Code’s preference for the experts in the work place to review and reach a consensus on the safe operations of their respective work place. The parties are presumed to know their trades and the particular hazards in their work place, and the Policy Committee is a well-suited forum to address those matters. As the Tribunal noted in Ketcheson (at para. 146), the scheme of the Code is to encourage the parties to work collaboratively and resolve issues in the work place without the intervention of safety officers if possible.

[178] Although it is not determinative of the appeal, I find that the existence of union-employer consensus at the Policy Committee is persuasive that the A/O delivery model, in particular the activity of returning to the truck in the delivery process, does not present an unusual and unacceptable level of risk for employees. I also point out that Union representatives attended the hearing and heard both the employer’s evidence and the employees’ concerns, and the decision that the union took not to participate in the appeal proceedings as a party is consistent with the consensus reached at the Policy Committee.

[179] As I mentioned above, the employees concerns are largely based on examples of equipment malfunctioning, and inadequate training (classroom and on-shift). Mr. Elliott made no reference to inadequate training or equipment malfunction. His decision was based on the sole factor of there being no driver in the truck. In his analysis, Mr. Elliott relied on the appeal decision rendered in Brazeau et al. v. Securicor Canada Limited, Decision No. 04-049 (December 16, 2004) (Securicor). The appeals officer in that case found that the employer’s decision to change the delivery method from a 3-person crew to a 2-person crew (no driver staying in the truck) presented a danger to employees and was not a normal condition of employment. In his opinion, the presence of the third guard (driver) minimized the risk of successful attacks because it could radio information to the other crew members when they were at the point of returning to the armoured truck from the client location, and removing the third person increased the risk of being ambushed and subject to serious injury.

[180] On its face, the issue is seemingly similar to the instant case. However, as I have stated earlier, the assessment of a hazard is often driven by the particular context within which the activity is taking place. Thus, it is important to note the factors set out in the appeals officer’s reasons in Securicor to reach such a conclusion: (i) the employer implemented the change without having put in place customized procedure to take into account the change in work method -- for example, the instructions to employees in case of distress included the driver leaving the premises to secure the cash and remove the possibility of hostage-taking, where in fact there was no driver in the truck; (ii) the communications tools were proven to be inadequate and deficient; (iii) the refusal took place on a particular site, where suspicious-looking individuals had been observed; (iv) the training given to employees was determined to be deficient, in that it only lasted less than one hour and was not mandatory (the appeals officer expressed “astonishment” at the systemic lack of training); (v) the employer had made the change without consultation with the health and safety committee; (vi) the hazard assessment was found to be inadequate, was generic and not site-specific and omitted a number of factors. In brief, a perfect storm in the making.

[181] The outcome in Securicor was essentially driven by the appeals officer’s finding that the employer had simply reduced the staff of the crew, without consultation with those affected and without focussing on mitigation measures related to this particular model. The Securicor decision is therefore distinguishable from the present case in many aspects and I do not give it much precedential value. The evidence placed before me established quite a different scenario, as I have demonstrated above.

[182] The notion of whether a danger exists or is a normal condition of employment is in large part a matter of fact and context in each particular case. Evaluating the risks in the context of unpredictable human behaviour is not an exact science and is largely a matter of judgement. The judgement must be an informed one, and must rest on the totality of the evidence. This evidence includes statements made by witnesses who have considerable experience and expertise in the area of risk assessment relating to security, cash-in-transit and factors linked to criminal activities. In conclusion, I have no basis in which to find that the 2-person crew working under Brink’s’ A/O delivery model as it was presented to me, increases the risk of injury beyond the employees’ normal conditions of employment. In light of the very nature of the work, the residual hazard - the risk of being attacked - that remains after the employer has implemented the mitigating measures described above, is a normal condition of employment.

[183] Consequently, I find that the direction issued on August 18, 2016, by Mr. Jason Elliott, in his capacity as Ministerial Delegate, is not well-founded and should be rescinded.

Decision

[184] For the above reasons, the appeal is upheld and the direction is rescinded.

Pierre Hamel

Appeals Officer

By email

January 24, 2017

Case name: Brink's Canada Limited and Robert Dendura

Case No: 2016-34

Mr. Gregory J. Heywood

Roper Greyell LLP

1850-745 Thurlow Street

Vancouver BC  V6E 0C5

Mr. Les Murphy

14680 134 Avenue

Edmonton AB  T5L 4T4

Re: Appeal under subsection 146(1) of the Canada Labour Code

Mr. Heywood and Mr. Murphy,

This is further to counsel for the appellant’s letter of January 17, 2017, in relation to the hearing of the appeal referenced above, scheduled to be heard between January 30 and February 3, 2017, in Edmonton, AB. The appellant is seeking an order that the hearing in the appeal referenced above be held in camera without the presence of the public, and only in the presence of specifically identified authorized persons. The appellant also seeks a Confidentiality Order regarding the documentation and Exhibits that will comprise and that currently form the Tribunal’s record (“the Confidential Information”). The grounds supporting the present Application, as submitted by the appellant, are that:

i) the information in this case is proprietary information that is sensitive and by its very nature, kept in confidence by Brinks. Such information includes, but is not limited to Brinks’: a) A/O operations training program; b) standard operating procedures (SOPs) regarding returning to the vehicle; c) employee handbook; d) site risk assessments ATB 897 and ATB 766; and e) external third party report (TRAK) of the job hazard analysis and risk assessment relating to the A/O model (the “Report”) (e) any documents, notes or recording of evidence that pertains any of the above information (the “Confidential Information”). Brinks notes that the Investigation Report and Decision prepared by Jason Elliott, Official Delegated by the Minister of Labour, dated August 26, 2016; and there is also a real and substantial risk that the security of its system and the safety of its employees could be undermined if persons with unlawful intentions become aware of the Confidential Information.

The respondent’s representative does not object to the Application.

Having reviewed the submissions of the parties and in light of the nature of the issues raised by the present appeal, I hereby grant the Application. Detailed reasons for my decision will be provided in my decision to come on the merits of the appeal (“the Final Decision”).

Consequently, I Order as follows:

1. The hearing of the present appeal will be held in camera;

2. Attendance at the hearing will be limited to the following “Authorized Persons”:

i) counsel for the appellant, Mr. Gregory Heywood, and any management representative of Brinks (to be identified at the hearing);

ii) the respondent, Mr. Robert Dendura, his representative, Mr. Les Murphy, and Mr. Alessandro DeFazio;

iii) Teamsters Union representatives (to be identified at the hearing);

3. At the outset of the hearing, the Authorized Persons will be required to sign an undertaking that will ensure that the Confidential Information will be kept strictly confidential and shall be used only for the purpose of the present appeal. The Authorized Persons shall undertake to:

i) maintain the Confidential Information in confidence at all times;

ii) not make copies of the Confidential Information;

iii) not disclose the Confidential Information, in whole or in part, in its original form or by way of summary or analysis, to anyone except as explicitly ordered by the appeals officer or otherwise authorized by the appellant;

4. All Confidential Information comprising the Tribunal’s Record, including the Report prepared by Mr. Jason Elliott, Official Delegated by the Minister of Labour, and its attachments and supporting documentation, shall be sealed and shall not be disclosed to persons other than the Authorized Persons;

5. Documents that are to be introduced in evidence at the hearing shall be unredacted copies of the documents and shall be sealed in order to protect their content from public disclosure;

6. In writing my decision on the merits of the appeal, the undersigned appeals officer shall, to the extent possible, avoid going into the specific details of the evidence, in particular the mitigating measures that will be presented by Brink’s Canada regarding the All Off Model, unless doing so is necessary to provide a fulsome and intelligible analysis and reasons in support of my findings and decision.

7. In any event, the parties’ representatives shall be given an opportunity to review the Final Decision for the purpose of redacting parts thereof, for the purpose of protecting the Confidential Information, prior to the decision being published by the Tribunal in the ordinary course of its operations.

Signed in Ottawa, this 24th day of January, 2017.

Pierre Hamel, LL.M.

Appeals Officer

Report a problem or mistake on this page
Please select all that apply:

Thank you for your help!

You will not receive a reply. For enquiries, contact us.

Date modified: