2017 OHSTC 13

Date: 2017-07-31

Case No.: 2014-71

Between:

Denis Tessier, Appellant

and

Canada Post Corporation, Respondent

Indexed as: Tessier v. Canada Post Corporation

Matter: Appeal under subsection 129(7) of the Canada Labour Code of a decision rendered by an Official Delegated by the Minister of Labour

Decision: The decision is confirmed

Decision rendered by: Mr. Pierre Hamel, Appeals Officer

Language of the decision: English

For the appelant: himself

For the respondent: Mr. Stephen Bird, Bird Richard

Reference: 2017 OHSTC 13

Reasons

[1] These reasons concern an appeal brought under subsection 129(7) of the Canada Labour Code (Code) by Mr. Denis Tessier against a decision that a danger does not exist rendered on December 19, 2014, by Mr. Dave Mac Neil, in his capacity as an Official Delegated by the Minister of Labour (hereinafter the “Ministerial Delegate”).

Background

[2] At the material times, Mr. Tessier was employed by the Canada Post Corporation (“Canada Post” or “the employer”) as a “MAM-11” maintenance technician at the Canada Post Ottawa Mail Processing Plant (OMPP), located at 1424 Sanford Fleming Avenue, in Ottawa. Mr. Tessier now works in the same facility as an EL-5 maintenance lead hand.

[3] On December 4, 2014, Mr. Tessier refused to perform his duties and invoked section 128 of the Code, on the grounds that a condition in his work place presented a danger to him. The reason stated on the Refusal to Work Investigation Employer Report is as follows:

[4] The reasons for his refusal are further developed in his written justification, as follows:

[5] As mandated by the Code, the employer conducted its investigation into the circumstances of the refusal and concluded that the condition at the work place did not present a danger to Mr. Tessier. The appellant was not satisfied with the employer’s conclusion and a second investigation, involving the Local Joint Health and Safety Committee (LJHSC) was conducted.

[6] The investigation report sets out the employer’s conclusion that no danger was present:

[7] The employee Co-Chair of the LJHSC disagreed with the employer’s analysis and conclusions and expressed the opinion that the low humidity levels at the OMPP and the medical condition of Mr. Tessier presented a danger for him, and that the issue he had raised earlier that year had not been resolved.

[8] As Mr. Tessier was not in agreement with the findings and outcome of the internal investigation, the matter was referred to the Labour Program of Human Resources and Skills Development Canada (HRSDC), as it was named then. On December 12, 2014, Ministerial Delegate Dave Mac Neil attended at the OMPP and conducted his investigation into the work refusal. On December 19, 2014, he determined that a danger did not exist, “based on the evidence gathered at the time of the investigation, and the procedures and policies in place”.

[9] On December 27th, 2014, Mr. Tessier brought an appeal against the Ministerial Delegate’s decision on the following grounds: “same workplace conditions as March 7th, 2014; direction was given to employer” and that Canada Post was “still in non-compliance”.

[10] In order to better understand the issues raised by the appeal and the parties’ arguments, it must be mentioned that prior to the work refusal under appeal, Mr. Tessier had also previously exercised his right to refuse to work on February 28th, 2014, asserting that a danger existed in the work place due to low humidity levels. On March 7, 2014, Ministerial Delegate Mac Neil agreed with Mr. Tessier and issued the following direction to the employer (“the March 7, 2014 direction”):

[11] During the course of the pre-hearing teleconference held on November 8, 2016, counsel for the respondent raised the fact that I had been employed with Canada Post between 1986 and 1988 and that we had both worked as counsel in Canada Post’s Legal Department in Ottawa and Montreal respectively, during those years. Mr. Bird wanted to ensure that this information was disclosed and brought to the appellant’s attention, so as to deal with any argument of reasonable apprehension of bias that this situation could give rise to.

[12] On November 9, 2016, Mr. Tessier was requested to inform the Occupational Health and Safety Tribunal Canada (Tribunal) whether he had an objection with the undersigned hearing the appeal for that reason. On November 9, 2016, the appellant informed the Tribunal that he had no such objection.

[13] The respondent, Canada Post, also signaled in the course of the teleconference that it would be taking the position that the appeal is moot, as the appellant is no longer required to work under the conditions that caused him to refuse to work on December 4, 2014. The hearing on the merits proceeded under reserve of the respondent’s claim of mootness, and argument would be included as part of the respondent’s final submissions.

[14] The appeal was heard in Ottawa on November 30 and 31, 2016, and continued on February 14, 2017. Final written submissions were filed with the Tribunal on April 7, 2017, and additional clarification by the appellant on April 12, 2017.

The issues

[15] The issues raised by this appeal are as follows:

(a) is the appeal moot because Mr. Tessier is not required to work in the conditions at issue?

(b) if not, was Mr. Tessier exposed to a “danger”, as defined under the Code, when he exercised his right to refuse to work on December 4, 2014, under the conditions that prevailed on that day?

Submissions of the parties

A) Appellant’s submissions

[16] The appellant first submits that a direction is a statutory instrument that must be complied with. He refers to the March 7, 2014 direction and states that the conditions that constituted a danger, extremely low relative humidity, had already been established by that prior direction given to the employer. That direction had not been appealed by the employer and had full force and effect.

[17] The appellant reiterates that the December 4th refusal was invoked due to the non-compliance to the previous direction of danger on March 7, 2014. He submits that the work refusal was a last resort measure that he had to take because the employer had not resolved the situation that gave rise to the March 7, 2014 direction, and that was reoccurring with the start of the heating season.

[18] The appellant submits that the employer never contested the condition that existed in the work place regarding the low relative humidity readings. He submits that the change in the definition of danger that came into effect on October 31, 2014, was the “administrative manipulation justification” by the employer to, instead of complying with the direction, use this change of definition as a reason to not have to comply with the March 7, 2014 said direction.

[19] The appellant then refers to publications of the Labour Program on the new definition of danger, which is not limited to “imminent” but also includes “serious threat” to an employee’s health and refers to the test as set out and discussed in Correctional Service of Canada v. Ketcheson, 2016 OHSTC 19 (Ketcheson). The answers to be given in application of that test are as follows: (i) the hazard, condition or activity can be described as extremely low relative humidity; (ii) that condition can reasonably be expected to be a serious threat to the life or health of a person exposed to it (as established by the WSIB Advisal Report (Exhibit A-13) and the Specialist letter (Exhibit R-2) adduced in evidence); and (iii) the threat exists before the condition can be corrected, as asthma could be an unpredictable and occasionally dangerous condition which could cause sudden and unexpected shortness of breath sometimes requiring an emergency visit.

[20] The appellant stresses that the low relative humidity problem at the OMPP has been in existence for many years as established by the documentation adduced in evidence at the hearing. Reports from engineering firms and contractors all point to a very low humidity level, well below the acceptable level. It is established that the recommended indoor humidity should read between 25% to 60% and equally clear that the lower threshold was not met on December 4, 2014.

[21] The appellant further refers to emails sent by various Labour Program Officers to Canada Post, reiterating the need to comply with the ASHRAE (American Society of Heating, Refrigerating and Air Conditioning Engineers) Standard and the Indoor Air Quality Guide of Health Canada (dated 1995) where it refers to the ASHRAE standard and specifies a relative humidity range of between 25% and 60%, and that the updated ASHRAE standard even specifies levels of 39% to 60%. The Canada Post Indoor Air Quality Guidelines also speak to a recommended indoor humidity levels of 24% to 60%.

[22] The appellant then makes reference to a number of sections of the Code, namely section 124 and 125(x) [sic] (compliance with a direction), subsections 129(3.1) and (6), the definition of “danger”; to a summary appearing on the Tribunal’s website regarding the amendments to the definition of danger and their transitional provisions; and excerpts from the Employment and Social Development Canada (ESDC) website explaining the changes to the definition of “danger” in the Code.

[23] In anticipation of the employer’s argument regarding mootness, the appellant stresses that it is not an acceptable condition of employment for an employee to have a need for medication in order to perform his duties due to an employer’s violation of a direction. The medical clearance obtained and demanded by Canada Post in order for the appellant to return to his substantive position is very restrictive and the employer had continuously denied the appellant’s return to his substantive position since February 1, 2016. Mr. Tessier submits that he is presently “self-accommodating” in his work place due to the employer’s non-compliance with the March 7, 2014 direction.

[24] In conclusion, the appellant summarizes his position as follows, at page 10 of his submissions, and pleads that the “no danger” decision should be overturned:

B) Respondent’s submissions

Mootness

[25] The respondent submits as its primary position that this Appeal is moot because, regardless of whether a condition of danger existed on December 4, 2014, Mr. Tessier is no longer exposed to the conditions with which he takes issue.

[26] The Tribunal has determined that an Appeals Officer must apply the two-step analysis developed in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, pages 353-354 when determining whether an appeal is moot:

[27] Counsel for the respondent reviewed the Tribunal’s caselaw and highlighted a number of precedents where an appeal was dismissed by reason of mootness in circumstances akin to the present case (Gauthier v. Correctional Service of Canada, 2016 OHSTC 12; Correctional Service of Canada v. Mike Deslauriers, 2013 OHSTC 41; Somers v. Canada Post Corporation, 2016 OHSTC 4).

[28] Canada Post submits that, much like in the above-cited cases, Mr. Tessier is not required to perform in the conditions at issue in the work refusal other than in time limited circumstances which are consistent with his medical clearance and thus, a finding that this practice constituted “danger” under the Code would constitute an empty exercise, since the remedy sought by Mr. Tessier has already been implemented: Mr. Tessier has access to a humidified area and is medically cleared to walk around the OMPP.

[29] The respondent further submits that Mr. Tessier performs the majority of his work in a location within the OMPP which is humidity controlled or where the humidity is closer to the ASHRAE recommended levels on a consistent basis. For the periods of time which he is required to work in areas where humidity is less controlled, these activities have been medically sanctioned. No medical evidence has been presented that, since Mr. Tessier assumed the EL-5 duties, that there have been any humidity related health issues, nor did Mr. Tessier so allege.

The Merits

[30] In the alternative, the respondent submits that in any event, the second question on appeal must be answered in the negative, because on the day of his work refusal, Mr. Tessier was not exposed to any condition that could reasonably be expected to be an imminent or serious threat to his life or health before it could be corrected.

[31] Mr. Tessier has characterized his December 4th, 2014 refusal as a continuation of the March 7, 2014 direction. Such a concept is not contemplated under the Code.

[32] It appears that the major motivating factors for the December 2014 refusal was Mr. Tessier’s desire that Ministerial Delegate Mac Neil initiate a prosecution against Canada Post and because of Mr. Tessier’s perception that Canada Post had not complied with the March 7, 2014 direction.

[33] The Code provides mechanisms for enforcement of directions. This is not one of the powers provided to the Minister under section 141. Rather, enforcement occurs through prosecution, for which Ministerial consent is required pursuant to section 149(1). ESDC has not only not taken any steps to initiate a prosecution, they have closed the file on this matter.

[34] The respondent emphasizes the wording of the March 7, 2014 direction, which referred to “asthma attacks due to his length of exposure to extremely low humidity levels in the workplace…” of note is that the direction is specific to Mr. Tessier. The hazard or condition was “his length of exposure to extremely low humidity levels in the workplace”. The direction does not state that any certain level of relative humidity is, in and of itself, a danger to Mr. Tessier or any other employee - it merely directs that Mr. Tessier’s “length of exposure” to low humidity be addressed.

[35] The respondent also notes that the direction does not require Canada Post to maintain a 25% relative humidity in the facility, contrary to much of the evidence which was adduced at the hearing. There is no legislative requirement to maintain such a level, nor is there any medical or scientific basis to conclude that failure to do so would result in either an “imminent” or “serious” threat to health and safety in general. Similarly, there is no evidence that relative humidity values below this threshold pose a danger to Mr. Tessier. Indeed, there is a complete absence of any information, medical or otherwise, which would support this premise.

[36] Counsel for the respondent argues that Labour Program inspectors who became involved in the present file over time, had misconstrued the original direction by stating that a minimum level of 25% relative humidity had to be maintained at all times, which is not what the direction stated. The obligation contained in the Canada Occupational Health and Safety Regulations, SOR/86-304 (the “COSH Regulations”) is with respect to design, not relative humidity. ASHRAE Standard 62-1989 makes no reference whatsoever to relative humidity.

[37] The respondent points out that the delineation of a 25% relative humidity minimum comes not from ASHRAE 62, but rather, from ASHRAE 55, a document which is not referenced in the COSH Regulations. Mr. Tessier referenced a Canadian Centre for Occupational Health and Safety (CCOHS) excerpt on “Indoor Air Quality”, which indicates that ASHRAE Standard 55 “aims to ensure a thermal environment that will satisfy 90% of the occupants”. This is not synonymous with indicating that the remaining 10% are at a serious health risk - rather, it merely indicates that they may experience varying degrees of discomfort.

[38] Counsel also refers to subsection 2.24(1) of the COSH Regulations, which references the Canadian Standards Association (CSA) Guideline Z204-94, and requires every employer to “appoint a qualified person to set out, in writing, instructions for the operation, inspection testing, cleaning and maintenance of an HVAC system ... ”. This Guideline references ASHRAE 55 in Appendix “A” - Discussion of Acceptable Air Quality (page 32), but specifically indicates at the “Note” that “This Appendix is not a mandatory part of the Standard”.

The new definition of “danger”

[39] Counsel for the respondent referred to several extracts of the recent Tribunal decisions in Ketcheson, and Keith Hall & Sons Transport Limited v. Robin Wilkins, 2017 OHSTC 1 (Keith Hall & Sons), which have both interpreted and applied the new definition of danger further to the amendments brought to the Code by the Economic Action Plan (2013) Act, No.2, S.C. 2013, c. 40, and that came into effect on October 31, 2014.

[40] After characterizing the analysis in those decisions as “cursory”, counsel for the respondent takes the position that the new definition made the following alterations to the law:

a) by the elimination of the terms “potential hazard or condition” and “or future activity”, the Code now requires an analysis of the circumstances which present themselves at the time of the refusal; b) there are two potential heads of refusal - a danger which constitutes an “imminent” risk and one that constitutes a “serious” risk of harm. Both heads require that the hazard or activity be a “threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered”.

Imminent threat

[41] The respondent argues that there is simply no evidence to support that any particular level of relative humidity constituted an “imminent” risk of injury to the health of Mr. Tessier. The medical documentation did not at any time indicate that mere exposure to relative humidity below 25% posed any risk, Imminent or serious, to Mr. Tessier. The medical evidence is, at best, speculative about the potential effect of low humidity on Mr. Tessier’s asthma. While this might have been sufficient under the Code’s former definition of danger under the “potential” or “future” categories, the current definition temporal requirements are clearly not met on the basis of all of the medical information present in this appeal.

[42] Mr. Tessier presented no cogent evidence that the low relative humidity could have resulted in a severe or minor harm (beyond alleged discomfort) that could have been expected to happen in a matter of minutes or hours.

Serious threat

[43] The respondent further submits that in contrast to the head of “imminent” threat, a “serious” threat could manifest itself over a longer period of time. In the facts of this appeal, Mr. Tessier’s medical information and the scientific literature do not establish either component. There is speculative anecdotal evidence which suggests that there may be an aggravation of Mr. Tessier’s asthma symptomology, but nothing suggesting serious of harm. Indeed, Mr. Tessier describes the medical symptoms he is experiencing at the time of his work refusal as “wheezing, always being tired and light-headedness when rising”. These “harms” do not come anywhere near the “serious threat to health” envisioned by the definition of “danger”.

[44] The February 12, 2014, medical assessment indicated that “a review of the literature does reveal several studies over the past few decades which demonstrate that low levels of humidity are likely associated with increased bronchoconstriction and worsening of asthma symptoms”. This does not appear to be universally accepted in the scientific community. Mr. Tessier submitted no evidence to establish that occasional exposure to low relative humidity levels rose to a “serious risk” to his life or health. At best, exposure could cause aggravation of symptoms and discomfort.

[45] Finally, the respondent submits that the concept of relative humidity is not a particularly useful measure because it does not indicate the quantity of water in the air. (see: Orlando Corp. v. Dufferin Roofing Ltd., [2001] O.J. No. 1946, at paras 27 and 28. If relative humidity fluctuates with temperature, the only way to maintain constant relative humidity would be to maintain constant temperature. In Ottawa, winters are cold and summers are hot. Canada Post’s mail sorting facility located at the OMPP has doors which open and close, causing the temperature and relative humidity to rise and fall. Even if relative humidity could be maintained (which it cannot), constant relative humidity would only be a measure of how much water the air could hold, not how much water the air is holding. It is submitted that for the purposes of the appeal herein, the concept of relative humidity is of little assistance.

C) Appellant’s Reply

[46] I will summarize the salient and most relevant parts of the appellant’s reply. The appellant reiterated much of his original submissions and highlighted the fact that the respondent’s submissions clearly show that Canada Post was aware of the inadequate levels of humidity at the OMPP and neglected to correct the problem, even still today. The evidence shows clearly that the employer has not complied with the direction and they should be held accountable.

[47] The appellant disagrees with the statement that there was a misinterpretation of the March 7, 2014 direction. Exchanges with HRSDC during that month clearly established that the level of humidity should be around 25%. It is clear in the Ministerial Delegate’s report of March 27, 2014, that he has provided medical confirmation that requires him to have levels of humidity within the comfort zone of Indoor Air Quality Guidelines. The appellant reiterates that the March 7, 2014 direction has no expiry date and must be complied with and enforced.

[48] Regarding the ASHRAE standard, the appellant reiterates that the applicable standard should be the one referred to in section 2.27 of the COSH Regulations.

[49] Finally, the appellant contends that the appeal is not moot. The employer has denied the appellant a return to work in the position he owned in February 2016 for many months indicating there was still an unsafe work environment for him. He also challenges the assertion that he is not required to work in the condition at issue. He asks if that was the case, why would a medical note be required?

[50] Mr. Tessier submits further that contrary to the employer’s claim, the area on the 3rd floor where the humidity level can be controlled more easily has only been available to him in December 2015, one year after the events, and after a senior investigator from the Labour Program became involved.

Analysis

[51] The appellant engaged in a refusal pursuant to subsection 128(1) of the Code, which reads as follows:

[52] “Danger” is the key concept in the exercise of the employee’s right to refuse to work. Section 122 defines “danger” in the following manner:

[53] The Ministerial Delegate found that no danger existed at the time of the refusal. His reasons for reaching that conclusion are set out in his report as follows:

[54] The appellant appealed the decision pursuant to subsection 129(7) of the Code:

[55] Subsection 146.1(1) of the Code sets out the authority of an appeals officer when dealing with an appeal filed under subsection 129(7) such as the present case. An appeals officer may vary, rescind or confirm the decision. If the decision is rescinded and the appeals officer determines that the employee is exposed to a danger in the circumstances established in the evidence, the appeals officer must issue a “danger” direction that he considers appropriate under subsection 145(2) or (2.1):

[56] 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. Tessier.

[57] Before addressing the merits of the appeal, the employer invites me to dismiss the appeal on the basis of mootness. While the employer characterized the issue of mootness as its “primary position” in this appeal, I have decided to defer my analysis on that question, if it becomes necessary in light of my decision on whether a danger existed on December 4, 2014. First, the appellant does not subscribe to the facts raised by the respondent in support of its claim of mootness, and contends that while he may not be as exposed to low levels of humidity as before, it is by virtue of the accommodation (the self-accommodation as he puts it) resulting from the employer’s inability to maintain the relative humidity at an acceptable level. In that sense, it is not obvious that there is no longer a live issue over the issues related to air quality at the OMPP.

[58] Second, the power to dismiss a legal procedure on the basis of mootness is largely premised upon an objective of judicial economy and seeks to avoid expending judicial resources required to hear a case on its merits, where the matter is clearly academic. In the present case, that objective is no longer present, since Mr. Tessier’s appeal has been heard on the merits over the course of three hearing days. And finally, the relevance of the mootness argument in the context of this case is, in my view, in relation to whether a direction ought to be issued in the event that I came to the conclusion that Mr. Tessier was exposed to a danger on December 4, 2014, and whether issuing a direction two and a half years after the fact would be appropriate given the passage of time and the evolution of the situation.

[59] All this being said, I make no ruling on the mootness argument at this juncture and I will first deal with the issue of whether a condition that constituted a danger for Mr. Tessier was established on December 4, 2014. An affirmative answer to that question enables the employee to withdraw his services until such time as the condition is corrected and the danger is removed. That determination must be made in relation to the circumstances that prevailed on December 4, 2014, when the refusal was exercised.

[60] The new definition of danger 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 restricted 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.

[61] 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 were invited to consider them in the preparation of their submissions.

[62] 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:

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

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

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

[66] 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:

[67] The second aspect of the definition is whether the “hazard, condition or activity” could reasonably be expected to be a serious threat to the life or health of the appellant. 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:

[68] 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.

[69] Before going into analyzing the circumstances of the refusal that gave rise to the present appeal against this new definition of “danger”, there is a critical point that needs to be addressed. The main thrust of the appellant’s position in this appeal is that the employer did not comply with the March 7, 2014 direction issued by Ministerial Delegate Mac Neil. Mr. Tessier stresses throughout his submissions that his December 4, 2014 work refusal was the means by which he would seek to have Canada Post comply with that direction, as the same conditions that had led to its issuance in March were, in his opinion, present in December i.e. relative humidity reading below 25%. This plea is repeated throughout the presentation of his evidence and in his written submissions. Mr. Tessier was also insistent that Ministerial Delegate Mac Neil undertake prosecution procedures against Canada Post for being “in contempt” of the direction.

[70] Indeed, Mr. Tessier took the position that the December 4, 2014 refusal is the continuation of the refusal originated in March 2014, in other words a “continued” work refusal and not a “new” refusal.

[71] The Code knows of no such legal avenue. The direction issued on March 7, 2014, is binding on the employer and has not been appealed. It is therefore in effect until such time as it is complied with, to the satisfaction of the Ministerial Delegate. Mr. Tessier rightly points out that failure to comply with a direction constitutes an offence under section 148 of the Code. However, the mean contemplated by the Code to enforce a direction is by way of a prosecution of the offender, which is subject to the consent of the Minister. The Minister may also take enforcement procedures in the civil Courts, to ensure compliance with the Code (section 152).

[72] More specific to the situation at hand, an appeal to an appeals officer is not an appropriate avenue under the Code to ensure compliance with a direction. This can only be achieved by be Ministerial Delegate in what is often referred to as their “enforcement continuum”. I am not seized of an appeal related to the March 7, 2014 direction because it was not appealed, nor can I deal with an appeal that has, as its primary purpose, the enforcement of that prior direction. Mr. Tessier’s contention that the December 4 situation is merely a continuation of the March 7, 2014 direction and not a “new” refusal does not assist his case; if that was the case, one would have to conclude that there is, in law, no “decision” rendered under subsection 129(7) to be appealed in relation to the circumstances of December 4, 2014 and, as a result, the present appeal would have no object. And since I cannot be seized through the present appeal of matters arising from the March 7, 2014 direction, Mr. Tessier’s appeal would have no legal foundation.

[73] Be that as it may, I am satisfied that the present appeal may be dealt with on the premise that it is made further to a “new” refusal, which resulted in a “fresh” decision of no danger by the Ministerial Delegate and that I am properly seized of an appeal against that determination, pursuant to subsection 129(7) of the Code. In that sense, I consider the March 7, 2014 direction to be part of the context and background of the present appeal, but it cannot be the central focus to it, contrary to Mr. Tessier’s submissions. The central focus of the appeal is whether the case has been made that Mr. Tessier was exposed to a danger in the circumstances prevailing on December 4, 2014.

[74] I must add however that the flip side of this statement is that the present decision is not to be construed as nullifying or otherwise affecting the March 7, 2014 direction. It is clear from the evidence that employer understood the March 7, 2014 direction to remain alive in spite of Mr. Mac Neil’s decision of “no danger” on December 19, 2014. The following email communication dated August 27, 2015, from the OSH General Manager to OMPP management is to that effect:

[75] Returning to the issue of whether a “danger” (as currently defined in the Code) existed in the circumstances prevailing on December 4, 2014, the legal test to be applied to the facts, may be set out as follows:

[76] As mentioned above, the appellant has placed great emphasis on the March 7, 2014 direction throughout the proceedings. It is worth noting that Mr. Mac Neil is the same Labour Program official who attended the work place in March of 2014 and who had issued a direction of danger to the employer. Thus, the alleged condition in the present case is Mr. Tessier’s exposure to a relative humidity level of 18% on the day of the refusal. Mr. Tessier argues that the humidity levels were essentially the same as the ones recorded in March, a situation which had justified the issuance of a direction, that the employer has failed to comply with the direction and should be prosecuted.

[77] Mr. Mac Neil did not share that view. The basis on which he had issued his direction back in March was seemingly based on a number of factors: the length of exposure to “extremely low” humidity levels and absence of a plan by the employer to remedy the situation. I also note the fact that the appellant underwent medical treatment at the time. Faced with that scenario, Mr. Mac Neil was somehow persuaded by Mr. Tessier that he was facing a danger, considering his asthmatic condition. Mr. Mac Neil did not hold that view insofar as the December refusal was concerned however, and this shows that the mere fact of the humidity levels being lower than 25% did not automatically constitute, even in the mind of the author of the March 7, 2014 direction, a danger to the appellant, contrary to the appellant’s contention.

[78] In his report, the Ministerial Delegate refers to the information provided by the employer that describes the measures taken to address the low humidity situation at the OMPP. During the investigation period between the refusal and the issuance of the “no danger decision”, the evidence shows that the levels of relative humidity had gone up to high 20’s. Mr. Kevin Martindale, employed by JLL and the person responsible for building maintenance, advised Canada Post as follows:

[79] After reviewing all of the evidence, I conclude that Mr. Mac Neil findings and decision that a danger does not exist as to the circumstances prevailing on December 4, 2014, are well-founded.

[80] First, it was incumbent on the appellant to establish, on a balance of probabilities, that his exposure on December 4, 2014 to a humidity level of 18% constituted an “imminent or serious threat to his life or health”. It is possible that in some circumstances, the causal link between a particular situation and the probability of illness or injury is obvious or is a matter of common sense or reasonable inference arising from known facts. In the present case however, the facts involve the complexities of the relationship between a particular environmental state (air quality, humidity levels) and its effect on persons exposed to it. In addition, those difficulties are compounded by the fact that the employee involved is affected by an asthmatic condition.

[81] While the civil standard of proof does not require medical or scientific certainty, the evidence purporting to establish the causal link must be cogent and persuasive. There is a need to educate the decision-maker with the necessary scientific evidence that will enable him to draw an informed conclusion on these threshold questions. The right to refuse is a measure of last resort in the panoply of measures envisaged by the Code to deal with occupational safety and health issues and the evidence required to establish a serious threat to health must be precise, clear and compelling (VIA Rail Canada Inc. v. Patel, 2015 OHSTC 4).

[82] No physician or other recognized specialist testified at the hearing. The medical documentary evidence adduced at the hearing was rather cryptic although it established, on balance, that there is a probable causal link between Mr. Tessier’s exposure to low humidity levels and aggravation of his symptoms of asthma. However, other scientific literature presented to me, the Sato Paper in particular, does not necessarily endorse that conclusion. I am left with no reliable information regarding the seriousness of those possible effects on Mr. Tessier’s condition, in the short or long term.

[83] Unfortunately for Mr. Tessier, the medical evidence adduced at the hearing is not conclusive on this fundamental aspect of his case. I first note that the medical evidence was mostly introduced by the employer, not by Mr. Tessier. I note that I granted the appellant’s request to have that medical documentation “sealed”, on consent from the employer’s counsel (Exhibits R-1 to R-5) and I so confirm. While that medical information supports a conclusion that low humidity levels are likely to exacerbate symptoms of asthma, I have not been presented any basis on which to find that exposure, in and of itself, to a relative humidity level of 18% as it was on December 4, 2014, poses an imminent or serious risk to Mr. Tessier’s life or health. It is trite to say that my findings and conclusions can only be based on the evidence that the parties have placed before me.

[84] The medical documentation establishes that Mr. Tessier has been treated for asthma since 2010 and that he is controlling the symptoms with medication. While it is possible that that lengthy exposure to extremely low levels of relative humidity with no opportunity for relief might exacerbate his asthmatic condition, this is not the situation that prevailed on December 4, 2014, and in the weeks that followed. Mr. Tessier described in his testimony the medical symptoms that he had been experiencing as “wheezing, always being tired and light-headedness when rising”. Without minimizing the unpleasantness of those symptoms, I agree with the respondent that they are more in the realm of discomfort and do not establish the much higher threshold of presenting an imminent or serious threat to health.

[85] The appellant relied on the WCB Decision Advisal Report dated June 25 2015, to support his contention that he was facing a danger on December 4, 2014. That exhibit was admitted under reserve of the employer’s objection. I find the document to be of little weight to the issue raised by the appeal. It is a decision issued under a different statutory framework, involving its own set of definitions, and for the purpose of determining whether health care benefits may be paid under the Workplace Safety and Insurance Act of Ontario as a result of exacerbation of Mr. Tessier’s asthma caused by exposure to low humidity levels.

[86] The report states the following at page 2:

[87] I am simply unable to conclude on the basis of that report that Mr. Tessier was exposed to an imminent or serious threat to his life or health. I also note that the evidence is uncontested that Mr. Tessier’s record of absence form work is generally good and, more specifically, that he did not require nor undergo medical treatment on December 4, 2014 or in the days following his refusal, unlike the situation at the time of his first refusal in March of 2014. In fact, the evidence establishes that Mr. Tessier has been medically cleared to perform his duties in all areas of the OMPP, as his asthma has been under good control. This is yet another indication that no imminent or serious threat to his health was present and consequently, that he was not exposed to a danger within the meaning of the Code. Furthermore, there is no evidence that the condition prevailing on that day at the OMPP affected other employees who were exposed to it.

[88] The evidence has also shown that the appellant is given the opportunity for some respite, when his symptoms appear. Mr. Mac Neil alluded to that fact in his reasons for decision when referring to “a backup plan” and the fact that Mr. Tessier could go on the third floor where temperature control is less difficult than on other floors of the OMPP. In other words, the condition is capable of being altered before imminent or serious harm materializes, as the WSIB report also points out, by allowing the employee to be exposed to humidified air and by inhalation of medication.

[89] Furthermore, I cannot ignore the statements repeatedly made by Mr. Tessier at the hearing and in his submissions that his December 4 refusal was made primarily to require the employer to comply with the March 7, 2014 direction and immediately increase humidity levels at his work place to recommended levels of at least 25%. His written statement of refusal and the grounds set out in his appeal form are to that effect. I have already explained that the refusal provisions are not meant to be used as a vehicle for the purpose of enforcing a prior direction. Mr. Tessier’s stated motivation and repeated reference to the March 7, 2014 direction seem to me to sidestep the fundamental factual question that he had to establish to be successful in his appeal: that he was exposed to an imminent or serious threat at the time of his refusal.

[90] The refusal provisions are not meant for the objective that Mr. Tessier was seeking. The following excerpt from Ketcheson, at paragraph 207 of the decision, in my view find some relevance with Mr. Tessier’s position, with the necessary adjustments:

[91] This does not mean that Mr. Tessier is without a remedy to address the consequences of low humidity levels in his work place on his asthma when that situation occurs. The combined effect of Mr. Tessier’s medical condition and the occasional low humidity levels in his work place would certainly engage the employer’s obligation to reasonably accommodate him by reason of his “disability”, a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act. In fact, correspondence exchanged between the parties in March of 2016 reflects the employer’s acknowledgement of such an obligation (letter from Videira to Tessier dated March 1, 2016).

[92] Mr. Tessier represented himself at the hearing. He testified and filed in evidence a binder comprising 314 pages that essentially presented a chronology of his longstanding dispute with his employer regarding the levels of relative humidity in his work place. He introduced a significant amount of evidence relating to his attempts over a period of four years to have Canada Post resolve the low humidity issue at the OMPP and deliver on its promises of improvement. A substantial part of that evidence relates to events and discussions that occurred subsequently to the December events. As such, they fall outside the scope of the present appeal. The Code and the Tribunal’s jurisprudence are clear that the basis of my determination must be the circumstances as they existed at the time of the refusal.

[93] I have no question about Mr. Tessier’s sincerity in all of his endeavours, and I can appreciate his exasperation with the pace at which the employer implemented some of the measures that were identified to improve the situation or allow Mr. Tessier to find relief if and when his symptoms were appearing. Mr. Tessier seems to have faced “dead ends” at every turn when attempting to have management address the longstanding humidity problem in his work place. In my view, OMPP Management representatives dragged their feet in dealing with the situation, to the point where Canada Post’s General Manager of Health and Safety had to remind them, in rather unequivocal terms in August of 2015, of their obligations to address the situation, and engaged in several follow up interactions with them and with the LJHSC in the months that followed, and that continued well into 2016. While the evidence has shown the challenges of maintaining a stable humidity level in all parts of the OMPP because of the nature of the building, of the operations that take place and the fluctuations in outdoor temperature, I can only echo Ms. Mankovitz’s words and every effort should be made to resolve the situation, if it is not yet resolved, for the benefit of all.

[94] I could stop here and conclude that, for the reasons set out above, the decision of no danger rendered by the Ministerial Delegate should be allowed to stand. But in fairness to the parties, I feel compelled to say a few words on other aspects of the evidence that have been debated throughout the present proceedings.

[95] There was also some debate between the parties as to which standards were to be applied to the humidity levels in the present case. I note that section 2.21 of the COSH Regulations references ASHRAE Standard 62-1989 (Ventilation for Acceptable Indoor Air Quality). I agree with the respondent that this standard refers to the design of HVAC and makes no specific reference to minimum relative humidity levels. Section 2.24 makes reference to the CSA Guideline Z204-94 and requires the appointment of a qualified person to set out, in writing, instructions for the operation, inspection testing, cleaning and maintenance of a Heating, Ventilating and Air Conditioning system (HVAC system). This Guideline references ASHRAE 55-2013 in its Appendix “A” - Discussion of Acceptable Air Quality (page 32), but specifically indicates at the “Note” that “This Appendix is not a mandatory part of the Standard”.

[96] Subsection 2.27 (3) of the COSH Regulations makes reference to the Department of Health publication 93-EHD-166 (Indoor Air Quality in Office Buildings: A Technical Guide), in relation to the obligation of the employer to appoint a qualified person and develop “a procedure for investigating situations in which the health and safety of an employee in the workplace is or may be endangered by the air quality”. This Guide refers to ASHRAE Standard 55-1992 (Thermal Environmental Conditions for Human Occupancy), as guidelines that are intended to achieve thermal conditions that at least 80% of the occupants would find acceptable or comfortable.

[97] Other publications introduced in evidence refer to “comfort” levels of humidity, “recommended levels” to be between 25% and 60%: the CCOHS excerpt on Indoor Air Quality, and ASHRAE Standard 55-2013 (Thermal Environmental Conditions for Human Occupancy). Those standards provide relevant guidance to employers to ensure the well-being and comfort of employees in federal workplaces, but are not incorporated by reference in the COSH Regulations and as such do not establish strict legal standards for minimum humidity levels, such as what the COSH Regulations provides for in relation to other aspects of the work place (for example lighting, noise, etc.).

[98] I also note that the documentation referred above at times refers to “office buildings”. The OMPP is a hybrid establishment comprising office as well industrial areas, including loading docks through which cold outside air may freely flow in. The fact is that it can be difficult to maintain at all times an adequate level of humidity within the comfort zone, in spite of all best efforts to do so, especially upon the return of cold weather associated with the late fall and winter months. The Ministerial Delegate pointed that out in his report.

[99] Having said all this, I am of the view that the issue in the present appeal is not whether the employer is in breach of a standard, regulatory or otherwise, regarding humidity levels. It may be that humidity levels should ideally be between 25% and 60% in the work place. But failure to adhere to those levels does not necessarily result in employees being exposed to a “danger” under the Code. The sole question before me is whether the humidity level (18%) on December 4, 2014, presented a danger to Mr. Tessier, i.e. an imminent or serious threat to his health or life. As I have discussed above, the evidence adduced at the hearing does not enable me to reach such a conclusion.

[100] Given my finding on the substantive issue raised by the appeal, it is not necessary to deal with the respondent’s argument relating to the mootness of the appeal.

Decision

[101] For the above reasons, the decision that a danger does not exist rendered on December 12, 2014, by Mr. Dave Mac Neil, in his capacity as Ministerial Delegate, is confirmed and the appeal is dismissed.

Pierre Hamel

Appeals Officer