2017 OHSTC 18

Date: 2017-08-31

File No.: 2017-02

Between:

Brink’s Canada Limited, applicant (appellant in the appeal)

and

Michael Childs and Unifor, respondents

Reference: Brink’s Canada Ltd. v. Childs and Unifor

Matter: Motion to have the appeal dismissed by reason of mootness

Decision: The motion is dismissed

Decision rendered by: Mr. Pierre Hamel, Appeals Officer

Language of the decision: English

For the applicant: Mr. James D. Henderson, Counsel, Grosman, Grosman & Gale LLP

For the respondents: Ms. Niki Lundquist, Associate Counsel, Unifor Legal Department

Citation: 2017 OHSTC 18

Reasons

[1] The present reasons concern an application by the appellant Brink’s Canada Limited (the applicant in the present decision) to have the appeal dismissed or the file closed by reason of mootness and is further to an email dated August 23, 2017 by the Occupational Health and Safety Tribunal’s (the Tribunal) informing the parties that the application was denied, with reasons to follow. I hereby set out the reasons supporting my decision.

Background

[2] The present appeal concerns a direction issued on December 29, 2016 by Mr. Lewis Jenkins, in his capacity as Official Delegated by the Minister of Labour (Ministerial Delegate). Mr. Jenkins’ direction was issued after his investigation into a work refusal made by Mr. Michael Childs, an employee of Brink’s Canada Limited (Brink’s or the employer), on the grounds that the “all-off” delivery model used by the employer was unsafe and presented a danger to the employee.

[3] Ministerial Delegate Jenkins found that the “all-off” delivery model presented a danger to Mr. Childs and issued a direction accordingly, pursuant to subsection 145(2) of the Canada Labour Code (the Code). For the purpose of the present application, it suffices to state that Mr. Jenkins’ direction largely mirrors a direction issued in similar circumstances by Ministerial Delegate Jason Elliott further to a work refusal made by Mr. Robert Dendura, an employee of Brink’s in Edmonton, AB (the Edmonton case).

[4] On March 3, 2017, I granted the employer’s application for a stay of the direction under appeal, for the reasons set out in Brink’s Canada Ltd. v. Childs and Unifor, 2017 OHSTC 4.

[5] On June 16, 2017, the Tribunal released my decision in Brink’s Canada Limited v. Dendura, 2017 OHSTC 9 (Dendura), relating to the Edmonton case. In that decision, I upheld the employer’s appeal and found that the danger presented by the “all-off” delivery model used by the employer for its Edmonton operations is a normal condition of employment, on the basis of the evidence adduced in relation to that appeal.

[6] On July 17, 2017, Brink’s applied to the Tribunal for an order declaring the present appeal moot. The application was accompanied by a copy of a handwritten letter signed by Mr. Michael Childs, declaring that he was “withdrawing his work refusal” and that he believed that “the two man all off model is safe”.

Applicant’s submissions

[7] The grounds in support of the application may be summarized as follows.

[8] First, the applicant points out that Mr. Jenkins issued his direction largely on the basis of a similar direction issued by Ministerial Delegate Jason Elliott in relation to Mr. Dendura’s work refusal in Edmonton. Mr. Jenkins’ reference to subsection 129(3.1) of the Code makes it clear that his finding of danger and direction is not site-specific and is solely based on the application of his Edmonton colleague’s decision. The present appeal raises the same issues as the ones dealt with in relation to the Edmonton case. That decision and direction has since been rescinded by the appeals officer in Dendura. The applicant quotes abundantly from that decision in support of its submission that all issues raised in the present appeal have been addressed and decided. Accordingly, that decision should settle the outcome of the present appeal and “the appeal should be dismissed or the file closed”.

[9] Second, the applicant submits that Mr. Childs has withdrawn his work refusal and confirmed that he now considers the all-off model to be safe. The issue at the source of the direction has therefore disappeared.

[10] Consequently, the applicant submits that considering all of the above, there no longer remains a concrete and tangible issue to deal with, and that the doctrine of mootness is applicable. The applicant cites the seminal judgement in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 (Borowski), and Manderville v. Correctional Service Canada, 2015 OHSTC 3 (Manderville), and submits that all elements of the analysis set out in those decisions to support a finding of mootness are met.

[11] The applicant also cites my decision in Canadian Food Inspection Agency v. Public Service Alliance of Canada, 2015 OHSTC 1 (CIFA), where I ordered that the files be closed in circumstances where employees and their union informed the Tribunal that all matters raised by the appeal had been resolved to their satisfaction. Since Mr. Childs has withdrawn his refusal and changed his mind regarding the same work process that was addressed in the Edmonton case, now saying that it is safe, the applicant submits that the matter is moot and asks the appeals officer to “dismiss the appeal or in the alternative close the file”.

[12] On July 28, 2017, the applicant clarified the relief sought by its application for mootness, and requested the Tribunal to formally rescind Ministerial Delegate Jenkins’ direction on the basis that the “all-off” model does not present a danger.

Respondent unifor’s submissions

[13] The respondent provided brief submissions to the Tribunal on July 28, 2017, without having had the opportunity to review the Dendura decision, as the decision is subject to a confidentiality order regarding its publication. On July 26, 2017, I ordered that a copy of the full text of the decision be forwarded to the respondent, with appropriate restrictions set out in a letter dated July 27, 2017.

[14] Unifor filed its submissions to the Tribunal on August 9, 2017. Unifor opposes the application on the following grounds.

[15] The respondent first notes the applicant’s clarification to have the direction rescinded, which significantly amends its original position that its appeal be dismissed or the file closed.

[16] The respondent observed that in Dendura, the refusing employee was not represented by counsel nor did he have the assistance and support of his union, a different union than Unifor. As a result, the employer’s evidence was largely unchallenged. The respondent also points out that the union in the present case is on record for having opposed the “all-off” model as being unsafe.

[17] The respondent submits that the criteria set out in Borowski for mootness have not been met. Furthermore, the Tribunal has recognized that in deciding the issue of “mootness” one must separate the carrier of the controversy from the actual factual circumstance or elements that make up the controversy which should not be affected by the temporary, and thus not definitive absence of the carrier (Schmahl v. Correctional Service of Canada, 2016 OHSTC 3, at para. 110).

[18] The respondent submits that in spite of Mr. Childs’ withdrawal, the Tribunal has the residual power, in the public interest, to hear the issue of whether the “all-off” model poses serious risks to the health and safety of employees, as found by Ministerial Delegate Jenkins. This would better serve the interests of preventing accidents and injury to health as set out in s. 122.1 of the Code.

[19] The respondent further submits that the applicant’s position, such as it was re-stated on July 28, 2017, seeks a summary judgment rescinding the direction and a ruling that the all-off model is safe, without any evidence and quasi-judicial process. The Tribunal has repeatedly stated that findings of danger are based on specific facts and circumstances of each case (Samson v. Correctional Service of Canada, 2015 OHSTC 18). It may be that the evidence to be adduced in the present appeal will differ on key points from the evidence presented in Dendura. Therefore, the matter should proceed to a hearing on the merits.

Reasons for decision

[20] As previously mentioned, I have decided to deny the application to rescind the direction on the basis of mootness. I will first comment that I was perplexed with the employer’s original submissions seeking that the appeal should be “dismissed or the file closed”. Granting the motion as it was originally framed would have resulted in the direction remaining in place and the stay that was granted on March 3, 2017 ceasing to operate, which would have seemingly been directly opposite to the employer’s objective in presenting the application.

[21] The employer’s clarification of the order sought on July 28, 2017 made more sense and I have considered the matter in light of this clarification.

[22] First, I am of the view that the employer has not met the criteria set out in Borowski to establish that the present matter is moot in the statutory context in which the present matter arises under the Code. What is at issue is the validity of the direction issued in the circumstances prevailing at the time of the refusal. There is, in my view, a continuing dispute between the parties to the present appeal and regarding the validity of the direction. While the Dendura decision may have dealt with ostensibly similar issues, the responding parties in that case were not the same as in the present case. The employee was not represented by legal counsel and the evidence adduced by the employer was largely unchallenged. The union involved in the present case is a different union and clearly has concerns with the “all-off” model which Ministerial Delegate Jenkins found to constitute a danger to employees.

[23] Furthermore, it has been long established that the appeal process is a de novo process. Looking into the circumstances of the direction and reasons for it as mandated by 146.1 of the Code, the appeals officer may consider any relevant evidence, whether or not it was placed before or considered by the Ministerial Delegate. In doing so, the appeals officer is empowered, among other things, to determine the procedure to be followed, but must give an opportunity to the parties to present evidence and make submissions (paragraph 146.2(h) of the Code).

[24] Looking at the matter de novo as it should be, it is quite possible that the circumstances that the parties may establish in their evidence will differ from those established in Dendura. Many factors were taken into consideration in the Dendura case to support a finding of normal conditions of employment and the determination of the present appeal must be made in light of all relevant circumstances prevailing at the time of the refusal. At the opposite end, it may be that the evidence will reveal no material difference on the key elements of the factual analysis. Be it as it may, I am mandated by the Code to follow an appropriate hearing process to determine these matters and cannot simply prejudge the case without such due process, as the employer is asking me to do.

[25] Consequently, the contention that there is no longer a live issue between the parties to the appeal is not supported by the facts. In Manderville for example, the facts established that there were changes to the circumstances which would render any pronouncement purely academic. In that case, the appellant was the refusing employee, not the employer, and the inmate who triggered the work refusal had been transferred to another institution, thereby rendering moot any claim by the employee to being endangered by this person’s actions. This change in situation led the appeals officer to find that the employee’s appeal was academic. This is not the case here. What has changed is that a decision has been issued in another case purportedly raising a similar set of issues and involving the same employer, but a different employee and union, and that the employee has changed his perspective on the situation.

[26] The first criterion set out in Borowski not having been met, it is not necessary to go further into that analysis. The applicant’s contention that the matter is moot clearly hinges on the fact that the employer was successful in another appeal raising similar questions. To that extent, I am of the view that the real object of the application is to obtain a summary judgment by simply applying the outcome of the Dendura decision to the present appeal. In my view, the Code does not authorize an appeals officer to proceed in that fashion. While that decision will unquestionably be relevant and may be of precedential value to the present matter, the present appeal must be determined de novo on its own set of facts, as explained above.

[27] This takes me to the second point raised by the employer, the fact that the refusing employee withdrew his refusal and acknowledged that the “all-off” model is safe.

[28] In the present case, while it is Mr. Childs’ refusal that triggered the investigation and the direction eventually issued, the direction is of general application and is not limited to Mr. Child’s specific situation. In fact, I placed considerable emphasis on that point when granting the employer’s application for a stay in the present appeal.

[29] In my view, the fact that Mr. Childs has withdrawn his refusal - to the extent that such action is even contemplated under the Code at this juncture - is of no consequence to the issue raised by the appeal. A direction may result from a work refusal of an employee such as in the instant case, or from an employee or union complaint or from an ad hoc inspection of the workplace by the Minister’s representative. Once a direction is issued by the Ministerial Delegate, the matter takes on a public policy dimension and the dispute in an eventual appeal is focussed on whether or not such direction is well-founded.

[30] While Mr. Childs’ change of opinion is a factor that may be taken into consideration when dealing with the appeal on its merits, i.e. in assessing whether Ministerial Delegate Jenkins’ finding of danger and direction are well-founded, it does not automatically make the direction unfounded and subject to rescission.

[31] The employer cited my decision in CFIA in support of its argument. In that case, I ordered the files closed in circumstances where the parties unanimously agreed that the issues that had led to the issuance of the direction had changed and had been appropriately remedied. The direction ordered the employer to appoint a competent person to conduct an investigation into complaints of workplace violence filed by the employees. Unlike the present appeal, the issue and the object of the direction were entirely linked to the employees themselves and alleged inappropriate behaviour of the employer against them personally. Clearly, the nature of the contravention, the narrow and individualized scope of the direction and the acceptance by all parties that all matters were resolved to their satisfaction were compelling factors that led me to adopt a pragmatic approach to the parties’ joint request to close the file without a hearing, leaving the direction “in limbo” so to speak. I stated the following at paragraphs 19, 22 and 26 of that decision:

[19] Once issued, a direction which is aimed at correcting a situation which the health and safety officer has found to constitute a contravention of the Code, serves a public policy dimension, which goes beyond the mere interests of the parties. It is an order of a public officer enjoining, in most instances, the employer, to comply with its obligations under the Code. Failure to comply with such an order constitutes an offence under the Code. The HSO himself is not legally authorized to modify his/her direction once it is issued and only an appeals officer may vary or rescind a direction, on appropriate legal or factual grounds going to the validity and merits of the direction in the circumstances at hand. This is the task conferred on appeals officers by section 146.1 of the Code.

(…)

[22] I am not persuaded that the wording of section 146.1 of the Code authorizes me to proceed in the manner sought by the appellant. That section provides that an appeals officer may, after inquiring summarily into the circumstances of the direction and the reasons for it, may vary, rescind or amend it. The question raised by the present application is to determine whether the Code authorizes the appeals officer to rescind a direction, as the employer has originally sought in her submissions, on the sole basis that the employee whose complaint to a health and safety officer has triggered the investigation which led to the direction, is no longer employed with the employer at the time of the appeal and, in two of the three files under appeal, no longer wishes to pursue the matter. This implies rescinding a direction without regard to its merits, i.e. without making a determination as to whether or not there was a contravention of the Code in the circumstances that prevailed at the time of its issuance. In my view, the wording of section 146.1 of the Code does not enable me to consider such a course of action.

(…)

[26] As I explained earlier, the Code does not expressly envisage the possibility for an appeals officer to rescind (emphasis in the original) a direction or terminate proceedings on the sole basis that the parties have resolved the dispute that may have been the triggering point to an investigation by a HSO and the issuance of a direction. The HSO who issues a direction acts as a public officer vested with enforcement powers under the Code and exercises a public interest duty. The HSO’s enforcement actions transcend, in my opinion, the immediate interests of the parties affected by such action and it is the Code that prescribes the parties’ conduct in response to the direction. It is not open for the parties to agree that the direction is not necessary after all, or does not require compliance. The Code prescribes the enforceable effect of the direction. The fact that the employee whose complaint was at the source of the investigation may no longer be employed is not, in and of itself, justification to render the direction moot and bring the appeal proceedings to an end.

(Underlining added)

[32] Conversely, where there was no agreement between the parties that the matter was resolved, I found at paragraph 37 that there was still a live dispute between the parties, in spite of the fact that the employee was no longer employed at the time of the appeal:

[37] Accordingly, for all the reasons above, I find that there is still a live issue to be determined by this appeal and I cannot accede to the appellant’s request to rescind the direction or close the file, on the grounds invoked by counsel for the appellant in her submissions presented on July 21, 2014. In the absence of mutual consent or withdrawal of the appeal by the appellant, I am duty-bound to remain seized of this appeal.

[33] This analysis was made in relation to the employees no longer being employed with the employer. In my view, it equally applies to the present situation, where the refusing employee’s perspective on the matter has changed. What is at issue in the appeal process is the validity of Ministerial Delegate Jenkins’ direction based on his finding of danger, in carrying out a ministerial power under the Code. The dispute is no longer in the hands of Mr. Childs, whose refusal to work becomes of secondary relevance in the appeal process once a direction is issued.

[34] For the above reasons, the employer’s application is denied and the appeal will proceed to a hearing on the merits, to be scheduled in due course.

Pierre Hamel

Appeals Officer

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