2017 OHSTC 21

Date: 2017-10-31

Case No.: 2014-68

Between:

Correctional Service of Canada, Appellant

and

Mike Laycock et al., Respondents

Indexed as: Correctional Service of Canada v. Laycock

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

Decision: The direction is confirmed.

Decision rendered by: Pierre Hamel, Appeals Officer

Language of decision: English

For the appellant: Mr. Marc Séguin, Labour and Employment Law Group, Justice Canada

For the respondent: Ms. Corinne Blanchette, Union Advisor, UCCO-SACC-CSN

Citation: 2017 OHSTC 21

Reasons

[1] These reasons concern an appeal brought under subsection 146(1) of the Canada Labour Code (the Code) by the Correctional Service of Canada (CSC or “the employer”) against a direction issued on November 6, 2014 by Ms. Betty Ryan, in her capacity as an official delegated by the Minister of Labour (ministerial delegate).

[2] The direction was issued under paragraph 145(2)(a) of the Code further to a work refusal made by a number of correctional officers (37 according to the ministerial delegate’s investigation report) employed at Mountain Institution (the institution), a medium security facility located in Agassiz, BC.

Background

[3] The work refusal was prompted by the fact that on October 30, 2014, a pair of thread snips (also referred as “quick snips” in the documents and testimony adduced by the parties) had gone missing from the CORCAN Upholstery shop located within the premises of the institution. A quick snips is a tool used for trimming threads or strings from chairs and cushions manufactured in upholstery shops. It is approximately 4.25 inches long when it is in the folded position. The tool can be unfolded and opened to double in length (8.25 inches). There are blades at each end of the snip. The blades are razor sharp and come to a sharp point at their end. As will be explained further, the thread snips are classified as a “restricted tool” under the Commissioner’s Directive No. 573 and Institutional Standing Order No. 573. The normal procedure in the CORCAN shops ask that the snips not be handed hand to hand but placed on a table, then picked up by the receiver, so as to avoid accidental injury in the manipulation of the tool.

[4] The essence of the parties’ disagreement may be captured as follows: the Correctional Officers present at the time of the refusal felt that opportunities existed for the snips to be passed out of the fenced compound surrounding the CORCAN buildings and introduced into the general population, or hidden for a future opportunity to use them as a weapon. A full institutional search should therefore be conducted, in their view. Management did not share that view, pointing out that all inmates working at CORCAN are subject to a frisk and metal detector search when leaving the CORCAN compound. The employer had all likely areas searched and all of the inmates that work in the upholstery shop were interviewed. There was no “intelligence” indicating that the thread snips were removed from the upholstery shop. In any event, if the snips had been removed from the shop, their presence in the inmate population would not increase the normal inherent risks a correctional officer is exposed to inside a medium security institution.

[5] The Ministerial Delegate’s report sets out the statement of refusal as written by Ms. Tammy Wilson, one of the refusing employees. Ms. Wilson’s statement reads as follows:

I am refusing to work due to the fact that there is missing snips inside the institution. There were reported missing by CORCAN Upholstery yesterday and we went to a modified routine in hopes to find them. Searches conducted of the work location and surrounding areas have resulted with them not being found. It is my belief that it is very possible that they made their way down to the compound via through the fencing and pass offs from the inmates. I believe they probably did it this way as they know the tight security practices we have in place that they would be able to just walk out with them.

Compile this with all the homemade weapons that have been found over the last week and half I believe that there is reasonable grounds to believe that there is a source of harm or risk to an employee that has been introduced to the inmate population. I feel that we should go to every effort to locate this item so that it cannot be used on any staff member.

[sic for entire quote]

[6] The employer reviewed the matter and found no danger. As mandated by the (then) newly enacted provisions of the Code, the health and safety committee investigated the refusals and prepared a detailed report, which clearly sets out the points of agreement and the issues on which the parties’ opinions diverged. For the most part, the facts are not in dispute. What is at the heart of the appeal is the extent of the measures taken by the employer to find the missing thread snips, in the circumstances that prevailed at the time of the refusal. This difference of view will be further explained and reflected in the parties’ submissions later in these reasons.

[7] As the matter was not resolved, Ministerial Delegate Betty Ryan was assigned to conduct an investigation into the refusal. Her investigation took place on November 4, 2014, following which she reached the conclusion that the missing thread snips constituted a danger under the Code. The thread snips would be a serious threat to the life or health of a correctional officer is they were in the hands of an inmate with the intent of doing harm. She was of the view that the employer had not implemented all of the available measures to locate the thread snips, including a complete search of the institution, and as a result, found that the danger was not a normal condition of employment.

[8] The direction issued by Ms. Ryan on November 6, 2014 as a result of her findings reads as follows:

[9] On April 24, 2017, the respondent raised a preliminary objection to proceeding on the merits on the appeal, on the basis that it was moot and requested that the appeal be dismissed on that ground. On May 9, 2017, I ruled that the appeal was not moot, with reasons to follow in the decision to be rendered on the merits. My reasons for dismissing the respondent’s request are set out further in the present reasons.

Facts

[10] The salient and relevant facts established in evidence may be summarized as follows.

[11] Mountain Institution is a medium security institution with the vast majority of offenders within the open population rated as “medium security offenders” in accordance with Commissioner’s Directives 705. There are no “maximum security offenders” within the open population. It comprises four large living units (LU) housing on average more than 120 inmates each.

[12] On October 30, 2014, at approximately 15:40, a CORCAN upholstery shop quick snips were not accounted for in the tool crib. The six quick snips in use at the shop at the material time are located on a “shadow board” in the shop. They are classified as restricted tools under the Commissioner’s Directive 573, as tools “most likely to be used in an escape attempt or in any dangerous or illegal way”. They are to be colour-coded blue on the board. Although nothing turns on this fact, the quick snips were only colour-coded blue the day after Ms. Bonnie Boyd, the Upholstery Shop Instructor, testified at the hearing. The use of these tools requires intermittent supervision, as opposed to constant and direct supervision for “prohibited” tools.

[13] According to the Threat Risk Assessment document prepared by the employer, it was determined that the tool was last accounted for at approximately 13:30, after the inmates returned from lunch. At 15:42, Ms. Boyd reports that two inmate workers were no longer in the shop, as they had left work and returned to the living units or other areas open to inmates. Inmates are frisk searched on entry to work, then frisked and metal detector wand searched when leaving the CORCAN and grounds area.

[14] Eight inmates usually work in the CORCAN upholstery shop. On the afternoon of October 30, 2014, one inmate had an appointment and left before 13:30. Two other inmates had left before the thread snips were noted missing.

[15] A “modified routine” was put in place around 18:00 on that day. Under that routine, inmates may access the kitchen area one living unit at a time, with each inmate being subject to a frisk and search procedure upon exiting their cell. Once the inmates from the individual LU are finished eating their meal, they are returned to the LU and locked in their cells.

[16] The upholstery shop is a fairly large warehouse/shop containing many materials, supplies, boxes (open and closed) and many places for a small object to fall, be misplaced or difficult to locate. The shop is located in an area that is within a fence line surrounding three buildings. The CORCAN facility consists of two buildings and there is a recycling building adjacent to the CORCAN compound. On October 30, 2014, an inmate took the recycling from CORCAN to that building, which means that he would have passed through an unlocked gate. Expectations are that inmates stay within their own work areas in regards to the grounds building located in a fenced area that is connected by a large open gate. Inmates working at the CORCAN upholstery shop and CORCAN cabinet shop are able to mingle between shops during coffee breaks. The fence line at the back of the buildings does not have video surveillance.

[17] Between 20:00 and 21:00, non-routine searches were performed on select inmates, including the inmates who had left the upholstery shop early. Those inmates were frisk searched and their cells searched as well, with no result. At approximately 21:30, correctional officers searched the upholstery shop and surrounding areas, with no result. The evidence establishes that it is likely that after the snips were not accounted for, the entire institution had a return to living units movement. In other words, inmates were able to move about and access all common areas of the institution. However, such movements take place in a controlled manner in a medium security facility such as Mountain.

[18] On the following day, the upholstery shop and surrounding areas are again searched at approximately 7:30, as daylight conditions allowed for better sight. The search led to no result. Inmate workers from CORCAN were interviewed on the events. None of the inmates indicated having used a pair of quick snips at work that day. Later that morning, managers and union representatives met to discuss options and develop plans to return to normal routine. Upon being apprised of that fact, Ms. Wilson invokes a refusal to work at approximately 13:00 on October 31, 2014 and most of the correctional officers on staff that afternoon added their names to the refusal in the hours that followed.

[19] Further searches of the CORCAN upholstery, cabinet, grounds and surrounding areas were conducted on November 1, 2014. That search led to finding a triangular piece of metal hidden under a rock, a kitchen serving spoon and a remote control for a TV, but the quick snips were not found. A further investigation was then conducted while the institution remains on modified routine, as a result of union-management discussions.

[20] At the time of the refusal, inmates could use the gate close to the grounds buildings, therefore giving them access to the living units without being searched. Inmates were also allowed to take breaks outside the building and were able to use the bathroom in the grounds building adjacent to the shop. There is no video surveillance of the upholstery area. Areas located behind the CORCAN upholstery shop adjacent to the chapel is only supervised periodically by security staff and office staff. There are many locations to hide or conceal objects in the area, including the ability to slide through or handoff a quick snips through a fence line, given its small size, or to throw it over the fence.

[21] The fence line is often in view of staff at the front area of the CORCAN and grounds areas (closest to the inmate movement control). However, there is an opportunity to be undetected at the back. This area is less travelled in and may afford an opportunity to be present in without being seen.

[22] I was able to observe the configuration of the upholstery shop and its surroundings during the view that I took on May 16, 2017, in the presence of representatives of the parties.

[23] The evidence also established that there was an attempted murder by an inmate on another inmate, using a sharpened butter knife and in plain sight of officers approximately two weeks before the work refusals. Such security incident is not normal for a medium security facility and was found to constitute an “elevated” behavioural and security issue. There were also documented concerns of security threats at Mountain Institution in the weeks prior to the work refusals, relating to possible violence against sex offenders by other inmates, which would cause potential victims to arm themselves with weapons. The evidence reveals that six (6) weapons were seized in the month of October, which is a record high for Mountain, where the average over the last few years is nine (9) weapons seized per year.

[24] However, interviews of inmates and intelligence gathered within the inmate community did not reveal any specific threat or action which may have involved the missing quick snips.

[25] The evidence also established that exceptional searches authorized by section 53 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 were performed in the recent past in the following circumstances: in March of 2014, the Warden, Mr. Shawn Huish, had directed an exceptional search of the Institution, upon the report that a bench scraper was missing from the kitchen. The search was justified by the Warden’s belief, among other factors, that the missing scrapper could be used to manufacture a homemade weapon that would endanger the lives of staff and inmates or adversely affect the security of the institution. In April 2014, a similar search was ordered after the discovery of two improvised weapons. In September 2014, an exceptional search was directed as a result of a missing pair of utility scissor. Those scissors are found in First Aid kits and have blunt ends, but could be used to manufacture weapons.

[26] The evidence shows that in the past when a restricted tool went missing, the hazard presented by such an occurrence was controlled by conducting an exceptional search of the living units and the inmates’ cells.

[27] In the final analysis, and as reflected in the health and safety committee investigation report, the refusing employees considered that the final step to eliminate the danger created by the possible presence of a set of quick snips in the institution was to conduct a search authorized by section 53 of the Corrections and Conditional Release Act (hereafter “section 53 search”). The employee side of the committee submitted that if the item is not found after a “section 53 search” has been conducted, then all possible preventive measures would have been taken and the situation would be a normal condition of employment under the Code.

[28] Subsection 53 of the Corrections and Conditional Release Act reads as follows:

[29] It was also established that one of the effects of a “section 53 search” is that contraband or other prohibited objects will “disappear”, likely flushed in toilets by inmates.

[30] Mr. Huish testified on the reasons why he did not direct a section 53 search in the circumstances set out above. There was no intelligence gathered by the Institution’s Security Intelligence Officer, that pointed to specific harm being contemplated against a staff member. Select inmates had been interviewed and no such information came out from these interviews, or from consultations with the inmate committee. There was no evidence that the set of snips were in the hands of an inmate, let alone evidence of intent by an inmate to use the snips as a weapon.

[31] It was Mr. Huish’s belief that the snips were probably simply lost or misplaced in the shop, in an inaccessible place. Mr. Huish also testified that there had been a pattern of lockdowns (section 53 searches) at Mountain Institution when a restricted tool went missing. Inmates knew there might be a lockdown ordered in such cases, and it is quite possible that the “disappearance” of the snips was orchestrated in the hope that a lockdown would be directed, in order to delay having to pay a debt to another inmate, for example.

[32] Mr. Huish also testified that an exceptional search and lockdown is very disruptive of the Institution: it imposes additional amount of work on all staff of the Institution, inmates are deprived of their normal activities and confined to their cells for up to 48 hours, causing them to become resentful and agitated. This fact was not contested by the respondents. Those restrictions on their rights must satisfy strict grounds set out in section 53 and he formed the opinion that the facts did not establish a “clear and substantial danger” as required by that section.

[33] The employer introduced in evidence a number of Standing Orders and Operational Directives governing the Institution, in support of its contention that appropriate and effective measures were in place to mitigate the danger of being assaulted by an inmate using a set of quick snips as an offensive weapon. Those measures will be described at length later in the employer’s submissions set out in the present reasons.

[34] The snips were never found, to this date.

The issue

[35] The issues raised by this appeal are whether the employees were exposed to a danger as defined in the Code in the circumstances that prevailed at the time of the refusal and if so, does the danger constitute a normal condition of employment for the employees concerned?

Submissions of the parties

Appellant's submissions

Mootness

[36] On the issue of mootness of the appeal, the employer submits that the appeal is not academic and should be heard on its merits.

[37] The employer disputes the direction issued by the ministerial delegate and will argue that the finding of danger does not fall within the purview of the danger definition of Part II of the Code. The fact that a “section 53 search” was eventually conducted, does not negate or void that dispute. Consequently, there is a live controversy and an adversarial context that still exists. The employer cites Laroche v. Attorney General of Canada, 2011 FC 1454 (Laroche), Samson v. Correctional Service of Canada, 2015 OHSTC 18 (Samson) and Aviation General Partner Inc. c.o.b. as Jazz Aviation LP v. Mohamed Gus Jainudeen, 2013 OHSTC 32 (Aviation).

[38] Furthermore, since this case involves the new definition of danger, the employer submits that it would be useful to have a decision on the facts of this case. The usefulness of a decision was a criterion considered by appeals officers in exercising their discretion to hear an appeal on its merits (Aviation decision, at paragraph 58).

Merits

[39] The appellant submits that none of the factors outlined in the refusal to work pose a danger to staff. On the broadest level, the evidence does not support that snips themselves constitute a danger to staff. On the day of the work refusals in particular, there was no evidence whatsoever that the Respondents were in danger as a result of the missing snips. Furthermore, the appellant submits that any hazard posed by missing snips are a normal condition of employment, and that Mountain Institution has sufficient control and safety measures in place to minimize any risks associated to missing snips. As such, the ruling of danger should be quashed and the appeal allowed.

[40] The appellant refers to the definition of “danger” that was enacted on October 31, 2014 and to the appeal decision in Canada (Correctional Service) v. Ketcheson, 2016 OHSTC 19, where that new definition was addressed and the test to be applied is summarized as follows at paragraph 199:

[41] The appellant takes the view that the ministerial delegate’s rationale for issuing the danger directive is not supported by the evidence and that the use of “if they were in the hands of an inmate” is hypothetical as there exists other possible assumptions. In fact, Shawn Huish testified that he believed that the snips were not in the hands of an inmate or for the intent of harming. The warden and other witnesses explained how inmates sometimes conceal weapons to cause lockdown in order to avoid a debt situation.

[42] As pointed out in Arva Flour Mills Ltd v. Matthews, 2017 OHSTC 2, a serious threat cannot be a “hypothetical threat”, such as it is the case here.

[43] The warden’s belief that the snips were not in the hands of an inmate or for the intent of harming, is supported by the fact the employer had exhausted all available measures to locate the missing snips, including searching the CORCAN area at least three times, interviewing staff and shop supervisor, searching the two inmates that had left the upholstery shop early, searching of all inmates before leaving their living units during the modified routine, as well as the involvement of the inmate committee. There was no indication of a coordinated attempt to do anything toward a staff member.

[44] Counsel for the appellant points out that the primary ground supporting the ministerial delegate’s direction is that no “section 53 search” had been directed by the warden. Yet, the search contemplated by that section is at the discretion of the warden. This assessment includes the mitigating factors such as the mood of the institution and any intelligence that any tool that might be used for assault.

[45] The appellant also points out that it has sufficient control and safety measures in place to minimize any risks associated to missing snips and to mitigate danger. The appellant refers more specifically to the following measures:

• Dynamic security: having staff presence where the inmates are present and interaction with inmates which allows to detect abnormal behaviour or the mood of the inmate population;
• Static security: the physical infrastructure of the institution, such as fences, video cameras, patrols, etc.;
• Institutional search plan, which sets out the framework for the type and frequency of searches;
• Personal protective equipment: boots, on duty belt, cut resistant gloves, radio, keys, OC spray and a flashlight and blunt force / stab resistant vest; and secondary equipment to be accessed by staff as required, such as shields, weapons, firearms and other intermediary weapons;
• Inmate movement controls protocols and procedures, which describe the day to day routine that inmates must follow;
• Inmate Committee, which has been of assistance in the past in locating a stolen or lost item, such as a purposely hidden tool;
• Tool control procedures, including their classification;
• Inmate selection and evaluation for working at CORCAN, based on inmate’s past good behaviour;
• Routine and non-routine searches of inmates and cells, at a minimum once per month; for CORCAN specifically, there is staff at the gate as inmates come through. Inmates are subjected to a non- intrusive search using hand-held detectors and pat-down/frisk searching for mitigating items going in/out of the area;
• Inmate counts and security patrols, to ensure inmates are where they are supposed to be; and
• Framework for the prevention of security incidents set out in Directives and Standing Orders.

[46] Once those measures are in place, any residual danger that remains would be a normal condition of employment: P&O Ports Inc. v. International Longshoremen’s and Warehousemen’s Union, Local 500, 2008 FC 846, at paragraph 46; Martin-Ivie v. Canada (Attorney General), 2013 FC 772, at paragraph 47; Stone v. Correctional Service of Canada, Decision 02-019 (December 6, 2002).

[47] The appellant argues that it is well established in the jurisprudence that the possibility that a correctional officer will encounter inmate violence, weapons, and/or assaults by inmates are all normal conditions of employment within the meaning of the Code. This is linked with the unpredictability of human behaviour and the particular context of being in a correctional environment and is clearly outlined in the Correctional Officers’ job description (Canada (Attorney General) v. Lavoie, [1998] F.C.J. No. 1285 (FC), at paragraphs 25 and 26; Stone, supra, at paragraphs 46, 49-51; Bouchard v. Correctional Service of Canada, Decision No. 01-027 (December 12, 2001), at paragraphs 18-20; 22; Schmahl v. Correctional Service of Canada, 2016 OHSTC 6, at para 138.)

[48] The appellant submits that the evidence is clear in this case that the employer has taken all reasonable steps to mitigate any risks posed by such a hazard which is an inherent part of the job. There was ample evidence of the various measures taken by CSC and Mountain Institution in particular to minimize the risk of assaults by inmates against staff, and to minimize the risk posed by a pair of missing snips - both in terms of the specific tool control measures and the plethora of other safety and security measures as described above.

[49] The appellant reiterates that the work refusal in this case dealt with possibility of the snips getting in the hands of an inmate and injuring an employee. Both of those questions are hypothetical, especially the question of the inmate injuring an employee. The institutional reality is that the potential for inmates having homemade weapons will always exist in an institutional setting, despite the ongoing efforts by staff and management. The appellant points out that it is not because quick snips are professionally sharpened that they are different from home-made weapons: both objects, even a pen for example, are also capable of injuring someone who may decide to use it as a weapon.

[50] Therefore, to assume that the possession of snips by an inmate, by itself, is a danger, would mean that there is a constant state of danger inside the institution, and inmates would need to locked up 24 hours a day.

[51] In order for the danger to not be considered a normal condition of employment and not be hypothetical in nature, there would need to be some evidence of a plan or intent to injure an employee, which the warden testified was not the case based on available intelligence (see: Bradford v. Correctional Service of Canada 2013 OHSTC 38, at paragraph 71).

Respondents' submissions

Mootness

[52] By way of preliminary objection to proceeding further on the merits of the appeal, the respondent first raised the issue of mootness of the appeal.

[53] The respondent submits that since the employer has not requested a stay of the direction and has complied with it by conducting an exceptional search of the institution, the appeal is consequently moot in that there is no longer a live issue to be dealt with in the present appeal. The respondent refers to the seminal judgment of the Supreme Court of Canada in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 (Borowski), and to the appeal decision in Correctional Service of Canada v. Natalie Leeman, 2015 OHSTC 19.

[54] The respondent submits that there is no tangible and concrete issue left to be argued at the hearing on the merits. As the ministerial delegate did not order the employer to conduct a search of the living units, it was the employer’s discretion to comply with the direction in the manner that it did. The search was done and completed and there is, therefore, no way to undue the search. As a result, a decision from the appeal officer would have no practical effect.

[55] Furthermore, two years have passed since the initial work refusal, which further adds to the academic nature of the appeal.

[56] As a result, the debate as to whether or not thread snips present a danger is a now a hypothetical situation. The appeal is about the direction issued. In Harper v. CFIA, 2011 OHSTC 19, the appeal’s officer found that: “something more than speculation about factual circumstances that have yet to occur” is needed for the appeals officer to exercise his/her discretion to hear the case of its merits. This is lacking enormously in the present case.

Merits

[57] On the merits of the appeal, the respondents’ representative reviewed the evidence and points to a number of facts that support a finding of danger in the present case. The respondents stress the nature of the missing set of quick snips, a restricted and very dangerous tool at the Institution. It is made of solid metal and cannot be bent. They can be opened to make a weapon with two very sharp and pointed ends. The tool should have been colour-coded blue, but was not.

[58] There was no tag system in place to clearly identify which inmate had used which tool, nor any requirement to communicate with the officer responsible for inmate movement control to share the information that all tools were accounted for at the end of each shift. Quick snips can be easily concealed. The stab-resistant vest issued to correctional officers does not protect against commercially-made edged weapons. It does not protect against being stabbed in the face, neck, arms or lower abdomen areas.

[59] Inmates could use the gate close to the grounds buildings to access the living units without being searched. The upholstery shop supervisor could not have inmates in sight at all times. They were allowed to have breaks outside of the shop. There were numerous visits between the shops as attested in the employer’s Threat Risk Analysis. The area is fenced by a chain-linked fence and there are ample opportunities to pass the tool across to the living units.

[60] The respondents’ representative further points out that he Tool Control Committee had not met in years in spite of a requirement for quarterly meetings in the employer’s policy, nor that monthly inspection of all areas where tools are utilized and controlled were conducted, as required. The procedure to follow when a tool is unaccounted for, i.e. filling a missing tool report, was not followed.

[61] The respondents refer to the evidence that many hand-made weapons had been seized in the weeks preceding the refusal, and that such a number was unusually high. Furthermore, there had been a murder attempt of an inmate of another inmate a few weeks before and the “mood” of the institution was considered as “elevated” and tense.

[62] The employer’s witnesses agreed that dynamic security cannot prevent all security incidents. Assaults may occur quickly and without warning in medium security penitentiaries. They also agreed that the example stated in the employer’s Search Guide with respect to authorization of an exceptional section 53 search, was identical to the situation that led to the work refusal. Mr. Plantenga, currently the assistant warden/operations at Mountain Institution, testified that an exceptional search was ordered when a pair of quick snips went missing, after October 2014. Warden Huish himself, who was warden at the material time, had ordered a full institutional search where a kitchen bench scrapper and a utility scissor had disappeared and where 2 hand-made weapons were discovered.

[63] The respondents’ representative referred to the testimony of all correctional officers who testified at the hearing, who believe that it was more likely than not that the snips were passed to the living units given the recent incidents. She also stresses the fact that nearly all correctional officers on duty that day felt the same, as evidenced by their participation in the work refusal.

[64] In light of all the facts outlined above, the respondents argue that the quick snips constituted a danger to employees, as agreed by both parties as a result of their investigation, but the only disagreement was whether such danger represents a normal condition of employment.

[65] Unpredictable inmate behaviour was accepted as falling under the definition of danger (Verville v. Correctional Services, 2004 FC 767; Martin v. Attorney General of Canada, 2005 FCA 156). The amendment brought to the definition of danger did not substantially change that situation, as reflected in the appeals officer’s decision in Canada (Correctional Service) v. Ketcheson, 2016 OHSTC 19. Potential and future hazard are not excluded from the new definition of danger so long as the risk to the employee’s health is serious. Unlike the situation found to exist in Ketcheson, there is no evidence that the respondents used the work refusal to promote a labour relations agenda. The caselaw cited by the appellant in Bouchard, Lavoie, Stone should not be given weight, as the decisions all precede Verville; Bradford is clearly distinguishable from the present case, as the issue there was whether it was safe for correctional officers to conduct a search.

[66] The respondents had genuine concerns about their safety and their opinion as to the possibility that the quick snips were likely in the general inmate population, once the area searches were unfruitful, cannot simply be dismissed. Experience-based opinions of ordinary witnesses and inferences arising logically or reasonably from known facts are admissible before an appeals officer and should be given appropriate weight in this case (Verville; Armstrong v. Canada (Correctional Services), 2010 OHSTC 6; Arva Flour Mills Limited, 2017OHSTC 2).

[67] There was a reasonable expectation that the respondents could be exposed to violence from inmates on the day of the work refusal and harmed through inmate violence. The situation at Mountain Institution was abnormal, with the increase of violence against sex offenders, the number of weapons found, the intelligence about sex offenders arming up and the full use of segregation for behavioral issues given the failures of the tool control policies.

[68] The respondents further submit that the danger present in the instant case on October 31, 2014 was not a normal condition of employment. A danger constitutes a normal condition of employment when the danger is one that remains after the employer has taken all necessary steps to eliminate, reduce or control the hazard (Her Majesty in Right of Canada v. Vandal, 2010 FC 87; Armstrong v. Canada (Correctional Services), 2010 OHSTC 6); Parks Canada Agency v. Douglas Martin and PSAC, 2007 OHSTC 15, where the appeals officer accepted the low frequency, high risk principle applicable to taking preventive and mitigating measures against the hazard). The appeals officer must also be concerned with the effectiveness of the mitigating measures alleged to be in place by the employer (UCCO-SACC-CSN v. Attorney General of Canada, 2008 FC 542; Zimmerman v. Canada (Correctional Service of Canada), 2013 OHSTC 34, application for judicial review dismissed by Attorney General of Canada v. Zimmerman, 2015 FC 208). The evidence has established that there were many shortcomings to the application of those measures, and certain aspects of the employer’s witnesses’ evidence are at odds with those measures.

[69] Finally, regarding the interplay between the Corrections and Conditional Release Act and the Code, the respondents quote from the appeal decision in Johnstone v. Correctional Service of Canada, Decision No. 05-020 and submits that one should apply a purposive approach to both pieces of legislation and apply them without opposing them.

Analysis

Mootness of the appeal

[70] I will first address the issue of mootness raised by the respondent. As mentioned above, I have denied the respondent’s request that the appeal be dismissed by reason of mootness, with reasons to follow. My reasons are as follows.

[71] The decision to dismiss an appeal on the basis of mootness is fundamentally a discretionary power that appeals officers have applied to the conduct of their proceedings. Appeals officers have exercised such discretion with some regularity over the years and in doing so, have applied the criteria developed in the Borowski judgment. In Laroche, the Federal Court set out the test in the following terms at paragraph 24:

[24] In Borowski, the Supreme Court held that a court may decline to decide a case which raises merely a hypothetical or abstract question. The Supreme Court defined a hypothetical question and set out the criteria that should guide the Court when deciding whether to use its discretion to hear a case despite it being moot. The Court indicated that an appeal is moot when a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties. The controversy must be present not only when the action or proceeding is commenced but also when the Court is called upon to reach a decision. To determine whether the dispute is moot, the Court must determine whether the requisite tangible and concrete dispute has disappeared rendering the issues academic. If so, it is then necessary to decide if the Court should exercise its discretion to hear the case despite it being moot […].

[underlining added]

[72] I have not been persuaded that the appeal raises “merely a hypothetical or abstract question”.

[73] Appeals officers have applied the mootness doctrine mainly in cases combining the following elements: the appellant was the employee whose refusal to work had resulted in a finding of absence of danger by the ministerial delegate and there were, subsequent to the appeal being filed, material changes in the circumstances that gave rise to the appeal (Samson; Aviation General Partner Inc. c.o.b. as Jazz Aviation LP v. Mohamed Gus Jainudeen, 2013 OHSTC 32; Manderville v. Correctional Service of Canada, 2015 OHSTC 3; Nelson Hunter v. Canada (Correctional Service), 2013 OHSTC 12; Robert J. Wellon v. Canada Border Services Agency, 2011 OHSTC 28; Correctional Service of Canada v. Mike Deslauriers, 2013 OHSTC 41; Tanya Thiel v. Correctional Service Canada, 2012 OHSTC 39; Maureen Harper v. Canadian Food Inspection Agency, 2011 OHSTC 19; Denis Leclair and Correctional Services Canada, Appeals Officer Decision No. 01-024; Dominique Tremblay and Air Canada, Appeals Officer Decision No. 09-004).

[74] The rationale adopted in those cases is premised on the fact that the right to refuse set out in subsection 128(1) of the Code is an individual right conferred on an employee to withdraw his/her services in circumstances where the use of a machine, a condition or a task presents a danger to him/her or another employee. The exercise of that right is by definition dependant on the circumstances of each case. The objective of that right is preventive and its aim is to correct the situation and remove the danger. In those cases, it is generally not contested that the change of circumstances occurring between the filing of the appeal and the date of the hearing, had removed the alleged danger and hence satisfied the purpose of the work refusal.

[75] Findings of mootness are also grounded in the consideration that, regardless of the outcome of the appeal in the circumstances described above, any “corrective action” that the Code empowers the appeals officer to order by way of a direction to the employer (paragraph 146.1(1)(b) of the Code) to remove the danger, would be without object and purely academic if it is demonstrated that the danger has already been removed. In such circumstances, it makes sense to conclude that a matter is moot and should not proceed further, as it would be an exercise in futility.

[76] When the appeal is against a direction issued by the ministerial delegate, the object of the appeal is not quite the same: it is to determine whether the direction is well-founded or not. A direction is an order issued by the Minister of Labour or his delegate, and carries significant legal consequences. That order must be complied with immediately or within the timeframe set out by the ministerial delegate. Failure to comply with a direction constitutes an offence and may result in prosecution.

[77] Under that statutory framework, I have great difficulty in finding that the appeal is without object and raises an abstract question under the test as outlined in Laroche. Granting the respondent’s objection would mean dismissing the appeal without addressing the validity of the direction, which would remain “on the books” as a valid legal order, binding on the employer. Furthermore, the issue is one that could arise again and the employer does have an interest in having the direction rescinded so that all partners in the work place do not conduct their affairs on the basis of a direction if in fact it is not well-founded (Aviation case). I am also mindful of the possibility for another ministerial delegate, pursuant to the new subsection 129(3.1) of the Code, to take into account the direction in order to base his findings and conclusion, when dealing with a similar issue in the future. All of these are in my view rather concrete issues.

[78] Moreover, I am also concerned that the essence of the appellant’s argument of mootness in the present matter is a direct consequence of the employer’s compliance with the direction, as the Code mandates, and not because of external factors or changing circumstances occurring between the appeal and the hearing, as it is commonly the case in other decisions cited above. The respondent rightly points out that the employer has not sought a stay of the direction. However, the granting of a stay envisaged by subsection 146(2) of the Code is a power exercised in exceptional circumstances, where the applicant can establish that it will suffer real and significant harm by complying with the direction. Although section 53 of the Corrections and Conditional Release Act was not specifically mentioned in the direction as the appropriate corrective measure, I believe that everyone concerned understood the dispute to be whether the employer should, in addition to other measures that were taken after the set of quick snips was found missing, take that additional step to address the situation found to constitute a danger by Ministerial Delegate Ryan. As the Threat Risk Assessment document and arguments of the parties make it clear, the “section 53 search” was understood to be the only measure left to address the refusal and satisfy the direction.

[79] This is not to say that a finding of mootness is never possible where the appeal is against a direction. The respondent cited the Leeman decision, where the mootness argument was accepted in relation to an appeal against a direction. In that case however, the evidence established that there were “subsequent external changes” to the circumstances underlying the appeal: the employer had permanently restored the practice of having a second correctional officer present for the provision of telephone privileges; the segregation unit currently functioned as a maximum security unit with the result that a second officer was required for that task; and the issue that gave rise to the direction was unlikely to arise in the future.

[80] I have great difficulty in coming to a conclusion of mootness where the alleged academic nature of the appeal solely results from the employer’s compliance with the direction, as it is legally obliged to do. In that light, it could be argued that all appeals, unless a stay has been granted, would be moot, which would effectively deprive one of the parties of its right to appeal. In my view, such a conclusion has a perverse effect and would undermine the statutory framework set out in the Code.

[81] I therefore proceed to decide the appeal on the merits.

Merits of the appeal

[82] The respondents 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

[83] “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;

[underlining added]

[84] 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.

[85] 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;

[86] 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 on that day and the direction was issued a few days later. There is no dispute that this new definition of danger must therefore be applied to determine whether the situation described in the evidence presented a danger to the refusing employees.

[87] In Ketcheson, cited by both parties, 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.

[88] 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.

[89] 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]

[90] 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]

[91] 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 are relevant to the present case. Thus, the legal test to be applied to the facts in order to determine whether the respondents were in the presence of a danger (as currently defined in the Code) on October 31, 2014, may be set out as follows:

[92] The evidence described above establishes that a particular condition, out of the “normal routine”, existed at Mountain Institution on October 31, 2014 and in the days that followed. A set of quick snips was unaccounted for towards the end of the work shift at the CORCAN upholstery shop located within the compound of the Institution. Several searches of the shop and its surroundings were conducted. Inmates who worked in the shop that day were interviewed and frisk searched. Specific inmates’ cells were searched as well. Intelligence was gathered through dynamic security approaches and by consulting the Inmate Committee. Still, the missing tool was not found.

[93] The missing tool in question is a set of quick snips used for trimming threads or strings from chairs and cushions manufactured in upholstery shops. The description of the tool earlier in these reasons and its classification under the applicable Standing Order make it obvious that it is a particularly frightening instrument if it is in the hands of someone who intends to use it as a weapon. There is no dispute that the snip may cause severe and lethal injuries.

[94] The next step of the analysis is whether that condition could reasonably be expected to be an imminent threat to the respondents? In my view, there is no basis in the evidence to find that the condition was an imminent threat, in the sense of an assault of an officer by an inmate using the set of quick snips as a weapon, was being “on the verge of happening”, in a matter of minutes or hours. The appeals officer aptly describes that concept as follows in paragraph 205 of Ketcheson:

[95] There was no argument by the respondents that the condition described above caused an imminent threat to their lives or health. The dispute centers around the question of whether the condition could reasonably be expected to be a serious threat to the life or health of the respondents.

[96] 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:

[97] In Verville v. Canada (Service correctionnel), 2004 FC 767, 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 raises as I have framed it above:

[98] The Court goes on to explain further:

[99] I am persuaded that, under the circumstances described in the evidence, the respondents have established that they were facing a condition that could reasonably be expected to be a serious threat to their health or life, for the following reasons.

[100] First, the nature of the missing tool itself, which can be used as a dangerous weapon, without further manufacturing, is rather convincing. The snips’ blades are razor sharp and pointed at the end. It is small when folded (4,25 inches) and can be easily concealed or hidden. The employer minimized the significance of the snips being used as a weapon, suggesting that many objects, including a pen, could be used as a weapon and inflict serious injuries to a person. I venture to speculate that it is unlikely that the nearly full complement of correctional officers that day would have engaged in a work refusal had the missing object been a pen.

[101] Second, the physical areas where the shop is located and the work conditions of the inmates. The upholstery shop supervisor could not have inmates in sight at all times. They were allowed to have breaks outside of the shop. Inmates could use the gate close to the grounds buildings to access the living units without being searched. The area is fenced by a chain-linked fence and there are ample opportunities to pass the tool through the mesh across to the living units. I am not persuaded that the inmate movement controls and protocols referred to by the employer eliminate the possibility that the snips may have found their way to the general population. There is no video surveillance of the upholstery area. The area located behind the CORCAN upholstery shop adjacent to the chapel is only supervised periodically by security staff and office staff. There are many locations to hide or conceal objects in the area.

[102] Thirdly, the institutional context within which the condition has occurred is also relevant to my finding. It was established that there was an attempted murder by an inmate on another inmate, using a sharpened butter knife and in plain sight of officers approximately two weeks before the work refusals. Such security incident is said to be not normal for a medium security facility and was found to constitute an “elevated” behavioural and security issue. There were also documented concerns of security threats at Mountain Institution in the weeks prior to the work refusals, relating to possible violence against sex offenders by other inmates, which would cause potential victims to arm themselves with weapons. Six (6) weapons were seized in the month of October only, which is a record high for the Institution, where the average over the last few years is about nine (9) weapons seized per year.

[103] In light of those facts, I am faced with two possible hypothesis: the respondents’ thesis, accepted by the ministerial delegate, that it is very likely that the quick snips had somehow made their way to the general inmate population, and could be used against an officer, which is a condition that could reasonably be expected to be a serious threat to life. The employer’s theory is that the likelihood of the snips being in the hands of an inmate, or in an area accessible to inmates, was low, in light of the searches and frisks of inmates with a metal detector, interviews of the inmates in the CORCAN shop, the lack of intelligence pointing to pre-incidents indicators and the possible use of the snips for another purpose (in other words hobby craft) rather than as a weapon. Or it may simply have been misplaced in the shop, accidentally dropped in waste, in an open box or one of the many areas of the shop where it would be difficult to locate.

[104] In my view, it is possible to speculate on what happened to the quick snips and the answer will never be known. With the passage of time and the fact that they were never found nor used by an inmate, one may argue that the employer’s assessment was the correct one. Conversely, it could also be said that the exceptional search of the institution conducted in compliance of the direction had resulted in the tool being flushed down the toilet by the inmate who might have had it in his possession, as many witnesses have suggested. We are therefore dealing with speculation on both sides.

[105] We must therefore fall back on basic principles and on the fundamental objective of the Code which is to prevent work place accidents and injuries. I am unable to rule out the possibility advanced by the respondents that the snips may have found their way in the general population or be hidden purposely for future use. I do not agree with the appellant’s contention that the risk is purely hypothetical and speculative, because it rests on the assumption, unsupported by any collateral evidence, that the snips have been deliberately stolen and concealed for future use by an inmate, with the intent to use them as a weapon. The likelihood of the snips being in the general population is an equally valid proposition, in light of the particular context unveiled by the evidence. That being so, the risk of spontaneous assault with a weapon is not far-fetched.

[106] The fact that there is no intelligence gathered through dynamic security practices that staff members may be at risk, is not determinative. Assaults against correctional officers have occurred spontaneously and without warning, as established in the testimony of Messrs. Plentanga, Wilson and Steward. The testimony of Ms. Charmaine Weiss, a correctional officer employed at the Kent maximum security Institution, who was the victim of a brutal and spontaneous assault by an inmate and the picture depicting the wound to her face, are rather striking. The inmate used a hand-made weapon made with the blade of a disposable razor. The physical and psychological damage resulting from such an assault may be profound. In my view, such occurrence is a reasonable possibility in the context of the work performed by correctional officers and in light of the circumstances established by the evidence. I would characterize it as a latent threat, rather than conjecture or speculation.

[107] As the Court reasoned in Martin and Verville, when attempting to ascertain whether a condition could reasonably be expected to be a serious threat, one is necessarily dealing events that may only materialize in the future. In that sense, for a serious threat to exist, those potential events must be found to be reasonably expected to occur, as a reasonable possibility.

[108] Therefore, accepting as reasonable the possibility that the snips were deliberately passed on to the general population, the fear that an inmate could use them as a weapon, either in self-defence or in an offensive attack, is not an unreasonable inference to be drawn in the broader context described above. The set of snips was missing and they could have made their way in the general population, raising the possibility that a correctional officer could be seriously injured or killed if the snips were to be used in an assault. The respondents were therefore facing, at the time of the refusal, a condition that could reasonably be expected to be a serious threat to their health or life.

[109] I have given significant weight to the testimony of the correctional officers who testified at the hearing, with the exception perhaps of Mr. Latulippe’s, whom I found had a tendency to exaggerate some of the facts and was more argumentative than factual. On the whole, I am persuaded that correctional officers were genuinely concerned about their safety. That concern was based on their firm belief, given their appreciation of the institutional context leading to the refusal and their experience in working in a penitentiary environment, that the snips had likely found their way to the general population. The fact that the near totality of the correctional officers on duty believed this to be the case is not insignificant. A penitentiary is a world of its own. In that very context, the Federal Court in Verville has recognized the importance of the opinion of certain witnesses who have more experience than the appeals officer in the subject matter at issue:

[51] […] A reasonable expectation could be based on expert opinions or even on opinions of ordinary witnesses having the necessary experience when such witnesses are in a better position than the trier of fact to form the opinion […].

[110] Consequently, that possibility being real, it follows that it could present a serious threat to the respondents’ health or life, before the condition can be altered. There is no need to belabour that point, as the possible use of the quick snips as a weapon is capable of inflicting severe and lethal injuries. While correctional officers are provided stab-protection vests, the vest does not protect all areas of the body: it would not prevent life threatening lacerations to the head, neck or other unprotected parts of the body. Assaults of correctional staff may occur without warning, in a matter of a few seconds, and without having received intelligence or indicators that attacks against staff were contemplated. Clearly, the threat can therefore materialize before the condition can be corrected, thereby satisfying the third element of the test as set out in Ketcheson.

[111] The employer has referred to a number of mitigation measures that it has put in place, which purports to minimize the risk of a tool finding its way into the general population and the risk of assaults against correctional officers. It is not necessary to repeat those security measures at length. In my view, while those measures are highly appropriate, they address the basic framework within which correctional officers carry out their duties, in the normal scheme of things and in the day to day operations of the penitentiary.

[112] The respondents have submitted that the tool control measures in effect at the time of the refusal (such as the colour-code, the missing tool report, etc.) were not followed. While this assertion is supported by the evidence, it is not material to the issue raised by the appeal. I note that the employer has taken additional measures after the refusal, to ensure that the tools used in the shops wold be adequately controlled. Those measures are as follows: inmates are no longer able to leave the area of employment until all tool cribs are inspected and locked; all inmates must sign out the tools on a register that is controlled by the supervisor; tool cribs cannot be left unlocked during the work day; all tools are to be accounted for in a crib or secure location at the end of a work day. These measures are designed to prevent the recurrence of situations such as the present case, where someone notices, at the end of a work shift, that a tool is missing.

[113] However, what is at issue in the present case are the measures to be taken after it is noticed that the quick snips are missing and the real possibility that they are accessible to the general inmate population.

[114] It results from the above analysis that on the day of the refusal, a condition existed in the respondents’ work place that constituted a danger to them, within the meaning of the Code.

[115] This takes me to the next part of the analysis to be dealt with in the present appeal: are the condition 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.

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

[117] 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.

[118] 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 cited with approval the following analysis with regard to the question as to whether a danger constituted a normal condition of employment that was set out in the appeals officer’s decision under review in that case:

[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.

[underlining added]

[119] 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 […].

[underlining added and footnote ommited]

[120] I also 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]

[121] 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.

[122] 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.

[123] As I have observed earlier, the mitigation measures advanced by the employer address more generally the operations of the penitentiary and more generic measures such as static and dynamic security, inmate movement control, etc. For example, the classification system for the tools and corresponding supervision requirements and the metal detector frisk of inmates working in the shop are designed to minimize the risk of the tools being taken out. There are fences and video surveillance of the perimeter and inside areas of the Institution, but there are areas such as areas relevant to the present appeal, where there is no video surveillance and capacity for inmates to access the living units or pass the snips through the fence without being seen. While dynamic security approaches have proven effective, they are not always effective in providing forewarning indicators of an assault.

[124] The hard fact remains that in spite of those measures, the quick snips were unaccounted for on October 30, 2014 and on the day of the refusal. Accordingly, I am not persuaded that the various policies, procedures, standing orders addressing dynamic and static security, control of inmate movement and protective equipment, mitigate the hazard of the possible presence of quick snips within the institution in the possession of an inmate.

[125] The appellant argues that such being the case, the possible presence of quick snips is no different from the possible presence of home-made weapons that inmates commonly manufacture and that are periodically found through searches, and is a normal condition of correctional officers’ employment and a risk inherent to the job. I disagree. The hazard in the present case was described as the possibility for a specific set of thread snips to be within the Institution, in the context that I have described above and in spite of all the precautionary measures implemented by the employer. Plainly and simply put, quick snips were missing from the shop. In my view, this is a critical distinguishing factor from the possibility of there being, in general terms, home-made weapons circulating in the Institution. I agree that the latter can be described as a generic hazard that is inherent to the work of a correctional officer, and that is addressed by the various mitigating measures designed by the employer. The respondents do not dispute the assertion that the risk created by the presence of the quick snips in the shop itself, to be used by inmates, is a normal condition of employment. However, the former raises, in my view, a very specific hazard which should be addressed by a corresponding specific mitigating measure.

[126] I accept the appellant’s contention that it did not simply conduct a perfunctory search of the shop area, and then ordered the continuation of normal operations. To the appellant’s credit, the institution was placed under a modified routine, as described earlier. Several searches were conducted, inmates were interviewed, and intelligence was gathered from various sources. In that sense, the employer took mitigating measures to address the condition and reduce the risk. But in the final analysis, the employer had one final option to exercise: the exceptional search under section 53 of the Corrections and Conditional Release Act.

[127] In that light, this is a significant distinguishing factor from the situation that prevailed in the Stone decision, cited by the employer in support of its position. The mitigating measures, similar to those put forward by the employer in the present case, were found to address the hazard alleged to exist by the employee. The alleged hazard in that case was the insufficient staffing of the shops, which was more in the nature of a “general concern” and longstanding problems that ordinary security measures were designed to control. The situation alleged to constitute a danger in Stone was more in the realm of the “root causes” of the hazard, a concept which the appeals officer in Ketcheson addressed in the following terms:

[145] [...] Hazards are not distant, root causes in the management system such as policies and programs. It is very effective to search for the root causes of hazards in missing or inadequate policies and programs. Fixing root causes can eliminate hazards or reduce their presence or effect. Other root causes are budgeting, resource allocation, staffing, etc. Root causes of accidents and exposures are important but, in general, they are best suited to being dealt with by other mechanisms under the Code. From an ordinary sense of the word “hazard”, an employee would picture direct causes of harm and not typically root causes, which are more abstract.

[underlining added]

[128] Also, it seems that in that case, a lockdown of the institution had been implemented shortly before the refusal, which is what the respondents are seeking in the present case. The following excerpt highlights the distinction, at paragraph 46:

[46] The risk of being assaulted with a weapon, any type of weapon, whether or not it has been fabricated from material obtained from one of the shops, is part and parcel of the job of a correctional officer. That risk is however mitigated by the numerous controls, security policies and procedures put in place by Correctional Service Canada. The Springhill
Institution Searching Plan is an example of such a procedure, an effective one which, in passing, had been activated and resulted in the lock down of the Institution prior to Mr. Stone’s refusal to work. The ongoing interaction with the offenders, i.e. dynamic security, is another example of the type of security measure used by the staff to identify potential threatening situations. Preventive security is another aspect of the overall security system in place in a medium security institution. The overall security system in such penitentiaries necessarily includes a certain amount of static security. Much of the debate in this case centers on whether the absence of staff at post #20 increases, in the end, the risk of assault on correctional officers to the point where the staff is in danger as defined in the Code.

[underlining added]

[129] It is true that the job description of correctional officers highlights the risks and dangers inherent in the job. But the analysis must go one step further in my view: the question then is whether the appellant has, in the spirit of section 122.2 of the Code, taken all appropriate measures to minimize or reduce that particular threat to the health or life of employees, accepting the fact that the hazard cannot be completely eliminated, short of course, in this case, of finding the snips.

[130] Warden Huish chose not to order such a search, at least until the direction was issued on November 6, 2014, for the reasons that are set out above and that are based on the hypothesis that in his judgement, was the most likely. I have no doubt that Warden Huish took the situation seriously and decided on what he considered the best interests of the institution and the safety of employees. An exceptional search and lockdown is very disruptive of the Institution: it imposes additional amount of work on all staff of the Institution, inmates are deprived of their normal activities and confined to their cells for the duration of the search, which may take several days, causing them to become resentful and agitated. The respondents acknowledged that fact, which I consider to be supportive of the seriousness of their belief that they were exposed to an “abnormal” danger: that kind of search clearly entails unpleasant and possible negative consequences for the respondents as well.

[131] While the direction does not specifically refer to a section 53 search, the logical inference arising from the discussions during the investigations and the documentary evidence adduced at the hearing is that a full institutional search was the final step, after which any remaining risk or hazard would constitute a normal condition of employment under the Code. The employer would then have exhausted all available measures to reduce or control the danger.

[132] In my view, a section 53 search would have been a reasonable mitigation measure to undertake in the circumstances of the present case. It is not contested that section 53 searches were ordered in the past to address similar situations. In March of 2014, Warden Huish, had directed an exceptional search of the Institution, upon the report that a bench scrapper was missing from the kitchen. The search was justified by the warden’s belief that the missing tool could be used to manufacture a homemade weapon that would endanger the lives of staff and inmates or adversely affect the security of the institution. In April 2014, a similar search was ordered after the discovery of two improvised weapons. In September 2014, an exceptional search was directed as a result of a missing pair of utility scissor. Those scissors are found in First Aid kits and have blunt ends, but could be used to manufacture weapons.

[133] It goes without saying that quick snips present at least as great a hazard as these objects.

[134] The evidence shows that in the past when a restricted tool went missing, the hazard presented by such an occurrence was controlled by conducting an exceptional search of the living units and the inmates’ cells. I am persuaded that, under the circumstances, the employer had the option of ordering an exceptional search and in my view, such additional step was warranted to satisfy the requirements of the Code. I am reinforced in my conclusion when I read the employer’s Search Guide introduced in evidence, which provides an example of “reasonable grounds to believe” that would pass the test of section 53 (at page 3). The example is telling and reads as follows:

An xacto knife has gone missing. A report has been prepared outlining how an xacto count was taken in the morning/night and which inmates were in the shop during this time period as well as outlining the steps taken to search the shop to detect the missing xacto knife. Authorization is sought from the Institutional Head outlining these details setting out reasonable grounds to believe the danger and requesting a section 53 frisk and strip search as well as a regulation 53 cell search of those inmates in the shop that day. If nothing is found on those inmates, that is further information with which to have reasonable grounds to search the rest of the Institution.

[underlining added]

[135] During the course of the investigations into the refusals, there were discussions about the primacy of the Corrections and Conditional Release Act over the Code, in terms such as which legislation “trumps the other”. In other words, it was suggested that a ministerial delegate did not have the power to order a section 53 search, as it is the institutional head (warden) who has exclusive authority and discretion under that section. The appellant did not forcefully argue that point, at least not in those terms, although the appellant raised in argument the fact that Warden Huish had properly applied his mind to the situation and properly addressed it, and that should be the end of the road.

[136] Those two pieces of legislation each have their own purpose and object and in my view, may coexist and be applied concurrently. I do not see a conflict between section 53 of the Corrections and Conditional Release Act and the obligation spelled out in sections 122.1, 122.2 and 124 of the Code that appropriate preventive and mitigating measures be taken to protect employees from work place hazards. Section 53 is an enabling provision. Persons who operate in a public sector environment and exercise responsibilities on behalf of the Crown, do so on the basis of statutory enactments of many kinds. These authorities may be generic, such as the general management powers under the Financial Administration Act, or tailored more specifically to the nature of their responsibilities.

[137] Section 145 authorizes the Minister to issue directions to ensure the attainment of the objects of the Code and compliance with its provisions. As the appeals officer pointed out in the Johnstone decision, the Code applies “notwithstanding any other act of Parliament or any regulations thereunder” (sections 123 of the Code and 240 of the Federal Public Service Labour Relations Act). In my view, the obligation on an employer to take all the necessary measures to eliminate or reduce a hazard present in its work place does not conflict with the authority to take a measure, where such measure is appropriate, the flows from the Corrections and Conditional Release Act.

[138] In conclusion and for the reasons outlined above, I find that the ministerial delegate was correct in finding that the respondents were exposed to a danger within the meaning of the Code and that the danger was not a normal condition of employment. Consequently, the direction that she issued on November 6, 2014 is well-founded and is hereby confirmed.

Decision

[139] For the above reasons, the direction is confirmed.

Pierre Hamel

Appeals Officer