2017 OHSTC 22

Date: 2017-11-15

Case No.:

2014-45
2014-46
2014-47
2014-48

Between:

Ron Harris and Lucido Fauceglia, Appellants

and

Canada Border Services Agency, Respondent

Indexed as: Fauceglia v. Canada Border Services Agency

Matter: Appeals under subsection 129(7) of the Canada Labour Code of decisions rendered by a health and safety officer.

Decision: The decisions that a danger does not exist are confirmed.

Decision rendered by: Mr. Olivier Bellavigna-Ladoux, Appeals Officer

Language of decision: English

For the appellant: Mr. Jean-Rodrigue Yoboua, Representation officer, Public Service Alliance of Canada

For the respondent: Ms. Christine Langill, Counsel, Department of Justice Canada, Labour and Employment Law Group

Citation: 2017 OHSTC 22

Reasons

[1] This decision concerns appeals brought under subsection 129(7) of the Canada Labour Code (the Code) of decisions rendered on October 1, 2014, by Health and Safety Officer (HSO) Greg Garron following work refusals made by the appellants Ron Harris and Lucido Fauceglia and other employees of the Canada Border Services Agency (CBSA or respondent) between August 20 and September 11, 2014.

[2] HSO Garron began an investigation into this matter on August 22, 2014. On the basis of the information and documents obtained in the course of his investigation, HSO Garron found in four separate, but virtually identical decisions, dated October 1, 2014, that a danger did not exist for the appellants and their colleagues to carry out their work-related activities in the circumstances that gave rise to the refusals. On October 7, 2014, Mr. Harris appealed one such decision (case no. 2014-45) and, on the same date, Mr. Fauceglia appealed the three other decisions (case nos. 2014-46, 2014-47 and 2014-48).

[3] The appellants request that I rescind the findings that a danger does not exist made by HSO Garron and issue danger directions under subsection 145(2) of the Code. It should be noted that the other CBSA employees who had exercised their right to refuse to work along with the appellants did not appeal HSO Garron’s decisions.

[4] I decided that, given their similarities, these four cases would be joined and heard together to facilitate the appeals process. The Occupational Health and Safety Tribunal Canada so informed the parties on November 19, 2015.

[5] The hearing in this matter took place in Toronto, Ontario, from May 30 to June 2, 2016. The appellants testified on their own behalf and called another witness, Mr. Michael Zitnik, a certified industrial hygienist. Mr. Zitnik was recognized as an expert witness in the field of occupational hygiene. The respondent called three witnesses: Mr. Rene Siguenza, A/Senior Program Advisor, CBSA Secondary Examination Unit; Ms. Patricia Blake, A/Operational Superintendent with CBSA; and Mr. Daniel Dion, an industrial chemist employed as a project technologist by the CBSA’s Science and Engineering Directorate. Mr. Dion was recognized as an expert in the detection and sampling of fumigants.

Background

[6] Based on the evidence before me, the circumstances of the refusals can be described as follows. Messrs. Harris and Fauceglia are employed with the CBSA as Border Services Officers (BSOs). The duties of BSOs include conducting the examination and verification of goods and conveyances imported into Canada. BSOs reach decisions on the entry and release of such goods for commercial sale. They also determine appropriate action when non-compliance with applicable laws and regulations is suspected or encountered.

[7] Goods imported into Canada are often transported in marine shipping containers, which are used internationally as the primary means to transport a variety of goods by vessels throughout the world. Chemical fumigants are widely used in the shipping industry as agents to kill invasive alien species in cargo loads and preserve cargoes. Such fumigants are put in the containers by the exporters or shippers prior to the departure of the vessels. It is beyond dispute -and this is the root cause of this appeal- that these chemicals may be a hazard to human health.

[8] To put the work refusals in their proper context, it is necessary to describe the CBSA’s function and processes when goods transported in shipping containers destined for importation into Canada arrive at the borders. Before the goods are released for commercial sales, different types of examination of the cargo and shipping containers by CBSA employees may occur. These examinations may include:

• Intrusive examinations for shipments targeted by the CBSA’s National Targeting Centre to identify and inspect high-risk goods. These examinations are conducted at premises known as Container Examination Facilities (CEFs) at the first point of arrival. There are four such facilities in Canada (Halifax, Montreal, Prince Rupert and Vancouver). The purpose of these examinations is to protect the health, safety and security of Canadians. BSOs that perform such examinations are required to enter in the containers and examine their interior and exterior. The appellants were not involved in these comprehensive examinations.
• Dockside examinations for the purposes of detecting contraband or other prohibited goods (e.g., weapons or narcotics). These types of examinations will occur when a CBSA officer suspects that a shipment contains prohibited items. They may include the use of detection equipment such x-ray machines, large scale imaging systems and probes and will take place in an environment controlled by the CBSA. Again, the appellants were not involved in dockside examinations.
• Inland or commercial compliance examinations which are sometimes referred to as secondary examinations. Certain goods imported into Canada will be sent to facilities known as inland sufferance warehouses. There are over 1000 inland sufferance warehouses across Canada. While the majority of imported goods will not be inspected by the CBSA, certain shipments will be selectively referred for examination by BSOs upon review of the importer’s declaration upon arrival. The purpose of these examinations is to verify that a particular shipment, importer or exporter complies with the laws and regulations administered by the CBSA or other government departments. For example, BSOs will ensure that the documentation presented to account for the shipment accurately describes the imported goods. They will verify the markings, quantity, country of origin, and value of the goods to determine whether customs duties are payable, etc. BSOs may also take samples of the goods in order to assist in post-release verifications. Such inland examinations are the type of examinations that were performed by the appellants at the time of the work refusals.

[9] It warrants noting that inland sufferance warehouses are not owned or controlled by the CBSA. They are the property of corporations or operators retained by importers to handle imported goods. Moreover, BSOs conducting commercial compliance examinations are not required to enter in containers or inspect them. It is the imported goods and not the containers that are to be examined.

[10] Consequently, BSOs will proceed with their examination only after warehouse employees have entered the containers, unloaded them and placed the goods on the warehouse floor. The interval between the moment the goods are unloaded and the time of their examination by BSOs can range from hours to days. However, when BSOs arrive at a warehouse to conduct their examinations of selected goods, other marine containers that are not subject to the CBSA’s examination may be present at the warehouse for loading or offloading.

[11] This situation is what prompted the appellants to exercise their right to refuse to work when they were assigned to conduct commercial compliance examinations at four different inland sufferance warehouses in the Greater Toronto Area. More specifically, on August 20, 2014, BSO Fauceglia and a colleague were assigned to a warehouse operated by Schenker of Canada Limited (DB Schenker). When they arrived, they noticed that two open marine containers at the bay door of the loading dock were being offloaded. Concerned that these containers may have contained dangerous fumigants that could harm them, they refused to perform their work because they did not feel that it was safe to examine goods in those circumstances. They described their health and safety concern as the possible venting of dangerous fumigants into an enclosed warehouse.

[12] On the next day (August 21, 2014), BSO Fauceglia again exercised his right to refuse to work, this time at a warehouse operated by Huna Logistics Inc., after noticing that there were four marine containers at the bay doors of the loading dock. BSO Fauceglia stated, as the grounds for his refusal, that these four containers with doors opened were possibly venting hazardous fumigants into the warehouse. For the same reasons, BSO Fauceglia exercised his right to refuse to work for a third time on August 25, 2014. He did so after noticing that there were five marine containers with their doors opened sitting near the loading dock at a different location, a warehouse operated by DHL Global Forwarding (Canada) Inc.

[13] Finally, on September 11, 2014, BSO Harris exercised his right to refuse to work at a warehouse operated by Five Star Terminals Ltd., after observing that there were two marine containers at the loading docks with their doors opened. Like BSO Fauceglia, he stated that the health concern at issue was the possible venting of fumigants inside the warehouse within a confined space without proper ventilation procedures or testing for fumigants inside the containers. Approximately 45 other BSOs refused to work at this location when they were informed of BSO Harris’ refusal.

[14] On September 15, 2014, HSO Garron visited the four warehouses where the work refusals occurred. During his investigation, he received technical guidance from a Labour Program’s industrial hygiene engineer. HSO Garron reviewed existing documents and study reports on marine container examination and the venting of fumigants prepared by the CBSA. He also examined the CBSA’s policies and programs designed to address the health and safety risks for employees who may come into contact with fumigants.

[15] In his investigation reports, HSO Garron noted that none of the four warehouses had any documentation to verify if containers on site had been fumigated and what type of fumigant may have been used. He observed that containers did not display signs or placards indicating the presence of fumigants and that warehouse personnel did not conduct air sampling of any container prior to breaking its seal and opening the doors. The reports also indicate that the containers were not mechanically ventilated prior to being opened and that warehouse personnel opening and unloading the containers was not using personal protection equipment.

[16] Additionally, HSO Garron emphasized the then new CBSA National Fumigant Program Policy which was implemented as of August 5, 2014 (shortly before the work refusals). This policy sets out the following operating procedures for inland sufferance warehouse examinations in regards to marine containers and fumigants:

1. When BSOs arrive at the warehouse they are instructed to check with the warehouse operator to ask if any new marine containers have been brought to the warehouse bay doors within the last 5 minutes;
2. BSOs must ensure that the goods which are waiting for examination have been on the warehouse floor for more than 10 minutes;
3. BSOs must determine a safe walking passage to the area of the warehouse where the shipment of goods is waiting for commercial secondary examination;
4. BSOs are not to walk within a 3 metre safety zone of any containers opened or brought to a bay door within the 5 minute waiting period;
5. If during the course of the examination, a newly arrived container has been brought to a bay door and BSOs must walk within the 3 metre safety zone of that container in order to transit the area, then BSOs must wait 5 minutes before proceeding to the inspection area;
6. All examinations must take place in a safe manner in the warehouse or yard; and
7. BSOs are not to enter a container or to examine containers in order to perform commercial secondary examinations in sufferance warehouses.

[17] Following his investigation, HSO Garron concluded that the CBSA’s procedures and precautionary measures were adequate to protect BSOs from exposure to unsafe levels of chemicals. In particular, in light of the fact that the gas within a container will begin to dissipate as soon as the container is opened, he found that the time and distance standards to be observed by BSOs conducting commercial compliance examinations were acceptable. For these reasons, he found that a danger did not exist at any of the four work places at the time when the appellants exercised their right to refuse to work.

[18] Finally, in May 2015 (approximately eight months after the work refusals), the appellants were reassigned to different positions within the CBSA’s Commercial Operations Branch. Accordingly, it appears that, although they are still employed by the CBSA, they are not currently performing commercial compliance examinations at inland sufferance warehouses. This development has caused the CBSA to request, at the outset of the hearing, that I dismiss the appeal on the grounds of mootness.

Issues

[19] The primary issue is whether the appellants were exposed to a danger as defined under the Code in the circumstances that led them to exercise their right to refuse to work in late August and early September 2014. Given that the work refusals occurred before the entry into force of substantial amendments to the Code on October 31, 2014, these amendments, which included a revised definition of the concept of danger, are not applicable in this appeal. Therefore, I will apply the version of the Code that was in force at the time of the work refusals.

[20] Before addressing this issue, I must consider two preliminary issues raised by the CBSA. First, the CBSA seeks the dismissal of the appeals on the basis of mootness as it takes the position that the appellants are no longer exposed to the alleged danger. Second, the CBSA requests a sealing order for a document containing excerpts from its Enforcement Manual that it filed as an exhibit.

Mootness

[21] The CBSA states that since May 2015, the appellants work in a different substantive position and therefore no longer conduct inspections of goods at inland sufferance warehouses. It notes that Mr. Fauceglia testified that since then, he has only worked on three occasions at an inland sufferance warehouse.

[22] Based on this fact and relying on several previous decisions from other appeals officers, the CBSA submits that the appellants are no longer exposed to the alleged danger and that a decision on the merits of the case would therefore not have any concrete effect on the parties. Accordingly, the CBSA claims that the matter is moot and that the appeals should be dismissed for that reason.

[23] In response, the appellants submit that their appeal is not moot. They argue that the cases relied upon by the respondent are distinguishable and therefore not applicable to the present matter.

[24] Specifically, the appellants submit that, although they are not performing inland commercial examinations at the present moment, there is a real possibility that they will be asked to do so before they complete their career with the CBSA, as BSOs are often reassigned to different areas or work places depending on the CBSA’s operational requirements at a given time. Their evidence is that being reassigned has indeed occurred to them in the past. The appellants further note that they performed inland commercial examinations for eight months following their work refusals.

[25] The appellants also argue that the CBSA has not ceased the practice of having BSOs perform commercial examinations at inland sufferance warehouses or altered its procedures in regards to marine containers and fumigants since they exercised their right to refuse to work. Therefore, employees are still exposed to the alleged danger and there is still a live controversy in this matter.

[26] Having considered the parties’ submissions, I find that this matter is not moot. For the following reasons, the respondent’s preliminary request is dismissed.

[27] The principles underlying the doctrine of mootness are set out in the Supreme Court of Canada decision in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, which the CBSA cited. In this decision, the Court states the following at page 353:

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

[28] In my opinion, this case does not raise a hypothetical or abstract question because the source of the alleged danger has not been removed and the appellants remain employed as BSOs by the CBSA. Accordingly, while developments in the appellants’ situation and work assignments have occurred since the filing of the appeal, it cannot be said that these events have affected the relationship between the parties such that no present live controversy exists.

[29] According to the evidence, it is plausible that the appellants will, at some point in the future, be required to perform secondary commercial examinations at inland sufferance warehouses. The CBSA did not dispute the appellant’s testimony in this regard or otherwise exclude this scenario. Thus, I cannot conclude that the appellants will no longer be exposed to the alleged danger while at work.

[30] Additionally, a decision rescinding HSO Garron’s decisions that a danger does not exist and the issuance of a direction pursuant to subsections 146.1(1)(b) and 145(2) of the Code would certainly affect the rights of the parties. This outcome would force the CBSA to alter its policies and practices with respect to the conduct of commercial compliance examinations at inland sufferance warehouses in order to adequately protect its employees from the hazards caused by fumigants. Conversely, a decision confirming the decisions in issue, while it would not preclude the appellants or other BSOs from exercising their right to refuse to work in similar circumstances in the future, would signal that the CBSA’s existing policies to eliminate or mitigate the health risk posed by fumigants are adequate. Therefore, I cannot conclude that a decision on the merits of the appeal would have no practical effect on the rights of the parties.

[31] I find support for my conclusion in the precedents discussed by the parties in their submissions. In particular, it is my view that the decisions in Hunter v. Correctional Service Canada, 2013 OHSTC 12, and Deslauriers v. Correctional Service Canada, 2013 OHSTC 41, stand for the proposition that an appeal under subsection 129(7) of the Code is not moot where, such as in this case, there is still both an employment relationship and an alleged danger to which the appellants may be exposed.

Sealing order

[32] The CBSA seeks a sealing order of exhibit E-4 which contains excerpts of a document entitled “Enforcement Manual”. According to the CBSA, this exhibit contains sensitive information the disclosure of which would compromise its ability to effectively carry out its mandate to provide integrated border services supporting national security and public safety. The appellants do not object to the request for this sealing order.

[33] Applying the test has been set out by the Supreme Court of Canada and is commonly referred to as the Dagenais/Mentuck test, adapted of course to administrative proceedings such as the present proceedings, I find that the benefits of maintaining the confidentiality of this document outweigh the deleterious effects of not doing so.

[34] Specifically, the salutary effects of the requested sealing outweigh the relatively minor deleterious effects on the rights of the parties and the public in the disclosure of all documents in this case. Indeed, a full public hearing has already taken place and the public interest would be best served by ensuring that the CBSA continues to carry out its mandate in a manner that ensures the protection of the population of Canada.

[35] Accordingly, I hereby issue an order sealing exhibit E-4 in its entirety.

Merits

[36] I will now turn to the merits of this case. I must determine whether the appellants were exposed to a danger as defined in the Code when they exercised their right to refuse to work.

Submissions of the parties

Mootness

[37] The appellants noted that it is not disputed that each fumigant has its own exposure levels which, if exceeded, can pose a risk to the health of BSOs. This indicator is called “Threshold Limit Value” (TLV) which refers to the airborne concentrations of substances and represents conditions under which it is believed that nearly all workers may be repeatedly exposed without adverse health conditions.

[38] Also relevant is a factor known as the “Threshold Limit Value - Time Weighted Average” (TLV-TWA) which relates to the permissible eight-hour exposure concentration to chemicals in a workday and over a forty-hour work week. From this benchmark, one can determine an “action level”, that is, an industry safety factor that can be used to ensure that employees are not exposed to unsafe levels of fumigants. For fumigants in marine containers, the action level is set at 50 percent of the TLV-TWA. In other words, according to the appellants, BSOs should not be exposed to fumigants beyond a certain industry-recognized safe level.

[39] The crux of the appellant’s case is that the CBSA’s current procedures for preventing the exposure to unsafe levels of fumigants are based on research which does not replicate real life scenarios and underestimates the concentrations of fumigants to which BSOs are actually exposed. Hence, it is their position that these procedures put them in a situation of danger.

[40] While they do not dispute that the current procedures for unloading containers are safe as long as the levels of fumigants do not exceed 25 times their action levels, the appellants argue that there is evidence that “it is possible” for BSOs to be exposed to fumigants that exceed 25 times their action level. Since the concentrations of fumigants can exceed the safe parameters set out by the CBSA itself, the appellants contend that there is a gap in its safety procedures.

[41] Further, the appellants submit that the CBSA’s own studies and documents upon which the safe procedures are based recognize that they do not deal with the scenario of fumigant concentrations exceeding the 25 times above the action level limit. The appellants claim that a much more reasonable approach would have been to determine the highest concentrations of fumigants that BSOs were likely to encounter while at work and develop controls, including safe work procedures, based on the worst case scenario.

[42] In this regard, the appellants rely on the testimony of their expert witness who opined that the rate at which each fumigant dissipates is slightly different and that a safe working zone should be calculated based on the most toxic and longest dissipating chemical. The appellants also argue that Mr. Zitnik’s evidence makes it clear that the assumption that fumigants dissipate at the same rate is flawed and that the gaps and limitations in the CBSA’s studies and research suggest that the 10-minute/3-meter exclusion rule set out in the CBSA’s safe working procedures might not be sufficient. The appellants also argue that this problem is compounded by the fact that when BSOs perform their duties at sufferance warehouses, there is a possibility that more than one container will be opened at once, which could increase the exposure to fumigants present in a warehouse at any given moment.

[43] The appellants referred to the definition of danger set out in section 122 of the Code, and to the jurisprudence which has interpreted that concept, in particular regarding the notion that, for a danger to exist, there must be a “reasonable possibility”, based on the facts presented in evidence, that the hazard or condition will present itself and is capable of causing injury or illness, and is not mere conjecture: Canada Post Corporation v. Pollard, 2007 FC 1362 (Pollard, affirmed by 2008 FCA 305); Martin c. Canada (Attorney General), 2005 FCA 156 (Martin); Verville v. Canada (Correctional Service), 2004 FC 767 (Verville).

[44] According to the appellants, the evidence has established the following facts:

• Fumigants pose a serious threat to the health and safety of BSOs;
• There is evidence that hazardous substances from shipping containers sometimes reach concentrations above 25 times their action level;
• There is a serious risk for BSOs to be exposed to fumigants from containers which are not the subject of an inspection;
• The procedures in place are only adapted to concentration of fumigants which do not go above 25 times the action level of fumigants;
• The studies conducted are not adequate and do not truly reflect the working conditions of BSOs;
• BSOs have to work with pallets that rise above their head despite the employer recognizing that they should never crawl between boxes;
• The studies which evaluated the opening of boxes did not consider the reality that exists in the warehouses; and
• There is evidence of fumigants inside of boxes exceeding the action level and yet no safe procedures for opening boxes are in place.

[45] In summary, the appellants submit that, without adequate procedures backed by appropriate research, BSOs will likely encounter fumigants which rise above 25 times their action level and it is reasonably foreseeable that such circumstances will lead to an injury or illness because they are no controls in place to respond to these conditions. Finally, they argue that the CBSA breached sections 19.5 and 10.4 of the Canada Occupational Health and Safety Regulations (the Regulations) in failing to properly investigate the hazard that fumigants represent and to take appropriate preventive measures to eliminate or reduce this hazard.

[46] For these reasons, the appellants request that HSO Garron’s findings of no danger be rescinded and substituted with findings of danger. They also request that the CBSA put in place procedures that address all the various levels of fumigants that are likely to be present in inland sufferance warehouses.

Respondents' submissions

[47] The CBSA agrees with the appellants that the test for determining whether a danger exists is set out in the Federal Court of Appeal’s decision in Pollard, and elaborated upon in Martin and Verville. The CBSA emphasizes that the evidence required to establish the existence of a danger is the proof that the circumstances under which an alleged hazard, condition or activity would cause injury or illness will occur in the future, not as a mere possibility, but as a reasonable one. On that basis, the CBSA submits that in assessing whether a hazard, condition or activity can reasonably be expected to cause injury or illness, a finding of danger cannot be based on speculation or hypothesis.

[48] The CBSA submits that the appellants therefore have the burden of proving that there was a reasonable possibility that they were exposed to unsafe and harmful levels of fumigants at the time of the work refusals. The CBSA’s position is that the appellants’ allegation of danger is based on pure speculation and hypothesis given the lack of evidence that they were exposed to fumigants that could reasonably be expected to cause injury or illness when they refused to work. The CBSA also submits that the appellants have failed to use the available options, tools and powers available to them to prevent their exposure to fumigants in the warehouses.

[49] In particular, the CBSA underscores that:

• The mere existence of a hazard does not automatically equate to a finding of danger;
• The work refusals were not based on a specific situation occurring at the warehouses on the day of the work refusals; there was no cargo that was out of the ordinary nor was there any evidence of symptoms or medical illness;
• The work refusals appear to have taken place shortly after the appellants received notice of the new CBSA policy and procedures to deal with fumigants with which they disagreed. A disagreement with an employer’s policy is not a valid reason to invoke the right to refuse to work (Canada (Attorney General) v. Fletcher, 2002 FCA 424);
• BSOs are not required to complete commercial examinations under imminent time constraints or forced to walk through a stacked pile of boxes; the powers provided to them under the Customs Act include requesting warehouse personnel to move the boxes and unload or unpack the imported goods;
• There is no evidence that the appellants even tried to ask the warehouse personnel to prepare the boxes or unstack them for inspection. On the contrary, the evidence is that they even failed to initially ask information from the warehouse operators about the containers arriving at the bay doors, something that they are expected to do under step 1 of the August 5, 2014 CBSA procedures; and
• Legal obligations should not be imposed on an employer for actions of employees who admit their own irresponsibility, particularly when there is no evidence that the employer encouraged or condoned such complacency.

[50] The CBSA further submits that there is no evidence of any harm or injury or of any reasonable likelihood of such harm or injury to BSOs resulting from the alleged exposure to fumigants in sufferance warehouses. According to the CBSA, it is telling that the appellants did not present any evidence from a medical doctor to prove any health issues related to exposure hazardous substances, such as headaches linked medically to fumigants, either to them or to other BSOs who have actually continued to work at the warehouses on an ongoing business since 2014.

[51] Additionally, there is no evidence of harm or injury to the warehouse employees who are the individuals who work directly and first-hand with the containers. The CBSA stresses that it is important to bear in mind that BSOs only examine the goods after they have been removed from the containers and placed on the warehouses’ floor for a required time period per its policy and procedures. In the absence of any evidence of actual harm or injury to anyone, the CBSA maintains that its working procedures are working and are effective.

[52] The CBSA submits that these working procedures which require BSOs working in inland sufferance warehouses to, among other steps, ensure that goods waiting for examination have been on the floor for more than 10 minutes, determine a safe walking passage to the area of the warehouse where the shipment of goods is waiting for examination and refrain from walking within a 3-metre safety zone of any container opened, are sufficient to ensure that their health and safety is protected. The CBSA argues that in placing timing and proximity restrictions around the work activities of BSOs who inspect goods that come from the containers in the warehouses, it has done more than any other industry participant in this regard. In fact, it notes that there is no evidence of any other industry player having put safety procedures in place for its employees involved with marine containers.

[53] The CBSA further submits that in arriving at these standards, it reviewed and conducted multiple assessments and extensive studies over the years, which more than meet its obligations under the Regulations, despite the appellants’ claim to the contrary. These studies show that there is no discernible remaining risk with commercial examinations as long as the CBSA’s procedures are followed due to the length of time that passes between container unloading and commercial examination. According to the CBSA, the studies demonstrate that the appellants’ claim of there being numerous containers that will have chemicals inside exceeding 25 times their action level is fiction.

[54] In contrast, the available data indicates that this will occur in only 1 percent of the containers and, even then, the chemicals will diffuse consistently as a function of time and distance. In any event, as the appellants were not working with or inside the containers and did not have to examine the goods immediately after the opening and unloading of the containers, the fumigant levels inside the containers cannot be used to speculate that it amounted to a danger in the circumstances of this case.

[55] The CBSA states that, though the appellants criticized Mr. Dion’s evidence and attempted to discredit the studies that have been conducted as flawed or incomplete, they have not presented any evidence, for example studies from their own expert, indicating that using different methodologies or additional fumigant testing would yield different results. As such, their claim that the studies on which the working procedures are based are inadequate is a mere hypothesis.

[56] The CBSA also notes that not all containers go to warehouses for commercial examination of their contents, with many going directly to stores where the goods are then offloaded by store staff and put directly on store shelves. On that basis, the CBSA submits that the fumigant risk to officers during commercial examinations in warehouses is equivalent to people shopping for goods in retail stores. In its view, if that amounts to a danger under the Code, by virtue of mere speculation of a fumigant being nearby, and if hypothesis and conjecture are permitted to displace scientific data and actual circumstances, then the definition of danger will be grossly and absurdly expanded far beyond what the statute supports.

Analysis

[57] My duty as an appeals officer is to determine whether the decisions by HSO Garron, following his investigation into the work refusals that the appellants were not exposed to a danger on the relevant dates, is well-founded. As directed by subsection 146.1(1) of the Code, I must look into the circumstances of the decisions and the reasons for them and I am authorized to vary, rescind or confirm the decisions in issue.

[58] The present appeal arises out of work refusals made pursuant to subsection 128(1) of the Code, which reads as follows:

[59] At the time of the work refusals, the word danger was defined in subsection 122(1) of the Code, as follows:

[60] In the present case, the danger that is alleged to exist by the appellants relates to the potential exposure to unsafe or hazardous levels of chemical fumigants while performing commercial examinations of imported goods at inland sufferance warehouses. The appellants allege that there is a gap in the CBSA’s procedures in that these can only ensure a safe working environment to the extent that the concentration of fumigants in the warehouses does not exceed 25 times their respective action level. It is the appellant’s position that the existing work procedures put them in a situation of danger because there is evidence that hazardous fumigants from shipping containers sometimes reach concentrations above 25 times their action levels. In their view, more research is required to establish adequate safe working procedures for these higher levels.

[61] The appellants therefore do not dispute that exposure to fumigants does not automatically pose a health risk and that a certain level of exposure is unavoidable and not problematic. Specifically, the appellants’ position implies that the respondent’s safe working procedures are adequate to the extent that the levels of fumigants encountered by BSOs do not exceed the threshold of 25 times over the relevant action levels. In other words, their case rests on the premise the procedures in place to prevent injury or illness caused by fumigants are only adapted to concentrations of airborne chemicals which do not go above 25 times the action level of each fumigant.

[62] In that sense, the appellants’ core allegation is that a potential hazard or condition that constitutes a danger exists in the work place: the possibility for BSOs to be exposed to hazardous substances from shipping containers reaching concentrations above 25 times their action levels. Indeed, there is no evidence that the appellants were ever exposed to unsafe concentrations of fumigants inside inland sufferance warehouses. Quite to the contrary, the only evidence that is before me concerning the air quality inside any the warehouses where a work refusal occurred, namely a report dated May 1, 2014 entitled “Volatile Organic Compounds Monitoring” (prepared by occupational and industrial hygienists of the firm WESA, a division of BluMetric Environmental Inc.), indicates that “none of the suspected fumigants were detected with confidence” in air samples taken at the DB Schenker warehouse on April 29, 2014.

[63] In Canada Post Corporation v. Pollard, 2007 FC 1362, 321 FTR 284, the Federal Court summarized the state of the law concerning the criteria for assessing the concept of danger as it was defined under the Code at the time of the work refusals and of HSO Garron’s investigation, including the approach to determine whether a potential hazard, such as in this case, constitutes a danger:

[64] In Laroche v. Canada (Attorney General), 2011 FC 1454, the Federal Court reiterates the analysis that must be conducted in applying the definition of danger, especially where the alleged hazard or condition is potential in nature:

[65] To simplify matters, taking into account the applicable definition of danger as it has been previously interpreted, in order to conclude to the existence of a danger in this case, the evidence must establish that (1) the potential hazard of BSOs being exposed to unsafe levels of fumigant inside inland sufferance warehouses is likely to present itself; and (2) in that event, exposure to this hazard could reasonably be expected to cause injury or illness to the refusing employees, whether immediately or at a future time, before the hazard or condition could be corrected.

[66] Following the Federal Court’s decisions in Pollard and Laroche, a finding of danger cannot be grounded in speculation or hypothesis. It requires sufficient evidence to establish that the circumstances under which the alleged potential hazard could be expected to cause injury or illness will occur in the future, not as a mere possibility, but as a reasonable one.

[67] A danger can thus be prospective, to the extent that the hazard is capable of coming into being over time and is reasonably expected to cause injury or illness to a person exposed to it before the hazard can be corrected. The guidance found in those excerpts from relevant judgements regarding the application of section 128 and the definition of danger is also premised on the duty of the appeals officer to conduct a careful appreciation of the facts in each case. Whether a danger is immediate or prospective, a conclusion that a situation could reasonably be expected to cause injury or illness must be based on cogent and convincing evidence.

[68] Applying these precedents to the facts of this case, I have therefore weighed the evidence presented to determine whether there is a reasonable possibility that the appellants will be exposed to hazardous concentrations of fumigants while performing commercial examinations of imported goods inside inland sufferance warehouses and whether it is reasonably foreseeable that such circumstances would result in injury or illness.

Is it likely that the appellants will be exposed to unsafe levels of fumigants while performing their work?

[69] The first element to consider when facing an alleged potential hazard is the probability of the hazard occurring. For the appellants to succeed in this case, there must be cogent evidence demonstrating that they will likely be exposed to concentrations of fumigants that pose a health risk. The appellants state that there is evidence emanating from the CBSA which indicates that it is possible for BSOs to be exposed to fumigants from shipping containers that exceed 25 times their action levels. This is the level that creates a danger according to the appellants. Indeed, they have not called into question the adequacy of the CBSA’s safe work procedures when fumigants do not exceed this threshold^{Footnote 1}. I must thus assess the probability that BSOs will be exposed to concentrations of fumigants exceeding by 25 times the relevant action levels.

[70] I have reviewed the documents relied upon by the appellants. While it is true that the studies and assessments that were conducted by the CBSA to evaluate the levels of fumigants in marine containers suggest that high concentrations of chemicals are occasionally encountered inside a container, this is clearly not the norm.

[71] In fact, the evidence relied upon by the appellants merely refers to a couple of instances where this situation occurred. For example, the report entitled Fumigant Analysis Procedures for Dealing with Problem Containers (2011) alludes to one container with formaldehyde that exceeded 25 times the action level for this substance. Similarly, other studies mentioned by the appellants in their submissions, including the 2012 update of the above-noted report, touch on the exceptional encounter of containers with initial high levels of chemicals such as formaldehyde or methyl bromide when they were initially tested. At the most, this evidence establishes that it is possible that some containers will on occasion have initial concentrations of chemicals greater than 25 times their action levels.

[72] While the appellants and their expert witness emphasised that these studies all have methodological limitations and are based on small samples, hence suggesting that they might underestimate the actual number of containers with problematic concentrations of fumigants, they have not provided any rebuttal evidence. For example, they have not filed any alternative studies performed by other governmental agencies or private sector corporations involved in the marine container handling business, in Canada or in other jurisdictions, that could demonstrate that the encounter of containers having concentrations of chemicals which exceed 25 times their action levels is likely, let alone more likely than not.

[73] The best evidence on this issue is a memorandum entitled SYFT Voice 200 - Data Analysis Summary from May 6 to October 28, 2015 which was prepared by Mr. Dion, the CBSA’s industrial chemist who testified as the respondent’s expert witness, and his team. This document indicates that only 1 percent of all the containers tested at the Container Examination Facilities in Montreal, Prince Rupert and Vancouver (Burnaby) during the period under review contained initial concentrations of fumigants that exceeded the 25 times their respective action level threshold. The data reported in this memorandum even indicates that in the vast majority of cases (71 percent), the initial measurement showed concentrations below the action level, meaning that those containers were ready to be inspected without further action.

[74] In other word, based on this evidence, most containers (71 percent) did not have levels of fumigants that pose a health risk. Of the remaining 29 percent of containers scanned for their fumigant contents between May and October 2015, 28 percent had initial levels of chemicals that, while exceeding the relevant action levels, are not considered harmful by the appellants when the respondent’s safety procedures are followed (i.e., even if their initial concentrations of chemicals exceeded the action levels, they remained under the 25 times the action level limit upon which the CBSA’s time and distance standards are based and considered adequate by the appellants as long as the initial levels of fumigants inside the containers remain below this threshold).

[75] It also warrants noting that it is stated in this memorandum that the period under review included the summer months which are “known to be associated with the highest detected levels of fumigants in marine containers due to the high temperatures, when compared to the winter months” and that “this can be considered as the worst case scenario as they are significantly less containers above the action level during the winter months.” These statements have not been contradicted by the evidence filed by the appellants and, more generally, this memorandum can be taken to establish that, as a matter of fact, the bulk of marine containers delivered in Canada do not have levels of fumigants that pose a health risk. Based on my review of the evidence, I can only conclude that containers very rarely have initial concentrations of fumigants that the appellants consider unsafe or problematic inside of them.

[76] In their reply submission, the appellants stated that the 1 percent proportion of so-called problem containers was significant because, given the high number of inspections performed by BSOs, it means that “they could be exposed to such a container every week or at the very least every two weeks.” However, this assertion is not supported by any statistical studies or expert evidence. It merely reflects the appellants’ opinion on this issue.

[77] I find that it amounts to pure speculation and is, therefore, insufficient to support a finding that BSOs performing secondary commercial examinations will likely be exposed to unsafe concentrations of fumigants. On the contrary, the data filed in evidence indicates that the probability of occurrence of the potential hazard identified by the appellants (i.e., exposure to fumigants that have concentrations exceeding by 25 times their action levels) is very low.

[78] Considered in isolation, the data discussed above is enough to cast serious doubt on the appellants’ claim that BSOs performing secondary examinations will likely encounter fumigants having concentrations rising above the 25 times the action levels threshold; but it does not tell the whole story.

[79] I must also take into account the fact that this data mostly reflects measurements of chemical levels made inside the containers or relatively shortly after a container was backed up to the doors of a warehouse. In my view, this does not provide a reliable estimation of the levels of chemicals to which the appellants were potentially exposed to at the time of the work refusals or may be exposed to in the future.

[80] The reason is that, as previously mentioned, BSOs performing secondary examinations do not enter the containers and the containers are not physically brought inside the sufferance warehouses. Rather, according to the evidence, containers are typically placed at the bay doors of the loading docks of the warehouses. Therefore, even assuming that the containers are possibly venting some chemicals inside the warehouses, the fumigant levels inside the containers cannot be used to speculate that that the air inside the warehouses where the BSOs perform their tasks will likely be contaminated by unsafe levels of airborne hazardous chemical products.

[81] Indeed, all of the studies filed in evidence tend to demonstrate that the dilution or diffusion of hazardous chemicals occurs consistently as a function of the time that elapses after the opening of a container’s doors and the distance from the container. To quote from a report dated October 2010 entitled “Fumigant Project - Dealing with Problem Containers”:

As the commodities were unloaded, readings in various areas inside the warehouse did not show any levels above the action level for any of the chemicals. It is believed that the air movement inside the warehouse effectively dissipates the source of chemical contamination found inside the marine container when the doors are opened and commodities are removed from it.

[82] While Mr. Zitnik, the appellant’s expert witness, stated that the dilution of the chemicals outdoors occurs at a faster rate than in an indoor environment and that more than one source of chemicals coming from multiple containers can be present in a warehouse (which might potentially affect the time for the chemicals to dilute to safe levels), he did not dispute the basic assumption that the chemicals present in the containers are going to dilute or dissipates once the containers are opened.

[83] As such, it is reasonable to conclude that the initial levels of chemicals measured inside the containers are not reflective of the levels to which BSOs performing commercial secondary examinations are exposed to. Simply put, factoring in the dilution or dissipation of hazardous substances which naturally always occurs, the chemicals, once they have vented outside the containers, can be expected to be present at much lower levels inside the warehouses.

[84] While the time it will take for the chemicals to dilute to safe levels is not clear, the fact remains that the process of dilution or dissipation will begin immediately after the containers’ doors are opened. In this regard, I accept Mr. Dion’s testimony who unequivocally stated at the hearing that the dissipation of chemicals typically occurs very rapidly and that chemical dilution of hazardous airborne chemicals also happens very fast either outside or inside a building such as a warehouse. In my view, his opinion should be afforded significant weight given that he has studied the dissipation or dilution of fumigants in marine containers and is familiar with the CBSA work environment. It can be inferred from his testimony that even for concentrations exceeding 25 times the action level, the fumigants will “vent down” and the remaining levels inside the warehouse will not be that high.

[85] Moreover, in his reports, HSO Garron indicated that that there is usually a delay ranging from hours to days between the moment a container is offloaded into a warehouse and the time when BSOs intervene to perform the secondary commercial examination of its contents. This was confirmed by the respondent’s witnesses at the hearing. It is true that Mr. Fauceglia and Mr. Harris testified that sometimes secondary commercial examinations can be performed within minutes after marine containers are delivered at the warehouses, but their testimony was not corroborated by other evidence on the record. As well, the CBSA pointed out that BSOs are not under any obligations or pressing time constraints to perform their task immediately after the arrival of containers at a warehouse. In my view, the testimony of Messrs. Fauceglia and Harris is not sufficient to rebut the respondent’s evidence and, for that matter, the HSO’s finding that, as a rule, goods subject to secondary examinations are not inspected immediately after the offloading of the containers.

[86] In any event, pursuant to the CBSA’s working procedures, BSOs must ensure that the goods which are waiting for examination have been on the warehouse floor for more than 10 minutes before proceeding. Consequently, I find that given the time elapsed between the offloading of the containers and the intervention of BSOs, the levels of fumigants to which they are exposed to will necessarily be different than the initial levels inside the containers. By and large, based on the evidence before me, the passage of time after the goods have been removed from the containers and placed on the warehouse floor will ensure that the concentration of air borne chemicals inside the warehouse will be minimal.

[87] Moreover, the floor plans of the warehouses at issue indicate that there is a relatively large distance (more than 3 meters) between the bay doors and the area where the secondary commercial examinations are conducted. While Mr. Harris testified that this distance is not always respected by warehouse operators, the preponderant evidence indicates that commercial examinations do not take place in the immediate vicinity of the location of the opened marine containers on site. This factor also limits the possibility that BSOs will be exposed to unsafe levels of fumigants.

[88] In these circumstances, I am unable to accept the appellants’ assertion that BSOs performing secondary commercial examinations will likely encounter fumigants which levels will exceed 25 times their action levels. To the contrary, an objective review of the evidence and the facts surrounding the conduct of commercial examinations suggests that the contamination of the air inside the warehouses by such high concentrations of fumigants at the moment when BSOs are required to perform their tasks is not a reasonable possibility.

[89] On this issue, I must stress that, contrary to the appellants’ arguments, I am of the view that, given the type of work performed by the appellants, it is the quality of the air inside the warehouses and not the initial concentrations of fumigants inside the containers that matters. Again, BSOs conducting secondary commercial examinations are not required to inspect the containers and do not enter them. Also, the evidence points towards the decrease of the levels of airborne chemicals as a function of time and distance. It would thus be an error to assume that BSOs performing the tasks that the appellants were performing on the dates of the work refusals will be exposed to the initial unsafe levels of airborne chemicals that are, at any rate, infrequently measured inside the containers to begin with, a fact that must not be overlooked.

[90] Therefore, the appellants’ position that they will likely encounter fumigants which rise above 25 times their action level because there is evidence that hazardous substances from shipping containers sometimes reach concentrations of this magnitude rests on a false premise. In light of the above considerations, the initial concentrations of fumigants inside the containers cannot be used as a reliable indicator of the levels inside the inland sufferance warehouses and, for this reason, the evidence on this issue does not establish that there is a serious risk for BSOs performing secondary commercial examination to be exposed to unsafe concentrations of fumigants.

[91] This conclusion is reinforced by the above-noted report prepared by the firm WESA (dated May 1, 2014) which found none of the suspected fumigants in air samples taken at the warehouse operated by DB Schenker. One of the conclusions of this report is the following: “Under current conditions, it is unlikely that CBSA agents will be exposed to concentration of airborne fumigants that may cause adverse health effects while performing inspections during their shift.”

[92] The appellants attempted to dismiss the relevance of this report by claiming that it did not look into the initial concentration of fumigants inside of the containers but, for the reasons that I already stated, I find that spot measurements of the air inside the warehouses is a better way to assess the levels of airborne chemicals to which BSOs performing secondary commercial examinations are potentially exposed to. As such, the WESA report provides very pertinent evidence.

[93] Moreover, there is no evidence that concentrations of airborne fumigants would be higher and potentially hazardous at the other warehouses where the work refusals occurred. In fact, the DB Schenker warehouse should be the most problematic given that, as stated in the appellants’ submissions, in the Toronto area, “marine containers are exclusively examined at the DB Schenker warehouse”, and while there are marine containers opened at the other warehouses, BSOs do not typically inspect goods from such containers at the other warehouses. It follows that there should be less trace of fumigants in the air inside these other warehouses.

[94] The other arguments invoked by the appellants also fail to persuade me that there is a serious risk for BSOs performing secondary commercial examinations to be exposed to unsafe levels of fumigants. For example, the appellants claim that the studies performed by the CBSA are not adequate and do not reflect the working conditions of BSOs. In my view, this argument is misleading.

[95] In fact, these studies were performed to assess the risk for BSOs that are involved in examinations of the containers themselves at CEFs or dockside examinations which both involve working in close proximity to the containers or require the presence of BSOs while containers are being offloaded. The CBSA then adapted the procedures for dockside examinations to develop working procedures for commercial secondary examinations at inland sufferance warehouses. As discussed above, the latter type of examinations necessarily entails less potential exposure to chemical fumigants for BSOs. For this reason, it is understandable that safe parameters or safety factors developed for secondary commercial examinations do not exactly replicate those for point of arrival examinations discussed in the studies. I see nothing wrong with this approach, especially considering that the CBSA does not own or control the inland sufferance warehouses, which makes it difficult for it to conduct studies of the air quality inside the warehouses.

[96] One must not assume that there is a gap in the safety procedure for BSOs performing secondary commercial examinations simply because the fumigants inside a container may sporadically exceed the safe parameters set out by the CBSA in the existing studies (the 25 times above the action level threshold). These studies indicate that the CBSA investigated a method for the safe examinations of a container and its contents by BSOs when it is unloaded into a warehouse at the first point of arrival. In other words, the concern addressed by the studies on the so-called problem containers was avoiding hazardous exposure to unsafe levels of fumigants for BSOs as the unloading of the container and search of its contents at the point of arrival are taking place. It is in this context that the recommendation that the procedures only be used on containers that do not exceed 25 times the action level of any chemical must be understood.

[97] However, this does not mean that the work procedures for secondary commercial examinations are deficient. Again, BSOs performing secondary examinations are not involved in the unloading of containers and are not required to conduct their examinations in a time sensitive fashion immediately after the opening of the containers. As such, the current studies’ conclusion that the procedure for unloading and inspecting problem containers only be used on containers that do not exceed 25 time the action level of any chemical is only valid for BSOs who conduct examinations of a different type than the one at issue in this appeal. It cannot be used speculate that BSOs performing secondary commercial examinations face the same potential hazard as BSOs who conduct other types of examination.

[98] Clearly, the working conditions for secondary commercial examinations are different and present a lesser risk of exposure to fumigants. As a matter of fact, there is little information in the existing studies to substantiate the claim that BSOs performing secondary commercial examinations are potentially exposed to high and unsafe concentrations of chemicals or that the 10 minutes / 3 metres safety standards are not adequate for secondary commercial investigations. For this reason, I find that it has not been established that the working procedures for secondary commercial examinations are inadequate or fail to take into account the working conditions of the appellants.

[99] The appellants also argued that these studies recommend that BSOs refrain from walking or crawling between boxes, but that their testimonies indicate that they often deal with boxes that exceed their height and that there is often not a lot of space between the boxes when they perform their tasks. Again, the recommendations in the studies to avoid crawling between the boxes once unloaded onto the warehouse floor and that the boxes should be placed with as much distance between them to allow air movement and dilution of the chemical must be read in light of the fact that they discuss a procedure for the safe unloading of a container into a warehouse, not recommendations for a safe work procedure for secondary commercial examinations. Accordingly, the studies do not state that BSOs performing secondary commercial examinations, which can take place hours or days after the unloading, are never to crawl between boxes. My understanding is that this recommendation applies to point of arrival examinations.

[100] In any case, the appellants’ evidence on this issue was contradicted by the CBSA’s witnesses who indicated that walking among stacked boxes is not a job requirement for BSOs performing secondary commercial examinations at inland sufferance warehouses. In this regard, Ms. Blake and Mr. Siguenza explained that these examinations and not required to be completed in a very time sensitive fashion because the continuity and preservation of evidence is not a concern. For this reason, there are no imminent time constraints that would force BSOs to walk through a staked pile of boxes and BSOs have the autonomy to leave the warehouse and resume an examination at a later time.

[101] They also testified that BSOs have the authority under the Customs Act and applicable regulations to ask a warehouse manager or any person on the premises for assistance and information. This includes requesting warehouse personnel to move boxes with a warehouse forklift. In particular, the Customs Sufferance Warehouse Regulations, SOR 86-1065, require that the licensee of the sufferance warehouse shall provide adequate space for the examination of imported goods by officers and provide personnel and equipment necessary to ensure that the goods to be examined are made available. In my view, the use of these available powers and options mitigates the likelihood that BSOs will be exposed to unsafe level of fumigants.

[102] As for the appellants’ claim that the risk associated with opening boxes has not been addressed by the CBSA, I note that there is no indication that the risk associated with opening boxes was raised before the Ministerial Delegate at the time of the refusals. The situation that gave rise to the work refusals and that was investigated by the Ministerial Delegate was the possible venting of fumigants from marine containers into an enclosed warehouse. While appeals officers conducting an inquiry under section 146.1 hears the matter de novo, the proceeding under section 146.1 is in the nature of an appeal of a decision or direction already issued by a health and safety officer, and in light of the wording of that section, its scope ought to be confined to the circumstances that led to the impugned decision or direction.

[103] Therefore, I find that the allegation that the boxes also contain hazardous fumigants is an improper attempt to broaden the scope of this appeal. Since this alleged hazard constitutes a new ground, it does not fall within the scope of the present appeal.

[104] In any event, BSOs are not required to inspect the boxes under imminent time constraints and, as previously noted, they have powers to mitigate the risk of exposure to unsafe levels of fumigants. There is also little evidence that boxes contain fumigants that pose a health hazard. In fact, as argued by the CBSA, most containers arriving in Canada and their contents are never inspected by the CBSA and the boxes go directly to stores where they are put on shelves. Essentially, the risk of exposure to fumigants from boxes for BSOs opening them at inland sufferance warehouses appears equivalent to that faced by shoppers opening up boxes inside their home. All things considered, the evidence does not support the position that boxes potentially contain unsafe levels of chemical fumigants.

[105] In summary, a review of the totality of evidence does not support the appellants’ claim that there is a reasonable possibility that BSOs conducting secondary commercial examinations will be exposed to chemical substances exceeding 25 times their action levels. To the contrary, the preponderant evidence points in the other direction and persuades me that it is unlikely that the appellants will be exposed to unsafe levels of fumigants while performing their work.

[106] Therefore, I find that the appellants’ fear that they are potentially exposed to hazardous concentrations of fumigants is hypothetical and not based on facts. Applying the legal test set out in the Pollard and Laroche decisions, I conclude that that it has not been demonstrated that the potential hazard or condition alleged by the appellants will likely present itself. Consequently, it has not been established that there is a reasonable possibility that the circumstances under which the alleged potential hazard could be expected to cause injury or illness will occur in the future.

Was there a reasonable expectation that the exposure to the hazard would have caused injury or illness to a person exposed to it?

[107] While the appeal fails on the previously discussed point, for the sake of completeness, I believe that it is useful to continue the analysis and briefly address the issue of whether, assuming that exposure to hazardous concentrations of fumigants had been established, there was a reasonable expectation of injury or illness for the appellants (i.e., the second prong of the test set out in paragraph 65 above). After all, the definition of danger in section 122 of the Code makes it clear that for a danger to exist, one must determine that an existing or potential hazard or any current or future activity “could reasonably be expected to cause injury or illness to a person exposed to it.”

[108] As was pointed out by the CBSA, while the definition of danger does not require that the alleged hazard, condition or activity cause an injury or illness every time that it occurs, a reasonable expectation of injury or illness cannot be based on hypothesis or conjecture. The case law indicates that a reasonable expectation of injury could be established through an inference arising logically from known facts or be based on expert opinions or even the evidence given by ordinary witnesses having the necessary experience.

[109] In this case, the appellants’ expert witness provided very generic information about the various chemical products that are used as fumigants and their possible adverse effects on human health. However, he did not provide specific information about the levels and concentrations of each contaminant that would have to be present in a warehouse and the duration of exposure that could be expected to result in injury or illness for BSOs. While he identified certain limitations in the studies performed by the CBSA and concluded that these issues would have to be addressed to “ensure” that the procedures derived from those studies offer adequate protection to the health and safety of BSOs, he did not opine that the application of the current procedures can reasonably be expected to cause injury or illness to BSOs.

[110] In fact, the appellants did not file any expert evidence or present detailed information about the actual concentration of the contaminants, the level/duration/avenue of exposure, taking into account the Threshold Limit Value set for many of those substances, that could have allowed the undersigned to evaluate whether the alleged hazard could reasonably be expected to cause injury or illness to the employees. This situation makes it very difficult for the undersigned to determine if, in the circumstances of this appeal, any exposure to fumigants is likely to cause injury or illness of any nature, whether recurrent, long, lasting, acute or chronic.

[111] Let me be clear: a finding of danger requires the demonstration of a causal link between an alleged hazard, condition or activity in the work place and the adverse effect that it could have on an employee’s health and safety. While the causal link between the environmental conditions of the work place and the possibility of injury or illness to an employee is proven on a balance of probability and this standard does not require scientific certainty, there is in this appeal little evidence to establish a reasonable expectation of injury or illness for BSOs.

[112] In their submission, the appellants insist that exposure to chemicals such as fumigants pose a serious risk to human health and that without modified safety procedures backed by additional research, BSOs will likely encounter fumigants which rise above 25 times their action level and that it is reasonably foreseeable that such circumstances will lead to an injury or illness. However, they did not file either scientific or medical evidence that points to a causal link between this alleged condition of the work place and the likelihood of occurrence of any injury or illness to BSOs.

[113] For example, the appellants have not presented any evidence suggesting that the exposure to a problematic container “every week or at the very least every two weeks” (using their view on the assessment of the hazard) is likely to cause any of the illnesses or medical conditions referred to in medical safety data sheets for the relevant chemical products. Given that a certain exposure to chemicals in an individual’s daily life is unavoidable and does not automatically pose a health risk, it is difficult, without the benefit of evidence from qualified individuals expressing this opinion for the specific situation at issue, to conclude that the occasional encounter of fumigants rising above action levels can reasonably be expected to cause an injury or illness to persons exposed to them.

[114] There is also no evidence of symptoms or adverse health effects on the employees themselves or other persons who are present at the work places (for example, warehouse employees who come in closer contact with the alleged contaminants) or in other similar work places. In fact, the record does not contain any information about individuals anywhere in the world having suffered any adverse health effect after having been put in contact with the chemicals used as fumigants. Even if proof that someone else has been injured or become ill in similar circumstances is not absolutely necessary to conclude to the existence of a danger, evidence of this nature would certainly support an inference that exposure to fumigants can reasonably be expected to cause injury or illness.

[115] Where such as in this case, we are dealing with circumstances of potential air contamination, establishing a reasonable expectation of injury or illness occurring requires more than general statements about the potential effects of exposure to various chemical products made in medical safety data sheets. Cogent evidence of the potential presence of such harmful levels of chemicals and their potential adverse health effects in the actual work place is necessary.

[116] Thus, even if I were to assume that there may be high concentrations of fumigants in the warehouses for short periods of time, I have not been persuaded that this hazard or condition can reasonably be expected to cause injury or illness. In short, this is not a case where the reasonable expectation of an injury or illness occurring has been established by expert evidence or may be found through an inference arising logically or reasonably from known facts. At best, the appellant’s evidence suggests that the possibility of injury or illness for BSOs cannot be ruled out, but a finding of danger requires more.

[117] It requires evidence establishing that the circumstances under which the alleged hazard, condition or activity would cause injury or illness will occur in the future, not as mere possibility but as a reasonable one. Simply put, in this case, there is not enough information on the record that would allow me to draw an inference about the existence of a reasonable expectation of injury or illness.

[118] In summary, I find that there is no reasonable possibility that the circumstances under which exposure to fumigants could be harmful for BSOs performing secondary commercial examinations will occur, no reasonable expectation that the potential hazard in this case will cause injury and, as a consequence, no danger. After having reviewed the totality of evidence before me, I find that concluding to the existence of a danger in this case would be purely speculative.

Other issue

[119] In their submissions, the appellant also allege that section 19.5 and 10.4 of the Regulations have been breached by the CBSA. The appellants rely primarily on the conclusions of studies conducted by the CBSA indicating that the procedures for unloading containers were safe as long as the levels of fumigants did not exceed 25 times their action levels and argue that the CBSA has failed to take preventive measures to assess and address the hazard in situations where fumigants exceed 25 times their action level.

[120] However, the issue of whether the CBSA complies with the hazard prevention and investigation provisions set out in the Regulations was not addressed by HSO Garron. He did not issue contravention directions under subsection 145(1) of the Code in this regard, which could have given me clear jurisdiction to address this question. Moreover, there is no indication that HSO Garron turned his mind to the CBSA’s compliance with the aforementioned provisions during his investigation into the work refusals.

[121] Subsection 129(7) of the Code provides for an appeal procedure against a decision that a danger does not exist and the appellant is not permitted to raise new concerns that were not raised before the health and safety officer. The mechanism provided by the Code calls for a specific fact-finding investigation to deal with a specific situation (Fletcher v. Canada (Treasury Board), 2002 FCA 424). It is also well established that a de novo hearing doesn't allow the Tribunal to adjudicate issues that were not already part of the record or put before the HSO for his consideration. Accordingly, I find that it would not be appropriate that I consider, at this stage, the new claims of violation of sections 19.5 and 10.4 of the Regulations raised by the appellants.

[122] As I am of the view that the additional issue raised by the appellants is not directly connected to the central issue of the appeal, which is to determine whether a dangerous condition existed at the time of the refusals, I conclude that it does not fall in the scope of the present appeal.

Decision

[123] For all the reasons above, the decisions that a danger does not exist rendered by HSO Garron on October 1, 2014, are confirmed and the appeals are dismissed.

Olivier Bellavigna-Ladoux

Appeals Officer