2017 OHSTC 26

Date: 2017-12-19

Case No.: 2016-01

Between:

Stuart Mungham, Josh Deluca, Steve Thomson and Jewel Monague, Appellants

and

Correctional Service of Canada, Respondent

Indexed as: Mungham v. Correctional Service of Canada

Matter: Motion to dismiss for mootness an appeal of a decision rendered by an official delegated by the Minister of Labour under subsection 129(7) of the Canada Labour Code

Decision: The motion is granted and the appeal is dismissed on the grounds of mootness.

Decision rendered by: Mr. Peter Strahlendorf, Appeals Officer

Language of decision: English

For the appellant: Michel Bouchard, Union Advisor, CSN Ontario

For the respondent: Rebecca Sewell, Counsel, Treasury Board Secretariat Legal Services

Citation: 2017 OHSTC 26

Reasons

[1] This case involves an appeal filed pursuant to subsection 129(7) of the Canada Labour Code (the Code) by four correctional officers (COs) at the Beaver Creek Medium Institution (the institution) of an absence of danger decision rendered by Mr. Greg Garron, an official delegated by the Minister of Labour (ministerial delegate). These reasons relate to a motion by the employer to have the appeal dismissed on the grounds of mootness.

Background

[2] On November 26, 2015, an inmate, J, came to the Driftwood building to see the Inuit Liaison Officer (ILO). Bonnie Leahman, the Inuit Shack Supervisor, told J that the ILO was not present and told J to leave. When J refused to leave Ms. Leahman activated her personal alarm. The inmate then left.

[3] The Correctional Intervention Team (CIT) assessed the situation. It determined that the risk posed by J could be managed in the open population using a Restricted Movement Agreement (RMA). The RMA required J to be moved to the Tundra Unit where his cell could be secured. The inmate agreed to the RMA. Included in the RMA was a prohibition on J entering the Inuit Carving Shack, thus limiting J’s contact with Ms. Leahman.

[4] Ministerial Delegate Garron’s report provided detail about the manner in which the risk posed by J was assessed. The CIT consisted of Ian Burns, Manager Assessment and Intervention, Mike Toole, Parole Officer, Krista Earl and Bonnie Leahman.

[5] The CIT met with Deputy Warden Dave Ling on November 30, 2015 to discuss J’s situation. They were operating pursuant to Commissioner’s Directive 709 Administrative Segregation (CD 709). They reviewed J’s institutional and criminal history. The CIT is required to consider all sources of information including psychiatric assessments and Security Intelligence Officer Information.

[6] Under CD 709, the CIT considered a range of risk management options up to and including placing J in segregation. The CIT determined that J’s situation did not meet the criteria for segregation. Instead, the CIT decided that J’s movements should be restricted to the Tundra Unit and that J be subject to close monitoring. The assessment by the CIT formed the basis for the RMA which J signed on November 30, 2015. Ministerial Delegate Garron noted that the Tundra Unit is the newest living unit at the institution. The doors to the cells can be locked and COs have more control over inmate movement relative to other living units.

[7] Correctional Officer Stuart Mungham worked in the Tundra Unit. Upon learning that J would be moved to the Tundra Unit, CO Mungham expressed safety concerns over having J present. CO Mungham engaged in a work refusal pursuant to section 128 of the Code on November 30, 2015. He submitted a written complaint which was also signed by COs Josh Deluca, Jewel Monague and Steve Thompson.

[8] Following the initiation of the work refusal, Assistant Warden Operations (AWO) Laughlin attended at the Tundra Unit but could not ascertain what the danger was. The officers’ position was that the only resolution was to place J into a segregated status. The ministerial delegate's report stated that the refusing COs believe that the Tundra Unit is being used as an alternative to placing offending inmates in segregation.

[9] The work refusal was expressed as follows:

• Due to the fact we feel unsafe due to inmate [J’s] continued presence in population is unsafe due to the recent incidents he has been involved in [...]

[10] The ministerial delegate investigated the work refusal on December 4, 2015. He determined there was “no danger” within the meaning of the Code. On December 31, 2015, COs Mungham, Deluca, Thompson and Monague appealed the ministerial delegate’s finding of “no danger” pursuant to subsection 129(7) of the Code.

[11] On July 18, 2017, J was released from the institution with a residence condition. His sentence expired on September 16, 2017.

[12] On July 24, 2017, the employer brought a motion to have the matter dismissed on the basis of mootness because the inmate was no longer present at the institution. The parties were requested to provide written submissions on the issue of mootness.

[13] On September 13, 2017, after reviewing the parties’ submissions, I granted the respondent’s motion to have the appeal dismissed on the basis of mootness, with reasons to follow. The reasons for my decision are set out below.

Issue

[14] This matter raises the following issue:  Is the appeal moot due to the release of inmate J from the institution and should it be dismissed for that reason?  

Submissions of the parties

Submissions of the respondent (applicant to motion)

[15] The respondent’s position is that since J is no longer present in the work place the issue of danger is now moot. The assessment that resulted in J’s movement to the Tundra Unit was based on specific facts that existed on November 26, 2015 concerning J. Since the inmate has been released from the institution the respondents are no longer exposed to the alleged danger. The employer says that J is not a long term offender. He is not subject to any probation orders under provincial jurisdiction. The chances of J's return to the institution are hypothetical.

[16] The respondent states that there is no longer a live issue. A decision on this appeal would not have any effect on the parties. It would have no precedential value. Since the particular situation will never be replicated, the matter is moot.

[17] The respondent’s position is that a review of its guidelines and policies do not fall within the scope of this appeal.

Submissions of the respondent (applicant to motion)

[18] The appellants’ position is that the matter is not moot. There is a high probability that a similar situation will occur at the institution. There remains a live issue regarding the adequacies of the measures, policies and protocols that the employer applies to these types of situations.

[19] The appellants say that inmate J is a repeat offender. He has served time in provincial and federal facilities over the past 17 years. After serving time for his first federal sentence he was released, but his release was revoked due to his failure to abide by the conditions of his release.

[20] The appellants state that J’s history includes violence directed at correctional staff and police officers. These acts of violence include attempts to punch a CO in a correctional setting and shots fired at police officers during an armed stand-off in the community.

[21] The appellants note that given J’s history of criminal recidivism, J’s return to custody at the institution seems a likely event. The employer’s policy is that “Inuit offenders who are classified as medium security are placed, whenever possible, at the Beaver Creek medium unit, taking into account the availability of Inuit specific programs and services”. This means that there is an elevated probability that J, an Inuk, will return to the Beaver Creek institution.

[22] The appellants state that the employer has not changed its practices since the work refusal. The question of the appropriateness of the employer’s tools, guidelines and procedures as applied to this case is relevant to similar fact situations. There is an on-going controversy between the parties.

Analysis

[23] The Supreme Court of Canada outlined the test for mootness in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342 at paras 15-16 and 31-42 (Borowski). The first question is whether a tangible and concrete dispute between the parties still exists. If it does, the matter is not moot. If it does not exist, the second question is whether a court may still exercise its discretion to hear the matter based on a consideration of the following factors: the presence of an adversarial context; a concern for judicial economy and an awareness of the Court’s proper law-making function.

[24] The employer cited two Tribunal decisions where a finding of mootness was based on a determination that an inmate central to an allegation of “danger” had been transferred to another institution: Gordon v. Correctional Service of Canada, 2017 OHSTC 8 (Gordon) ; and Manderville v. Correctional Service of Canada, 2015 OHSTC 3 (Manderville) . There are other cases where mootness was determined on the basis that the refusing employee was no longer present in the work place, but the facts in Gordon and Manderville appear the closest to the current situation.

[25] In the case at hand, inmate J is no longer at the institution, or any other institution. The latter observation would seem to be an even stronger basis for a finding of mootness than in Gordon or Manderville, where the inmate was merely transferred to another institution. I find that the question of whether J re-offends and is returned to the institution is hypothetical. Moreover, even if J was returned to Beaver Creek, his situation and any risk he would pose would be reassessed upon his return.

[26] The appellants, however, take the position that the work refusal was about more than J as a danger. It was about the employer’s policies and practices regarding this type of situation. Hence, the fact that J is no longer present in the work place is not conclusive. The appellants or other employees could be threatened by other inmates; a similar fact situation could occur.

[27] Such similar fact situations are hypothetical. Indeed, it is hard to view them as “similar fact” situations. Unlike inanimate objects which may be hazards, it is trite to say that human beings as hazards are unique individuals. Any inmate other than J would be subject to a detailed assessment by a CIT and no doubt the risk characteristics of such other individuals would vary.

[28] That the respondents disagree with the employer’s policies and practices does not mean there is an adversarial situation or a live controversy when considering a work refusal. As argued by the employer, the Federal Court of Appeal has held that the work refusal mechanism in the Code is intended to address direct threats to employees; their short-term well-being in specific circumstances (Canada (Attorney General) v. Fletcher, 2002 FCA 424 at para 18).

[29] The purpose of the work refusal procedure in the Code is not to provide a forum for a review of the employer’s policies and practices. It is true that an employer’s policies and practices may be flawed, but they are distal or “root” causes of threats to employees. The Code provides a number of mechanisms for reducing risk in the work place. It is the work place occupational health and safety committee which is established as a forum for discussion and review of the employer’s policies, programs and practices.

[30] The definition of “danger” in the Code speaks of “hazards”, which are things which are a step or two away from directly harming an employee; it does not refer to policies, programs or procedures. A review of subsection 135(7) of the Code setting out the activities of work place committees indicates that it is anticipated that policies, programs and procedures will be subject to discussion by employer and employee representatives convened as a committee. 

[31] For these reasons, I find that insofar as the work refusal is about J as a danger, there is no longer a live controversy between the parties. Having so concluded, I must decide whether I should nonetheless exercise my discretion to hear the appeal on its merits.

[32] I am satisfied that there is no adversarial context outstanding between the parties. In terms of judicial economy, I find that no purpose would be served by hearing and deciding this appeal since nothing could be done now that the inmate has been released.

[33] A decision of mootness in this case does not preclude the respondents, or any other employees, from exercising their rights to refuse dangerous work in any future situation involving a potentially violent inmate. Nor does it preclude them from raising the question of the appropriateness of the employer’s policies, programs and procedures to the work place health and safety committee.

Decision

[34] For these reasons, the appeal is dismissed as being moot.

Peter Strahlendorf

Appeals Officer