2017 OHSTC 27

  • Date: 2017-12-20
  • Case No.: 2016-04
  • Between:
    Chris Pogue, Appellant
    and
    Brink's Canada Ltd., Respondent
  • Indexed as: Pogue v. Brink's Canada Ltd.
  • Matter: Appeal under subsection 146(1) of the Canada Labour Code of a decision that a danger does not exist issued by an Official Delegated by the Minister of Labour.
  • Decision: Decision: The decision is confirmed.
  • Decision rendered by: Mr Michael Wiwchar, Appeals Officer
  • Language of decision: English
  • For the appellant: Ms Niki Lundquist, Associate Counsel, Unifor Legal Department
  • For the respondent: Mr James D. Henderson, Counsel, Grosman, Grosman & Gale LLP
  • Citation: 2017 OHSTC 27

Reasons

[1] These reasons concern an appeal brought under subsection 146(1) of the Canada Labour Code (Code) of a decision rendered by Mr Lewis Jenkins, Official Delegated by the Minister of Labour (Ministerial Delegate) on January 25, 2016. Mr Chris Pogue filed an application to appeal the decision with the Occupational Health and Safety Tribunal Canada (Tribunal) on February 2, 2016.

Background

[2] On December 17, 2015, at 12:20 PM, Mr Pogue, a messenger, and an armoured car employee of Brink’s Canada Limited (Brink’s or "the employer"), exercised his right under the Code to refuse dangerous work. It was Mr Pogue’s intention, prior to his arrival at the Place d’Orleans Shopping Centre (Mall), in Ottawa, Ontario, to perform his duties as a messenger during this particular work "the Run", known as "Run 6". The Run was to be performed by a two-person crew using the one-off model whereby the driver of the armoured vehicle stays with the vehicle while the messenger performs cash-in-transit (CIT) deliveries and pickups.

[3] In Mr Pogue’s application to appeal to the Tribunal the following statement is quoted as his reasons for the appeal: 
A condition of danger existed during the Christmas season that reoccurs annually. The investigation took place in the non Christmas season.

[4] Specifically, Mr Pogue contended that it was his inability to properly assess the crowd without a guard present. The guard, that he makes reference to, refers to an additional armoured car employee, i.e. an escort, whose duty would include watching over the messenger during the course of the Run. It was Mr Pogue’s view that there was no way to ensure his own safety as a result of the pedestrian traffic in the Mall at the time of the Run; this circumstance would leave him at significant risk of ambush, robbery, assault and resultant psychological and physical harm.

[5]In order to address Mr Pogue’s concerns of the danger that arose from being unable to effectively visually scan a busy shopping mall for threats, he sought to have a guard reinstated to Run 6 for the holiday shopping season.

[6] On December 17, 2015, at approximately 1:30 PM, Mr Robert De Haan, Inside Operations Manager, Brink’s, arrived at the Mall to investigate the work refusal on the employer’s behalf. Mr De Haan also arranged for a supplementary guard to arrive and to complete the Run with Mr Pogue. Mr Pogue, the additional guard and Mr De Haan then completed the Run and departed the Mall without incident.

[7] On December 21, 2015, Mr Pogue made the following statement in the work refusal form, the reasons for his refusal were stated as follows:

  1. I am not able to scan for threats as I conduct my work at the Place D'Orleans Mall with an excessive amount of people around me.
  2. Under normal conditions in the mall with light traffic it is difficult as well, but not nearly as bad when the "Christmas shopping season" arrives.
  3. The increased amount of people in the mall makes it nearly impossible to properly scan for threats as I walk from my truck to inside the customer locations inside the mall;
  4. People are constantly walking in front of me and behind me from all directions there is no clear, unobstructed line of sight path I can take from one call to another;
  5. Having only less than 180 degree field of view, I cannot see threats behind me and the risk of ambush is high;
  6. I try to maintain a 20 to 30 foot radius of security around me at all times, I constantly scan for threats within this circle as I walk through the mall. On the day of my work refusal I was not able to properly scan for threats that existed around me.

[8] According to a document dated January 11, 2016, produced by the Ministerial Delegate, a review was conducted of the work refusal that involved Mr Pogue by Mr Donnelly, the employee work place health and safety committee representative. The document summarizes that review as follows:

On the 17th of December 2015 Chris Pogue lodged a work stoppage due to unsafe conditions concerning the Place D'Orleans Mall and the congestion of pedestrian traffic at said location at the time.

I would like to begin by saying that all of my findings are founded on photographs taken by both Chris Pogue and Robert De Haan. The reports written by both individuals, as well as my own previous experiences concerning Place D'Orleans Mall were also taken into account. It also needs to be noted that my investigation was done a month after the work refusal was lodged.

Mr Pogue, upon evaluating the scene, felt that the seasonal congestion created a dangerous work environment.

Photographs and statements taken at the time suggested elevated but not excessive foot traffic.

There have been other malls in the Ottawa area that have been assessed By (sic) an HSDC Officer, with the same criteria, that have been allocated a guard.

The seasonally heightened foot traffic which initiated Mr Pogue's original refusal has now dissipated. In anticipation of the re occurrence of these concerns I suggest that they be revisited prior to identifiable busy seasons of the year.

[9] On January 14, 2015, 11:10 AM, Mr Pogue communicated with ESDC, Labour Program, and reported his refusal to work to Ms B. Anderson, Health and Safety Officer (HSO). Ms Anderson completed a form entitled "Preliminary Event Report", a form included in the Ministerial Delegates documents entered into exhibit, and located under the heading "Nature of Event" the following was stated:

On December 17, 2015 Employee Chris Pogue was assigned to perform his regular messenger duties at the Place D'Orleans Mall located at 110 Place D'Orleans in Ottawa, ON. When he entered the mall at approximately 1:00 pm he noted that there was wall to wall people because of the holiday shopping season and felt it was unsafe for him to perform his duties without a guard and invoked his right to refuse dangerous work. The Employer representative attended the site and performed their investigation in addition to providing a guard for the work to be completed safely until the internal investigation was completed. Both the Employer's investigation as well as the Committee's investigation concluded that no danger existed. The employee is refusing to sign off on the no danger decision unless the employer agrees to put in writing that this location will be granted an additional third person or guard to perform the messenger duties from December 1, 2016 – January 7, 2017.

[10] On January 25, 2016, Mr M. O’Donnell, a Ministerial Delegate, issued a letter and directions under subsection 145(1) of the Code on behalf of Ministerial Delegate Jenkins following his decision of no danger. The first direction identified a contravention of paragraph 125(1)(z.04) of the Code subsection 19.4(f) of the Canada Occupation Health and Safety Regulations (COHSR) and the second identified a contravention of paragraphs 125(1)(z.04) of the Code and 19.2(1)(a) of the COHSR.

[11] The Ministerial Delegate drafted his report concerning the intervention in a document titled " Refusal to Work in Case of Danger – Canada Labour Code – Part II - Investigation Report and Decision" (Report) dated May 31, 2016. What follows are pertinent excerpts that I extracted from the report:

  1. Statement of the refusal to work: The employee was refusing due to the lack of a third guard to walk through the mall as his escort in order for him to pick up cash at various retailers. At the time of the refusal (Christmas) it was 5 – 10 times busier than at other times of the year.
  2. Employee's description of the event: Has over 20 years of experience. The Christmas season is the busiest time of the year for Brink's and most dangerous time. With Christmas shopping it is the busier time with more shoppers in the mall and therefore higher liability. Liability is the amount of cash, cheques and credit card receipts. Previous in the morning at LCBO and Walmart he noticed an increase in shoppers and therefore was feeling uneasy and concerned for his safety before arriving at the mall. When he arrived at Place D'Orleans Shopping Centre he noticed twice as many cars and traffic of shoppers was 5 – 10 times the normal. The vehicle parked about 20 feet from the main door. He went into the mall to observe and assess the danger level to conduct his work. Based on what he saw he felt it was a danger. He took pictures of the mall some 45 minutes after he first assessed the danger at 12:15 PM. He feels there was about double the numbers at 12:15 than at 1:00 PM. He indicated that when he enters the mall he is constantly assessing the risk by observing people around him in about a 25 foot radius. He is looking and assessing people with hands in pockets, looking directly at him, and zig-zaging from store to store. At Christmas time with increased shoppers he needs to assess more people in his 25 foot radius. He stated the last robbery was in Gatineau in 2005 and the one previous was in 1998 or 1999. Employee was not aware of the changing of stops if busy.
  3. Employer's description of the event: His pictures were taken at about 1:30 PM. He refers to the Employers decision dated Jan 5, 2016. He stated the employee has the flexibility to change stops to return later in the day if needed. The employees can alter their run as needed if they call the office. This is an unwritten policy. The overall liability has diminished year over year. The employer has no refresher training.

[12] Following his investigation and his evaluation of the circumstances and the facts of the work refusal, the Ministerial Delegate rendered his decision with the following explanation that I also excerpt from his Report:

The employer had experience with this type of refusal previously and having directions issued to complete a hazard assessment under regulation 19 of the Canada Occupational Health and Safety Regulations yet the employer did not think of conducting one for this mall. With that said, at the time of the investigation the Christmas season shopping was over and upon visiting the site I could not see a danger to the employee. Therefore I have determined that a danger does not exist under the Canada Labour Code Part II.

[13] On October 26, 2016, I conducted a view of the Mall, Ottawa, ON, in the presence of the parties for the purpose of familiarizing myself with the inside and outside physical layout of the Mall and to re-enact the footpath of the Run that was the issue of Mr Pogue’s work refusal on December 17, 2015. A hearing on the merits of the case was held on October 26 to 28, 2016, and April 25 to 27, 2017, in Ottawa, ON.

Issue

[14] I have to determine the following issue: Whether the decision that a danger does not exist issued by the Ministerial Delegate under subsection 129(4) of the Code is well founded.

Submissions of the parties

A) Appllant's submissions

1) Testimonies

[15] The appellant, himself, testified and three witnesses were called, all of them employees of Brink’s: Mr André Desjardins, driver, Mr Allan Grubb, armoured vehicle driver and Mr Daniel Donnelly, guard, and employee representative on the work place health and safety committee.

[16] Mr Pogue testified about his 20 years in the armoured car industry and his work duties, training, and that he was not trained in the "Basic Blue" model. He testified about his general experiences working with Brink’s. He gave his account of his actions and observations on the day of his work refusal and those he observed of Mr Grubb, his driver and what transpired between himself and Mr De Haan, the employer representative that arrived at the Mall that day. Mr Pogue entered into evidence his notes and photographs that he captured at the Mall at the time of his work refusal.

[17] A focus of Mr Pogue’s evidence was the significance of maintaining distance between the public and the messenger and how he was trained about this. He stated that there should be 21 feet between messengers and others to be able to react to a threat. This rule is called the "21 foot Rule" and that is noted in the Employee Handbook and appears on all of the annual pistol requalification tests, which were designed by Brink’s. Mr Pogue maintained that he was unable to maintain a safe perimeter as a result of increased pedestrian traffic in the Mall during the time of his work refusal on December 17, 2015. Mr Pogue specified that where he is unable to assess threats, to safely scan for threats, behind and around him, it results in a serious risk of ambush, robbery or assault because of the increased number of shoppers during the Christmas shopping season which is a busier time of the year.

[18] In addition, Mr Pogue testified that he believed that it was impossible to maintain a 21 foot perimeter and that there was no way to maintain distance in the condition that existed at the Mall that day. He stated that messengers are also taught that the number one defense in any situation is to create distance. He maintained that at the time of his work refusal there was significantly more pedestrian traffic at the Mall and that neither the photographs he took nor those of that Mr De Haan took accurately reflect the level of traffic at the time he refused unsafe work as those photographs were taken between 30 and 60 minutes later.

[19] Mr Pogue testified that the traffic pattern at the Mall cannot be predicted with certainty and that there is no way of knowing in advance when the Mall can be done safely. Mr Pogue opined that the only way to mitigate against the danger posed by crowds and the inability to scan them is to have a guard present performing this role.

[20] Evidence provided by Mr Pogue pointed to an issue that was not raised during his work refusal. He testified that continuous radio communications between himself and the driver was faulty. Mr Pogue testified that two-way radio communications are an important part of personal protective equipment (PPE) and that the radio he had did not work near the Justice Store and that this is common for radios not to work inside shopping malls and bank vaults. He stated that this problem is well known to Brink’s and this is an issue that is raised and discussed at the JHSC on several occasions. His testimony is that he did not bring forth this issue at the time he performed the Run because it was futile to do that.

[21] Mr Grubb testified that he is an armoured car driver with Brink’s. He has been a messenger and a guard for 16 years. He has worked "Run 6" for 2 years, with Mr Pogue on the day of his work refusal, and with 3 other colleagues on other occasions. Since the work refusal he has not been assigned "Run 6". He gave testimony about his work duties, experiences and various training, and specifically, that he was not trained in the "Basic Blue" model with Brink’s. He gave his account of his actions and observations on, December 17, 2015, the day of the work refusal and his observations of Mr Pogue as well as his recollection of conversations he had with Mr Pogue. He corroborated Mr Pogue’s testimony that, in his experience, pedestrian traffic in the Mall cannot be predicted with certainty and that there is no way of knowing in advance when the Mall stops can be done safely and that shopping malls are busier during the holiday season.

[22] In cross-examination, Mr Grubb stated that he did not have knowledge of the employee rights as it pertains to work refusals. Mr Grubb testified, that, while in the armoured vehicle, he observed more vehicles in the parking lot and more people smoking near the entrance to the Mall than usual and that was abnormal. During the work refusal period, Mr Grubb stated that he felt safe in his vehicle and that the exterior of the Mall felt safe for him. Mr Grubb was not aware of any robberies that occurred at the Mall. He was not interviewed by anyone from Brink’s or by Mr Donnelly regarding the work refusal.

[23] Mr André Desjardins testified that his position with Brink’s is as a driver and that he has been employed with them for 29 ½ years. He is also the union local president. He has been a driver for 22 of those years and a guard/messenger for the remaining 7 ½ years. He testified about his work experience involving crews and various training, specifically, that he was not trained in the "Basic Blue" model with Brink’s. As well, he testified that he has performed the same messenger duties at the Mall referenced at bar during the same time of year, the "Run 6" under different circumstances. Mr Desjardins gave testimony about the blue coal bag that messengers carry and its content at any given time during the Run. Mr Desjardins gave evidence regarding the 21 foot Rule that he stated was a guideline, he testified about his training on the use of force, creating distance and his knowledge and experiences regarding the radio communication system that he utilized as a messenger in the course of his duties.

[24] In cross-examination Mr Desjardins testified that, due to the physical layout at the Mall it could be physically impossible to maintain a 21 foot distance at all times. When Mr Desjardins performed his messenger duties on "Run 6" during the Christmas season at the Mall it occurred between 09:15 and 09:40 AM and as a result the circumstances in the Mall were different from those experienced by Mr Pogue on December 17, 2015. He gave evidence about the assess/plan/act model used within Brink’s and he answered questions presented to him about various scenarios at the Mall using that model.

[25] Mr Daniel Donnelly testified that he has been employed by Brink’s as guard for 15 years and he was the employee JHSC representative at time of Mr Pogue’s work refusal. He has performed the duties of a guard/messenger and a driver. He testified that he was trained to perform site risk assessments inside class and on site. He spoke as well of the process involved in making assessments and the assessments he conducted. Mr Donnelly gave testimony about various training and in particular about his understanding of the 21 foot Rule and use of force training. He testified about 2 and 3 crews used at the Mall, his role during the work refusal and his reports that were entered into evidence. Mr Donnelly testified about the radio communication system.

2) Legal arguments

a) Statutory Framework & New Definition of Danger in the Code

[26] The appellant started its submissions with a description of the statutory framework and the new “danger” definition of the Code pursuant to sections 122(1), 122.1 and 122.2. The appellant noted that, the 2014 amendments of the Code changed the definition of “danger” and the work refusal provisions. Appeals officers have held in recent decisions that the intent of the changes was not to reduce the scope of the definition, but to both simplify meaning and include the concept of two types of danger, both imminent and serious. Furthermore, the new test, as first articulated by the Tribunal in Correctional Service of Canada v. Ketcheson, 2016 OHSTC 19 (Ketcheson) and affirmed in Arva Flour Mills Limited, 2017 OHSTC 2 (Arva Flour Mills) requires a decision maker determining whether a danger exists to ask:

  1. What is the alleged hazard, condition or activity?
  2. a) Could this hazard, condition or activity reasonably be expected to be an imminent threat to the life or health of a person exposed to it?
    Or
    b) Could this hazard, condition or activity reasonably be expected to be a serious threat to the life or health of a person exposed to it?
  3. Will the threat to life or health exist before the hazard or condition can be corrected or the activity altered.
Application of the test to the facts – Part 1

[27] The appellant argues that the alleged hazard, condition or activity in this matter pertains to being unable to scan for threats, which poses a serious danger of ambush, robbery and/or assault. At the time Mr Pogue refused to work, he indicated that he was unable to safely scan for threats at the Mall because of the increased number of shoppers present during the Christmas shopping season. The appellant points that every person who testified, including the respondent’s witnesses, agreed that shopping malls, including the Mall at bar, are busier at holiday season. Also, Mr Pogue specified that where he is unable to assess threats behind and around him there is a serious risk of ambush, robbery or assault. He indicated that he was unable to maintain a safer perimeter as a result of increased pedestrian traffic at the Mall at the time of his work refusal.

[28] The significance of maintaining distance between the public and the messenger, the appellant argues, is underscored in the Brink’s training and education material. Messengers are taught that there should be 21 feet between them and others to be able to react to a threat. The importance of the 21 foot Rule is such that it is noted in the Employee Handbook and appears on all of the annual pistol requalification tests, which were designed by Brink’s, all of which are in entered into evidence. Moreover, messengers, it is submitted, are also taught that the number one defense in any situation is to create distance. Mr Pogue stated that it was impossible to maintain the 21 foot perimeter and that there was no way to maintain distance in the conditions that existed at the Mall at the time of his work refusal.

[29] It is submitted by the appellant that messenger duties on CIT runs during holiday season and where there is a greater amount of pedestrian traffic, create conditions of increased risk as acknowledged by the employees who testified and as well documented in the materials before the appeals officer. The site risk assessment for the Mall addresses seasonal pickups as being situations of higher risk (Exhibit 6, Tab 18, page 25). Furthermore, all the respondent’s witnesses, employed by Brink’s, testified that messengers are required to constantly assess, plan and act. They agreed that assessing the environment, including the people in the environment, is an important part of maintaining safety and that it is a danger if a messenger cannot properly scan for threats; they further agreed that when a messenger is unable to assess threats it is appropriate to disengage and that the messenger is the person best able to assess a situation when performing messengering duties.

[30] In conclusion, with regard to this part of the test, the appellant submits that, absent the ability to maintain distance, a safe perimeter or adequately to scan people for potential threats, the messenger is placed in a situation in which his/her safety is put at increased and unreasonable risk as Mr Pogue was at the time of his work refusal.

Application of the test to the facts – Part 2

[31] The appellant argues that the inability to scan passers-by for threats creates a serious risk of ambush, attack or robbery. At no time during the course of Mr Pogue’s work refusal, or at the hearing, did he assert that his life or health was under imminent threat. Mr Pogue testified that he could not assess threats in the crowd making it impossible to know if he was under imminent threat to his life or health. It is further argued that the Federal Court and the Tribunal have recognized that immediacy is not required for a threat to meet the threshold of "serious". Where there is a reasonable expectation that the hazard, condition or activity will cause serious injury or illness at some time in the future; days, weeks, months or even years and the degree of harm caused to a person would be severe and not minor, the serious threshold will be met.

[32] Furthermore, the appellant submits that where the evidence shows that there was a reasonable possibility that in the days, weeks, months or years ahead, Mr Pogue would be faced with a situation that could cause him serious harm that will be sufficient to meet the test for serious danger (Ketcheson, supra and Arva Flour Mills, supra). In other words, a serious threat requires an assessment of the probability that the threat will cause harm as well as the consequences of harm, which have to be severe (Arva Flour Mills, supra).

[33] As noted in Verville v. Canada (Service correctionnel), 2004 FC 767 (Verville), the appellant argues that the danger must be capable of causing injury at any time, but not necessarily every time. As such, robberies and injuries are anticipated and foreseen in the armoured vehicle industry and employees are exposed to situations at risk on a daily basis (Brazeau et al. and CAW and Securicor Canada Ltd, Appeals Officer decision No. 04-049 (Brazeau)). The risk of assault, ambush and robbery is neither speculative nor hypothetical. They are well recognized as inherent risks in the armoured vehicle industry. There is a reasonable possibility that an armoured guard/messenger, could face the very serious danger of ambush, armed robbery, assault, particularly when conditions are such that they are unable to adequately assess the environment, including the people in the environment.

[34] As noted in Brazeau, supra, the appellant argues that even where the risk of robbery is relatively low, based on regional robbery statistics, the danger that the messenger faces is serious: Brazeau, at paragraph 212, states, "…the frequency of robbery has been low in the region where the employees worked, but given that assailants will likely be armed and determined, the severity of injury is likely to be high.". The unpredictability of human behaviour renders it impossible to predict where or when a robbery will occur. This unpredictability must be factored into a consideration of whether a danger is a "real possibility". The Employee Handbook recognizes this stark reality. Exhibit 13 reads as follows:

While no one can predict definitely how and when any holdup will occur, the primary precaution is to "be prepared" and expect an attack at any time or any place. At every location that you service try to visualize how you would attack the crew if you were the bandit, then take every possible precaution. The most dangerous spots are… 2. In corridors… 3. at the entrance, exit or on an elevator… 8. when entering, exiting or walking in an enclosed shopping mall.

[35] As noted in Verville, paragraph 41, the appellant argues, "(s)pontaneous assaults are capable of coming into being or action.". Though the respondent suggested in cross-examination of Mr Desjardins, that the amount of liability is generally less thereby decreasing the likelihood of robbery, the evidence before the Tribunal is the opposite on some days the liability on a CIT run could be high. Furthermore, all of the messengers who testified agreed that the liability is carried in an opaque, blue coal bag and that a third party would have no way of knowing how much liability a messenger had at any given time. It was Mr Pogue’s evidence that, at the time of his investigation, Mr De Haan, the Brink’s investigator on the day of the refusal, ignored the serious risks associated with increased pedestrian traffic and the inability to scan the crowd for threats, repeatedly noting both in his notes and in his testimony that there was no "imminent danger". Mr De Haan failed to turn his mind to the existence of "serious danger" that arose in the circumstances where a messenger could not safely scan the environment for threats and could not keep a safety perimeter around his person and to the "real possibility" of an ambush, armed robbery and/or assault. So cursory was the employer’s investigation that Mr De Haan failed to interview either Mr Pogue or Mr Grubb.

Application of the test to the facts – Part 3

[36] The appellant argues that the threat to life/health could not be corrected before the hazard/activity could be altered. The appellant submits that the investigation of the JHSC and the Ministerial Delegate occurred several weeks after the work refusal and outside of the busy holiday shopping season. The conditions, which were identified by Mr Pogue at the time of his work refusal, were no longer in existence. Despite understanding that the holiday shopping season was central to the work refusal, when asked, Mr De Haan offered no explanation for the delay in instituting the JHSC investigation. The view of the Mall by the appeals officer and the parties was, similarly, outside the holiday shopping period and thus an inaccurate representation of the conditions that existed during the holiday season and at the time of the work refusal. As well, while the conditions of which Mr Pogue complained were unique to the holiday shopping period, they were not unique to the specific date and/or time of his refusal to perform unsafe work.

[37] In regards to the testimony of the respondent’s witness Mr David Stewart, the Mall security supervisor, the appellant submits that he acknowledged that the Mall has a noticeable upswing in traffic beginning at the end of November and ending in early January each year. The appellant submits further that Mr Donnelly testified that he performed "Run 6" during the holiday shopping season in December 2016, and that he advised Brink’s that the Mall was getting busy and that Brink’s should consider adding a guard. Brink’s declined to do so. In addition Mr Pogue, Mr Grubb and Mr Stewart all testified that the traffic patterns at the Mall cannot be predicted with certainty. Mr Pogue and Mr Grubb testified that there is no way of knowing in advance when the Mall stops can be done safely.

[38] The appellant submits that he testified and maintained that at the time of his work refusal, there was significantly more pedestrian traffic in the Mall. The appellant further maintained that neither the pictures he took, nor the pictures Mr De Haan took accurately reflect the level of traffic at the time he refused unsafe work as both sets of pictures were taken somewhere between 30 and 60 minutes later. Furthermore, Mr De Haan’s notes and report, in exhibit 18 and exhibit 21, bear out the fact that his pictures do not reflect the numbers of shoppers he counted in the Mall during his investigation. By Mr De Haan’s own estimates, it is submitted, he encountered approximately 100 people in the section of the Mall on the footpath of the Run. It is further argued that, even assuming that there is some overlap as pedestrian traffic is not static, none of the pictures taken accurately capture a crowd of this size. Moreover, Mr Stewart, on behalf of the employer, agreed that at the time that Mr Pogue walked the Mall pedestrian traffic was heavier.

[39] It is the appellant’s submission that absent a way to accurately predict when the specific circumstances that create elevated levels of risk will arise, along with the increased possibility of being exposed to serious danger, the work the messenger is being required to perform falls outside the range of a "normal" condition of employment. It is argued that, where an activity meets the point of danger within the meaning of the Code, special precautions should be required precisely because CIT messenger services is already a high risk job. It is Mr Pogue’s uncontroverted evidence, he submits, that absent the ability to create distance and maintain a safe perimeter to respond to potential dangers, the only way to mitigate against the danger posed by crowds and the inability to scan them is to have a guard present performing this role. The appellant argues that in Elnicki v. Loomis Armoured Car Service Ltd, 96 di 149, CLRB Decision No. 1105, at paragraph 26, the Labour Board provided a non-exhaustive list of criteria to guide decision makers in deciding whether work place conditions create a dangerous situation for a two-person crew pursuing a particular assignment in the business of armoured vehicle services. Relying on these criteria, Mr Pogue argues as follows :

  • Particular conditions of locations – the volume of people in the shopping mall higher than usual. Messrs Pogue, Grubb, Donnelly, Desjardins and Stewart all agreed that there are marked seasonal variations in the traffic and the Mall is busier at holiday time than at other points of the year.
  • Amount of time where the custodian and the driver lose visual contact – even where the driver parks at the door, there is no way to maintain visual contact.
  • Number of entrances an exits on the premises – the Mall has many exits and entrances, including service corridors.
  • Isolated areas on the premises – service corridors.
  • Relative importance of service points – one of the stops in the Mall is a currency exchange and though it was not being serviced that day, it is serviced during the holiday season which requires a significant amount of liability to be carried by the messenger.
  • Any other factor likely to have a significant impact on the level of risk- training and the provision of PPE are discussed more fulsomely under the preventative control measure section.
b) Preventative control measures were inadequate to protect the life and health of the messenger
i) Continuous communication – Faulty radios

[40] The appellant submits that the evidence before the appeals officer was that two-way radio communications are an important part of PPE. Mr Pogue’s evidence is that the radio did not work at the Justice sStore and that it is common for radios to not work inside shopping malls and bank vaults. He testified that the problem is well known to Brink’s. The issue of radios not working has been discussed at the JHSC on several occasions. Mr Pogue did not advise Brink’s at the time of the Run because it was his experience that it was futile to do so. It is argued that Brink’s, as confirmed by the documentary evidence of Mr De Haan, was aware of the ongoing problems with radio communications.

[41] What's more, the appellant submits that, importantly, on at least two other recent occasions the issue of non-functioning radios in shopping malls had been raised as a safety hazard. At both Bayshore and Tanger the health and safety officer found that non-functioning radios created a danger:

One off crew member cannot be properly monitored for his risk of exposure to know[n] hazards of ambush, assault and injury during a robbery attempt and has a diminished ability to counteract and mitigate these hazards with performing CIT work at the mall the associated travel to and from the truck. (Bayshore)

[42] Similarly, in the Tanger work refusal the health and safety officer found that:

The One-off Crew member cannot be properly monitored for her risk of exposure to the known hazards of ambush, assault and injury during a robbery attempt and had a diminished ability to counteract and mitigate these hazards.

[43] Furthermore, it is submitted that there was ample evidence demonstrating that Brink’s is aware that two-way radios used by the messenger during CIT work at malls does not always allow the messenger to advise the driver in the armoured truck or his whereabouts and to contact him/her in the event of an emergency. The inability to communicate with the driver increases the risk of the known hazards of ambush, assault and injury during a robbery attempt while performing CIT work at shopping malls, including the Mall at bar. In Brazeau, at paragraph 209, this Tribunal found that the absence of communication was sufficient to confirm that a danger that went beyond a normal danger existed.

[44] It is argued by the appellant that, when coupled with the elevated risk posed by increased pedestrian traffic and the inability to adequately scan for threats, it can only be said that at the time Mr Pogue refused unsafe work there existed a danger within the meaning of the Code. The historical practice for addressing the elevated risks of December calls at the Mall was to provide an armed guard or escort during the Christmas season. In December 2015, no guard was provided and Brink’s had not, in the 3 months leading up to the holiday season, seriously consider the suggestion made by employees to put a guard on "Run 6" for the holiday season.

ii) Training

[45] On the subject of training, the appellant submits that Messrs Pogue, Desjardins and Grubb all testified that they were not trained using the "Basic Blue" model. They further testified that they did not feel confident about the training they received as it relates to de-escalation or the use of force. It is argued that, in light of the importance of training to overall safety, it cannot be said that the quality and frequency of Brink’s training adequately mitigates against elevated risks. The appellant points that, on Brink’s’ best evidence, the last training Mr Pogue received, other than the annual gun requalification was in or around 2011.

iii) Flexibility to change stop times

[46] Regarding this subject, the appellant submits that, there was some disagreement about the flexibility to perform calls in the order assigned by Brink’s, but there was no disagreement that geographical location and timed calls limited the driver and messenger’s flexibility to rearrange their routes and timing of their stops. There was no evidence on the record that Brink’s suggested to Mr Pogue or Mr Grubb that rearranging the route and revisiting the Mall later in the day would be appropriate. However, there was evidence that there was no way for the messenger and driver to predict with any accuracy the fluctuation in pedestrian traffic at the Mall.

iv) Site risk assessments

[47] At the time of Mr Pogue’s refusal to perform unsafe work, it is submitted, that a site risk assessment for the Mall had not been conducted. Brink’s had failed to assess the hazards that were likely to affect the health and safety of its employees. Furthermore, even after the site risk assessments had been completed for the Mall, the issue of communication in dead zones remained unaddressed and it cannot be said that Brink’s has appropriately addressed hazards, including those created by the inability of the messenger to maintain constant communication with the driver of the armoured vehicle.

c) Conclusion

[48] The appellant concluded its submissions by arguing that danger is inherent in the job of a Brink’s messenger. However, it is submitted that the elevated risk created by increased volume of pedestrian traffic coupled with inadequate training and communications equipment that "regularly malfunctions", and which is known to malfunction in shopping malls where there is no line of sight to the driver of the armoured vehicle, cannot be said to constitute a normal condition of employment. Absent a way to eliminate and reduce hazards and absent the provision of consistently functioning PPE, it cannot be said that Brink’s took adequate steps to protect the health and safety of the messenger performing seasonal CIT pickups and drop offs at the Mall.

[49] The appellant requests that I vary the decision rendered by the Ministerial Delegate and find that a danger existed at the time of the work refusal and continues to exist during the holiday shopping season.

[50] The appellant seeks a direction requiring Brink’s to add a guard to the stops at the Mall during the holiday season (end of November to early January).

[51] In the alternative, the appellant seeks a direction requiring a roving guard to be available to the messenger on "Run 6" during the holiday shopping season (end of November to early January).

B) Respondent’s submissions

1) Testimonies

[52] The respondent’s case was comprised of the testimony from three witnesses: Mr Jason Caesar, Manager, Outside Operations, Brink’s, Mr Robert De Haan, Inside Operations Manager, Brink’s and Mr David Stewart, Site Security Supervisor, Place d’Orleans Shopping Centre.

[53] Mr Caesar testified that he is employed as an outside operations manager, and he began his employment with Brink’s in 2003. He began his employment as a part-time employee and he has performed the duties of a guard/messenger, driver and ATM technician. Mr Caesar was a supervisor and also a branch trainer. His duties as a trainer started in 2010 and ended in 2015. Mr Caesar gave testimony focusing on his duties as a messenger on CIT crew and on his training duties, specifically, on the use of force, the 21-foot rule and use of radios by Brink’s staff.

[54] Mr De Haan testified that he is employed as an inside operations manager, and this employment with Brink’s began in 2014. He also testified that his employment prior to working for Brink’s was with another armoured car company. Mr De Haan was the employer co-chairperson for the work place health and safety committee or (JHSC) and the employer’s representative at the time of the work refusal and the ensuing investigation. He described the training he received and his duties and responsibilities for his position and role within the company. He received his site risk assessment training from his prior employer and that training is the same as what is received by Brink’s employees such as Mr Pogue.

[55] Mr De Haan testified that he made written and typed notes that were entered into evidence based on his involvement in the work refusal at bar following the receipt of Mr Pogue’s notification to him on December 17, 2015. He assigned an additional guard to do the Run with Mr Pogue and he accompanied them as they serviced three customers, the crew ended back inside the armoured truck in 20 minutes. During his time at the Mall, Mr De Haan, took photographs, which were entered into evidence that depicted the outside parking areas and where the Brink’s truck was parked, vehicle traffic, pedestrian traffic at the exterior and interior Mall. It was his opinion that the situation between 1:40 and 2:00 PM in the Mall was not crowded and was not dangerous to him as per his understanding of the Code definition. In the course of the Run, he asked Mr Pogue what threat he encountered or danger he perceived to cause the refusal; Mr Pogue indicated to him that the interior of the Mall had an excessive or high amount of individuals inside where he felt it was not safe for him to conduct his duties without a "Guard". Mr De Haan stated he did not observe specific individuals or suspicious activity during this Run. Mr De Haan testified that he noted the number of people he encountered inside and outside the Mall.

[56] Mr De Haan testified that at the conclusion of the Run at the Mall on December 17, 2015, he spoke with a security guard at the Mall, Mr David Stewart, to first confirm that Mr Pogue left the truck and went inside the Mall and he also inquired about the number of people in the Mall at the time of the work refusal. Mr De Haan testified that Mr Stewart told him that he could not review the Mall’s closed circuit video recordings however, Mr Stewart agreed to watch it and report his observation to him for the period from one hour prior to one after the work refusal, 11:15 AM to 1:15 PM.

[57] Mr De Haan stated that Mr Stewart told him afterwards that there were slightly more people and it was slightly busier in the Mall at the time of Mr Pogue’s work refusal at 12:15 PM. Mr De Haan also stated within his Incident Record dated December 17, 2015, that Mr Stewart informed him that escalators leading up to the food court are located by the main entrance and the additional persons encountered could be due to the lunch hour. During the investigation process following the work refusal, Mr De Haan testified that Mr Pogue told him in front of the Ministerial Delegate, that there was between 20 to 40 percent more people than when Mr De Haan arrived at 1:40 PM; Mr Pogue, under cross examination, denied making that statement.

[58] Mr Stewart testified that he has been employed by the GardaWorld security since 2011 as a site supervisor at the Mall. He gave an account of his duties and the type of incidents he must respond to while on duty at the Mall. He testified that Mr De Haan came to his office to talk to him on December 17, 2015, and that he asked him some questions about an investigation he was conducting involving a Brink’s employee. Mr De Haan requested to view the security camera video to determine how busy the Mall was. He did not allow Mr De Haan to view the video but agreed to perform a review from one hour before to one hour after the work refusal. After doing that, that he reported to Mr De Haan that the mall did not seem busier than average.

[59] Mr Stewart testified that, generally, it is busier during the holiday period that is from November to just after Christmas and that the New Year is quiet. He elaborated that Mall traffic has reduced since 2013 and is quieter. When questioned about the Mall traffic during the 2016 holiday season, he stated that it was quiet compared to 2015 but he would not know the exact numbers but knew that the numbers have gradually gone down since he started at the Mall. Mr Stewart testified that the hallway width between the stores varies between 20 to 50 feet throughout the various locations in the Mall.

[60] During cross-examination, Mr Stewart testified that weekends are not necessarily busier than weekdays and that it would not surprise him if there were 100 people after lunch in the Mall and the higher number would be at the food court. Mr Stewart stated that at lunch time the Main/North entrance is busier due to the fact that the escalators to the food court are located there. He also clarified that the kiosks in the Mall that were along the Brink’s route are permanent ones comprising of 3 kiosks and a guest service counter.

2) Legal arguments

[61] The respondent first submits on this point that all the witnesses with the exception of Mr Pogue testified that when they have done "Run 6" during Christmas period they did not do a work refusal.

[62] The respondent then makes reference to Arva Flour Mills at paragraph 85 and points me to the adopted threefold test of the appeals officer in Ketcheson that states at paragraph 199:

  1. What is the alleged hazard, condition or activity?
  2. a) Could this hazard, condition or activity reasonably be expected to be an imminent threat to the life or health of a person exposed to it?
    Or
    b) Could this hazard, condition or activity reasonably be expected to be a serious threat to the life or health of a person exposed to it?
  3. Will the threat to life or health exist before the hazard or condition can be corrected or the activity altered?
What is the alleged hazard, condition or activity?

[63] The respondent argues that Mr Pogue did not identify a hazard, condition or activity that could reasonably be expected to be an imminent threat. Unlike the Ketcheson and Arva Flour Mills cases the alleged source of harm or risk at the time that the officer conducted his investigation and rendered his decision no longer existed. Therefore, all the appeals officer has are the allegations put forth by Mr Pogue, namely, that he did not feel safe to service the three clients without a guard, as he "could not scan for threats… there was an excessive amount of people inside the mall."

Could this hazard, condition or activity reasonably be expected to be an imminent threat to the life or health of the person exposed to it

[64] The appeals officer in Ketcheson, the respondent submits, was clear that a "hazard", "condition" or "activity" only applies to direct causes of accidents and injuries. It is not meant to capture low risk hazards, ro[oot] causes, such as policies and programs, or disputes about issues other than direct causes of accidents and injuries to health (at paragraphs 147 and 157). In this case, Mr Pogue says that the performance of the CIT services on behalf of three customers in the Mall due to the overcrowded mall constitutes a hazard.

[65] Furthermore, the respondent submits, the undersigned appeals officer found at paragraph 92 of Arva Flour Mills, that in order to conclude that the employees were exposed to an imminent threat, the evidence has to show that there was a reasonable possibility that the employees would get injured within a manner of minutes or hours on the day of the Ministerial Delegate’s investigation. And, continuing on at paragraph 93, the undersigned appeals officer notes:

In my opinion, there is nothing in the evidence to indicate that the threat to employees operating the milling equipment was on the point of happening on the day of the inspection.

[66] As a result, the respondent puts that in this case there is no evidence, which indicates that there even was a threat on the point of happening. In fact, Mr Pogue testified that the last robbery in the Ottawa area was at the Super C in Gatineau nine years ago, that there has only been one or two in the last 10 years and he is not aware of anyone being robbed at the Mall. In response to the statement that Brink’s hasn’t had a mall robbery in the last 25 years in Ottawa Mr Pogue stated, "okay". Additionally, the respondent submits, in Mr Stewart’s evidence about incidents at the Mall since he became the site supervisor, he testified that there has only been one incident that he would consider was a theft and it was at the Bell Cellular location.

[67] The respondent submits that Mr Donnelly’s evidence indicated that Risk Priority Assessment at the Mall concerning seasonal pickups was "medium risk". Furthermore, it was Mr Stewart’s testimony that since commencing his employment at the Mall the number of people attending at the Mall during the Christmas season period had reduced and that on the day in question, Thursday, December 17, 2015, there was only "slightly more people" in the Mall.

[68] It is the respondent’s contention that at no time did Mr Pogue or his witnesses provide evidence to indicate that the threat to him was on the point of happening on December 17, 2015, or of any hazard. On the contrary, the evidence is to the effect that there was only a slight increase in the numbers, which overall had decreased since Mr Stewart had commenced working there. Furthermore, it is submitted, both Mr Donnelly and Mr Desjardins testified that they had performed CIT runs during the Christmas period at the Mall without ever exercising a work refusal. Again, Mr Pogue has failed to provide the appeals officer with any concrete evidence that in fact the Mall was crowded, as alleged. The evidence of Mr Stewart is that the mall "Was only slightly busier".

[69] Pointing to Ketcheson, the respondent submits that the comments in paragraphs 206, 207 and 208 of that decision are directly applicable to the case at bar. There is simply no evidence before the appeals officer to indicate that there was a reasonable expectation that Mr Pogue would be exposed to violence during his Run on the day of his work refusal. In fact, at no time during the course of his refusal of unsafe work, or at the hearing before the appeals officer, did Mr Pogue assert that his life or health was under imminent threat. Rather, Mr Pogue testified that he could not assess threats in the crowd making it impossible to know if he was under imminent threat to this life or health. Yet, it is submitted, the evidence is that he did not in fact assess; he was not concerned about the numbers and predisposed to make a work refusal.

[70] The respondent submits that the preponderance of the evidence establishes that Mr Pogue’s refusal to work was self-serving and motivated by his request to have a guard during the Christmas period thereby making the Run a three-person crew. Mr Pogue did a cursory review of the Mall and determined that he was going to exercise a work refusal. Two of the clients’ locations, Justice and Body Shop, were not in his line of vision at the Mall entrance so how could he possibly have determined the number of people he would encounter in going to those locations. It is argued that in paragraph 99 of Arva Flour Mills, the undersigned appeals officer is clear that the Code does not permit employees to characterize generic, hypothetical scenarios as "dangers", stating the following:

[…] A conclusion of danger must be based on more than a hypothetical threat. A serious threat requires an assessment of the probability that the threat will cause harm as well as the consequences of the harm, which have to be severe.

[71] As a result, the respondent argues, while there is no doubt the level of harm from a potential ambush could range from minor to severe, that is not the issue. The independent testimony of Mr Stewart states that the number of people in the mall on December 17, 2015, was up slightly therefore it is submitted that Mr Pogue could not have had a reasonable expectation that exposure to the activity, violence from the activity, or harm from the violence would be occurring within minutes or hours on December 17, 2015. It is impossible to claim that there was a reasonable expectation of any of this occurring when 2/3’s of the client calls were not in view. Nor did Mr Pogue provide any evidence that he assessed the individuals in the Mall or entrance. What the appeals officer does have is Mr Grubb’s assessment of the people outside the Mall entrance, people outside smoking and talking. No threat to Mr Grubb.

[72] Continuing on at paragraph 101 of the Arva Flour Mills decision, the respondent submits, the undersigned appeals officer states "in my view, these conclusions reached by the Ministerial Delegate are not based on any objective facts other than her own speculations as to what could occur to employees while the milling facility is in operation. In her investigation report and throughout her testimony, she did not raise any concrete facts to substantiate her conclusion that the employees are likely to get seriously injured by operating the vintage equipment". The respondent argues that in the case before me, there are no concrete facts being presented by the appellant, Mr Pogue.

[73] Consequently, Brink's states that this activity could not reasonably be expected to be an imminent threat to the life or health or Mr Pogue on December 17th, 2015.

Whether the danger was a normal condition of employment

[74] It is the respondent’s contention that during the course of this hearing much has been made by the appellant of the 21 foot guideline to allow for a 1.5 second reaction time to a threat. The evidence indicates that though this is optimal, there are circumstances such as on the sidewalk or in customer locations and in certain hallways of the Mall where the perimeter cannot be maintained and again this is an everyday occurrence. This occurs whether or not it is during the Christmas period or Friday’s before long weekends and other holidays.

[75] In fact, the respondent submits, to keep employees informed and to highlight what they have been trained in Brink's puts out a "holiday alert" for its employees advising as follows:

  • This stop may be more crowded during the holidays. Move as quickly as possible in and out of the stop. Remain alert and prepared for the unexpected.

Watch out for:

  • Persons loitering near doorways or on cell phones.
  • Closed vans and car with tinted windows.
  • Such obvious disguises as large sun glasses and hats that conceal identity.
  • Anything being carried by anyone that might be hiding a weapon.

Remain alert and immediately report all suspicious activity to police (911) and branch management.

[76] This alert is done, the respondent puts, in addition to the training employees have received both in classroom, on the internet and on the job training by providing these additional highlights to their employees during the Christmas period. Not only during the Christmas period but other holiday times during the year employees are required to do CIT runs at the Mall. Brink's states, that if there was a danger to Mr Pogue, which is not admitted and expressly denied, such a danger would be a residual risk that would be a normal condition of employment under the Code and therefore could not be the basis of a work refusal.

[77] According to the respondent, it is well established in the Tribunal's jurisprudence, that the armoured car industry involves a somewhat high level of inherited danger particular to the nature of the business. Brink's submits this danger exists regardless of the CIT crewing model. Indeed, in the circumstances of this case, the fact that that mall was slightly busier does not take it out of the realm of a "normal condition of employment".

[78] To conclude on this issue, Brink's therefore submits that the danger inherited in the performance of the CIT services at the Mall was a normal condition of employment for Mr Pogue. Certainly not greater than existing operations and therefore not the basis of a work refusal.

Mr Pogue’s credibility

[79] The respondent submits that the following passage from Faryna v. Chorny [1952] 2 D.L.R. 354 (B.C.C.A) is often cited when credibility is an issue:

The creditability of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skillful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind. The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion.

[80] Brink's submits that the credibility of Mr Pogue’s, an interested witness, testimony lacks the veracity and was given in order to bolster his work refusal. The evidence presented by Mr Pogue, is not in accordance with the preponderance of probabilities in the case before the undersigned appeals officer. Mr Pogue fabricated and provided evidence that is inconsistent with was probable in the circumstances. In addition, the evidence shows that he ignores his training and direction when it suits him.

[81] Brink's therefore submits in conclusion on that issue that Mr Pogue's self-interest, lack of consistency and fabrication when used in assessing his credibility necessarily leads to the conclusion that his evidence is inconsistent with what was probable in the circumstances.

3) The appellant’s submissions

[82] It is Mr Pogue's position that due to the increased number of shoppers at the Mall he was unable to scan for threats. The respondent comments, however, that the evidence of an independent witness before the Tribunal, Mr Stewart, indicates that on the day in question the Mall was slightly busier. Furthermore, Mr Stewart testified that since 2013 the number of people at the Mall during the Christmas season has decreased. Mr Pogue at no time provided any evidence to indicate that he had assessed/scanned the individuals that were in the Mall or that he attended at all of the client's locations to assess the number of people. Furthermore, there is an inference from Mr Grubb's testimony that Mr Pogue had already made up his mind that there was a large amount of people in the mall prior to even entering the mall.

[83] Mr Pogue's evidence is, the respondent adds, that there is a hypothetical threat; therefore; there is a danger. The respondent submits that this is contrary to the undersigned appeals officer’s position in Arva Flour Mills at paragraph 99, which states, "with respect, the Ministerial Delegate's interpretation of the new concept of danger is flawed. A conclusion of danger must be based on more than a hypothetical threat. A serious threat requires an assessment of the probability that the threat will cause harm as well as the consequences of the threat, which have to be severe”. Here the probability of a threat, the respondent argues, is a regular condition of employment and may or may not cause harm which is severe.

[84] In paragraph 35 of its submissions, the appellant states "the unpredictability of human behaviour renders it impossible to predict where or when a robbery will occur. This unpredictability must be factored into a consideration of whether a danger is a "real possibility". Brink's submits the number of cell phones with cameras and the people in the Mall in fact is a detractor for bad guys to assault or rob Brink's employees at a mall. Further, the testimony of Mr Stewart and Mr Pogue reveals that there has been no robbery or assault to Brink's employees and one theft in the Mall.

[85] Concerning the appellant's position with respect to the threat to life/health that cannot be corrected before hazard/activity could be altered, Brink's submits that there were not the number of people that Mr Pogue would have the appeals officer believe present at the Mall at the time. The best evidence before the undersigned is that of Mr Stewart who indicated that over the years the pedestrian traffic has fallen and it was only slightly busier on Thursday December 17th, 2015. Therefore, there was not an activity that needed to be altered.

[86] Concerning the appellant's submissions with respect to continuous communication/faulty radios; there is no evidence before the Tribunal to indicate that there was not two-way radio communications at the time of the work refusal. Mr Grubb could not recollect any difficulty communicating with Mr Pogue on December 17, 2015, and testified that most of the time the radios are in working order.

[87] Concerning the training that Mr Pogue received, the respondent submits that contrarily to what Mr Pogue would have the appeals officer believe, he is not a first responder such as the police requiring all the additional training. The fact is that Brinks' delivers and picks up liabilities.

[88] Concerning the level of training given, though Mr Pogue did not receive basic blue training, which all new employees receive, he did receive classroom training and on the job training covering the duties and responsibilities of the various positions he held and holds with Brink's. Furthermore, Mr Pogue received additional training from Brink's as a result of his position as Health and Safety Representative and has some 20 years of experience. He also testified as to how he trains new messengers, which would support the fact that he is fully knowledgeable of the procedures that are to be followed by a messenger to ensure their overall safety.

[89] Finally, with respect to employees' flexibility to change route stop times the evidence before the appeals officer is that they do have flexibility to perform calls as they deem fit and in fact Mr Desjardins testified that as long as the route is completed within the 8 hour timeframe they could do the call in any order they wanted. This suggests that Mr Pogue, as the messenger, was free to vary the route.

Conclusion

[90] In conclusion, the respondent submits that there is no evidence before the appeals officer demonstrating that there was a reasonable possibility that performance of the CIT services on Thursday, December 17, 2015, would be a serious threat to the life of Mr Pogue. Additionally, any danger that existed was a “normal condition of employment” that occurs when a Brink’s’ employee performs their duties and responsibilities.

[91] It is submitted that, in finality, the evidence at the hearing raises the issue of Mr Pogue’s credibility surrounding his work refusal and whether or not the refusal was bona fide under the circumstances. The respondent submits that Mr Pogue’s evidence is not in accordance with the preponderance of probabilities considering all the witnesses’ testimony at the hearing.

[92] The respondent submits that the implication to Brink’s and CIT industry as a whole are significant and it implores the appeals officer to take an objective and structured approach to application of the Code provisions. It respectfully submits that Mr Pogue’s appeal should be dismissed and the Ministerial Delegate’s decision be upheld.

C) Appellant’s reply submissions

1) Mr Pogue's Credibility

[93] The appellant submits that the employer, in an effort to shore up its decision to require workers to engaged in unsafe work during the busier holiday shopping season has targeted Mr Pogue and has engaged in a campaign to discredit him. Mr Pogue is a long-term (20 year) employee of Brink’s and had a discipline free work history until the time of his work refusal

[94] The appellant submits that the employer’s statement that there has been "fabrication", is overreaching. Minor inconsistencies in evidence, the appellant adds, are to be expected after the passage of between 10 and 16 months. Relatively minor inconsistencies in the overall context of Mr Pogue's evidence do not make the main points of his evidence less believable and are a function of the passage of time rather than a deliberate attempt to deceive.

[95] The appellant argues that the suggestion that Mr Pogue strategically took photos to bolster his evidence is unsupportable on the record. On the employer's own evidence there were more than a 100 pedestrians on the footpath walked by Mr De Haan during the course of his "investigation". None of Mr Pogue's photos reflect numbers not supported by De Haan's report. Moreover, Mr Pogue testified and the Security Officer confirmed that it was busier earlier in the day than it was at the time he took the photos.

[96] Throughout this matter the employer has unfairly sought to challenge Mr Pogue's credibility instead of addressing the issue that arose in the course of the work refusal - that the work could not be done without creating a serious risk to Mr Pogue's safety.

[97] Mr Pogue and Mr Grubb each testified to the best of their recollections and both Mr Grubb and Mr Pogue confirmed that the parking lot was busier than normal. In such circumstances it would be entirely consistent to enter into the Mall to determine whether traffic inside was as busy as traffic outside. In fact, it is exactly what armoured messengers are trained to do: Assess, Plan and Act.

[98] As stated by the employer, the appellant submits, the Mall security guard did confirm that the presence of 100 people would not be unusual at the lunch hour and that there was an increase in traffic at the doors by which Mr Pogue was to enter the Mall at that time. In fact, it would appear from Mr De Haan's own estimates, Mr Pogue says, that there were at least 100 people in a portion of the Mall after the lunch hour was over.

[99] The appellant acknowledged confusion about the pictures at the Mall taken in December of 2016, and confirmed that he was mistaken as to what Mall it was. The Site Risk Assessments confirm that Mr Pogue is at many malls doing site risk assessments.

2) Other Issues

[100] At various points in its submissions, the employer states that the radios worked most of the time. However, the appellant argues, testimony from Messrs Grubb, Donnelly, Pogue and Desjardins, all spoke to frequent, ongoing and known problems with communications inside shopping malls and with the radios generally. The issue was raised repeatedly by the workers on the health and safety committee and can be found in the notes of the committee that are before the Tribunal.

[101] Mr Pogue agreed that the equipment worked when they left the Ottawa Depot and that the fact that they did not function later in the day was not an unusual occurrence. The fact that it was not raised earlier is not surprising, in light of the frequency of the problem and the lack of action on the part of the employer.

[102] Finally, the appellant argues, while the risk of robbery is inherent in the work of an armoured messenger, the risk increases to an unacceptable and serious level when the messenger cannot adequately assess his/her surroundings. The very nature of robbery threats is that they are unpredictable. Locations that are busier than normal make safe performance of the job even more challenging. Mr Pogue was taught to assess, plan and act and was far better placed to assess the situation and make a determination about the serious risks to his safety that were raised as a result of his being unable to assess the crowd, than would a mall security guard, who testified that he had no armoured messenger training.

Analysis

[103] The issue that needs to be determined to resolve this appeal is whether the decision that a danger does not exist issued by Ministerial Delegate Jenkins is correct having regard to the evidence before me and the requirements of the Code. To decide whether to vary, confirm or rescind the decision, I will need to ascertain whether the performance of an activity, that is, the duties of a messenger during Run 6 at the Place d’Orleans Shopping Centre (the Mall) on December 17, 2015, constituted a danger for the appellant.

[104] The appellant exercised his right to refuse to perform dangerous work 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, of the employee while at work has reasonable cause to believe that

  • (a) the use or operation of the machine or thing constitutes a danger to the employee or another employee;
  • (b) a condition exists in the place that constitutes a danger to the employee; or
  • (c) the performance of the activity constitutes a danger to the employee or another employee.

[105] Subsection 122(1) of the Code defines “danger” as follows:

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, condition can be corrected or the activity altered.

[106] This new definition of danger came into force in October, 31 2014, along with other amendments to the Code contained in the Economic Action Plan 2013 Act, No.2, S.C. 2013, c. 40. The first decision of an appeals officer interpreting this new definition has been rendered in Ketcheson. In that decision, Appeals Officer Peter Strahlendorf set out as follows the legal test to be applied to determine the existence of a danger as defined in the Code:

[199] To simplify matters, the questions to be asked whether there is a “danger” are as follows:

  1. What is the alleged hazard, condition or activity?
  2. a) Could this hazard, condition or activity reasonably be expected to be an imminent threat to the life or health of a person exposed to it?
    Or
    b) Could this hazard, condition or activity reasonably be expected to be a serious threat to the life or health of a person exposed to it?
  3. 3) Will the threat to life or health exist before the hazard or condition can be corrected or the activity altered?
1) What is the alleged hazard, condition or activity?

[107] The first part of the test requires the identification of the hazard, condition or activity that allegedly constitutes a danger as defined in the Code. In the present case, the employee alleges that the performance of his duties as a messenger on CIT runs at the Place d’Orleans Shopping Centre, during the holiday season exposes him to an elevated risk of ambush, robbery and assault and the resultant psychological and physical harm due to his inability to safely scan for threats as a result of the increased pedestrian traffic at the Mall. The appellant is of the view that the presence of a third employee, acting as a guard, would reduce significantly the risks to his health and safety.

2) Could this hazard, condition or activity reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it?

[108] The second part of the test requires a determination as to whether the hazard condition or activity can reasonably be expected to be an imminent or a serious threat to the life or health of a person exposed to it. The appeals officer in the Ketcheson decision described in the following way the elements necessary to establish an imminent threat to the life or health of a person:

[205] An imminent threat is established when there is a reasonable expectation that the hazard, condition or activity will cause injury or illness soon (within minutes or hours). The degree of harm can range from minor (not trivial) to severe. A reasonable expectation includes a consideration of: the probability the hazard, condition or activity will be in the presence of a person; the probability the hazard an event or exposure; and the probability the event or exposure will cause harm to a person.

[109] Based on the appeals officer interpretation, to which I concur, to establish an imminent threat in the present case, the evidence must show that there was a reasonable possibility that Mr Pogue would get injured within a matter of minutes or hours by having to perform his regular messenger duties on the day he exercised his right to refuse dangerous work.

[110] In this regard, the respondent’s position is that Mr Pogue never asserted at the time of his work refusal or during the hearing that his life or health was under imminent threat. The appellant has always maintained that he was not able to scan the busy mall for threats making it impossible to know whether he was faced with an imminent threat. The respondent submits that the appellant has not provided any evidence to establish that the threat to him was on the point of happening on the day of the work refusal.

[111] Considering both parties’ submissions, I will not spend much time on this part of the test since I believe that the evidence presented does not demonstrate that there was a threat on the point of happening on the day Mr Pogue exercised his right to refuse to work. On the contrary, the evidence shows that there has not been a robbery at the Place d’Orleans Shopping Centre in the last 10 years and that the last robbery at Brink’s occurred nine years ago at a Super C in the Ottawa area. I therefore conclude that Mr Pogue was not exposed to an imminent threat to his life or health.

[112] I will now turn to the next question in this part of the test, i.e. whether the hazard, condition or activity could reasonably be expected to be a serious threat to the life or health of the appellant.

[113] The elements necessary to establish a serious threat were described as follows by the appeals officer in Ketcheson:

[210] A serious threat is a reasonable expectation that the hazard, condition or activity will cause serious injury or illness at some time in the future (days, weeks, months, in some cases years). Something that is not likely within the next few minutes may be very likely if a longer time span is considered. The degree of harm is not minor; it is severe. A reasonable expectation includes a consideration of: the probability the hazard condition or activity will be in the presence of a person; the probability the hazard will cause an event or exposure; and the probability the event or exposure will cause harm to a person. [underlining added]

[114] As I have previously stated in my decisions in Arva and in Shawn Nolan et al. v. Western Stevedoring, 2017 OHSTC 11 (Western Stevedoring), I wholeheartedly agree with this interpretation of a serious threat.

[115] Based on this interpretation, the establishment of a serious threat doesn’t require immediacy but only a demonstration that the hazard, condition or activity will cause severe injury or illness at some time in the future. One key element of the definition of danger that remains the same is the concept of reasonable expectation (See Keith Hall & sons at paragraph 136).

[116] In the Western Stevedoring decision, the undersigned stated the following in regards to the concept of reasonable expectation:

[61] Given that the Code’s definition of danger is based on the concept of reasonable interpretations, the mere possibility that such an event or incident causing serious harm could occur is not sufficient to conclude to the existence of a serious threat. There must be sufficient evidence to establish a reasonable possibility that the employees could be subject to such serious harm as a result of their exposure to the alleged hazard, condition or activity.

[117] Applying these principles to the present case, I will need to determine whether the evidence presented establishes a reasonable possibility that the appellant would be exposed on the day of his work refusal and/or any following day during the holiday period, to a serious threat to his life or health by having to perform his messenger duties at the Place d’Orleans Mall without the presence of a third employee acting as a guard.

[118] It is important to note that both parties have acknowledged in their written submissions that employees working in the armoured car industry are exposed on a daily basis to the threat of a robbery, an ambush or an assault. In addition, these inherent risks to employees in the industry have been recognized in previous jurisprudence under Part II of the Code.

[119] For example, in Loomis Armoured Car service Ltd. And Canadian Brotherhood Railway, Transport and General Workers, Local 266A, Decision 93-008, the Regional Safety Officer stated ad follows :

[21] No one would disagree, I would venture, with the premise that persons employed in the operation of armoured cars are exposed to risks on a daily basis. [...] the Canadian Labour Relations Board noted that '' the risk of robbery or assault is part of armoured car service employees lives''. One can therefore conclude that danger is inherent in the operation of armoured cars, a situation which is recognized by the Code and which precludes employees from refusing to work solely because of the risk of robbery or criminal attack. However, one must also ask at what level or under which circumstances does this inherent danger become unacceptable?

[120] In the previously cited Brazeau decision, the appeals officer stated as follows:

[210] In my opinion previous boards have confirmed that the armoured vehicle industry involves a somewhat high level of inherent danger particular to the nature of the business […]

[121] In my view, there is no question that employees working as messengers could suffer severe or even fatal injuries from a potential assault or ambush. The respondent has recognized this fact when it stated in its written submissions that the “level of harm that could result from a potential ambush could range from minor to severe”.

[122] The appellant, while acknowledging the risks inherent to the performance of armoured messenger duties, is of the view that in the present case, the risks are elevated to an unacceptable level by the volume of pedestrian traffic during the holiday period, which creates a danger as defined by the Code. More specifically, the appellant alleges that as a result of the increased amount of people at the Mall during the holiday, he is not able to maintain a 21 feet radius in order to scan for possible threats thereby increasing the likelihood of an ambush, assault and/or robbery.

[123] Thus, the question becomes whether the risks inherent to the job of an armoured car messenger are, during the holiday period, elevated to the point that it can be said that the appellant was exposed to a serious threat to his life or health. To answer this question, I will need to determine whether the evidence presented demonstrate an increase in the amount of pedestrian traffic at the Place d’Orleans Mall during the holiday season such that employees are unable to perform their duties in a safely manner.

[124] In his work refusal statements, first on December 21, 2015: “I am not able to scan for threats as I conduct my work at the Place d’Orleans mall with an excessive amount of people around me”. On the January 14, 2016, in an ESDC Preliminary Event Report made to ESDC Labour Program, Mr Pogue purportedly stated that there was “wall to wall people because of the holiday shopping season”.

[125] For the reasons that follow, I find that the whole of the evidence that was put before me does not support the appellant’s contention regarding the amount of people at the Mall on the day of his work refusal as well as throughout the holiday period.

[126] In so deciding, I give more weight to the testimony of the independent witness, Mr Stewart, to the effect that, on the day of the work refusal, there was “only slightly more people” and, “it did not seem that busier than average” and, during the 2016 Christmas “quite slow” compared to 2015 Christmas shopping season in the Mall. Mr Stewart also indicated that overall the number of shoppers has been shrinking during the holiday period since 2013 and that he noticed an overall decline in the volume of pedestrian traffic throughout the entire year since he started his employment at the Mall in 2011.

[127] Mr Pogue testified that his perception of the crowd size in the Mall on December 17, 2015, was based on “a quick inspection” when he entered the Mall’s main entrance, near the escalators at approximately 12:00 PM. Mr Stewart has indicated that that location is one of the busiest places in the entire mall because the food court is located on the floor above during lunchtime.

[128] In addition, the respondent pointed out that two clients’ locations on the Run could not be in Mr Pogue’s line of vision at the Mall entrance. Nonetheless, it was Mr Pogue’s assessment and conclusion in his words “I was able to verify that there was an excessive amount of people inside the mall” which I do not believe is an accurate account of the complete Mall environment. In my opinion, Mr Pogue conducted a superficial inspection and assessment, at best; he did not go any further into the Mall to assess the entire route or the Run.

[129] On the other hand, Mr Stewart’s evidence was based on his observation of the Mall’s video one hour before and after the work refusal, that is, from 11:15 AM to 1:15 PM and I give credence to Mr Stewart’s evidence because of his experience in assessing the Mall’s volume of pedestrian traffic. Given the divergence in the testimony of Mr Pogue and that of Mr Stewart, I have chosen to give more weight to the evidence that I believe to be more probable.

[130] In addition, I had the benefit of reviewing photographs taken by both Mr Pogue and Mr De Haan minutes and hours after the work refusal. In the Ministerial Delegate’s report, it is stated that Mr Pogue took his pictures at around 45 minutes after he first assessed the danger at 12:15 PM. He feels there was about double the numbers at 12:15 PM than at 1:00 PM. In my opinion, the photographs taken by both Mr Pogue and Mr De Haan and tendered in evidence support and confirm the testimony of Mr Stewart that there was only a slight increase in the amount of people on that day and it was slightly busier than average.

[131] While I am mindful that the appellant has asserted that these photographs do not accurately reflect the level of traffic at the precise time he made the decision to refuse to perform dangerous work, I find that they are very relevant in assessing the level of pedestrian traffic in general during that specific day and period of the year.

[132] In my opinion, Mr Pogue could have been influenced or perhaps inclined to believe that the Mall crowd would be excessive before he entered the Mall on the day of the refusal. It seems to me this point is underscored by the following excerpts originating from his hand written statement; “From conducting my earlier pickups from that day, nearly all the locations prior to the Mall were quite a bit busier than usual and there were 5 to 10 times the normal amount of individuals inside of these locations”, next, he states, “As I pulled up to the Place d’Orleans mall it was obvious by the cars parked in the shopping mall parking lot, and by the number of people walking in and out of the mall, that the same 5 to 10 times more than normal amount of traffic was present”. My conclusion is also reinforced by the testimony of Mr Grubb to the effect that Mr. Pogue told him upon arrival at the Mall that there was a large amount of people at the Mall and that he would go inside to check if it was safe to do the Run.

[133] I find that the evidence simply does not support Mr Pogue’s statements made during the Ministerial Delegate’s investigation and his testimony at the hearing regarding the amount of people in the Mall. I am also troubled by the fact Mr Pogue’s tried to augment his claim concerning the amount of people by attempting to introduce photographic evidence taken during the 2016 holiday season that were in fact photos depicting the number of shoppers at a completely different shopping centre. I find that Mr Pogue’s action adversely affected his credibility.

[134] The appellant has also raised some additional concerns that it alleged combined with the increase volume of pedestrian traffic at the Mall amount to a danger as defined in the Code. These new issues relate to the radios used by the employees, which are alleged to regularly malfunction as well as the inadequacy of the training given to Mr Pogue. I have decided not to address these issues for the following reasons.

[135] First, the evidence shows that these issues did not form part of the circumstances that led to Mr Pogue’s work refusal. They never came up and were never considered by the Ministerial Delegate and the health and safety committee throughout their investigations. Mr Pogue brought these issues to light over a month after his work refusal and, in my opinion at the hearing of this appeal in an effort to overstate the circumstances that led to his work refusal. Second, I do not believe that it is necessary for me to consider them to resolve this appeal considering my observations regarding the evidence in support of the amount of people at the Mall on the day of the work refusal and during the holiday season.

[136] Given my above conclusions, I find that the appellant has not established that he was exposed to more than a hypothetical threat on the day he exercised his work refusal. On that regard, the appeals officer stated the following at paragraph 143 in Brinks Canada Limited v. Dendura, 2017 OHSTC 9:

[143] The determination of whether a threat is a real possibility as opposed to a remote or hypothetical possibility is not always an easy task. It is a matter of fact in each case and will depend on the nature of the activity and the context within which it is executed. Statistical information is relevant to make an informed factual finding on that question, although in the final analysis, it involves a question of appreciation of facts and judgement on the likelihood of the occurrence of a future event, in the present case an event that is linked to unpredictable human behaviour.

[137] In the present case, I find that the evidence does not support a conclusion that the risk of robbery or an assault, that is inherent to the duties of an armoured car messenger, is increased during the holiday shopping period at the Place d’Orleans Shopping Centre on December 17, 2015. There is nothing in the evidence to suggest that the appellant was not able to maintain a safe perimeter to scan for threats like he would normally do during the other part of the year.

[138] Consequently, I cannot conclude that the appellant was exposed to a serious threat to his life or health on the day he exercised his statutory right to refuse dangerous work. Having so concluded, it is not necessary to consider the third part of the danger test.

[139] I would like to make a final comment with regard to the respondent’s allegations concerning Mr Pogue’s motives in exercising his right to refuse to work. According to the respondent, the evidence submitted in this case demonstrate that Mr Pogue’s work refusal was self-serving and motivated by his desire and history of multiple requests to have a guard be assigned to the runs a the Place d’Orleans Shopping Centre during the holiday season.

[140] In my view, although the respondent made a compelling argument, this issue is outside of the purview of this appeal. As per section 147.1 of the Code, an employer who can demonstrate that the employee has wilfully abused his rights under the Code, may choose to take disciplinary actions against that employee, after all the investigations and appeals have been exhausted by the employee, who exercised his right to refuse to work under sections 128 and 129. The issue of the validity of the disciplinary actions taken by the employer is as per section 133 of the Code, the jurisdiction of the Canada Industrial Relations Board.

Decision

[141] For these reasons, the appeal is denied and the decision rendered by Ministerial Delegate Jenkins on January 25, 2016, is confirmed.

Michael Wiwchar
Appeals Officer

Report a problem or mistake on this page
Please select all that apply:

Thank you for your help!

You will not receive a reply. For enquiries, contact us.

Date modified: