2017 OHSTC 27

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:

[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

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).

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:

[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:

[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:

[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.

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:

[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:

[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:

[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 :

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

[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:

[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.