2019 OHSTC 6

Date: 2019-03-04

Case Nos.: 2018-42

Between:

Canada Border Services Agency, Applicant

and

Public Service Alliance of Canada, Respondent

Indexed as: Canada Border Services Agency v. Public Service Alliance of Canada

Matter: Application for a stay of a direction issued by an official delegated by the Minister of Labour

Decision: The application for a stay is granted

Decision rendered by: Pierre Hamel, Appeals Officer

Language of the decision: English

For the applicant: Ms. Caroline Engmann, Counsel, Labour and Employment Group, Justice Canada

For the respondent: Ms. Leslie Robertson, Representation Officer, Public Service Alliance of Canada

Citation: 2019 OHSTC 6

Reasons

[1] These reasons concern an application brought under subsection 146(2) of the Canada Labour Code (Code) for a stay of a direction issued on December 3, 2018, by Ms. Crystal Lloyd in her capacity as an official delegated by the Minister of Labour (ministerial delegate).

[2] The direction was issued against the Canada Border Services Agency (CBSA or the employer) pursuant to subsection 145(1) of the Code and reads as follows:

[3] On December 17, 2018, the applicant filed a notice of appeal against the direction pursuant to subsection 146(1) of the Code and simultaneously filed a request for a stay of the direction pending the disposition of the appeal on its merits.

[4] On January 15, 2018, I instructed the applicant to provide the Tribunal and the respondent with more details, in writing, relating to the grounds in support of the application. The applicant filed submissions on February 1, 2019. The submissions were accompanied by documentary evidence and an affidavit signed by Mr. Martin Bolduc, Vice-President, Programs Branch of CBSA, setting out material facts relating to the nature of the documentation being the subject matter of the direction and background information related to the work place. The respondent’s response submissions were filed with the Tribunal on February 8, 2019. The applicant’s reply submissions were filed on February 13, 2019.

[5] The parties were advised of my decision to grant the application for a stay on February 19, 2019, with reasons to follow. I rendered my decision after careful review of the parties’ submissions and documentation filed in support of the application. I hereby set out the reasons for my decision.

Background

[6] I will briefly outline the circumstances that led to the issuance of the direction and the issues that are raised by the appeal.

[7] The ministerial delegate was assigned to investigate a complaint filed in early February 2018 by Mr. Mark Rantala (the complainant), a Border Services Officer (BSO), alleging that the applicant had refused to provide the Work Place Health and Safety Committee (WHSC) with a copy of a risk assessment in accordance with subsection 135(9) and paragraph 125(1)(z.11) of the Code. The complainant is employed by the applicant at the Macdonald-Cartier International Airport (MCIA) in Ottawa, Ontario.

[8] The documents requested were eventually identified by the ministerial delegate as follows: (i) Transport Canada National Aviation Security Risk Context Statement (2012); and (ii) Threat and Risk Assessment conducted by Mr. Chris D. Lewis, President of Lighthouse Leadership Services (2016). Those documents are stated in her direction and will be referred to as “the Lighthouse report” in the present reasons.

[9] After several attempts over the course of her investigation, which lasted from March to December 3, 2018, the ministerial delegate was unable to obtain a copy of the Lighthouse report or ensure that it would be communicated to the WHSC, an action which she considered was mandated by paragraph 125(1)(z.11) of the Code. The employer advised that the documents could not be released as the information they contained “pertained to advice to the Minister and could also be injurious to CBSA operations”.

[10] On December 3, 2018, the ministerial delegate issued the direction under appeal, with a compliance date of December 17, 2018.

Analysis

[11] The authority of an appeals officer to grant a stay of a direction is found in subsection 146(2) of the Code:

[12]Appeals officers have considerable discretion in determining whether a stay should be granted (Brinks Canada Ltd. v. Childs, 2017 OHSTC 4; CFIA v. Public Service Alliance of Canada, 2013 OHSTC 36). Such discretion must be exercised in a way that supports the objectives of the Code and largely depends on the context in which the direction is issued and its impact on the employer’s operations. As such, each case turns on its own set of facts. The Tribunal’s jurisprudence has set out a test comprising various factors that appeals officers should consider in dealing with an application for a stay. Those factors serve as the appropriate analytical framework for appeals officers to apply their discretion in each case (S.G.T. 2000 Inc. v. Teamsters Quebec, local 106, 2012 OHSTC 15, at para. 5). Originally derived from the Supreme Court of Canada decision in Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 SCR 110, the elements of the test are as follows:

1. the applicant must satisfy the appeals officer that the question to be tried is serious as opposed to frivolous or vexatious
2. the applicant must demonstrate that it would suffer significant harm if the direction is not stayed by the appeals officer
3. the applicant must demonstrate that should a stay be granted, measures will be put in place to protect the health and safety of employees or any person granted access to the work place

[13] I will consider in turn each of these criteria, as required.

[14] Before doing so, however, I will briefly set out additional background information relevant to the present application, which was provided to the Tribunal through the affidavit evidence signed by Mr. Bolduc.

[15] Pursuant to the provisions of the Aeronautics Act, RSC 1985, c A-2, s 4, Transport Canada has the primary responsibility for safety and security at airports, including MCIA. Under the Canadian Aviation Regulations, SOR/96-433, the MCIA Authority holds a certificate to provide airport services at the MCIA. Pursuant to the provisions of the Canadian Air Transport Security Authority Act, SC 2002, c 9, s 2, and the Canadian Aviation Security Regulations, 2012, SOR/2011-318, the Canadian Air Transport Security Authority has primary responsibility for screening and other security functions at MCIA.

[16] The CBSA occupies specific areas at MCIA, where it operates and carries out its activities. As of April 2018, the CBSA had approximately 77 employees at MCIA and has in place a WHSC, as required by the provisions of the Code.

[17] The majority of the CBSA's workforce at MCIA are BSOs. BSOs are uniformed officers who carry specified defensive tools or equipment as part of their uniform, including a duty firearm. There has been a longstanding policy issue between the bargaining agent and the CBSA regarding the arming of BSOs at MCIA.

[18] In 2014, a BSO filed a complaint regarding arming at airports. The investigation of the complaint by management and union representatives led to recommendations regarding which the employer identified actions to be taken. An updated Job Hazard Analysis (JHA) was also recently completed.

[19] Mr. Bolduc states in his affidavit that concerns raised by BSOs regarding the arming issue had been addressed and continue to be addressed by the CBSA and Transport Canada. In particular, Transport Canada has made a number of improvements on top of its existing regime to address new and emerging threats, such as new enhanced screening technology; enhancements to employee background check (criminal association and perpetual vetting); implementation of stronger access control procedures with biometric Restricted Area Identity Card; and introduction of non-passenger screening. Additionally, Transport Canada requires airport authorities to convene and consult on local security threats and risk with airport security partners (including CBSA) through a Multi-Agency Advisory Committee.

[20] Mr. Bolduc also states that, as a result of an agreement between the CBSA and Transport Canada, BSOs are authorized to carry defensive equipment (including firearms) when transiting through the terminal to operate on the airport apron (including baggage sorting area); in the cargo facilities; in the hangers for private flights; and up to four hours when deployed from an armed mode to carry out work at the air terminal building. While this temporary authorization is in place, the CBSA is confident that all necessary measures are in place to ensure the health and safety of employees. I point out that the respondent does not share this last view.

[21] Mr. Bolduc stresses that the Lighthouse report is not relevant to the health and safety issues concerning BSOs employed at MCIA. The Lighthouse report focuses on facility security, and he states that the ministerial delegate never made clear the purpose of disclosure of the Lighthouse report, other than by a broad reference to health and safety of employees, as required by the Code.

[22] Finally, it is established that the CBSA has given notice to the Attorney General of Canada pursuant to section 38 of the Canada Evidence Act (the CEA) in relation to the Lighthouse report. Mr. Bolduc’s affidavit produces a letter from Ms. Catheryne Beaudette, Director and General Counsel of the National Security Group of the Department of Justice, by which she acknowledges receiving such a notice on December 17, 2018, and authorizes the applicant to disclose the fact that such notice was given, as authorized by subsection 38.03(1) of the CEA. Relevant excerpts of section 38 of the CEA read as follows:

[23] This takes us to the application of the three-fold test mentioned above that must guide the exercise of my discretion under subsection 146(2) of the Code.

Is the question to be tried serious as opposed to frivolous or vexatious?

[24]Regarding this first element of the test, there is little dispute that the questions raised by the appeal are serious and genuine questions, and that the appeal is not frivolous or vexatious. The question of whether the Lighthouse report is a “report” within the meaning of paragraph 125(1)(z.11) of the Code is a threshold question going directly to the application of the obligation set out in that provision.

[25] The appeal also raises important questions relating to the confidentiality of the information contained in the Lighthouse report, namely whether parts of that report contain sensitive or potentially injurious information. The disclosure of such information, if that is the case, is governed by an elaborate statutory framework set out in the CEA.

[26] I am of the view that the first element of the test is met.

Would the applicant suffer significant harm if the direction is not stayed?

[27] The applicant submits that the direction under appeal failed to address the legitimate issue regarding the sensitive and confidential nature of the documents requested. The applicant stresses that the alleged contravention relates to the production of a document to the WHSC as opposed to a danger direction, and that neither the complainant or the ministerial delegate have explained how the requested documents are linked to the role of the WHSC or to the health and safety of employees in that particular work place. These are all factors that need to be assessed against the harm which the full disclosure of the documents, as required by the direction, would cause.

[28] The applicant further stresses that there are specified public interest concerns regarding fully disclosing the Lighthouse report and those concerns should be addressed appropriately. The immediate disclosure of the Lighthouse report would cause irreparable harm if those concerns were eventually to be confirmed on the merits.

[29] Finally, the applicant points out that there does not seem to be any immediacy to the request for the Lighthouse report. In light of the time which transpired between the original request for the documents and the date of issuance of the direction, there would appear to be no urgency to disclose the Lighthouse report to the WHSC.

[30] The respondent replies that it is unclear what harm the applicant would suffer if the documents were disclosed to the WHSC. The applicant states in broad terms that the documents are sensitive and could “potentially upset the delicate balance” allowing measures to be put in place to address the arming issue, but it does not clearly lay out what specific harm would result from the disclosure. The ministerial delegate has repeatedly asked the applicant to explain how the sharing of the Lighthouse report would prove injurious to the applicant’s operations, without success.

[31] The respondent also points out that members of the WHSC all have secret level clearance in accordance with federal government policies. As part of their responsibilities, they conduct examinations and make decisions that are specific to national security interests and they are under strict obligations to protect sensitive information from being disclosed.

[32] Finally, the respondent stresses that the length of time between the original request by the complainant and the date of direction should not be a factor in support of the application, as that delay is due, at least in part, to the applicant’s lack of cooperation with the ministerial delegate.

Decision of the second element of the test

[33] The appeals officer’s discretion must be exercised in a manner consistent with the objectives of the Code. However, I must not ignore the broader legislative framework within which the obligations of the Code must be understood, including the protection of information relating to national security and the proper functioning of the legal system supporting such protection.

[34] I am persuaded that the applicant would suffer significant harm if the direction were not stayed.

[35] First, the applicant is an agent of the Government of Canada and is subject to the laws of Parliament in its operations, as is the ministerial delegate. The applicant cannot ignore legislative provisions for the protection of information that is obtained in the course of its operations, whether personal information or relating to the protection of the wider public interest and the proper functioning of government.

[36] The employer states that some or all of the information contained in the Lighthouse report is sensitive or potentially injurious within the meaning of section 38 of the CEA, that its disclosure threatens a specified public interest (section 37 of the CEA) and constitutes a Cabinet confidence (section 39 of the CEA). The evidence on the record establishes that notice was given, and received, pursuant to subsection 38.01(3) of the CEA. Section 38.02 of the CEA prohibits any person from disclosing the information to which the notice is related, at least until such time as the matter is dealt with in accordance with the CEA.

[37] The fact that notice was given under section 38.01 of the CEA and is presently being considered by the Attorney General of Canada under that act, in my view, is determinative of the present application. Denying the stay would be ignoring the requirements of the provisions of the CEA, which are of public interest and are binding on the applicant, the ministerial delegate and the appeals officer altogether. Compliance with the direction would result in the immediate disclosure of the Lighthouse report before any of those public interest issues are debated and determined in accordance with the applicable statutory framework. Compliance may, in fact, result in a breach of those provisions, a breach that could not be cured by the outcome of the appeal, even if it were to be in the applicant’s favour. Applying the test to this situation, I find that this would cause significant prejudice to the applicant, which is accountable, as agent of government, to ensure the protection of the public interest restrictions that may attach to the Lighthouse report referred to in the direction. Immediate compliance with the direction would be irreversible, and the appeal, whose very central issue is whether the report should be disclosed to the WHSC, would be prejudged and rendered without purpose as a result.

[38] With respect to the other types of public interest objections raised by the employer (sections 37 and 39 of the CEA), I am of the view that those matters are best addressed by a process where appropriate procedural safeguards to ensure that restrictions imposed by law to the disclosure of certain types of information are properly applied. I note that there is a threshold issue to be determined as to whether the Lighthouse report is a “report” within the meaning of the Code. I make no finding on that question at this stage. While I accept the suggestion, for the purpose of the stay, that the Lighthouse report may somehow address issues that touch on employees’ safety at airports, the final determination of this question is best left to the merits of the appeal in light of all the considerations I set out above.

[39] I am also persuaded by the argument that there does not seem to be any particular urgency involved in the situation that led to the issuance of the direction. The dispute appears to be related to a longstanding and ongoing policy issue between the applicant and its employees regarding the carrying of a firearm at airports. The ministerial delegate’s investigation lasted over a period of more than eight months. I acknowledge the respondent’s submission that that such a delay was, at least in part, due to the applicant. Nevertheless, nothing on the record shows any urgency or the need for an immediate response to the situation at hand.

[40] I also consider the nature of the direction against the alleged harm to the applicant. The direction does not relate to a situation of danger where the health and safety of employees may be jeopardized and where measures to correct the hazard are needed in the short term. What is at issue here is providing full access to the WHSC to a report alleged to relate to health and safety of employees. No specific hazardous situation, occurrence or risk for employees which the Lighthouse report may or may not address is identified at this point. In Canadian National Transportation Limited, 2013 OHSTC 15, I expressed the following view:

[41] I have applied this reasoning in Termont Montréal Inc. v. Syndicat des Débardeurs, SCFP, section locale 375 and Syndicat des Vérificateurs, ILA Local 1657, 2015 OHSTC 7, at paragraph 30. It is not evident on the record to what extent the communication of the Lighthouse report to the WHSC would serve to eliminate or reduce a work place hazard for BSOs, in light of the roles attributed to various entities other than CBSA in relation to airport security. In any event, this matter is best debated in a hearing on the merits of the appeal.

[42] For the reasons set out above, I subscribe to the applicant’s argument that, in the circumstances of the present case, the prejudice suffered by the applicant is significant and outweighs the inconvenience for the WHSC not to have full access to the Lighthouse report until the appeal is dealt with on the merits. I find that the second element of the test has been met.

What measures will be put in place to protect the health and safety of employees or any person granted access to work place should the stay be granted?

[43] The applicant submits that there are sufficient mitigation measures in place at MCIA to address the arming issue, as explained by Mr. Bolduc in his affidavit. The applicant also refers to the agreement between Transport Canada and the applicant to authorize BSOs to carry defensive equipment when transiting through the terminal.

[44] The respondent submits that it is not possible to fully comment on whether measures in place are sufficient to protect health and safety of employees if a stay is granted, precisely because the contents of the Lighthouse report remains unknown to the complainant and the respondent. The respondent also stresses that the appeals officer’s discretion must be exercised in a way that supports the objective of the Code. A fundamental principle of the Code is the right for employees to participate in the prevention of workplace injuries and illnesses. As part of his work on the WHSC, the complainant is seeking to see a copy of the risk assessment reports in order to evaluate potential health and safety risks in the workplace, and be able to address any existing risks.

[45] For the reasons that follow, I am persuaded by the applicant’s submissions regarding the third element of the test, in the present circumstances.

[46] While the respondent is right to point out the importance of the employees’ right to participate through the establishment of WHSC among other fora, such a right is not absolute and must be informed by the broader legislative framework within which the operations of federal undertakings, in this case the Public Service of Canada, operate.

[47] That being said, Mr. Bolduc has described in his affidavit a number of measures designed to enhance employee safety and security in their workplace at airports. The primary responsibility for matters of security at airports lies with Transport Canada, under the statutory provisions cited earlier in these reasons. The security measures adopted by Transport Canada include new enhanced screening technology, enhancements to employee background check (criminal association and perpetual vetting), implementation of stronger access control procedures with biometric Restricted Area Identity Card and introduction of non-passenger screening. Transport Canada also requires airport authorities to convene and consult on local security threats and risk with airport security partners (including the CBSA) through a Multi-Agency Advisory Committee.

[48] Mr. Bolduc also makes reference to an agreement between the CBSA and Transport Canada regarding a temporary authorization for BSOs to carry firearms and other defensive equipment while in the terminal. At this juncture, the only evidence that such an agreement addresses a core issue regarding health and safety of BSOs working at airports and mitigates a job-related risk for BSOs, is Mr. Bolduc’s sworn affidavit. This evidence is not contradicted and stands as prima facie evidence that the status quo, as described by Mr. Bolduc, addresses the concern that led the complainant to seek the ministerial delegate’s involvement in obtaining a copy of the Lighthouse report.

[49] I have no reason to find otherwise at this juncture of the proceedings. In the absence of compelling evidence establishing otherwise (such as in cases of a perceived hazard or danger), appeals officers have accepted that status quo was acceptable in supporting the third element of the test (Bell Canada, 2011 OHSTC 1; Richardson Pioneer Limited, 2016 OHSTC 8, at paragraph 16; and Menzies Aviation Fuelling Canada Ltd., 2018 OHSTC 6, at paragraph 25). In fact, in the face of Mr. Bolduc’s affidavit, it would not be appropriate for me to speculate on the nature of additional measures the employer ought to take to protect the safety and health of employees, without having heard the totality of the evidence relating to the work place in question, the operations of the employer, the specific concerns raised by employees and the extent to which the Lighthouse report is linked to those factors.

[50] Finally, Mr. Bolduc states that, in any event, the Lighthouse report will not address any residual risks perceived or identified by employees. Not having seen the Lighthouse report, the ministerial delegate made no finding on that question in her investigation report. Likewise, I have no basis upon which to find otherwise at this juncture. That issue will appropriately be examined and determined on the merits of the appeal.

Decision

[51] For the reasons set out above, the application for a stay of the direction issued on December 3, 2018 by Ms. Crystal Lloyd, as ministerial delegate, is granted and the stay ordered until the final disposition of the appeal.

Pierre Hamel
Appeals Officer