2019 OHSTC 8

A) Appellant's Submissions

[26] I find appropriate to quote the appellant's submissions verbatim and in their entirety as submitted to the Tribunal on January 11, 2019:

B) Respondent's Submissions

[27] Counsel for the respondent first reviews the facts related to the October 14, 2017 incident and of Mr. Hassan's refusal of January 31, 2018. She points out that the agreement between the appellant and the employer regarding accommodations for Mr. Chahal is irrelevant to the present appeal. Counsel stresses that such an agreement was to ensure that Mr. Hassan would not report to Mr. Chahal, and the evidence is clear that he did not.

[28] The appellant must establish that on February 5, 2018, there was a condition in place and that the condition could reasonably be expected to be an imminent or serious threat to his life or health before the condition could be corrected. Counsel sets out the questions that must be answered to make such a determination:

• what was the alleged condition
• on its face, is the alleged condition one that could reasonably be expected to be a threat to the appellant's life or health
• has the appellant met the evidentiary threshold to establish that the alleged condition was objectively a threat to the appellant's life or health
• was any such threat imminent or serious
• was the alleged danger present on the date of the appellant's work refusal

[29] After reviewing the facts established in the evidence with respect to what occurred on January 31, 2018, and October 14, 2017, respectively, the respondent submits that Mr. Hassan clearly exaggerated the severity of the actions towards him.

[30] The respondent notes that the appellant made several references to the employer's failure to accommodate him to be away from Mr. Chahal and to properly investigate his workplace violence complaint. The respondent submits that the issue of whether the employer failed to accommodate the appellant or contravened the provisions of the Code in relation to the investigation of his complaint is not properly before the appeals officer. The respondent disputes that it failed to accommodate the appellant or that it contravened the Code, and argues that these allegations should only be considered in the context of whether Mr. Hassan was facing a danger at the time of his refusal, i.e. whether the presence of Mr. Chahal on January 31, 2018, presented a danger to Mr. Hassan (Correctional Service Canada v. Ketcheson, 2016 OHSTC 19).

[31] The respondent further submits that the test to make a determination of danger is an objective test and this is particularly important where the condition alleged to present a danger is workplace violence and/or harassment (Via Rail Canada Inc. v. Cecile Mulhern and Unifor, 2014 OHSTC 3). There is no evidence that the appellant was objectively exposed to a condition that could reasonably be expected to be an imminent or serious threat and cause injury or illness to the appellant. The evidence shows that the interaction was mere seconds, that no words were exchanged, and that no physical contact was made. The interaction was in a public location in the workplace.

[32] The employer submits that a "sneer", on its face, cannot reasonably be expected to cause harm, injury or illness to the appellant. Counsel acknowledges that the interaction on January 31, 2018, must be examined in light of the previous interaction between the two persons on October 14, 2017, and expresses no doubt as to the sincerity of Mr. Hassan's feelings towards Mr. Chahal and how he felt on the day of the refusal. Even in light of this background, on its face, the alleged condition could not reasonably be expected to cause injury or illness to the appellant. According to the employer, the preponderance of evidence indicates that the incident of October 14, 2017, was not an assault, nor workplace violence. In particular, it is noted that even the formal investigation into the incident found that the claim of workplace violence was unsubstantiated and the WSIB denied the appellant's claim for psychological trauma allegedly resulting from that incident. The respondent concludes that the WSIB finding that any psychological harm experienced by the appellant is not caused by a workplace condition is binding on the appeals officer.

[33] Regardless, the evidence shows that the employer met with the appellant and Mr. Chahal to discuss and review the incident. The evidence further shows that Mr. Burnette took steps to follow up with the other OC Transpo departments who were in involved with the incident, including TOCC and Dispatch. The evidence shows that Mr. Burnette met with the appellant to discuss these results and that the appellant did not object to the employer's response to the incident at the time, nor upon his return to work January 31, 2018. Accordingly, the employer considered the matter resolved.

[34] The respondent also submits that there is no medical evidence supporting the claim that it was dangerous for the appellant to be in the presence of Mr. Chahal, which is the foundation of the appellant's refusal. To establish that a condition was a threat to an employee's health, the jurisprudence before this Tribunal is clear that an employee must provide medical evidence supporting that there was a danger to the employee's health. This is consistent with the requirement that a finding of danger be based on objective, rather than subjective, evidence. This evidentiary requirement is particularly important in cases such as this, where the alleged threat to the employee's health appears to be based on an individual experience and relating to the employee's mental health (Nina Tryggvason v. Transport Canada, 2012 OHSTC 10).

[35] The respondent reviews the concepts of "imminent" and "serious" threat as discussed by the appeals officer in Ketcheson and submits that the evidence did not establish that the employee was exposed to a situation that could cause him serious or imminent harm.

[36] Finally, the respondent submits that in any event, such alleged danger did not exist at the time of the work refusal, on February 5, 2018, and the appeal could be dismissed solely on that ground. Firstly, the appellant was scheduled to return to his regular duties as bus operator on that date, and not to the Pinecrest garage, where the alleged danger existed. Secondly, in the appellant's own words, he was cleared to return to full duties, including seeing Mr. Chahal, after February 3, 2018, as he acknowledged in an email dated March 15, 2018. Consequently, even if the appellant's claim of danger to his health caused by the presence of Mr. Chahal was to be accepted, any such danger no longer existed at the time of his refusal.

Analysis

[37] I am seized of an appeal under subsection 129(7) of the Code of a decision issued by the ministerial delegate following her investigation into the appellant's refusal to work, where she concluded that the appellant was not exposed to a danger (subsection 129(4) and paragraph 128(13)(c) of the Code).

[38] The appellant exercised his right to refuse to work pursuant to subsection 128(1) of the Code, which reads as follows:

[39] "Danger" is therefore the key concept in the exercise of the employee's right to refuse to work and in the exercise of the Minister's power (through a delegated official) to make a determination further to an employee exercising the right to refuse to work. Section 122 defines "danger" in the following manner:

[40] The other provisions of the Code that are relevant to the present appeal are as follows:

[41] Subsection 146.1(1) of the Code sets out the authority of an appeals officer when seized of an appeal:

[42] For the reasons that follow, I conclude that the decision of absence of danger rendered by the ministerial delegate is well founded and I dismiss the appeal.

[43] It has long been stated that the right to refuse to work is an important but exceptional remedy in the panoply of measures provided in the Code to ensure the protection of employees. In Ketcheson, the appeals officer summarizes this point as follows:

[44] Before applying the legal test of danger to the present situation, I will briefly address a procedural matter raised by the respondent at the hearing. At the closure of the appellant's case and before presenting her case at the hearing, counsel for the employer advised that she was prepared to make a motion for non-suit, with or without election. The purpose of the motion, as I understand it, was to dispense the employer from presenting its case on the assumption that the appellant had not met his burden of proof that he was exposed to a danger in the circumstances of his refusal. The employer would nevertheless be allowed to present its case should the motion be unsuccessful. The motion is akin to seeking an instant judgement based on the evidence adduced so far at the hearing.

[45] Motions for non-suit are common in criminal proceedings where the prosecution bears the onus of proving the material and intentional elements of an offence, failing which a Court may be called upon to rule from the bench that such an onus has not been met, thereby leading to the acquittal of an accused. That concept has also been imported into labour relations matters involving the imposition of disciplinary action by the employer, who bears the onus of proving just cause for the discipline.

[46] I ruled that such a concept is not relevant in the context of the present appeal proceedings and did not entertain the motion. I declined to rule whether Mr. Hassan's appeal had met the prima facie threshold to be successful. The appeals officer is master of his procedure, as provided by paragraph 146.2(h) of the Code, which reads as follows:

[47] No particular party bears the onus of proof in an appeals procedure. This has been stated in a number of appeal decisions since Canadian Freightways Ltd v. Canada (Attorney General), 2003 FCT 391. Rather, the appeals officer must inquire into the circumstances of the decision and the reasons for it, as mandated by subsection 146.1(1) of the Code, and make findings of facts on a balance of probabilities. I informed counsel for the employer that she is free to decide whether to call or not to call evidence and present her submissions on the basis of the evidence placed on the record so far by the appellant and recorded in the ministerial delegate's investigation record. In light of my ruling and following a brief recess, counsel for the employer elected to present evidence and called Mr. Burnette to testify.

[48] The legal test to be applied to determine whether an employee is exposed to a danger, as this concept is defined in the new definition of "danger" that came into force on October 31, 2014, was discussed extensively in the Ketcheson decision referred to by the employer and the factors to be analyzed around that concept may be outlined 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. will the threat to life or health exist before the hazard or condition can be corrected or the activity altered

[49] Since then, appeals officers have been consistent in applying the interpretation of the concept of danger developed in Ketcheson (see: Keith Hall & Sons, 2017 OHSTC 1 (Keith Hall & Sons), Arva Flour Mills Limited, 2017 OHSTC 2; Brink's Canada Limited v. Dendura, 2017 OHSTC 9; Correctional Service of Canada v. Laycock, 2017 OHSTC 21; Teamsters Local Union No. 419 v. GardaWorld Cash Services Canada Corporation, 2018 OHSTC 2; Correctional Service of Canada v. Courtepatte, 2018 OHSTC 9; Madysta Télécom Ltée, 2018 OHSTC 12; Zimmerman v. Correctional Service of Canada, 2018 OHSTC 14).

[50] That approach to determining the existence of a danger was also considered by the Federal Court in Canada (Attorney General) v. Laycock, 2018 FC 750. After outlining the legal test as I have set out above, the Court states as follows:

[51] The first question then is to identify the "condition" which is alleged to present a threat to Mr. Hassan's life or health. What is the situation that caused Mr. Hassan to refuse to work? This takes us to the need to define the scope of the appeal, as there is a sequence of events occurring over a number of months that were invoked by Mr. Hassan to justify his contention that he was exposed to a danger when he refused to work.

[52] In terms of the immediate cause, the refusal stems from an "interaction" between Mr.Hassan and Mr. Chahal that occurred on January 31, 2018, at the Pinecrest garage of the OC Transpo. I have set out a detailed description of the encounter between the two individuals earlier in the present reasons. In short, the evidence presented by Mr. Hassan — Mr. Chahal did not testify — establishes that Mr. Chahal "sneered" at him as he was exiting the washroom and Mr.Chahal was entering. Mr. Hassan described the "sneer" as a look and a humming sound uttered by Mr. Chahal. There was no physical contact, no words were exchanged, no gesture made. The interaction lasted a few seconds.

[53] I have difficulty characterizing this situation as a threat. A reasonable person observing the scene is not likely to conclude that this encounter constituted a threat to one's health. In Ketcheson, the appeals officer defined "threat" as follows:

[54] I also note that Mr. Hassan did not refuse to work immediately after this encounter. He reported the situation on the following day. He consulted his physician on February 2, 2018, and was cleared to resume his normal duties as a bus operator. He was not scheduled to work until February 5, 2018, which is when he made his refusal, without any apparent relationship with the work or working conditions under which he was to resume his regular duties on that day. Therefore, looking at the circumstances prevailing between January 31 and February 5, 2018, there is simply no basis upon which to conclude that Mr. Hassan was exposed to a danger.

[55] However, it is clear that the encounter of January 31, 2018, must be viewed in its proper context and cannot be examined in isolation. Mr. Hassan explains that this apparently innocuous interaction jeopardized his health because Mr. Chahal is the person against whom he made a work place violence complaint further to the incident of October 14, 2017.

[56] The evidence establishes that Mr. Hassan was indeed traumatized by the incident of October 14, 2017, which caused him to be absent on medical leave for an extended period of time. As a result, the employer agreed to avoid, to the extent possible, placing the two employees in situations where they would interact with each other. The incident of October 14, 2017, is not within the scope of the appeal and is only relevant for the purpose of providing context to the work refusal of February 5, 2018. It is relevant in order to determine whether the mere presence of Mr.Chahal could objectively be seen as a threat to Mr. Hassan's health, as a result of this past event.

[57] It is not for me to make a finding on the circumstances of the incident of October 14, 2017. The evidence presented at the hearing establishes that the matter was addressed by the employer at the time and appeared to have been resolved further to Mr.Burnette's letter to the appellant dated November 2, 2017. Subsequently, the matter was investigated by a "competent person" under the process established by subsection 20.9(3) of the Regulations, as a result of the ministerial delegate's intervention. The competent person found Mr. Hassan's complaint against Mr. Chahal to be unsubstantiated. The WSIB did not accept Mr.Hassan's claim for injury on duty, thereby implying that there was insufficient evidence establishing a causal link between a work place event and any psychological consequences experienced by Mr. Hassan.

[58] Taking into account all of these factors, and even accepting Mr. Hassan's own description of the incident, I have great difficulty in concluding objectively that Mr. Hassan was subjected to an act of violence in the work place, let alone an act that would justify his contention that he was exposed to a danger by the mere presence of Mr. Chahal three months later in the circumstances described in the evidence. My conclusion might have been different had it been established that Mr. Hassan had been the victim of a serious and aggravated assault by Mr. Chahal and had the latter shown signs of hostility towards Mr. Hassan at the time of the refusal. This is far from being the case, as all accounts of the incident of October 14, 2017, point to an inadvertent and unfortunate physical contact between the two individuals, rather than assault or work place violence.

[59] I reiterated the need to apply an objective test to the concept of danger in VIA Rail Canada Inc. v. Cecile Mulhern and Unifor, 2014 OHSTC 3, as follows:

[60] In order to reach a conclusion of danger in those circumstances, very clear and compelling medical evidence would have been required. None was presented by the appellant. I agree with employer's submissions that, in order to establish that a condition was a threat to an employee's health, the Tribunal's jurisprudence is quite clear that an employee must provide medical evidence supporting that there was a danger to the employee's health. This is consistent with the requirement that a finding of danger be based on objective, rather than subjective, evidence. This requirement is particularly important in cases such as the present appeal, where the alleged threat is based on an individual experience and relates to the refusing employee's mental health (see: VIA Rail Canada Inc. v. Patel, 2015 OHSTC 4). In Nina Tryggvason v. Transport Canada, 2012 OHSTC 10, the appeals officer reviewed earlier decisions on that point and states as follows:

[61] In light of all the above, I am unable to conclude that the interaction between Messrs.Hassan and Chahal on January 31, 2018, presented a threat to the appellant within the meaning of the definition of "danger". The belief held by Mr. Hassan that he felt unsafe in those circumstances and would be unsafe should he encounter Mr. Chahal again is subjective and hypothetical and does not meet the threshold required to establish the presence of a threat. It may be that the medical issues experienced by Mr. Hassan require accommodation by his employer under human rights legislation or the collective agreement, but those obligations, in my view, fall outside the parameters of the right to refuse set out in the Code (see: Canada Post Corporation and George Stout, 2013 OHSTC 10; Tessier v. Canada Post Corporation, 2017 OHSTC 13). The determination that a danger exists must be based on a set of objective facts leading to that conclusion. The words "reasonably be expected to be" in the definition of "danger" clearly convey the need to form an objective opinion on the presence of a danger at the time of the refusal. There was nothing in Mr. Chahal's demeanour, attitude or action from which I can draw such a conclusion.

[62] On that point, the appeals officer in Keith Hall & Sons stated as follows:

[63] In his submissions, the appellant stresses that the employer was unresponsive when he requested the assistance of the SCU after the alleged assault on October 14, 2017. He only received such assistance later that day, on his insistence. In his email exchange with the ministerial delegate, the appellant evoked a number of situations where requests for assistance to the SCU were not followed up. This, the appellant claims, caused him to feel unsafe and justified his refusal.

[64] The effectiveness of the employer's responsiveness to requests for assistance is not within the scope of the appeal. It is clearly too remote from the circumstances prevailing on February 5, 2018, to be seen as a contributing factor to the alleged danger complained of by the appellant. As a general observation, it is not inappropriate for the employer to assess the requests for assistance on their face value and prioritize its response based on the apparent seriousness and relative urgency of a particular situation. Suffice it to say that the incident of October 14, 2017, was unlikely to have appeared serious or urgent. In terms of the other incidents of alleged inappropriate response by the employer referred to by Mr. Hassan, I have no context against which to assess their merits. There is no apparent link between such occurrences and the situation at hand and I consider them simply too remote to support Mr. Hassan's claim of imminent danger.

[65] Be it as it may, while Mr. Hassan may have felt unsafe because of his belief that any future request for assistance would not be addressed appropriately, such a belief is entirely speculative and it does not establish that he was objectively in danger at the time of his refusal.

[66] In light of my conclusion that the evidence did not establish that Mr. Hassan was exposed to a condition that could reasonably be expected to be a threat to his health, it is not necessary to go further in the analysis of the other factors comprising the definition of danger under the Code, namely, whether a threat is imminent or serious.

[67] The appellant argues in his submissions that the employer was in breach of the Code by not having his workplace violence complaint investigated in accordance with the requirements of Section XX of the Regulations. He refers to the fact that, because of the ministerial delegate's intervention, the respondent agreed to comply with subsection 20.9(3) of the Regulations and appoint a competent person to investigate the complaint.

[68] Whether the employer contravened the Code in the aftermath of the incident of October 14, 2017, when it dealt with Mr. Hassan's complaint, is not within the scope of the appeal. My task under the present appeal is to determine whether the ministerial delegate's decision of absence of danger is appropriate, in the circumstances of the refusal. I am not seized of the issue of whether the employer properly addressed the workplace violence complaint at the time and this question is, in my view, immaterial to the question that is central to the appeal, i.e. whether the appellant was exposed to a danger on February 5, 2018. This proposition found support in Ketcheson in the following terms:

[69] Finally, Mr. Hassan referred to the employer's failure to honour the accommodation agreement that involved "keeping Mr. Chahal away" from him. In fact, this appears to be the thrust of his reasons for refusing, as his email dated March 13, 2018, tends to illustrate. There were indeed discussions to that effect, in the presence of Mr. Hassan's union representative, namely, Mr. Norman MacDuff, following the incident of October 14, 2017. Mr. MacDuff testified that there was a verbal promise that Mr. Hassan would have "no contact" with Mr. Chahal, or something to that effect. Mr. Burnette testified that he agreed that to the extent possible, the employer would avoid assigning Mr. Chahal to situations involving Mr. Hassan. However, this may not be possible at all times, for example, if Mr. Chahal was the only supervisor on duty. There was — and still is — no medical evidence stating that the mere presence of Messrs. Hassan and Chahal in the same room constitutes a health hazard for Mr. Hassan. Overall, I find the latter description of the mitigating measures to be more plausible. In any event, nothing turns on this point, in my view, regarding the existence or not of a danger: even if the employer had committed to the former, the appellant's submission is more in the nature of a labour relations issue between the parties and does not assist him in establishing that he was exposed to a danger on February 5, 2018.

[70] Lastly, in her final submissions, counsel for the employer argues in the alternative that the danger must be assessed at the time of the refusal, i.e. on February 5, 2018. The interaction between Messrs. Hassan and Chahal occurred on January 31, 2018, at the Pinecrest garage. The justification supporting the refusal had therefore disappeared on the day of the refusal and no such refusal could be made. In my view, that contention is also well founded. The purpose of the refusal provisions is to remove an imminent or serious threat to an employee's health or life. Once that alleged condition disappears (in the present case, Mr. Hassan being in the presence of Mr. Chahal), the reason for the refusal also disappears. Even when they are examined in the most favourable light to Mr. Hassan, his concerns are entirely subjective and speculative and I cannot characterize the situation presented in the evidence as an ongoing condition or a latent threat.

Decision

[71] For the reasons set out above, I confirm the ministerial delegate's decision of absence of danger and dismiss the appeal.

Pierre Hamel

Appeals Officer