2019 OHSTC 11

Date: 2019-05-13

Case No.: 2015-22

Between:

Correctional Service of Canada, Appellant

and

Robert Aldred, Respondent

Indexed as: Correctional Service of Canada v. Aldred

Matter: Appeal under subsection 146(1) of the Canada Labour Code of a direction issued by an official delegated by the Minister of Labour

Decision: The direction is rescinded.

Decision rendered by: Mr. Peter Strahlendorf, Appeals Officer

Language of decision: English

For the applicant: Caroline Engmann, Counsel, Department of Justice

For the respondent: Himself

Citation: 2019 OHSTC 11

Reasons

[1] This matter concerns an appeal from a direction issued pursuant to paragraph 145(2)(a) of the Canada Labour Code (Code) on October 1, 2015, by Mr. Lewis Jenkins, official delegated by the Minister of Labour (ministerial delegate). The ministerial delegate issued the direction after his investigation of the respondent’s refusal to do dangerous work pursuant to section 128 of the Code. The appeal is allowed. What follows are the reasons supporting that decision.

Background

[2] The respondent, Mr. Robert Aldred, is a Correctional Manager (CM) employed by the appellant, Correctional Service of Canada, at the correctional facility Beaver Creek Institution-Medium (the institution). On September 16, 2015, the respondent engaged in a work refusal because he was not allowed to carry oleoresin of capiscum (OC) spray. This spray is used to deter or subdue a threatening inmate. In his work refusal statement, the respondent said the employer’s failure to provide him with adequate personal protective equipment (PPE) constitutes a danger.

[3] On September 10, 2015, an inmate was informed that he was to be transferred to a different institution. The respondent was present at the meeting as the CM for the living unit the inmate resided in. As anticipated, the inmate did not receive the news well, becoming physically disruptive, and had to be subdued by staff. During the physical handling of the inmate, the respondent injured his knee.

[4] On October 1, 2015, the ministerial delegate issued a direction pursuant to paragraph 145(2)(a) of the Code. The direction reads as follows:

In the matter of the Canada Labour Code
Part II - Occupational Health and Safety
Direction to the employer under paragraph 145(2)(A)

[5] The employer appealed the direction on October 26, 2015. The appellant seeks to have the direction rescinded pursuant to paragraph 146.1(1)(a) of the Code for 2 reasons:

• 1) the question whether CMs should be issued the OC spray is a policy question which should not be addressed through the work refusal procedure under section 128 of the Code
• 2) the situation the respondent was in at the time of the work refusal did not amount to a “danger” under the Code and therefore should not be subject to the work refusal procedure

[6] The appellant’s also states that if it is found that the respondent faced a situation of danger on the day of his work refusal, then it was a normal condition of employment, and so, under subsection 128(2) of the Code was not subject to a work refusal.

[7] The appeal hearing was held in Toronto from January 30 to February 1, 2018, and on March 8, 2018. It is noted that the respondent was not represented by counsel.

[8] It is the appellant’s position that the direction should be rescinded. It is the respondent’s position that the ministerial delegate’s direction should be affirmed.

Issues

[9] The issues to be determined are:

• 1) Was the appellant’s decision that CMs not carry OC spray a policy decision, and as such, a decision not subject to a work refusal?
• 2) Was the situation the respondent was in on the day of his work refusal a “danger”?
• 3) If the situation represented a “danger”, then was it a normal condition of employment, and so, not subject to a work refusal?

Appellant’s Submissions

[10] According to the appellant, there are 2 main reasons why the danger direction should be rescinded:

• 1) the respondent’s concern was for a policy issue–should CMs carry OC spray–and as such was not the proper basis for a work refusal
• 2) the situation the respondent was in at the time of his work refusal did not amount to a “danger” as defined in the Code, and as such was not the proper basis for a work refusal

[11] In terms of the facts, the appellant states that the respondent was present at the meeting of September 10, 2015, with the potentially disruptive inmate in his capacity as a CM. The inmate became physically uncooperative as anticipated and had to be physically subdued by staff. There were correctional officers (COs) present who were “primary responders”. These COs carried OC spray. One CO did pull his OC spray from its holster but did not use it. While the appellant states that the respondent injured his knee during the physical handling of the inmate, the appellant does not believe the knee injury was a result of an inmate assault.

[12] On September 15, 2015, the respondent submitted a section 127.1 complaint regarding the issue of CMs carrying OC spray. Section 127.1 of the Code reads as follows:

[13] In the subsections following 127.1, there is a process to be followed. If the employee and supervisor cannot resolve the matter, the workplace health and safety committee investigates. If the matter is still not resolved, the matter can be taken to the Minister who shall then investigate. Following the investigation, the Minister may issue a direction under subsection 145(1) or 145(2), or refer the matter back to the workplace parties to resolve. This process was not followed as the respondent almost immediately engaged in a work refusal under section 128.

[14] The appellant’s portrayal of the facts can be summed up as follows:

• 1) at the time of the respondent’s work refusal, “there were no disturbances, no particular tensions in the complex and there had been no recent threats to staff”
• 2) a national survey of inmate assaults on staff showed that, across Canada, 20 out of 682 incidents over a five year period involved CMs
• 3) CMs are not “first responders”. They do not carry OC spray. During a crisis situation, CMs provide leadership and direction
• 4) the job descriptions of COs and CMs are distinct; they have different roles and responsibilities. It is the combination and integration of CO and CM roles that results in the risks from hazards being minimized

[15] The first issue addressed by the appellant was whether a “danger” existed at the time of the work refusal. The appellant cited Canada (Correctional Service) v. Ketcheson, 2016 OHSTC 19 (Ketcheson) as providing a three-prong test to be applied to the definition of “danger”:

[16] The appellant notes that the facts and the reasoning in Ketcheson are similar to the present case. In Ketcheson, the main concern was whether a CM should carry OC spray and handcuffs. The ministerial delegate was the same in Ketcheson and the present case. I was the appeals officer in Ketcheson (I will normally refer to myself in the third person).

[17] The appellant agrees with the conclusion of the appeals officer in Ketcheson that “a potentially violent inmate” could be a hazard or the “exposure to a potentially violent inmate without being provided with PPE (personal protective equipment)” could be a hazardous condition. As in Ketcheson, the appellant agrees that the first part of the three-prong test is met in the present case.

[18] In Ketcheson, the circumstances did not satisfy the second part of the test. The appellant contends that the circumstances in the present case similarly do not meet the requirements of the second part of the test.

[19] The second part of the test requires that the hazard be either an “imminent threat” or a “serious threat”. The appeals officer in Ketcheson defined “imminent threat” and “serious threat” as follows:

[20] The appellant did not dwell on the question of whether the situation faced by the respondent on the day of his work refusal was an “imminent threat” as it appears to be obvious to the appellant that the conclusion of the appeals officer in Ketcheson applies:

[21] The appellant was more concerned to show that the situation in the present case was not a “serious threat”. On this question, the appeals officer in Ketcheson concluded:

[22] It is the appellant’s position that a similar conclusion should be reached in the present case; that the respondent did not face a “serious threat” at the time of his work refusal. The appellant’s argument in support of that position consisted largely of criticism of the ministerial delegate’s reasoning that, since COs are faced with sufficient risk that they must carry OC spray, then CMs must also carry OC spray because CMs work in the same area as COs.

[23] The appellant argued that:

• 1) COs are “first responders” and CMs are not and so do not need OC spray because they do not face the same risks as COs
• 2) parole officers, nurses and psychologists work in the same area as COs and there is no suggestion that they carry OC spray
• 3) there is multiple officer response to a situation and the COs carry OC spray, with the implication that it is therefore not necessary for CMs to also carry OC spray
• 4) the threat of an inmate assault on a CM is effectively managed through a variety of controls put in place by the employer

[24] Aside from the position that the situation the respondent faced on the day of his work refusal was not a “danger”, the appellant cites the case of Attorney General of Canada v. Fletcher, 2002 FCA 424 (Fletcher) for the principle that policy issues should not be the subject of work refusals. The appellant stated:

[25] Contrary to the Federal Court of Appeal’s view, the respondent was using the work refusal provisions to bring a policy disagreement to a head and was seeking to receive a decision from a ministerial delegate to resolve such policy dispute.

[26] In Ketcheson, the appeals officer did not address the third part of the three-prong test because the second part of the test had not been satisfied. The third part of the test is whether the threat to life or health exist before the hazard or condition can be corrected or the activity altered.

[27] In the event that it is concluded in the present case that the second part of the test has been satisfied–there was a “danger”–the appellant answered the third question in the affirmative. In support, the appellant described a number of control measures that would mitigate the threat before it could manifest itself. The appellant provided details about control measures such as:

• 1) training
• 2) procedures
• 3) personal protective equipment
• 4) engagement and intervention strategies

[28] In the event that it is concluded that there was a danger in the respondent’s situation at the time of his work refusal, the appellant further argued that the danger would be a “normal condition of employment” and therefore preclude the respondent from refusing to work, pursuant to paragraph 128(2)(b) of the Code. That subsection reads as follows:

[29] The appellant addressed the question of the remedial scope on an appeal from a danger direction. In the appellant’s view, an appeals officer does not have the authority to issue a contravention direction under subsection 145(1) when dealing with an appeal from a danger direction under subsection 145(2). The reason why the appellant is concerned with this question is presumably because of the manner in which the respondent worded his work refusal statement:

[30] This wording suggests that the respondent believes a contravention of the Code in itself gives rise to a danger with the implication that the appeals officer should address such contravention through a subsection 145(1) contravention direction in addition to affirming the ministerial delegate’s danger direction under subsection 145(2). The remedial scope of an appeals officer’s decision is set out in subsection 146.1(1):

[31] The appellant’s position is that, because subsections (2) and (2.1) of section 145 are mentioned, but subsection (1) of section 145 is not mentioned, a proper interpretation is that the legislature intended that appeals officers have the authority to issue danger directions and not contravention directions.

Respondent’s Submissions

[32] To reiterate, the respondent was not represented by counsel.

[33] The respondent provided some background to his work refusal. A decision had been made that CMs should wear stab resistant vests. The respondent enquired of the employer whether CMs should be issued the same package of PPE as COs. If CMs faced the same dangers as COs such that CMs needed vests, then the respondent believed that CMs should be issued the same PPE, specifically including the OC spray.

[34] The respondent entered into informal communication with senior management in an effort to alleviate his concern. After initially being told that CMs could not carry OC spray, that decision was reversed for a few months, allowing CMs to carry OC spray, and then reversed again, prohibiting OC spray.

[35] Following the previously mentioned incident involving the use of force to restrain an unruly inmate, wherein the respondent alleges his knee was injured, the respondent decided to take more formal steps to resolve the matter. He made a complaint pursuant to section 127.1 of the Code; the internal complaint resolution process. After meeting with his employer’s representatives, it became apparent to the respondent that his complaint would not be properly investigated and would not be resolved in his favour. At that point, he exercised his right to refuse dangerous work pursuant to section 128 of the Code.

[36] The respondent emphasized the significance of the incident with the disruptive inmate. In the respondent’s words:

[37] The respondent’s description of the incident with the disruptive inmate differed from the employer’s description in some respects. The respondent states that there was a normal complement of officers present in the area but there were no officers assigned to the meeting with the inmate. The officers present in the unit were not designated as “first responders”; that role was assigned to the Inmate Movement Coordinators. The respondent says officers drew but did not deploy their OC spray only after the inmate had attempted to assault an officer and had fled the room and then been cornered in the laundry room. The respondent states that his knee injury was the direct result of subduing an inmate who was in the process of assaulting a fellow CM in the laundry room.

[38] The respondent was critical of the national survey of assaults on staff that indicated that 20 of 682 incidents involved assaults on CMs. He said the survey was flawed because, as admitted by the appellant’s witness, the reports of assaults are not tracked by rank.

[39] The respondent is of the view that the appellant’s argument that CMs do not need OC spray because they are not “first responders” obscures the fact that CMs respond to the scene of incidents and they are in immediate proximity to events. While agreeing that the role of CMs is to lead and direct the response, at times CMs are directly involved in the use of force.

[40] The respondent disagrees with the appellant’s argument that the job descriptions of COs and CMs are so different that the carrying of OC spray by CMs should be prohibited. He says that the role of the CM is more akin to that of the CO than any other position. He says both COs and CMs are visibly distinct from other staff because they both wear the uniform of the Correctional Operations Group. CMs are almost always promoted from the ranks of COs. CMs directly supervise the activities of COs and therefore they are present with COs during range patrols, cell searches, supervising inmate movement, medication parades, recreation supervision, and other activities. CMs work in the same space as COs and are in direct contact with inmates.

[41] The respondent reiterated his belief that, at the time of his work refusal, a condition of danger existed due to the nature of his work in direct contact with inmates. His belief was informed by his 25 years of experience during which he has witnessed many incidents of violent behaviour by inmates and during which he has been assaulted several times by inmates. In the words of the respondent:

[42] On the issue of whether the respondent engaged in a work refusal in order to deal with a policy issue, as alleged by the appellant, the respondent’s position in his own words is:

[43] On the question of whether the danger faced by CMs is a normal condition of employment, and therefore not the basis for a work refusal, the respondent’s position is that it is not a normal condition of employment. The respondent referred to the Labour Program’s publication 905-1-IPG-070, titled Interpretations, Policies and Guidelines, which defines a “normal condition of employment” as “the result after every hazard has been identified, eliminated, reduced, controlled or provided protective clothing, equipment, devices or materials to employees to protect them against it.”

[44] The respondent alleges that because the employer has not taken all reasonable care to mitigate the danger, the hazard of physical assault faced by CMs cannot be considered a normal condition of employment.

[45] The respondent makes the point that the appellant has emphasized that there are administrative controls in place to protect CMs, but that this reliance on administrative controls without providing adequate PPE is contrary to subsection 19.5(1) of the Canada Occupational Health and Safety Regulations:

[46] The respondent notes that the ministerial delegate stated in his investigation report:

[47] The respondent returned to the appellant’s “first responder” argument that CMs are not first responders, as are COs, so CMs do not need OC spray. The respondent’s position is that this issue of who is a “first responder” is irrelevant. He says COs are not issued OC spray on the basis of being first responders. They are issued OC spray based on their level of contact with inmates. The respondent referenced Commissioner’s Directive (CD) 567-4 on this point.

[48] The basis of the ministerial delegate’s direction was his finding that COs and CMs have a similar level of contact with inmates. The respondent cited Canada (Correctional Service) v. Glenn Brown and Kevin Kunkel, 2013 OHSTC 20 (Kunkel) where the appeals officer did not accept the employer’s “first responder” argument on the question of whether CMs should be issued stab resistant vests as are COs. In paragraph 89 of Kunkel, the appeals officer stated:

[49] The respondent also noted that CMs interact with inmates where there is no crisis incident underway. In many circumstances, there is no CO in immediate proximity. Therefore, it is inaccurate to say that CMs can rely on the OC spray carried by COs and thus do not need their own.

[50] On the issue of whether issuing OC spray to CMs might cause confusion about the CM’s role relative to the role of the CO–that carrying OC spray will induce CMs to intervene physically at a time when they should step back and direct COs–the respondent states that the appellant did not provide any evidence to support the allegation of potential role confusion.

[51] The respondent stated that the evidence showed that the majority of use of force incidents are spontaneous. Without denying that CMs lead and direct COs during crisis situations, the respondent referenced the appellant’s expert witness, Mr. Leon Durette, who acknowledged that CMs have a duty to act and may be required to use force at times. At such times, the lack of OC spray would put CMs at a disadvantage.

[52] The respondent requests that the ministerial delegate’s finding of danger and accompanying danger direction be upheld. If there is a finding of “no danger” in the present case, then the respondent requests that I issue a direction requiring the issuance of OC spray to CMs based on the employer’s failure to meet its due diligence obligations under the Code.

Appellant’s Reply Submissions

[53] Overall, the appellant submits that the respondent has failed to show that a “danger” existed at the time of his work refusal, and therefore the ministerial delegate’s direction must be rescinded.

[54] The respondent initiated his work refusal after concluding that the Internal Dispute Resolution Process was futile; the appellant’s position is that the process is effective and efficient. The appellant also contradicts the respondent’s assertion that the employer’s Hazard Prevention Program is ineffective in mitigating any hazards.

[55] The appellant reiterates its position that the question of whether CMs should be equipped with the same tools as COs is a policy issue and as such is not the proper basis for a work refusal. The situation is similar to that in Ketcheson–the respondent engaged in his work refusal in order to bring his issues regarding the employer’s policy “to a head”.

[56] By the ministerial delegate’s logic, parole officers, nurses, wardens, assistant wardens and other staff working in the same area as COs should be issued with the same PPE as COs, including OC spray–an implication that is simply not practical.

[57] The appellant disputes the accuracy of the respondent’s description of the incident with the unruly inmate. The appellant referenced a number of Officer Statement/Observation Reports (OSORs) to support its position that there were COs present during the incident. Even the OSOR of the respondent mentions the presence of two COs.

[58] The respondent’s knee injury was not the result of an inmate assault. If the respondent had been carrying OC spray, it would not have prevented his knee injury.

[59] The methodology used for the statistical report showing the relatively low number of CMs assaulted was described and authenticated during the hearing, and the respondent has not disputed the validity of the numbers presented.

[60] While CMs do not routinely carry OC spray on their persons, when a CM does respond to an incident, the CM can obtain OC spray before attending at the scene.

[61] The respondent stated that he is “in danger every day working in a penitentiary”. If that were true then there is no difference between the day of the work refusal and any other day. The implication is that the respondent would be justified in engaging in a work refusal at any time.

[62] The appellant submitted that the respondent over-emphasizes the use of force as a primary or first option when dealing with potentially violent situations. The appellant noted many options available to staff before physically engaging an inmate, including the use of OC spray. In many use of force situations, OC spray could not be deployed safely due to restricted space.

[63] Although CMs are trained in the use of OC spray, this does not mean they should carry OC spray. CMs receive such training in case they are deployed into a CO’s position, in which case they would be provided with the necessary equipment.

[64] The appellant disagrees with the respondent’s characterization of the response of Mr. Durette to the question of whether removal of OC spray from CMs would put them at a disadvantage in a situation involving inmate violence. Mr. Durette said he was not sure that there would be a disadvantage.

[65] The appellant reiterated its position that an appeals officer under section 146.1 of the Code may issue a danger direction under subsections 145(2) or (2.1), but does not have authority to issue a contravention direction under subsection 145(1).

Analysis

[66] The respondent engaged in a work refusal pursuant to subsection 128(1) of the Code:

[67] The existence of a “danger” is a pre-condition to the proper exercise of the employee’s right to refuse to do dangerous work.

[68] On October 1, 2015, the ministerial delegate, following an investigation, determined that the respondent was exposed to a “danger” and issued a direction under paragraph 145(2)(a) of the Code:

[69] The existence of a “danger” is a key concept in the exercise of the Minister’s power (through the ministerial delegate) to issue a direction to the employer under paragraph 145(2)(a).

[70] The appellant then appealed the direction pursuant to subsection 146(1):

[71] Subsection 146.1(1) of the Code sets out the authority of an appeals officer when a direction concerning a “danger” is appealed. An appeals officer may vary, rescind or confirm the direction:

[72] I must determine if a danger existed at the time of the work refusal. If there was no danger, then I must rescind the ministerial delegate’s direction. The term “danger” is defined in subsection 122(1) of the Code:

[73] The facts and issues in the present case are very close to those in Ketcheson. Hence the reasoning of the appeals officer in the Ketcheson decision largely applies here. That decision provides a three-prong test to be applied to the definition of “danger”:

[74] The questions to be asked as to 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) Will the threat to life or health exist before the hazard or condition can be corrected or the activity altered?

[75] The parties cannot be in disagreement with the conclusion that, based on all the evidence, the respondent, as a CM, on various occasions and for varying lengths of time, could be in a hazardous condition or engaged in a hazardous activity. The job description of CMs indicates that violence from inmates can occur. The evidence showed that CMs had been subject to violence from inmates in the past, although to a relatively lesser degree than other staff. The respondent had been subject to violence in the past. The training of CMs indicated that violence from inmates was expected. The respondent was sometimes engaged in activities with potentially violent inmates.

[76] The next question to be asked is whether these conditions or activities could reasonably be expected to be an imminent threat to the life or health of the respondent on September 16, 2015.

[77] As outlined in Ketcheson, 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 (but 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 will cause an event or exposure; and the probability the event or exposure will cause harm to a person.

[78] There is no doubt that the level of harm from inmate violence can range from minor to severe, but that is not the issue here. There was nothing in the evidence put before me to indicate that there was a reasonable expectation that the respondent would be exposed to violence from an inmate on the day of the work refusal and that he would be harmed through inmate violence. The incident with the unruly inmate occurred five days before the respondent’s work refusal. One cannot extrapolate to say that because there was a particular type of incident on September 10, 2015, that the respondent faced the same situation on September 16, 2015. In the words of the appellant, at the time of the respondent’s work refusal, “there were no disturbances, no particular tensions in the complex and there had been no recent threats to staff”.

[79] As in Ketcheson, the respondent chose to engage in a work refusal at the time that he did, not because there was an imminent threat, but because he was frustrated by the lack of response to his concerns. He was “bringing matters to a head”. The decision of the Federal Court of Appeal in Fletcher is worth setting out at length here:

[80] An appeals officer is not a referee or a mediator for all disputes between the workplace parties. The Code is not designed for “If I can’t get what I want from the workplace I will try the appeals officer”.  Paragraphs 144 to 151 of the Ketcheson decision dealt with this issue of “policy disputes” at length and I adopt that reasoning here.

[81] While the respondent initiated a section 127.1 complaint, he did not give the process a chance to work. He said that his discussion with senior management indicated to him that there would not be a “real investigation” under section 127.1. That is not how the process works under section 127.1. There is an investigation by the workplace health and safety committee. While the respondent is a “manager”, he is still an employee whose concerns should be addressed through the committee. In any event, the section 127.1 process allows for the presence of the ministerial delegate to resolve matters if the committee is unsuccessful. The impression is that the respondent was not serious in his initiation of a section 127.1 complaint.

[82] There was no reasonable expectation that exposure to the hazard, violence from the hazard, or harm from the violence would be occurring within minutes or hours on September 16, 2015. There was no imminent threat to the respondent at the time of his work refusal.

[83] Having answered the question of “imminent threat” in the negative, it is now necessary to determine whether these conditions or activities could reasonably be expected to be a “serious threat” to the life or health of the respondent.

[84] As set out in Ketcheson, 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.

[85] Having reviewed the totality of the evidence put before me, I conclude that the respondent was not exposed to a serious threat to his life or health for the reasons that follow.

[86] In order to conclude that the respondent was exposed to a serious threat to his health or life, the evidence has to show that there was a reasonable expectation that the respondent would be faced in the days, weeks or month ahead with a situation that could cause him serious harm as a result of not being able to carry OC spray on his person.

[87] As in Ketcheson, the respondent did not appear to appreciate the difference between a hazard that is a danger and a hazard that is not. The respondent made reference to several contraventions as being the basis for his assessment of danger. A contravention may or may not be a danger in addition to being a contravention. The respondent made no distinction. The respondent said he was always in a state of “danger”. In a correctional institution, it is obvious that staff are always at risk from inmates to some degree but they are not always in a state of “danger”.

[88] While the evidence presented in this case has made clear that the respondent is exposed to violent inmates in the performance of his regular duties and that the possibility of an assault by an inmate is always present in a correctional institution, I was not presented with any evidence that would serve to demonstrate how the carrying of OC spray would prevent assaults on CMs or would decrease the level of violence from inmates particularly in light of the fact that OC spray is already provided to COs. Moreover, the appellant has provided evidence to establish that numerous measures are in place at the institution to mitigate against risk to CMs and all other staff in the performance of their duties.

[89] The respondent made the argument that the employer has prioritized administrative controls before PPE, and cited the regulations under the Code. The implication is that the employer should provide OC spray before relying on the various measures cited by the employer to reduce risk. It is true that the Regulations state in subsection 19.5(1) that PPE comes before administrative controls, but the Code says otherwise:

[90] Section 122.2 of the Code aligns with established OHS practice. The expression “PPE as a last resort” is a well accepted principle in OHS, the rationale for which can be found in almost any authoritative textbook on OHS practice. Where the Code conflicts with its regulations, the Code takes priority. It is proper for an employer to put in place administrative controls before relying on PPE such as OC spray.

[91] I am therefore not convinced that violent incidents seriously threatening the life or health of the respondent can reasonably be expected to occur if he cannot carry OC spray on his person.  In light of my conclusion with respect to the second branch of the test, I do not need to proceed to the final element of the test.

[92] Based on all of the above, I conclude that the respondent was not exposed to a danger on the day he exercised his right to refuse to work. Given my conclusion on the danger issue, I do not need to consider whether the danger constitutes a normal condition of employment.

[93] Regarding the respondent’s request that I issue a subsection 145(1) contravention direction requiring the issuance of OC spray to CMs even though there was no “danger”, I must decline. Without agreeing with the appellant definitively that an appeals officer cannot issue a contravention direction when the appeal is concerned with a danger decision, I am of the view that where a ministerial delegate has decided, following his or her investigation, not to issue a contravention direction under subsection 145(1) of the Code or identify a contravention to the Code in a danger direction under subsection 145(2), that negative decision is not ordinarily the proper subject of an appeal.

Decision

[94] For these reasons, I rescind the direction issued by the ministerial delegate on October 1, 2015.

Peter Strahlendorf
Appeals Officer