Archived - Decision: 97-014-FC CANADA LABOUR CODE PART II OCCUPATIONAL SAFETY AND HEALTH

Review under section 146 of the Canada Labour Code,

Part II, of a direction issued by a safety officer

Decision No.: 97-014-FC

Applicant: Correctional Service Canada

Leclerc Institution

Laval, Quebec

Represented by: Serge Doyon

Respondent: Canadian Union of Public Employees

Represented by: Pierre Blouin

Mis-en-cause:Pierre Morin

Safety Officer

Human Resources Development Canada

Before: Serge Cadieux

Regional Safety Officer

Human Resources Development Canada

This case was initially heard on July 22, 1997 in Laval, Quebec. The regional safety officer rendered a decision in this matter (Decision No. 97-014) on October 8, 1997. Through the Attorney General of Canada (AGC), Correctional Service Canada applied for a judicial review of the regional safety officer’s decision by the Federal Court. On September 9, 1998, the Court rendered its decision, which is identified as follows: AGC v. Mario Lavoie, Court file No. T-2420-97. The Honourable Marc Nadon J. held as follows:

[28][TRANSLATION] Consequently, the regional officer’s decision must be rescinded. The file will be returned to him so that he can render a new decision on the assumption that no danger existed when the safety officer conducted his investigation on April 24, 1997. The applicant’s request for judicial review will therefore be allowed.

Decision

In view of the decision by the Federal Court in AGC v. Mario Lavoie, Court file No. T-2420-97, I decide that, when the safety officer conducted his investigation on April 24, 1997, no danger existed. For this reason and under the authority vested in me by subsection 146(3) of the Canada Labour Code, Part II (hereinafter “the Code”), I RESCIND the direction (APPENDIX) issued on April 29, 1997 under paragraph 145(2)(a) of the Code by Safety Officer Pierre Morin to Correctional Service Canada.

Decision rendered on October 9, 1998.

Serge Cadieux

Regional Safety Officer

APPENDIX

PART II - OCCUPATIONAL SAFETY AND HEALTH

DIRECTION TO THE EMPLOYER UNDER PARAGRAPH 145(2)(a)

On 24 April 1997, the undersigned safety officer conducted an investigation following the refusal to work made by Mario Lavoie in the work place operated by CORRECTIONAL SERVICE CANADA, being an employer subject to the Canada Labour Code, Part II, at 400 MONTÉE

ST-FRANÇOIS, LAVAL, QUEBEC, the said work place being sometimes known as the Leclerc Institution.

The said safety officer considers that a condition in the work place constitutes a danger to an employee while at work:

The transfer of two inmates in administrative segregation to cells in the regular cell block, without sufficient assessment of their security profile by an expert and without the necessary or adequate additional security measures, constitutes a danger of attack to the correctional officers who have to work there.

Therefore, you are HEREBY DIRECTED, pursuant to paragraph 145(2)(a) of the Canada Labour Code, Part II, to protect any person from the danger immediately.

Issued at Montreal, Quebec, this 29th day of April 1997.

[signed]

PIERRE MORIN (MONTREAL)

Safety Officer

1901

TO: CORRECTIONAL SERVICE CANADA

LECLERC INSTITUTION

400 MONTÉE ST-FRANÇOIS

LAVAL, QUEBEC

H7C 1S7

SUMMARY OF REGIONAL SAFETY OFFICER DECISION

Decision No.: 97-014-FC

Applicant: Correctional Service Canada

Respondent: Canadian Union of Public Employees

KEYWORDS:

Segregation, administrative segregation, specific procedure, inmates, medium-security institution, inherent danger, person, qualified person, risk, judicial review, Federal Court.

PROVISIONS:

122(1), 128(2)(a), 128(2)(b), 145(2)(a), 146(3).

SUMMARY:

A safety officer conducted an investigation at Leclerc Institution, a medium-security penitentiary, following the refusal by a correctional officer to handle inmates confined in another area of the penitentiary, i.e. administrative segregation, in the regular cell block. The safety officer decided that it was dangerous for the correctional officer, when alone, to open the door to two inmates from segregation who were subject to the same punitive conditions as in segregation. The segregation procedure stipulates that no cell door is to be opened unless two correctional officers are present. The safety officer determined that these two inmates should be subject to the same procedure as in segregation because their temporary stay in the regular cell block should be considered an extension of segregation. The two inmates had been placed in the regular cell block only to free up space in segregation because of crowding. The Regional Safety Officer agreed with the safety officer because, in his opinion, there was no specific procedure for handling inmates from segregation in the regular cell block.

The Regional Safety Officer initially varied the direction but, following the judicial review of his decision and the Federal Court ruling ordering him to find that no danger existed when the safety officer conducted his investigation, RESCINDED the direction.