Date: 20040526
Docket: T-1207-02
Citation: 2004 FC 767
Ottawa, Ontario, May 26, 2004
Present: THE HONOURABLE MADAM JUSTICE GAUTHIER
BETWEEN:
JUAN VERVILLE
Applicant
and
SERVICE CORRECTIONNEL DU CANADA,
INSTITUTION PENITENTIAIRE DE KENT
Respondent
REASONS FOR ORDER AND ORDER
[1] On September 24, 2001, Mr. Verville and 15 other correctional officers working in the living units A to H at the Kent maximum security penitentiary in British Columbia refused to carry out their duties because of an alleged danger created by a recent order restricting their ability to carry handcuffs at their discretion (ss. 128(1) of the Canada Labour Code, R.S. 1985 c. L-2 ("the Code")).
[2] A health and safety officer determined that Mr. Verville and his colleagues were not in danger as this expression is defined in the Code, but he ruled that the Correctional Service of Canada ("CSC") was in contravention of s. 124 of the Code by not allowing those officers to carry handcuffs at their discretion.
[3] Both decisions were appealed. The health and safety officer's decision with respect to the absence of danger was confirmed. His finding of contravention of s. 124 of the Code was reversed.
[4] Mr. Verville seeks judicial review of these two decisions of the appeal officer on the basis that he did not properly construe the new definition of danger in the Code and he ignored evidence, particularly with respect to the increased risk of injury in longer struggles with prisoners. With respect to the s. 124 decision, it is urged that he applied the wrong standard of proof and again, ignored evidence, particularly as to whether or not the unavailability of handcuffs has ever led to injury and with respect to the impact of carrying a personal paging device ("PPA") on the risk faced by correctional officers.
I. Background
[5] Before reviewing the decision itself, it is worth noting that the order given to Mr. Verville on or about September 24, 2001, was sent to ensure strict compliance with the Dynamic Security Model[1] applied by the CSC and the CSC's directive No. 567-3 that applies to all correctional facilities regardless of their level of security.
[6] It is not clear when this directive was adopted, but what is clear is that it was not strictly implemented before September 2001 at the Kent penitentiary. In effect, it appears from the report of the health and safety officer that in the past, at that institution, most of the correctional officers wore handcuffs at their discretion even if not everybody had the same practice. While some officers wore them all or almost all the time, others wore them only some of the time, depending on the level of aggressiveness displayed by the inmates and the perceived level of risk on any given day.
[7] It also appears, from the various testimonies before the appeal officer, that correctional officers who have actually been involved in violent altercations with inmates were more likely than others to wear handcuffs regularly. In that respect, the Court notes that Correctional Officer Hnetka, who has worked for six years at the Kent penitentiary, was wearing handcuffs as a matter of course all the time for about a year and a half to two years prior to the hearing, particularly as a result of an incident where she witnessed an officer being injured because, in her opinion, she was not equipped with handcuffs.
[8] Correctional Officer Bussey, who has worked at Kent penitentiary since April 1996, has been wearing handcuffs since an incident in 1997, where he allegedly suffered an injury as a result of handcuffs not being immediately available to restrain an inmate.
[9] Correctional Officer Peck testified that he has been wearing handcuffs since an incident which happened about four years before the hearing and which involved an inmate attacking two correctional officers both of whom suffered injuries.
[10] Correctional Officer Maclean has been working for fourteen years at the Kent penitentiary and started carrying handcuffs after witnessing an incident which allegedly made him realize that he needed to maximize the tools available to him.
[11] Correctional Officer Verville had been working at the Kent penitentiary for three years and started wearing handcuffs at all times when he began working in the living unit A (about 18 months prior to the hearing). He was personally involved in an incident in late August 2001 during which he felt that he avoided injury because he was carrying his handcuffs. He testified that carrying handcuffs was the norm for the correctional officers.
[12] Also, at the time of the hearing before the appeal officer, the correctional officers working in living unit J, the segregation and disassociation unit, were allowed to routinely wear handcuffs as were the correctional supervisors referred to as the K-12, whose duties are to visit each living unit at least one time during their shift, to check on the segregation unit and to attend to most inmate movements.
[13] In addition, two pairs of handcuffs are available in each of the four control post bubbles positioned between the living units and overseeing two units each. Although the officer in each of those control bubbles, is not allowed to leave his post, it is expected that, if need be, a correctional officer responding to a PPA could run down to the nearest bubble to get handcuffs.
[14] On September 25, 2001, the Assistant Deputy Commissioner of the Pacific Region wrote a memorandum to the wardens of the Pacific Region advising them that correctional supervisors were not entitled to carry handcuffs or any form of restraining equipment as a routine practice and that they should be immediately ordered to cease to do so. The memorandum also indicates that the only approved procedure for distribution of handcuffs is following an individual risk assessment that would warrant their use. However, it confirms that the Deputy Commissioner approved the issuance of handcuffs to officers working in a segregation living unit but that such practice should be properly documented in the "Post Order".
[15] Although this was not discussed at the hearing, it appears that on November 8, 2001, a risk assessment was made with respect to the routine issue of restraining equipment at the Kent penitentiary. Presumably, this assessment was done to regularise the fact that even after the September 25 memorandum, Warden Urmson had authorized the correctional supervisors designated at K-12 to routinely wear handcuffs.
[16] This document confirms that the likelihood of physical confrontation of such supervisor with an inmate in that function is high and that "in some cases, the supervisor designated as K-12 could be the first officer on the scene of a PPA response". The assessment concludes that it is reasonable and recommended that the current practice of routinely issuing handcuffs to such supervisors be continued.
[17] The report also deals with the post of correctional officers working in living units A to H and confirms the position taken in the order of September 24, 2001. It states:
Potential Risk - The likelihood of confrontation with inmates on this post is high. There are times when the officer may be left in the unit alone to accommodate inmate meal line supervision, staff relief for meal breaks and any administrative requirement that would necessitate the second officer leaving the unit. The officers assigned to this post are provided back up coverage by the adjoining unit and from the officer in the Unit Control Post. Each officer is assigned with a PPA[2]. They are not issued portable hand held radios. They have direct communication with the Unit Control Post through the use of the intercom. The Unit Control Officer can listen in on all conversations in the living unit office and unit ranges through the intercom to assess any potential risks or danger. It is expected and required that staff continually monitor and assess the mood of the inmates and potential for danger through effective dynamic security practices. Further risk assessments for the Living Unit Posts are identified on pages 21, 22 & 23.
Recommendation - The need to routinely carry O/C Spray, batons or handcuffs by the officers assigned to the Living Unit Post is not necessary. Ongoing risk assessment to monitor potential danger is currently in place. In the event that it is determined that there is an elevated level of risk, staff, in consultation with the Correctional Supervisor and/or Unit Manager have the ability to obtain O/C Spray, handcuffs or batons to address the risk. In the event that this equipment is issued, it must be justified in writing to the Institutional managers.
[18] On appeal, no independent expert evidence was filed to support the position that the measures in place were insufficient or that the unavailability of handcuffs would likely result in injury to the correctional officers. However, several officers testified that it was their professional opinion that this was so. Those opinions were mostly based on their involvement in prior incidents which led to injury of correctional officers.
[19] There appears to be little or no debate that the measures in place at the time of the hearing of the appeal, would be sufficient to deal with situations where it is possible to predict an increase in the level of aggressiveness of the inmates. In such cases, as mentioned in the risk assessment, it would be possible to obtain in advance a special permission to wear handcuffs. As Correctional Officer Noon-Ward put it in his testimony (see transcript at pages 134-135):
[...] So as far as having the handcuffs on you, yes, it's great to say, "Well, today the place is hot so we are going to let you wear handcuffs" or "Today is a green day so nobody wears handcuffs", but it doesn't cover those spontaneous incidents which can occur when you need the handcuffs immediately on your person to deal with the situation.
[20] Mr. Verville claims that since the order of September 24, the measures in place are inadequate to deal with the increased risk of injury in case of spontaneous assaults. Those are, by nature, unpredictable and the right to seek permission becomes irrelevant. Mr. Verville claims further that the other measures in place are not sufficient because i) there are many corners where no visual monitoring can take place, ii) the K-12 supervisor will often not be the first on the scene to respond to a PPA and iii) any other officer responding will have to run to the nearest bubble to get handcuffs and then return with the consequence that the officer involved in the assault will have to struggle longer without any mean of restraint.
[21] Warden Urmson acknowledged that during an altercation, physical control can be gained and lost more than once within 20 to 30 seconds. He also agreed that such situations can conceivably result in harm to either the inmate or the officer that could have been avoided had restraining equipment been available (pages 437-438 of the transcript). He also testified that he was not aware of any specific incident where the unavailability of handcuffs had resulted in injury [3].
[22] Warden Urmson also stated at page 414 of the transcript:
There is always going to be the occasion where there is a spontaneous eruption by an offender. That is why we have an availability of cuffs in the bubble.
[23] Thus, with respect to the first appeal, the only area where the parties clearly disagree is whether the time required to get handcuffs from the bubble or from a K-12 supervisor in the course of a spontaneous assault creates a potential condition or hazard or constitutes a future activity that could reasonably be expected to cause injury, and if so, whether it is nevertheless excluded from the application of s. 128(1) because it constitutes a normal condition of employment of correctional officers such as Mr. Verville (s. 128(2)(b)).
II. Analysis
A. Standard of Review
[24] In her recent decision in Martin v. Canada (Attorney General),2003 FC 1158, [2003] F.C.J. No. 1463 (T.D.) (QL), Tremblay-Lamer J., using the pragmatic and functional approach recommended by the Supreme Court of Canada, determined that the question of whether or not there was danger as defined in the Code in a particular situation was a mixed question of fact and law, which would normally be subject to the patent unreasonableness standard because it is very much fact-intensive.
[25] However, because the definition of danger has recently been amended and had never been judicially considered, she held that, exceptionally, the mixed question of fact and law before her was more law-intensive and should be reviewed on the reasonableness simpliciter standard.
[26] I agree with this analysis of my learned colleague. I also believe that, in the present case, the mixed question of fact and law under review involves a critical legal component. The appeal officer in this case was the same as in Martin, supra. He based the decision before me on the legal interpretation he developed in his decision in Parks Canada Agency v. Doug Martin and the Public Service Alliance of Canada (Canada Appeals Office, Decision No. 02-009, May 23, 2002), which was before Tremblay-Lamer J. inMartin, supra and which he had issued just one month before. I will thus review his determination of whether or not there was a danger in this particular case on the standard of reasonableness simpliciter.
[27] As to the alleged error with respect to the standard of proof applied by the appeal officer, this is a question of law for which appeal officers do not have any special expertise and which does not call for any special deference. But I do not have to determine whether I should apply the standard of reasonableness or correctness because I conclude that the decision is correct in that respect. With respect to pure findings of facts, the standard of review will be patent unreasonableness.
B. Danger and the Refusal to Work under s. 128(1) of the Code
[28] The relevant portions of subsections 128(1) and (2) state:
| Canada Labour Code, R.S. 1985 c. L-2
Refusal to work if danger 128. (1) Subject to this section, an employee may refuse to use or operate a machine or thing, to work in a place or to perform an activity, if the employee while at work has reasonable cause to believe that [...]
(b) a condition exists in the place that constitutes a danger to the employee; or (c) the performance of the activity constitutes a danger to the employee or to another employee.
No refusal permitted in certain dangerous circumstances
(2) An employee may not, under this section, refuse to use or operate a machine or thing, to work in a place or to perform an activity if
[...]
(b) the danger referred to in subsection (1) is a normal condition of employment. |
|
Code canadien du travail, S.R. 1985 Ch. L-2
Refus de travailler en cas de danger 128. (1) Sous réserve des autres dispositions du présent article, l'employé au travail peut refuser d'utiliser ou de faire fonctionner une machine ou une chose, de travailler dans un lieu ou d'accomplir une tâche s'il a des motifs raisonnables de croire que, selon le cas_: [...]
b) il est dangereux pour lui de travailler dans le lieu;
c) l'accomplissement de la tâche constitue un danger pour lui-même ou un autre employé.
Exception
(2) L'employé ne peut invoquer le présent article pour refuser d'utiliser ou de faire fonctionner une machine ou une chose, de travailler dans un lieu ou d'accomplir une tâche lorsque, selon le cas_:
[...]
b) le danger visé au paragraphe (1) constitue une condition normale de son emploi.
|
|
|
|
|
[29] The expression "danger" in s. 128 above is defined in subsection 122(1) of the Code. As mentioned, it was amended, in September 2000, and now reads as follows:
| "danger" « _danger_ »
"danger" means any existing or potential hazard or condition or any current or future activity that could reasonably be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected, or the activity altered, whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity, and includes any exposure to a hazardous substance that is likely to result in a chronic illness, in disease or in damage to the reproductive system; |
|
« _danger_ » "danger"
« _danger_ » Situation, tâche ou risque - existant ou éventuel - susceptible de causer des blessures à une personne qui y est exposée, ou de la rendre malade - même si ses effets sur l'intégrité physique ou la santé ne sont pas immédiats -, avant que, selon le cas, le risque soit écarté, la situation corrigée ou la tâche modifiée. Est notamment visée toute exposition à une substance dangereuse susceptible d'avoir des effets à long terme sur la santé ou le système reproducteur. |
|
|
|
|
[30] Before this amendment, subsection 122(1) stated:
| "danger means any hazard or condition that could reasonably be expected to cause injury or illness to a person exposed thereto before the hazard or condition can be corrected. |
|
« danger » risque ou situation susceptible de causer des blessures à une personne qui y est exposée, ou de la rendre malade, avant qu'il ne puisse y être remédié. |
|
|
|
|
[31] As was recently explained by the Federal Court of Appeal in Canada (Attorney General) v. Fletcher, 2002 FCA 424, [2003] 2 F.C. No. 475 (C.A.), the pre-amendment Code was intended to insure that immediate work would not expose an employee to a dangerous situation. "It is the short-term well-being of an employee which is at stake" (paragraph 18 of Fletcher, supra).
[32] With the addition of words such as "potential" or "éventuel" and future activity, the Code is no longer limited to specific factual situations existing at the time the employee refuses to work.
[33] In his decision, the appeal officer states that he relies on his decision in Parks Canada Agency, supra, where he found that:
"In order to declare that danger existed at the time of his investigation, the health and safety officer must form the opinion, on the basis of the facts gathered during his investigation that:
- the future activity in question will take place [See Note 2 below];
- an employee will be exposed to the activity when it occurs; and
- there is a reasonable expectation that:
- the activity will cause injury or illness to the employee exposed thereto; and,
- the injury or illness will occur immediately upon exposure to the activity.
Note 2: This first condition is redundant in cases where the health and safety officer has established that the activity is taking place at the time of his investigation.
(Emphasis added.)
[34] The above statement is not entirely accurate. As mentioned in Martin, supra, the injury or illness may not happen immediately upon exposure, rather it needs to happen before the condition or activity is altered. Thus, here, the absence of handcuffs on a correctional officer involved in an altercation with an inmate must be reasonably expected to cause injury before handcuffs are made available from the bubble or through a K-12 supervisor, or any other means of control is provided.
[35] Also, I do not believe that the definition requires that it could reasonably be expected that every time the condition or activity occurs, it will cause injury. The French version « susceptible de causer » indicates that it must be capable of causing injury at any time but not necessarily every time.
[36] In that respect, I do not believe either that it is necessary to establish precisely the time when the potential condition or hazard or the future activity will occur. I do not construe Tremblay-Lamer's reasons in Martin above, particularly paragraph 57, to require evidence of a precise time frame within which the condition, hazard or activity will occur. Rather, looking at her decision as a whole, she appears to agree that the definition only requires that one ascertains in what circumstances it could be expected to cause injury and that it be established that such circumstances will occur in the future, not as a mere possibility but as a reasonable one.
[37] In Martin, supra, no specific set of facts had been presented and the refusal to work rested essentially on the general job description. In that sense, it was purely hypothetical, whereas here, the exact set of facts which could be expected to cause injury has been defined as a spontaneous assault on a correctional officer who does not carry handcuffs.
[38] In view of the above, the definition used by the appeal officer was flawed but I still have to determine if this had a material effect on his decision. As I said before, I must satisfy myself, after a somewhat probing examination, whether the reasons given by him support his conclusion.
[39] In the present instance, the reasons are brief. They read as follows:
9. There is no indication in the instant case that the employees would be exposed to an activity that would cause injury to them. It is true that they were required to work amongst prisoners incarcerated in a maximum security facility, but there was no specific threat or occurrence that night that might reasonably be thought to cause injury. There was also no information that anything out of the ordinary was going to occur in the foreseeable future. The concern of the refusing correctional officers was that an assault can happen at any time without warning. That concern is based primarily on the unpredictability of the inmates' behaviour. The testimonies of correctional officers were eloquent on this point.
10. In a maximum security environment, such as the Kent Institution, the risk of being assaulted is always present, and is inherent to a correctional officer's job (see the Federal Court decision of Canada v. Lavoie [See Note 3 below]. Thus, there is an inherent risk of being assaulted without warning in such an environment. In order to find that a danger existed, it would have to be demonstrated, based on the facts gathered during the health and safety officer's investigation, that there was a reasonable expectation that injury was likely to occur to those correctional officers' carrying out their current or future duties. This reasonable expectation should not be based on hypothesis or conjecture. Furthermore, the employees argue that the injury would occur because the correctional officers are not permitted to carry handcuffs at their discretion. This has not been demonstrated.
___________________________________________________________________
Note 3: Canada (Attorney General) v. Lavoie, [1998] F.C.J. No. 1285, FCT-2420-97
11. The employees alleged that by not being permitted to carry handcuffs, the length of a potential struggle with an inmate would be lengthened, thus increasing the possibility of injury. This argument is based on a further possibility of a struggle, as well as the unproven hypothesis that a longer struggle carries an increased risk of injury. As I have expressed previously in Parks Canada and wish to stress, the concept of "danger" as defined in the Code is unique in that it only applies in exceptional circumstances and is a concept that is strictly based on facts. Like the Parks Canada case, this case is based on the unpredictability of human behaviour, a concept that I have said is not in harmony with the concept of danger as defined in the Code. I find that the risk that the correctional officers faced on September 24, 2001 was nothing other than the risk inherent to their work.
[40] I understand the above to mean that:
i) the fear of spontaneous assaults could not amount to a danger as defined in the Code because it was based on the unpredictability of inmates' behaviour not on evidence of a specific and immediate threat or occurrence at the time of the refusal to work or in the foreseeable future (paragraphs 9 and 11 above);
ii) in a maximum security environment, spontaneous assaults constitute an inherent risk of the job of these correctional officers (paragraph 10 and 11 above); and
iii) reasonable expectation of injury cannot be based on hypothesis or conjecture. Here, spontaneous assaults on officers not carrying handcuffs, could not reasonably be expected to cause injury because the argument is based on an unproven hypothesis that a longer struggle causes an increased risk of injury (paragraph 11 above).
[41] With respect to i) in paragraph 40 above, the customary meaning of "potential"[4] or "éventuel"[5] hazard or condition does not exclude a hazard or condition, which may or may not happen based on unpredictable human behaviour. If a hazard or condition is capable of coming into being or action, it should be covered by the definition. As I said earlier, one does not need to be able to ascertain exactly when it will happen. The evidence is clear that in this case, spontaneous assaults are indeed capable of coming into being or action.
[42] In the risk assessment report concerning the routine issue of restraint equipment dated November 8, 2001, the potential risk of confrontation between correctional officers working in the living units and the inmates is said to be high (page 20) and the risk of assault is of low frequency but high severity (page 21) [6]. As indicated, Warden Urmson confirmed that such assaults were expected to occur and that was why handcuffs were available in the bubble.
[43] Thus, if those assaults could reasonably be expected to cause injury, they will come within the definition of danger. However, if that danger constitutes a normal condition of his employment, the employee will not have the right to rely on it to refuse to work (s. 128(2)(b)). But, that is very different than saying that unpredictability of inmates' behaviour is alien to the concept of danger in the Code.
[44] With respect to iii) in paragraph 40 above, and the appeal officer's conclusion that the employees' argument that a longer struggle increases the risk of injury is based on an unproven hypothesis, the applicant referred the Court to various extracts of the transcript to support the view that the appeal officer ignored the evidence. I only need to refer to one example, the testimony of Correctional Officer Hnetka, who said (at page 189 of the transcript):
[...] but I got back with the handcuff and we got them on him and he was under control. If one of us would have been (sic) on our person we would have had him under control a lot faster and the one officer would not have been injured and been off work.
[45] When cross-examined by the respondent's counsel, she added (at page 201 of the transcripts):
Mr. Newman: [...] But you indicated that if handcuff had been available there would have been no injury. How can you say that?"
Ms. Hnetka: Because I know the officers that I was working with and I know that well, and I know that they would have been cuffed immediately.
Mr. Newman: Even if he had been jumped?
Ms. Hnetka: I know that he would have been cuffed. I work with those --
Mr. Newman: How can you say that?
Ms. Hnetka: Because I know the officers and have worked with them for a lot of years and I know them.
[...]
Mr. Newman: By saying that if handcuffs there would have been no injury, you are just speculating on that. Is that correct?"
Ms. Hnetka: No, I am not speculating. I am saying it as a fact.
Mr. Newman: Okay. But the fact is because you know the officer.
Ms. Hnetka: The fact is that he would have been controlled a lot faster and wouldn't have had the chance to keep fighting and the officer wouldn't have been injured. He would have been under control.
[46] It is trite law that reasons are not to be read microscopically but as a whole to determine if the decision-maker had a good grasp of the issues raised and the evidence presented. Also, it is generally presumed that the decision-maker considered all the evidence even though there is no specific reference to it in the decision.
[47] However, in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (T.D) (QL), the Court reviewed when one could come to the conclusion that a finding of fact was made without regard to the evidence. The more central the evidence is to the issue to be decided, the greater the obligation on the decision-maker to deal with it specifically. This is particularly so when the evidence contradicts the decision-maker's own conclusion.
[48] The Court cannot avoid noting that in addition to saying that the increased risk was an unproven hypothesis, the appeal officer also said at paragraph 21 of his decision that:
i) there is no evidence that the unavailability of handcuffs, due to correctional officers not carrying them on their person, has ever led to injury. (my emphasis)
[49] Because he was dealing with the same evidence, this finding even if made in the context of the second appeal, appears relevant to understanding whether the appeal officer had a good grasp of the evidence and how he may have otherwise concluded that the argument of an increased danger was based on an unproven hypothesis.
[50] In the circumstances, the Court is not satisfied that the appeal officer considered the opinion expressed by the correctional officers based on their experience particularly that of Correctional Officer Hnetka. This evidence was clearly on point and we have no idea how it was dealt with.
[51] Finally, the Court notes that there is more than one way to establish that one can reasonably expect a situation to cause injury. One does not necessarily need to have proof that an officer was injured in exactly the same circumstances. A reasonable expectation could be based on expert opinions or even on opinions of ordinary witnesses having the necessary experience when such witnesses are in a better position than the trier of fact to form the opinion. It could even be established through an inference arising logically or reasonably from known facts.
[52] Turning now to the conclusion in ii) at paragraph 40 above that the risk was inherent to the applicant's employment, the applicant concedes that his job description involves a risk of possible hostage taking, injury or danger when dealing with violent and hostile offenders. But he
argues that the order given to him on September 24, was a variation of his normal conditions of employment and constitutes an increase of the risk or danger described above. The applicant relies on the Public Service Staff Relations Board's decision in Fletcher v. Treasury Board (Solicitor General Canada - Correctional Service), [2000] C.P.S.S.R.B. No. 58; Danberg and Treasury Board (Solicitor General Canada), [1988] C.P.S.S.R.B. No. 327 and Elnicki v. Loomis Armored Car Service Ltd, 96 di 149, CLRB Decision No. 1105, in which the Board acknowledged, in the context of refusals to work by correctional officers and security guards, that even though risk of injury or death was a normal condition of employment for these employees, an increased danger resulting for example from a change in the employer's policy (such as minimum staffing), was not automatically excluded under paragraph 128(2)(b) [7].
[53] There is no indication in the decision under review that the appeal officer considered this argument. His finding appears to be based on the simple fact that a risk of assault is always present in an environment such as the Kent penitentiary. As mentioned, he could not evaluate if the increased risk of injury was a normal condition of employment because he did not consider it to be more than an unproven hypothesis.
[54] There appears to be little jurisprudence from this Court on this issue. In Canada (Attorney General) v. Lavoie, [1998] F.C.J. No. 1285 (T.D.) (QL), cited by the appeal officer, the argument with respect to an increased risk over and above the normal conditions of employment was not raised, nor did the Court consider the decisions of the Board referred to by the applicant, two of which were issued after the decision in Lavoie, supra (see paragraph 52 above).
[55] The customary meaning of the words in paragraph 128(2)(b) supports the views expressed in those decisions of the Board because "normal" refers to something regular, to a typical state or level of affairs, something that is not out of the ordinary. It would therefore be logical to exclude a level of risk that is not an essential characteristic but which depends on the method used to perform a job or an activity. In that sense and for example, would one say that it is a normal condition of employment for a security guard to transport money from a banking institution if changes were made so that this had to be done without a firearm, without a partner and in an unarmoured car?
[56] Obviously, these reasons should not be construed as giving any indication or opinion as to whether or not in this particular case, the circumstances fall within paragraph 128(2)(b).
[57] In my opinion, the decision under review is unreasonable, in particular in that the appeal officer failed to consider evidence on a core issue on which his final conclusion rests. Therefore, I find that the decision must be set aside and that the appeal should be redetermined by a different appeal officer.
C. Contravention to Section 124 of the Code
[58] As mentioned, at paragraph 21 of his decision, the appeal officer stated that "there is no evidence that the unavailability of handcuffs, due to correctional officers not carrying them on their person, has ever led to injury". The Court does not accept that this statement is accurate. If it was meant to refer only to evidence to which the decision-maker gave any weight, in view of the evidence on file, particularly the testimony of Correctional Officer Hnetka referred to above, he should have explained, even if succinctly, on what basis he came to that conclusion. His failure to consider this evidence constitutes a reviewable error. This finding was therefore patently unreasonable.
[59] At the hearing, the respondent argued that this error should not be considered material for the appeal officer had already concluded that there was no contravention under s. 124 because in his opinion, the employer had taken all reasonable steps to insure the employee's health and safety.
[60] The Court notes that in its written argument, the respondent said that the finding at paragraph 21 was of major importance. I agree with the respondent's initial position because as is clearly indicated by the appeal officer at paragraph 24, in order to determine if an employer has taken the necessary steps to mitigate the risk, one needs first to properly assess that risk.
[61] The Court is not satisfied that if the appeal officer had considered all the evidence in respect of the increased risk of injury arising from the unavailability of handcuffs because correctional officers did not carry them on their person, his conclusion would have necessarily been the same. This is especially so when one considers that the risk assessment referred to in the decision does not specifically discuss the risk of injury in the event of a spontaneous assault where the first officer to respond to a PPA is not the K-12 supervisor.
[62] The applicant's second argument that the appeal officer used the wrong standard or test to assess the evidence under section 124 is based on paragraph 20 of the decision where the officer states:
It can be said that the employer could always do more and provide more to protect its employees. However, in Westcoast Energy v. Cadieux, the Federal Court made it clear that s.125 (and by extension, s.124) of the Code did not impose legal obligations on the employer beyond a certain minimum standard. This reasoning has been followed by decisions such as Canadian National Railway v. Scully, where regional safety officer (now appeals officer) D. Malanka concluded that in order for a contravention of s.124 to exist, the evidence must be "compelling to show that an extra level of protection is needed to protect the health and safety of employees". Mr. Malanka, in another, more recent, decision, stated that in order to require the installation of safety equipment (in this case, a fire prevention system), he must be convinced that that equipment is necessary to protect the health and safety of the employees, and that, on a balance of probabilities, the current safety measures were inadequate to protect employees. (my emphasis)
[63] The applicant relies particularly on the emphasized words above to say that the standard applied was too high. However, it is worth noting that the appeal officer also adds at paragraph 19 and 24:
19. In the instant case, the employer has, in my opinion, taken all reasonable steps to ensure the employees' health and safety. [...]
24. [...] Despite the fact that there are inherent risks to the job, the employer is responsible for taking measures to ensure that any job or duty is free from unnecessary risks [...]
[64] The parties cited no decision from this Court dealing with the standard of proof under s. 124 other than the one in Westcoast Energy Inc. v. Canada (Labour, Regional Safety Officer), [1995] F.C.J. No. 1584 (T.D.) (QL)[8] referred to in the decision under review. In that case, Cullen J. did not analyze this question and in my opinion, he never said that s. 125 (or by extension s. 124) did not impose any legal obligation beyond a certain minimum standard.
[65] In that case, he found that the obligation to ensure that an employee is familiar with and uses safety equipment (s. 125(v)) was not breached when the employer had provided the safety equipment, mandated its use, provided training and was holding monthly safety meetings. There was no evidence to support a finding that that employer knew or should have known that the employees involved in an incident were not using the safety equipment as mandated, even though they had it with them (paragraphs 29 to 31 of Westcoast Energy Inc., supra).
[66] The regional safety officer's finding that there should also have been random inspections to ensure compliance with the employer's policy was simply not supported by the evidence. It was not a question of standard but a question of whether it had been established that such
inspections constituted a reasonable step that a reasonable employer would have carried out in the circumstances of that case.
[67] In Canadian National Railway v. Scully, [2001] C.L.C.R.S.O.D. No. 3 (QL), at paragraph 35, also referred to in the decision, the regional safety officer, D. Malanka, had in evidence before him safety measures imposed by regulations adopted after full consultation with the Canadian railway industry. In that context, he said that he would need compelling evidence to find that those safety measures were not sufficient to meet the requirements of s. 124. I do not construe his decision as meaning that such compelling evidence is generally required to find a violation of s. 124. This was an exceptional case where the applicable norm of reasonable diligence was pretty much set out in the regulations before him. It should not be extended in my opinion to general policies established by employers, public or private, without careful consideration as to how these policies were developed and how they represent the norm in their industry.
[68] As to the other statements made by the appeal officer at paragraphs 19, 20 and 24, I construe them to mean that an employer must take reasonable steps to identify the health and safety risks in the workplace and once a risk has been identified, either through a risk analysis, a complaint by an employee or otherwise, he must take reasonable steps to eliminate or minimize it as much as reasonably possible.
[69] Thus, reviewing the decision as a whole even if some of his comments are questionable, I am not satisfied that the appeal officer applied the wrong standard or test.
ORDER
THIS COURT ORDERS that:
the decision of the appeal officer dated June 28, 2002, is set aside and the appeal of the decision of the health and safety officer with respect to the correctional officer's refusal to work under s. 128 of the Code, as well as the appeal with respect to s. 124 of the Code, shall be redetermined by a different appeal officer.
"Johanne Gauthier"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1207-02
STYLE OF CAUSE: JUAN VERVILLE and
SERVICE CORRECTIONNEL DU CANADA,
INSTITUTION PENITENTIAIRE DE KENT
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: September 4, 2003
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MADAM
JUSTICE GAUTHIER
DATED: May 26, 2004
APPEARANCES:
James Baugh FOR THE APPLICANT
Harvey Newman
Richard Fader FOR THE RESPONDENT
SOLICITORS OF RECORD:
James Baugh FOR THE APPLICANTS
McGrady, Baugh & Whyte
Vancouver, British Columbia
Morris A. Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
[1] As mentioned in the decision, this model mandates the removal of traditional symbols of authority in interactions between prisoners and correctional officers apparently to increase the officers' safety.
[2] Warden Urmson testified that only one of the two correctional officers working in each unit carries a PPA and Correctional Officer Hnetka testified that only one correctional officer wears a PPA in the meal line.
[3] With respect to the Dynamic Security Model and the idea that avoiding display of authority symbols reduces the risk of injury to correctional officers, Warden Urmson testified that he was not aware either of any incident where handcuffs were used against an officer or where such symbols of authority incited violence.
[4] "potential": capable of coming into being or action. The Canadian Oxford Dictionary (Don Mills, Ontario: Oxford University Press, 2001) at 1134.
[5] "éventuel": Qui peut se produire si certaines conditions se trouvent réalisées. Qui peut ou non se produire. Le Nouveau Petit Robert (Dictionnaires le Robert - Paris, 1993) at 947.
[6] There were 12 hazardous occurrence investigation reports filed in the previous year where officers were actually injured in altercations with inmates.
[7] The decisions here referred to an relied upon by the applicant (and the decision cited by the appeal officer) were made in relation to s. 128(2)(b) as it was before the amendment in 2000 when the section included the words "inherent in the employee's work" as well as the current words "a normal condition of employment". That change was not commented by counsel for the parties when this matter was heard and it has no significance for this decision.
[8] Referred in the appeal officer's decision as Westcoast Energy v. Cadieux.