Date: 19980909
Docket: T-2420-97
OTTAWA, ONTARIO, THE 9TH DAY OF SEPTEMBER, 1998
| Present: THE HONOURABLE MR. JUSTICE MARC NADON |
IN the matter of an application for judicial review
filed pursuant to section 18.1 of the Federal Court Act;
AND IN the matter of a decision rendered on October 8, 1997
by the regional safety officer under section 146 of the
Canada Labour Code, R.S.C. 1985, c. L-2, in relation to
a review of a direction issued by a safety officer;
AND IN the matter of a direction issued on April 29, 1997
by a safety officer under paragraph 145(2)(a) of the
Canada Labour Code, R.S.C. 1985, c. L-2;
Between:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
MARIO LAVOIE
Respondent
ORDER
The application for judicial review is allowed. The decision of the regional officer dated October 8, 1997 is set aside and the matter will be returned to him for a redetermination on the basis that at the time of the investigation conducted by the safety officer on April 24, 1997, there was no danger.
| "MARC NADON" |
| J. |
Certified true translation
Bernard Olivier
Date: 19980909
Docket: T-2420-97
IN the matter of an application for judicial review
filed pursuant to section 18.1 of the Federal Court Act;
AND IN the matter of a decision rendered on October 8, 1997
by the regional safety officer under section 146 of the
Canada Labour Code, R.S.C. 1985, c. L-2, in relation to
a review of a direction issued by a safety officer;
AND IN the matter of a direction issued on April 29, 1997
by a safety officer under paragraph 145(2)(a) of the
Canada Labour Code, R.S.C. 1985, c. L-2;
Between:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
MARIO LAVOIE
Respondent
REASONS FOR ORDER
NADON J:
[1] The applicant challenges a decision rendered on October 8, 1997 by Serge Cadieux, a regional safety officer ("the regional officer") under section 146 of Part II of the Canada Labour Code (the "Canada Code"), R.S.C. 1985, c. L-2.
[2] The relevant facts are as follows. The respondent, a correctional officer employed by the Correctional Service of Canada, has worked at the Leclerc Institution in the City of Laval since 1988. The Leclerc Institution is a detention centre housing inmates with a medium security classification. One section of the Institution is reserved for administrative segregation and the disciplinary dissociation of certain inmates. There are thirty cells in this section.
[3] On April 21, 1997, two inmates, C and H, were placed in administrative segregation for reasons of discipline within the institution. More particularly, inmate C was placed in administrative segregation because he had been found in a cell whose occupants were manufacturing distilled alcohol. Given his association with the cell"s occupants, the Correctional Service concluded that he was connected "[Translation ] directly to the manufacture of distilled alcohol, thus compromising the security of the institution". Inmate H was placed in administrative segregation following the discovery of an operating still in his cell.
[4] At around 9:30 a.m. on April 24, 1997, given the shortage of cells in the administrative segregation section, C and H were transferred from their cells located in administrative segregation to cells located in the section occupied by the general prison population. Toward the end of the morning of April 24, 1997, the respondent refused to serve the noon meal to inmates C and H on the ground that another correctional officer was not present to assist him when their cell doors were opened.
[5] The respondent, through the correctional officers" union local, immediately took his case to a Department of Labour safety officer who was on the premises on April 24, 1997. The safety officer concluded that there was a "danger" within the meaning of paragraph 128(1)(b) of the Canada Code if the respondent were to open the door of inmates C and H without the presence of a coworker. The safety officer also concluded that this danger did not constitute an inherent danger within the meaning of paragraph 128(2)(b) of the Canada Code. The safety officer thereupon issued the following order to the Leclerc Institution:
| [Translation ] |
| DIRECTION TO EMPLOYER UNDER PARAGRAPH 145(2)(a) |
| On April 24, 1997, the undersigned safety officer conducted an investigation concerning the work refusal by Mr. Mario Lavoie in the workplace operated by CORRECTIONAL SERVICE OF CANADA, an employer subject to Part II of the Canada Labour Code and situated at 40C, MONTÉE ST-FRANÇOIS, LAVAL, QUEBEC, the said place being occasionally referred to by the name of Leclerc Institution. |
| The said safety officer believes that a situation existing in the place constitutes a danger to an employee while at work, namely: |
| The transfer of two inmates with administrative segregation status to cells in the regular detention block, without a sufficient assessment of their security profile by an expert resource person and without adding the necessary or adequate additional security provisions constitutes a danger of assault for those correctional officers who have to work there. |
| Accordingly, you are HEREBY ORDERED, pursuant to paragraph 145(2)(a) of Part II of the Canada Labour Code, to provide protection for persons against this danger forthwith. |
[6] On October 8, 1997, the regional officer upheld the safety officer"s decision that a danger existed at the time when the respondent refused to work. The essence of the decision rendered by the regional officer emerges clearly from pages 11 and 12 of his reasons.
| [Translation] |
| The facts that I find from the safety officer"s investigation are: |
| " that the administrative segregation cells in the regular cell block were different from those in detention since they were regular cells without windows for meal service, which required opening the doors to provide certain services to the two inmates and consequently being in physical contact with them; |
| " that inmates C and H were in "deadlock" 23 hours out of 24, the same procedure as in detention, unlike the other inmates in the regular cell block who moved freely about the range; |
| " that a single correctional officer was to open the door to each of these two inmates, who were undergoing the same punitive regime as in detention, contrary to the security procedure in the detention area, under which the door of a detention cell should be opened only in the presence of two correctional officers; |
| " that although the security classification of the two inmates in question was maintained at medium, there was information missing from the files for these inmates that the case workers thought might affect their security classification and he [the safety officer] did not have this information in order to make an informed decision; |
| " that he thought the time spent by these two inmates in administrative segregation in the regular block was an extension of detention, which was not disputed by the employer, and that the same security rules should apply; and |
| " that the situation investigated by the safety officer was the same as during the refusal by Mr. Lavoie, notwithstanding that the inmates were subsequently returned without incident to detention. |
| Based on the preceding, I am of the opinion that the safety officer made the right decision in this matter given the circumstances. Accordingly, I am of the opinion that the directive was justified. The employer did not in fact adhere to its own detention procedures when inmates C and H were temporarily assigned to administrative segregation in a regular cell block. I am also of the opinion that at the time of the investigation by the safety officer, there was no particular procedure for dealing with cases of detention in a regular cell block, and that this creates a situation that could result in injury to correctional officer Lavoie before it can be remedied, a danger that is not contemplated in my opinion by paragraph 128(2)(b) of the Code. |
| Consequently, when inmates are temporarily placed in administrative segregation in the regular cell block, and until the Correctional Service of Canada has developed a special procedure for dealing with such cases, the detention procedure should still apply, bearing in mind any physical or other deficiencies that may exist. As the safety officer before me stated, if the doors of the two inmates were opened in the presence of two correctional officers, as should be done in detention, "the refusal would not have been upheld." |
| However, the directive refers to the fact that there was not a sufficient assessment of the two inmates by an expert resource person. Although I accept the fact that there was some information lacking in the inmates" files, it has at no point been demonstrated that the assessment of the inmates should have been done by an expert resource person other than the existing one. Accordingly, I will amend the directive by removing this reference. Furthermore, in my opinion it is unnecessary to characterize the danger as a danger of assault, since the absence of a particular procedure for dealing with cases of detention in the regular cell block constitutes a danger that is not foreseen by paragraph 128(2)(b) of the Code. This reference will also be removed from the directive. |
| For all of these reasons, I hereby AMEND the directive issued to the Correctional Service of Canada by the safety officer Pierre Morin on April 29, 1997 pursuant to paragraph 145(2)(a) of the Code, by removing from the directive the following references, namely: "without a sufficient assessment of their security profile by an expert resource person and" and the word "assault". |
[7] The following are the relevant provisions of the Canada Code:
| 124. L"employeur veille à la protection de ses employés en matière de sécurité et de santé au travail . |
124. Every employer shall ensure that the safety and health at work of every person employed by the employer is protected. |
| 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 ou de travailler dans un lieu s"il a des motifs raisonnables de croire que, selon le cas: |
128. (1) Subject to this section, where an employee while at work has reasonable cause to believe that |
| a) l"utilisation ou le fonctionnement de la machine ou de la chose constitue un danger pour lui-même ou un autre employé; |
(a) the use or operation of a machine or thing constitutes a danger to the employee or to another employee, or |
| b) il y a danger pour lui de travailler dans le lieu. |
(b) a condition exists in any place that constitutes a danger to the employee, the employee may refuse to use or operate the machine or thing or to work in that place. |
| (2) L"employé ne peut invoquer le présent article pour refuser de faire fonctionner une machine ou une chose ou de travailler dans un lieu lorsque, selon le cas: |
(2) An employee may not pursuant to this section refuse to use or operate a machine or thing or to work in a place where |
| a) son refus met directement en danger la vie, la santé ou la sécurité d"une autre personne; |
(a) the refusal puts the life, health or safety of another person directly in danger; or |
| b) le danger visé au paragraphe (1) est inhérent à son emploi ou en constitue une condition normale. |
(b) the danger referred to in subsection (1) is inherent in the employee"s work or is a normal condition of employment. |
| 146. (1) Tout employeur, employé ou syndicat qui se sent lésé par des instructions données par l"agent de sécurité en vertu de la présente partie peut, dans les quatorze jours qui suivent, en demander la révision par un agent régional de sécurité dans le ressort duquel se trouve le lieu, la machine ou la chose en cause. |
146. (1) Any employer, employee or trade union that considers himself or itself aggrieved by any direction issued by a safety officer under this Part may, within fourteen days of the date of the direction, request that the direction be reviewed by a regional safety officer for the region in which the place, machine or thing in respect of which the direction was issued is situated. |
| (2) L"agent régional de sécurité peut exiger que toute demande verbale de révision soit également présentée par écrit. |
(2) The regional safety officer may require that an oral request for a review under subsection (1) be made as well in writing. |
| (3) L"agent régional de sécurité mène une enquête sommaire sur les circonstances ayant donné lieu aux instructions et sur la justification de celles-ci. Il peut les modifier, annuler ou confirmer et avise par écrit de sa décision l"employeur, l"employé ou le syndicat en cause. |
(3) The regional safety officer shall in a summary way inquire into the circumstances of the direction to be reviewed and the need therefor and may vary, rescind or confirm the direction and thereupon shall in writing notify the employee, employer or trade union concerned of the decision taken. |
| (4) La demande de révision n"a pas pour effet de suspendre l"exécution des instructions. |
(4) A request for a review of a direction under this section shall not operate as a stay of the direction. |
| (5) Le paragraphe (1) ne s"applique pas aux instructions d"un agent de sécurité dont la décision a fait l"objet d"un renvoi au Conseil dans le cadre du paragraphe 129(5). |
(5) Subsection (1) does not apply in respect of a direction of a safety officer that is based on a decision of the officer that has been referred to the Board pursuant to subsection 129(5). |
[8] Sections 30 and 31 of the Corrections and Conditional Release Act, S.C. 1992, c. 20, are also relevant.
| 30. (1) Le Service assigne une cote de sécurité selon les catégories dites maximale, moyenne et minimale à chaque détenu conformément aux règlements d"application de l"alinéa 96z.6). |
30. (1) The Service shall assign a security classification of maximum, medium or minimum to each inmate in accordance with the regulations made under paragraph 96(z.6). |
| (2) Le Service doit donner, par écrit, à chaque détenu les motifs à l"appui de l"assignation d"une cote de sécurité ou du changement de celle-ci. |
(2) The Service shall give each inmate reasons, in writing, for assigning a particular security classification or for changing that classification. |
| 31. (1) L"isolement préventif a pour but d"empêcher un détenu d"entretenir des rapports avec l"ensemble des autres détenus. |
31. (1) The purpose of administrative segregation is to keep an inmate from associating with the general inmate population. |
| (2) Le détenu en isolement préventif doit être replacé le plus tôt possible parmi les autres détenus du pénitencier où il est incarcéré ou d"un autre pénitencier. |
(2) Where an inmate is in administrative segregation in a penitentiary, the Service shall endeavour to return the inmate to the general inmate population, either of that penitentiary or of another penitentiary, at the earliest appropriate time. |
| (3) Le directeur du pénitencier peut, s"il est convaincu qu"il n"existe aucune autre solution valable, ordonner l"isolement préventif d"un détenu lorsqu"il a des motifs raisonnables de croire, selon le cas_: |
(3) The institutional head may order that an inmate be confined in administrative segregation if the institutional head believes on reasonable grounds |
| a) que celui-ci a agi, tenté d"agir ou a l"intention d"agir d"une manière compromettant la sécurité d"une personne ou du pénitencier et que son maintien parmi les autres détenus mettrait en danger cette sécurité; |
(a) that (i) the inmate has acted, has attempted to act or intends to act in a manner that jeopardizes the security of the penitentiary or the safety of any person, and (ii) the continued presence of the inmate in the general inmate population would jeopardize the security of the penitentiary or the safety of any person, |
| b) que son maintien parmi les autres détenus peut nuire au déroulement d"une enquête pouvant mener à une accusation soit d"infraction criminelle soit d"infraction disciplinaire grave visée au paragraphe 41(2); |
(b) that the continued presence of the inmate in the general inmate population would interfere with an investigation that could lead to a criminal charge or a charge under subsection 41(2) of a serious disciplinary offence, or |
| c) que le maintien du détenu au sein de l"ensemble des détenus mettrait en danger sa sécurité. |
(c) that the continued presence of the inmate in the general inmate population would jeopardize the inmate"s own safety, and the institutional head is satisfied that there is no reasonable alternative to administrative segregation. |
[9] The applicant is asking me to set aside the decision rendered by the regional officer on October 8, 1997 and return the matter to him for a redetermination on the basis that at the time of the investigation conducted by the safety officer on April 24, 1997, there was no danger within the meaning of paragraph 128(1)(b) of the Canada Code.
[10] In paragraph 28 of her factum, the applicant sets out the reasons why she opposes the regional officer"s decision. Paragraph 28 states:
[Translation]
| 28. The applicant submits that the regional safety officer erred in law and in fact in adopting the reasoning of the safety officer and substantially upholding the written direction issued on April 29, 1997 by the safety officer, and accordingly, that he committed one or more of the errors contemplated in paragraphs 18.1(4)(a), 18.1(4)(c), 18.1(4)(d) and 18.1(4)(f) of the Federal Court Act and, more particularly: |
| (a) he erred in law and in fact in his interpretation of the notion of danger contained in section 128 of the Code; |
| (b) he confused the notion of danger within the meaning of section 128 of the Code with that of danger under the Corrections and Conditional Release Act, S.C. 1992, c. 20; |
| (c) he erred in law and in fact in concluding that an inmate may himself constitute a danger within the meaning of section 128 of the Code; |
| (d) he erred in law and in fact in relation to the notion of inherent danger within the meaning of paragraph 128(2)(b) of the Code; |
| (e) he erred in law in substantially upholding a direction that had no further purpose and that was addressed to future and hypothetical general situations. |
[11] At the centre of this dispute is the notion of "danger" contained in section 128 of the Canada Code. The notion is defined as follows in section 122 of the Code:
| "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. |
"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; |
[12] Under paragraph 128(1)(b) of the Canada Code, an employee may refuse to work if he has reasonable cause to believe that there is a danger for him in working in his place of work. The safety officer, whose decision was upheld by the decision of the regional officer, had to determine whether, on April 24, 1997, such a danger existed for the respondent. In Canada (Attorney General) v. Bonfa (1990), 113 N.R. 224, Pratte J.A., writing on behalf of the Federal Court of Appeal, explained the role of the safety officer as follows, at pages 230-31:
In my opinion, all these provisions clearly indicate that s. 128(1)(b) authorizes the employee to refuse to work in a place because of the dangers it presents and that the function of the safety officer is solely to determine whether, at the time he does his investigation, that place presented such dangers that employees were justified in not working there.
[13] Consequently, the real issue in dispute is whether, on April 24, 1997, when the respondent was to serve the meals of inmates C and H, there existed such a danger that the respondent was justified in refusing to work.
[14] It is clear from the decision of the regional officer that in his opinion the Correctional Service was supposed to apply to inmates in administrative segregation who had been relocated to the regular cell block because of lack of space the same detention procedure as the one that would have been applicable in the administrative segregation section "bearing in mind any physical or other deficiencies that may exist". Because the Correctional Service had not applied the detention procedure to C and H, and because it had not proposed any special procedure to deal with the situation of inmates such as C and H who were relocated to a regular cell block, the regional officer decided that there was a danger within the meaning of paragraph 128(1)(b) of the Canada Code, namely, a situation that could result in injury to the respondent before it could be remedied. In my opinion, the regional officer"s decision should be set aside. The following are my reasons.
[15] This is not the first time that the notion of danger has been raised by a correctional officer employed by the Correctional Service. The federal Public Service Staff Relations Board (the "Board") has had occasion many times to examine this problem. Subsection 129(5) of the Canada Code gives the Board jurisdiction when a safety officer decides there is no danger. The subsection reads as follows:
| (5) Si l"agent de sécurité conclut à l"absence de danger, un employé ne peut se prévaloir de l"article 128 ou du présent article pour maintenir son refus d"utiliser ou de faire fonctionner la machine ou la chose en question ou de travailler dans le lieu en cause; il peut toutefois, par écrit et dans un délai de sept jours à compter de la réception de la décision, exiger que l"agent renvoie celle-ci au Conseil, auquel cas l"agent de sécurité est tenu d"obtempérer. |
(5) Where a safety officer decides that the use or operation of a machine or thing does not constitute a danger to an employee or that a condition does not exist in a place that constitutes a danger to an employee, an employee is not entitled under section 128 or this section to continue to refuse to use or operate the machine or thing or to work in that place, but the employee may, by notice in writing given within seven days of receiving notice of the decision of a safety officer, require the safety officer to refer his decision to the Board, and thereupon the safety officer shall refer the decision to the Board. |
[16] The decision rendered by the Board in the Stephenson case1 is an interesting one. On the morning of October 17, 1990, some correctional officers working in the Edmonton Institution, a maximum security institution, refused to work on the ground that there was an insufficient number of correctional officers on duty. That morning, there were only 32 correctional officers and three supervisors on duty although normally there should have been 40 correctional officers and three supervisors on duty. According to the correctional officers, the acceptable minimum number of correctional officers on duty was 35, this number having been approved by the administration of the penitentiary in consultation with the union. Consequently, there was, in the opinion of the correctional officers, a dangerous situation that justified a refusal to work. Here is how the Board summarizes the essential testimony of the correctional officers concerning the danger that had led them to refuse to work. At page 5 of its decision, the Board states:
In their testimony, the applicants said that their concern was that if during the conduct of searches or while on escort duty they were attacked by an inmate there would not be a sufficient number of other officers in the vicinity to come to their aid. They noted that certain inmates, and especially inmates on drugs, had in the past required four or five officers to subdue them. They were all of the opinion that undermanning the complement of security personnel represented a threat to their health and safety.
[17] After analyzing the facts and the parties" submissions, the Board concluded that there was no danger that might justify a refusal to work. In my opinion, the Board"s reasons are fully relevant to the facts of this case.
On 17 October 1990, the applicants invoked their right to refuse to work under Section 128 of the Canada Labour Code Part II. They alleged that the manning levels at the Edmonton Institution on their shift endangered their health and safety.
The immediate issue is easily disposed of. Because a dangerous situation did not exist at the time that the safety officer investigated the refusal to work, their recourse to Section 128 of the Code cannot be sustained. There is no evidence before me to show that the number of correctional officers on duty, even though below minimum manning standards, was a condition that constituted a danger to the employees. From which it follows that the report of the safety officer is sustained.
The problem here is of a different order. Let us begin with a hard fact. Since June 1987, this Board has heard a total of 27 applications under the health and safety provisions of the Canada Labour Code. Of those 27 applications, 14 originated with employees of correctional institutions. There is a problem here and it is not being addressed.
Mr. Benda has suggested that the Code was being abused for the purpose of pursuing labour relations objectives. Mr. Lawson denied this allegation and reiterated that health and safety concerns were foremost in the minds of the applicants when they exercised their rights under Section 128.
Both Mr. Benda and Mr. Lawson are right. Given the nature of a correctional institution, there cannot realistically be a separation between questions of health and safety, on the one hand, and certain aspects of labour relations, on the other.
The bottom line in this matter is that the Canada Labour Code, as it now stands, is an inappropriate means of dealing with health and safety concerns in correctional institutions.
The root of the problem is that the danger, under the law, must be actual and real whereas, the reality in a correctional institution is that the source of the danger, the inmate, has intelligence and free will.
The law provides that an employee may not refuse to work until the danger has crystallized and is present in the work place. The reality is that until the moment that the inmate acts in a manner which endangers a correctional officer, there is no danger. The reality is, as well, that once an inmate has ceased to act in a manner which endangers a correctional officer, there is no longer a danger and, therefore, no right to refuse to work. This is true even if all of the conditions which led the inmate to act as he did continue unchanged.
Indeed, under the law as it now stands, a correctional officer who is endangered by the malicious conduct of an inmate could refuse to work only while the inmate is engaging in such conduct. Whether the inmate would, under such circumstances, be willing to recognize a correctional officer"s right to withdraw is another matter.
Another matter, as well, is the question of whether services could be withdrawn even under the conditions described above. Faced with rampaging inmates, it might well be the case that a correctional officer would find his right to invoke Section128(1) of the Code barred by the provisions of Section 128(2)(a) : "the refusal puts the life, health or safety of another person directly in danger".
The reality is that under the law as it now stands, correctional officers are, except in the most unusual cases, effectively barred from exercising the right to refuse to work under Section 128 of the Code where the source of the danger lies in misconduct on the part of inmates. Mr. Benda would argue that this is as it should be, that the Code was never intended to cover such risks and that threats arising from the conduct of inmates are a labour relations matter rather than a health and safety problem.
It would appear that Mr. Benda has the law on his side. However, that does not alter the fact that there is a problem, that the problem is real enough to those who must live with it and that the law provides no remedy.
Under the circumstances, it is not surprising that what ought to be matters of health and safety end up being dealt with in a labour relations context.
Indeed, health and safety matters, as they relate to malicious conduct by inmates, have become so intertwined with labour relations matters that the two cannot be kept entirely apart even by the employer.
Mr. Hardy"s report was solicited by the Warden in a letter (exhibit 3) which makes it clear that he has labour relations matters in mind. Mr. Headrick testified that he was proposing to the Warden that certain manning reductions be made. He also testified that six officers, on training, were within easy reach and could have been recalled to the institution. They were not recalled.
It is difficult to avoid the conclusion, especially in view of the Warden"s letter, that the refusal to recall officers from training had little to do with the importance of the training and much to do with future manning levels.
It may well be that the applicants had labour relations considerations in mind when they invoked the right to refuse to work. However, the employer"s hands are not entirely clean on this score.
Perhaps consideration ought to be given to the explicit removal of inmate generated dangers from the kind of dangers contemplated by Section 128 of the Code and the substitution therefor of some other procedure which takes account of the special nature of such dangers.
Due to the omission in the statute, I indeed must find that the applicants could not reasonably exercise their rights under subsection 128(1) since the danger was prospective rather than real. The report of the safety officer is therefore confirmed.
[18] Another interesting, and in my opinion relevant decision by the Board is the decision in the Evans case.2 The facts of that case are quite simple and are summarized by the Board at pages 1 and 2 of its decision as follows:
On Sunday, June 9, 1991, at approximately 7:00 AM, Mr. Evans arrived at the Penitentiary to begin working his shift. On that day, he was assigned to the multi-level segregation unit (lower "H" Block) as a supervisor. Shortly thereafter, Mr. Evans learned that there were to be only two officers on his shift: he and Mr. Poitras, a CX-2, whom he would be supervising. Mr. Evans believed that two officers would not be sufficient to perform the work. He concluded that the area was unsafe and that his safety was jeopardized. He invoked his right under subsection 128 (1) of the Code and refused to work. The unit was immediately placed under a "lockdown" situation. This meant that all inmates were confined to their cells and all activities and movements were curtailed.
The circumstances were investigated by Mr. Michel Tittley on Monday, June 10, 1991. He concluded that he could not support Mr. Evans" refusal to work based on the circumstances at the time of his investigation and also because the multi-level segregation unit had been placed under a "lockdown" situation on June 9, 1991, resulting in no inmate movement and no danger. It is this decision that Mr. Evans now refers to the Board.
[19] The Board upheld the safety officer"s decision on the following grounds:
I have heard and considered all of the evidence and I am of the opinion that the safety officer"s decision must be confirmed. I have no hesitation in concluding that he conducted a proper investigation into the circumstances surrounding Mr. Evans" refusal to work on June 9, 1991. To assist the parties, he asked that the employer, through the Safety and Health Committee, bring some clarification to Post Order #46 (N). He concluded that a dangerous condition did not exist on June 9, 1991 or June 10, 1991, when he conducted his investigation.
What is clearly demonstrated from the testimony of Mr. Tittley and Mr. Evans is that whether safety problems, if any, may be said to have existed in the Lower "H" Block of Kingston Penitentiary on June 9, 1991, the remedy is not likely to be found in Part II of the Code. In Mr. Evans" view, the problem is related to the employer"s minimum staffing policy. His testimony, quoted earlier in this decision, bears ample proof of his opinion that management created a safety problem by reducing the number of correctional officers assigned to the shift in question. Counsel for the employer has argued that this is related to the employer"s staffing policies and is not a safety issue.
It is a perplexing problem the solution to which, I suggest, does not lie in refusals to work or in referrals of decisions of safety officers to this Board. I agree with Board Member Kwavnick"s comment in Stephenson cited above.
Perhaps, Part II of the Code needs to be amended to exclude correctional institutions or to provide for some other process better suited to deal with the particular circumstances of such institutions. That is not a matter for this Board to decide.
[20] In Stephenson, the Board upheld the safety officer"s decision that there was no danger. The Board held that the record failed to indicate that a danger existed merely by virtue of the fact that the number of correctional officers on duty was below the number approved by the penitentiary administration and the union. In Evans, the Board likewise upheld the safety officer"s decision, and used the occasion to signify its approval of the reasons set out in Stephenson .
[21] In this case the safety officer and the regional officer decided that there was a danger because the procedure adopted by the correctional system for detention in administrative segregation was not applicable to inmates in administrative segregation who had been relocated to the regular cell block for lack of space.
[22] In my opinion, it is not within the jurisdiction of the safety officer or the regional officer to determine whether the procedure applicable to administrative segregation or some "special" procedure should apply to inmates such as C and H whom the Correctional Service has relocated, for lack of space in administrative segregation, to a regular cell block.
[23] Similar considerations apply to the inmates" security classification. Responsibility for determining an inmate"s security classification is that of the correctional service. The relevant provisions of the Corrections and Conditional Release Act leave no room for doubt about this. The safety officer"s sole and unique responsibility is to determine whether there is a danger that would justify a refusal to work.
[24] In my opinion, the safety officer and the regional officer simply presumed the existence of a danger given the Correctional Service"s failure to apply the procedure applicable to inmates being held in administrative segregation. The safety officer and the regional officer did not take into account the evidence before them, namely, that C and H had not manifested any sign of aggressiveness or mental disorder, had never assaulted a correctional officer and had not been convicted of violent crimes. As the Board stated in Stephenson , the danger, within the meaning of paragraph 128(1)(b), must be "actual and real...". Consequently, there was no reason for the respondent to apprehend aggression on the part of these inmates.
[25] The risk faced by the respondent on April 24, 1997 was nothing other than the risk inherent to his work. This risk, under paragraph 128(2)(b) of the Canada Code, did not justify a refusal to work by the respondent.
[26] I fully agree with the applicant"s comments at paragraphs 39 and 75 of her factum:
[Translation]
| 39. Indeed, a mere possibility of assault by two inmates who in the circumstances manifested no sign of aggressiveness or mental disorder did not constitute in the circumstances, for the respondent, a dangerous situation in his work place that necessarily had to be remedied before he began to work; |
| 75. The respondent refused to work not because he feared being assaulted specifically by inmates C and H or some other clearly identified inmate but because he considered that the situation in general was dangerous within the broad meaning of the word. More particularly, he thought the applicable security measures were inadequate in the circumstances in that they were not the same measures as those applied in the detention section; |
[27] In closing, I would like to indicate that I share the comments by the Board in Stephenson and Evans that the Canada Code is not the appropriate vehicle for resolving problems such as the ones raised in this case and in Stephenson and Evans.
[28] Accordingly, the decision of the regional officer shall be set aside. The matter will be returned to him for a redetermination on the basis that, at the time of the investigation conducted by the safety officer on April 24, 1997, there was no danger. The application for judicial review shall therefore be allowed.
| "MARC NADON" |
| J. |
Ottawa, Ontario
September 9, 1998
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| FILE NO. T-2420-97 |
| STYLE: AGC v. MARIO LAVOIE |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: May 4, 1998 |
REASONS FOR ORDER OF NADON J.
| DATED: September 9, 1998 |
APPEARANCES:
Ms. Nadia Hudon
Mr. Raymond Piché FOR THE APPLICANT
Ms. Josée Lavallée FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE APPLICANT
Melançon, Marceau, Grenier and Sciortino
Montréal, Quebec FOR THE RESPONDENT
__________________1 Board file 165-2-83, rendered in Ottawa on April 2, 1991.
2 Board file 165-2-87, rendered July 29, 1991.