Canada Appeals Office on Bureau d’appel canadien en
Occupational Health and Safety santé et sécurité au travail
_______________________________________________________________________________________
PART II
OCCUPATIONAL HEALTH AND SAFETY
R. Abood, J. Chan, C. Ouelette, D. Rai and B. Singh
applicants
and
Air
employer
________________________
Decision No: 03-002
Appeals officer Douglas Malanka inquired into the circumstances of the decision of health and safety officers G. Garron and G. McCabe, made September 14, 2001 pursuant to subsection 129.(4) of the Canada Labour Code (hereto referred to as Part II or the Code), that a danger did not exist for Air Canada employees, Messrs. R. Abood, J. Chan, C. Ouelette, D. Rai and B. Singh. At the same time, and with the agreement of parties, appeals officer Douglas Malanka reviewed the decision of health and safety officer M. Grinblat made
Appearances
Ms. C. V. Elias, Counsel, Air
Ms. France Pelletier, Component Health and Safety Chairperson, CUPE;
Ms. D. Salt,
Ms. R. Henderson, Counsel, Air
Ms. K. MacKenzie, In-Flight Manager, Air
Mr. Yves Duguay, Senior Director, Corporate Security and Risk Management, Air
Mr. G. Garron, health and safety officer, Human Resources Development Canada.
Mr. G. McCabe, health and safety officer, Human Resources Development Canada.
Ms. M. Grinblat, health and safety officer, Human Resources Development Canada.
[1]
Air
[2]
The next day,
[3]
Their continued refusals to work were investigated by health and safety officers Greg Garron and Gerald McCabe. Mr. Singh added that it was more dangerous for him as he is often mistaken for a middle-east person as a result of his light brown skin colour, and Mr. Abood added that it is more dangerous for him as he was a Canadian born in
[4]
On
[5]
Prior to the hearings, Ms. Elias and Ms. Henderson provided the appeals officer with their respective books of submissions and of authorities. During the hearings, Ms. France Pelletier, Component Health and Safety Chairperson, CUPE, Ms. K. MacKenzie, In-Flight Manager, Air
[6]
The five crew members who refused to work on
·
a letter from Mr. Yves Duguay, Senior, Director of Corporate Security and Risk Management; and,
·
a copy of Air
[7]
The letter from Mr. Yves Duguay, Senior, Director of Corporate Security and Risk Management, dated
[8]
The Travel Advisory Bulletin provided to the crew cautioned that two important dates would be celebrated by Palestinians during the month of September and could result in renewed violence in
[9]
In the case of Mr. Charles Matos’s refusal to work, Ms. Marianne Hurley, Cabin Personnel Manager, Air Canada, met with Mr. Matos and provided him with a copy of the Mr. Duguay’s August 28, 2001 letter, a copy of Air Canada’s Corporate Security and Risk Management Bulletin, YUL (359)-01-2, updated on September 18, 2001, and a copy of health and safety officer Garron’s decision on the previous refusals to work by flight crew employees on September 14, 2001. The
[10]
Mr. Yves Duguay, Senior, Director of Corporate Security and Risk Management testified that he joined Air
[11]
Mr. Duguay testified that the risk of terrorism in
·
Open sources such as Travel Advisors issued by the
·
News papers and wire services like CNN, BBC, and the Jerusalem Post;
·
National and international government department and agencies officials in
·
National and international police forces in
·
Hotel and Airport liaison officials.
[12]
Regarding the
·
Access to the hotel and garage was controlled;
·
The hotel was monitored by close circuit video cameras which were continually monitored by a security guard;
·
3 plain clothes security officers were on duty 24 hours a day.
[13]
With regard to transporting crew members from the Ben Gurion airport to the
[14]
Mr. Duguay said that when he returned to
[15]
Under cross examination, Mr. Duguay conceded that officials in
[16]
Finally, Mr. Duguay pointed out that Air Canada flies to several destinations in the world such as
[17]
Ms. Pelletier, Component Health and Safety Chairperson, CUPE, testified that she attended a meeting on October 4 and 5, 2001 where CUPE and several other unions were generally briefed on security measures put in place following the terrorist attacks in the
[18]
Ms. K. MacKenzie, In Flight Manager, Air
[19]
Ms. Elias argued that terrorism in
[20]
She argued that health and safety officers Garron and Grinblat misapplied the definition of danger because both officers held that, for a finding of danger, there must be a reasonable probability that crew members who refused to work would be subjected to terrorist activity and that the risk of future terrorist activity could reasonably be expected to cause injury or illness to a crew member. She held that for a finding of danger, it is only necessary for an officer to establish that it was reasonable to expect the hazard posed by terrorism could cause injury or illness to a person exposed thereto before the hazard could be corrected. She added that hazards related to terrorism are not normal to employees who must layover at Air
[21]
She complained that the decisions rendered by health and safety officers Garron and Grinblat that a danger did not exist for employees who refused to work should be reversed because the officers accepted and relied upon facts provided to them by Air
·
the degree of terrorist threat in
·
security during transportation between the Ben Gurion airport and the
·
overall crew security at the
·
the security measures in place in
·
the contingency plan that Air Canada said was in place to evacuate crews from
[22]
Ms. Elias held that the Air Canada officials do not have the necessary expertise for properly assessing the risk of terrorism in
[23]
She further argued that health and safety officer Grinblat relied on findings of Garron even though the refusal to work by Mr. Matos was more than a month after the first refusal and weeks after the latest travel advisory update.
[24]
Ms. Henderson held that terrorism is beyond the control of the employer; that the Code does not deal with terrorism; and that terrorism does not constitute a danger under the Code. She referred me to the Welbourne and Canadian Pacific Railway Company, [2001] C.L.C.R.S.O. No. 9 and underscored that the concept of reasonable expectation relative to the definition of the danger in the Code excludes hypothetical or speculative situations. She also cited David Pratt, (1988) 73di 218, the Canadian Labour Relations Board wherein the Board held that the former definition of danger under the Code did not contemplate the risk of a terrorist attack.
[25]
She added that the situation in
[26]
Ms. Henderson emphasized that the applicants had not proffered evidence that the security assertions by Air
[27]
With regard to the investigation conducted by health and safety officer Grinblat, she held that the information used by health and safety officer Grinblat was still relevant for her assessment and there was no proof that it was outdated.
[28]
Finally, Ms. Henderson argued that health and safety officers Garron and Grinblat had not failed to exercise their jurisdiction under the Code because they did not find any contraventions.
*****
[29]
The issue in this case is whether the potential of being exposed to terrorism during a layover in Israel constituted a danger for the Air Canada flight crew employees who respectively refused to work on two occasion being September 14, 2001 and October 14, 2001.
[30]
To decide the matter it is necessary to interpret the definition of danger in the Code relative to the facts related to the refusals to work by Air
"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;
[31]
It is clear that the definition refers both to existing and potential hazards and conditions and to current and future activities. In the Welbourne and Canadian Pacific Railway Company Decision, Decision No. 01-008, dated
[18] Under the current definition of danger, the hazard, condition or activity need no longer only exist at the time of the health and safety officer’s investigation but can also be potential or future. The New Shorter Oxford Dictionary, 1993 Edition, defines “potential” to mean “possible as opposed to actual; capable of coming into being or action; latent.” Black’s Law Dictionary, Seventh Edition, defines “potential” to mean “capable of coming into being; possible.” The expression “future activity” is indicative that the activity is not actually taking place [while the health and safety officer is present] but it is something to be done by a person in the future. Therefore, under the Code, the danger can also be prospective to the extent that the hazard, condition or activity is capable of coming into being or action and is reasonably expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected or the activity altered.
[32]
Ms. Elias argued in the contrary that, for a finding of danger under the Code, there is no need to reasonably expect that the potential hazard or condition or future activity will actually come into being or take place. Instead, the officer need only decide if it is reasonable to expect that an existing or potential hazard or condition or present or future activity could reasonably be expected to cause injury or illness before the hazard or condition could be corrected or activity altered.
[33]
However, the difficulty that I have with her interpretation is that, if there is no reasonable expectation that a potential hazard or condition or future activity will actually come into being or take place, then the danger is more hypothetical than prospective in nature. Historically, the courts and tribunals, including this office have held that danger cannot be hypothetical. In my opinion, the September, 2000 amendments to the Code did not alter this interpretation. However, one of the principal changes effected when the definition of danger was amended in September of 2000 is that the hazard, condition or activity reasonably expected to cause injury or illness to a person exposed thereto before it can be corrected or altered no longer needs to exist or be taking place at the time of the health and safety officer’s investigation.
[34]
Moreover, it is my opinion that, if there are insufficient facts in a refusal to work to establish a reasonable expectation that a potential hazard or condition or future activity will actually come into being or take place and a person will be exposed thereto, then it is impossible for a health and safety officer to execute his or her legislative duty under subsections 129.(1), (4), (6) and (7), and subsection 145.(2). In the Correctional Service of
[39] While I agree with my colleague’s findings in this case, I believe there is a need to elaborate on his findings to address arguments made by Mr. Fader in this case.Specifically, Mr. Fader argued that, for a danger under the Code, the circumstances related to a potential danger must exist at the time of the investigation by the health and safety officer.
[40] According to subsection 129.(1) of the Code, when a health and safety officer is notified that an employee is continuing to refuse to work, the health and safety officer is required to investigate or cause another officer to investigate the refusal to work without delay.On completion of the investigation, the investigating officer is required, pursuant to subsection 129.(4), to decide whether or not a danger under the Code exists. If the officer decides that a danger exists, then the officer is required by subsection 129.(6) to issue a direction pursuant to subsection 145.(2) requiring the employer to, amongst other things, take measures to correct the hazard or condition or alter the activity, or to protect any person from the danger.The officer is also required to issue a direction to the employee(s) in question to cease the work in question until the employer complies with the officer's direction under 145(2)(a).If the officer decides that a danger does not exist, then according to subsection 129.(7), the employee is not entitled under section 128 to continue to refuse to work.The officer is clearly deciding whether or not a danger under the Code exists at the time of his or her investigation and, relative to subsection 145.(2.1), whether or not the employee(s) may work in a place or do the work in question.Subsections 129.(1), (4), (6) (7) and 145.(2) and 145.(2.1) read:
129.(1) On being notified that an employee continues to refuse to use or operate a machine or thing, work in a place or perform an activity under subsection 128(13), the health and safety officer shall without delay investigate or cause another health and safety officer to investigate the matter in the presence of the employer, the employee and one other person who is
(a)...an employee member of the work place committee;
(b)...the health and safety representative; or
(c)...if a person mentioned in paragraph (a) or (b) is not available, another employee from the work place who is designated by the employee.
129.(4) A health and safety officer shall, on completion of an investigation made under subsection (1), decide whether the danger exists and shall immediately give written notification of the decision to the employer and the employee.
129.(6) If a health and safety officer decides that the danger exists, the officer shall issue the directions under subsection 145(2) that the officer considers appropriate, and an employee may continue to refuse to use or operate the machine or thing, work in that place or perform that activity until the directions are complied with or until they are varied or rescinded under this Part.
145.(2) If a health and safety officer considers that the use or operation of a machine or thing, a condition in a place, or the performance of an activity constitutes a danger to an employee while at work,
(a) the officer shall notify the employer of the danger and issue directions in writing to the employer directing the employer, immediately or within the period that the officer specifies, to take measures to
(i) correct the hazard or condition or alter the activity that constitutes the danger, or
(ii) protect any person from the danger; and
(b) the officer may, if the officer considers that the danger or the hazard, condition or activity that constitutes the danger cannot otherwise be corrected, altered or protected against immediately, issue a direction in writing to the employer directing that the place, machine or thing or activity in respect of which the direction is issued not be used, operated or performed, as the case may be, until the officer's directions are complied with, but nothing in this paragraph prevents the doing of anything necessary for the proper compliance with the direction.
145.(2.1) If a health and safety officer considers that the use or operation of a machine or thing by an employee, a condition in a place or the performance of an activity by an employee constitutes a danger to the employee or to another employee, the officer shall, in addition to the directions issued under paragraph (2)(a), issue a direction in writing to the employee to discontinue the use, operation or activity or cease to work in that place until the employer has complied with the directions issued under that paragraph.
129.(7) If a health and safety officer decides that the danger does not exist, the employee is not entitled under section 128 or this section to continue to refuse to use or operate the machine or thing, work in that place or perform that activity, but the employee, or a person designated by the employee for the purpose, may appeal the decision in writing to an appeals officer within ten days after receiving notice of the decision.
[Underlined for emphasis.]
[41] For deciding if a danger exists, the health and safety officer must consider all aspects of the definition of danger and, on completion of his or her investigation, decide if the facts in the case support a finding of danger under the Code.This determination must be done on a factual basis and the facts must be persuasive since the right to refuse and danger provisions under the Code are considered to be exceptional measures.For a health and safety officer to find that a danger under the Code exists at the time of his or her investigation in respect of a potential hazard or condition, as in this case, the facts in the case must be persuasive that:
a hazard or condition will come into being;
an employee will be exposed to the hazard or condition when it comes into being;
there is a reasonable expectation that the hazard or condition will cause injury or illness to the employee exposed thereto; and
the injury or illness will occur immediately upon exposure to the hazard or condition.
[35]
Appeals officer Serge Cadieux subsequently wrote the following in the Parks Canada Agency and Doug Martin and Public Service
[143] A difference between the “old” definition of danger and the current one lies in the fact that the current definition includes a reference to a potential hazard or condition and a future activity so that the hazard, condition or activity no longer need to be present at the time of the health and safety officer’s investigation.Hence, the health and safety officer can look beyond the immediate circumstances in existence at the time of his investigation to decide on the existence of “danger” as defined in the Code.There is however limitations to the concept of “danger” as defined in the Code.
[144] The Code allows for a future activity to be taken into consideration in order to declare that “danger” as defined in the Code exists.However, this is not an open-ended expression.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 [1] ;
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: The latency aspect of the injury or illness will not be addressed in this decision since this was not raised as an issue in the instant case. However, I would refer the reader to paragraph #21 of the Welbourne decision for clarification.
[145] Given that the health and safety officer must investigate a situation in a factual manner and having regard to the four objective criteria listed above, hypothetical and speculative situations will continue to be excluded from the definition of danger.After all, both hypothetical and speculative situations have no firm factual basis, a direct contradiction with the concept of “danger” as defined in the Code.It is important to note at this point that although “danger” as defined in the Code may be found not to exist, a contravention may still exist.
[36]
In both instances of refusals to work in this case, the Air Canada flight crew employees refused to work prior to departing
[37]
Ms. Elias argued that the history of terrorism in
[38]
No conclusion is drawn in the above hypothetical example regarding the existence or not of danger. It is offered only to illustrate that, for a finding of danger, the evidence in respect of a hazard, condition of activity must be sufficient to elevate the risk of occurrence and of injury or illness to a person exposed thereto from a speculative possibility to a reasonable expectation. In respect of both instances of refusals to work in this case, the evidence did not confirm the existence of attendant risk factors or risk amplifiers sufficient to establish that it was reasonable to expect that the Air Canada employees who refused to work would be exposed to an act of terrorism in Israel that could reasonably be expected to cause injury or illness to the employees had they carried out their assigned tasks.
[39]
With regard to Ms. Elias assertions that Air Canada’s response in respect of the risk was deficient, the evidence established that Air Canada has a Corporate Security and Risk Management Department headed by Senior Director Mr. Yves Duguay, and that the Department continually monitored the situation in Tel Aviv. They accomplished this via government travel advisors, and through regular contact with government and security officials in
[40]
Ms. Elias held that the Air Canada advisories and briefing did not specify an emergency plan to evacuate crew members from
[41]
In terms of Ms. Elias’ contention that the
[42]
With regard to Ms. Elias’ concern that health and safety officers Garron, McCabe and Grinblat erred because they failed to test the veracity of the information that Air Canada provided to them during their investigation of the refusals to work, I am of the view that it is unnecessary for officers to question every fact provided to them by a party during an investigation unless the evidence is inconsistent with or contradicted by other evidence. The time and expense to verify every statement or document proffered by a party could be prohibitive and unproductive. With regard to officer Ginblat’s use of evidence collected by officers Garron and McCabe, there was no evidence that the information was outdated and irrelevant.
[43]
There was insufficient evidence to persuade me that there was a reasonable expectation that the potential hazard or condition related to terrorism in
__________________________
Douglas Malanka
Appeals Officer
Decision No.: 03-002
Applicant: R. Abood, J. Chan, C. Ouelette, D. Rai and B. Singh
Respondent: Air
KEY WORDS: danger, flight crew, employees, terrorism, Israel, Herzliya, Tel Aviv, security, assessment, layover, travel advisories, briefings
PROVISIONS: C.L.C: 122.(1),128, 129
SUMMARY:
On
On
Following his review, the appeals officer confirmed the decisions of the health and safety officers that a danger did not exist for the employees who refused to work. In the opinion of the appeals officer, the facts in the refusals to work did not establish a reasonable expectation that a hazard or condition related to terrorism in
[1]
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.