[1] This is an application for judicial review to set aside the decision of A.E. Bertrand of the Public Service Staff Relations Board (the Board) dated September 20, 2000, cited as 2000 PSSRB 86 and reported at [2000] C.P.S.S.R.B. No. 58. The Board allowed in part the respondents' appeal of a decision by one investigating safety officer that found no "danger" present at the Dorchester Maximum Security Penitentiary (the Penitentiary).

[2] The present case arose from seven work refusals under Part II, section 128 of the Canada Labour Code (the Code) by correctional officers at the Penitentiary. An eighth refusal, in a different institution, was held in abeyance pending the outcome of the within application.

[3] On November 22, 1999, a practice known as "minimum staffing" was in place at the Penitentiary, requiring the officers to work in groups of two per unit. The officers filed a complaint under section 128 of the Code, but chose to remain at their posts, resulting in a "technical" refusal to work. As per section 129, a safety officer was dispatched to the Penitentiary on November 24 and 25, 1999. He found that while there was no risk management policy covering minimum staffing situations, there was no minimum staffing policy in operation at the time of his investigation. Each of the four units at issue had at least 3 officers, and there were no other signs of danger at the Penitentiary at that time. The officer concluded that there was no "danger" as defined by the Code on the date of the investigation.

[4] The respondent corrections officers then had that decision referred to the Board pursuant to subsection 129(5) of the Code.

[5] The Board was of the view that the safety officer should have taken into account whether there was a danger to the officers both "at the time of the investigation and at the time of the refusal to work" [Board Decision, para. 64]. It then found that minimum staffing in Units 3 and 4 presented a situation which placed the officers on duty in those Units in danger at the time of the refusal to work. It also found that at the time of the investigation there was no longer any danger. The Board went on to quash the decision of the safety officer, and substituted its own directions. These directions were of limited effect, however, because the Penitentiary had since implemented a permanent three-officer staffing policy in Units 3 and 4.

[6] The applicant then applied to the Court for judicial review. Only that part of the Board's decision which deals with Units 3 and 4 is in issue.

Standard of review

[7] The question to be answered is one of law which goes to the root of the safety officer's jurisdiction to issue directions pursuant to subsection 129(4) of the Code. There is no privative clause restricting review of Board decisions under Part II of the Code. This is a matter of statutory interpretation with respect to which there is no special expertise employed by the sole member of the Board involved in the resolution of this issue. The standard is that of correctness.

The position of the parties

[8] The applicant's sole grievance on this application is the Board's finding that the safety officer, in determining whether a danger existed under the Code, should have decided "whether or not minimal staffing in each particular Unit within the Dorchester penitentiary constituted a danger to the correctional officer or others at the time of the investigation and at the time of the refusal to work" [emphasis added; Board Decision, para. 64].

[9] The applicant cites the cases Bidulka v. Canada, [1987] 3 F.C. 630 (C.A.) (Bidulka) and Canada v. Bonfa (1989), 113 N.R. 224 (F.C.A.) (Bonfa) as well as a line of Public Service Staff Review Board (PSSRB) and Canada Labour Relations Board (CLRB) decisions to argue that the only relevant evidence for the safety officer to consider is that which is present at the time of the investigation. Since there was no danger present (i.e. no minimum staffing policy in place) at the time of the investigation, there could be no finding of danger.

[10] The respondents largely reiterate the decision of the Board. They argue that there is no temporal limitation in the legislation regarding the definition of "danger", and that none should be read in. A purposive approach to the interpretation of the Code was taken by the Board which decided that a temporal limitation would restrict the safety officer's ability to fulfil his legislative mandate.

The merits

[11] The issue at bar is a narrow one which must be examined in the context of the particular circumstances of the case.

[12] The safety officer was of the view that his duty was to look at the situation on the actual date on which the investigation was conducted. He concluded that there was no danger at the time of the investigation.

[13] The Board saw the matter somehow differently. It felt entitled to look at the circumstances at the time of the refusal to work as well as at the circumstances at the time of the investigation by the safety officer. The applicant argues that the Board had no jurisdiction to enquire as to the existence of a danger at the time of the refusal to work.

[14] I see no merit in this argument. Sections 128 and 129 of the Canada Labour Code are based on the premise that an employee may refuse to work if he has a reasonable cause to believe that there exists a danger. The mere fact that the safety officer may only intervene if there is a danger at the time of the investigation does not preclude him from examining the whole context, including the circumstances prevailing at the time of the refusal to work. To understand and determine whether a danger exists in the workplace, it must be permissible to consider all the evidence, whether it be historical or present at the time of the investigation. I do not read the existing case law as precluding such an approach. I read the following paragraph of the reasons for judgment of Pratte J.A. in Bidulka as a statement to the effect that circumstances existing at the time of the refusal to work may be relevant:

[...] The task of a safety officer under paragraph 86(2)(b) is clearly to determine whether, at the time of the investigation, a "condition exists ... that constitutes a danger to the employee". The fact that there had been violence on the picket lines a few days before the investigation was clearly not a condition that existed at the time of the investigation of the safety officers. It would, of course, have been relevant to the determination that they had to make if the situation had not changed since those eruptions of violence. But it was precisely because they judged that the situation prevailing at the time of their investigation was different from the one that had existed earlier that the safety officers decided as they did. Because of that change, one could not reasonably anticipate that the future would be a mere repetition of the past.

[at 377]

[15] That being said, however, the existence of a danger at the time of the refusal to work does not in and by itself give the safety officer or, ultimately, the Board, jurisdiction to give directions to the employer with respect to that danger. It is only with respect to a danger that exists at the time of the investigation that directions may be given. In the case at bar, the Board, having found that no danger existed at the time of the investigation, erred in law in finding that a dangerous condition existed with respect to Units 3 and 4. The only option open to the Board was to confirm the report of the safety officer.

[16] Counsel for the respondents argued forcefully that a danger existed at the time of the investigation as the minimum staffing policy was still on the books, though not enforced.

[17] This argument, with respect, is based on a misconceived perception of the refusal to work mechanism set out in the Code.

[18] The mechanism is an ad hoc opportunity given employees at a specific time and place to ensure that their immediate work will not expose them to a dangerous situation. It is the short-term well-being of an employee which is at stake, not a hypothetical or speculative one.

[19] The mechanism is an emergency measure. It is a tool placed in the hands of the employee when faced with a condition that could reasonably be expected to cause injury or illness to him before the hazard or condition can be corrected. See Scott C. Montani (1994), 95 di 157, at page 7:

The Board has stated that Parliament did not intend to deal with danger in the broadest sense of the word. See David Pratt (1988), 73 di 218; and 1 CLRBR (2d) 310 (CLRB no. 686). Danger within the meaning of the Code must be perceived to be immediate and real. The risk to employees must be serious to the point where the machine or thing or the condition created may not be used until the situation is corrected. Also, the danger must be one that Parliament intended to cover in Part II of the Code.

The right to refuse is an emergency measure. It is to be used to deal with situations where employees perceive that they are faced with immediate danger and where injury is likely to occur right there and then. It cannot be a danger that is inherent in the work or that constitutes a normal condition of work. Nor is the possibility or injury or potential for danger sufficient to invoke the work refusal provisions; there must in fact be danger. See Stephen Brailsford (1992), 87 di 98 (CLRB no. 921); and David Pratt, supra. Nor is the provision meant to be used to bring labour relations issues and disputes to a head. Where such refusals coincide with other labour relations disputes, the Board will pay particular attention to the circumstances of the refusal. See Stephen Brailsford, supra; Ernest L. LaBarge (1981), 47 di 18; and 82 CLLC 16,151 (CLRB no. 357); and William Gallivan (1981), 45 di 180; and [1982] 1 Can LRBR 241 (CLRB no. 332).

[20] The mechanism is not the means by which the bulk of the objectives of Part II are achieved. See Michel Collard (1993), 92 di 49, at page 4:

[...] In fact, the safety officer, while recognizing that concerns on the long-term effects of these products may exist, decided for the purposes of the inquiry on the refusal to work to restrict himself to the reason for the refusal.

This procedure, the Board readily recognizes, complies with the general scheme of the Code and its own case law on this matter. In fact, the right of refusal constitutes but a part of the structure of Part II of the Code that is aimed at protecting the health and safety of workers, and remains well outlined as the Board stated in Atkinson, supra (pages 81-83) [Dennis C. Atkinson (1992), 89 di 76 (CLRB no. 958)]. This is one of the reasons the Board's case law insists on the fact that this procedure must not constitute the preferred way to promote a healthy and safe environment (see David Pratt (1988), 73 di 218; and 1 CLRBR (2d) 310 (CLRB no. 686), pages 225-226; and 317-318; and Rosario Coulombe (1989), 78 di 52 (CLRB no. 747), pages 63-65).

[21] The mechanism is a continuing one available whenever, and as often as, an employee has reasonable cause to remove himself from the workplace.

[22] It follows, in my view, that the right of an employee to refuse to work for safety reasons is an important but limited right that has to be exercised in accordance with the particular context. The right is not meant to be used as a tool to obtain a ruling from a safety officer, the Board or this Court with respect to a policy which is not implemented at the time of the investigation. Whether a safety officer could find that a policy not implemented at the time of the investigation is nevertheless a "danger" giving an employee the right to refuse work because of bad faith on the part of the employer or because of a likelihood of implementation in the immediate future is an issue better left unresolved as it does not arise in this case. The respondents, here, have achieved their goal. The work refusal provisions of the Code have been applied to their advantage. To ask for more, as a matter of principle, is to go beyond the object of the provisions.

[23] For obvious reasons, I refrain from expressing any view on the impact, if any, of the legislative changes brought to Part II of the Canada Labour Code (S.C. 2000, c. 20) and which came into force on September 30, 2000, well after the events that we are concerned with in this application.

[24] A final comment is warranted. The Board, at paragraph 48 of its reasons, has interpreted the words "au terme de l'enquête" in subsection 129(2) of the Code as meaning "the terms of the investigation". This interpretation is on its face erroneous. "Terme", used in the singular, means "at the end" or, to use the words of the English version, "on completion of". Furthermore, one would be at a loss here to find "the terms" of the investigation.

[25] I would allow with costs the application for judicial review, set aside that part of the decision of the Board which rescinded the report of the safety officer and found that a dangerous condition existed with respect to Units 3 and 4 and refer the matter back to the Board for a new determination to be made on the basis that the report of the safety officer ought to be confirmed.

"Robert Décary"

J.A.

"I agree.

Marc Noël, J.A."

DESJARDINS J.A. (Concurring)

[26] I had the advantage of reading in draft the reasons for judgment of my colleague Décary J.A. I agree with his reasons but I wish to add considerations of my own.

[27] The issue raised by the applicant deals with the time period the safety officer must consider in order to determine whether "a condition exists...that constitutes a danger to the employee" who "continues to refuse...to work in a place" (my emphasis), as these terms are to be understood under subsection 129(1) and paragraph 129(2)(b) of the Canada Labour Code (the "Code").

[28] Ideally, there should be no or little time lag between the moment an employee "refuse[s] to... work" (my emphasis), because a condition exists that constitutes a danger to him (paragraph 128(1)(b)), and the moment the safety officer starts his investigation, considering that the employee must "forthwith report the circumstances of the matter to his employer" (subsection 128(6)), that the employer "shall forthwith...investigate the report" (subsection 128(7)), that, "[w]here an employee continues to refuse... to work", both the employer and employee "shall each forthwith notify a safety officer" who in turn "shall forthwith...investigate the matter", (subsection 129(1)).

[29] The reality is often different.

[30] In Bidulka v. Canada, [1987] 3 F.C. 630 (F.C.A.), the situation on the picket line had changed from the moment the meat inspectors refused to work till the time the safety officers made their inspections. In Canada v. Bonfa (1990), 113 N.R. 224 (F.C.A.), the danger complained of had disappeared from the moment the expulsion officer refused to escort a Ghanian to the hospital, for fear of a contagious disease, till the time the security officer arrived, considering the Ghanian had already been escorted to the hospital by another officer. In Kavanagh v. Treasury Board (Solicitor General Canada -Correctional Service, [2000] C.P.S.S.R.B. No.3, the fumes had dissipated by the time the safety officer arrived on site.

[31] In the case at bar, it was on the morning of November 22, 1999 that the seven correctional officers "technically" refused to work, when they found that only two officers were assigned per Unit and that they were called upon to work with only one other correctional officer in their Unit. The safety officer conducted his investigation on November 24 and 25. When the visits were carried out, he noted that there were more than two officers on staff in all of the four Units, and that support staff, such as clerical staff and parole officers, were also present. Given that the refusal to work was based on the staffing of only two correctional officers and given that he was required to make a determination as of the time of the conduct of his investigation, he found no evidence of danger.

[32] What constitutes a "danger" is thus defined under subsection 122(1) of the Act:

"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.

(my emphasis)

[33] The legislation, on the one hand, provides that the existence of danger is to be made prior to the correction stage. The safety officer is therefore required to examine the working conditions at the time of the refusal to work.

[34] The safety officer, on the other hand, is told by our Court in Bidulka, supra, at 641, that a determination as to whether a condition exists that constitutes a danger to the employee, so as to justify a continuation of his refusal to work, is to be made at the time of the investigation. An employee can continue to refuse to work only if such a danger exists. If no danger exists, an employee has no justification to continue to refuse to work.

[35] The Board somewhat felt this discrepancy and took the following route. It looked at the "matter" to be investigated [paras. 71-72 of the reasons of the Board]. It estimated that the safety officer ought to have determined whether the cause of the "technical" refused to work, namely minimum staffing, constituted a danger both at the time of the investigation on November 23 and 24 and at the time of the refusal to work on November 22, 1999. The safety officer had only answered the first question. The Board determined that the report was insufficient and proceeded to make its own analysis on the second question. It concluded that Units 3 and 4 represented a dangerous condition as a result of having only 2 correctional officers on staff on November 22, 1999.

[36] The Board was required to take this broader view under the ruling of our Court in Bidulka. Both timing periods were relevant, namely whether danger existed "before the hazard or condition can be corrected" and whether it existed at the time of the investigation. The safety officer is therefore called upon to determine whether the danger, if it existed, still exists, and whether the corrective measure, if taken, is effective.

[37] What the Board could not do however was to substitute its decision to that of the safety officer on the ultimate determination which is whether the continuation of the refusal to work in Units 3 and 4 was justified. That decision can only be taken at the time of the investigation and not at the time of the refusal on November 22, 1999.

[38] Moreover, neither the safety officer nor the Board, could consider the "minimum staffing policy". The mechanism provided by the Code calls for a specific fact finding investigation to deal with a specific situation. It is not meant to provide a forum for an analysis of an employer's policy.

[39] I would dispose of this matter as suggested by my colleague Décary J.A.

"Alice Desjardins"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-653-00

STYLE OF CAUSE: Attorney General of Canada -v- Ken Fletcher and others

PLACE OF HEARING: Ottawa, Ontario

DATE OF HEARING: October 15, 2002

REASONS FOR

JUDGMENT BY: Décary J.A.

CONCURRED IN BY: Noël J.A.

CONCURRING REASONS

BY: Desjardins J.A.

DATED: November 5, 2002

APPEARANCES:

Mr. Harvey Newman FOR THE APPLICANT

Mr. Richard Fader

Mr. Edward Kravitz FOR THE RESPONDENTS,

Ken Fletcher,Claude Gallant, Fred Johnson and James Macleod

Mr. Andrew Raven FOR THE RESPONDENTS,

L.P. Leblanc, Phillip Leclerc, Steven Richard and J.R. Hebert

SOLICITORS OF RECORD:

Mr. Morris Rosenberg

Deputy Attorney General of Canada FOR THE APPLICANT

Ottawa, Ontario

Sauvé & Roy FOR THE RESPONDENTS

Montreal, Québec

Raven, Allen, Cameron & Ballantyne FOR THE RESPONDENTS

Ottawa, Ontario

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Canada (Attorney General) v. Fletcher, 2002 FCA 424

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2002 FCA 424