Date: 20111212

Docket: T-2001-10

Citation: 2011 FC 1454

[UNREVISED CERTIFIED ENGLISH TRANSLATION]

Ottawa, Ontario, December 12, 2011

PRESENT:     The Honourable Madam Justice Bédard  

BETWEEN:

	DAVID LAROCHE
		Applicant
	and
	ATTORNEY GENERAL OF CANADA
		Respondent

 

         REASONS FOR JUDGMENT AND JUDGMENT

 

[1]   This is an application for judicial review of a decision of a health and safety appeals officer, made on September 20, 2010, following a refusal to work exercised by David Laroche (the applicant) under section 128 of the Canada Labour Code RSC 1985, c.  L-2 (the Code). The appeals officer upheld the decision of the health and safety officer who had determined that the refusal to work exercised by the applicant had no basis because a danger did not exist.

I. Background

[2]   The applicant is a border services officer (officer) with the Canada Border Services Agency (CBSA) in the Montréal region and, is, inter alia, an expert in searches. CBSA search experts are required to carry out their duties during searches that fall under the CBSA mandate and the legislation it enforces. These operations are often carried out with police forces such as the RCMP and the Sûreté du Québec or municipal police forces. Sometimes various police forces request help from CBSA search experts in the course of searches that fall under their jurisdiction and not that of the CBSA.

 

[3]   In carrying out their duties, officers wear defensive and protective equipment in accordance with the CBSA Policy on the Wearing of Protective and Defensive Equipment (the Policy). The protective equipment includes body armour and communication devices. The defensive equipment includes pepper spray, a defensive baton, handcuffs and a duty firearm.

 

[4]   Until March 2009, search experts wore their protective equipment and defensive equipment during all search operations, whether they occurred during operations under the CBSA mandate or those under the jurisdiction of police forces where the officers were assisting police officers. In March 2009, the CBSA amended the Policy to forbid their officers from wearing their defence equipment during searches under the jurisdiction of police forces. This change was introduced after the CBSA received a legal opinion stating that when officers participate in operations falling outside of the CBSA’s mandate and the legislation it enforces, they are not acting in their capacity as peace officers and thus are not protected under section 25 of the Criminal Code if an incident were to occur.

 

[5]   On March 13, 2009, the CBSA asked the applicant if he would agree to participate as a search expert in a search scheduled for March 17, 2009, as part of a search operation under the mandate of the Service de Police de la Ville de Montréal (SPVM). At that time, the applicant was informed for the first time that he could not carry his defence equipment during this operation because it was not within the CBSA mandate. The applicant exercised a refusal to work under the Canada Labour Code, RSC 1985, c.  L-2 (the Code), claiming that the situation – to act as a search expert without his defensive tools - put him in danger.

 

[6]   The health and safety officer responsible for investigating and determining whether the refusal to work had merit, i.e. whether a there was danger as defined in section 122.1 of the Code, found that a danger did not exist. The applicant appealed this decision and on September 20, 2010, the appeals officer responsible for the file rejected the appeal. She determined that there was no reasonable possibility of danger. It is this decision that is the subject matter of this application for judicial review.

 

II. Legislative framework

[7]   Part II of the Code contains provisions that impose health and safety duties on employers and, in particular, in preventing accidents and occupational illness. The Code also provides that an employee may, in certain circumstances, exercise a right to refuse to work.

 

[8]   Section 122.1 of the Code states that the purpose of Part II of the Canada Labour Code is “to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment to which this Part applies”. Section 124 of the Code sets out the general duty that employers ensure that the health and safety at work of every person employed by the employer is protected, whereas sections 125 to 125.3 set out more specific obligations. The Code also provides that an employee may, in certain circumstances, exercise a right to refuse to work:

 

[9]   The term “danger” is defined in subsection 122(1) of the Code:

 

III. The impugned decision

[10]           The appeals officer described as follows the process she felt that she should follow to determine whether the applicant would be exposed to danger if he had participated in the search without his defensive equipment:

                        …

[100]    In deciding whether without wearing his protective equipment, D. Laroche was exposed to a danger and having in mind the definition of the term “danger” set out in the Code and the interpretation of that definition made by Gauthier J. in Verville, I must first consider the work activity that was to be carried at that time before considering whether that protective equipment could fend off a danger on March 17, 2009.

 

[101]    In fact, in order to reach a conclusion of danger within the meaning of the decision by Gauthier J. and the definition of this term set out in the Code, I must:

 

1.      identify the hazards associated with carrying out this work activity;

 

2.      identify the circumstances in which it is reasonably possible that these hazards could cause injuries to D. Laroche;

 

3.      then determine whether these circumstances could have occurred on March 17, 2009, not as a mere possibility but as a reasonable one.

…

 

 

 

 

[11]           The appeals officer determined that the hazards in question involved an officer being exposed to “an armed individual who resists arrest, gunshots, knife wounds or physical resistance that could cause injury”.

 

[12]           With respect to the second element of the analysis, the appeals officer first noted that apart from the fact that the applicant had to wear his bulletproof vest and was not allowed to wear his defensive equipment, no evidence was submitted to her about the conditions in which the applicant had to carry out this work activity on March 17, 2009. Thus, she had to rely on the evidence presented regarding the circumstances in which this this work activity had been carried out in the past to determine the circumstances in which the hazards were likely to have caused injury to the applicant.

 

[13]           The appeals officer identified the following circumstances as those in which the hazards were likely to have caused injury:

                        …

[110]    On the basis of the foregoing and the evidence presented, I understand that the following were the circumstances in which the above‑noted hazards were likely to cause injury to D. Laroche on March 17, 2009:

 

1. if the location had not been properly secured beforehand and an armed individual was at the location;

 

2. if the police officers did not properly guard the location and an armed individual was within the outside perimeter of the location or managed to enter the location.…

 

 

[14]           The appeals officer noted that the CBSA asked police forces that made a request for assistance to (1) to secure the search location, before contacting their officers to notify them to attend at the location; (2) to guard the location as long as the CBSA officers were present there; and (3) to ensure that no person at the location, except for police officers, had weapons or access to weapons. She indicated that the application of these measures minimized the possibility that the identified hazards would occur.

 

[15]           The appeals officer then assessed whether the probability that these hazards would occur was a mere possibility or a reasonable possibility for each hazard identified.

 

[16]           She first determined that the hazard that the location was not properly secured beforehand and an armed person could be in the premises was reduced to a minimum and there was not a reasonable possibility that it would occur. She based her finding on the following:

1.    The search locations were always subject to a carefully drawn-up pre-established intervention plan;

2.    The search locations were always subject to a painstaking inspection by the police forces;

3.    The persons arrested at the location were always removed before the CBSA officers entered it;

4.    The police forces always contacted the CBSA officers to notify them to report to the location only after they had secured it.

 

[17]           With respect to the second hazard, that an armed person could enter the search location during the operation, the appeals officer noted that the evidence established that in the past when the outside perimeter was not properly guarded, CBSA officers nevertheless entered the location and conducted their search. She also noted that the evidence established that the SPVM did not include any special measures to protect CBSA officers after the location has been inspected and secured. She also noted that the evidence demonstrated that the applicant had the option to refuse to enter the premises and perform his work if he suspected upon arriving at the location that it was not properly guarded. She concluded as follows:

                        …

[116]    Since D. Laroche could decide not to enter the location and refuse to perform the search if he saw or suspected that the outside perimeter of the location was not properly guarded, I am of the opinion that it was not reasonable to believe that the second above‑noted circumstance could cause injury to D. Laroche on March 17, 2009 before that hazard could be corrected.

 

[117]    I therefore conclude that the second above-noted circumstance was a mere possibility and not a reasonable possibility.

 

…

 

[18]           The appeal officer's analysis led her to conclude that there was no danger to the applicant within the meaning of the definition in the Code.

 

[19]           The appeals officer continued her decision with an obiter in which she stated that the information and the information gathering process used by the CBSA following a request for assistance from a police force were insufficient to enable the Agency to properly identify and assess the hazards that its officers would be exposed to before deciding whether to agree to the request for assistance. She found that the existing measures, including measures implemented after the applicant exercised his right of refusal, did not comply with the spirit of the Code provisions regarding prevention and she made some recommendations.  

 

IV. Issues

[20]           This application for judicial review raises the following issues:

A. Are the proceedings moot? If so, should the Court exercise its discretion to decide the application for judicial review?

B. Did the appeal officer err in her assessment of the evidence and did she fail to consider relevant evidence?

 

V. Standard of review  

.

[21]           In Canada Post Corporation v Pollard, 2008 FCA 305, at para 12, 170 ACWS (3d) 777 (Pollard), the Federal Court of Appeal determined that the decisions of an appeals officer with respect to the definition and application of the concept of “danger” in subsection 122(1) of the Code should be assessed under the “reasonableness standard”. The parties agree that this standard of review applies in this case.

 

[22]           The Court's role in judicial review of a decision on the standard of reasonableness was set out in Dunsmuir v New Brunswick, 2008 SCC 9, at paragraph 47,  [2008] 1 SCR 190.

… A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes.  In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

 

VI. Analysis

A. Are the proceedings moot? If so, should the Court exercise its discretion to decide the application for judicial review?

 

[23]           In his memorandum, the respondent indicated that on December 23, 2010, the CBSA decided to cease all activities assisting police forces in operations that were beyond the scope of the Agency's mandate. Although this decision was made after the refusal to work and after the hearing before the appeals officer, the respondent believes that it is a circumstance that should be communicated to the Court and that it makes the proceedings moot because border officers are no longer asked to participate in searches without their defensive equipment. The respondent relies on Borowski v Canada (Attorney General) [1989] 1 S.C.R. 342 (available on CanLII) [Borowski] and Canada (Attorney General) and Zhang, 2007 FC 235, 313 FTR 133. The responded also argued that, under the circumstances, the Court should not exercise its discretion to intervene.  

 

[24]           In Borowski, the Supreme Court held that a court may decline to decide a case which raises merely a hypothetical or abstract question. The Supreme Court defined a hypothetical question and set out the criteria that should guide the Court when deciding whether to use its discretion to hear a case despite it being moot. The Court indicated that an appeal is moot when a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties. The controversy must be present not only when the action or proceeding is commenced but also when the Court is called upon to reach a decision. To determine whether the dispute is moot, the Court must determine whether the requisite tangible and concrete dispute has disappeared rendering the issues academic. If so, it is then necessary to decide if the Court should exercise its discretion to hear the case despite it being moot. The Supreme Court identified factors that should guide the Court in deciding whether to exercise its discretion. Justice Sopinka, writing for the Court, set them out as follows:

…

 

31        The first rationale for the policy and practice referred to above is that a court's competence to resolve legal disputes is rooted in the adversary system. The requirement of an adversarial context is a fundamental tenet of our legal system and helps guarantee that issues are well and fully argued by parties who have a stake in the outcome. It is apparent that this requirement may be satisfied if, despite the cessation of a live controversy, the necessary adversarial relationships will nevertheless prevail. …

 

…

 

34        The second broad rationale on which the mootness doctrine is based is the concern for judicial economy. (See: Sharpe, "Mootness, Abstract Questions and Alternative Grounds: Deciding Whether to Decide", Charter Litigation.) It is an unfortunate reality that there is a need to ration scarce judicial resources among competing claimants. The fact that in this Court the number of live controversies in respect of which leave is granted is a small percentage of those that are refused is sufficient to highlight this observation. The concern for judicial economy as a factor in the decision not to hear moot cases will be answered if the special circumstances of the case make it worthwhile to apply scarce judicial resources to resolve it.

 

…

 

40        The third underlying rationale of the mootness doctrine is the need for the Court to demonstrate a measure of awareness of its proper law-making function. The Court must be sensitive to its role as the adjudicative branch in our political framework …

 

41        … In considering the exercise of its discretion to hear a moot case, the Court should be sensitive to the extent that it may be departing from its traditional role.

 

42        In exercising its discretion in an appeal which is moot, the Court should consider the extent to which each of the three basic rationalia for enforcement of the mootness doctrine is present. This is not to suggest that it is a mechanical process. The principles identified above may not all support the same conclusion. The presence of one or two of the factors may be overborne by the absence of the third, and vice versa.

 

…

 

 

[25]           I am of the opinion that the dispute between the parties in this case is not moot. The decision that is subject to this application for judicial review involves the right of refusal that the applicant exercised on March 13, 2009. This debate involves the policy and procedures applied by the CBSA when it received a request for assistance from a police force, but the issues that the appeals officer had to decide involved a specific right to refuse work exercised with respect to a given situation, specifically the one that existed on March 13, 2009. In this respect, the fact that the CBSA later decided to no longer provide assistance to police officers in operations that do not fall under their mandate does not change in any way the debate regarding the right to refuse work exercised by the applicant and the appeals officer’s decision. 

 

[26]           I also believe that, even if the dispute were to be considered moot following the CBSA’s decision, the Court should hear the application for judicial review. First, the CBSA’s decision is a purely administrative decision that could be changed at any time. Furthermore, the mootness of the debate was raised by the respondent only in his memorandum and not as a preliminary matter and the parties made submissions on the merits of the application for judicial review. I believe that the issue is serious and the additional resources required to resolve it are limited and justified under the circumstances.

 

B. Did the appeals officer err in her assessment of the evidence and did she fail to consider relevant evidence?

 

[27]           The applicant submits that the findings of the appeals officer ignore the evidence on the record and contradict her own findings regarding the employer’s obligations. The applicant submits that the appeals officer should have also taken into account the disastrous consequences for the applicant if the identified hazards had occurred. He submits that the assessment of danger should not be limited to examining the probability that the hazard might occur but also consider the seriousness of the consequences: when the consequences for the employee are serious, the level of probability is of little importance.

 

[28]           The respondent believes that the appeals officer applied the right criteria to assess whether a danger existed and argued that her assessment of the evidence is reasonable. The respondent submits that the applicant is asking the Court to reassess the evidence and the weight that should be given to the various pieces of evidence submitted, which is not the role of the Court.

 

[29]           For the reasons that follow, I believe that the appeals officer’s decision is unreasonable and warrants the intervention of the Court.

 

[30]           First, I believe that the appeals officer correctly identified the issues she had to decide to determine whether a danger existed. I do not share the applicant’s opinion that the appeals officer should bypass or adjust the “reasonable possibility” criterion to take into account the seriousness of the consequences if the hazard were to occur. The definition of danger set out in subsection 122(1) of the Code does not permit a balancing in relation to the seriousness of injury or illness. Once a hazard can reasonably be expected to cause injury or illness, it is a danger, regardless of the seriousness of the injury or illness. The definition of danger is established around the probability of the hazard occurring and not the seriousness of the consequences if the hazard occurs.  

 

[31]           In Canada Post Corporation v Pollard, 2007 FC 1362, 321 FTR 284, Justice Dawson aptly summarized the state of the law concerning the criteria for assessing the concept of danger:

66        As a matter of law, in order to find that an existing or potential hazard constitutes a “danger” within the meaning of Part II of the Code, the facts must establish the following:

 

(1)   the existing or potential hazard or condition, or the current or future activity in question will likely present itself;

 

(2)   an employee will be exposed to the hazard, condition, or activity when it presents itself;

 

(3)   exposure to the hazard, condition, or activity is capable of causing injury or illness to the employee at any time, but not necessarily every time; and

 

(4)   the injury or illness will likely occur before the hazard or condition can be corrected or the activity altered.

 

67        The final element requires consideration of the circumstances under which the hazard, condition, or activity could be expected to cause injury or illness.  There must be a reasonable possibility that such circumstances will occur in the future.  See: Verville v. Canada (Correctional Services) (2004), 253 F.T.R. 294 at paragraphs 33-36.

 

68        In Martin C.A., cited above, the Federal Court of Appeal provided additional guidance on the proper approach to determine whether a potential hazard or future activity could be expected to cause injury or illness.  At paragraph 37 of its reasons, the Court observed that a finding of “danger” cannot be grounded in speculation or hypothesis. The task of an appeals officer, in the Court’s view, was to weigh the evidence and determine whether it was more likely than not that the circumstances expected to give rise to the injury would take place in the future.

 

.

[32]           The Federal Court of Appeal, which upheld this decision in Pollard, cited above, reiterated the criteria for applying the definition of “danger” as follows:

16        The Appeals Officer, at paragraphs 71 to 78, reviewed the case law on the concept of “danger”. Relying more particularly on the decision of this Court in Martin v. Canada (Attorney General), 2005 FCA 156 (CanLII), 2005 FCA 156 and that of Madam Justice Gauthier in Verville v. Canada (Correctional Service), 2004 FC 767, he stated that the hazard or condition can be existing or potential and the activity, current or future; that in this case the hazards were potential in nature; that for a finding of danger, one must ascertain in what circumstances the potential hazard could reasonably be expected to cause injury and to determine that such circumstances will occur in the future as a reasonable possibility (as opposed to a mere possibility); that for a finding of danger, the determination to be made is whether it is more likely than not that what the complainant is asserting will take place in the future; that the hazard must be reasonably expected to cause injury before the hazard can be corrected; and that it is not necessary to establish the precise time when the hazard will occur, or that it occurs every time.

 

17        This statement of the law is beyond reproach or is, at the least, reasonable in the Dunsmuir sense.

 

[33]           In Martin v Canada (Attorney General), 2005 FCA 156 (CanLII), [2005] 4 FCR 637, Justice Rothstein described, at paragraph 42, the role of the Court in analyzing the decision of an appeals officer:

It is not for this Court to weigh that evidence or to come to any conclusion about whether the evidence rose to the level of a reasonable expectation of injury, or indeed whether park wardens should be issued handguns. That is for the appeals officer to determine. However, this Court is required to determine whether the appeals officer had regard to relevant evidence. The failure to take account of relevant evidence by him in this case was patently unreasonable.

[Emphasis added]

 

[34]           With respect, moreover, I believe that the appeals officer in this case did not have regard to relevant evidence and that, in doing so, she made an unreasonable decision.

 

[35]           The appeals officer analyzed two hazards: (1) the hazard of being attacked by an armed person who stayed in the location before the arrival of the CBSA officers because the location was not properly secured beforehand; and (2) the hazard that an armed person could enter the search location during the operation because it was not properly guarded during the operation.

 

[36]           The appeals officer’s finding regarding the first hazard seems entirely reasonable to me. She found, based on relevant evidence, that the possibility that the first circumstance could occur was reduced to a minimum.

 

[37]           In my opinion, it is the appeals officer’s reasoning with respect to the second hazard that is problematic. The appeals officer found that there was only a mere possibility that an armed person could enter the search location during the operation and injure the applicant. The problem does not rest in this finding so much as in its justification.

 

[38]           The appeals officer based this finding on the possibility that the applicant could refuse to enter the location and perform his work if he saw or suspected that the outside perimeter of the location was not properly guarded. This finding does not take into consideration that fact that, even if the surveillance measures were sufficient at the beginning, these circumstances could change during the operation. In this situation, the fact that it was possible for the applicant to refuse to enter the location before the operation is no longer the only relevant consideration when assessing the hazard that a person could enter the site during the operation. The appeals officer’s finding is even more surprising because she acknowledged that the SPVM’s intervention plans did not include any special measures to protect CBSA officers once the site was inspected and secured.

 

[39]           I am of the view that the appeals officer’s decision does not make it possible to determine whether she considered the evidence that searches took place under dynamic circumstances that could change and develop during an operation. Her analysis was incomplete: she considered the circumstances that existed when the applicant arrived on the search location but not those that could develop during an operation. This component, which had been raised by the applicant, was just as relevant and it was overlooked by the appeals officer. Yet, several pieces of evidence were relevant to assessing and measuring the risk of injury associated with the possibility that one or more persons could enter the premises during the operation, in particular: 

1.    The nature of the sites where the searches were carried out.

2.    The testimony of the applicant and his colleague L. Moreau who stated that during their searches of private homes they were alone in most of the rooms in which they worked.

3.    The testimony of the applicant that he had been working alone in a basement with a single point of access and that when he found the object of the search and called the police officers working upstairs, several minutes went by before they came down to find him.

4.    The testimony of the applicant that for a search conducted on an exterior site, the police officers stayed in their car and that he had been offered no close cover.

5.    The testimony of L. Moreau that he had never felt or been given the impression that the police officers present at the location were there to protect him during his searches.

6.    The testimony of the applicant and L. Moreau that no police officer escorted them from or to their vehicle as they approached and left the search location, and more specifically, the testimony of the applicant that he had once been obliged to return to his vehicle to collect some detection tools during one of the searches.

7.    The testimony of R. Groulx, a member of the RCMP, regarding the dynamic nature of the operations and the possibility that the circumstances could change during an operation.

8.    The testimony of the applicant and L. Moreau on the training they received to defend against attacks with their defensive equipment and their vulnerability if they were to be attacked when they did not have their defensive equipment.

9.    The testimony of Y. Patenaude of the SPVM who stated that if the outside perimeter of a search location is not well guarded, anyone can enter the location. 

 

[40]           I do not wish to prejudge the weight that the appeals officer should have given to this evidence in light of all of the other evidence, but this evidence was relevant and it is impossible to know what weight the appeals officer gave it or if she gave it any weight at all. This omission makes her decision unreasonable.

 

[41]           In Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), 157 FTR. 35, 83 ACWS (3d) 264, Justice Evans aptly described what evidence must be raised in a decision to demonstrate the tribunal’s decision-making process:

16        On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court … nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it …. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.

 

17        However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence" … In other words, the agency’s burden of explanation increases with the relevance of the evidence in question to the disputed facts.

 

[42]           By stating that she based her finding of a lack of danger on the fact that the applicant could refuse to enter the search location if he suspected that it was not properly guarded, the appeals officer conducted an incomplete analysis. She failed to consider the possibility that circumstances could change during the operation and thus failed to weigh the relevant evidence in this regard.

 

[43]           Thus, I find that the appeals officer failed to consider evidence that was relevant to the analysis that she had to conduct. It was not enough to mention this evidence in other sections of her decision without indicating the weight she gave it in her analysis.

 

[44]           For all of these reasons, this application for judicial review is allowed.

 

[45]           The applicant did not request costs and no order for costs will be made.  

 

JUDGMENT

THIS COURT ORDERS AND ADJUDGES that this application for judicial review is allowed. The appeals officer’s decision is quashed and the matter is referred back to the appeals officer so that she may complete her analysis in accordance with the reasons of this judgment. Without costs.

 

 

“Marie-Josée Bédard” 

 

 

 

 

Certified true translation

Monica F. Chamberlain

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                           T-2001-10

 

STYLE OF CAUSE:                            DAVID LAROCHE v ATTORNEY GENERAL OF CANADA

 

 

PLACE OF HEARING:                       Ottawa, Ontario

 

DATE OF HEARING:                         October 24, 2011

 

REASONS FOR JUDGMENT

AND JUDGMENT:                             BÉDARD J.

 

DATED:                                               December 12, 2011

 

 

 

APPEARANCES:

 

James Cameron	FOR THE APPLICANT
Martin Charron	FOR THE RESPONDENT

 

SOLICITORS OF RECORD

 

Raven, Cameron, Ballantyne, & Yazbeck LLP/s.r.l. Ottawa, Ontario	FOR THE APPLICANT
Myles J. Kirvan Deputy Attorney General of Canada Ottawa, Ontario	FOR THE RESPONDENT