Docket: T-2094-13
Citation: 2015 FC 208
Ottawa, Ontario, February 18, 2015
PRESENT: The Honourable Madam Justice McVeigh
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BETWEEN:
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ATTORNEY GENERAL OF CANADA
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Applicant
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and
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BRIAN ZIMMERMAN
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of the
November 26, 2013 decision of the Appeals Officer of the Occupational Health
and Safety Tribunal Canada. The decision rescinded the prior decision dated
November 16, 2009 of the Health and Safety Officer that no danger existed for
the Respondent, Corrections Officer Brian Zimmerman, after he exercised a
refusal to work under section 128 of the Canada Labour Code, RSC, 1985,
c L-2 (“the Code”). The Appeals Officer found that a danger existed and
directed the employer to correct the hazards within 90 days.
[2]
This application should be dismissed for the
following reasons.
I.
Facts
[3]
The Respondent refused to work citing eight
safety issues in a new satellite living unit called “Unit 4” at Kent
Institution located in Agassiz, B.C. The Unit at issue is referred to as Unit 4
and/or as Pod 1 throughout the evidence.
[4]
Kent Institution is the only maximum security
institution for men (336 beds) in the Pacific Region. The unique new 96 bed Unit
4 was opened a few months before the Respondent initially refused to work on
November 3, 2009. The Unit is unique to Kent Institution as it is self
contained and has its own living units, yards, program corridors, common room,
laundry rooms and gym. Unit 4 is connected to the rest of Kent Institution by a
corridor with barriers.
[5]
Unit 4 has an upper gallery (gun walk) that
overlooks the ranges and common areas and permits a Corrections Officer to
observe inmates below. One of Unit 4’s differences from other units at the Kent
Institution is that the other units have a feed from Closed Circuit Television
(“CCTV”) directly fed to the Main Communications Control Post (“MCCP”). Unit
4’s camera feed does not go to the MCCP. MCCP is where all communications are
received and conveyed pertaining to alarms and other emergency situations at
Kent Institution. Instead, the camera feed for Unit 4 goes to Unit 4’s Control
Post (“CP”), the Security Intelligence Office (“SO”), the Emergency Command
Post (“ECP”) and the Correctional Manager (“CM”)’s office.
[6]
The issues the Respondent raised for his first work
refusal on November 3, 2009 were:
1.
Intermittent loss of control of Unit Lighting;
2.
Intermittent loss of control of the Intercom
system;
3.
Intermittent loss of control of the tier and
common area camera system;
4.
Loss of door camera coverage during range walks;
5.
No CCTV monitoring feed in the MCCP;
6.
Cell doors opening outside of operator control;
7.
Weapons retention in the gun-single point
harness;
8.
Cell night lights turning on at the same time.
[7]
When the Respondent first refused to work, the Assistant
Warden investigated the eight safety issues identified by the Respondent. The
Assistant Warden agreed with the Respondent that a danger existed and staff
were removed until the danger was fixed.
[8]
Warden Massey investigated the identified issues,
responded to some and then determined the danger was resolved with regard to
items 1, 2, 3, 4 and 6, and that only items 5, 7, and 8 remained. The Warden stated
that the lack of a CCTV feed from Unit 4 to the MCCP was not a danger as the
feed was sent to the Unit 4 CP, the CM office and SO’s office for
investigative/evidentiary purposes. Warden Massey said that more research could
be conducted to see if a feed to MCCP was possible.
[9]
The Warden agreed that the security bars on the
gun walk were a danger and that Correctional Services Canada (“CSC”) needed to
purchase single point gun harnesses. The request for the gun harnesses was sent
to Regional Headquarters for approval with an answer expected the next week.
The Warden responded to concern #8 by stating that there was a request
regarding the cell night lights.
[10]
With these findings, the Warden expected a full
return to work by November 13, 2009. However, on November 12, 2009, the
Respondent again refused to work pursuant to subsection 128(13) of the Code.
[11]
Health and Safety Officer (“HSO”) O’Byrne
investigated the Respondent’s continued refusal to work and found on November
16, 2009 that a danger did not exist as he “…had an
assurance of voluntary compliance from the employer to address and resolve the
matter.” HSO O’Byrne confirmed that no feed into MCCP from Unit 4 removes
a layer of protection for the Correctional Officers (“COs”) but that it did not
constitute a danger and that “continued safety concerns
are more speculative in nature and unlikely to create a future danger.”
[12]
The decision of HSO O’Byrne was appealed on
November 16, 2009. A hearing was held on October 16, 2012. A transcript of that
hearing was filed as part of the Record. The Appeals Officer, Douglas Malanka,
rendered a decision on November 26, 2013, and that decision is the subject of
this Judicial Review.
II.
The Appeal Officer’s Decision
[13]
The material issue in the Appeals Officer’s
decision was that Unit 4 is unique in that there is no CCTV feed from the Unit
to the MCCP as there is in every other unit of the prison. The CCTV
communication post is manned and monitored and in all other unit is the “eyes”
on developing situations and when incidents occur. Unit 4 is designed
differently from other units as it can be monitored from above and the camera
feeds from Unit 4 go the CP, CM’s office and SO’s office rather than to the
main CCTV at the MCCP.
[14]
The second issue before the decision maker was
that the gun posts in the upper level of the unit are constructed so that guns
could fall through to the prisoners. This was earlier remedied somewhat by
installing security bars but the Respondent still felt exposed to danger.
[15]
The Appeals Officer found that the lack of MCCP
monitoring in CCTV of Unit 4 increased the risk of injury that was not
otherwise mitigated for the COs working there. The Appeals Officer found that un-monitored
CCTV in Unit 4 removed a layer of protection for the workers that was available
in other parts of Kent Institution.
[16]
Secondly, the Appeals Officer found that the
space between the security bars in the shooting portals on the gun gallery were
large enough for a CO’s rifle to accidentally fall through to the inmate area. The
employer added horizontal bars to prevent a rifle from falling through but the
Respondent identified the horizontal bars as also being a hazard. The Appeals Officer
found that this issue was addressed but according to Mr. Zimmerman, not
appropriately. The Appeals Officer found the horizontal bars a danger because an
officer in the gun gallery may not give a warning shot as easily.
III.
Arguments and Analysis
[17]
The Applicant submits that the Appeals Officer’s
decision is unreasonable because:
•
the officer failed to review and comment on
central evidence that explained how the unique design of Unit 4 eliminated any
situation that constituted a danger as defined in the Code. That Unit 4
has a unique self-contained design that reduces the movement of inmates, in
turn reducing the opportunity for security incidents;
•
the Appeals Officer used the improper test for
danger, relying on hypotheses and conjecture;
•
the Appeals Officer was unreasonable in
accepting some evidence as “unchallenged” when the employer submitted evidence
that Unit 4 was designed to eliminate any threat of danger to COs;
[18]
The Respondent disagrees and submits that this
matter should be dismissed because:
•
section 146.3 of the Code, states that the Appeals
Officer’s decision is final, provides a privative clause and that the expertise
of the Appeals Officer attracts deference in matters of health and safety;
•
that the unique design of Unit 4 was not a
central argument of the employer and that the Appeals Officer nonetheless
mentioned the unique nature of the living unit;
•
that the reasons reflect an understanding of the
issues and evidence and that the Appeals Officer is not required to explain
each piece of evidence and is reasonable based on the evidence before the
Appeals Officer.
[19]
I agree with the Respondent that the decision
was reasonable.
[20]
Both parties agree that the standard of review
of the decision is reasonableness (Martin-Ivie v Canada (Attorney General),
2013 FC 772 at para 18).
[21]
The Appeals Officer conducted a de novo
hearing before rendering his decision. The Tribunal heard evidence from seven
witnesses for the Union Advisor. The testimony of Deputy Warden Mattson and Mr.
Hunken for the Applicant was referred to in the decision. As well there was full
argument from the parties’ counsel.
[22]
The Appeals Officer rescinded the previous decision
that a danger did not exist and a direction was issued directing the employer “to take measures within 90 days to correct the hazards that
constitute the danger and to report those measures to a Health and Safety
Officer of the Vancouver district Office by February 24, 2014.”
[23]
The Appeals Officer concluded from the evidence:
… that the absence of CCTV feed from Pod 1
to the MCCP increases risk of injury for COs working in Pod 1 or responding to
an emergency there as it removes a layer of protection available to COs in
other parts of Kent Institution which is not otherwise mitigated. Such CCTV
feed enables the MCCP officer to provide and/or confirm necessary and timely
intelligence for COs and responding to an assault or other emergency such as
the exact location of the alarm or emergency, the number of inmates potentially
involved, the nature of the emergency, whether ancillary fire safety equipment
is required, the presence of weapons and whether anyone is injured and needing
medical, enhance the ability of COs to reorganize their response to emergencies
and/or incidents and to call for or receive timely police, medical or other
emergency assistance and other information that was identified by COs.
I further conclude that addition of
horizontal bars installed in viewing windows on the gun gallery to prevent
rifles from falling or being pulled by inmates through the grates constitutes a
danger for COs working in Pod 1 and for COs responding from other parts of Kent
Institution to an emergency. The evidence confirms that the gun gallery officer
has an important safety role for deterring and/or curtailing an emergency
situation before it escalates in magnitude or risk and for directing a deliberate
shot to save someone’s life. With the addition of the bars, the CO is required
to withdraw and reinsert the firearm through the bars each time the inmate in
question moves. As a result of the horizontal bars affixed to the gun portals,
the gallery gun walk officer is not capable in every circumstance of delivering
a necessary warning or deliberate shot during an incident to quell or arrest an
incident or to save the life of a CO.
[24]
The decision dealt with three issues:
A.
The absence of camera feeds (CCTV) from Unit 4 (Pod
1) being fed to the MCCP;
B.
The alleged deficiencies related to the Intercom
system in Unit 4 (Pod 1);
C.
The alleged deficiencies related to work on the Unit
4 (Pod 1) Gun Walk post.
[25]
The Appeals Officer asked himself if there was a
reasonable possibility of an injury occurring because of the three issues
stated above.
[26]
Danger is defined in subsection 122(1) of the
Code as including any current or future activity that could reasonably be
expected to cause injury to a person exposed thereto before the hazard can be
corrected or the activity altered. The Appeals Officer relied on Justice J. Gauthier
(as she then was) in Verville v Canada (Correctional Services), 2004 FC
767 and the Federal Court of Appeal in Canada Post Corporation v Pollard,
2008 FCA 305, that the precise time the potential hazard would occur did not
need to be established, but what must be established is in what circumstances
could it be expected for an injury to occur in the future with a reasonable
possibility, but not a mere possibility.
[27]
At the hearing, the Applicant gave evidence that
the camera feed to MCCP is not necessary in this unit because: the unique
design of Unit 4 enabled actual eyes from above; because a camera feed goes
within the unit; and because of “dynamic security”.
[28]
The Applicant says the dynamic security that is
utilized on Unit 4 ensures there is no danger working on the unit. The unique
design creates more controlled inmate movement. The direct observation on this
unit makes the MCCP feed not necessary unlike on other units where it is
necessary. The Applicant says there is no gap because direct observation is
better. The Applicant further argued that the self contained nature of the unit
with less inmate movement, more staff and a dedicated gun gallery officer makes
it unnecessary to have a CCTV feed to MCCP.
[29]
The Respondent submitted that based on the evidence
at the hearing, the CCTV feed to MCCP is essential for his personal safety and
without that feed to MCCP, it is dangerous to work on that Unit. The Respondent’s
evidence of a danger included:
•
when radios are silenced, the communication hub
of the prison should have a camera feed and CCTV monitored link for MCCP to see
what is going on;
•
that the inmate’s art of diverting attention of
the COs in one area when something occurs in another area would make the single
set of eyes on the CP of Unit 4 and the eyes from above insufficient. With multiple
eyes monitoring the CCTV feeds at the MCCP, the COs attention would not be as
easily diverted or if one set of eyes was diverted, that not all the MCCP people
would be distracted and this would increase the safety;
•
There are six sets of specifically trained eyes
at the MCCP that can spot issues developing and communicate to the proper
emergency personal when radio silence is essential on the unit;
•
During any radio silence, the MCCP is the eyes
of the institution and determines when to bring in the primary response team;
•
The higher incidence of weapons being used, so
the chance of an emergency is even higher. The Respondent says that the live
feed MCCP provides immediate assistance to both inmates and correctional
officers;
•
The lack of a CCTV feed to MCCP could diminish the
ability of first responders receiving timely information on any situation that
is occurring on the unit and to respond to emergencies including calling in
police or medical emergency assistance;
•
The response time to Unit 4 is between 15 to 30
seconds which is longer due to the number of barriers that need to be opened because
the unit is self contained;
•
Evidence was that having the CCTV feed to the CP
only in Unit 4 does not mitigate the danger as in an emergency the two COs in
the control post are not monitoring the cameras; they are opening doors into
Unit 4 to allow emergency and other responders in and to get the COs off the
living units;
•
The personal alarms are assigned to units and do
not indicate who sounded the alarm or where exactly it was sounded;
•
The evidence was that in seven seconds, 33 stab
wounds or 50 head blows could be given and if there was a MCCP feed the first
responders could be directed exactly where to go;
•
Evidence that a firearm had been deployed twice
in the unit since its opening and that a firearm can only be deployed to
prevent death, grievous bodily harm to a correctional officer or inmate or
escape when all lesser means are unavailable or have proven unsuccessful (See
Post Order F-11 Gallery Post: Pod Living Unit Gun Walk at Appendix A).
[30]
I disagree that the decision maker did not
understand and address the uniqueness of Unit 4 or fully understand and
appreciate the extensive evidence of the Applicant on this point.
[31]
The Appeals Officer at paragraphs 57 and 99 wrote:
57 Mr.
Girard stated that the testimony of Deputy Warden Mattson was that dynamic
security is a fundamental tool and operating strategy for CSC. According to
Deputy Warden Mattson, dynamic security encompasses full interaction between
COs and inmates and makes Kent more secure because staff know more about
individual inmates and that information can be assessed and responded to by
staff and management.
99 … the respondent held that any danger
that might exist is mitigated by: the unique self contained design of Pod 1
which reduces inmate movement and enhances dynamic security; CSC’s policies and
in the form of Commissioner Directives, Standing Order, Post Orders, Job
Descriptions; the training provided to COs; and the protective equipment issued
to COs.
[32]
The Appeals Officer found at paragraph 100:
In this regard, I find the respondent did
not demonstrate how the numerous policies, procedures, standing orders
addressing dynamic security, control of inmate movement, CO training and CO
personal protection equipment mitigate the absence of live feed from CCTV
cameras in Pod 1 to the MCCP especially after an assault or incident has
occurred despite all of the security measures in place. Moreover, CM Verville
testified that information provided by the MCCP assists dynamic security and
emergency response in the living units.
[33]
The Appeals Officer referred to the testimony of
the Deputy Warden of what is done on Unit 4 to protect the COs rather than the CCTV
being monitored by the MCCP. The Appeals Officer then listed in great detail
the evidence given on behalf of the Applicant. That evidence included what was
in place for Unit 4 which was different than what is in place in the other
units given there was no CCTV feed to MCCP. His finding that the fact guns had
been used twice in Unit 4 according to the Post Order F-11 Gallery Post: “Unit
4 Gun Walk means that the CO is “exposed thereto not as
a mere possibility but as a reasonable one.”
[34]
The Appeals Officer heard all the evidence and
weighed it. He made a finding that he would give “considerable weight” to the
front line officers’ evidence. I will not reweigh the evidence.
[35]
The Appeals Officer was alert to the issue of
the unique design. There would not have been a need for the hearing if the unit
had not been unique in design as the CCTV feed would have been to MCCP. The
reasons do refer to the unique style and dynamic security but also says that
during an assault none of those things assist. A review of the hearing transcript
confirms that there was evidence to support the findings made by the Appeals
Officer.
[36]
This was a detailed and lengthy decision and
though not every piece of evidence was mentioned in the decision, it is not
necessary. Newfoundland and Labrador Nurses' Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62, tells us that the decision does not
have to be perfect and when read as a whole is within an acceptable range and
the decision is reasonable. I find that the Appeals Officer fully addressed and
understood that Unit 4 was unique and then gave more weight to the evidence of
the CO and found a danger existed.
[37]
Further, the Appeals Officer found that the
horizontal bars hinder the gallery gun walk officer’s ability to deliver a
timely, accurate shot. He found the risk of an emergency situation and the
necessity of firing the gun was not hypothetical and had occurred. The Appeals Officer
also found that the role of the officer on the gun walk is an important safety
role to save lives or to curtail an emergency situation. Consequently, the
Appeals Officer used the appropriate test for danger and assessed it
accordingly.
[38]
The second argument of the Applicant is that it
was unreasonable to say twice in the decision that the Respondent’s evidence
was “unchallenged”. At paragraph 102, the Appeals Officer indicated that the CO’s
evidence was unchallenged regarding the feed:
The unchallenged testimony of COs Zimmerman,
Aulakh, Conteh and Sterkenburg and CM Verville was that CCTV feed from Pod 1
cameras to the MCCP provides a level of protection to CO that may reduce the
risk of injury and severity in an emergency. According to the COs, the MCCP can
provide immediate and essential information to COs responding to an alarm or
other emergency situation regarding the location of incident, the number of
inmates potentially involved, the nature of the emergency, whether ancillary
fire safety equipment is required, the presence of weapons and whether anyone
is injured and needing medical assistance. Additionally, the MCCP officer can
enhance the ability of COs to reorganize their response to emergencies and/or
incidents and to call for or receive timely police, medical or other emergency
assistance. An example of an early call for medical assistance by the MCCP
officer was put into evidence.
[39]
Again, at paragraph 111:
The unchallenged evidence of CO Strekenburg
was that the use of weapons has increased at Kent and he has personally
observed stabbings and the unchallenged evidence of COs Aulakh and Strekenburg
was that it takes longer to respond to an incident in Pod 1 and that 33 stab
wounds or 50 head blows could be delivered by someone in as little as seven
seconds.
[40]
The Applicant submits this was an error by the
Appeals Officer because the employer submitted evidence that Unit 4 was
designed to eliminate any threat of danger to COs. The Applicant says they
challenged all of the evidence so it is a reviewable error.
[41]
Specifically, the evidence at paragraph 102 was
what the MCCP can do. The evidence of what the MCCP can do was not challenged.
What the Applicant challenged was whether the unique design of the Unit and the
protocol in place placed the Respondent in danger.
[42]
At paragraph 111, the unchallenged evidence was
concerning the use of weapons increasing at Kent Institution and that the CO
had personally observed stabbings and the response time to incidents in Unit 4.
When I review the transcript, that evidence was not challenged.
[43]
In the lengthy and detailed decision, the
Appeals Officer said he was giving “considerable weight
to the testimonies of the Correctional Officers as ordinary witnesses based on
their extensive knowledge, experience and training regarding the issues.”
[44]
There was evidence that supported that there was
no danger in not having the CCTV feed in Unit 4 going to MCCP and there was
evidence to support the findings made by the Appeals Officer that there was a
danger. The Appeals Officer did not ignore evidence but choose to give the evidence
of the front line officers more weight. The use of the word “unchallenged”
references very specific findings and not the evidence presented as a whole.
Microscopic review of the use of the word “unchallenged” does not hold up
against a reading of the decision as a whole.
[45]
Reasonableness requires that the decision must
exhibit justification, transparency and intelligibility within the decision
making process and also the decision must be within the range of possible,
acceptable outcomes, defensible in fact and law (Dunsmuir v New Brunswick,
2008 SCC 9; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12). I
find that this decision was reasonable and meets this standard.
[46]
I will dismiss the application and order costs
in the amount of $250.00 to be paid forthwith by the Applicant to the Respondent.
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