Federal Court makes it easier to refuse work

Guards at federal penitentiary in British Columbia win right to new hearing after refusing unsafe work — ruling impacts all workers covered by the <i>Canada Labour Code</i>

The Federal Court has interpreted changes made in 2000 to the Canada Labour Code to mean that employees covered by the code have much more latitude in refusing to work in dangerous situations. The ruling effectively changes the way workplace danger is treated and the conditions under which an employee covered by it can refuse unsafe work.

In Verville v. Canada (Correctional Services) the court ruled an employee is not required to prove a hazard exists every time he steps on the job or that every time the hazard occurs it will cause an injury. It said the code only requires that one ascertain in what circumstances the potential hazard could be expected to cause injury and that it be established there is a reasonable possibility such circumstances will occur in the future.

In a case involving 15 prison guards in British Columbia, the court said the guards were within their rights to refuse to work after they were told they could no longer carry handcuffs.

The case hinged on the definition of “danger” under the code, which was amended in 2000. Prior to 2000 the code was intended to ensure that immediate work would not expose an employee to a dangerous situation. In other words it was the short-term well-being of an employee that was at stake.

But with the addition of the words “potential” and “future activity” to the definition of danger in 2000, the code is no longer limited to specific factual situations existing at the time the employee refuses to work, the court ruled.

On Sept. 24, 2001, the 15 guards at the Kent maximum security penitentiary in Abbotsford, B.C., refused to carry out their duties because of an alleged danger created by a recent order restricting their ability to carry handcuffs at their discretion.

The Correctional Service of Canada (CSC), the guards’ employer, had implemented a “dynamic security model” for guards. It mandated the removal of traditional symbols of authority in interactions between prisoners and correctional officers in an effort to increase the officers’ safety. (The model had been in place for some time, but was being more strictly enforced.)

Basically the security model meant guards needed special permission to routinely carry handcuffs and if an incident occurred someone would need to run to a nearby secure area to retrieve handcuffs to help subdue a violent inmate. In the past the guards had carried handcuffs at their discretion.

An initial ruling by a Human Resources Development Canada (HRDC) health and safety officer agreed the policy was in contravention of the code. But that ruling was overturned by the HRDC appeal office, which said that unpredictable, spontaneous assaults by inmates did not amount to a danger defined in the code because they were not evidence of a specific and immediate threat at the time of the refusal to work.

But the Federal Court’s decision set the HRDC ruling aside because it did not respond to the new definition of danger in the code.

Prior to September 2000 the definition of danger in the code read:

“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.”

The definition now reads:

“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.”

In her decision, Justice Johanne Gauthier said “if a hazard or condition is capable of coming into being or action, it should be covered by the definition … one does not need to be able to ascertain exactly when it will happen.”

Justice Gauthier ordered a different HRDC appeal officer to review the original ruling under the new definition of danger.

For more information:

Verville v. Canada (Correctional Services), 2004 CarswellNat 1551 (F.C.)

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