2011 OHSTC 7

Appellants' submissions

[22] In summary in their final argument, the appellants submit that a danger within the meaning of subsection 122(1) of the Code did exist when they refused to undertake work they believed to constitute a danger to themselves on January 6, 2009.  They claim that the HSO erred in his decision, that he made factual findings in the absence of evidence and that he failed to consider properly the evidence that was put before him.  In addition, on the basis of the de novo element of the appeal process, they submit that the respondent breached a number of sections of the Code by failing to: eliminate hazards, protect its employees, provide sufficient training, make sure that each employee is made aware of every known or foreseeable health and safety hazard, and properly consult with the Health and Safety Committee.

[23] The appellants claim that the facts stated in their submission are borne out by the evidence given by themselves and their 2 witnesses, Mr. Mike Lee, Employee co-chair of the NHSPC and Mr. Franco Di Lisi, at the time of the refusals Worker co-chair of the local Workplace Health and Safety Committee (WHSC) and still an employee member of that committee.  Both individuals are employed by G4S as armed guards. The appellants challenge the credibility of the respondent's witness, Mr. John Honan, G4S National Training Manager, claiming that his evidence was characterized by vagueness, exaggeration and glossing over of adverse facts.

[24] [Text redacted]

[25] [Text redacted]

[26] [Text redacted]

[27] [Text redacted]

[28] With respect to the [text redacted] therefore irrelevant insofar as [text redacted]. In this connection, Mr. Lekarczyk testified to having customers in a restaurant having remarked to the effect that [text redacted].

[29] The appellants argue that several deficiencies exist in G4S training and related procedures. [Text redacted].

[30] With respect to Express Deposit procedures, the appellants testified that a typical Express Deposit route involves an average of [text redacted] and that they had experienced stops at which [text redacted]. Each [text redacted].

[21] [Text redacted]

[32] The appellants submit that the [text redacted] own assessment of safe crewing, citing, in support of their contention, a discussion at a meeting of the NHSPC held on May 7, 2003, concerning the [text redacted]. The issue arose with the [text redacted].

[33] The appellants argue that, "The true reasons behind G4S's decision to have a single employee [text redacted] are purely financial in nature." They claim that in 2004, in the light of projected amendments to the Criminal Code concerning liability and increased penalties for management failing to ensure employee and public safety, G4S identified prospects for developing the low liability market offering [text redacted] services to fast food outlets and other retailers who may previously have relied on their own staff to acquit the task. Citing an entry in the company web-site, the appellants note that Express Deposit was promoted by G4S to would be clients as a [text redacted] service that "fits within your budget". They submit that, in fulfilling this claim, G4S cut the costs of its labour and equipment by instituting a one agent crew for transporting [text redacted] at the expense of the health and safety of its own employees.

[34] In their submission on the law applicable to the appeal, the appellants quote verbatim the definition of "danger" from subsection 122(1) of the Code.  They argue that the test to be applied in the instant case is that set out by the Appeals Officer in Securicor Canada Limited and Canadian Auto Workers Union, Local 4266-A^{Footnote 1}. The relevant paragraph reads as follows:

[35] Addressing first the "existing or potential hazard or condition" or the "current or future activity that could reasonably be expected to cause injury" to them, the appellants argue that it is the [text redacted] (i) a [text redacted] and/or call 911 in the event of an incident; (ii) [text redacted].

[36] On the existence of the alleged potential hazard at the time of HSO Maklan's investigation or if it could reasonably be expected to exist in the future, the appellants dismiss the relevance of the absence of police reports of anticipated robberies arguing that it does not rule out a robbery and noting that the HSO wrote in his report that, "robbery, whenever significant amounts of money are being carried, is a risk". They further maintain that, "Whether or not robberies or attempted robberies have occurred in the past is not dispositive of whether there is a danger, given that the definition of danger is also prospective". They cite the Appeals Officer in Securicor Canada Limited, referenced above, at paragraph 17, that:

[37] Given the nature of the work that had to be done by them, the appellants submit a number of detailed reasons why a robbery could be reasonably expected to occur in the future. In summary, the appellants' reasons include the following: (1) that they are [text redacted] unknown to a potential robber and that a [text redacted] (2) [text redacted] their G4S uniforms and G4S vehicle logo are the same as [text redacted] (3) the maximum liability limits for Express Deposit are irrelevant since an observer cannot see what is inside the bag and (4) [text redacted] (5) there is no evidence that "professionals" would not target Express Deposit agents in future, and that robberies are not exclusively carried out by "professionals" and can be perpetrated by spur of the moment robbers.

[38] With respect to the hazard, condition or activity of picking up and transporting [text redacted] using the Express Deposit model and the prospect that "it could reasonably be expected to cause injury", the appellants cite again [text redacted].

[39] The appellants further submit that injury could reasonably be expected to be caused to them before the hazard or condition can be corrected. In effect, they submit that G4S has created [text redacted]. They argue that G4S will not correct the hazard unless and until it is directed to do so, notwithstanding its acknowledgement in the context of the [text redacted] that it is not safe to [text redacted].

[40] In support of their argument, the appellants refer to decisions in 5 appeals relating to the armoured car industry in which the presence of danger was found or confirmed.  They make comparisons with their own concerns and what they term as "factually similar refusals" in the cases cited.

[41] In anticipation of a respondent argument that, if there was a danger in this case, then it was a normal condition of employment, the appellants submit that there is nothing normal or regular about the Express Deposit model which departs from industry practice, described [text redacted] and is contrary to G4S assessments and policies.

[42] In conclusion, the appellants summarize their argument stating that G4S has created a danger by removing the [text redacted] sending them [text redacted] thereby failing to discharge their responsibilities under sections 124 and 125 of the Code. They submit that financial considerations have driven choices and that such considerations should not prevail over employee health and safety concerns. They maintain that concerns voiced by worker members of the health and safety committee have been ignored and that [text redacted] procedures of Express Deposit do not make up for the hazards the model creates.  They seek relief in the following specific forms: a declaration that a danger exists; a direction that effectively requires [text redacted] a declaration that G4S failed to properly consult the health and safety committees, referencing paragraph 125(1)(z), subsections 134.1(4) and 135(7) of the Code; a declaration that G4S failed to properly eliminate or reduce hazards, to ensure protection of the appellants health and safety, provide sufficient training and ensure that each employee is made aware of every known or foreseeable H&S hazard, referencing sections 122.2, 124 and paragraphs 125(1)(q) and (s) of the Code.

Respondent's submissions

[43] With respect to the refusals on January 6, 2009, the respondent argues that the appellants were both trained to perform and had performed Express Deposit routes. They had never experienced an attempted or actual robbery or suffered an injury while on Express Deposit work. Their refusals were prompted by what they had heard, third hand, about another employee's health and safety concerns not being resolved. According to the respondent, the appellants refused Express Deposit that day without seeking information or having knowledge of the specific routes and retail locations involved, the specific hazards that may or may not have been present at the locations, and the condition of the specific vehicle and personal protective equipment they would be using.

[44] The respondent's sole witness at the hearings was Mr. John Honan, National Training Manager, G4S Canada. Mr. Honan testified to being in the armoured car industry since 1991, initially with a competitor company but with G4S or its predecessors since 2001. He described his varied experiences in the industry, including having worked to some extent as an armed guard and as a dispatcher before moving to the training manager role that he still fulfills. He has completed accredited firearms instructor courses recognized by federal and provincial authorities.  He testified to having developed the G4S national training program and to having responsibility for all aspects of armed guard training including health and safety. As will be evident below, the respondent's closing submissions draw frequently on his oral testimony given at the hearings.

[45] The respondent's description of the [text redacted] vehicle and [text redacted] aspect of the Express Deposit model is in accord with that already detailed above. The respondent submits that the model is not an [text redacted] transit services offered by G4S but a venture into a newly emerged market. Arguing the distinctness of the model, the respondent  quotes the following from testimony given by Mr. Honan:

[46] Outlining the development of Express Development and alluding again to Mr. Honan's testimony, the respondent submits that it studied how similar [text redacted] services were being offered in Quebec [text redacted] in Nova Scotia. Beyond Canada, Mr. Honan visited the United Kingdom to examine the [text redacted].

[47] Further testimony indicated that a suggested Express Deposit vehicle and training package was presented to the NHSPC and most of the committee's feedback was incorporated in the model, including: [text redacted]. The respondent claims that consultations were held with the local Workplace Health and Safety Committee and a job hazard analysis was created with input from both committees. According to the respondent, piloting the model in London, Ontario, afforded an opportunity for additional employee feedback.

[48] The respondent argues that a number of precautionary measures, described at the hearings, were in place at the time of the refusals that "greatly mitigated the risk of injury and illness associated with performing Express Deposit." With respect to[text redacted] is also argued that the daytime only service, adopted it is claimed after input from employees, [text redacted].

[49] With respect to training, the respondent submits emphatically that neither of the appellants denied that they were trained or that they were familiar with performing Express Deposit and notes that their testimony generally reflected such familiarity. In its closing written submissions, the respondent covers in some detail the main elements of a presentation that took up a significant portion of Mr. Honan's testimony-in-chief at the hearings. It is a comprehensive presentation of some 120 slides that in hard form fills 60 pages and is the basis for training employees on the Express Deposit model. In summary, the elements of the training program comprise: [text redacted] the risk of actual injury to an agent before the danger could be addressed…..was extremely remote."

[50] Prefacing its argument that [text redacted], the respondent submits that, "The proper assessment to be undertaken in this Appeal is strictly whether Express Deposit posed a ‘danger' in 2009, not whether [it] is riskier than the performance of a different service in different circumstances."  It notes, however, that Mr. Honan testified that "it would not necessarily be less risky to have Express Deposit services performed by crews in [text redacted]." The respondent maintains that performing CIT services in armoured cars appears to [text redacted] and notes that "robberies of armoured cars have actually occurred (albeit infrequently). Mr. Honan testified that, based on the company's experience and on what he termed their review of security intelligence and scholarly studies, robberies in the industry are almost always well-planned and that such robbers are less likely to pursue [text redacted] where the anticipated return from a robbery [text redacted]. In brief, the respondent argues that, [text redacted] public presentation of Express Deposit is, in and of itself, a way of mitigating risk." Finally, the respondent cites the history of Express Deposit since the company began to offer the service on a regular basis in 2005, as being free of attempted or actual robbery and without injury or illness being experienced by the appellants or other employees when engaged in Express Deposit duties.

[51] In overall summary of its position, the respondent submits that, despite multiple days of hearings, the appellants "have simply not provided persuasive objective evidence …. that would lead to a finding that there was a ‘danger' which triggered a right for them to invoke the Refusal on January 6, 2009." Paraphrasing legal authorities, it is argued that prospective danger is not merely to be equated with the presence of risk and that evidence must demonstrate a reasonable, not mere, possibility that the hazard will occur in the future. Further, it must be shown that it is more likely than not that significant injury or illness will occur upon exposure to the hazard and that it will do so before the hazard can be corrected. According to the respondent, in the present appeal these "pre-requisites …. have not been established". In the alternative, even if a danger within the meaning of the Code did exist, the respondent submits that evidence at the hearings supports a finding that it would be a "normal condition of employment" within the meaning of paragraph 128(2)(b) of the Code and that the appellants were still precluded from refusing to work.

[52] With respect to relevant law the respondent note that, since amendments to Part II of the Code in 2000, the definition of "danger" in subsection 122(1) "includes not only immediate hazards or conditions but also prospective or future hazards or conditions that could reasonably be expected to manifest themselves and that are likely to cause injury or illness before the hazard can be addressed or the condition altered".  The respondent argues that the prospective element is qualified by case law citing among other cases the Federal Court of Appeal decision in Martin v. Canada (Attorney General) ^{Footnote 2} and quoting from it that, "A finding of danger cannot be based on speculation or hypothesis".  In the respondent's words this requires, "an HSO or Appeals Officer to come to conclusions based on reasonable inferences of what is likely (for example more probable than not) to occur in future, drawn from evidence presented to him or her of actual past and existing circumstances." According to the respondent case law has developed a widely recognized test for the presence of danger and that 4 part test "is most clearly stated in the often-cited Chapman v. CCRA"^{Footnote 3}. It reads as follows:

• the potential hazard or condition or future activity in question will like present itself
• an employee will likely be exposed to the hazard , condition or activity when it presents itself
• the exposure to the hazard, condition or activity will likely cause injury or illness to the employee exposed thereto
• the injury or illness will likely occur before the hazard or condition can be corrected or activity altered

[53] Drawing on Chapman, the respondent argues that case law is consistent in holding that all 4 pre-requisites must be established in order to meet the definition of danger. In Chapman itself, the SARS case, the respondent notes that the Appeals officer concluded that a hazard was not likely to present itself but went on to consider the other pre-requisites also concluding that they would not be satisfied. Special reference is made to the impending element in the fourth pre-requisite citing in this context Martin v. Canada ^{Footnote 4} at the Federal Court. Other cases are cited offering examples of no danger where the hazard could be corrected before injury or illness would occur, Employees & Amalgamated Transit Union and Laidlaw Transit Ltd. - Para Transpo Division and Michel Labrecque ^{Footnote 5}; and, no danger where training, experience, personal protective equipment and guidelines served to reduce the hazard to acceptable levels, Pepin v. Bell Canada ^{Footnote 6}.  In all, the respondent submits that, "the threshold for a finding of danger is a high one".

[54] The respondent further submits that the right to refuse work is an exceptional measure characterized as "not meant to address longstanding problems" in Stone v. Canada (Correctional Service) ^{Footnote 7}. Emphasizing the point, the respondent refers to Fletcher v. Canada in the Federal Court of Appeal as cited in Byfield v. Correctional Service of Canada ^{Footnote 8}:

[55] Turning to the case law cited by the appellants, the respondent submits that it is of limited value in deciding the present appeal since it deals with different services and circumstances from the performance of Express Deposit on January 6, 2009, and refers in this regard to its argument on [text redacted], as contained in the body of its written closing submissions.

[56] Stressing its primary position that the appellants were not in danger at the time of their refusals, the respondent submits that a finding of the presence of danger would require a second stage analysis of whether or not the activity concerned is a normal condition of work, citing Verville v. Canada (Correctional Services) ^{Footnote 9}, as follows:

Finding danger in an activity to be a normal condition of work would obviate the right to refuse.

[57] Applying its submissions on the law to the facts in the appeal, the respondent submits that the evidence at the hearings does not meet the multi-part test of the presence of danger and that rather it supports the absence of danger at the time of the refusals.  According to the respondent, the chances of the hazard, in the form of a risk of robbery or attempted robbery, manifesting itself were remote at the time given the total absence of past incidents, so remote as to be speculative or hypothetical. In the alternative, it is argued, if the hazard could reasonably be expected to manifest itself, the many preventive measures and training it would be even more unlikely that the appellants would have been exposed to it. Further, it is claimed, in the unlikely event that the appellants were exposed to the hazard, it would be less likely that they would incur actual injury as a result. Again, in the unlikely event that the hazard manifesting itself, the precautionary measures, including the [text redacted] would correct the situation before injury or illness could occur.

[58] The respondents submit that the circumstances of the refusals, with the appellants invoking the provision before they were aware of the specifics of the routes, the equipment or the vehicle, after learning second or third hand of another employee's concerns about Express Deposit, calls into question whether this is an appropriate case to find that there was a "danger".  The respondent ventures that this case is more about addressing an ongoing health and safety issue rather than a response to their being subject to injury before a situation could be corrected.

[59] The respondent submits the evidence establishes that the Express Deposit services were normal conditions of work for the appellants at the time of their refusals and that their own evidence confirms this. Both appellants, it is argued, had performed the services a number of times without incident. Nothing on January 6, 2009, diverged from normal and all normal mitigating features, equipment and practices were in place that day. In short, the respondent submits that there is no basis for finding a breach of sections 124, 125 or 125.1 of the Code and that the HSO did not make such a finding and such alleged breaches were not pursued at the Appeal.

[60] In conclusion, the respondent submits that evidence presented at the hearings support a finding of no danger and that, in the alternative, the activity assigned to the appellants at the time of their refusals was a normal condition of work. An order confirming HSO Maklan's no danger decision and dismissal of the appeal is sought. In the alternative, that the HSO's decision be varied in one respect, that is the working conditions at issue are normal conditions of work.

Appellants' reply

[61] The appellants submit a lengthy reply arguing in general that the respondent did not deny specifically the facts they raised and that they failed to counter the appellants' case for the presence of "danger" within the meaning of the Code, a danger the appellants claim does not constitute a normal condition of employment. Their principal argument on case law concerns the test proposed by G4S for "danger", as articulated in Chapman that the appellants argue has been bad law since the Federal Court issued its decision in Verville.  Some parts of the appellants' reply repeats or references arguments made and facts cited in their initial Final Argument. While the reply has been considered in full, the following points and arguments have been extracted.

[62] Concerning the January 6, 2009, refusals, the appellants take issue with the respondent's contention that they had never previously refused Express Deposit even though they had both undertaken the work before. A contention that the appellants appear to believe requires context. They argue that their refusals "derived from concerns about their safety arising from a similar refusal by a co-worker…….to work Express Deposit due to danger on November 18, 2008 -- less than 2 months prior."  They learned that the earlier refusal had not been resolved on the day they themselves invoked the right to refuse and maintain that, as of that date, they had not performed Express Deposit since the November 18, 2008 refusal.

[63] The appellants dismiss as fallacious the respondent's assertion that "it would not necessarily [text redacted] have Express Deposit services performed by [text redacted].  The test of danger is not, they argue, whether Express Deposit is riskier than other [text redacted]; the existence of danger is to be determined in the circumstances of Express Deposit itself.  Further, the [text redacted] and the appellants submit the [text redacted] Even if Express Deposit is a [text redacted], they argue it does not follow that the risk of robbery is lower than that faced by [text redacted] or that "danger" could never arise with respect to the Express Deposit model.

[64] Turning to the test for danger, the appellants dispute G4S's reliance on the Chapman test, found in an appeal, they argue, decided by the Appeals Officer before the Federal Court issued its decision in "the leading case" of Verville. They submit that the Chapman test overstates the test of danger by improperly introducing a higher standard of proof than required by subsection 122(1) of the Code. Citing, Welbourne v. Canadian Pacific Railway Company ^{Footnote 10} and Verville at paragraph 41, the appellants argue that the test of danger is one of "reasonable expectation" only requiring that the hazard, condition or activity in question be capable of coming into being or action and that it could reasonably be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected.  They claim that, "Conversely, the Chapman test is one of ‘likelihood':" with the hazard, condition or future activity "likely" presenting itself,  an employee "likely" being exposed to it , it "likely" causing injury or illness that will "likely" occur before the condition can be corrected.

[65] The appellants note the respondent's view that conclusions about the future, in the context of "danger", must be based on inferences drawn from actual past or existing events rather than from mere speculation and hypothesis and reject the accompanying argument that, "the chances of the hazard in question (for example the risk of robbery or attempted robbery of an Express Deposit agent) actually manifesting itself were remote at the time of the refusal given the total absence of any past incidents upon which to assume that the hazard would actually arise". The appellants argue to the contrary that, "the hazard of becoming the target of a robbery or assault while picking up and transporting [text redacted] reasonably be expected to exist in the future." Further that, "evidence of past incidents is not required for finding that a robbery or attempted robbery could take place in the future."

[66] The appellants re-visit Welbourne, Martin and Verville, on the scope of prospective risk and the test and evidence for the future presence of a hazard. While granting "a potential hazard is speculative in the absence of any evidence that it could reasonably occur in future", they argue that, "In proving that the hazard is capable of coming into being…..where [it] is entirely dependent on the unpredictability of human behaviour (like in Verville), a finding of potential or future hazard is not limited to evidence of ‘actual past and existing events'".

[67] The appellants claim that, "In the cash services industry, a reasonable possibility that a robbery or assault could occur in future is anchored in the nature of the work done by the refusing employees." In support of their claim, they cite findings in 4 Securicor decisions referenced in their initial Final Argument, repeating the quote from Securicor Canada Limited and Canadian Auto Workers Union, Local 4266-A that, "a theft or assault could occur without warning and that it is unlikely to identify the potential aggressor before the situation could occur."  They also point to the HSO's report and his noting, "robbery, whenever significant amounts of money are being carried, is a risk."  They reject the respondent's submission that, in the alternative, training for Express Deposit agents minimizes the chances of putting themselves in the way of a robbery or attempted robbery claiming that no amount of training can compensate for the excessive danger occasioned by the Express Deposit model.  The appellants conclude that, "the potential hazard is neither speculative nor hypothetical in nature but rather a reasonable possibility."

[68] Referencing the above quote from Verville, the appellants submit that their own testimony and that of Mr. Lee and Mr. Di Lisi, in the capacity of "opinions of ordinary witnesses having the necessary experience", supports their argument that the hazard in question, identified as the risk of robbery or attempted robbery when [text redacted] is assigned to [text redacted] could reasonably be expected to cause injury.  It is submitted that the hazard, [text redacted] are matters about which Mr. Di Lisi, worker co-chair of the Workplace Health and Safety Committee and an agent who has performed Express Deposit duties, is uniquely positioned to comment.  In further reference to Verville, the appellants submit that it is not necessary to prove that injury will likely follow or that it will likely follow every time. Such criteria the appellants claim might meet the Chapman test but that test has been superseded by Verville.

[69] On whether or not the hazard in question could be reasonably expected to cause injury before it can be corrected or the activity altered, the appellants reject the Respondent's argument that the agent could correct the situation through the preventive measures provided and the policies in place, [text redacted].  They submit that, "By definition, the means through which the hazard or condition can be corrected or the activity altered are external to the hazard, condition or activity and may or may not come into existence before the injury is reasonably expected to occur. In particular, these means of control are external to the refusing employee and are up to the employer to provide."  They further argue that, "if it was within the employee's power to correct the danger, the right to refuse dangerous work would be completely unnecessary."

[70] In support of their submission on the means of correcting a hazard being external to the employee, the appellants cite 2 cases. First from Verville (paragraph 34) and Madam Justice Gauthier's observation that, "the absence of handcuffs on a correctional officer involved in an altercation with an inmate must be reasonably expected to cause an injury before handcuffs are made available from the bubble or through a K-12 supervisor, or any other means of control is provided." (Appellants' emphasis).  Second from paragraph 203 of Brazeau and Securicor Canada Ltd.^{Footnote 11} and the Appeals Officer's view that a potential hazard could not be corrected before injury could reasonably be expected to be caused, "because Securicor gave no indication that it intended to voluntarily alter the [text redacted]." (Appellants' emphasis). Applying both cases to the present appeal, the appellants argue that the "hazard must be corrected through the provision of [text redacted]." and that "G4S has made it clear that it will not correct the hazard unless and until it is directed to do so."

[71] The appellants dismiss a number of the respondent's assertions as to why the case at hand is not a proper one in which to find danger.  First and as noted earlier in this decision, they dispute G4S's claim that the threshold for finding danger is a high one and that it is not met in this case. Second, they challenge that the right to refuse cannot be used to challenge employer policies or deal with staffing issues. In the latter respect they cite Madam Justice Gauthier's statement in Verville (paragraph 52) referring to 3 cases in which the inherent risk of injury or death as a normal condition of work argument had been at issue, "an increased danger resulting for example from a change in the employer's policy (such as minimum staffing), was not automatically excluded under paragraph 128(2)(b)." (Appellants' emphasis). Third, they reject G4S claims that it is not appropriate to find danger because the refusals were invoked before the appellants knew any details of the specific routes, equipment or vehicle that would have been used in their assignments. They argue in effect that it is the Express Deposit model and not such specifics that are the basis of the hazard and of the refusals.

[72] The appellants also take major issue with the respondent's claim that any danger that might exist in the present case would be a normal condition of employment and hence not subject to the refusal provision in accord with paragraph 128(2)(b). The appellants submit that the danger of picking up and transporting [text redacted] using the Express Deposit model is not a normal condition of their employment. In support, the description of the "customary meaning" of the words in paragraph 128(2)(b) in Verville (paragraph 55) is cited: " ‘normal' refers to something regular, to a typical state or level of affairs, something that is not out of the ordinary. It would therefore be logical to exclude a level of risk that is not an essential characteristic but which depends on the method used to perform a job or an activity. In that sense and for example, would one say that it is a normal condition of employment for a security [text redacted] from a banking institution if changes were made so that this had to be [text redacted]." (Appellants emphasis and underlining). The Appellants also make reference to Brazeau, paragraph 220, and the Appeals Officer's statement that the effect of paragraph 128(2)(b) "does not mean that employees ….. must put their health, safety or life on the line and accept all the risks of the job regardless of the consequences.  To the contrary, when the employer has not discharged its responsibilities under sections 124 and 125 of the Code, it is dangerous for the employee to work under these conditions and the danger does not constitute a normal condition of work".  (Appellants' emphasis).

[73] Referring to the 3 point hierarchy of preventive measures explicit in section 122.2 of the Code, for example, the elimination of hazards, the reduction of hazards and the provision of personal protective equipment, clothing, devices or materials, the appellants submit that the respondent failed to meet all 3 points. In effect, they claim that instead of eliminating the hazard, the respondent created it by introducing the Express Deposit model despite having concluded in 2003, in the case of the [text redacted]  model, that "having [text redacted] on the [text redacted]  looking out for one another is the safest option". The appellants argue that, while preparing for Express Deposit, G4S did not consider measures to reduce the hazard citing, as an example, too ready acceptance of the supplier's advice that [text redacted] . They also repeat their claims of deficiencies in the training program, PPE and policies provided or offered by G4S.

[74] The respondent's argument that the most compelling evidence of Express Deposit duties as normal conditions of employment came from the appellants' own testimony, is rejected by the latter. That testimony, it is argued, related to the regular duties attached to the model not to what are normal conditions of employment within the meaning of paragraph 128(2)(b). In all, the Appellants submit that the danger in Express Deposit "depends exclusively on the method G4S has chosen to do the work" and that "this method constitutes a marked departure from the normal way of working in the industry and within G4S".

[75] In overall conclusion, the appellants submit that the potential hazard in question constitutes a danger and that the danger is not a normal condition of employment. As such, they deem it appropriate and repeat the request in their Final Argument, that a direction under paragraph 145(2)(a) of the Code, for measures "to correct the hazard or condition or alter the activity that constitutes the danger" or "protect any person from the danger", should be issued. They further repeat their requests for declarations that G4S has breached sections 122, 124, 125, 134 and 135 of the Code.

Was there an existing or potential hazard, condition or any current or future activity?

[78] Before addressing this matter directly, I need to review the respondent's contention that, by invoking their refusals before they were aware of the specifics of the routes to be run, the retail stops, the condition of the equipment provided or the vehicle, the appellants called into question whether or not this is an appropriate case to find there is a danger.  I do not agree with this argument. The danger alleged by the appellants and a principal submission in their appeal, is the Express Deposit model [text redacted].  While experiences encountered at the various stages of a route and the condition of the equipment and vehicle are constituent parts of the process and of relevance to examining the existence of danger, it was the totality of the model that was their issue.  Elsewhere the respondent submits that the appellants had been trained for and had previously performed Express Deposit duties. The appellants were not therefore refusing a process unknown to them when asked to undertake Express Deposit routes on January 6, 2009.  [text redacted] the vehicle, for example, was and remains one of several constants of the model.

[79] In a similar vein, I do not agree with the respondent's inference that the matter should not be dealt with under the right to refuse provision since it is not an appropriate forum for the analysis of employer policy.  For one, Mr. Lee's testimony and safety committee minutes indicate that the [text redacted] model has been discussed at the NHSPC with the result in Mr. Lee's words, "we agreed to disagree".  In Elnicki and Loomis Armoured Car Service Ltd. ^{Footnote 12} referred to by the appellants and dealing with a refusal in the same industry, it was held, "While there is no doubt that it might and should be discussed at the safety committee level, this does not mean that the Board is not a suitable forum to address it…" For the CLRB, now read Tribunal.  Further, although Madam Justice Gauthier's words in Verville, "an increased danger resulting for example from a change in the employer's policy (such as minimum staffing), was not automatically excluded under paragraph 128(2)(b)", were written in the context of considering a normal condition of work issue, they strike me as having an echo here.

[80] For the appellants, the existing or potential hazard or condition or the current or future activity that could reasonably be expected to cause injury to them "is the potential hazard of becoming the target of a robbery or assault while [text redacted] vehicle".  As quoted from his report in paragraph 16 above, HSO Maklan, refers to "the hazard of robbery" when [text redacted], adding "It is an inherent risk of a G4S armed guard."  He begins the next paragraph in his report with the words, "Given the inherent danger….".    In its Express Deposit training presentation, the respondent states, "It is known that robberies are an inherent risk associated with work in the cash-in-transit industry." (Exhibit 8, slide 104).  There appears then to be some common ground on the potential for hazard and risk of robbery in the industry.

[81] While having acknowledged in the training presentation the inherent risk of robbery, the respondent submits, "that the chances of the hazard in question (for example, the risk of a robbery or attempted robbery of an Express Deposit agent) actually manifesting itself were remote at the time of the Refusal given the total absence of any past incidents upon which to assume the hazard would actually arise."  In the respondent's view, "the risk is so remote as to be speculative and hypothetical."  The respondent claims jurisprudential support for this position citing paragraph 37 of the Federal Court of Appeal decision in Martin. The full paragraph reads as follows:

[82] I do not agree that the absence of past incidents seals the argument that the risk of robbery or attempted robbery with respect to the Express Deposit model is so remote as to be based on speculation or hypothesis. The robbery free record is instructive and, in line with the quote from Martin, should be considered. However, it is not determinative. I find paragraph 41 of Verville to be particularly pertinent

[83] Remaining with Verville, paragraph 36 is also relevant:

[84] Unpredictability of human behaviour brings into question the respondent's argument that the [text redacted] and vehicle [text redacted] are such that professional robbers would not waste effort on Express Deposit robberies.  [Text redacted] I share HSO Maklan's view that, "robbery, whenever [text redacted] are being carried, is a risk". While the prospect of high end professionals attempting to rob Express Deposit is arguably diminished, it is not eliminated. Further, the appellants' submissions on the potential for less ambitious criminals, addicted persons or other spur of the moment robbers perpetrating or attempting a robbery have merit. Indeed, in cross examination, the respondent's witness did acknowledge that spur of the moment robberies could happen. As the appellants argue, [text redacted] who might well believe that what is in it is worth a chance.

[85] A related argument put forward by the respondent in support of its submissions on the prospects for robbery being remote, is that the [text redacted] of the Express Deposit model equates [text redacted]. It is claimed that Express Deposit is distinct from the G4S traditional armoured car model involving large amounts of liability. In testimony, Mr. Honan described the differences between the models as "apples and oranges". I do not accept his comparison. It is more a question of "apples and apples", recognizing that there are different brands of apple, differences in colour, differences in size and, perhaps appropriate to this case, differences in the hardness of skin. They remain apples, however, and in my view Express Deposit remains part of the cash-in-transit industry, indeed it is included as such in the training slide presentation described above.  As the appellants point out and the G4S training presentation confirms, the vehicle displays G4S insignia and the agent wears G4S clothing. The agent also carries a visible side arm, [text redacted]. The resulting profile is that of an armed guard and a person subject to the risks of the trade, risks that require mitigation in conformity with the provisions of the Code.

[86] The general industry function of Express Deposit as a means of transporting [text redacted] is evident and the inherent risks attached to such an activity go with it. There are also areas of concern that I find to be specific to the model and that [text redacted]. The need for the agent to[text redacted] are hazards attributable to shortcomings [text redacted] been sufficiently reduced or mitigated. The need for the agent in order to complete a client service call to [text redacted] out of sight of the vehicle and unaware of what might be happening [text redacted], creates an unacceptable level of risk and a potential hazard that is not fully mitigated by the preventative measures and policies provided by the company.

[87] In light of the above considerations and having had the opportunity to listen to testimony during 9 hearing days, the occasion to consider the exhibits entered and the benefit of written argument from both parties, I conclude that the Express Deposit model of cash-in-transit services on January 6, 2009, presented a potential hazard of the risk of robbery or attempted robbery that, in the words found in Verville, "is capable of coming into being or action". I also conclude that the potential for such a hazard to come into being in the future is a reasonable possibility and not simply a mere possibility.

Is there a reasonable expectation that the hazard, condition or activity would cause injury or illness to a person exposed to it?

[88] In responding to this question, jurisprudence found in Verville is pertinent.  Verville, paragraph 51, supports the appellants' position that "there is more than one way to establish that one can reasonably expect a situation to cause injury" and that expectation of injury "could even be established through an inference arising from logically or reasonably known facts." It is both logical and reasonable to infer that the purpose of a robbery or attempted robbery is to relieve or endeavour to relieve a person of money or property in their possession or under their ownership and to carry off or otherwise take possession of the proceeds. In the present case that would involve relieving or attempting to relieve the agent of custody of the liability and taking it away.  It is similarly logical and reasonable to infer that, in pursuing a robbery or attempted robbery, a robber would pose a physical threat to, or inflict actual physical harm on the victim, in this case the agent. Such an outcome may not occur every time a robbery takes place or is attempted but as indicated, again in the jurisprudence from Verville paragraph 35, to meet the definition of danger a hazard or condition "must be capable of causing injury at any time but not necessarily every time."

[89] Having determined the potential hazard of the risk of robbery or attempted robbery, I note that the duties the appellants refused on January 6, 2009, would have involved using the vehicle that presents the 2 specific concerns [text redacted].  I am of the view that each of these 3 features of the Express Deposit process presents circumstances that give rise to a reasonable expectation that the appellants would be exposed to injury resulting from an assailant perpetrating or attempting a robbery. I address the 3 concerns separately below.
[Text redacted]

[90] [Text redacted]

[91] Mr. Di Lisi testified that the issue was discussed and referred to the NHSPC. Mr. Honan testified that, in response, [text redacted]. In 3 of the appeal cases cited by the appellants in their final argument, exposure of an agent's back while servicing ABMs or moving [text redacted] was found to constitute or contribute to a danger. (Securicor Canada Limitée and Fédération des employées et employés de services publics inc.^{Footnote 13}; Girouard et Securicor Canada Ltd ^{Footnote 14} and in Securicor Canada Limited and Canadian Auto Workers Union, Local 4266-A).

[92] [Text redacted]

[93] [Text redacted]

[94] [Text redacted]

 [Text redacted] transit services at shopping malls

[95] Shopping malls range from neighbourhood strip malls to covered indoor malls.  [Text redacted].  The risk of the potential hazard of robbery or attempted robbery is increased beyond acceptable limits and I find a reasonable expectation exists that exposure to such circumstances would cause injury.

[96] [Text redacted]

[97] I conclude that the potential hazard of robbery or attempted robbery that I have identified above as being insufficiently reduced or mitigated and to which the appellants would have been exposed, give rise to a reasonable expectation that such exposure would cause them injury.

Could the potential hazard reasonably be expected to cause injury or illness before the hazard or condition could be corrected or the activity altered?

[98] At this point, it is perhaps useful to address the respondent's submission that, "even if the hazard could have reasonably been expected to manifest itself at the time of the Refusal, it would have been even more unlikely that an employee would actually be exposed to the hazard due to the many preventative measures in place". According to the respondent, the preventative measures include: the [text redacted], low liability scope of the Express Deposit model; [text redacted]. The respondent claims that the latter  policy "coupled with other precautionary measures in place, indicates that the risk of actual injury to an agent before the danger could be addressed, even in the very unlikely event that a robbery occurred, was extremely remote". This submission and the effectiveness of the preventative measures need to be assessed.

[99] [Text redacted]

[100] Other than to remark that PPE can only be expected to be effective [text redacted] are diminished in value if not known to the agents, I will not pursue these issues further.  HSO Maklan included such matters in the 5 items he listed as areas of concern at the end of his report.  More specifically, the HSO indicated a need to ensure that references to manuals, procedures and policies should be included in an updated JHA, a document that should be made available to the agents. He further indicated that he would be seeking an Assurance of Voluntary Compliance (AVC) from the company to deal with the areas of concern. The terms of the AVC repeated the HSO's 5 item list.  In an oral ruling I issued during the hearing on September 18, 2009, I held that responsibility for determining whether or not the AVC was being responded to remained with the HSO. It was a continuing process that I lacked authority to interfere with.

[101] With regard to training for Express Deposit Duties, the G4S presentation referred to above is comprehensive, although some of its contents would appear also to apply to other cash-in-transit services offered by the company. Training with the Express Deposit vehicle appears to take place only in or around G4S premises and does not include a client call or an accompanied first trip. Of some concern is the lack of refresher training. As indicated earlier, Mr. Lekarczyk was trained for Express Deposit work on February 8, 2006, and Mr. Frighetto was trained on August 28, 2006.  They both testified to not having received refresher training before being requested to undertake Express deposit routes on January 6, 2009.  Training, including refresher training, is one of the 5 areas of concern identified by HSO Maklan and included in the AVC.  I will leave the issue with that process.

[102] I now turn more directly to the question of whether or not injury would occur before the hazard could be corrected or the activity altered. With respect to the type of vehicle in use on January 6, 2009, it is its design requiring [text redacted] creates the potential hazard.  The [text redacted] to the vehicle have not sufficiently reduced the potential hazard. As long as the type of vehicle remains in service and is used to fulfill Express Deposit functions, the potential hazard that I have identified would be present. I am not aware that G4S has given any indication of its readiness to cease using the type of vehicle for the Express Deposit service. As such, and in line with my finding that the hazard is capable of causing injury, I conclude it is reasonable to expect that injury could occur before the hazard could be corrected or the activity altered.

[103] [Text redacted] and, according to testimony, to [text redacted] presents an unacceptable level of risk of the potential hazard of robbery being realized. G4S preventative equipment and policies do not sufficiently mitigate or reduce the potential hazard.  [Text redacted]. Neither prospect may be possible particularly when the agent's [text redacted] when in the midst of people within an [text redacted].

[104] I am prepared to accept that, in cases where an agent is provided with a vehicle that does not have the shortcomings identified above and [text redacted] he or she will be able to follow the procedures established by the company to reduce risk.  Such is the case, for example, with the coffee house depicted in slide in the G4S training presentation where the term [text redacted] seems to apply best. [Text redacted]. On leaving the client's premises, the agent, in addition to [text redacted] provide.  Exiting a client's premises located [text redacted] and walking often for some distance with people around, emerging from the [text redacted]. Again, I am not aware that G4S has indicated a readiness [text redacted] mall calls from the Express Deposit service and, unless it does so, I conclude there is a reasonable expectation that injury to the appellants could occur before the hazard could be corrected or the activity altered.

Does the danger constitute a normal condition of employment?

[105] Having answered in the affirmative the 3 questions posed above, I must now turn my attention to the respondent's alternative submission that the activity assigned to the appellants at the time of their refusal was a normal condition of employment which would preclude them from engaging in a work refusal under Part II of the Code. On January 27, 2010, the Federal Court of Canada upheld a decision^{Footnote 15} of the Tribunal regarding the interpretation to be given to the concept of "normal condition of employment." This decision defines a danger that constitutes a normal condition of employment as residual in nature.  It is the danger that remains after the employer has taken all necessary steps to eliminate, reduce or control the hazard, condition or activity and for which no direction can reasonably be issued under subsection 145(2) of the Code to protect the employees.

[106] Consequently, in order to determine that a danger constitutes a normal condition of employment, that danger must be one that cannot be controlled through the protective measures set out under the Code.  Such a danger would not justify invoking the right of refusal or continuing to refuse to work once it had been determined to be a normal condition of employment.

[107] Section 122.2 of the Code is particularly relevant and reads as follows:

[108] From all I have heard and read in connection with this appeal, I find that the potential hazard of the risk of exposure to robbery or attempted robbery when performing Express Deposit duties is not susceptible to total elimination. It follows that the reduction of hazards and the provision of PPE, clothing and devices are key considerations.

[109] With respect to the Express Deposit vehicle, [text redacted] the health and safety of the employees. Similarly, the requirement to [text redacted] been considered, adds to the potential hazard.  The goal should have been to reduce it.  In the words from Verville both instances give rise to, "a level of risk that is not an essential characteristic but which depends on the method used to perform a job or an activity."  I conclude in both cases that the hazard involved is susceptible to reduction and that the danger does not constitute a normal condition of employment.

[110] As stated above, I find the requirement for an agent, when performing Express Deposit duties, to enter [text redacted] and proceed through people in the [text redacted] knowledge of what is happening [text redacted], and with the [text redacted] to present a potential hazard that is not mitigated by the preventive measures provided by the employer. I conclude, in line with my reasoning in the previous paragraph, that the danger does not constitute a normal condition of employment.

[111] In addition to asking for a specific declaration on the existence of danger and the issuing of a direction for remedy thereof, the appellants also seek a declaration that the respondent, in implementing Express Deposit, failed to consult properly with the Workplace and National Health and Safety Committees, citing paragraph 125(1)(z), subsection 134.1(4) and section 135(7) of the Code. With respect to paragraph 125(1)(z) that requires employers to ensure that their supervisors and managers are adequately trained in health and safety and informed of their responsibilities in such matters, I was not presented with convincing evidence or specific argument to justify my issuing a declaration that G4S had failed to meet its responsibilities under the paragraph.  In the case of subsections 134.1(4) and 135(7) that detail the duties of the respective health and safety committees, testimony did indicate some lack of response and timeliness by the employer's representatives on specific issues but it was not sufficiently developed or argued to convince me that a declaration of non-compliance is justified. Committee minutes produced and referred to at the hearings and indications that responses to the AVC were being developed with committee assistance, indicate to me that, while there may be room for improvement, a functioning health and safety committee system exists at G4S.

[112] The appellants also seek a declaration that the respondent has breached sections 122.2 and 124.  It is at the very least implicit in my decision on the presence of danger that the hierarchy of preventive measures in section 122.2 and the employer's general duty under section 124 to ensure the health and safety of its employees, have not been fully respected. However, the essence of this appeal, the bulk of evidence presented and argument made, has been on the presence or absence of danger.  As such, I believe that my decision on the presence of danger and its accompanying direction under paragraph 145(2)(a) is sufficient to cover the circumstances.

[113] Lastly, the appellants seek a declaration that the respondent has breached paragraphs 125(1)(q) and (s) relating, respectively, to the employer's duty to provide employees with the information, training and supervision necessary to ensure their health and safety at work and to ensure that they are made aware of known health and safety hazards. These requirements are much in line with issues covered by the AVC obtained from G4S by HSO Maklan and I will leave them to that process.

Direction to Group 4 Securicor

Following an appeal brought under subsection 129(7) of the Canada Labour Code (the Code), I conducted an inquiry pursuant to section 146.1 with respect to a decision that a danger did not exist rendered by a health and safety officer, on January 12, 2009, and confirmed in writing on January 16, 2009.  This decision was rendered following an investigation into refusals to work made by Mr. Dino Frighetto and Mr. Daniel Lekarczyk of the Mississauga Branch of Group 4 Securicor. The company, an employer subject to the Code, is now also known as G4S.

I concluded that a danger existed for Mr. Frighetto and Mr. Lekarczyk on January 6, 2009, when they were requested by the employer to undertake Express Deposit cash-in-transit routes. Therefore, they were individually exposed to the potential hazard of a robbery or attempted robbery in the following 3 respects:

• the use of a vehicle that does not provide them with [text redacted]
• the use of a vehicle that requires them to [text redacted] and
• a process that requires them to [text redacted] when delivering or picking up liability from client premises located [text redacted]

Therefore, you are hereby directed, pursuant to paragraph 145(2)(a) of the Code, to immediately take measures to protect Mr. Frighetto and Mr. Lekarczyk, and any person from the danger and to report on those measures to a health and safety officer at the Toronto district office of the department of Human Resources and Skills Development Canada, Labour Program, by May 19, 2011.

Issued at Ottawa, this 19 day of April, 2011.

Michael McDermott
Appeals Officer