2019 OHSTC 9

Reason

[1] This is an application to dismiss an appeal of a direction made pursuant to paragraph 145(2)(a) of the Canada Labour Code (Code), on the grounds of mootness. The application was allowed on September 11, 2018. What follows are the reasons supporting that decision.

Background

[2] On August 25, 2017, 2 employees of Brink's Canada Limited (Brink's), Melissa Black and Tracy Blackler, refused to do work they believed was dangerous. The employer conducted an investigation and concluded there was no danger. The employee representative from the health and safety committee also concluded there was no danger. The employees continued their work refusal.

[3] The Labour Program of Employment and Social Development Canada was contacted and the official delegated by the minister of Labour, Michelle Sterling (ministerial delegate), conducted an investigation on September 5, 2017. The ministerial delegate determined that conditions were such that a danger existed. The ministerial delegate issued a direction on September 20, 2017. The direction was issued pursuant to paragraph 145(2)(a) of the Code:

[4] The ministerial delegate's danger direction was as follows:

In the matter of The Canada Labour Code

Part II - Occupational Health And Safety

Direction to the employer under paragraph 145(2)(a)

[5] The work involved picking up, transporting and delivering valuables by way of an armoured truck. Three employees work with the employer's armoured vehicle – the driver, a guard and a messenger. The driver stays in the vehicle. The guard and the messenger get out of the vehicle when it stops at a customer's facility. The messenger picks up or drops off the valuable package(s). The guard keeps a lookout. So does the driver. The driver watches the messenger and the guard as they go between the truck and a customer's location. The safety concern is that the employees could be subject to a robbery and, in the process, be harmed. As well, if there is such an event, the messenger and guard are to get back to the truck and safely leave the scene.

[6] On the day of the work refusal, Ms. Blackler was the guard and Ms. Black was the messenger. The customer was a bank on King Street in Waterloo, Ontario. There was construction going on in front of the bank. Therefore, it was not possible to park the armoured vehicle directly in front of the bank. The applicants believed that it was not possible to park close enough so that a line of sight could be maintained between the vehicle and the bank entrance. The construction activity also meant that the vehicle could not quickly leave the scene should trouble arise. At the time, the employer had not done a site risk assessment for this location. The applicants believed the situation constituted a danger to them. The investigations of above ensued, culminating with the ministerial delegate's danger finding, and direction.

[7] The employer appealed the direction on October 19, 2017. The reasons for appeal were:

[8] The respondents to the appeal brought an application to have the appeal dismissed on the grounds of mootness. The employer objected to the application. The parties provided written submissions on the issue of mootness. The parties were informed by email on September 11, 2018, from the Occupational Health and Safety Tribunal Canada, that the application was allowed, with reasons to follow.

Applicants' Submissions

[9] The respondents, as applicants, submit that the matter is moot. The work refusal was site-specific. Since the direction of the ministerial delegate, construction at the bank at 27 King Street has concluded. A site risk assessment has been completed for this location. The applicants state that there is no live controversy between the parties:

[10] The applicants base their argument on the test for mootness set out by the appeals officer in Manderville v. Correctional Service Canada, 2015 OHSTC 3 (Manderville), at paragraph 13:

[11] The Supreme Court of Canada, in Borowski v. Canada (Attorney General), [1989]  1 RCS 342 (Borowski) stated:

[12] The applicants argue that because the construction has concluded, the specific conditions that the ministerial delegate identified and which resulted in a finding of “danger” no longer exist and hence, there is no longer a live controversy.

[13] Where there is no live controversy, the second step set out in Manderville requires a consideration of whether the appeals officer should exercise its discretion to hear the appeal regardless. The applicants' position is that a decision on the merits would have no precedential value. A hearing would not resolve ambiguity or bring added clarity to the issues.

Respondent's Submissions

[14] The employer, the appellant in the appeal, but the respondent in this application, agrees that the ministerial delegate's direction was site-specific, but that that is true in all work refusal cases. The respondent submits that there remain live issues between the parties:

[15] Although the construction has ended at the location where the work refusal occurred, the respondent submits that, on a daily basis, an armoured truck crew may or may not be able to “park sufficiently close enough” to a customer site so as to ensure a clear line of sight between the truck and the entrance to the customer's facility. As well, at any time and at any site, a barrier may exist that is a “danger” to the respondent's employees. On any given day, a new hazard could arise, so it is still an issue as to whether the failure to do a hazard assessment results in a danger.

[16] The respondent submits that what remains at issue is the validity of the ministerial delegate's direction, citing Brinks Canada Limited v. Childs and Unifor, 2017 OHSTC 18 (Childs), at paragraph 22:

[17] The respondent also submits that the Code allows ministerial delegates to use and rely on the findings of previous investigations and directions at a work place to decide whether a danger exists at that work place. The respondent states that it is important that the issues in this appeal be dealt with so that the direction does not stand for other ministerial delegates to use in the respondent's work places. Subsection 129(3.1) of the Code states:

[18] The respondent cited the Childs decision as a basis for its argument that once a ministerial delegate issues a direction, the matter takes on a “public policy dimension”. The question becomes one as to whether the direction is valid, and so the dispute is “no longer in the hands of [the employee who engaged in the work refusal]” (paragraph 33). In support, the respondent noted that the Code does not expressly allow an appeals officer to rescind a decision on the sole basis that the parties have resolved the dispute that was the basis for the ministerial delegate's direction. The respondent cited a part of the Childs decision, in which the appeals officer referred to the decision in Canadian Food Inspection Agency v. Public Service Alliance of Canada, 2015 OHSTC 1:

[19] By extension, the fact that the work place conditions that were at the source of the investigation may no longer exist, is not, in of itself justification to render the direction moot.

[20] In summary, the respondent's position is that there are live issues between the parties and so the matter is not moot. The respondent states that, if it were to be determined that there is no longer a live controversy, the appeals officer should exercise its discretion and hear the case on its merits, as a decision by an appeals officer would “shed further clarification for the parties moving forward”.

Applicants' Reply Submissions

[21] The applicants view the respondent's position as untenable, as the fact that a similar dispute may potentially arise between the parties in the future does not mean there is a live issue. The Supreme Court in Borowski suggested that the doctrine of mootness was designed to prevent hypothetical or abstract questions, such as the respondent has raised, from being considered by an adjudicator.

[22] In Pogue v. Brinks Canada Ltd, 2017 OHSTC 27 (Pogue), which the respondent relied on in support of its position that a live controversy existed, the employee who engaged in a work refusal sought a direction requiring Brinks to add a guard at a mall during the holiday season because the mall was much busier during that period. Although the issue of mootness was not addressed, it is clear that the exact same conditions that gave rise to the work refusal would recur yearly during the holiday season. The applicant states that, unlike in the present matter, the appeals officer in Pogue was not being asked to decide a hypothetical or abstract question.

[23] The applicants' position is that, unlike the situation in Pogue, the exact same conditions that gave rise to the present case will not recur and so the appeals officer is being asked by the respondent to consider a hypothetical or abstract question, thus supporting a decision of mootness.

[24] The applicants distinguished the Manderville decision from the Childs decision, arguing that the present case is more analogous to the situation in Manderville. In Childs, the refusing employee was challenging the employer's use of the “all off model” which was continuing to be used by the employer, so a live issue persisted. The continued use of the “all off model” meant that the work refusal was not site specific. In Manderville, a female corrections officer refused to work because of the lewd acts of a specific inmate. The inmate was subsequently transferred. The appeals officer held that the matter was moot as an analysis of the danger direction “would be a futile exercise” given the removal of the inmate from the work place. The applicants believe that the present case is like the situation in Manderville – the circumstances which formed the raison d'être of the work refusal have disappeared. In the present case, there is nothing analogous to the “all off model” that persists as a live issue.

[25] Regarding the respondent's reliance on subsection 129(3.1), the applicants' position is that subsection 129(3.1) would only be relevant if the exact three conditions which formed the basis of the ministerial delegate's decision were reproduced. Issues involving line of sight, access/egress and the placement of barriers would require an on-site investigation in order to make a decision as to the existence of a danger.

[26] The applicants are of the view that no issue would ever be considered moot if the respondent's interpretation of “live issue” were to be accepted by the appeals officer.

[27] In summary, the applicants' position is that, since the conditions upon which the ministerial delegate based her decision no longer exist, the matter is moot.

Analysis

[28] While in the present case it was decided that the applicants' mootness argument was valid, it is important to consider a case not cited by the parties in which strong arguments were made against dismissal of an appeal on the basis of mootness. In Correctional Service of Canada v. Laycock, 2017 OHSTC 21 (Laycock), the appeals officer explained in a detailed manner why he believed that a finding of mootness against a direction is unlikely because of the way the statutory framework is set out in the Code: 

[29] Authorities such as Laycock, which provide good reasons not to allow dismissal on the basis of mootness, do not say that mootness is never a valid reason for dismissal. To suggest that an appeals officer does not have discretion to dismiss on the basis of mootness would render the Supreme Court of Canada's guidance in Borowski superfluous.

[30] Even though the CIBC bank on King Street in Waterloo may still exist and Brink's may still be attending at the bank with its armoured truck, the present case is more analogous to a situation where the work place subject to a direction has simply disappeared. It is closer to cases where an employee has a unique personal situation, and the employee is no longer in the work place, or a case where the hazard is associated with a specific individual, and that individual is no longer in the work place. In the present case, there is no issue as to whether the respondent has complied with the ministerial delegate's direction. As well, the case is not one where the parties have agreed that their differences have been resolved. One can agree that dismissal on the basis of mootness should not occur solely because the recipient of a direction has complied with the direction, or solely on the basis that the parties have resolved their differences and would like a direction to be rescinded. However, the present case is one where, as the applicants put it, the raison d'être of the ministerial delegate's direction no longer exists.

[31] In the present case, the construction has ended, the construction barriers are gone and an assessment of the site has been done. The work place subject to the direction, in a sense, no longer exists. A hearing on the merits would be irrelevant and futile insofar as it could help employees with their exposure to risk at the location subject to the direction. A decision that “construction creates a danger” or “construction barriers create a danger” would be over-reaching. Sometimes they would and sometimes they would not. There is enormous variation in the physical arrangements of construction sites. The risks associated with such arrangements have to be assessed on a case-by-case basis; they are site-specific.

[32] Further, a decision that a “line of sight must be maintained or else a danger exists” would also be overly broad. Distance, weather conditions, mist exhaust from utility chambers under the street, the movement of people, the density of crowds, the growth of vegetation, the movement of vehicles and equipment, and so on, are different from site to site and can vary rapidly at any given site. It is the case that a full and effective line of sight could never be guaranteed one hundred percent.

[33] The respondent says that a decision on the merits would provide clarity for the parties moving forward. It is difficult to see how that could be true. At any other site in the future a myriad of factors would have to be assessed to come to a site-specific conclusion about “danger”. It is not the function of an appeals officer to draft policies and procedures for the work place parties, to set out the abstract principles they should consider when doing hazard assessments, or to provide guidance on how employees should be trained to do site-specific hazard assessments. In Childs, there was a specific policy – the “all off model” – that was under consideration. Childs was not about site-specific physical layout. The “all off model” would be applied in other work places into the future. The present case is not like Childs because in the present case there is nothing useful that can be said about on-going policies and procedures that would be specific enough to be helpful.

[34] The respondent is concerned about the application of subsection 129(3.1) of the Code. In the future, at other locations, a ministerial delegate might use the direction in the present case as precedent. Therefore, the respondent has an interest in ensuring that the direction does not stand. The relevant part of subsection 129(3.1) states:

[35] In their reply submissions, the applicants said that subsection 129(3.1) would not be relevant unless the exact same conditions in the present case were in existence in a future case. Since the same conditions are unlikely to be replicated, a future ministerial delegate would still have to do his or her own investigation. As has been mentioned, there are so many possible site‑specific factors to consider at a particular location when assessing risk that it is obvious that a direction in the present case would not eliminate the necessity of a future ministerial delegate's investigation. Subsection 129(3.1) is aimed at the situation where a number of employees are sequentially engaging in work refusals about the same hazard, which is not the case here.

[36] In summary, there is no live controversy between the parties because the work place conditions that triggered the work refusal no longer exist and they are unlikely to reappear in the future in an exact manner or in a manner that is substantially the same. A hearing on the merits could only result in conclusions that would be too hypothetical or abstract to be useful in assessing risk at future unique work locations. There is no need to exercise discretion to proceed in the absence of a live controversy because a decision on the merits would not provide clarity on the issues in a manner useful to the work place parties.

Decision

[37] The application is allowed and the file is to be closed.

Peter Strahlendorf

Appeals Officer