Digests

Verville v. Canada (Correctional Service)

T-1207-02

2004 FC 767, Gauthier J.

26/5/04

26 pp.

On September 24, 2001, applicant and 15 other correctional officers working in living units A to H at Kent maximum security penitentiary in British Columbia refused to carry out their duties because of alleged danger created by recent order restricting ability to carry handcuffs at their discretion-- Health and safety officer determined applicant, colleagues not in "danger" as defined in Canada Labour Code (Code), but ruled Correctional Service of Canada in contravention of Code, s. 124 by not allowing officers to carry handcuffs at their discretion--On appeal, decision as to absence of danger confirmed, finding of contravention of s. 124 reversed-- Applicant seeking judicial review on basis appeal officer improperly construing new definition of "danger" in Code and ignoring evidence, particularly as to increased risk of injury in longer struggles with prisoners--As to s. 124 decision, applicant arguing appeal officer applied wrong standard of proof and again, ignored evidence, particularly as to whether unavailability of handcuffs has ever led to injury and as to impact of carrying personal paging device on risk faced by correctional officers--Evidence correctional officers actually involved in violent altercations with inmates more likely than others to wear handcuffs regularly--Correctional officers working in segregation unit and correctional supervisors (K-12) permitted to routinely wear handcuffs-- Also handcuffs available in four control post bubbles-- "Danger" as used in Code, s. 128 defined in s. 122(1)--With addition of words such as "potential" and "future" activity in 2000 amendment, Code no longer limited to specific factual situations existing at time employee refusing to work--Injury or illness may not happen immediately upon exposure, but needs to happen before condition or activity altered--Thus, absence of handcuffs on correctional officer involved in altercation with inmate must reasonably be expected to cause injury before handcuffs made available from control post bubble or though K-12 supervisor, or any other means of control provided--Definition not requiring reasonable expectation condition or activity will cause injury every time occurs--Not necessary to precisely establish time when potential condition or hazard or future activity will occur-- Definition used by appeal officer flawed--Court also not satisfied appeal officer considered opinion expressed by correctional officers based on their experience--Such evidence clearly on point, but not dealt with--As to conclusion risk inherent to applicant's employment, applicant conceded job description involves risk of possible hostage-taking, injury or danger when dealing with violent and hostile offenders--But argued order restricting ability to carry handcuffs variation of normal conditions of employment and constituted increase of risk or danger--No indication in decision appeal officer considered this argument--Finding apparently based on simple fact risk of assault always present in environment such as Kent penitentiary--Could not evaluate if increased risk of injury "normal condition of employment" because did not consider it to be more than unproven hypothesis--Because appeal officer failed to consider evidence on core issue on which final conclusion rests, decision set aside--As to contravention of Code, s. 124, appeal officer's statement "there is no evidence unavailability of handcuffs, due to correctional officers not carrying them on their person, has ever led to injury", inaccurate--If intended to refer only to evidence to which decision maker gave any weight, in view of evidence on file, particularly testimony concerning experience of correctional officer, appeal officer should have explained, even if succinctly, basis of conclusion--Failure to consider this evidence constituting reviewable error--Court not satisfied that if appeal officer had considered all evidence, conclusion would have necessarily been the same, especially since risk assessment referred to in decision not specifically discussing risk of injury in event of spontaneous assault where first officer to respond to personal paging device not K-12 supervisor--Judicial review allowed--Canada Labour Code, R.S.C., 1985, c. L-2, ss. 122 "danger" (as am. by S.C. 2000, c. 20, s. 2), 124 (as am. idem, s. 5), 128 (as am. idem, s. 10).