Law Times

Law times • august 25 / SEPTEMBER 1, 2008 FOCUS PAGE 11 in 2000, it removed the reference to "imminent" danger from the definition of danger. For the most part, however, the notion of imminence has remained in the jurisprudence. "Cases on whether workers have wrongfully refused to do certain work have considered whether the harm that might come to them from doing so is imminent or something that will come quickly," says Mary Beth Currie of Bennett Jones LLP's Toronto office. But now comes a Federal Court decision that suggests "imminent" danger may not be necessary for a worker to refuse duties. Justice John O'Keefe's decision in Union of Canadian Correctional Officers v. Canada reversed the decision of an appeals officer overturning a direc- tion issued by a health and safety officer, who found that exposure to second-hand smoke constituted a danger to employees while at work and directed Correctional Service of Canada to protect any person from the danger. The case arose in October 2005 when Howard Page, a cor- rectional officer, refused to work at Millhaven Institution in Kings- ton because he believed that the exposure to second-hand smoke there constituted a danger, as de- fined in s. 122 of the CLC. Consequently, Chris Mattson, a health and safety officer, conducted an investigation and issued a direc- tion finding that the exposure did amount to a danger. CSC appealed and the appeals officer heard the case in May 2006. In his decision the following Au- gust, he ruled that a danger exists where the employer fails, to the extent reasonably practisable, to eliminate, control, or protect em- ployees from a hazard or condition that "could reasonably be expected to cause injury or illness to any person exposed thereto before the 'Imminent' danger may not be necessary to refuse duties W BY JULIUS MELNITZER For Law Times hen the federal gov- ernment amended the Canada Labour Code hazard, condition or activity can be corrected or altered; and that the circumstances will occur in the future as a reasonable possibility as opposed to a mere possibility or a high probability." As it turned out, CSC had implemented a no-smoking policy inside Millhaven, which resulted in minimal exposure levels. And while the appeals officer noted that the World Health Organization had concluded there were no safe limits for exposure to second-hand smoke, CSC had had no opportu- nity to test the validity of the report and no expert witnesses had been called by either side. "The appeals officer was not convinced under the circumstances that there was a reasonable pos- sibility that [the low exposure oc- casioned by institutional policy] would cause injury to the health of a healthy person in the foreseeable future," O'Keefe wrote. "Consequently, the appeals of- ficer found that CSC had imple- mented measures to try to elimi- nate exposure to the second-hand smoke within the institution and to control the hazard within safe limits. As such, the first prong of the test was not met and there was no danger. The appeals officer be- lieved that, under the circumstanc- es, the reasonable expectation that the near zero exposure to second- hand smoke would cause injury to the health of the employees was so remote that no danger existed for the employees." In the result, the appeals of- ficer rescinded Mattson's direc- tion. But O'Keefe allowed the ap- plication for judicial review and returned the case to the appeals officer for redetermination. To begin with, O'Keefe noted that the standard of review — previously one of patent unrea- sonableness — had been usurped since the Supreme Court of Cana- da's recent decision in Dunsmuir v. New Brunswick, which established the correct standards as being cor- rectness and reasonableness. In this case, reasonableness was the appropriate standard both for A 'specialized' area Continued from page 10 Even where there is no bid- ding contract, some courts have held that an independent duty of fairness nonetheless ex- ists, as did the Ontario Court of Justice in Ottawa-Carleton Dialysis Services v. Ontario (Minister of Health). Here, the RFP contained a clause that allowed the ministry "to cancel the RFP at any time, for any reason." The court ig- nored the clause, however, after finding that that the ministry had cancelled the RFP process "in an arbitrary fashion, and was not acting in good faith." Instead, it found an obligation on the ministry to act fairly and dictated how the rest of the RFP process would be conducted. "People need to recognize that procurement is a specialized area," Chamberland says. "There are too many lawyers working with hospitals who know little about procurement." Educating hospitals, then, is a priority for lawyers like Cham- berland. "Because procurement is a dynamic area, the laws in the public sector will continue to change quickly," he says. "It's a mistake for hospitals to adopt a defensive posture and bring the lawyers in only when there's a dispute. It's more useful to think of counsel as facilitators who can bring value to the procurement process — not to mention help- ing avoid some unpleasant sur- prises on the back end." Rick Shaban, of Borden Ladner Gervais LLP's Toronto office and a construction law and procurement specialist, is of similar mind. "We spend a lot of time making sure that hospitals understand the rules of engagement in the pro- curement and tendering processes and how these fit within the rules that govern the public sector," he says. "There are a lot of hospitals that have to be built, renovated or retrofitted these days, so we're extremely busy." LT Untitled-4 1www.lawtimesnews.com 8/18/08 10:21:02 AM Aleks Mladenovic | Richard Halpern | Sloan Mandel For over 70 years Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. As a law firm specializing in civil litigation, we have a record of accomplishment second to none. With a group of 30 litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. Moreover, we are exceptionally fair when it comes to referral fees. We welcome the chance to speak or meet with you about any potential referral. We look forward to creating a solid relationship with you that will benefit the clients we serve. THOMSON, ROGERS Barristers and Solicitors 416-868-3100 Toll free 1-888-223-0448 www.thomsonrogers.com YOUR ADVANTAGE, in and out of the courtroom Parliament's intent. The test de- veloped is reasonable and I see no reason to interfere." But the appeals officer had erred in his application of the test. "In my opinion, the appeals offi- cer failed to consider the testimony before him regarding the continual exposure to second-hand smoke at the time of the hearing despite the implementation of the indoor smoking ban," O'Keefe wrote. That evidence included tes- 'The absence of an imminent danger threshold may allow employees to bypass the com- mittee process, and that could mean open season on the refusal to work,' says Mary Beth Currie. the appeal officer's formulation of the "danger" test and its application to the instant facts. Applying that test, O'Keefe saw no error in the formulation of the "danger" test. "Having reviewed the appeal officer's test for 'danger,' I am of the opinion that there is no rea- son for this court to intervene on this ground," O'Keefe concluded. "The appeals officer carefully considered the relevant statutory provisions, jurisprudence and timony from three officers who worked in three different units representing over 95 per cent of where the inmate population could be on any given day, as to the continued existence of expo- sure to second-hand smoke. "The appeals officer did not refer to or even mention this evi- dence in his analysis and decision," O'Keefe noted. "In my opinion, this evidence should have been considered and weighed by the ap- peals officer in deciding whether or not a danger existed." In other words, it was not suffi- cient for the appeals officer to sim- ply look at the reduction measures taken by CSC. "The test requires that the ap- peals officer not only look at the actions of CSC, but also the success of those actions in eliminating, or controlling the hazard, condition or activity," O'Keefe wrote. It followed that the appeals offi- cer's decision was fatally flawed and required a reconsideration. Currie, however, has qualms about the result and the reasoning in the Federal Court. "The problem is that the court was dealing with a hypothetical where we wouldn't know the effect, if any, of the exposure at Millhaven for 15 or 20 years," she says. "But I find it a scary decision because it doesn't put parameters around the word 'danger.'" Currie says this could work to undermine the joint health and safety committee arrangements that are standard in many workplaces. "The absence of an imminent danger threshold may allow em- ployees to bypass the committee process, and that could mean open season on the refusal to work," she says. At the same time, Currie says that employers can learn from O'Keefe's decision. "There's a clear message to em- ployers that they need to get experts involved whenever scientific mat- ters such as questions of chemi- cal exposure arise," she says. "The problem in this case was that the employer just threw in the WHO report instead of treating it more se- riously and in a way that persuaded the judge to rely on it." LT Trust [ Every time you refer a client to our firm, you're putting your reputation on the line. It's all about trust well placed.

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