Case In Point
Tribunal Sets Out New Test for “Danger” under Canada Labour Code
Date: December 28, 2016
In an important decision for all federally regulated employers, the Occupational Health and Safety Tribunal of Canada (OHSTC) released its first decision interpreting the new definition of “danger” under the Canada Labour Code (Code). In Correctional Service of Canada v. Ketcheson, Appeals Officer Strahlendorf considered the definition, which came into force on October 31, 2014, and set out a new test that will impact work refusals in the federal jurisdiction.
Under the new definition, “danger” is defined as:
… any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered.
This was a significant departure from the previous definition, where “danger” was defined as:
… 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.
The Appeals Officer considered the historical definitions of danger, including an earlier, more restrictive definition that was in place prior to 2000 and the common meaning of the words present in the new definition.
In so doing, he identified two distinct forms of danger under the new definition – where the hazard in question presents an “imminent threat” or where it presents a “serious threat.” The Appeals Officer went on to define the concepts of imminent or serious threats:
[197] Imminent threats from hazards mean those hazards are less likely to be corrected than hazards resulting in serious threats can be corrected. There is simply very little time to correct hazards whose risks are imminent. The level of harm can be quite low (but not trivial) but the risk is still an imminent threat where the hazard cannot be corrected in time. A serious threat, not being imminent, means that the hazard that produces the serious threat is more likely to be corrected than hazards resulting in imminent threats can be corrected.
Importantly, he also recognized the concept of a minimum threshold to establish danger, regardless of the seriousness of the potential threat, stating:
[198] …a threat entails the probability of a certain level of harm. Some risks are threats and some are not. A very low risk, either because of low probability or because of low severity, is not a threat. Both probability and severity each have to reach a minimum threshold before the risk can be called a threat. It is clear that a low risk hazard is not a danger. A high risk hazard is a danger.
The Appeals Officer then set out a three-part test for assessing whether there is a “danger.” The test incorporates the two distinct forms of danger found in the new definition:
- What is the alleged hazard, condition or activity?
- (a) Could this hazard, condition or activity reasonably be expected to be an imminent threat to the life or health of a person exposed to it?
OR
(b) Could this hazard, condition or activity reasonably be expected to be a serious threat to the life or health of a person exposed to it?
- Will the threat to life or health exist before the hazard or condition can be corrected or the activity altered? [para 199]
The respondent in this case was a Correctional Manager at a maximum security institution. He requested that he be allowed to carry a debilitating spray to subdue inmates as needed, as well as handcuffs. When he did not receive a response to this request, he instituted a work refusal.
The Appeals Officer applied this new test and found that the threat in question lacked the requisite “immediacy” to meet the requirement for 2(a), and a serious threat as contemplated under 2(b) did not exist. He concluded that the respondent was not exposed to a danger on the day he exercised his work refusal.
As more appeals of work refusals and “danger” directions are issued by the OHSTC, it will be important to monitor those respective decisions to see if the test set out by Appeals Officer Strahlendorf is followed. In the interim, employers should consider both “immediate threats” and “serious threats” when faced with work refusals.
