Under the Canada Labour Code – Part II – Occupational Safety and Health, an employee is entitled to refuse to work if a working condition presents a danger to the employee. Recently, the Federal Court undertook its first review of the amended definition of “danger” under Part II.
Currently, “danger” is defined in Section 122(1) of the Code 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”.
Under the previous definition, “danger” was “any hazard or condition that could reasonably be expected to cause injury or illness to a person exposed thereto before the hazard or condition could be corrected”. This definition had been construed to require that the danger be immediate and real, and not merely a hypothetical or speculative risk.
In Martin v. Canada (Attorney General), Parks Canada issued a direction that sidearms would not be routinely issued as standard equipment to park wardens who perform law enforcement duties. A parks warden filed a complaint claiming that this constituted an occupational “danger”.
A safety officer investigated the complaint and concluded that the law enforcement activities performed by park wardens without the necessary protective equipment (i.e., a sidearm) constituted a “danger” within the meaning of Part II. The safety officer directed Parks Canada to either take action to alter the law enforcement duties of park wardens or protect them from the danger presented by such duties. Parks Canada appealed to the Canada Appeals Office on Occupational Health & Safety.
The appeals officer held that there was no factual basis to support the safety officer’s finding of the existence of danger. Rather, the safety officer’s direction was based on the hypothetical possibility that an injury might occur in the absence of a sidearm. As a result, the safety officer had confused “danger” with “risk”. The matter was appealed to the Federal Court.
The Court upheld the decision of the appeals officer, noting that while the new definition of “danger” allows for future activity to be taken into consideration, this cannot be an open-ended exercise. For a “danger” to exist within the meaning of Part II of the Code, it must be reasonable to expect that the prospective hazard, condition or activity will cause injury or illness to a person exposed to it before the hazard or condition can be corrected or the activity modified.
Therefore, although a “danger” can be prospective, the definition will exclude hypothetical or speculative situations. While it is not necessary that an injury or illness occur immediately after exposure to the activity, the definition of “danger” requires an impending element because the injury or illness has to occur before the hazard or condition can be corrected or the activity altered.
While this decision provides a useful interpretation of the new definition of “danger” under Part II of the Code, the nature of the evidence that will be required to establish a future risk remains to be seen.
Martin v. Canada (Attorney General), 2003 FC 1158, October 6, 2003.