GSB#2004-1321

UNION#2003-0154-0014

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Anger et al)

Grievor

• and -

The Crown in Right of Ontario

(Ministry of Community and Social Services)

Employer

BEFORE

Michael V. Watters

Vice-Chair

FOR THE UNION

Ernest A. Schirru

Koskie Minsky LLP

Barristers and Solicitors

FOR THE EMPLOYER

Lisa Compagnone

Ministry of Government Services

HEARING

April 17, June 25 and July 3, 2008.

Decision

The parties to this proceeding filed the following Agreed Statement of Facts:

“BACKGROUND

1. The Ministry of Community and Social Services (the “Ministry”) is responsible for administering Ontario Disability Support Program (“ODSP”) services to the public at various offices across the Province of Ontario, including the current Windsor ODSP Office located at 270 Erie Street East. The ODSP provides province-wide income and employment support and benefits to persons with disabilities and their families.

2. Principles of ODSP include providing clients with an accessible, comfortable and confidential environment, and to work with people with disabilities. These objectives are consistent with the Ontarians with Disabilities Act, 2001.

Ontarians with Disabilities Act, 2001, S.O. 2001, c.32 at Tab 1 of the Ministry’s Book of Documents

Accessibility for Ontarians with Disability Act, S.O. 2005 at Tab 2 of the Ministry’s Book of Documents

Guide for Reviewing Policies Pursuant to Ontarians with Disabilities Act, 2001 at Tab 3 of the Ministry’s Book of Documents

3. The Ontario Public Service Employees’ Union is the exclusive bargaining agent for ODSP Client Service Representatives (“CSR”), Income Support Specialists (“ISS”) and Income Support Clerks (“ISC”) (cumulatively referred to as “ODSP staff”) employed by the Ministry and working at the Windsor ODSP Office currently located at 270 Erie Street East in Windsor, Ontario.

Job Description for CSR at Tab 4 of the Ministry’s Book of Documents

Job Description for ISS at Tab 5 of the Ministry’s Book of Documents

Job Description for ISC at Tab 6 of the Ministry’s Book of Documents

4. On or about October, 2003, the Windsor ODSP office moved from its previous 250 Windsor Avenue location to the current 270 Erie Street East location.

5. The ODSP office reception area desk at the previous 250 Windsor Avenue location included a physical barrier separating ODSP staff from client contact. This physical barrier was agreed to in a without prejudice settlement of a grievance filed by OPSEU. The parties agree not to rely on the without prejudice settlement as part of their individual cases presently before Vice Chair Watters of the GSB.

A copy of this grievance is attached at Tab 7 and the settlement is attached at Tab 8 of the Ministry’s Book of Documents

6. The ODSP office reception area desk at the current 270 Erie Street East location is not equipped with any physical barrier separating ODSP staff from clients, other than the current front counter. Details of which are provided below.

Pictures of the current ODSP office reception area desk at Tab 15 of the Union’s Book of Documents

7. In terms of the front desk, ODSP clients wishing to receive service would obtain a numbered ticket from a dispenser, and they would go to the front counter once their number has been called. In most instances, clients are then initially greeted by an ISC and are then referred to a CSR to address their needs. The service at the front counter is for matters that may take 5 to 10 minutes. For a matter that may take longer, the client is encouraged to make an appointment with an ISS.

8. For each of the following years the number of clients identified that were served in the Windsor ODSP office are:

2004 - 16,013 clients were served

2005 - 18,935 clients were served

2006 - 27,063 clients were served

2007 - 24,617 clients were served

These numbers do not include general public inquiries.

9. ODSP staff complete and sign an incident report if there is behavior which is or is perceived to be threatening and/or disruptive to any staff member, other clients or property. Samples of incident reports compiled at the Windsor ODSP office located at 270 Erie Street East from and after November 2005 can be found at Tab 16 a-p of the Union’s Book of Documents.

Relevant Incident Reports at Tab 16 of the Union’s Book of Documents

10. On or about November 12, 2003, OPSEU filed a grievance on behalf of ODSP staff at the Windsor ODSP office alleging a violation of the Ministry’s obligations as set out in Article 9 of the Collective Agreement and section 25(2)(h) of the Occupational Health and Safety Act (the “Grievance”).

Grievance at Tab 1 of the Union’s Book of Documents

11. On or about February 28, 2006, the parties entered into a Memorandum of Settlement in relation to the Grievance (the “Settlement”). Under the terms of the Settlement, the Ministry agreed to review the design of the front counter in Windsor ODSP office in order to determine if there are options for enhancing the security without compromising accessibility for the ODSP office’s clients.

Memorandum of Settlement dated February 28, 2006 at Tab 2 of the Union’s Book of Documents

12. The process of review required OPSEU to provide the Ministry with a written proposal for the modification of the front counter.

OPSEU’s written proposal at Tabs 3 and 4 of the Union’s Book of Documents

13. The Ministry provided written responses to OPSEU’s redesign proposal on June 29, 2006.

Ministry’s response can be found at Tab 5 of the Union’s Book of Documents

14. On October 10, 2006 the employer invited OPSEU to discussions intended to resolve the outstanding grievance.

The Ministry’s letter to Ms. Anger can be found at Tab 6 of the Union’s Book of Documents

15. On April 10, 2007, the Interest Based Problem Solving (“IBPS”) Team, made up of members of both OPSEU, local management, regional management and corporate representatives, met in an attempt to resolve the Grievance. During this meeting, the parties agreed that management would work with the Capital Accommodation Services Branch and provide redesigns to OPSEU. The final design selected would be put forward to senior management for final decision.

The Memorandum can be found at Tab 7 of the Union’s Book of Documents

16. In or around June 21, 2007 the Ministry provided to OPSEU a draft redesign that was as a result of the IBPS and that was later forwarded to senior management for final decision.

The draft re-design is attached at Tab 10 of the Union’s Book of Documents

17. On September 11, 2007, the Ministry and OPSEU issued a joint memorandum to all Windsor ODSP Staff providing an update on the solutions agreed to by the IBPS Team during their April 10, 2007 meeting. In this memorandum, it states:

…union representatives and regional management have now reviewed the design and agreed to the concept as well as measurements.” The architect has taken these suggestions and will provide the revised design by early September. The final design will then be taken to senior ministry management for final decision.

A copy of this memorandum can be found at Tab 8 of the Union’s Book of Documents

18. On or about October 30, 2007, the Ministry arranged for a risk assessment audit of the Windsor ODSP office located at 270 Erie Street East by the Windsor Police Department. The audit conducted by Barry Horrobin, Director of Planning and Physical Resources of the Windsor Police Department and Vince Power, Operational Support Services of the Windsor Police Department, reviewed the front counter as it existed at the time of the audit, as well as the draft re-design that was as a result of the IBPS.

“Crime Prevention through Environmental Design and Threat and Risk Assessment” by Windsor Police Department at Tab 9 of the Union’s Book of Documents

19. In its e-mail dated November 9, 2007, the Ministry informed OPSEU that they could agree on all modifications except for one. That being the installation of plexiglass to the front-counter.

The e-mail is attached at Tab 9 of the Ministry’s Book of Documents

20. In and around November 16, 2007, OPSEU exercised its right as set out in paragraph 1(D) of the Settlement and contacted the Grievance Settlement Board to have the Grievance re-listed for hearing before Arbitrator Watters. Paragraph 1(D) provides:

If the parties are unable to reach an agreement for the modifications for the front counter, the matter shall be referred to Vice-Chair Michael Watters for arbitration. Each party shall submit their proposal to Vice-Chair Watters, who will then make a determination as to which proposal meets its [the Ministry’s] obligations under the Collective Agreement and applicable legislation.

21. The Grievance Settlement Board re-listed the Grievance for arbitration hearing in Toronto, Ontario on April 17, 2008 and Windsor, Ontario on June 25, 26 and July 3, 2008.

ISSUE BEFORE THIS BOARD

22. The parties are in agreement that the issue currently before Arbitrator Watters is accurately set out in paragraph 1(D) of the Settlement.

23. It is OPSEU’s position that the redesign “concept” found at Tab 10 of the Union’s Book of Documents, is the only redesign concept that adequately addresses the health and safety issues, threats and concerns faced by Windsor ODSP staff, therefore meeting the Ministry’s obligations under the Collective Agreement and applicable legislation. More specifically, OPSEU maintains that some form of physical barrier of no less than six feet in height is necessary in order to protect ODSP staff from physical contact and/or the possibility of human bodily fluid exchange with ODSP clientele or the general public. The Ministry specifically disagrees with this position, and the allegations contained therein.

24. It is the Ministry’s position that its redesign concept, which includes numerous safety precautions, protects the grievors’ health and safety. The redesign concept satisfies the Ministry’s obligations under the Collective Agreement and applicable legislation. OPSEU specifically disagrees with this position, and the allegations contained therein.

25. It is OPSEU’s further position that the physical barrier proposed does not reduce accessibility, comfort or confidentiality for clients. The Ministry specifically disagrees with this position and the assertions contained therein.

26. The redesign concept advocated by the Ministry is influenced by the Model Office Guidelines (“Guidelines”), as well as previous agreement between OPSEU and the Ministry the nature of which are set out in paragraph 30.

Model Office Guidelines are attached

Document Related to the Model Office Guidelines are at Tab 10 and Tab 11 of the Ministry’s Book of Documents

27. It is the Ministry’s position that the Guidelines provide office design standards that increase accessibility, comfort and confidentiality for ODSP clients, while ensuring a safe workplace for employees. The intention of the Ministry is to use these Guidelines for the design of ODSP offices as the offices do major renovations or relocate. OPSEU specifically disagrees with this position, and the allegations contained therein. For greater clarity, OPSEU’s response to the Guidelines is attached.

OPSEU’s Response to MCFCS ODSP Office Model Design, at Tab 12 of Ministry’s Book of Documents

28. It is also the Ministry’s position that the Guidelines specifically exclude Plexiglass as it sets an adversarial tone between clients and staff which fosters more aggressive behavior from clients, and hinders accessibility. OPSEU specifically disagrees with this position, and the allegations contained therein.

29. The following safety features have been implemented as a result of the Guidelines:

i. Alarm/panic buttons at each CSR service area at the front of the counter and in each interview room;

ii. Seating, side tables, miscellaneous accessories such as brochure holders, dispensers and poster holders are securely fastened to the floor and/or wall;

iii. Raised counter (47.5 inches at its highest point; 38 inches at center section) and width of counter (42 inches deep) to provide passive barrier between staff and clients;

iv. Location of counter and waiting area facilitates full and unobstructed view of entire reception at all times;

v. The secure interview room for difficult clients.

30. OPSEU and the Employer have agreed to install the additional safety features:

i. bump-ups on the right and left of the CSR counter to increase height [June 2004];

ii. an arc shaped out towards clients to increase the depth of CSR counter [June 2004];

iii. a drop down counter at the main front for clients who require wheelchair accessibility [June 2004];

iv. an additional emergency button at CSR counter [June 2004];

31. The Ministry’s proposal for the physical structure, security procedure and staff training includes the precautions identified below.

Ministry’s proposal is at Tab 13 of the Ministry’s Book of Documents

32. In regards to the physical structure, the Ministry is willing to implement the following proposals put forward by the union:

i. move reception area to west end of office (semi-circular desk area);

ii. add signage to reception area to clarify new location for clients;

iii. move the “take a number” dispenser closer to client entrance;

iv. move public phone from current location to another area in the lobby (location to be determined by management and union);

v. install privacy panels to establish 3 separate service areas at front counter;

vi. reduce millwork along the “Trillium Logo” wall to provide additional space in reception and improve accessibility;

vii. install Pixel-board above center service area at front counter for enhanced messaging to clients.

33. In regards to security procedures, the Ministry proposes the following:

i. Staff Safety 911 package procedures as updated (June 2006). This package is a standing item on staff meetings for review and questions;

ii. Monthly testing of emergency buttons and correction of any issues (June 2006);

iii. Staff continue to have authority to contact police directly in emergency situations and a detailed protocol has been further defined in consultation with local police (March 2008);

iv. Protocols exist regarding response to panic button activation, but can be enhanced based on the police risk assessment report;

v. Mock incident drills can be introduced outside of office hours with agreement from the Union.

Staff Safety 911 package is attached as Tab 14

34. Additional security features the Ministry will commit to or has implemented based on Windsor Police risk assessment referred to at paragraph 16 above and found at Tab 9 of the Union’s book of Documents:

i. Raise the entire counter to 48 inches;

ii. Effective April 2008 the alarm sound that is triggered by panic buttons has been changed to a “chime” that is only audible in the back of the house office area;

iii. Effective April 2008 a strobe light has been added that triggers in the back of the house office area when panic button is depressed out front;

iv. Effective April 2008 four new redesigned panic buttons have been located at reception so they are easy to depress and separated from other types of buttons;

v. Add acrylic paneling to secure interview room from desk top to underside of ceiling (with sliding panels so room could be used for regular as well as difficult clients.);

35. Additional features the Ministry has implemented based on the Windsor Police risk assessment (effective April 25, 2008):

i. Four enunciators have been installed in strategic locations in the back office area so that management/ staff in areas of the office could hear the alarm;

ii. Door from lobby leading into the office has been changed to a door set that cannot be left unlocked;

iii. Two set of front doors have been changed to magnetic electronic locks that are connected to access and security systems-doors unlocked at 8:30 a.m. but also have a “first person in” security of a card reader behind the counter. This will ensure clients are not able to enter the building before staff are present at the front desk, and enable staff to remotely lock the front door as deemed necessary;

iv. Emergency lock button for front doors-front doors can now be locked by this button located at the front counter reception at any time during the workday, at the direction of the supervisor.

36. In regards to training, the Ministry proposes or has implemented the following:

i. All current staff were provided with Non-Violence Crisis Intervention training as of April 10, 2008. It has been added to Windsor’s annual training plan scheduled for new staff and refreshers for existing staff on an ongoing basis;

NVCI Intervention at Tab 15 of the Ministry’s Book of Documents

ii. Staff have been provided with Access, Awareness and Accountability (AAA) training to increase awareness regarding disabilities for clients;

AAA Training Curriculum at Tab 16 of the Ministry’s Book of Documents

iii. Enhanced training has now been developed regarding client disabilities and appropriate staff responses has been provided to all staff through the PACE (Professional Advancement and Career Education) program. All staff in the South West Region who are not on leave have been trained. The remaining Windsor staff completed this training in April 2008.

PACE at Tab 17 of the Ministry’s Book of Documents

iv. Police have attended the office to meet with staff and management to discuss police contact protocols during emergency situations (October 2007).

v. The Canadian Mental Health Association and other community partners attend the Windsor office periodically to make presentations to staff and managers regarding client disabilities and appropriate responses. Other community partners include:

• Salvation Army

• Multicultural Council

• Citizen and Immigration

• 211 Information and Referral Service

• Association for Persons with Physical Disabilities

• Housing Information Services

• Windsor Regional Hospital Problem Gambling Services

• Homelessness Coalition.

vi. Effective April 2008, staff have received training on the additional security features effective April 25, 2008 (as listed in the relevant portion of the physical section above).”

The Agreed Statement of Facts, hereinafter referred to as the “ASF”, sets out the factual context of the dispute, the history of events which occurred subsequent to the filing of the grievance and the parties general positions with respect to the issues raised therein. It further references the supporting documents relied on by the parties and contained within their respective Book of Documents.

At the hearing of July 3, 2008, the parties presented their arguments on the basis of the ASF. At that time, the Union filed the following authorities in support of its position: Parry Sound (District) v. OPSEU, Local 324, 2003 SCC 42, [2003] S.C.J. No. 42; R. v. Timminco Limited (2001), 2001 CanLII 3494 (ON CA), 54 O.R. (3d) 21 (Ont. C.A.); Ministry of Public Safety and Security v. William Schill et al., [2003] O.O.H.S.A.D. No. 105; Re Caughlin, [1987] O.O.H.S.A.D. No. 21; Street Cartage Ltd., [2006] O.O.H.S.A.D. No. 19. In response, the Employer relied on the following awards: Andrews et al., 1815/89 (Goldenberg); McFarlane, 1641/94 (Watters); OPSEU v. Ministry of Transportation and Ministry of Labour, [2006] O.O.H.S.A.D. No. 39; Sickinger v. Intercept Security Services and Ministry of Labour, [1998] O.O.H.S.A.D. No. 159.

It is unnecessary to refer to all of the supporting documents and authorities. They have, however, been considered at some length in the process of preparing this Decision.

This proceeding arises from a grievance dated November 12, 2003, the material part of which reads:

“STATEMENT OF GRIEVANCE

We (attached) grieve that the provisions for our health and safety in our new work location have been compromised in regard to the front counter-Article 9-Collective Agreement

SETTLEMENT DESIRED

That management take immediate steps to provide plexiglass to the front counter as we had in our previous work location prompted by a grievance for health and safety. That management consider input from staff and a qualified member from OHCOW for advice in the construction."

The parties signed a Memorandum of Settlement on February 28, 2006 in respect of the above grievance. The document contains the following provisions:

1. The employer agrees to review the design of the front counter in the Windsor ODSP office in order to determine if there are options for enhancing security without compromising accessibility for the ODSP office’s clients. The process for this review shall be as follows:

A) The grievors shall provide to the employer in writing by no later than April 30, 2006 with a proposal for modifying the design of the front counter. For greater clarity, the proposal shall not include the installation of floor-to-ceiling barriers.

B) The employer will meet with the grievors by no later than June 30, 2006 in order to respond to their proposal.

C) If an agreement is reached on the modification for the front counter, the employer shall consult with an architect or such other expert as required in order to determine the modifications’ structural feasibility and compliance with applicable legislation (including but not limited to the Ontarians With Disabilities Act). It is understood by the parties that the implementation of the agreed upon modifications is subject to the approval of the architect or expert, to be done by December 31, 2006.

D) If the parties are unable to reach an agreement for the modifications for the front counter, the matter shall be referred to Vice-Chair Michael Watters for arbitration. Each party shall submit their proposal to Vice-Chair Watters, who will then make a determination as to which proposal meets its obligations under the Collective Agreement and applicable legislation.

Following the execution of the Memorandum of Settlement, the parties engaged in the process described therein. The steps taken are documented in paragraphs 12 to 19, inclusive, of the ASF and do not need to be repeated here in any detail. Two (2) points, however, do merit mention. First, the Interest Based Problem Solving Team referenced in paragraphs 15, 16 and 17 of the ASF reached an agreement, subject to the approval of “senior ministry management”, on the redesign of the front reception counter at the Windsor ODSP Office. A picture of the redesigned counter is found at Tab 10 of the Union’s Book of Documents. It shows plexiglass or acrylic partitions, or barriers, at each of the work stations at the counter. As the picture is without dimensions, it is difficult to accurately judge the height of the partition. On my view, I would roughly estimate its top height at about six feet (6'). The picture also depicts an opening, or gap, in the partition at each work station to facilitate communication between employee and client. I estimate that the openings are approximately one and one-half feet (1 ½') in width. Second, the Employer by e-mail of November 9, 2007 informed the Union that, while it could agree to a number of modifications, it could not agree to the creation of a partition or barrier of the type mentioned above. In this regard, the e-mail reads:

“Ministry management was not able to agree to the acrylic panels that are included in the attached drawing in each service area (they look like clear panels that sit on top of the counter). The rationale for this decision was that the other security modifications and existing security measures and procedures address the priority of staff safety, and there was concern that the panels detract from the open, accessible and welcoming atmosphere the Ministry is trying to create for clients.”

Shortly after receipt of the above communication, the Union elected to exercise its right under paragraph 1.(D) of the Memorandum of Settlement to have the grievance referred back to the Grievance Settlement Board for final and binding arbitration. Pursuant to the aforementioned paragraph, each party was to submit their proposal, in respect of the modifications for the front counter, to this Vice-Chairperson following which I was empowered to “make a determination as to which proposal meets its obligations under the Collective Agreement and applicable legislation”.

The relevant provision of the collective agreement is article 9.1, which reads:

The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees.

In Andrews et al., the Board summarized the appropriate standard to apply in cases involving article 9.1 (then article 18.1) as follows:

“1. There is no obligation on the employer to guarantee an employee’s safety against every possible risk, no matter how remote the possibility that it will occur;

2. It is necessary to balance the safety of the employees against the operational needs and purposes of the institution or program in which they work; and

3. Proper planning can reduce the potential or likelihood of incidents, but it is not possible to eliminate all conceivable risks.”

(page 15)

The approach articulated in the above excerpt was applied by this Vice-Chairperson in McFarlane.

The relevant provision of the Occupational Health and Safety Act, R.S.O. 1990, c. 0.1 is section 25(2)(h), which reads:

Without limiting the strict duty imposed by subsection (1), an employer shall,

h) take every precaution reasonable in the circumstances for the protection of a worker;

In R.v. Timminco Limited, the Ontario Court of Appeal commented as follows with respect to the nature of the Occupational Health and Safety Act:

“[22] The Occupational Health and Safety Act is a public welfare statute. The broad purpose of the statute is to maintain and promote a reasonable level of protection for the health and safety of workers in and about their workplace. It should be interpreted in a manner consistent with its broad purpose…….”

The word “reasonable”, as found in section 25(2)(h), was the subject of interpretation in Ministry of Transportation and Ministry of Labour, a decision of the Ontario Labour Relations Board. The Board there noted:

“146 There is surprisingly little case law on what the word “reasonable” in s. 25(2)(h) means. However, on the face of the provision the word “reasonable” clearly modifies the words “take every precaution in the circumstances”. Therefore, it is not every precaution which must be taken, but only reasonable precautions. Determining what is reasonable involves balancing the benefit to be gained by taking the precaution against all other relevant factors. These factors could include, among other things, the cost of the precaution and its effect on efficiency.

147 There was some suggestion that the severity of the risk and likelihood that the risk will actually occur are not relevant. I disagree…………………………………..”

On this latter point, the Ontario Labour Relations Board in Intercept Security Services similarly observed:

“57 Although counsel for the applicant argued that the frequency with which the risk is faced is irrelevant, I disagree. Section 25(2)(h) requires an employer to take “every precaution reasonable in the circumstances for the protection of a worker”. The language “reasonable in the circumstances” requires a consideration of the magnitude of the risk and its frequency………………”

The further decisions of the Ontario Labour Relations Board in Ministry of Public Safety and Security v. William Schill et al. and in Street Cartage Ltd. stand, generally, for the proposition that the statutory requirement to take precautions reasonable in the circumstances is not dependent on there having been some prior incident adversely affecting the health and safety of an employee. In the former decision, the Board stated:

“14 …………………………………………………………… ….No prior adverse incident is necessary to involve the protection of the ACT. In another context, one need not wait for a worker to be electrocuted to justify an order that hoisting equipment not be permitted within close proximity to a high voltage power line. The absence of a prior incident does not necessarily lead to the conclusion that there is no risk to worker safety:

In the latter decision, the Board noted as follows at paragraph 9: “The fact that there have been no workplace injuries for a number of years does not mean that the issues identified by the Inspector do not constitute a hazard to the health and safety of the workers”.

In summary, a similar approach must be taken when assessing the applicability of article 9.1 of the collective agreement and/or section 25(2)(h) of the Occupational Health and Safety Act. An Employer, under both the agreement and the statute, does not have to take steps to guarantee an employee’s health and safety against all possible or conceivable risks, no matter how remote they may be. The Employer, instead, is bound to make reasonable provisions under the former, and to take reasonable precautions under the latter, so as to provide the appropriate level of protection to employees. The test is one of reasonableness which, necessarily, requires consideration of a multitude of factors. I also accept that, in resolving the type of issue now before me, an objective standard must be used. I note the following comment in Re Caughlin on this point:

“13 …………………….., I find that one must look at objective criteria to determine if any worker is endangered by the work environment and that the worker’s subjective feeling about danger is not sufficient to render a job dangerous to that worker. The worker’s perception must be a reasonable one grounded on demonstrable and objective criteria.”

The Union’s position is set out in paragraphs 23 and 25 of the ASF. As stated therein, the Union seeks some form of physical barrier of no less than six feet (6') in height in order to protect ODSP staff from physical contact and/or the possibility of human bodily fluid exchange with clientele or the general public. Paragraph 23 references Tab 10 of the Union’s Book of Documents, which has been generally described above, as the type of redesign being sought. In closing argument, counsel for the Union stated that he was also asking for a modification to Tab 10, comparable to the one suggested in the risk assessment audit conducted by the Windsor Police Department. More specifically, the audit suggested that the openings at each of the work stations be reduced to four inches (4”). The reasoning for this suggestion is captured in the following passage from the report:

“……..The one shortfall is that the opening in the glazed partition being proposed is of a width that could facilitate an aggressive person striking the employee. The opening should be reduced to permit unhindered conversation but will still prevent physical contact………………………………………”

It is the further position of the Union that a physical barrier, of the type being proposed, will not reduce accessibility, comfort or confidentiality for ODSP clients. In substance, the Union asserts that the installation of a barrier is a reasonable provision or precaution and is necessary to protect the health and safety of the employees in question.

In support of the above positions, the Union relies on a series of incident reports found at Tabs 16 (a) to (p) of its Book of Documents. Twenty-eight (28) incident reports are provided therein. There are multiple reports for six (6) of the incidents. Counsel for the Union submitted that the incident reports evidence a continuing, real and imminent threat of physical harm for the ODSP staff working in the Windsor Office. From his perspective, the alternative measures proposed by the Employer are reactionary, rather than preventative, in nature and do nothing to protect front-line staff from agitated and angry clients, many of whom suffer from mental illness, who may be intent on taking their frustrations out on the employee at the reception counter. Counsel further suggested that the Employer’s proposals fail to address the Union’s concerns about the potential for individuals to jump across the counter and assault a staff member, throw projectiles at staff or spit at staff.

The Employer’s proposal is found at Tab 13 of its Book of Documents. This proposal encompasses the following:

i. the five (5) safety features listed in paragraph 29 of the ASF which have been implemented as a result of the Model Office Guidelines;

ii. the four (4) additional safety features listed in paragraph 30 of the ASF which the Employer has agreed to install;

iii. the seven (7) Union proposals, relating to physical structure, listed in paragraph 32 of the ASF which the Employer is prepared to implement;

iv. the five (5) security procedures listed in paragraph 33 of the ASF which the Employer has already implemented or is prepared to implement;

v. the five (5) additional security features listed in paragraph 34 of the ASF which the Employer has implemented or will commit to based on the risk assessment audit performed by the Windsor Police Department. I note that the list includes raising the entire front counter to a height of forty-eight inches (48"); and

vi. the five (5) training initiatives listed in paragraph 36 of the ASF which the Employer has already implemented or will commit to.

While not found in Tab 13, it is clear that the Employer’s package of proposals in this proceeding also includes the four (4) additional features listed in paragraph 35 of the ASF which it has implemented following the risk assessment audit. I also note for the record that Tab 13 contains a sketch, or mock-up, of its proposal for the front counter.

The Employer maintains that the installation of a physical barrier at the front reception counter, as sought by the Union, would be inconsistent with the intent of the Ontarians with Disabilities Act, 2001. The pertinent provisions of the legislation read:

Preamble

The people of Ontario support the right of persons of all ages with disabilities to enjoy equal opportunity and to participate fully in the life of the province.

Ontarians with disabilities experience barriers to participating in the mainstream of Ontario society. The number of persons with disabilities is expected to increase as the population ages, since the incidence of disability increases with age.

The Government of Ontario is committed to working with every sector of society to build on what it has already achieved together with those sectors and to move towards a province in which no new barriers are created and existing ones are removed. This responsibility rests with every social and economic sector, every region, every government, every organization, institution and association, and every person in Ontario.

Purpose

1. The purpose of this Act is to improve opportunities for persons with disabilities and to provide for their involvement in the identification, removal and prevention of barriers to their full participation in the life of the province.

Definitions

2.(1) In this Act,

“barrier” means anything that prevents a person with a disability from fully participating in all aspects of society because of his or her disability, including a physical barrier, an architectural barrier, an information or communications barrier, an attitudinal barrier, a technological barrier, a policy or a practice;

Government buildings, structures and premises

4.(1) In consultation with persons with disabilities and others, the Government of Ontario shall develop barrier-free design guidelines to promote accessibility for persons with disabilities to buildings, structures and premises, or parts of buildings, structures and premises, that the Government purchases, enters into a lease for, constructs or significantly renovates after this section comes into force.

(4) The Government of Ontario shall ensure that the design of buildings, structures and premises, or parts of buildings, structures and premises, that it purchases, constructs or significantly renovates after this section comes into force complies with the guidelines before occupation or regular use by its employees.

The definition of “barrier” as set out in section 2(1) above is also incorporated into the Accessibility for Ontarians with Disabilities Act, 2005.

In accordance with the above legislation, the Employer developed Model Office Guidelines for the Ontario Disability Support Program. The Guidelines were filed as an exhibit in this proceeding. The “ODSP Model Office Key Messages” states, in part:

• The Government of Ontario, through the Ontarians with Disabilities Act, is committed to working with people with disabilities to move towards a province in which no new barriers are created and existing ones are removed.

• The exclusion of plexiglass in the ODSP Model Office design is seen as removing a systemic barrier.

• The inclusion of plexiglass is not consistent with the shift both management and the union are trying to achieve which focuses on customer service.

• The use of plexiglass sets an adversarial tone between clients and staff which fosters more aggressive behaviors from clients.

• It has been found in our offices where plexiglass has been removed that the safe and comfortable environment reduces the anxiety and frustration levels in clients and the tendency for aggressive behavior.

• Management acknowledges that there needs to be a good balance between customer service and the health and safety of employees.

Similar comments are contained in the “ODSP Model Office Design Handbook Notes”.

I note that the Union took issue with certain aspects of the Model Office Guidelines at the time they were introduced. Its response to the Guidelines of August 1, 2003 contains the following statement:

“The design of the front counter must include plexiglass for those offices who require it. We are aware for instance that there are some rural areas or small offices who have never had the need for plexiglass as they have not had any aggressive or threatening outbursts. However, when relocating or renovating there must be an option to ensure plexiglass in those offices that currently have it or those offices that opt to use it.

Plexiglass is not viewed as a barrier. Instead plexiglass is seen as an unintrusive means of insuring staff safety and security. Currently many offices outside the Ministry and government utilize plexiglass. Offices such as Doctors, Dentists and other Health Care Professionals utilize a window at reception. Why would we expect anything less for our ODSP staff?

In summary, it is the Employer’s position the Union failed to present any evidence, relating to the likelihood of risk to employees’ health and safety; that would justify the need for the physical barrier sought. In the alternative, counsel for the Employer argued that, at most, the likelihood of risk is minimal or remote, and that the Employer has taken reasonable precautions to minimize the risk. Given the nature of the evidence presented, and the seriousness of the issue, I have elected to focus on this latter submission as, in my judgment, it is the threshold issue separating the parties.

There is no doubt that employees working at the ODSP Office in Windsor have difficult jobs to perform. The challenges they face are referenced in the following excerpt from the Union’s response to the Model Office Guidelines:

“……………In the past decade the client base has changed considerably from sole support parents who were downloaded to the municipalities to a more high risk, high needs clients group who present a variety of challenges to their service providers.

The closure of facilities for the Developmentally Handicapped and Psychiatric Hospitals has also had an impact on our program. In the past these clients had their immediate needs met by the facility or the hospital. Now these clients are living in the community and depend on our ODSP offices for continual assistance and support.”

The clients served suffer from mental and/or physical disabilities. I accept that, from time to time, clients may become frustrated, upset or annoyed at the need to comply with requirements relating to the initial claim for assistance and/or the continued receipt of benefits. These emotions, for example, could be triggered by an employee request for additional information or by a client’s failure to receive a benefits cheque. As a consequence, ODSP staff may periodically have to deal and interact with persons who act in a disruptive, inappropriate and unpredictable manner. I am left, however, with the distinct impression that the vast majority of clients do not conduct themselves in this fashion. In this regard, as previously mentioned, the Union filed some twenty-eight (28) incident reports of what was perceived to be threatening or disruptive behavior occurring from and after November 2005. I consider it material that in the period 2004 to 2007 inclusive, some eight-six thousand (86,000) clients were served in the Windsor ODSP Office.

I have reviewed all of the incident reports, and related material, filed by the Union in this proceeding. My conclusions are as follows:

i. The bulk of the reports deal with inappropriate behavior of a verbal, rather than a physical, nature. I accept that many of the comments contained therein, which were attributed to clients, are threatening, intimidating, disruptive, abusive and profane. I have not been convinced, however, that this form of objectionable language would be either prevented or reduced by the erection of a physical barrier;

ii. There is no evidence that any ODSP employee in the Windsor Office has ever been physically assaulted by a client, either directly or by way of a thrown projectile. The reports document one (1) unsuccessful attempt, on the part of a client, to hit an employee. While there is not much detail relating to this attempt, the client’s inability to make physical contact supports the Employer’s position that the front counter is of a sufficient depth to offer reasonable protection to employees working at that location;

iii. Similarly, there is no evidence that any client has ever jumped or climbed over the front counter at the Windsor ODSP Office. In any event, I have some real doubt as to whether the plexiglass barrier, as depicted at Tab 10 of the Union’s Book of Documents, would prevent a person from climbing across the counter if they were truly motivated to do so. At most, I think that the barrier would slow them down. There is a statement in certain of the reports that staff members were afraid that the client involved was going to jump across the counter in an effort to reach them. Their subjective beliefs on this point are not determinative in the absence of more objective evidence that such conduct has actually occurred in the period of relevance to this dispute;

iv. There is no evidence of any employee having been spit on by a client. Additionally, apart from one (1) exception, the reports do not document any incident where there was some potential for the transmission of infectious disease. The exception relates to a situation in which a client elected to slice his arm with a knife resulting in blood dripping from the wound. I am unable to find that the Union’s proposal would either eliminate or reduce this type of contact were such to occur;

v. I note from the reports that a significant number of the incidents were diffused or resolved by staff; and

vi. The fact there have been no instances of physical assaults, or related client misbehavior, is not determinative in and of itself that there is no risk to employee safety. On the evidence before me, however, I have not been persuaded that this group of employees are subject to a continuing, real and imminent threat of physical harm, as claimed. The content of the incident reports, in the context of the total number of clients served, does not support such a claim.

In my judgment, the “Crime Prevention through Environmental Design and Threat and Risk Assessment” prepared by the Windsor Police Department is a significant document for purposes of this proceeding. Subject to the one (1) exception referenced earlier, the authors of the audit concluded that the design arrived at through the Interest Based Problem Solving Team would address the bulk of the safety deficiencies raised. They stated, however, that the following alternative measure would achieve the same objective:

“iv. The reception desk has an overall height of 47 ½" at its highest level but a cut out section in the center that is only 38" high. The overall depth of the counter is 42". These dimensions nearly meet the standard for ‘non-confrontational design’ (48" high x 36" deep) to safely separate an employee from a member of the public who may become aggressive. If modifications to the lower section of the counter could be made to have it match the higher sections, then the kiosk would fully meet the standard and would satisfy (in the authors’ opinion) the requirements of section 20 of Regulation 851 of the Occupational Health and Safety Act pertaining to the use of protective barriers to ensure a worker’s safety from potentially unsafe pedestrian interaction.”

As part of its proposal, the Employer has committed itself to raising the entire counter to a height of forty-eight inches (48"). The commitment is supportive of a conclusion that this aspect of the Employer’s proposal constitutes a reasonable provision or precaution relative to the employees’ health and safety.

Counsel for the Union argued that there are contradictions in the position advanced by the Employer, the more important of which are as follows: the Interest Based Problem Solving Team recommended a design inclusive of a physical barrier, notwithstanding its awareness of the Model Office Guidelines; the Employer agreed to acrylic paneling to secure the interview room from desk top to the underside of the ceiling; and the installation of a passive barrier at the counter to a height of forty-eight inches (48") would create a situation where front line staff would “tower over” clients and thereby adversely affect the latters’ comfort and accessibility. I have not been persuaded that these arguments have merit for the following reasons:

i. It is apparent that any design flowing from the Interest Based Problem Solving Team process was subject to the approval of “senior ministry management”. Ultimately, Ministry Officials, presumably at that level, declined to accept the recommended design as “there was concern that the panels detract from the open, accessible and welcoming atmosphere the Ministry is trying to create for clients”. Under the agreement with the Union, the Employer was entitled to take that position. It was not bound to accept the aforementioned recommendation. My task in this proceeding, in part, is to assess whether the Employer’s refusal to accept the recommendation of the Interest Based Problem Solving Team amounted to a breach of its health and safety obligations. This assessment, necessarily, involves a consideration of both the recommended design and the Employer’s package of counter measures;

ii. I am satisfied that the situation relating to the interview room is distinguishable from that of the front counter in the reception area. The former is a secure room designed in part to assist with the processing of difficult clients. These clients may potentially be flagged through the use of other office systems and processes. In this respect, the secure interview room is used for clients who have been identified as constituting a potential health and safety risk. In this context, it is understandable why the Employer’s desire for accessibility may be somewhat less in respect of this room vis a vis at the front counter in the reception area. (I do recognize that the panel in the interview room has a built-in window that permits the room to be used for regular clients). In contrast, the physical barrier sought by the Union affects all clients who attend at the front counter and is not limited to those persons who have already been identified as problematic; and

iii. There is insufficient evidence before me to allow for a conclusion that the passive barrier will decrease the comfort level of clients and reduce their level of accessibility. Even if it did have that result, I am inclined to think that such effect would be less than from the type of physical barrier sought by the Union.

As mentioned previously, the Employer’s package of proposals includes the following components: the safety features implemented as a consequence of the Model Office Guidelines (ASF paragraph 29); the additional safety features the Employer and the Union have agreed to (ASF paragraph 30); the Union’s proposals, relating to the physical structure of the reception area, which the Employer is prepared to implement (ASF paragraph 32); the Employer’s proposals relating to security procedures (ASF paragraph 33); the additional security features the Employer will commit to or has implemented based on the Windsor Police Department risk assessment (ASF paragraph 34); the additional features the Employer has implemented as a consequence of the aforementioned risk assessment (ASF paragraph 35); and the training the Employer proposes or has implemented (ASF paragraph 36). To reiterate, the Employer’s proposal includes raising the entire counter to a height of forty-eight inches (48").

After reviewing all of the above-mentioned components, together with the supporting material, I am satisfied that the Employer’s package of proposals complies with the requirements imposed by article 9.1 of the collective agreement and section 25(2)(h) of the Occupational Health and Safety Act. More specifically, I find that the package in its totality is a reasonable provision for the safety and health of the ODSP employees working at the Windsor Office. Further, I find that, upon complete implementation, the Employer will have taken every precaution reasonable in the circumstances for the protection of these employees. In summary, and pursuant to the authority of paragraph 1(D) of the Memorandum of Settlement dated February 28, 2006, I find that the Employer’s proposal as described is in accordance with the obligations imposed under the collective agreement and applicable legislation. In this regard, I have not been persuaded that these contractual and legislative obligations require the presence of a physical barrier, as sought by the Union. In my view, the creation of such a barrier would be inconsistent with the intent of the Ontarians with Disabilities Act, 2001.

I will remain seized to ensure that all the components of the Employer’s proposal are implemented in a timely fashion.

Dated at Toronto, Ontario this 29^th day of August, 2008.