0804-01-HS Ministry of Correctional Services (Kenora Jail), Appellant v. Ontario Public Service Employees’ Union, Ray Leray (Inspector) and Ministry of Labour, Responding Parties.
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; July 6, 2001
The appellant filed an appeal under section 61 of the Occupational Health and Safety Act, R.S.O. 1990, c. O. 1 (the “Act”) in which it seeks to have the order issued by the Inspector on May 13, 2001 in F.V. No. 975326 requiring the electronic control for the sally-port doors at the Kenora Jail be moved from within the sally-port to the control module (the “Order”) set aside. On the same day (June 12, 2001) it filed the appeal, the appellant also applied for a suspension of the Order under section 61(7) of the Act. I note that the Order required compliance by June 15, 2001. (According to the response to the suspension request filed by the Ontario Public Service Employees’ Union (“OPSEU”), the appellant requested and the Inspector granted an extension of time to comply until June 29, 2001. This application was not brought to my attention until June 29, 2001, after the time for filing a response to the application had expired.)
OPSEU opposes the application to suspend the Order while the Inspector and the Ministry of Labour are content to have the Order suspended until the appeal is determined.
In March and April 2001 the appellant installed sally-port doors in eight of the cellblocks at the Kenora Jail. The sally-port is a two door passageway between the cellblock where inmates are incarcerated and the building corridor. The sally-port has an interior and an exterior door and is intended to function in a way that will always result in having at least one locked door between the cellblock and the building corridor. Only one door to the sally-port is to be unlocked at any one time. That is, when the interior door of the sally-port to the cellblock is open, the exterior sally-port door to the corridor remains closed and locked; and when the exterior sally-port door to the corridor is open, the interior sally-port door to the cellblock is to be closed and locked.
The sally-port doors at the Kenora Jail are opened by a correctional officer with a key. OPSEU explained that a control for the exterior sally-port door is outside of the cellblock, on the wall of the sally-port immediately across from that door. The control for the interior sally-port door is in the corridor. The appellant stated: “The control for the inner sallyport door is outside of the cellblock, on the wall immediately across from the outer door.” The Inspector’s report suggests that the control for the doors of the sally-port is in the corridor because that report states: “Peter Cann refused to work as Sallyport control is in hallway and inmates could over power guards and letout [sic] other inmates.” The appellant points out (in its submissions on the merits of the appeal) that the configuration for control of the sally-port at the Kenora Jail is the same as the control configuration at four other jails (Quinte, Whitby, Ottawa and Niagara). I am prepared to assume, based on the parties’ submissions, that there is a control for both doors of the sally-port in the corridor outside of the sally-port and a control for only the exterior door of the sally-port on the wall of the sally-port.
The Order arose out of a work refusal by correctional officer Peter Cann on May 13, 2001. As a result of the investigation into the refusal, the Order was issued. The Inspector determined that the appellant, in order to comply with the obligation imposed by section 25(2)(h) of the Act to “take every precaution reasonable in the circumstances for the protection of a worker” should move the control for the sally-port to the Control Module. The Inspector noted that the refusal by Mr. Cann arose from a concern that inmates could overpower guards and then let out the other inmates. The Inspector concluded that moving the electronic control of the sally-port to the control module would reduce the chances of inmates being able to unlock their cells and release their fellow inmates.
There had been an earlier work refusal at the Kenora Jail in April 1996 that arose from the appellant refusing to lock an exterior door to the cellblock corridor. The Inspector attended the jail at that time and determined that no order should be made under the Act. The Inspector concluded that the unlocked door was a security issue dealing with measures and procedures inherent in the duties of a correctional officer that involve inmate movement and security. The Inspector concluded that the unlocked door was a normal condition of the worker’s employment. The work refusal in May 2001 occurred after the installation of the sally-ports and as a result of having the control for one of the sally-port doors within the sally-port.
OPSEU submits that suspending the operation of the Order would likely endanger the correctional officers working at the Kenora Jail. It argues that the health and safety risks faced by correctional officers when inmates are entering or leaving the cellblocks has not been reduced by installing sally-ports in each cellblock. Rather, the installation of the sally-ports, OPSEU submits “has created a different condition of endangerment for the correctional officers in the Kenora Jail.” OPSEU suggests that when a correctional officer operates the keyed electronic control for the interior sally-port door and then enters the sally-port when the inmate is inside it, the correctional officer “has no way of ensuring that the interior sally-port door is locked, prior to opening the exterior sally-port door.” As a result, OPSEU submits that it is possible that the interior door could remain open while the exterior door is open, thereby creating an insecure situation in which inmates could leave the cellblocks and create a substantial risk to the health and safety of the correctional officers.
The appellant suggests that its procedures are adequate to protect the health and safety of officers during the movement of inmates to and from the cellblocks. There are two correctional officers present when inmates enter or leave a cellblock and there are emergency alarms immediately adjacent to the sally-port doors. The appellant also relied on the correctional officers having radios with alarm buttons. OPSEU submits that on occasion there are an insufficient number of radios in working order and an insufficient number of batteries for those radios. It also submits that the inoperable radios are not scheduled for replacement until November 2001 at the earliest.
Given the factual dispute between the parties with respect to a significant element of the appellant’s argument in favour of the suspension, I am of the view that I should disregard the disputed material facts in considering the matter, as the determination of whether to suspend an Inspector’s order should be based on material facts that the parties to the proceeding can accept. For the Board to adopt one party’s assertions of fact when they are directly disputed by the other affected party that has also set out a detailed factual basis for disputing that party’s assertions of fact, as OPSEU has done in this proceeding, would lead, in my opinion, to a situation where parties might well “embellish” the facts without risk, since the Board might rely on their facts rather than the other party’s facts to come to a determination of the suspension decision.
The nature of suspension proceedings does not permit the Board to engage in a precise fact finding exercise in order to determine the matter. The Board relies on the submissions of the parties with the expectation that the parties will provide all of the material facts on which they rely in support of their position. In my view, a party in a proceeding dealing with a request for suspension of an order must set out only the material facts on which it relies that it is in a position to prove, knowing that if those facts are directly disputed by the other parties, the Board will likely not consider them in determining the matter. And, a party that disputes the facts alleged must not only deny those facts with which it does not agree but must also provide specific facts on which it relies to support its denial.
In this case, I am satisfied that suspending the Order until the appeal is determined would not place the health and safety of workers in jeopardy. The risk faced by corrections officers from having the control for one of the sally-port doors within the sally-port or the control for both sally-port doors in the corridor is not any greater than it was before the sally-port doors were installed. OPSEU’s principal point appears to be that a correctional officer cannot ensure the interior door is locked before opening the exterior door while the inmate is in the sally-port with the correctional officer. It seems to me that the officer could do a physical check of the interior door to be sure it is locked before opening the exterior door. While the inmate being present in the sally-port with the officer does create some risk, that risk is inherent in the job of a correctional officer escorting inmates. Having a second officer present to observe inmate movement through the sally-port significantly reduces that risk. The appellant’s procedures, which require two correctional officers present when there is inmate movement into and out of the cellblocks, is in my view adequate to protect the health and safety of the correctional officers while the Order is under appeal.
I note in that regard that OPSEU submits that “the Kenora Jail runs at red line the minimum staffing level…each night and as a result, any emergency movement or late admission of inmates requires inmates to either be put in the range by one officer or to have one officer abandon his post to act as backup.” It therefore argues that there are not two officers present when there is inmate movement or if there are two officers present, there cannot be an immediate response to an emergency.
If there are not two officers present to move inmates into or out of the cellblock, then it would appear, according to the appellant, that an inmate should not be moved for to do so in those circumstances would not be in accordance with the appellant’s procedures. OPSEU does not dispute the appellant’s description of the procedures for the movement of inmates but rather suggests that at times the appellant’s procedures are not followed. I do not accept what seems to be OPSEU’s position that although the appellant’s procedures require two people present for inmate movement, there are situations where those procedures are not applied so therefore other steps are necessary to ensure that worker safety is not jeopardized.
I am also persuaded by the submissions of the Inspector and the Ministry of Labour in which they state: “…the installation of the sally-port doors has made the situation safer for workers. The old system was in place for at least five years…without incident. The Inspector and the Ministry are satisfied that workers would not be endangered by suspending the order.”
The appellant submits complying with the Order before the appeal is determined will require it to undertake “a great deal of construction and electrical work necessitating the approval of a large capital fund expenditure.” The appellant has not provided any estimate of the actual costs associated with compliance, nor has it indicated what sorts of construction would be necessary to move the controls for the sally-port to the control module. The Ministry of Labour and the Inspector, on the other hand, submit “compliance with the order should be simple and inexpensive. The employer would only need to run a wire about twenty feet from doors to the control module. Perhaps holes would have to be drilled in walls.” OPSEU pointed out in its submissions that the appellant’s representatives, in meetings before this appeal was filed, had acknowledged that moving the controls could be done at a reasonable cost. In the absence of any indication from the appellant of the magnitude of the “capital fund expenditure”, I am not in a position to conclude that the appellant will suffer any significant prejudice as a result of having to comply with the Order.
Finally, I am also not persuaded that the appellant has a strong prima facie case even though the appellant has satisfied me that suspending the operation of the Order would not jeopardize workers’ health and safety. In Upper Grand District School Board, [2000] OLRB Rep. Nov./Dec. 1253 the Board wrote at page 1255:
…if the appellant cannot demonstrate a strong prima facie case on the merits of the appeal, then it is not necessary to consider either the degree of prejudice to the appellant or whether the suspension would endanger worker safety.
and later at page 1256:
…in my view, where worker safety is not likely to be jeopardized by the suspension of an order, it is still incumbent upon the appellant to satisfy the Board that its appeal has considerable merit in order to obtain a suspension of the order under appeal.
The control for one of the sally-port doors is within the sally-port and the control for both doors is in the corridor outside of the cellblock. If, as OPSEU, the Inspector and the Ministry of Labour point out, an inmate overpowers a correctional officer when the exterior door is open, that inmate would have immediate access to the control of the sally-port doors. If the doors were controlled at the control module rather than at the sally-port, it seems obvious that the risk of having inmates overpower correctional officers to gain control of the doors to the cellblock would be reduced. Obtaining an officer’s keys would not allow the inmates to open the sally-port doors as those doors would be subject to control by the correctional officer stationed within the secure location of the control module.
OPSEU submits that the Act requires an employer to take every precaution reasonable in the circumstances. The appellant, at the hearing of the appeal, would be required, it seems to me, to demonstrate why moving the sally-port controls to the control module is unreasonable. The appellant may be able to do so when it leads evidence and makes argument at the hearing of the appeal, but I have not been persuaded by the material filed that the Inspector’s determination requires the appellant to undertake an unreasonable precaution. The appellant submits that “The health and safety of correctional officers is adequately addressed with the current conditions.” While the appellant’s current conditions are adequate, the Inspector has determined that an additional step can be taken to provide even greater health and safety protection for correctional officers. It is not obvious to me that what the Inspector required the appellant to do is unreasonable in all of the circumstances. Therefore, I cannot find on the material filed that the appellant has demonstrated that it has a strong prima facie case on the merits of its appeal.
The appellant’s request for suspension of the Order is dismissed.
“Harry Freedman”
for the Board