Canadian Employment Law Today

November 20, 2019

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL ©2019 HAB Press Limited, a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under license by HAB Press Limited. CANADIAN EMPLOYMENT LAW TODAY is a trademark of HAB Press Limited. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photo- copying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 70318 4911 RT0001 Emplo y ment LawToday Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE 20 Duncan St. 3rd Floor, Toronto, ON M5H 3G8 President: Tim Duce Editor: Jeffrey R. Smith Email: Copy Editor: Patricia Cancilla Sales Manager: Paul Burton Email: Phone: (416) 649-9928 Marketing Co-ordinator: Keith Fulford Email: Phone: (416) 649-9585 HAB Press Ltd. Screening offi cers don't feel secure about X-ray scanners THIS INSTALMENT of You Make the Call features two airport screening offi cers who exercised work refusals over concerns about radiation coming from X-ray scanners. Alicia Doyle and Tracey Cleveland-Wood were screening offi cers at Halifax Airport employed by Securitas Transport Aviation Security Limited, a security services com- pany based in Toronto. eir job duties in- volved screening passengers and their bag- gage before they boarded departing aircraft. Doyle and Cleveland-Wood both worked with baggage screening devices as part of their jobs. Luggage was placed on a conveyor belt, which moved the luggage through lead curtains into the device, where it was X-rayed. e conveyor belt then moved the luggage out through a second set of lead curtains on the other side of the machine. ere were two X-ray generators inside the machine — one at the bottom pointing up through the baggage and one at the side pointing straight through. On Aug. 31, 2017, both offi cers said they were concerned about the levels of radiation emitted by the screening device when luggage moved in and out of the curtains while the X- ray was on. ey said they sometimes stood close to the tunnel when the curtains were open, which could expose them to radiation. e two screening offi cers asked Nav Canada — a privately run, not-for-profi t cor- poration that owns and operates Canada's civil air navigation system — to test the lev- els of radiation when the curtains were up. Nav Canada didn't agree to conduct the test, so Doyle and Cleveland-Wood fi led a formal work refusal with the Labour Program of Employment and Social Development Can- ada (ESDC). eir work refusals stated that the lead curtains had become frayed, raising questions about their integrity, and some pieces of luggage were too close together and held the curtains open while another bag was being X-rayed inside the machine. Securitas' occupational health and safety committee investigated the refusals and found there was no danger to the two work- ers. However, Doyle and Cleveland-Wood continued their refusals, so ESDC sent a del- egate to conduct her own investigation. e ESDC delegate found that a danger as defi ned by the Canada Labour Code — "any hazard, condition or activity that could rea- sonably 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" — justifi ed the work refusals under the code. e danger stemmed from the fact that Se- curitas didn't consistently implement a 12- inch distance between bins going through the screening device recommended by Ca- nadian Air Transport Authority (CATSA) procedures for accurate scanning; radiation testing of the machines hadn't replicated the conditions the employees complained of; and the safety code under Canada Labour Code regulations states that "no person shall do anything to keep the curtains open while an x-ray is taking place" and people should stand at least 50 centimetres away from the open sides of the machine. e delegate issued a directive to Securitas to correct the condition constituting the dan- ger within one week and to appoint "a quali- fi ed person to investigate possible radiation exposure" to employees using the screening machine. However, she also informed Doyle and Cleveland-Wood that they could not continue to refuse work because the threat wasn't imminent and was only a "potential" threat that Securitas would correct within a week. In addition, the evidence from testing and the design of the machine was that very little radiation scattered outside the machine. Securitas appealed the decision, arguing there was no real danger to correct. Emplo y ment LawToday Canad ad ad ad ad ad a ian an an YOU MAKE THE CALL Was there a danger to the employees? OR Should the company have taken steps to make the X-ray machines safer? Should the company have taken steps to make the X-ray machines safer? IF YOU SAID there was no danger, you're right. e tribunal noted that the delegate's directive to Securitas was based on a po- tential threat to the health of employees in the future. However, there was no "factual foundation" that would lead to a reasonable expectation of a threat under normal cir- cumstances, said the tribunal. "A danger does not include situations which are hypothetical or speculative, or mere apprehension that a given situation may constitute a threat to the employee," said the tribunal. "It must be founded on material facts that establish a reasonable possibility that an employee's health will be threatened, either in the immediate (imminent) or the longer term (serious)." e tribunal noted that the ESDC delegate's fi nding that there was a danger was based largely on the safety code and procedures relating to the distance between bags so they didn't raise the curtains during X-rays and the distance people should stand from the X-ray machine and not any observation of danger- ous radiation levels. ere was no evidence of "abnormal levels of radiation or malfunction- ing of the scanners," which didn't establish a reasonable expectation of a threat, the tribu- nal said, adding that the CATSA procedure for 12 inches between bags was for accurate scanning, not concerns over the amounts of radiation escaping the curtains. e tribunal noted that it was unusual for an investigation to result in a fi nding of dan- ger but that employees refusing work could no longer do so. is further lent credence to Securitas' argument that there was no real, imminent danger for it to correct. For more information see: • Securitas Transport Aviation Security Ltd. v. Doyle, 2018 TSSTC 10 (Can. OHS Trib.).

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