FPSLREB Decisions

I. Individual grievance referred to adjudication

1 Hélène Galarneau, the grievor, has been a correctional officer with the Correctional Service of Canada (CSC or “the employer”) since 1984. She performed the duties of her position in several correctional institutions, including the Montée St-François Institution and the Federal Training Centre (FTC). On August 3, 2005, she filed a grievance in which she accused the employer of exposing her to second-hand smoke in her workplace, in violation of the collective agreement and several legislative provisions. The grievance reads as follows:

[Translation]

…

Since 1989, my employer has exposed me to second-hand smoke in my workplace, despite tobacco’s notorious toxicity. That situation has caused me health risks, health problems, stress, tension, worry, inconvenience and discomfort. My quality of life at work has markedly deteriorated, and my personal quality of life has been affected. The employer has not taken measures to eliminate second-hand smoke in the workplace. The employer is violating clause 18.01 of the collective agreement, the Non-smokers’ Health Act, the Canadian Charter of Rights and Freedoms (sections 7 and 15), and the [Quebec] Charter of human rights and freedoms.

…

2 Ms. Galarneau sought the following corrective action:

[Translation]

…

Order the employer to take the necessary measures to eliminate second-hand smoke from my work environment;

Order the payment of $10 000 in damages and interest for physical and psychological harm caused by the employer’s negligence and failures;

Order the payment of $20 000 in punitive or exemplary damages and interest for violating the Canadian Charter of Rights and Freedoms.

…

3 Ms. Galarneau’s grievance was initially included, for the purposes of adjudication, with 57 similar grievances filed by other correctional officers. I have already issued two preliminary decisions on the employer’s objections to an adjudicator’s jurisdiction to decide the grievances.

4 The employer raised a first preliminary objection, arguing that the grievances were not filed within the time limit set out in the collective agreement (between the Treasury Board and the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN for the Correctional Services Group; expiry date: May 31, 2002). I dismissed that objection in 2009 PSLRB 1.

5 The employer raised a second objection to the jurisdiction of an adjudicator, arguing that, under subsection 208(2) of the Public Service Labour Relations Act (“the Act”), the grievors were not entitled to file grievances because other administrative procedures for redress were provided under other Acts of Parliament that could and should have been used to resolve the dispute raised in the grievances. As an alternative, the employer argued that clause 18.01 of the collective agreement does not create substantive individual rights on which individual grievances may be based. I dismissed the employer’s objections in 2009 PSLRB 70.

6 During a pre-hearing conference, the parties agreed to separate the grievances and to proceed first on the merits of Ms. Galarneau’s grievance. Therefore, the grievances filed by Ms. Galarneau’s colleagues were placed in abeyance, and the hearing dealt only with Ms. Galarneau’s grievance. The parties also requested that I first render a decision on the merits of the grievance and that, if I decide to allow it, I retain jurisdiction over the amount of damages.

7 At the start of the hearing, counsel for Ms. Galarneau indicated that she was dropping her allegation that the employer violated the (Quebec) Charter of human rights and freedoms.

II. Summary of the evidence

8 Ms. Galarneau was the only witness called by her bargaining agent representative. The employer called the following three witnesses: Jim Wladika, Occupational Health and Safety Manager responsible for the CSC’s smoking policies at the time relevant to this grievance; Charles Fréchette, Head of Works and Maintenance Services, FTC; and Alain Jacques, Deputy Warden, FTC.

9 The evidence, for the most part, was not contradictory.

10 The CSC is responsible for administering court-imposed sentences of more than two years. As part of its mandate, the CSC manages correctional institutions, community residential facilities, parole offices and treatment centres. The CSC has 57 correctional institutions across the country of different security levels (minimum, medium and maximum). The CSC is divided into regional headquarters, including the regional headquarters that covers the Quebec region. The CSC is responsible for approximately 13 000 inmates and 8000 offenders in the community. The CSC has approximately 16 400 employees, 6500 of whom are correctional officers. About 85% of CSC employees work in correctional institutions.

11 The employer did not contest that correctional officers were exposed to second-hand smoke when performing their duties, and I will return to that later. The employer also did not contest that second-hand smoke is harmful to the health.

12 Smoking policies in the federal public service’s workplaces, and especially in CSC institutions, have changed over the last 20 years.

13 In 1987, the Treasury Board adopted the first smoking policy in the federal public service. The 1988 version, which was adduced in evidence, aimed “[t]o promote a safe and healthful working environment free, to the extent possible, of tobacco smoke.”

14 Effective January 1, 1989, the Treasury Board banned smoking in public service workplaces. However, the policy provided an exception for premises shared with persons not subject to it, including inmates in correctional institutions.

15 The departments that were covered by the exception had to develop “relevant and coherent” procedures that respected the rights of persons not subject to the policy while minimizing the effect of second-hand smoke on employees who had to work in those environments.

16 In the same vein, Parliament passed the Act to regulate smoking in the federal work-place and on common carriers and to amend the Hazardous Products Act in relation to cigarette advertising, R.S., c. 15 (4th Supp.) (short title: Non-smokers’ Health Act) (NSHA), which was assented to on June 28, 1988. The NSHA’s purpose was to ensure that federal employees had smoke-free work environments. Sections 3 and 4 of the NSHA set out as follows the primary responsibilities of employers:

3. (1) Every employer shall provide a smoke-free environment where all employees may perform the duties that are directly or indirectly related to their employment.

(2) Nothing in this section shall prevent an employer from providing a designated smoking room for use by smokers.

(3) Notwithstanding subsection (1), an employee may, because of the nature of the employee’s duties, be required by an employer to perform those duties from time to time in a designated smoking room.

(4) Every employer shall make reasonable efforts to ensure that a designated smoking room is independently ventilated.

(5) The Governor in Council may make regulations exempting employers from the application of subsection (4) in cases where significant structural modifications are required or the cost of compliance is prohibitive.

(6) Nothing in this Act affects any rights to protection from tobacco smoke at common law or under any Act of Parliament or of a provincial legislature.

4. No person shall smoke in any office or other enclosed work space provided by an employer, outside of a designated smoking room or a designated smoking area.

17 Section 4 of the Non-smokers’ Health Regulations, SOR/90-21 (NSHR), made under subsection 7(1) of the NSHA, states that the employer may designate certain rooms or areas as smoking rooms or smoking areas, including any “living accommodation.” In 1996, in response to the CSC’s request for an interpretation of the NSHA, Human Resources Development Canada (HRDC) confirmed that inmates’ cells constituted living accommodation within the meaning of the NSHR.

18 In 1990, the CSC asked the Treasury Board to exempt certain areas of correctional institutions from the application of the policy banning smoking in the workplace. That exemption was granted. On August 14, 1990, the CSC adopted its first policy on smoking in correctional institutions. The policy provided that inmates and employees were prohibited from smoking in administrative areas, gymnasiums, dining rooms, kitchens and health areas. Inmates and employees were authorized to smoke in all other areas of institutions, such as residential areas and visiting rooms.

19 Mr. Wladika explained that that first policy was not adopted from a static perspective but rather that it was the first step of a strategy designed to gradually reduce smoking in penitentiaries and to move toward a smoke-free environment. He indicated that the CSC had to consider the particular context of correctional institutions being the living environment of inmates, a large majority of whom (75%) are smokers. Mr. Wladika indicated that the purpose of the original version of the policy was to balance the interests of inmates with the right of non-smoking employees not to be bothered by second-hand smoke. The policy was accompanied by several support programs for inmates and employees who wished to quit smoking. However, Mr. Wladika acknowledged that the smoking cessation support programs did not produce the expected results.

20 Mr. Wladika stated that the smoking policies of the Treasury Board and the CSC evolved alongside scientific research on the harmful effects of tobacco and second-hand smoke and societal changes about awareness and outreach education about tobacco and its health consequences.

21 In January 1997, the CSC modified its smoking policy by inviting institutions to work with stakeholders, including union and inmate representatives, to create more smoke-free environments. Correctional institutions had to seek opportunities to create smoke-free environments.

22 Mr. Wladika indicated that the CSC continued to make progress with its strategy and its willingness to work toward a smoke-free environment by becoming more proactive and by working more closely with stakeholders. Mr. Wladika indicated that the CSC wished to foster a culture change in institutions and that between 1997 and 2005 some correctional facilities even succeeded in becoming smoke free.

23 The June 6, 2002 version of Commissioner’s Directive 254-1 (the CSC’s smoking policy) provided the following:

…

CSC’s smoking policy prohibits smoking, by staff and offenders, in the administrative areas, gymnasiums, dining rooms, kitchens and health area centres in institutions. Institutions should continue to seek opportunities to create smoke-free environments.

• Areas designated as non-smoking, that are in addition to the above-noted areas, should remain non-smoking. These areas should not automatically regress unless local management, in consultation with union and inmate representatives, agree that it is in the best interests of all parties concerned to have an area revert to its former status as a designated smoking area.
• Inmates and staff will be permitted to smoke in those cellblocks/ranges, or portions thereof, that local management, in consultation with union and inmate representatives, designates as being a smoking room or smoking area.
• Each Institutional Head is to meet with union and inmate representatives to decide which areas of cellblocks/ranges are to be designated smoking and non-smoking. Where it is difficult for the representatives to agree, local management shall arrive at a decision.
• Single residences used for private family visits may be designated as smoking areas.
• Motor vehicles under the control of the Service are designated as non-smoking areas.
• Reasonable and practical measures should be taken at each operational unit to minimize the effects of tobacco smoke coming from designated smoking areas, especially to ensure that smoke filled air is not being vented into the areas occupied by non-smokers. Management may also want to group heavy smokers together in a cluster so that they are not in close proximity to non-smokers, particularly those with medical conditions that are aggravated by tobacco smoke.
• Appropriate and consistent procedures need to be developed at the institutional level to protect the rights of non-smokers and to minimize the effects of tobacco smoke on staff who must work in those locations. It should be noted that subsection 3 (3) of the Non-smokers’ Health Act permits the employer to require employees, by reason of the nature of their duties, to perform those duties in a designated smoking room or area. In particular, procedures must be established to protect non-smokers with pre-existing medical conditions (such as angina, acute respiratory diseases, chronic obstructive lung diseases, asthma, hay fever and other allergies) from prolonged exposure to second hand tobacco smoke.

…

24 Between 2002 and 2006, the CSC held broad consultations with union and inmate representatives with the goal of gradually and safely moving toward a smoke-free environment. Regional and workplace health and safety committees were involved and actively worked on the issue. The CSC also analyzed initiatives carried out elsewhere.

25 In spring 2003, the CSC adopted a new communication strategy for the smoking policy. The objectives were defined as follows:

[Translation]

…

• Announce the CSC’s decision to continue to reduce exposure to second-hand smoke by seeking opportunities to work more actively to create a smoke-free environment.
• Highlight the CSC’s commitment to a safe and healthy environment for both staff and inmates.
• Promote smoking cessation and encourage and support those who wish to quit smoking.
• Help staff in federal institutions create an increasingly smoke-free environment.

…

26 Mr. Jacques, Deputy Warden, FTC, also testified about the gradual approach, adopted by the CSC and specifically by the FTC. He specified that it was important to obtain inmates’ cooperation and that safety was a constant concern for management. He specified that the more inmates were restricted in their smoking habits, the more they reacted and that, consequently, safety was a concern that could not be ignored when choosing the approach. The evidence also showed that inmates tended to disregard the restrictions and that a number of interventions were necessary.

27 In May 2003, the regional health and safety committee for the Quebec region asked workplace health and safety committees for their opinions about the smoking policy. In a memo dated May 13, 2003, the Employer Co-chair of the FTC’s health and safety committee informed the Regional Coordinator that the FTC’s workplace committee favoured a gradual approach to a smoke-free environment. It reads, in part, as follows:

[Translation]

…

… In fact, we believed that we should exercise caution by promoting a gradual approach by limiting smoking to cells while designating non-smoking ranges. That approach could be accompanied by smoking cessation incentives and supported by a realistic schedule affirming our objective of a complete indoor smoking ban at all CSC properties.

…

28 On May 16, 2003, the FTC sent CSC National Headquarters its local action plan for reducing exposure to second-hand smoke. The plan specified that two ranges had been designated non-smoking areas. In the letter accompanying the action plan, the FTC’s warden expressed the FTC’s desire to pursue its efforts to provide a smoke-free environment while being flexible in implementing the strategy.

29 On November 14, 2003, the FTC’s warden informed the director of operational planning at CSC National Headquarters of the implementation process for the plan to reduce exposure to second-hand smoke and notably of the creation of a committee for implementing the strategy linked to the smoking policy, which included the participation of the UCCO-SACC, the bargaining agent for correctional officers. It reads, in part, as follows:

[Translation]

…

In recent months, our action plan was discussed at every meeting of the workplace health and safety committee. Over the course of the discussions, the committee was particularly sensitive to the consultative process to foster harmonious implementation of concrete, gradual measures that respect the objectives of our smoking policy.

Consequently, the management committee approved the creation of an implementation committee, which brought together all the main stakeholders. The bargaining agents were consulted, and a representative of each will be designated to participate in the committee’s work. The first meeting will take place next December, and members will receive their mandates.

Of course, the committee’s work must also include a consultation period with inmates to respect our commitments set out in our action plan.

We are confident that the implementation committee’s work will help us propose to the local management committee effective measures to significantly reduce exposure to second-hand smoke in a timeframe consistent with our commitments and, especially, in a manner respectful of everyone’s opinion.

…

30 The FTC’s implementation committee was established. It produced its report on April 6, 2004, in which it proposed gradual measures toward a complete indoor smoking ban at the FTC. The first step of the preferred approach was to restrict smoking areas only to cells, thus banning smoking on ranges, in common rooms and when using the phone. The second step of the plan was that inmates could only smoke in their cells from 23:00 to 07:00. Part of the plan was also to increase the number of non-smoking ranges. The plan’s final step was a complete indoor smoking ban at the FTC as of June 2005. In the letter accompanying the report to the FTC’s warden, the members of the implementation committee emphasized the need to adopt a coherent approach that other institutions would follow and indicated “[translation] that clear messages, patience and perseverance from all [would] be needed to achieve the different objectives and steps.”

31 Parallel to the efforts and work being done in the institutions, the CSC created a national working committee composed of a number of stakeholders, including bargaining agents, to develop a national strategy to reduce exposure to second-hand smoke. That working committee identified several options and proposed introducing a complete indoor smoking ban in institutions. In December 2003, the deputy commissioner for the Quebec region asked wardens to comment on the preferred option.

32 On December 30, 2003, the FTC’s warden communicated the FTC’s position. The Warden, while indicating that the FTC was in favour of implementing an indoor smoking ban in institutions, noted the significant impact that such a directive would have within the institution, mainly because a complete indoor smoking ban would lead to dissatisfaction among staff and especially among inmates.

33 On April 5, 2004, the CSC issued a news release announcing consultations in spring and summer 2004 about a proposal to eliminate exposure to second-hand smoke by a complete indoor smoking ban in correctional institutions. The process included consulting the following stakeholders: unions, employees, citizens’ advisory committees, the CSC’s main stakeholders and partners, and inmates.

34 Following the consultations, on July 12, 2005 the CSC announced its intention to completely ban smoking inside correctional institutions. On January 31, 2006, the Commissioner issued Directive 259, which provided for a complete indoor smoking ban in correctional institutions. The objective of the directive was set out as follows in clause 1:

1. To enhance health and wellness by eliminating exposure to second hand smoke indoors in all federal correctional institutions, including in motor vehicles under the control of the Service.

35 All the witnesses acknowledged that the ban on smoking inside institutions was difficult to implement and that many inmates did not comply with the directive, to the point of creating safety risks. Inmates even challenged in the Federal Court the directive banning smoking inside institutions. In Boucher v. Canada (Attorney General), 2007 FC 893, the Court ruled that the Commissioner had the authority to adopt Directive 259 and that the directive was consistent with the NSHA. The Court commented as follows on the CSC’s approach:

…

[23] Accordingly, the CSC Commissioner cannot be blamed for considering the harmful effect of second-hand smoke in drafting the Directive at issue, especially as interested groups were consulted, the measure was announced in advance and steps were taken to assist inmates in dealing with the situation well before it came into effect. No one could therefore complain of being taken by surprise.

…

36 Mr. Wladika indicated that, in the face of the challenges encountered in enforcing the directive, the CSC deemed that the only alternative was a complete smoking ban inside and outside institutions. On May 5, 2008, Directive 259 was amended to provide a complete smoking ban indoors and outdoors within the perimeters of correctional facilities. Section 1 of the revised directive, which sets out the objective of the policy, reads as follows:

1. To enhance health and wellness by eliminating exposure to second-hand smoke at all federal correctional facilities. To achieve this objective, smoking will not be permitted indoors or outdoors within the perimeter of federal correctional facilities, including Community Correctional Centres (CCCs).

37 Inmates challenged the new measure in Federal Court. In Mercier v. Canada (Attorney General), 2009 FC 1071, the Federal Court declared the directive invalid, indicating that it could not rely on considerations based on improving the health and well-being of employees since smoking outdoors did not pose a risk to the health of others and that a complete outdoor smoking ban at institutions went too far. That decision has been appealed.

38 In her grievance, Ms. Galarneau alleged that she had been exposed to second-hand smoke since 1989. Ms. Galarneau explained that she went back to 1989 because that was the year in which the smoking ban in federal public service workplaces was enacted under the NSHA. Ms. Galarneau also explained the reasons for not filing her grievance before 2005. She explained that in 2000 her bargaining agent issued a notice indicating that a grievance against exposure to second-hand smoke was not adjudicable. Ms. Galarneau thus commenced a class action against the CSC and the Attorney General of Canada in the Federal Court. In Galarneau v. Canada (Attorney General), 2004 FC 718, the prothonotary of the Court allowed a motion to strike the statement of claim. Being of the opinion that the dispute arose from Ms. Galarneau’s working conditions, the prothonotary concluded that the Federal Court did not have jurisdiction and that Ms. Galarneau should use the mechanisms provided in her collective agreement and the Canada Labour Code. A Federal Court judge upheld the ruling in Galarneau v. Canada (Attorney General), 2005 FC 39. Ms. Galarneau explained that, after that judgment, she and her colleagues decided to file grievances.

39 During the period covered by her grievance, Ms. Galarneau worked first at Montée St-François Institution and, since 2001, at the FTC. Therefore, the evidence of exposure to second-hand smoke pertains to both institutions and specifically to the FTC.

40 The employer did not contest that Ms. Galarneau was exposed to second-hand smoke from 1989 to January 31, 2006, the date on which the complete smoking ban inside institutions took effect. Mr. Jacques readily admitted it during his testimony.

41 As indicated earlier in this decision, between 1989 and January 31, 2006, inmates and staff could smoke in cellblocks and common rooms. At the FTC, cellblocks are made up of four ranges of about 20 cells and an office for the correctional officers converted from former cells. There are 19 offices for correctional officers on the ranges. Mr. Fréchette explained that each cellblock had a separate ventilation and heating system that fed all the cells and offices in the block. Thus, when inmates or employees smoked, the smoke would spread to all the cells and to the offices of the correctional officers.

42 Correctional officers mainly carry out their duties in the blocks and at the control post. About 5% of their time is spent in the offices located on the ranges.

43 In 2001, FTC employees made a complaint with the HRDC under Part II of the Canada Labour Code, alleging that they were exposed to second-hand smoke when they used the offices located in the cellblocks because the cells’ heating and ventilation system also fed their offices. The HRDC’s health and safety officer in charge of the investigation found that the employer was violating the NSHA by allowing the same heating and ventilation system to feed the offices of the correctional officers and the cells, and she required the employer to take the necessary corrective action. The employer put one measure into place, which was meant to be temporary. It consisted of disconnecting the air ducts of the ventilation system to the correctional officers’ offices and installing individual heating units. Air was to be exchanged by opening the office windows. It was implemented in 2002, and the HRDC declared it satisfactory. The evidence demonstrated that in 2005 employees made a new complaint with the HRDC, alleging that stale air continued to spread into their offices. Mr. Fréchette stated that, between 2002 and 2005, he received no complaints about the corrective action implemented in 2002. However, when the employees complained in 2005, he noted that the air supply had been turned off but that the return air supply had not, so stale air continued to spread to the offices. He stated that he took the necessary corrective action. Mr. Fréchette indicated that the planned permanent solution was to install separate heating and ventilation systems in the offices and that the preliminary cost estimate had been $250 000. The FTC applied for funding to CSC regional management, which initially granted $20 000 to the FTC to develop plans and specifications for the separate systems. The estimate from the consultants to install separate systems was almost half-a-million dollars. Mr. Fréchette stated that a review of the project reduced the estimate to about $300 000 but that the budget required to proceed with the work was never approved, so the temporary measure remained the only one ever implemented. Mr. Fréchette acknowledged that that solution, like the permanent solution that was considered, was not perfect since, as soon as the office doors were opened, smoke could enter the room. Moreover, the evidence showed that keeping the office doors closed at all times was not realistic.

44 The correctional officers were also exposed to second-hand smoke every time they went on or walked around the ranges.

45 The correctional officers’ control posts located at the junctions of two cellblocks had separate heating and ventilation systems. In spite of that layout, second-hand smoke would seep inside the control posts each time the door was opened since some areas adjacent to the control posts, specifically the landings in between the stacked ranges, were used as smoking areas.

46 Ms. Galarneau indicated that it was impossible to keep the door to the control post closed and that, in fact, the door was opened a number of times a day, specifically every time an inmate came to speak with an officer or when officers passed through the control post. Ms. Galarneau stated that the mid-level landings located close to the control posts were preferred smoking spots. In 2002, Ms. Galarneau, who was then the employee occupational health and safety representative, asked the Warden of the FTC to confirm whether the landings were no-smoking areas. In a letter dated December 20, 2002, addressed to Ms. Galarneau, the FTC’s warden confirmed that the landings of the control posts in the cellblocks were not to be used as smoking areas. Ms. Galarneau also indicated that a memo sent a few days later by a correctional manager had weakened the effect of the Warden’s response since it specified that inmates could not use the landings as smoking areas but that they were allowed to walk with their cigarettes to and from the ranges where they were allowed to smoke.

47 Ms. Galarneau acknowledged that the FTC had identified certain ranges as non-smoking areas but that that measure did not reduce exposure to second-hand smoke since the same heating and ventilation system fed all the ranges of a block, including the ranges in which the inmates were allowed to smoke.

48 Ms. Galarneau also stated that it had been difficult to implement the smoking ban inside institutions starting in 2006 since a number of inmates did not comply with the directive. She also indicated that FTC management had asked correctional officers to be lenient with recalcitrant inmates and to intervene gradually.

49 Ms. Galarneau stated that the daily exposure to second-hand smoke had serious consequences for her. She indicated that she developed symptoms and discomfort in addition to the worry and stress that she experienced from the health risks to which her employer exposed her. She stated that she also developed such an intolerance of second-hand smoke that exposure to it caused her throat to tighten in a physical reaction. Ms. Galarneau also asserted that she felt a sense of unfairness from her perception that her employer did not consider the health of correctional officers as important as that of other public service employees.

III. Summary of the arguments

A. For the grievor

50 Ms. Galarneau alleged that, by exposing her to second-hand smoke in her workplace, the employer violated clause 18.01 of the collective agreement, which reads as follows:

18.01 The Employer shall make reasonable provisions for the occupational safety and health of employees. The Employer will welcome suggestions on the subject from the Bargaining Agent, and the parties undertake to consult with a view to adopting and expeditiously carrying out reasonable procedures and techniques designed or intended to prevent or reduce the risk of employment injury.

51 Ms. Galarneau also argued that the employer violated the NSHA and sections 7 and 15 of the Canadian Charter of Rights and Freedoms (“the Charter”).

52 Ms. Galarneau submitted that the employer does not contest that second-hand smoke is harmful to one’s health, and the evidence demonstrated that she was exposed daily to second-hand smoke from 1989 to 2006.

53 Ms. Galarneau recognized that the employer’s obligation under clause 18.01 of the collective agreement is an obligation to make reasonable efforts, but she argued that, in this case, the employer did not make every reasonable measure to keep her from being exposed to second-hand smoke in her workplace, as it was required to do. Ms. Galarneau argued that, from the time it adopted its first policy on smoking in correctional facilities in 1989, the employer violated the collective agreement and contravened the NSHA. In Ms. Galarneau’s view, the employer ignored its obligation under section 3 of the NSHA, namely, to provide its employees with a smoke-free environment; rather, it clung to the exceptions provided in the NSHA.

54 Ms. Galarneau argued that the employer would have met its obligations had it banned smoking inside correctional facilities immediately after the NSHA was enacted. Rather, the employer favoured a gradual approach by adopting policies that permitted dividing correctional facilities into smoking and non-smoking areas regardless of the health effects on the employees who had to work in the smoking areas. Ms. Galarneau argued that, from the time the employer decided not to completely ban smoking in institutions, it had the obligation, under clause 18.01 of the collective agreement, to take the necessary action to keep employees from being exposed to second-hand smoke. The employer adopted policies that restricted, without banning, smoking without approving budgets that would have made it possible to implement measures to keep employees from being exposed to second-hand smoke. She also argued that the employer refused to invest the funds required to install separate systems in the offices of correctional officers on the ranges.

55 Ms. Galarneau alleged that the efforts that the employer made from 1989 to 2006 were not reasonable and that they did not provide employees with adequate protection given the information that the employer possessed about the adverse health effects of second-hand smoke. Ms. Galarneau pointed out that, beginning in 2002, Health Canada conducted an unprecedented campaign about the dangers of cigarette smoking and second-hand smoke.

56 Ms. Galarneau also emphasized that the employer recognized that its gradual approach had not worked and that it had to go as far as to completely ban smoking to resolve the problem of exposure to second-hand smoke.

57 Ms. Galarneau’s counsel stated that he had the mandate to pursue the allegations in the grievance that the employer was in violation of sections 7 and 15 of the Charter but that he did not really develop Ms. Galarneau’s position in that regard.

B. For the employer

58 For its part, the employer argued that it did not violate its obligation to make reasonable efforts under clause 18.01 of the collective agreement and that it complied with the provisions of the NSHA and the Charter at all times.

59 The employer contended that the obligation to make reasonable efforts enacted by clause 18.01 of the collective agreement must be considered in the specific context of the prison environment, the evolving knowledge of the effects of second-hand smoke and society’s changing attitude towards second-hand smoke.

60 The employer submitted that the problem of smoking in correctional facilities is complex, that it has evolved over time and that it was not resolved without obstacles. The employer argued that it always acted in accordance with the legislative framework in force and that it took reasonable action to move toward a complete smoking ban in correctional facilities and to make its implementation possible.

61 The employer argued that it had to account for the specific context of the prison environment, which is the inmates’ living environment, and that it was reasonable to adopt a gradual approach in order to maintain a balance between the interests of all stakeholders, including those of the inmates and employees.

62 The employer argued that its gradual and participatory approach was preferable and reasonable and that, despite everything, it was not implemented without problems. On that point, the employer emphasized the legal remedies undertaken by inmates, including one still underway about the complete smoking ban even outside the institutions.

63 The employer argued that it would have been impossible to ban smoking in a prison overnight and that, to succeed safely, it was essential to obtain the cooperation and participation of everyone, including inmate and union representatives. The employer emphasized that even the FTC’s workplace health and safety committee had acknowledged the need to move forward gradually.

64 The employer also argued that, when employees made a complaint in 2001, it adopted the required corrective measures.

65 The employer further maintained that it did not in any way violate sections 7 and 15 of the Charter.

66 With respect to section 7 of the Charter, the employer argued that Ms. Galarneau’s allegations were too hypothetical to constitute a serious allegation that her right to life, liberty and security had been threatened and, to draw a parallel, it referred me to Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441.

67 The employer argued that the right to equality under section 15 of the Charter could not apply to this case and referred me to Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, on the criteria for applying that section.

68 The employer also argued that the government’s decisions about smoking policies were “policy” decisions that could not constitute misconduct giving rise to Crown liability, and it referred me to Kuczerpa v. Canada (F.C.A.), [1993] F.C.J. No. 217 (QL), and Kuczerpa v. Canada (S.C.C.), [1993] S.C.C.A. No. 194 (QL).

69 As for the reasonableness of the approach and policies adopted, the employer referred me to Inmate Welfare Committee of William Head Institution v. Gallagher, 2003 FCT 288, and Pratt & Whitney et TCA-Quebec, Local 510 (2009), Soquij AZ-50547551.

70 The employer also argued that, even if I found that the employer violated clause 18.01 of the collective agreement, I could not allow Ms. Galarneau’s claim for damagessince she did not establish that she had suffered recoverable damages arising from her exposure to second-hand smoke. Rather, the employer argued that she had expressed her fear of suffering damages. Consequently, the alleged damages are hypothetical, uncertain and therefore not recoverable. The employer further argued that Ms. Galarneau did not establish a causal link between the employer’s alleged fault and the damages that she claims to have suffered.

71 The employer also submitted that, in the event that I find that Ms. Galarneau demonstrated that the employer violated clause 18.01 of the collective agreement and that she suffered recoverable damages, I could not grant her damages for the period before the 25 days preceding the date on which she filed her grievance. On that point, the employer referred me to Canada (National Film Board) v. Coallier, [1983] F.C.J. No. 813 (C.A.) (QL).

IV. Reasons

72 Ms. Galarneau filed her grievance in August 2005. She alleged that from 1989 the employer exposed her to second-hand smoke in her workplace and that, in doing so, it violated clause 18.01 of the collective agreement along with the NSHA and the Charter.

73 The evidence factually and unequivocally demonstrated that Ms. Galarneau was exposed to second-hand smoke from 1989 to 2006, and it is not disputed that exposure to second-hand smoke is harmful to one’s health.

74 I must determine whether, by exposing Ms. Galarneau to second-hand smoke, the employer violated clause 18.01 of the collective agreement, which reads as follows:

18.01 The Employer shall make reasonable provisions for the occupational safety and health of employees. The Employer will welcome suggestions on the subject from the Bargaining Agent, and the parties undertake to consult with a view to adopting and expeditiously carrying out reasonable procedures and techniques designed or intended to prevent or reduce the risk of employment injury.

75 First, a word about the period covered by Ms. Galarneau’s grievance. Clause 20.10 of the collective agreement sets out a 25-day time limit to file a grievance.

76 In 2009 PSLRB 1, I dismissed the employer’s objection about the untimeliness of the grievance. In that decision, I concluded that Ms. Galarneau’s grievance was not out of time, even though she filed it in 2005 and alleged that she had been exposed to second-hand smoke since 1989, on the grounds that it was a continuing grievance.

77 I believe that it is useful to reproduce the following from that decision:

[17] … In Canadian Labour Arbitration, 4th edition, Brown and Beatty clearly define the concept of a continuing grievance at page 2-93:

Where the violation of the agreement is of a continuing nature, compliance with the time-limits for initiating a grievance may not be as significant unless, of course, the collective agreement specifically provides that in those circumstances the grievance must be launched within a fixed period of time. Continuing violations consist of repetitive breaches of the collective agreement rather than simply a single or isolated breach... In any event, the test most commonly used in determining whether there is a continuing violation is the one derived from contract law, namely, that there must be a recurring breach of duty, and not merely recurring damages.

Where it is established that the breach is a continuing one permitting the time period for launching the grievance to be measured from the latest occurrence, it has been held that the failure to initiate it within the stipulated time from the date of its first occurrence will not render it inarbitrable. However, the relief or damages awarded retroactively in such circumstances may be limited by the time-limit. Thus, for example, where a grievance claimed improper payment of wages and the grievance was allowed, the award limited the damages recoverable to five full working days prior to the filing of the grievance, which was the time-limit for initiating the grievance.

…

[19] I am of the view that the concept of a continuing grievance applies to this case. In their grievances, the grievors allege that the employer has exposed them to second-hand smoke since the dates indicated, which vary from one grievance to another.

[20] The wording of the grievances itself suggests that the grievors allege that the circumstance giving rise to the grievance, that is, “[translation] exposure to second-hand smoke,” began at a given point in time and continued at least until the date the grievances were filed. The grievors allege that exposure second-hand smoke violates clause 18.01 of the collective agreement, which reads as follows:

…

[21] Without determining at this stage whether clause 18.01 of the collective agreement confers substantive rights on the employees, I am of the opinion that the obligation cited by the grievors is of a continuing nature. If, in accordance with that provision, the employer has an obligation to take every reasonable measure for the occupational safety and health of employees, in my opinion, what is involved is a continuing obligation that is repeated each time the employees are called on to render services. If clause 18.01 confers on the grievors the substantive right to reasonable measures by the employer for their occupational safety and health, that right exists at all times, and its violation may occur each time the employer fails to take reasonable measures for the employees’ occupational safety and health.

[22] Therefore, given an obligation and a corollary right that continue and that are repeated over time, I am of the view that the grievances were not filed outside the 25-day time limit set out in clause 20.01 of the collective agreement…

…

78 My conclusion that the grievances were not untimely does not mean that Ms. Galarneau’s grievance can systematically cover the entire period before the date on which her grievance was filed. After noting that the grievances alleged the violation of a recurring obligation and therefore a continuing violation, I simply found that it was an exception to the time limit imposed for grievances. Thus, the obligation that the employer allegedly violated (of taking reasonable action to protect the safety and health of employees (clause 18.01 of the collective agreement)), is a current obligation and, as a result, the period for filing a grievance that alleges a breach of that obligation runs from each instance of alleged violation.

79 That conclusion does not set aside the application of clause 20.10 of the collective agreement, which reads as follows:

20.10 An employee may present a grievance to the First (1st) Level of the procedure in the manner prescribed in clause 20.05 not later than the twenty-fifth (25th) day after the date on which he or she is notified orally or in writing or on which he or she first becomes aware of the action or circumstances giving rise to the grievance.

80 To succeed in her grievance, Ms. Galarneau had to establish that the employer violated the collective agreement and that the violation was still occurring when the grievance was filed. That is what I expressed when I stated the following at paragraph 22 of 2009 PSLRB 1:

[22] … That said, the grievors must establish in evidence that the alleged violation of their rights under clause 18.01 occurred during the period preceding the date on which their grievances were filed and corresponding to the time limit for filing a grievance, that is, during the 25 days preceding the date on which the grievances were filed.

81 How do those principles apply in the circumstances of this case?

82 Both parties argued that the employer’s obligation under clause 18.01 of the collective agreement is one of making reasonable efforts, namely, to act reasonably. The wording of the clause itself is unequivocal, as follows: “The Employer shall make reasonable provisions for the occupational safety and health of employees.” The parties have differing views on the employer’s approach and policies. Ms. Galarneau alleged that the employer did not take every reasonable measure to keep her from being exposed to second-hand smoke and thus to protect her safety and health. The employer argued that, on the contrary, it fulfilled its obligation to protect the safety and health of Ms. Galarneau and her colleagues.

83 For the following reasons, I find that the evidence did not show that, when the grievance was filed, in the 25 days before it was filed (August 3, 2005) and in the period after it was filed, the employer contravened clause 18.01 of the collective agreement by not taking every reasonable measure to protect the safety and health of Ms. Galarneau and her colleagues.

84 Considering that finding, I do not have to determine conclusively whether the employer violated clause 18.01 of the collective agreement between 1989 and July 2005. However, a review of the employer’s decisions made over time about smoking and exposure to second-hand smoke in correctional facilities is relevant to understanding and determining the situation during and after summer 2005.

85    The evidence showed that the policies that the employer adopted about smoking in correctional facilities, and in the FTC in particular, and the decisions that it made about employees’ exposure to second-hand smoke evolved substantially from 1989.

86    In 1989, Parliament and the Treasury Board respectively adopted a legislative and administrative framework that led to a major change with respect to smoking in federal workplaces.

87    In my opinion, the employer’s obligation under clause 18.01 of the collective agreement must be examined in light of the legislative framework in effect since 1989 and in the specific context of the prison environment.

88    By enacting the NSHA, Parliament made smoke-free workplaces the norm in the federal public service. It imposed clear obligations on employers under section 3 of the NSHA.

89    However, in doing so, Parliament maintained a certain balance by allowing employers to create smoking rooms for smokers.

90    Section 7 of the NSHA stipulated that the Governor in Council could prescribe the criteria for designating smoking areas or smoking rooms, and section 4 of the NSHR stipulated that the employer could designate the following rooms and areas as smoking rooms or smoking areas:

          4. An employer may designate the following rooms or areas in a work space under the control of the employer as designated smoking rooms or designated smoking areas:

(a) any living accommodation;

(b) any motor vehicle, lighthouse, crane cab, caboose, locomotive or other room or area in the work space

…

(c) any room on a ship to which only one person normally has access during a shift.

91    In 1996, at the request of the CSC, the HRDC confirmed that inmates’ cells were considered living accommodation within the meaning of the NSHR.

92    The policy that the Treasury Board adopted in 1989 banning smoking in the workplace provided for exceptions to reflect the rights of individuals who might find themselves in workplaces but who were not employees subject to the policy. On that point, the policy stipulated as follows:

…

In cases where accommodation is shared with other individuals who are not subject to this policy (e.g. inmates in prisons, patients in veteran’s homes and hospitals and the general public in airports), the responsible department must develop appropriate and consistent procedures that protect the rights of the non-employees and minimize any effects of tobacco smoke on their own employees who must work in those locations.

…

93    That policy conformed with the NSHA.

94    Let us now examine the choices and decisions that the CSC made in light of the legislative and administrative framework on smoking in correctional institutions.

95    The NSHA and the Treasury Board policy gave the CSC the tools that would have enabled it to order a complete ban on smoking in correctional institutions beginning in 1989. Such an approach would have eliminated exposing correctional officers to second-hand smoke. The NSHA and the Treasury Board policy also explicitly allowed the CSC to restrict smoking in correctional facilities, without banning it, by designating smoking rooms and smoking areas. As indicated, section 4 of the NSHR expressly stated that living accommodation could be designated as a smoking room or area.

96    The CSC chose a gradual approach by restricting smoking to certain areas before moving to a complete smoking ban first indoors, and then outdoors, within the perimeters of correctional facilities. The change took place over a period of almost 20 years, from 1989 to 2008. The CSC’s policies can be separated into the following four main periods:

• The initial period, from 1989 to 1997, when employees and inmates could smoke in all areas of correctional institutions except administrative offices, gymnasiums and health care areas.
• The second period, from 1997 to 2005, when institutions were encouraged to be more proactive and to work with different stakeholders, including inmate and union representatives, to designate more non-smoking areas in institutions.
• The third period, from January 1, 2006 to June 28, 2008, when smoking was banned inside correctional institutions.
• The fourth period, which began on June 28, 2008, when smoking indoors or outdoors is banned within the perimeters of correctional facilities.

97    The evidence also revealed that as of 2002 the FTC changed its approach at the local level by involving its workplace health and safety committee and by creating a smoking policy implementation committee. The FTC began by designating non-smoking ranges, and then, in April 2004, it adopted a local implementation plan, which called for increasingly significant restrictions on the locations where smoking was permitted, to ultimately create a smoke-free environment. The evidence also showed that the FTC took measures to reduce second-hand smoke in the offices of correctional officers located on the ranges after employees filed a complaint in 2001.

98    The CSC’s gradual approach meant that correctional officers continued to be exposed to second-hand smoke when working, at least until January 2006. The evidence even revealed that implementing the smoking ban inside institutions, introduced in January 2006, was not implemented without obstacles, since some inmates disregarded the directive. As a means of finally resolving the matter, the CSC changed its policy in June 2008 by banning smoking indoors and outdoors within the perimeters of correctional facilities.

99    To decide whether by allowing the continued exposure of correctional officers to second-hand smoke the employer failed in its obligation to make reasonable provisions to protect the health and safety of its employees, I must first decide if it was reasonable for the CSC to adopt a gradual approach despite the consequences and risks that it might have posed to the health and well-being of employees. On that note, I believe that, based on the evidence, the CSC’s gradual approach was reasonable in the circumstances.

100  First, the CSC’s decisions and the policies that it adopted were consistent with the legislative framework in effect and the Treasury Board’s policy.

101  Second, it was not unreasonable for the CSC to seek to preserve some balance between the legitimate rights of employees to work in a healthy environment and the rights of inmates, 75% of whom, as the evidence has shown, are smokers and for whom correctional institutions constitute their living environment. In Mercier, the Federal Court recognized that inmates retain all their rights and commented as follows:

…

[9]      In fact, whether it is a right or a privilege, even while in detention, offenders retain the rights and privileges of all members of society, except those rights and privileges that are necessarily removed or restricted as a consequence of the sentence, as set out in paragraph 4(e) of the Act.

[10]    Furthermore, even though section 70 of the Act allows the CSC to take all reasonable steps to ensure that the living and working conditions of the inmates and the working conditions of staff members are safe and healthful, paragraph 4(d) of the Act stipulates that the least restrictive measures be used.

[11]    In this case, no one is contesting the fact that second-hand smoke is harmful to the health of others.

[12]    In addition, improving the health and well-being of inmates and officers could certainly justify removing the right or privilege of smoking inside the facilities, including cells: Boucher v. Canada (Attorney General), 2007 FC 893.

[13]    Nevertheless, according to the evidence in the record, smoking outdoors poses no risk to the health of others.

[14]    In this case, according to the evidence in the record, there is no rational link between prohibiting inmates from smoking outside of CSC facilities and the right of non-smokers to not be exposed to second-hand smoke.

[15]    In our free and democratic society, no blanket ban on smoking or possessing tobacco or smoking items has ever been enacted by Parliament in order to protect the health of non-smokers from exposure to second-hand smoke.

…

[27]    Of course, the removal or restriction of the right or privilege of smoking enjoyed by all members of society is not a necessary consequence of the sentences served by inmates in penitentiaries.

…

[Emphasis in the original]

102  The evidence showed that imposing restrictions on smoking inside correctional institutions and evolving to a smoke-free environment represented a major change, which required a shift in attitudes and habits for both inmates and employees. The evidence also showed that safety within correctional institutions was a concern, which the CSC could not overlook when determining its approach.

103  In the circumstances, I believe that it was reasonable to adopt a gradual approach, which sought input from all stakeholders, including employees and union and inmate representatives. The approach included support measures offered to inmates and employees who wanted to quit smoking and provided all stakeholders with time to adjust to the gradually more restrictive measures.

104  The evidence showed that even that gradual approach was not without its problems since many inmates tended to disregard the imposed restrictions. They even unsuccessfully challenged in Federal Court the smoking ban imposed indoors in institutions on January 31, 2006 (Boucher), and the legal debate on the complete smoking ban outdoors within the perimeters of correctional facilities is still ongoing (Mercier). Even the FTC’s health and safety committee, of which Ms. Galarneau’s bargaining agent was a member, acknowledged the importance of choosing a gradual approach.

105 Does that mean that the evolution to a smoke-free environment was done in a reasonable amount of time? I am not sure. It took almost 16 years from the time that the CSC adopted its first policy restricting smoking until it fully banned smoking inside correctional institutions. That seems to me like a long time, considering that, during that time, correctional officers had to carry out their functions in an environment contaminated by second-hand smoke.

106  However, I believe that, and this is critical, as of 2002, the CSC adopted a more aggressive and proactive approach. From 2002 to 2006, the CSC established committees that examined the smoking issue. It consulted different stakeholders, including inmate and union representatives, and worked to create a smoke-free environment in collaboration with union representatives. In 2003, the FTC, for its part, established a smoking policy implementation committee and adopted an action plan to eliminate smoking inside the institution.

107  When the grievance was filed, the CSC had completed its consultations and had announced on July 12, 2005 its intention to ban smoking indoors in institutions as of January 31, 2006. At that time, the FTC, for its part, was continuing its efforts in collaboration with the workplace health and safety committee and the smoking policy implementation committee to further restrict the number of locations where smoking was permitted. As of January 31, 2006, or in the weeks after that date, the CSC implemented its indoor smoking ban in institutions and, given the problems encountered with full compliance, it took a further step by banning smoking outdoors within the perimeters of correctional facilities as of July 2008.

108 Although the employer took some time to make the change, I believe that, when the grievance was filed, it was resolutely committed to creating a smoke-free environment, which was ultimately adopted on January 31, 2006 and that, by taking that action, the employer took reasonable measures to limit and to ultimately eliminate all exposure to second-hand smoke. My view is that, by taking that action, the CSC took reasonable measures to protect the health and safety of its employees.

109  Therefore, I find that Ms. Galarneau did not prove that, when she filed her grievance, the employer was contravening clause 18.01 of the collective agreement. Rather, the evidence demonstrated that, at that time, it was taking reasonable measures to protect the occupational health and safety of correctional officers, including Ms. Galarneau.

110  I also find that the employer’s conduct does not constitute a violation of the rights guaranteed under sections 7 and 15 of the Charter.

111  For all of the above reasons, I make the following order:

V.Order

112  The grievance is dismissed.

January 26, 2010.

PSLRB Translation

Marie-Josée Bédard,
adjudicator