FPSLREB Decisions

Decision Information

Fletcher v. Treasury Board (Solicitor General Canada - Correctional Service)

Collection FPSLREB Decisions
Decision Rendered 2003-04-14
Citation 2003 PSSRB 30
File Number 165-2-209, 165-2-210, 165-2-211, 165-2-212, 165-2-213, 165-2-214, 165-2-215, 165-2-216
Before Yvon Tarte
Decision Type Labour Relations
Subject Terms Correctional officer
Occupational health and safety
Refusal to work
Summary:

Canada Labour Code, Part II (Occupational Health and Safety) - Refusal to work due to dangerous conditions - Section 129(5) of Canada Labour Code - this matter related to a reference to the Board under subsection 129(5) of the Canada Labour Code by the grievor and seven other correctional officers, challenging the reports of two safety officers who had found that " no danger " existed at the time of their investigation into work refusals by these employees of the Dorchester Maximum Security Penitentiary and the Atlantic Institution in Renous - the Board had rendered a decision (2000 PSSRB 86) allowing in part the reference and had found that a danger had existed at the time of the refusal to work - the Attorney General of Canada had applied to the Federal Court of Appeal for judicial review of that part of the Board's decision - in Canada (Attorney General) v. Fletcher et al., the Court allowed the application setting aside that part of the decision of the Board which rescinded the report of the safety officer and found that a dangerous condition existed with respect to Units 3 and 4, and referring the matter back to the Board for a new determination to be made on the basis that the report of the safety officer ought to be confirmed - the Court found that it is only with respect to a danger that exists at the time of the investigation that directions may be given, and therefore, in the case at bar, the Board, having found that no danger existed at the time of the investigation, had erred in law in finding that a dangerous condition existed with respect to Units 3 and 4 - the Court concluded that the only option open to the Board was to confirm the report of the safety officer - in accordance with the Federal Court of Appeal's decision, the Board confirmed the safety officer's report that there was absence of danger on November 22, 1999, in Unit 3 and in Unit 4. Reference dismissed. Case cited: Canada (Attorney General) v. Fletcher et al., 2002 FCA 424.

Decision Content



Canada Labour Code, Part II

Coat of Arms - Armoiries
  • Date:  2003-04-14
  • File:  165-2-209 to 216
  • Citation:  2003 PSSRB 30

Before the Public Service Staff Relations Board

BETWEEN

KEN FLETCHER, CLAUDE J. GALLANT, FRED W. JOHNSON,
L.P. LEBLANC, PHILLIPPE LECLERC, JAMES A. MACLEOD,
STEVEN J. RICHARD AND J.R. HEBERT
Applicants

and

TREASURY BOARD
(Solicitor General Canada - Correctional Service)
 Employer

Re:   Reference under subsection 129(5) of the Canada Labour Code

Before:   Yvon Tarte, Chairperson

(Decision rendered without an oral hearing)

[1]      This matter is related to a reference to the Board under subsection 129(5) of the Canada Labour Code by Ken Fletcher and seven other correctional officers, challenging the reports of two safety officers who found that « no danger » existed at the time of their investigation into work refusals by employees of the Dorchester Maximum Security Penitentiary and the Atlantic Institution in Renous. The Board proceeded to hear the matter as it related to seven work refusals by employees at the Dorchester Institution while the eighth refusal was held in abeyance.

[2]      On September 20, 2000, Board member A.E. Bertrand rendered a decision (Fletcher et al. v. Treasury Board (Solicitor General Canada - Correctional Services), 2000 PSSRB 86), by which the Board allowed in part the reference, in the following terms :

[101] On the basis of the foregoing, the Board confirms the reports of the safety officer that there was absence of danger on November 22, 1999 in the case of Fred Johnson in Unit 1, in the case of Claude Gallant in Unit 2, and in the case of James MacLeod in Unit 2. The Board rescinds the report of the investigation officer and finds that a dangerous condition did exist on November 22, 1999 in the case of Ken Fletcher in Unit 3, in the case of Phillip Leclerc in Unit 3, in the case of L.P. LeBlanc in Unit 4, and in the case of Stephen Richard in Unit 4.

[3]      The Attorney General of Canada applied to the Federal Court of Appeal for judicial review of the Board's decision, in respect of that part of the decision which dealt with Units 3 and 4 (Court file : A-653-00).

[4]      In Canada (Attorney General) v. Fletcher et al., 2002 FCA 424, the Court granted the application and issued an order in the following terms :
The application for judicial review is allowed with costs, that part of the decision of the Public Service Staff relations Board dated September 20, 2000 which rescinded the report of the safety officer and found that a dangerous condition existed with respect to Units 3 and 4 is set aside and the matter is referred back to the Board for a new determination to be made on the basis that the report of the safety officer ought to be confirmed.

[5]      In particular, Mr. Justice Décary states as follows in his reasons for judgment, at paragraph 15:

[15] That being said however, the existence of a danger at the time of the refusal to work does not in and by itself give the safety officer or, ultimately, the Board, jurisdiction to give directions to the employer with respect to that danger. It is only with respect to a danger that exists at the time of the investigation that directions may be given. In the case at bar, the Board, having found that no danger existed at the time of the investigation, erred in law in finding that a dangerous condition existed with respect to Units 3 and 4. The only option open to the Board was to confirm the report of the safety officer.

[My emphasis]

[6]      No appeal of that judgment was sought before the Supreme Court of Canada.

[7]      Consequently, in accordance with the Federal Court of Appeal's decision, the Board hereby confirms the safety officer's report that there was absence of danger on November 22, 1999 in the case of Ken Fletcher in Unit 3, in the case of Phillip Leclerc in Unit 3, in the case of L.P. LeBlanc in Unit 4, and in the case of Stephen Richard in Unit 4.

Yvon Tarte,
Chairperson

OTTAWA, April 14, 2003

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