HomeMy WebLinkAbout1989-1478.Gibson.00-00-00ONTARIOEMPLOYÉS DE LA COURONNE
CROWN EMPLOYEESDE L’ONTARIO
GRIEVANCECOMMISSION DE
SETTLEMENTRÈGLEMENT
BOARDDES GRIEFS
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GSB # 1478/89
OPSEU # 89E768
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union
(Paul Gibson)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor General and Correctional Services)
Employer
BEFORE Susan D. Kaufman Vice-Chair
Pamela Munt-MadillMember
Jacqueline G. Campbell Member
FOR THE Alick Ryder, QC
GRIEVOR
Counsel, Ryder Wright Blair & Doyle
Barristers & Solicitors
FOR THE Sunil Kapur
EMPLOYER
Counsel, Legal Services Branch
Management Board Secretariat
HEARINGS June 14, 1995; August 15, 16 & 17, 1995;
September 1, 1995; January 8, 1996; February 6, 1998;
April 1, 1998; and May 4, 1998
Interim Decision
Introduction:
This panel was asked, on consent of both parties, to hear evidence and decide the
appropriate remedy for the grievor. We were asked to do so subsequent to two orders of “the
Wilson panel”, the first dated December 28, 1990, which decided that the grievor’s dismissal had
been unjust, and the second, a consent order dated April 20, 1993, pertaining to air sampling to
be done at the Hamilton-Wentworth Detention Centre. It would be useful to review those orders
and an earlier one, to provide some of the history of this matter, before considering the evidence
and arguments heard by this panel.
The grievor was dismissed effective October 20, 1989 for failure to adhere to condition
number 4 of the following consent order, issued by the Grievance Settlement Board on October
16, 1987:
ORDER
At the hearing held on October 16, 1987, the parties agreed to conclude the matter
by causing the Board to issue the following Order:
(1) The Grievor is reinstated as of October 16, 1987. There will be no
compensation because the Board believes the whole issue is one for the
Workers Compensation Board. Compensation will commence from the
Grievor’s return to work..
(2) At the earliest possible moment, the Grievor must have a complete medical
examination by Dr. J. Chong and any other experts to whom Dr. Chong wishes
to refer the Grievor for testing. There must be full cooperation to disclose the
results of this examination to the Superintendent of the Hamilton-Wentworth
Detention Centre.
(3) If Dr. Chong confirms that the grievor has a good prognosis for regular
attendance in the job of Maintenance Mechanic 3, the Grievor will return to
work. If the prognosis is unfavorable, the Employer will process an application
for LTIP for the Grievor. If this application is not approved by the insurance
carrier, the Grievor will be considered terminated with the severance benefits
that would have been due him as if he had resigned.
(4) Upon his return to work, the Grievor is required to maintain the institutional
average in attendance for a period of two years. In that period, he will be
required to provide full medical documentation for each absence of two (2)
days or more.
2
Of course, the Board will retain jurisdiction pending the implementation of this
Order.
th
Dated at Toronto, Ontario this 16 day of October, 1987.
R.J. Roberts, Vice Chairman
J. McManus, Member
K. McCuaig, Member
The grievor was dismissed on October 20, 1989, for having failed to maintain the
institutional average in attendance for a period of two years. The Wilson panel heard the
grievor’s grievance from his dismissal. The Wilson panel December 28, 1990 Decision reviewed
the evidence and case law and stated, at p. 23, with reference to General Tire Canada ltd. And
United Rubber Workers of America, Local 536 (V. Lawrence Grievance) unreported, May 22,
1989 (M. Picher):
…if the employer interferes with the ability of the employee to comply, he cannot
expect the arbitration board to allow him to rely on its technical requirements. I
have no problem accepting that principle as proper arbitration law.
The Decision continued at pages 23-25:
In our case, we have conflicting evidence on whether the environment in
the detention centre was in fact the reason for the Grievor’s inability to meet the
requirements of the consent Order. At the same time, the Grievor raises the
question whether his problem, being concentrated around the time that the
Employer was having the ventilation system cleaned may have been due to that
cleaning process. The Employer’s evidence can only be described as defensive: it
called no expert evidence on the matter but attempted, as the Ministry’s arguments
set out in this Decision show, essentially to punch holes in the Grievor’s expert
evidence. It is clear to me that this whole area of occupational illness, as it
emerged in the testimony before this Board in this case, is at the frontier of
medical science and is continuously expanding. Under those circumstances,
where an employee has been dismissed, where he is arguing that he has not been
able to comply with the conditions of the Order because of the actions or inaction
of the Employer, and he adduces good scientific evidence on the point, in my view
the Employer must come forward with persuasive evidence to counter that. It is
not sufficient to simply raise doubts about the Grievor’s case. Dr. Chong’s
testimony was left in tact and was persuasive. At the end of this case, I am left
with a clear sense of both the seriousness and the substance of the Grievor’s
assertion that his problems of attendance arise from the environment in which he
had to work. I do not know and, apparently, neither does anyone else at this stage,
know definitely whether the Grievor’s problems are caused by an unsolved air
3
quality/quantity situation or whether it was merely the result of the cleaning of the
ventilation system at the time preceding his absence or whether it may be due to
other unknown factors unconnected with his work environment. But the employer
has not succeeded in negativing the first two possibilities so as to be able to rely
on the Order. Whether or not the consent Order assumed a proper working
environment, the very real possibility that the Grievor was prohibited from
complying with the order by reason of the cleaning operation, in itself would
cause me to find that the Order cannot be fully enforced against the Grievor since
the cleaning operation was something undertaken by the Employer to remedy a
long standing problem which it has on its own testimony reluctantly faced up to.
There is no fault in the Employer for undertaking such a cleaning process;
apparently it was certainly needed as the MGS Report shows. But it cannot insist
on the strict letter of the order under such circumstances. It was certainly not a
situation contemplated by either of the parties at the time the Consent Order was
made. And it was the act of the employer. If on the other hand, the Grievor’s
condition is the result of a smoky environment in the institution, then that is a
situation which the Employer had not yet completed reasonable provisions to
remedy. They were still underway. The evidence of Dr. Chong was that the
Grievor is not hyper-sensitive and there was no other evidence on this point.
Furthermore, an Order of this type would not normally contemplate placing an
employee back to work in an environment in which the Employer was not making
reasonable provisions for the health of its employees. It certainly did not
specifically so provide; indeed, paragraph (3) required only that the Grievor
himself be confirmed fit for work which inclines me to conclude that it assumed
that there was a suitable environment to return to. In the end, the Grievor has
raised sufficient grounds for the Board to conclude that the Employer cannot rely
on his failure to meet the attendance standards set out in paragraph (4) of the
consent Order because it has not sufficiently answered his evidence that the failure
was caused by the actions or inactions of the Employer - by inactions, of course,
where the Employer had a duty to act.
Although I am not strictly speaking required to answer the question of
whether there is a residual authority in the Board where there is a previous Order
at issue, I will speak to it as an issue on which there should be some guidelines in
the future. Wherever an employee is dismissed and he or she comes before this
Board with an unjust dismissal grievance, I cannot doubt that the statutory
authority remains in tact. In my view, a denial that such authority exists would be
an incorrect refusal to exercise a statutory authority. My reading of the various
cases cited to me…do not in my view deny that with the possible exception of the
Consolidated-Bathurst case [cited at p. 16 as International Woodworkers of
America and its Local 2-69 and Consolidated - Bathurst Packaging Limited
(1983) unreported (Howe)]. What they do is to suggest guidelines which should
in my view be looked at when exercising that discretion. Certainly, the conditions
imposed by a previous Board of Arbitration should not be lightly disregarded
especially since the previous Board heard all the evidence or in the case of a
consent Order the parties made the specific bargain which the settlement or Order
4
reduced to words. But the Board hearing the dismissal grievance still has the final
responsibility for deciding whether on all the facts before it, a dismissal is unjust.
Applying that reasoning to our case, given the substantial questions raised by the
Grievor as to whether his failure to meet the attendance standard set out in the
order was due to factors within the Employer’s control and given that the ultimate
issue is the Grievor’s prospective ability to meet the attendance level essential to
fulfilling his employment obligations I do not find his dismissal just. I am not
however going to make any comments on the Board’s discretion under subsection
19(3).
It concluded at p. 25:
Accordingly, the grievance against dismissal is allowed subject to certain
conditions, namely, as follows:
(1) The parties are to determine whether the Hamilton-Wentworth
Detention Centre has adequate air quality and quantity for the proper
needs of normal healthy employees. The testing procedures to be
carried out to determine whether such is the case are to be determined
by and agreed to by the Employer and the Union jointly. The Board
will remain seised in the eventuality that they are unable to agree on
testing procedures, standards or conclusions.
(2) If the air environment is thus found adequate, the Grievor upon
certification by Dr. J. Chong and any other experts, to whom Dr. Chong
wishes to refer the Grievor for testing, of his capacity to return to work
and maintain an acceptable attendance record shall be reinstated. There
is to be full cooperation to disclose the results of all examinations to the
Superintendent of the Hamilton-Wentworth Detention Centre.
(3) Upon return to work, the Grievor is to maintain an attendance record
equal to the institutional average for two (2) years. He is to provide a
medical certificate for any absences in excess of two (2) days. Failure
to attain that standard if not a result of the acts or neglect of the
Employer may be grounds for dismissal.
(4) If the parties or the Board should determine that the air environment is
inadequate, the Board will on the request of either party resume
hearings to determine an appropriate remedy.
(5) If the Grievor is capable of returning to work and the environment is
adequate, the Board will receive argument as to what compensation the
Grievor is entitled to receive for the unjust dismissal.
(6) The Board will remain seised pending the implementation of the
Decision.
This has been an unusual case involving questions of health and safety in the
context of the dismissal of a long term employee. As a result, we have fashioned a
complex remedy to deal with this complex group of issues. We have also found it
necessary to retain jurisdiction to supervise the application of that group of remedies. In
our view that is the very mandate given to the Grievance Settlement Board by the CECB
5
Act and the Collective Agreement. But because the issues are complex, it seems wise to
us to move step by step in formulating a solution.
th
Dated at Toronto this 28 day of December, 1990.
Thomas H. Wilson Vice-Chairperson
Norman Carriere Member
Jacqueline Campbell Member (dissenting)
Matters did not move quickly thereafter. On April 20, 1993, the Wilson panel issued the
following:
BOARD DECISION
The Board hereby orders the parties to comply with the terms of the settlement entered
into on the 1st day of April, 1993, by the representatives of the parties as set out in the
annexed Appendix “A” with annexed Exhibit 25. Appendix “A” and Exhibit 25 form
part of this Order.
APPENDIX “A”
The Board is asked to issue the following order on consent:
1. The testing described in Exhibit 25 (annexed hereto) is to be conducted at the
Hamilton-Wentworth Detention Center by the Ministry of Labour before the
end of June, 1993.
2. If the Ministry of Labour will not undertake to complete the testing by the end
of June 1993, the tests will be conducted by M.B.S. or by a private contractor
mutually agreed to.
3. OPSUE (sic) is entitled to engage, at its expense, an expert to attend, monitor
the testing, and take independent readings or tests within the limits of Exhibit
25.
4. the testing will be conducted in the presence of management and OPSUE (sic)
representatives on the Health and Safety Committee including Mr. F. Duykers.
5. All data collected and reports prepared as a result of the testing will be
immediately shared between the parties.
Exhibit 25:
Carbon Dioxide (CO2)
? instantaneous sampling approximately every 15 minutes (range of
about 15-30 minutes) using an infrared analyzer
6
? in addition to locations outlined below CO sampling is to be conducted
2
within the main supply and return ducts of the air handling units and in
front of the main roof air intakes
? outdoor readings to be taken approximately every hour
Carbon Monoxide (CO)
? a general building survey with a portable analyzer
Respirable Suspended Particulate (RSP)
? sampling using a piezo-electric balance approximately every 15
minutes (range of about 15-30 minutes)
Nicotine
sampling for the 2 day period
?
Temperature and Relative Humidity
survey throughout the building
?
Air samples were taken at the Hamilton-Wentworth Detention Centre on Wednesday,
June 2, 1993 and Wednesday, June 9, 1993 by the Ministry of Labour. In addition, Douglas S.
Walkinshaw, Ph.D., P. Eng., of Indoor Air Technologies Inc., OPSEU’s expert, made site
observations at the Centre on May 13, 1993, and “collected continuous carbon dioxide,
temperature and humidity samples from a return air duct from Pod A in the penthouse, June 2-17,
1993”, as well as other samples on June 2 and 9, 1993 (Ex. 1, Tab 1, p. 5-8). The Ontario Health
and Safety Branch Consultant Report, prepared by N. Wilk, H.B. Sc., M.H.Sc., Hygiene
Consultant, which includes an Exposure Assessment Report by M. Tompkins, Occupational
Health Technologist, is dated August 6, 1993. Dr. Walkinshaw’s final report was dated May 11,
1994. The parties were agreed that the report at Ex. 1, Tab 1, although dated February 21, 1994,
and marked “draft”, is the same as his final report.
The Grievor reached retirement age on January 31, 1994. Subsequent to the December
28, 1990 Wilson Decision, he received LTIP benefits from October 25, 1990 until January 31,
1994.
This panel was initially convened on June 14, 1995 and began to hear evidence with
respect to air quality and quantity at the Hamilton-Wentworth Detention Centre in June, 1993, on
August 15, 1995. Evidence on that subject was given by Nancy Wilk, B. Sci. (Hons.), M.
Occupational Hygiene/Health Science, on behalf of the Ministry of Labour (although the
7
Ministry declined to express a view on the adequacy of the air quantity and quality for the proper
needs of normal healthy employees), by Douglas S. Walkinshaw, Ph.D., P.Eng., Indoor Air
Technologies Inc., by Dr. John Chong, M.D., M.Sc., D.O.H.S., A.R.C.T., F.A.C.P.M.,
F.R.C.P.C., of the Centre for Human Performance and Health Promotion, Sir William Osler
Health Institute, Hamilton, Ontario, for the grievor and for OPSEU, by Peter Piersol, a graduate
in Mechanical Engineering, who at the time was Environmental Health & Safety Manager of
ORTECH International of Mississauga, Ontario, and who prepared a Review dated August 11,
1995 (Ex. 9) of the Ministry of Labour report (Ex. 1, Tab 2), Dr. Walkinshaw’s report (Ex. 1,
Tab 1), Dr. Chong’s letter dated April 5, 1994 (Ex. 1, Tab 3), the Wilson Dec. 28, 1990 Award,
and Dr. Walkinshaw’s Resume, by Bert Jongerden, Maintenance Superintendent of the Centre,
and by Hamilton-Wentworth Detention Centre Supt. Marvin Fajertag for the employer.
Evidence re air quality and quantity:
Mr. Jongerden was hired in 1976 to oversee the construction of the current facility which
is the Hamilton-Wentworth Detention Centre. He was responsible for the physical, electrical,
mechanical and architectural features of the institution, as well as its repair needs and the outside
grounds. He described the physical plant of the Centre and the ventilation system.
The entire institution is 162,000 sq. ft. The cells are 80 sq. ft., the dayrooms are 800 to
850 sq. ft. The construction of the current building was completed in 1978. The ventilation
system which was installed in 1978 was the same in 1989. The inmate population “could have
been” about 200 in 1978; by 1989 there were about 456 inmates, and 90% of them were smokers.
In 1978 when the building was completed, there was one panel of glass in each of the cells,
dayrooms and common rooms, which could be opened by staff from a remote location, using a
hydraulic unit. The windows were made unopenable before October 20, 1989. Mr. Jongerden
advised that he did not know whether this action created an additional stress on the ventilation
system; he agreed that it eliminated one source of fresh air. He later agreed that the openable
windows were formerly a means of exhausting smoke.
th
There are 3 air handling units (AHUs), one for each pod of the Centre, on the top (6)
level of the Centre. The AHUs are supplied with tackified roll filters. When the Ministry bought
8
the filters, they were the best available and the most expensive, as well, but authorization for the
expense was given because the Centre was in an industrial area.
There are three parts to the air system, the supply, the exhaust and the return, which
returns a portion of air removed from the system and reintroduces it to the supply air fan, which
returns it to the system. The return air comes from offices, hallways and closets. Shower rooms
and cells have supply and exhaust air grills only. The air from washroom facilities and dayrooms
“cannot be recirculated”, he advised. A supply fan in a mechanical room on Level 1, located
above the gym, brings fresh air to the kitchen. The supply air is 12 inches high and 40 feet long.
An exhaust fan exhausts the kitchen air directly to the outdoors. The 8 ft. x 14 ft. exhaust hood is
located in the centre of the kitchen, above the cooking centre. Some time after November 18,
1988, and before October 20, 1989, an 8” x 10” room with a supply grill was “created” in the
kitchen, which permits inmates to have lunch and coffee and smoke breaks. This “inmate
smoking room” adjacent to the kitchen has a 12” x 12” air supply grill, but no exhaust and no
return. The kitchen exhaust hood is located within 5 feet of the inmate smoking room, he
advised. He later said, of the “inmate smoking room” next to the kitchen, that “any smoke would
have been sucked right out”.
Inmate cells and dayrooms are located in Pods on various levels. Cells and dayrooms do
not have return air facilities, he advised; they have supply and exhaust air only. B Pod, he said,
has supply, exhaust and return air. Inmates can smoke in their cells. The cells are separated
from the dayrooms by a steel door with an 8” x 12” window. He has not noticed a difference
between inmates smoking in cells and in the dayrooms. He advised that the return grills,
mentioned at page 2 of the November 18, 1988 memo from the Regional Mechanical Engineer
(Wilson Panel, Ex. 10), had been plugged “for some time” before the memo was written. At the
time, the return grills were at the level of the upper bunk, he advised, and inmates often used
toothpaste to plug them, to avoid drafts. Some time after November 18, 1988 a new supply air
grill was installed in each cell over the toilet and there is an exhaust grill under the lower bed.
The old supply vents were welded shut. The ducts were cleaned in August, 1989 shortly before
the grievor’s attendance at work ceased. The duct cleaning produced no noticeable difference in
air quality, he advised, but increased the volume of air being supplied. He said that a substantial
amount of dust had been removed from the ducts, and said “so one has to interpret that as an
9
improvement in air quality”. He agreed that there was less particulate floating around after the
ducts were cleaned. He denied that the change in the ductwork meant that for a while air from
the cells was being recirculated.
The welding shop is located in the “level 1 mechanical unit”. He advised that the air
supply fan “in that room” supplies air to the kitchen, laundry and mechanical room. The exhaust
air fan is located approximately 6 feet from the welding area. There is a laundry exhaust located
in C Pod (Ex. 10, Fig. 8) on Level 1. He stated that the likelihood of lint from that laundry
exhaust was nil, because it had to travel 59 feet upward and 65 feet horizontally.
Some time after November 18, 1988, Mr. Jongerden advised, new ducts were installed
between the return and supply fan air boxes on the fan on Level 6. As well, a system of
pneumatic controllers, which would permit a percentage of return air to be reintroduced into the
supply air of the building, was installed. He later said that he did not know the effect the change
in the ductwork had on the air quality, and said that he was not an expert.
The Ministry of Labour’s and Dr. Walkinshaw’s reports (Ex. 1, Tab 1 and 2) referred to
problems with the adequacy of the quantity of fresh outdoor air entering the building, particularly
when the range of fresh outdoor air in the makeup air supply was 30-50%, as it was on June 9,
1993. Ms. Wilks noted in her report that the percentage of fresh outdoor air entering the building
was thermostatically controlled by pneumatic dampers, which could be manually adjusted to
supply 100% fresh outdoor air, but that this was seldom done (Ex. 1, Tab 2, page 2). Ms. Wilks
understood that when thermostatically controlled, the range of fresh outdoor air in the makeup air
supply was 30 to 70%, depending in part upon the temperature of the outdoor air, which in part
corresponded with the season. The Ministry of Labour’s view, with which Dr. Walkinshaw
concurred, was that the percentage of fresh outdoor air entering the building is significant in
order to dilute the “contaminants produced from both occupants and environmental tobacco
smoke”.
The parties had agreed to take the air samples on Wednesday afternoons and evenings.
The inmates on Floors 4 and 5 receive their cigarette orders from the canteen on Tuesday
evenings and those on Floors 2 and 3 receive their orders on Wednesday evenings. Whether the
samples were performed “under poorest air quality conditions” was somewhat in dispute;
10
however, for purposes of the task of this panel, this does not need to be determined. It is
sufficient for us to conclude that the samples were taken at a time when moderate to heavy
smoking was occurring in the inmate areas. State of the art sampling methods were used.
Carbon monoxide (CO), carbon dioxide (CO), respirable suspended particulates (RSP’s)
2
and nicotine were identified by the Ministry of Labour as “markers” of environmental tobacco
smoke (ETS). The Ministry of Labour reported that the World Health Organization
“Concentration of Concern” respecting CO is levels greater than 5 ppm in an indoor environment
in all areas sampled, and that the CO concentrations at the Hamilton-Wentworth Detention
Centre “were well below the limit of detection or reported as less than 2 ppm”. Dr. Walkinshaw
stated that a CO concentration of 1-3 ppm indicates a high level of environmental tobacco
smoke. He acknowledged in cross-examination that O.Reg. 833/92 established a time-weighted
average exposure value (TWAEV) for CO of 35 ppm (Ex. 1, Tab 5, Part 4, p. 537).
With respect to CO levels, the Ministry of Labour report stated that it applied the
2
ASHRAE Standard 62-1989 of 1000 ppm of CO “when evaluating the adequacy of fresh air
2
supply to indoor environments” (Ex. 1, Tab 2, p. 3, para. 4). It found that “the CO
2
measurements taken on 2 June 1993 were all below 1000 ppm and consistently lower than those
taken on 9 June 1993” (when the range of fresh outdoor air in the makeup air supply was 30-
50%) and that “the higher percentage of fresh outdoor air being introduced into the makeup air
supply on 2 June 1993 than on the 9 June 1993 was effective in lowering the CO concentrations
2
measured” (Ex. 1, Tab 2, p. 4). It noted that CO is generated both by “building occupants
2
(workers and inmates)” and by tobacco smoking (Ex. 1, Tab 2, p 4); this was concurred in by Dr.
Walkinshaw. “…Where smoking is not permitted, concentrations of CO were maintained
2
below 1000 ppm”, it noted. Dr. Walkinshaw acknowledged in cross-examination that O.Reg.
833/92 established a time-weighted average exposure value (TWAEV) for CO of 5000 ppm (Ex.
2
1, Tab 5, Part 4, p. 537).
In cross-examination Ms. Wilks advised that the Ministry views the ASHRAE CO
2
standard of 1000 ppm as a comfort standard, that health and comfort are a matter of semantics,
and that the Ministry “looks at” the 5000 ppm standard in O./Reg. 833/92. She agreed that
ASHRAE Standard 62-1989 expresses the outdoor air requirements in cubic feet per metre
11
(c.f./m.), depending upon the location of the space and maximum occupancy, and that at p. 13 it
states “A limit of 1000 ppm CO is recommended to satisfy comfort (odor) criteria.” She
2
advised that the cubic feet per metre figures represent the recommended quantity of air in order
to maintain a CO level below 1000 ppm, varying with the use of the room. She neither
2
concurred with nor disputed the suggestion that 60 c.f./m = 525 ppm CO.
2
The Ministry of Labour advised Management and the Joint Health and Safety Committee
regarding the provision of adequate amounts of fresh outdoor air for this purpose (Ex. 1, Tab 2, p
2). It also advised them regarding the presence of excessive levels of carbon dioxide, relative
humidity, nicotine and respirable suspended particulate. Its first “Advice” to them noted, among
other things “Adequate fresh air supply is required such that the indoor CO concentrations will
2
drop below 1000 ppm. … When the amount of fresh outdoor air was set at 70%, the CO levels
2
were below 1000 ppm” (Ex. 1, Tab 2, p. 7). On this subject, Dr. Walkinshaw recommended to
“adjust damper operation so all fully open (and close), and then operate at or near maximum
ventilation rates, subject to being able to maintain acceptable thermal comfort and to closing
when outdoor air contaminants are elevated, until other measures can be taken to reduce tobacco
smoke exposures to acceptable short and longterm levels” (Ex. 1, Tab 1, p. 16). Mr. Piersol said
that Dr. Walkinshaw’s preceding recommendation was not necessary to do, as “the work stations
are at acceptable levels”.
Ms. Wilks advised that no legislated level which should not be exceeded for RSP exists
in Ontario. The Ministry of Labour report stated that it applied the ASHRAE Standard 62-1989
3
of .15 mg/m, which, at such level, would “indicate a build up of tobacco smoke” (Ex. 1, Tab 2,
3
page 6). It stated “airborne RSP values in the dayrooms were in excess of 0.15 mg/m on both
sampling days” (Ex. 1, Tab 2, page 7). The Ministry of Labour report indicated that an especially
3
high level of RSP (1.14mg/m) in the kitchen smoking area was of particular note. Ms. Wilks
3
declined to respond to a question as to whether RSP at a level in excess of 0.15 mg/m is
hazardous, and stated that that required a medical opinion. She noted that on June 2, 1993, the
3
RSP values at staff stations ranged from .03 - .13 mg/m, and on June 9, 1993 they ranged from
3 3
.08 to .15 mg/m. On June 2, 1993, the RSP values in dayrooms ranged from .05 - .66 mg/m,
3
and on June 9, from .1 - .61 mg/m.
12
Ms. Wilks advised that the regulations in O.Reg. 833/92 under the Occupational Health
pertaining to nicotine concentration in air samples were set based on controlling
and Safety Act
exposure to insecticide(s) containing nicotine, and that because the purpose of its sampling for
nicotine was to measure contaminants associated with environmental tobacco smoke (ETS), the
3
standard in O.Reg 833/92 of .5 mg/m was not applied. Citing “(Reducing the Health
Consequences of Smoking: 25 Years of Progress. A Report of the Surgeon General. U.S.
Department of Health and Human Services, Public Health Service, Centers for Disease Control,
Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health.
DHHS Publication No. (CDC) 89-8411, 1989)”, the Ministry of Labour report (Ex. 1, Tab 2, p.
6) stated that “typical nicotine ranges …associated with ETS” included:
3
0.001 - 0.006 mg/m in public places
3
0.003- 0.010 mg/m in restaurants
3
0.001 - 0.0138 mg/m in work rooms
It reported that on 2 June 1993, “the airborne nicotine in the staff stations ranged from less than
3
0.001 to 0.003 mg/m…” and on 9 June 1993 “in the same areas airborne nicotine ranged from
3
0.001 to 0.105 mg/m”. Dr. Walkinshaw stated that the TWAEV standard for nicotine in O.Reg.
3
833/92 of .5 mg/m refers to hazardous exposure of the skin to nicotine and is not relevant to the
concerns about ETS.
Mr. Piersol stated that nicotine is a chemical unique to ETS and indicates its presence.
3
He said that levels of 0.001 - 0.003 mg/m are typical of non-smoking areas, and that the reading
3
of .015 mg/m of nicotine reported in the Ministry of Labour’s report at Table 5 for Staff Station
5C (Ex. 1, Tab 1) was “approaching the upper levels of acceptable air quality”. He said that that
reading was “near the level of areas where tobacco smoking was occurring”. The Ministry of
Labour’s report does not report the nicotine levels in dayrooms; it does not appear that nicotine
levels were measured in the dayrooms.
The Ministry of Labour report concluded (Ex. 1, Tab 2, pp. 7-8):
ADVICE TO MANAGEMENT AND THE JOINT HEALTH AND SAFETY
COMMITTEE
1. In the dayrooms and kitchen areas, CO levels on 9 June 1993 ranged from 650
2
to 1600 ppm and were in excess of the ASHRAE guideline of 1000 ppm.
13
Adequate fresh air supply is required such that the indoor CO concentrations
2
will drop below 1000 ppm. CO levels over 1000 ppm are associated with
2
widespread occupant complaints. At levels of 600 ppm, complaints of
headache become more frequent. The ASHRAE guideline should not be
interpreted to mean that if it is exceeded hazardous concentration of CO exist.
2
In assessing worker exposure to CO, a TWAEV 5000 ppm is used. ASHRAE
2
guideline of 1000 ppm CO is used as a surrogate indicator of the sufficiency
2
of fresh outdoor air.
Adequate amounts of fresh outdoor air need to be supplied to the dayrooms and
kitchen smoking area to maintain CO levels below 1000 ppm. ASHRAE
2
Standard 62-1989 lists outdoor air requirements for ventilation in Table 2.2 for
Institutional Facilities. For smoking lounges 60 cfm (cubic feet per minute) are
required to drop CO2 levels below 1000 ppm as opposed to 15 cfm per person
for a non-smoking area and 20 cfm per occupant for offices where some
smoking may be allowed. When the amount of fresh outdoor air was set at
70%, the CO levels were below 1000 ppm. The restriction of the number of
2
occupants will also assist in lowering CO levels.
2
2. Thermal comfort is determined by factors such as the dry-bulb temperature and
relative humidity (RH). While temperature measurements were all within the
recommended range for summer conditions, the RH on 9 June 1993 was above
the recommended range of 30 - 60%. Adjustments should be made to the
HVAC and humidification systems to ensure that the RH is controlled to
within the ASHRAE guide of 30-60%.
3. Airborne nicotine and RSP concentrations can be used as ETS markers. These
markers provide the evidence of ETS exposure but do not necessarily measure
the biological dose to an individual. The existing literature indicates that there
is no established, health-based threshold for exposure to ETS below which
there is not risk and that exposure should be minimized or avoided wherever
possible.
There is good medical and scientific evidence that there is likely a health hazard
due to exposure to ETS and employees with certain medical problems are more
susceptible. The extent of the hazard is dependent on the dose and although
this is difficult to quantify, there is a definite exposure to ETS in the dayroom
and kitchen smoking areas investigated.
Management is encouraged to implement smoking control policies to restrict
smoking in the workplace. Workers should also be encouraged to participate
in smoking cessation programs in order to minimize their overall exposure to
ETS.
ADVICE TO INDUSTRIAL HEALTH AND SAFETY INSPECTORATE
1. Air sampling results indicate that CO levels in excess of 1000 ppm were
2
present in the dayrooms and kitchen smoking area when the makeup air supply
ventilation was set at a minimum 30-50% fresh outdoor air. Advice is given to
14
Management and the JHSC regarding provision of adequate amounts of fresh
outdoor air for contaminant dilution.
2. Nicotine and RSP levels were measured as ETS markers. As demonstrated by
the CO measurements, nicotine levels were also above the typical range of
2
3
0.001 - 0.0138 mg/m in work rooms when the dilution ventilation was
providing the minimum 30 - 50% fresh outdoor air. When 70% fresh outdoor
air was introduced into the makeup air supply ventilation, nicotine
concentrations in the staff stations were below the typical range for work
rooms with ETS.
On both days of sampling, RSP concentrations in the dayrooms and kitchen
3
smoking area were in excess of the ETS marker of 0.15 mg/m indicating a
3
build up of tobacco smoke. RSP levels as high as 1.14 mg/m were measured.
Management and the JHSC are advised regarding contaminant dilution and
implementation of smoking control policies.
3. Temperature levels were within the recommended summer-time range. RH
levels on the second day of sampling were above the ASHRAE recommended
range of 30-60%. It should be noted that on the second day of sampling the
outdoor relative humidity levels were 63-64%. Advice is given to
Management and the JHSC regarding adjustment of the humidification and air
conditioning/ventilation system in order to control RH levels to within the
recommended range.
Dr. Walkinshaw advised the panel that Health and Welfare Canada, the World Health
Organization, the U.S. Environmental Protection Agency and ASHRAE (the American Society
of Heating, Refrigerating and Air-Conditioning Engineers, Inc.) set individual standards of
acceptable levels of RSP in indoor air. ETS (environmental tobacco smoke) is a mixture of gases
and particles. RSP is a component of ETS, which is measured when ETS is the concern. His
stated that Benzo(a)pyrene and beta-Naphtylamine would be present in air if environmental
tobacco smoke is present. These substances are found in a chart comprising Part 10 of O.Reg.
833/92 under the Ontario Health and Safety Act (Ex. 1, Tab 5, p. 555) which lists “Known Toxic
Agents for Which Exposure Values Have Not Been Established, and to Which Any Exposure
Should be Avoided”.
Dr. John Chong advised that Benzo(a)pyrene is the main marker carcinogen in ETS. He
advised that it is a polycyclic aromatic hydrocarbon (PAH), an entity which is produced when
incomplete combustion of materials composed largely of biological materials (e.g. tobacco
leaves) occurs, that PAHs are found in the particulate phase of sidestream smoke, and that there
is a higher concentration of carcinogens in sidestream than in mainstream smoke.
15
In Exposure Guidelines for Residential Indoor Air Quality: A Report of the Federal-
Provincial Advisory Committee on Environmental and Occupational Health, published by
Environmental Health Directorate, Health Protection Branch, April 1987 (revised July 1989) (Ex.
1, Tab 4, pp. 15-16), Health and Welfare Canada’s authors stated
In view of the carcinogenic properties of tobacco smoke it is recommended that
any exposure to tobacco smoke in indoor environments be avoided.
Tobacco smoke is a complex mixture of substances, including carbon dioxide, carbon
monoxide, oxides of nitrogen and a large number of organic vapours and solids. Over 50
of the components are known to cause adverse health effects: 12 (including vinyl
chloride, 2-naphthylamine, benzo(a) pyrene and formaldehyde) are known or suspected
carcinogens. Carbon dioxide, carbon monoxide, oxides of nitrogen, formaldehyde and
particulate matter are among the components of tobacco smoke for which individual air
quality guidelines are recommended elsewhere in this document.
The largest amounts of most components are found in the smoke emitted into the
environment directly from the burning end of the cigarette. Symptoms reported by non-
smokers exposed to such “sidestream” smoke include eye, nose and throat irritation,
headache, nausea, dizziness and loss of appetite.
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Dr. John Chong pointed out that the above publication, at p. 10 and 15, indicated that PAHs
should be kept to a minimum, by, among other things, “adhering to the guidelines and
recommendations given in this document for particulate matter and tobacco smoke.” He stated,
in August, 1995, that only in the past 5 years have medical professionals and the public taken the
health hazards of environmental tobacco smoke seriously.
Although the Hamilton-Wentworth Detention Centre is not a residence per se,
particularly for its employees, and consequently not all the guidelines in the above Health and
Welfare publication are applicable, it was not in dispute that the above comments on
16
environmental tobacco smoke are applicable, regardless of the institutional setting under
consideration. It was common ground that smoking is permitted by inmates in dayrooms (the
common area adjacent to their cells in each pod) and in the kitchen smoking room i.e. the inmate
smoking room adjacent to the kitchen. Dr. Walkinshaw’s evidence suggested that although the
air in these areas is intended to be exhausted directly to the outdoors, for a number of reasons,
including relative air pressure as between the dayrooms and staff stations (where smoking is not
permitted), the presence of some of the markers of environmental tobacco smoke was detected in
some of the staff stations sampled.
It was a matter of some dispute as to whether, as Dr. Walkinshaw suggested, in his report
and in oral evidence, air containing RSP and therefore environmental tobacco smoke, was being
recirculated within the institution. Dr. Walkinshaw recommended that this possibility be
investigated (Ex. 1, Tab. 1, p. 16, Rec. 2). Mr. Jongerden stated “to my knowledge the air in the
cellblocks is not being recirculated”. Ms. Wilks advised that her understanding that dayrooms
exhaust air directly to the outdoors (Ex. 1, Tab 2, p. 2, para. 3 under heading “General”) was
obtained from Mr. Riexinger and Mr. Jongerden’s diagrams. In re-examination she stated that
the air from the cells is not being recirculated into the ducts. Mr. Piersol initially stated that he
was unable to dispute the suggestion that ETS was being recirculated by the 3 AHU’s. He later
stated that it was not necessary to investigate whether ETS is recirculating (recommendation #2,
Walkinshaw report [Ex. 1, Tab 1, p. 16]), as, he said, “they are at acceptable levels”. With
regard to Dr. Walkinshaw’s recommendation # 4 to
Measure concentrations of additional air contaminants including: volatile organic
compounds, fungi, carbon monoxide, respirable suspended particulate counts by
size distribution, in the building and in the make-up air, as a function of
ventilation rate, and take measures as appropriate to eliminate any problems
found,
he said that he did not know why these matters were being raised. The evidence did not establish
whether Mr. Piersol was familiar with the medical documentation concerning the grievor or Dr.
Walkinshaw’s oral evidence (see below) re the possibility of the growth of fungi and mould as a
consequence of humid air being trapped within the walls as it attempted to exit the institution.
17
Dr. Walkinshaw stated in evidence that the air supply to the kitchen was greater than the
air exhausted from it, and that a portion of the contaminants in the air in the kitchen would go out
to the hallways and the rest of the building. He said that the kitchen smoking room was
pressurized to the kitchen, and that the opposite condition should have been the case. His report
(Ex. 1, Tab. 1, p. 6) notes some of his observation regarding air pressure in certain areas of the
institution. He recommended (Ex. 1, Tab. 1, p. 17, Rec. 7) that either or both of the parties
“conduct a detailed air balancing survey and adjust flows appropriately. (e.g. adjust the
fumehood in the welding shop; depressurize and exhaust areas of high contamination such as the
smoking room adjacent to the kitchen, the kitchen and the welding shop)”. Mr. Piersol said that
there was no basis for this recommendation and that the recommendation section of the report
was the first time that the issue was being raised.
Dr. Walkinshaw stated that in 1984, the World Health Organization’s “Concentration of
3
Concern” for RSP from passive smoking was .15 mg/m (Ex. 1, Tab 1, p. 13, fn. 9), but that in
1989, Health and Welfare Canada (Ex. 1, Tab 4) recommended no exposure. He advised that
ASHRAE adopts the U.S. Environmental Protection Agency standards for Total Particulate and
since Standard 62-1989, it had published ASHRAE Standard 62a-1990, Addenda to Ventilation
for Acceptable Indoor Air Quality (Ex. 8) which amended its exposure value for Total
Particulate. Standard 62a-1990 expresses the Total Particulate exposure in two values, 50
3 3 3 3
mcg/m (or .05mg/ m) for long-term (1 year) and 150 mcg/m (or .15mg/m) for short-term (24
hours). Ms. Wilks advised that she was not aware of the existence of these standards.
The long-term ASHRAE standard for Total Particulate was exceeded on both June 2 and
9, 1993, on average, Dr. Walkinshaw advised. In addition, the World Health Organization
standard of .15mg/m3 (which is also the ASHRAE maximum short-term exposure), he advised,
was exceeded at staff station 3A at 5 p.m. on June 9, 1993. In cross-examination, he said he had
used Health and Welfare Canada’s guidelines for residential indoor quality for RSP. He said that
he did not distinguish between the applicability of those guidelines to employees, as opposed to
inmates, and that the results were well above Health and Welfare’s Guidelines.
Health and Welfare Canada’s Exposure Guidelines for Residential Indoor Air Quality
(op. cit., Ex. 1, Tab 4, S. 4.A.6, p. 10) states
18
The acceptable exposure ranges for fine particulate matter ([equal to or
greater than] 2.5 [mcg] mass median aerodynamic diameter - MMAD) in
residential indoor air are:
3
ALTER: [equal to or greater than] 40 [mcg]/m;
3
ASTER: [equal to or greater than] 100 [mcg]/m - one hour average
concentration.
Its Glossary defines ALTER as “acceptable long-term exposure range” and ASTER as
“acceptable short-term exposure range”. In cross-examination, Dr. Walkinshaw advised that he
3 3
introduced the 1990 ASHRAE standard of 50 mcg/m average over one year, and 150 mcg/m
average exposure over 24 hours, not to be exceeded more than once per year, because this
standard is intended to protect public health and safety. He advised that Health and Welfare has
3
identified .08 mg/m as a hazardous exposure level at which people chronically exposed for
several years are at greater risk for respiratory disease. Health and Welfare Canada’s Exposure
Guidelines for Residential Indoor Air Quality (op. cit., Ex. 1, Tab 4, S. 4.A.6, p. 10) states
Chronic exposure for periods of several years to moderate levels of
3
airborne particles estimate to be around 180 [mcg]/m total suspended particulates
3
or 80 [mcg]/m fine particles (respirable suspended particulates or RSP) appear to
be correlated with increased prevalence of respiratory symptoms and chronic
respiratory disease, accompanied by reduced respiratory-function measurements,
in adults and children.
Dr. Walkinshaw advised that the ASHRAE Standard for CO (1000 ppm) is appropriate
2
to the cells and dayrooms at night, provided there has not been excessive smoking. He pointed
out that ASHRAE applies a different standard for smoking lounges, which inmate dayrooms
closely resemble, which is 60 c.f./m., or 525 ppm. In cross-examination he acknowledged that
Table 2 of ASHRAE Standard 62-1989 (Wilson panel Ex. 20, p. 8) indicates that 60 c.f./m.
2
applies to smoking lounges of 100 m or 1000 sq. ft. with a maximum occupancy of 70 persons.
He was unable to confirm whether the kitchen smoking room was 10 ft. by 12 ft. He later stated
that he applied the smoking lounge standard because the ASHRAE correctional facilities
standards do not include a smoking lounge standard, and the inmate dayrooms were smoking
lounges, in which more than 2/3 of the occupants were smokers. It was not in dispute that over
90% of the inmates of the Centre were smokers.
Mr. Piersol agreed that ASHRAE Standard 62-1989, Table 2, (Wilson panel, Ex. 20, p. 9)
sets out standards of acceptable indoor air quality which vary with the use of the room, and that
19
the standard for smoking lounges is higher than for a non-smoking area. He agreed that the
smoking lounge standard was 60 c.f./m. He did not dispute that 525 ppm = 60 c.f./m. Mr.
Piersol’s attention was drawn to the footnote of Table 2:
Table 2 prescribes supply rates of acceptable outdoor air required for acceptable
indoor air quality. Those values have been chosen to control CO and other
2
contaminants with an adequate margin of safety and to account for health
variations among people, varied activity levels and a moderate amount of
smoking.
When asked whether, when 2/3 of a room’s occupants are smokers, that that constitutes a
moderate amount of smoking, he stated that he did not think so. He rejected the suggestion that
ASHRAE’s standard for a smoking lounge is 525 ppm of CO. He stated that if there is a large
2
amount of smoking, CO is not a relevant indicator, and it is necessary to increase the amount of
2
fresh air entering the room. He then said that it is improper to use CO as an indicator of the
2
presence of ETS, as it is also an indicator of bio-effluents or other sources.
Mr. Piersol expressed the view that it was unlikely that the exposures to ETS would be
maintained at the levels sampled on June 2 and 9, 1993, for several years. The measurements
taken over those 6 hours were typical of the highest level of smoking and on one day, were taken
at the minimum ventilation level. These conditions would not prevail for several years, he said.
The conditions in the staff rooms represented short-term maximum levels of RSPs. With respect
to Dr. Walkinshaw’s recommendation to increase the ventilation rate, he reiterated that it would
be impossible to interpret long-term implications from the Ministry of Labour’s data. He
3
acknowledged, however, that the RSP levels in the dayrooms exceeded .08 mg/m.
Supt. Fajertag subsequently testified that the fresh air intake setting was normally at 30%,
and that the air sampling which had been taken when the rate of fresh air intake was at 30% (June
9, 1993) was more representative of normal conditions at the Centre. He agreed that the samples
taken when the rate of fresh air intake was at 70% (June 2, 1993) were not representative of the
conditions at the jail.
Dr. Walkinshaw said that activated smoke detectors turned the air handling units (AHUs)
off, and that he attributed the spikes in Figures 13 and 14 in his report (Ex. 1, Tab 1, pp. 29-30)
indicating increases in CO concentration on June 7-8, June 12 and June 14 to those incidents.
2
20
He did not dispute that the smoke detectors could have been activated by inmates blowing smoke
on the detectors for amusement, such that it would be difficult to conclude that on each occasion
that the AHU was turned off by activated smoke detectors, the cause was excessive smoking.
Dr. Walkinshaw advised that the Detention Centre is a pressurized building, causing air
to be pushed outside through cracks, and that in winter, humid air will condense in those cracks.
He advised that other environmental problems may exist at the Centre which neither he nor the
Ministry of Labour were asked to address. At p. 10 of his report (Ex. 1, Tab 1) he stated that
excessive rather than insufficient humidity may be a problem and raised the possibility that a dry
sensation could in part result from the presence of environmental contaminants including RSP
and volatile organic compounds, rather than low humidity per se. He recommended keeping the
building slightly depressurized, as warm air leaving it in winter can cause moisture and mildew
problems. He stated that the total flow of air was insufficient, that contaminants such as tobacco
smoke and cooking vapour would not necessarily go out the exhaust, that the tackified filters
were not removing the RSP. However, he noted that even with better filters, e.g. HEPA or
sorbent filter, which have not yet been developed, the gases as opposed to the particulate matter
in environmental tobacco smoke would not be removed. He recommended that doors be
adjusted to close automatically, in order to limit the flow of air from areas where smoking
occurs.
With respect to Dr. Walkinshaw’s observation #9 (Ex. 1, Tab 1, p.16)
Dew points measured in these and earlier tests on occasion exceeded upper limits
beyond which condensation problems might occur (above 17 [degrees] C in
summer and 10 [degrees] C in winter). The condensation concern is worsened by
the fact that the building was being pressurized by the pod AHUs.
Mr. Piersol said that he did not believe Dr. Walkinshaw could take the data and form the
conclusion he did. He said that 70% RH above 10 Pascals presents a condensation problem, but
that Dr. Walkinshaw took measures of less than 10 Pascals.
3
Dr. Walkinshaw advised that reading #20 of .04 mg/m for RSP at 4:30 p.m. on June 2,
1993, in Table 3C in the Ministry of Labour’s report (Ex. 1, Tab 2), designated “Mechanical
Room” had been taken on the roof, rather than on the first floor, on the same level as the
woodworking shop, as suggested by employer counsel. He advised that the Mechanical Room is
21
th
located behind the air intake louvres of the AHU on the 6 level. Ex. 10, a series of diagrams of
the layout of the Centre at various levels, provided by Mr. Jongerden, does not specifically
identify a “Mechanical Room”. Mr. Jongerden advised that there is a “Mechanical Room” on the
first level of the Centre, not marked on his diagrams, which, he advised, brings fresh air to the
kitchen. He did not indicate its location. He advised that the three “Fan Rooms” atop Pods A, B
and C at pages 5 and 6 of Ex. 10, were also known as Mechanical Rooms. As the Ministry of
Labour’s technologist did not testify, the actual location of Reading #20 was not confirmed in
evidence.
Dr. Walkinshaw did not disagree with the suggestion that the Ministry of Labour took no
outdoor readings for RSPs, and indicated that such readings should have been taken. He stated
th
that there was a good probability that outdoor air was leaking into the 6 floor Mechanical
Room. He also stated, however, that if RSP from ETS is present in a particular space in the
building, it will be much higher in a space where smoking occurs, and that this was reflected in
the Ministry of Labour’s Tables 3 and 6 for June 2 and 9, 1993, particularly for certain dayrooms
and the kitchen. If the RSP levels had been high throughout the building, it would be logical to
look to sources other than ETS (possibly outside the building), but that the RSP levels had not
been high throughout the building.
Dr. Walkinshaw maintained that the level of exposure of staff to ETS would vary,
depending on his/her location and the amount of smoking which was occurring or had occurred
and the time of day, and again pointed out that Health and Welfare Canada recommends no
exposure to ETS due to the presence of carcinogens in sidestream smoke.
In the course of Dr. Walkinshaw’s evidence, he corrected an error at page 6 of his report
(Ex. 1, Tab 1) and said that the remark “The supply and return grills in the cells were welded
shut” should have been “welded in place”, and that he was pointing out a problem with cleaning
the grills and ducts. We do not find that this error indicates any lack of comprehension on Dr.
Walkinshaw’s part as to the air exhaust and supply to the cells, nor do we find that it undermines
his observations and recommendations.
Dr. Walkinshaw was of the view that the Centre’s air quality and quantity was not
adequate for the proper needs of normal healthy employees. Mr. Piersol expressed the view that
22
Dr. Walkinshaw, in making some calculations based on the Ministry of Labour’s data, in relation
to ventilation rates, nicotine and RSP levels, was “pushing the data” and manipulating it to
support his conclusions. Mr. Piersol did not specify which data or conclusions he was referring
to in expressing this view.
Mr. Piersol was asked to tell this panel how he determined whether air quality was
unsafe, and whether it was sufficient to look at the levels of contaminants. He advised that you
monitor air quality to see the impact on individuals. You measure what that person is going to be
breathing. You consider whether what you measure is short-term or long-term and what the
individual will be exposed to over the long term. He agreed that the frequency of the exposure of
the individual to contaminants is a relevant criterion in determining the safety of the air quality.
He said that if an individual moves around in the workplace, you must consider the levels that
they experience in various locales, e.g. home, work, etc., over weeks and months. He said that
the air quality is fine in the staff areas and is “poor” in the inmate areas, especially when they are
smoking. When asked whether the frequency of staff exposure to the inmate area is relevant, he
replied that it is desirable to minimize the amount of time staff are in the inmate day areas when
inmates are smoking.
In cross-examination, Mr. Piersol acknowledged that in his report (Ex. 9, p. 4), he stated
that RSP “measurements indicate levels in the dayrooms and kitchen smoking area were above
3
the recommended ETS marker limit of .15 mg/m”. He said that there is probably a level of
exposure to ETS for normal individuals which will have no adverse impact, but that he was not
3
sure what that level is. He acknowledged that .15 mg/ m is the World Health Organization
Concentration of Concern for short-term exposure to passive smoke, and that he would accept
that standard.
Mr. Piersol later acknowledged that he had not noted the number of inmates in the
Centre, and did not dispute that the inmate population had been 450 in 1989. He said that he
understood that 85 - 90% of the inmates were smokers. He said that he expected RSP levels
would drop off after Wednesday. He said that he was not aware and could not dispute that
weekend inmates were permitted to bring cigarettes into the Centre with them, and that he had
23
assumed that cigarettes were supplied only once a week. He said that he was not familiar with
the fact that ETS contains substances to which any exposure should be avoided.
Mr. Jongerden, when asked to describe the air quality at the Centre generally, said that he
did not suffer any adverse effects from the air quality in the building. He later agreed in cross-
examination that because of the duct cleaning and reconfiguration of the air vents in the cells, the
air quality was better in the Centre after August, 1989, when the grievor was last there, than
when he was there. In re-examination, he agreed that he had no way of knowing whether the air
quality in the building was better after the grievor left, and that he had assumed that the air
quality had improved.
Dr. Chong testified that he had seen the reports of the Ministry of Labour and Dr.
Walkinshaw, and that based on those two reports, his medical advice to the grievor was that he
not return to the indoor air environment of the Hamilton-Wentworth Detention Centre. He
advised that he had expressed his opinion in a letter to Mr. Ryder, the grievor’s lawyer, dated
April 5, 1994 (Ex. 1, Tab 3), that the Centre did not have “adequate air quality for the proper
needs of normal healthy employees”. In his letter Dr. Chong quoted the Ministry of Labour’s
report at p. 8
There is good medical and scientific evidence that there is likely a health hazard
due to exposure to ETS and employees with certain medical problems are more
susceptible. The extent of the hazard is dependent on the dose and although this is
difficult to quantify, there is a definite exposure to ETS in the dayrooms and kitchen
smoking area investigated.
and Dr. Walkinshaw’s conclusions at p. 15 of his report, that “draw attention to the short term
exposure hazards of environmental tobacco smoke”. He quoted from p. 15 of Dr. Walkinshaw’s
report
Furthermore if the exposures in most day and many staff rooms were to be continued for
several years there could be increased prevalence of respiratory disease in exposed normal
individuals
He also drew attention in his letter to Dr. Walkinshaw’s observation that levels of tobacco smoke
were so high … that they periodically triggered smoke alarms. When it was brought to Dr.
Chong’s attention that the smoke alarms could have been triggered by high humidity, by inmates
deliberately blowing smoke into them, or by low batteries, he advised that he was relying on the
24
data as to the presence of tobacco smoke in the environment, rather than on the triggering of
smoke alarms, in giving his opinion as to the adequacy of the air quality and quantity. He agreed
in cross-examination that when he expressed his opinion in 1994 to Mr. Ryder, he had not
contacted the employer or medical professionals at the Centre regarding the problems with air
quality e.g. the Chief Medical Examiner handling Correctional Facilities.
The Probability of the Grievor Having Successfully Returned to Work After Dismissal
Dr. Chong said that if the air quality had been adequate he would have contemplated only
a trial return to work, in order to evaluate Mr. Gibson’s ability to carry out his occupational tasks
and maintain an attendance record. Mr. Gibson has been Dr. Chong’s patient since 1983. Dr.
Chong said that Mr. Gibson had been functioning reasonably well in domestic and leisure
activities, but continued to have moderate back pain. When asked whether the grievor’s back
pain would have prevented his return to work, Dr. Chong stated that it “would have been a
question”, and that given that the grievor has chronic back pain, it would be difficult for him to
estimate the probability of the grievor maintaining a “decent” attendance record, if the air quality
had been adequate.
He advised that the data upon which physicians draw to estimate such probabilities is
based on the experience of groups of individuals in this predicament. Employees out of the
workplace for less than six months have a 50-50 probability of a successful return to work. The
probability of success on their return to work of employees who have been absent from the
workplace for more than two years is 5 - 20 %. He said that he saw the grievor to assess the
factors preventing his return to work.
Dr. Chong advised that the grievor’s medical conditions include dermatitis, chronic back
pain, problems with mood, difficulty carrying on a normal domestic and leisure life, and anger
concerning this case, administrative problems with his pension and his Workers’ Compensation
claim. Bearing those issues in mind, the basis of his work with the grievor was to improve his
chances of success to a 50 - 50 probability. He said that there was a 50 - 50 chance of success of
raising the probability of the grievor maintaining an acceptable attendance record.
25
Asked what, if everything except the grievor’s back problems were eliminated, the
probability was of the grievor maintaining a reasonable attendance record, Dr. Chong advised
that it was “probably 50 - 50”. When asked whether, all other things being equal, the grievor’s
back problem would have resulted in the grievor being on LTIP in any case, he said that the
probability of him having been on LTIP for his back problem was “50 - 50”. In view of the
grievor’s back pain, he said, he would have had to put physical restrictions on his bending,
twisting and lifting. He said that he had a higher success rate than 50 - 50 using such restrictions
on movement with performing artists and musicians, but that he had not had that higher success
rate with employees in the grievor’s occupation.
Dr. Chong reviewed his evidence at p. 8 of the Wilson decision and advised that when he
described the grievor as hyper-susceptible, he meant that the grievor was extra-susceptible in an
environment with environmental tobacco smoke and other irritants, such as sulphuric acid. He
advised that in using the term hyper-susceptible in his letter to Mr. Ryder dated Apr. 25, 1990
(Wilson Ex. 18), he advised that he stated that the grievor falls into the category of “an individual
who has suffered from the ill effects of the polluted work environment which is being corrected”.
Dr. Chong reiterated that the grievor has multiple health concerns and that one issue is
environmental sensitivity. However, he said, it could not be said that environ-mental tobacco
smoke caused him to be on LTIP, in view of his skin problems and back and neck problems. In
the Attending Physician’s Initial LTD Benefits Statement (Ex. 2, p.5) dated April 17, 1991 he
had stated that his diagnoses were:
1. Multiple Chemical Sensitivity/Sick Building Syndrome secondary to Volatile Organic
Compound Exposure
2. Chronic Pain Syndrome in low back, neck and shoulder.
Under “Objective Findings” he had entered “pneumonia, 1990”. Under “Type of Treatment” he
had written:
1. Cessation of Chemical Exposure/Poor Indoor Air
2. Exercise and Physical Therapy, for low back pain.
When asked whether the grievor’s low back pain was “a major problem” he replied that the
grievor was able to come to and return home from the clinic, and able to do the exer-cises. Dr.
26
Chong said that he was not aware of environmental tobacco smoke in the Centre when he
prepared the LTD Benefits Statement in April, 1991, that he only had the Acres report (Wilson,
Ex. 4) which did not have information regarding respirable particulates. He said that he
suspected environmental tobacco smoke in 1991 and was concerned with the air quality in the
Centre. He pointed out his reference to “volatile organic compounds” and said that in 1991,
sulphuric acid and CO did not explain Mr. Gibson’s multiple respiratory problems. He said that
2
he clearly saw environmental tobacco smoke as an element when he wrote to Mr. Ryder on Apr.
5, 1994 (Ex. 1, Tab 3). He said that environmental tobacco smoke explains a major portion of
the grievor’s respiratory problems and difficulty in carrying out occupational tasks in the indoor
environment of the Centre.
Under “Effect of Physical or Mental Impairment on Duties of Job. Please explain the
extent to which the patient’s illness or injury effects his or her capacity to (a) perform his or her
regular duties” (Ex. 2, p. 6) Dr. Chong wrote “Sensitivity to chemical exposure—airways
limitation”. Under “(b) perform any other occupation compatible with the insured’s condition”
Dr. Chong wrote “similar problems elsewhere”. Under (c) “If physical impairment involved: (i)
Patient’s regular Occupation he wrote “chronic Pain limits repetitive or forceful movement +/-
postures”. His prognosis in April, 1991, was that the grievor’s disability prevented him from
performing his regular and any other occupation, and that he was “never” able to perform duties
of either his regular or other occupation. He indicated on the form that the grievor was not a
suitable candidate for trial employment for his regular or any occupation and that the total
disability commenced August 22, 1989.
Notwithstanding the entries on the LTIP application form, Dr. Chong stated in evidence
in 1995 that if the grievor was placed in a different job in another workplace, he would not have
had the same problems. He did not testify regarding the afore-mentioned entries, which were
made in 1991.
Dr. Chong agreed in cross-examination that the grievor was dismissed on October 18,
1989, and that as of the date of the Wilson decision, December 28, 1990, his statistics indicated
that in general, employees off work for that long have only a 20% probability of being able to
return to work successfully, and that as of the date of the testing, in June, 1993, the statistics
27
indicated that an employee off work for that period of time have as low as a 5% probability of
being able to return to work successfully.
The Grievor’s Locations While Working at the Centre
Mr. Jongerden advised that the grievor would not have had to work in the inmate
smoking room off the kitchen, but would have had to work in the kitchen, from 5 minutes to one
hour, “typically”, but “not very often”. The grievor would do repairs in the inmate units. He
would also fill in for the Stationery Engineer and check the fan rooms on Level 6 to see if the air
filters needed to be advanced, removed or replaced. The grievor did not “to my knowledge” have
to do any welding.
When asked how many hours a Maintenance Mechanic 3 (MM3) would have to work in
inmate living areas, Mr. Jongerden replied “in one day? 8 hours”. When asked in cross-
examination whether an MM3 would work in inmate living areas one out of 5 days, he replied
“approximately”. Mr. Jongerden said that he would not work an entire day in inmate living
areas, and agreed that he only spent 20% of his time in those areas, “approximately”. He said
that an MM3 would be required to do “some” exterior work.
Subsequent to the foregoing testimony, Mr. Jongerden advised that he understood that the
Ministry of Labour and Dr. Walkinshaw had taken random samples around the building where
the grievor would have been at one stage or another. He said that the samples were a good
representation of the air to which the grievor would have been exposed, as he “had access
throughout the building to do his maintenance”.
The Grievor’s Claim
The grievor advised that he was initially dismissed on June 7, 1984, and reinstated by the
Consent Order issued by the Roberts panel on October 16, 1987. In cross-examination he
advised that he received no compensation after reinstatement by the 1987 Consent Order, and
that he was not claiming back to that period. He began receiving short term sick benefits (75%
of his salary) in August of 1989, after the ducts were cleaned, was dismissed on October 20,
1989, after which he received 13 weeks of Unemployment Insurance sick benefits and then
regular Unemployment Insurance benefits. He said that he applied for Workers’ Compensation
28
Benefits after October 20, 1989, while on sick benefits. His grievance from the dismissal was
allowed on December 28, 1990. He was on welfare in early 1991. He applied for LTIP in
March, 1991, and it was granted retroactively from October 20 or 25, 1990 to January 31, 1994
when he reached the age of retirement. He has received a public service pension since January
31, 1994, the level of which has been diminished by his dismissal on October 20, 1989. The
level of his Canada Pension Plan retirement benefits has also been diminished by the October 20,
1989 dismissal, as he was compelled to apply for “sick benefits” under the Canada Pension Plan
as a precondition to receiving LTIP, and while in receipt of the CPP sick benefits, he was unable
to contribute to the Canada Pension Plan. In cross-examination he advised that Health and
Welfare had advised him he was receiving $91.00 per month less than the amount he would have
received if he had not been dismissed (Ex. 7). As well, the amount of severance pay he received
on retirement was diminished by the October 20, 1989 dismissal.
Prior to October, 1989, he co-signed an $80,000.00 chattel mortgage or line of credit in
his wife’s name at an interest rate of 1% above prime. In cross-examination he advised that the
loan was for the purchase of central air conditioning, a furnace, and an electric air cleaner, plus
$6 - 7,000.00 to prepare rooms in his home for rental, and $2-3,000.00 for kitchen cabinets. At
about October 20, 1989, the loan was at $34,728.04 (Ex. 5 - Statement dated September 19,
1989).
On the following dates, his line of credit levels were:
19 Dec 89$55,625.21
Dec 90$64,959.47
Dec 91$42,490.14
Dec 92$50,910.02
Dec 93$55,732.62
Dec 94$48,115.66
Aug 95$39,871.72
His interest payments from November 1989 to September 94 were $25,555.26, including the
$34,728.04 owing as of October 20, 1989. He submitted a series of handwritten figures and
calculations on August 17, 1995 to support his statements, which claimed interest payments
payments to September 17, 1995 (Ex. 6). It contains handwritten lists of monthly interest on a
“variable interest demand loan” from November 21, 1989 to December, 1995. Mr. Ryder
29
advised that the grievor’s claim was for $11,000.00, the cost of carrying the difference of the
loan, plus interest on the debt. If the debt due to the dismissal is 30% of the total debt, we claim
30% of the cost of the debt. He invited the panel to take the grievor’s average debt before and
after dismissal.
In cross-examination the grievor denied that he was receiving a long-term disability
pension from Workers’ Compensation Board. Mr. Ryder stipulated that any income the grievor
receives from Workers’ Compensation Board will be included in the calculation of compensation
due.
The grievor said he currently receives Canada Pension Plan retirement benefit, Old Age
Security benefit, and an Ontario Public Service Pension.
A letter dated November 5, 1992 from Kurt Arndt, Supervisor, Field Services, Hamilton
Client Service Centre, Health and Welfare Canada, Income Security Programs (Ex. 7) was filed
in support of the grievor’s evidence regarding reduction of his C.P.P. entitlements. In addition,
Tabs 8, 9 and 10 of the Union’s Book of Authorities (UBA) were filed on May 4, 1998 in support
of the grievor’s claim for damages. It was not in dispute that while the grievor had been
working, a Custodial Responsibility Allowance (C.R.A.) was included in his remuneration. Ms.
Nikolich advised the panel on August 17, 1995 that the employer accepted that the grievor’s
Canada Pension Plan benefits were not deducted from his LTIP benefits.
Mr. Ryder calculated that the grievor’s loss of salary and C.R.A. from the date of
dismissal, October 20, 1989 to the date of retirement, January 31, 1994, totalled $163,075.00
(UBA, Tab 8, App. A). Mr. Kapur, representing the employer on May 4, 1998, did not dispute
that calculation of the loss of salary. From $163,075.00 Mr. Ryder deducted the LTIP benefits
the grievor received from 1991 to 1994, $49,850.00, supported by the grievor’s T4A forms from
1991 to 1994, and deducted $26,115.58, which represented the amount of C.P.P. disability
benefits the grievor received from 1991 to 1994, supported by the grievor’s T4A(P) forms for
1991 to 1994 (UBA, Tab 9). Thereafter, he claimed and calculated interest on the balance, based
on the Hallowell House formula, an income tax adjustment under Grinius 1495/89 (UBA, Tab
4), and an adjustment to the grievor’s OPS pension and C.P.P. to the level he would have
received had he worked at full wages from October 20, 1989 until January 31, 1994, or a one-
time payment to reflect this loss.
30
Argument for the Grievor:
Since the Wilson panel made its decision in 1990, there has been no agreement and no
finding as to air quality at the Centre, and no finding as to the relative responsibility of the
employer for the grievor’s absence from his employment. As a result, the grievor has borne his
entire costs since then, without relief. The Wilson panel held that the October 20, 1989 dismissal
was unjust. It expressed that there was a real possibility that the grievor’s attendance was caused
by inadequate air quality; it expressed doubt as to the air quality, but did not know the nature of
the air quality.
Ordinarily, unjust dismissal results in reinstatement i.e. return to work. The Wilson
Order addressed whether or not the grievor should return to work; this panel should examine the
criteria to be used in determining the balance of the remedy for the grievor in the December 28,
1990 Decision.
This panel stepped into the position of the Wilson panel. It has no independent
jurisdiction; there is no new grievance before it. This panel’s role is to implement the Wilson
panel Order at p. 25 of the December 28, 1990 Decision. It directs testing to determine air
quality and requires the parties to agree on testing procedures. Failing agreement, the Board
remains seised. The employer’s testing was carried out by the Ministry of Labour; the Union’s
testing was carried out by Dr. Walkinshaw. If disagreement or dispute arose regarding dates or
locations for air sampling, the time to raise those dispute was back then, not now. Once the
parties proceeded into testing or reports, it was too late for either party to contest the testing. The
Wilson panel did not contemplate repeated testing; it short-circuited that possibility by requiring
the parties to agree to dates and locations of air sampling. The Wilson panel required the
certification of Dr. Chong (para. 2, p. 25). Dr. Chong’s view was that the grievor was not fit to
return to work. The evidence did not disclose that the Ministry thought he should return to work.
The Wilson panel provided no procedure to return the grievor to work if the air quality was
inadequate. Conditions 2, 4 and 5 of page 25 of the Wilson decision show that the Wilson panel
did not contemplate the grievor returning to work if the air quality was found to be inadequate.
Pages 23 to 24 show that the employer bears the responsibility to provide adequate air quality; if
not, it is responsible for the employee’s damages. This panel is functioning under that Order.
31
Dr. Walkinshaw’s report described the results of the testing at p. 15. His conclusions, 1
to 9, are consistent only with the conclusion that the air quality is inadequate, that it did not meet
the standards of acceptable quality for long-term exposure of the World Health Organization,
Health and Welfare Canada, ASHRAE, and the U.S. Surgeon-General. The Ministry of Labour’s
report reaches a similar conclusion at p. 8:
There is good medical and scientific evidence that there is likely a health hazard
due to exposure to ETS and employees with certain medical problems are more
susceptible. The extent of the hazard is dependent on the dose and although this
is difficult to quantify, there is a definite exposure to ETS in the dayrooms and
kitchen smoking area investigated.
Although Ms. Wilks testified only on condition that she not be asked to give an opinion, and she
did not give an oral opinion, the report gives one.
The reports of the Ministry of Labour and Dr. Walkinshaw answered the Wilson panel’s
first questions. This panel should find the conclusions of the Ministry of Labour and Dr.
Walkinshaw a reliable response to the first question for a number of reasons. Both measured the
adequacy of the air quality and quantity by standards generally recognized by the World Health
Organization, Health & Welfare Canada, ASHRAE, and the Environmental Protection Agency.
Dr. Walkinshaw advised that standards of air quality became higher as a link between ETS and
cancer was established, as a result of which 1984 standards were lower than they are currently.
The appropriateness of reliance on such standards is established in the Sault Ste. Marie Jail case
(UBA, Tab 2) at p. 7
It has frequently been the practice of Occupational Health and Safety inspectors
and adjudicators under the Act to look for standards set by credible outside
organizations where regulations have not been promulgated under the Act. That
makes good sense - industry standards may be a useful source of information
about what constitutes reasonable precautions for the protection of workers in a
given set of circumstances.
Testing was carried out in two areas, the first pertaining to the quantity of air or
ventilation rate, the second pertaining to the quality of air, which was measured by RSPs.
Air quality was measured properly. Where ETS is suspected, the first step is to ascertain
whether it exists and whether the RSP contains it. The sample will not disclose the components
of ETS, so you test for nicotine. Exposure to nicotine is not dangerous in and of itself, but its
presence indicates the presence of ETS, i.e. nicotine is a marker of ETS. The health concerns
32
resulting from the presence of RSP differ, depending upon whether the RSP contains ETS. ETS
contains over 4,000 substances, over 30 of which are carcinogens and are prohibited under the
Occupational Health and Safety Act. They can lead to respiratory disease and cancer. In the
grievor’s case, it was respiratory disease.
The conclusions regarding ETS in the Walkinshaw and Ministry of Labour studies are
reliable. The results were measured against three different standards, the World Health
Organization standard, the Health and Welfare Canada standard and the ASHRAE standard. The
Walkinshaw report sets out at p. 13 the World Health Organization standard (or concentration of
3
concern) for RSP from passive smoking, of 0.15 mg/m. He found the June 9, 1993 average
readings for the dayrooms, and one Staff Station, though not the June 2, 1993, exceeded this
standard.
The Health and Welfare Canada standard, at p. 10, (Ex. 1, Tab 4) concludes that some
level of exposure to RSP is acceptable, but where ETS is found to be present in RSP, it
recommended, at p. 15, no exposure. The Ministry of Labour relied on the World Health
Organization standard, which is the oldest and most relaxed standard.
Dr. Walkinshaw approached this in the most appropriate method, by reference to
ventilation rates. He cited the ASHRAE standards, the number of parts per million of CO as
2
one way of measuring the adequacy of ventilation, or cubic feet per metre of air flow. The
standard varies, depending upon whether you are dealing with a smoking lounge or not.
“Smoking lounge” is a term used by ASHRAE, which defines it as a place where 2/3 of the
occupants smoke. If only 1/3 of the occupants smoke, the ventilation is acceptable with up to
1000 ppm. However, where 2/3 of the occupants smoke, Dr. Walkinshaw advised that the
ceiling is 525 ppm. Concentrations of CO in excess of 525 ppm indicate that the air quality is
2
inadequate.
The panel should feel safe accepting the conclusions of the Ministry of Labour and Dr.
Walkinshaw, for a number of reasons. Although the Ministry of Labour used the wrong
ASHRAE Standard for CO, i.e. 1000 ppm, in a smoking lounge situation, both Mr. Piersol and
2
Dr. Walkinshaw agreed that the ppm approach was a correct approach to measuring adequacy of
ventilation, and they agreed that the level of ppm of CO depends on the amount of ETS in the
2
area being sampled. This supports the use of ASHRAE Standards of 1000 ppm and 525 ppm. If
33
the Ministry of Labour had used the correct standard, i.e. 525 ppm, its conclusion would have
been stronger than it was. Another reason which confirms the reliability of the Ministry’s and
Dr. Walkinshaw’s conclusions is that the air samples were taken when the ventilation system was
at two settings, 30% and 70%. However, the 70% air intake only occurred during the testing.
Supt. Fajertag recommended the intake be increased from 30% to 50%. The panel can conclude
that the air intake when Mr. Gibson was there was at a 30% setting and that the results at the
70% setting understate the poor quality of the air. The most reliable results for the purposes of
this panel are the ones obtained when the air intake setting was at 30%. Dr. Walkinshaw’s report
at p. 10 indicates that on June 9, 1993 the dampers were set at the minimum air intake. So the
June 9, 1993 results were those most typical of the air quality at the Centre. Dr. Walkinshaw’s
report, at p. 15, Conclusion 2, states “It appears that levels of tobacco smoke were so high during
the period of data logging, June 2 - 17, 1993, that they periodically triggered smoke alarms.”
Conclusion 4 states
Increasing the mechanical ventilation rate by opening dampers to maximum from
minimum settings generally halved carbon dioxide indoor/outdoor concentration
differences, and reduced respirable suspended particulate and nicotine
concentrations on average by 34% and 63% respectively, in staff stations. Even at
the higher ventilation rate, respirable suspended particulate exposures were
elevated in some staff rooms beyond the Health and Welfare Canada-identified
3
hazardous long term exposure level of 0.08 mg/m.
Some of Dr. Chong’s evidence pertained to a statistical matter; however, his evidence
supports the Union’s position. Management took steps to improve the air quality after it received
the Ministry of Labour report (see Ex. 11). All the measures described in Ex. 11 occurred after
the grievor’s dismissal in October of 1989. By its conduct it has acknowledged the inadequacy
of the air, based on a report which understated the problems with the air quality.
The ventilation system, in a mechanical sense, could not have possibly met the required
test of adequacy. It was designed for 220 inmates, not the 456 which were incarcerated in the
Centre in 1989. It was not designed for heavy smoking, but for no recirculation, and for direct
exhaust of smoke to the outside. The original design had windows that would open and allow
smoke to be forced out; however, the windows were subsequently sealed. The Acres report for
the Ministry of Government Services (Wilson panel, Ex. 4) stated that the air quality system had
deteriorated since installation, as a result of increased inmate population, heavy smoking, the fact
34
that the system is not designed for smoking, and has sealed windows. It was impossible to have
acceptable air quality under those circumstances.
The Wilson December 28, 1990 order required joint testing. This was carried out. Some
areas of the Centre passed the test; most did not, particularly on June 9, 1993. The air quality
and quantity was inadequate. The panel should implement the order on the basis that the air
quality and quantity was inadequate, i.e. para. 4 of the order applies.
The joint testing confirmed the unjustness of the grievor’s dismissal in 1989. It probably
explains his attendance problem in 1983. Where a dismissal has been found to be unjust, the
burden falls on the employer. The employer escaped this in 1983. This should not occur in
1989.
As a remedy, the grievor should be put in the position he would have been in but for the
October 20, 1989 dismissal. If the air quality had been adequate, he would have been able to
work until retirement. Dr. Chong addressed the possibility that even if the grievor had worked
after August, 1989, another intervening factor, e.g. his back, might have prevented him from
working to retirement, and might have put him on LTIP. However, that is true of all reinstated
employees, and should not deprive the grievor of a remedy.
The act of dismissal severs the employee from the workplace and diminishes his chances
of continuing in employment. The grievor should not be responsible for the consequences of his
dismissal, which this board found was unjust. The grievor had a reasonable chance of working to
retirement if the air quality had been adequate. To deprive him of the full benefit of the normal
remedy for unjust dismissal of an employee would be particularly unfair. The grievor was an
older employee. He lost self-esteem as a result of the dismissal; it clearly hit him hard. He had
suffered an earlier loss of employment without compensation, which would later affect his
retirement and CPP benefits. The stress affected his family. What occurred to him constituted
economic jeopardy for someone approaching retirement; happiness and economic security go
hand in hand at that age.
The grievor’s claim is at UBA, Tab 7. The Board has accepted the principle in Grinius,
supra. The application for Judicial Review which followed the decision was abandoned. If the
grievor received $144,793.13 in any tax year, he would be in the top rate of tax percentile.
35
The grievor’s deprivation of money for his mortgage is compensated for by the claim of
interest on salary not paid. As it would be duplication, that claim is not being pursued. The
grievor does not agree.
In order for the parties to determine the amount the employer should be required to pay
pursuant to Grinius, the Union asks the board to determine the loss and remain seised, not only
with respect to tax consequences, but also, as para. 8 of the claim (UBA Tab 7) asks for an
adjustment to the grievor’s pension benefits, to remain seised of that matter as well.
Mr. Gibson undertakes to repay benefits and unemployment insurance received before
LTIP coverage. That obligation is understood.
The outstanding Workers’ Compensation claim is before WCAT and I do not believe it
has been determined. Damages for unjust dismissal should take precedence over that. WCAT
can take over from there. Mr. Kapur is involved with WCAT, so there will be no duplication.
Argument for the Employer:
The employer agrees that the starting point is to determine whether the Hamilton-
Wentworth Detention Centre had adequate air quality and quantity. The panel should examine
the following line in the Ministry of Labour report (Ex. 1, Tab 2) at p. 2, para. 2 under the
heading “General”:
The typical range of fresh outdoor air in the makeup air supply is 30 - 50% as a
minimum and 70% as a maximum.
There is no 30% setting. It’s pneumatically controlled, 30% to 70%, and depends on the
humidity. See Mr. Jongerden’s evidence.
The Ministry of Labour and Mr. Jongerden say that the air from the inmate living areas
and kitchen smoking area is exhausted outside and is not recirculated.
See the line at p. 3 of the Ministry of Labour report (Ex. 1, Tab 2) “In consultation with
both management and workers it was decided that air sampling be performed on Wednesday
36
afternoons and evenings in order to sample under poorest air quality conditions (emphasis
added)”. The union and management agreed to the testing under these conditions. On June 9,
1993, the ventilation rate was fixed at 70% and was not permitted to fluctuate. Those were not
the normal conditions.
The Ministry of Labour measured CO and 3 markers for ETS, CO, RSP and nicotine. It
2
also measured temperature fluctuations and humidity levels. CO was the marker for air supply.
2
ASHRAE and the Ministry of Labour indicate that the standard is 1000 ppm. Contrary to the
union’s submissions, the Ministry of Labour was not testing for management, it was testing for
the government. Health and Safety Inspectors are independent. They have a quasi-judicial
functions and should be seen as neutral and the most reliable source.
Dr. Walkinshaw used a standard of 525 ppm from the ASHRAE guideline (Wilson panel,
Ex. 20, p. 10, Table 2). The smoking lounges line indicates 60 c.f./m per person. Mr. Piersol did
not support Mr. Walkinshaw’s standard. He pointed Mr. Ryder to the note at the bottom of the
table:
Table 2 prescribes supply rates of acceptable outdoor air required for acceptable
indoor air quality. These values have been chosen to control CO and other
2
contaminants within an adequate margin of safety and to account for health
variations among people, varied activity levels, and a moderate amount of
smoking. Rationale for CO control is presented in Appendix D.
2
Dr. Walkinshaw took 60 c.f./m. and converted it only for CO. The 60 c.f./m is to include other
2
contaminants. Consequently, 525 ppm is not the standard. In Table 2, ASHRAE specifically
addressed correctional institutions and prescribed flow rates. Therefore, 525 ppm is not the
standard. The standard is 1000 ppm.
Mr. Jongerden went through the lay-out of the institution using Ex. 10. There are 23
inmate living areas of approximately 800 sq. ft. each, totalling approximately 18, 480 sq. ft.
Sixteen hundred square feet should be deducted from that total, as no smoking is permitted in the
young offenders’ living area. Therefore, smoking is allowed in 16, 880 sq. ft. of the institution.
According to Mr. Jongerden, 162,000 is the institution’s square footage. Therefore, only 10% of
the institution could be defined as a smoking lounge. Therefore, the standard of 525 ppm does
not make sense.
37
Mr. Ryder submitted that 2/3 must smoke to meet the smoking lounge definition. Over
24 hours, if there are 460 inmates in the institution, and Mr. Fajertag says 60 are young offenders
who can’t smoke, there are 400 adult inmates who can smoke. There was no evidence as to how
many smoke. Suppose they all do. Over 24 hours, there are 300 staff on the premises, therefore
there are 700 people in the institution over 24 hours. If all 400 smoke, 400 of 700 does not
constitute 2/3. Therefore, the inmate dayrooms are not smoking lounges. Dr. Walkinshaw did
not address any of those figures, intentionally. Clearly, the standard is 1000 ppm.
The Ministry of Labour’s June 2, 1993 CO measurements were all below 1000 ppm. Its
2
June 9, 1993 CO measurements were all below 1000 ppm except “5A dayroom left, 4A
2
dayrooms left and right, 3A dayrooms left and right and in the kitchen smoking area.” Mr.
Jongerden’s testimony was that each dayroom is about 500 sq. ft. There are 5 dayrooms totalling
4,000 sq. ft. The inmate smoking area in the kitchen is about 80 sq. ft. The total area where the
CO levels were elevated was about 4,080 sq. ft., out of a total of 162,000 sq. ft. for the entire
2
institution. That’s 2.96% or 2.5% of the total institution. Under the worst possible ventilation
conditions, only 2.5% of the institution had CO readings higher than the ASHRAE Standard of
2
1000 ppm. Therefore, the proper conclusion is that the quantity of air in the institution is
sufficient to meet the proper needs of normal healthy employees. A hazardous level of CO
2
would be 5,000 ppm, as referred to in the Ministry of Labour report (Ex. 1, Tab 2, p. 7) in
paragraph 1 under “Advice…”. The employer submits that 1000 ppm is the appropriate
guideline.
The Ministry of Labour used 3 markers of ETS. The first was CO. Page 4 of its report
(Ex. 1, Tab 2) says that all areas were well below the maximum exposure, at less than 2 ppm.
The ASHRAE Standards are 35 ppm. The results did not come anywhere close to that level.
The next marker was RSP. There is no legislated limit for RSP. The Ministry of Labour
3
used 0.15 mg/m. At page 7 of its report, the Ministry distinguishes between inmates and
workers. Workers are at staff stations. Exposure is key. The Wilson award referred to
“adequacy” with regard to the needs of healthy workers. The Ministry’s findings on June 2, 1993
3
were that the staff stations were all below 0.15 mg/m. On June 9, 1993, the poorest possible
conditions, with the air intake at the minimum setting, only one of 20 readings were above 0.15
3
mg/m.
38
The third marker was Nicotine. The typical range of nicotine for work stations in the
3
Ministry of Labour’s report was 0.001 - 0.0138 mg/m. On June 2, 1993, all readings were
within the typical range. On June 9, 1993, when the air intake was at minimum, only two staff
stations were marginally above that range. Even under the poorest possible conditions, the air
quality met industry standards and guidelines.
The exposure of workers to air is key. Mr. Piersol said that the frequency and duration of
exposure are critical in determining whether environment is acceptable. Dr. Walkinshaw does
not address that in his report. The areas tested for workers were staff stations where Corrections
Officers work. The air there met the requirements for healthy individuals. Mr. Jongerden said he
would have even less exposure to those areas. He has to work throughout the institution. The
Maintenance Mechanic has to work throughout the institution. The air quality throughout the
institution definitely meets the needs of healthy individuals.
Dr. Walkinshaw’s report (Ex. 1, Tab 1) was not independent; the Ministry of Labour’s
report was. Dr. Walkinshaw was retained exclusively by the union. He sent a draft to the Union
in 1994 and the employer did not receive it until well into 1995. There were two errors in Dr.
Walkinshaw’s report. He said the ventilation grills in the cells were welded shut. This is clearly
wrong. Mr. Jongerden said the vents had been moved. The old ones were welded shut, but there
was another grill for air intake. He recommended that the institution use HEPA filters. They are
not available. Dr. Walkinshaw acknowledged this in his own testimony. Mr. Jongerden says the
tackified filters are the best. Dr. Walkinshaw’s first conclusion (Ex. 1, Tab 1, p. 15)
While there are no legislated criteria in Ontario for acceptable levels of
environmental tobacco smoke exposure, documents published by the World
Health Organization, Health and Welfare Canada and the United States Surgeon
General indicate that the levels of ETS exposures measured, particularly in day
rooms, represent a short term exposure hazard, especially for those with pre-
existing respiratory disease. Furthermore, a Health and Welfare Canada
publication indicates that if the exposures measured in most day and many staff
rooms were to continue for several years, there could be an increased prevalence
of respiratory disease in exposed normal individuals. This publication also
indicates that there are no safe exposure levels for carcinogenic substances, and
that tobacco smoke contains a number of carcinogens.
does not mention that the June 9, 1993 results were taken under the worst possible situation and
he fails to do the math we just did. He also fails to distinguish between staff and inmates.
39
CO readings were always below the Ministry of Labour Standard. Nicotine readings were
almost always below the standard, except for 2 readings. The RSP was below the standards.
How could he get to the above conclusion if you do the math?
th
With regard to his 4 conclusion
Increasing the mechanical ventilation rate by opening dampers to maximum from
minimum settings generally halved carbon dioxide indoor/outdoor concentration
differences, and reduced respirable suspended particulate and nicotine
concentrations on average by 34% and 63%, respectively, in staff stations. Even
at the higher ventilation rate, respirable suspended particulate exposures were
elevated in some staff rooms beyond the Health and Welfare Canada-identified
3
hazardous long term exposure level of 0.08 mg/m.
the evidence was that all the measures taken were short-term. Dr. Walkinshaw applied an
3
inappropriate long-term standard in his conclusion. The Ministry of Labour used 0.01 mg/m as
3
the standard. That was correct. Dr. Walkinshaw’s report does not mentioned that 0.08 mg/m is
a residential standard which would apply to inmates. It does not relate to staff, who are only
3
present 8 hours per day. The 0.08 mg/m standard is completely irrelevant.
With respect to recommendation #6 “ETS apparently is being recirculated by the three
pod air handling units.”, Dr. Walkinshaw does not know that ETS is being recirculated. Mr.
Jongerden says the air in places where smoking is allowed is exhausted directly to the outside.
Dr. Walkinshaw’s recommendations flow from conclusions which do not flow from the data.
If the board reviews the figures, it will conclude that the air quality and quantity do meet
the needs of healthy employees.
If the air quality is found to be adequate, the next consideration is whether the grievor
could have returned to work. Dr. Chong said he may have contemplated the grievor returning.
His meaning was not made clear. Dr. Chong provided statistics re employees returning to work.
The grievor had at best a 50% chance of a successful return to work. At one year, a 20% chance
at best, after 2 years, 5% at best. Dr. Chong’s statistics were for typical employees. He also said
mood problems and other factors reduce the chances of an employee returning to work
successfully. He was describing the grievor. The grievor had been absent for more than one year
at the time of the Wilson December 28, 1990 Order. The grievor is pursuing a permanent
disability claim at the Workers’ Compensation Board. This is inconsistent with a finding that the
40
grievor could have been fit for work. There is no remedy available to the grievor from this
board.
Consider paragraphs 4 and 5 of the Wilson Order:
(4)If the parties or the Board should determine that the air environment is
inadequate, the Board will on the request of either party resume hearings to
determine an appropriate remedy.
(5) If the Grievor is capable of returning to work and the environment is
adequate, the Board will receive argument as to what compensation the Grievor
is entitled to receive for the unjust dismissal.
If the air quality is found to be inadequate, this board is restricted in the remedies it can give.
Questions of jurisdiction arise. Mr. Ryder says there can be overlap, and that jurisdiction
between WCAT and this board are concurrent. That is not the case. Mr. Gibson is seeking
permanent disability claims as a result of a workplace injury. He has finished his independent
medical and will go back to the Board soon. The Workplace Safety and Insurance Act, 1997,
(WSIA) S.O. 1997, C. 16, Schedule A, as amended, provides that all hearings commenced under
the , (WCA) R.S.O, 1990, c. W.11 as amended, continue under that
Workers’ Compensation Act
Act.
S. 16 of the WCA provides
The Provisions of this Part are in lieu of all rights and rights of action, statutory or
otherwise, to which a worker or the members of his or her family are or may be
entitled against the employer of such worker, or any executive officer thereof, for
or by reason of any accident happening to the worker or any industrial disease
st
contracted by the worker on or after the 1 day of January, 1915, while in the
employment of such employer, and no action lies in respect thereof.
In , 340/89, (Samuels), a case in which a nurse was sexually assaulted during the course of
Lister
her employment, the grievor claimed, at p. 2,
(a) Payment to the Grievor of the difference between what the Grievor would have
received if she had worked for the Employer from October 10, 1988 to May 1,
1989, in effect being the difference between Workers’ Compensation Benefits
actually received and the amount which would have been received from the
Employer.
At p. 5, the Award indicated that the board was of the view that it was constrained from awarding
damages by s. 14 of the WCA, which is currently s. 16. The board stated, at pages 5 and 6:
41
This section says that the compensation scheme provided in the Act is “in lieu of
all rights and rights of actions, statutory or otherwise, to which a worker…..may be
entitled against the employer of such worker……by reason of any accident happening to
him” (emphasis added). Thus, the legislative compensation scheme takes the place of
both rights and rights of action. And this applies to these rights whether they are statutory
or otherwise. (emphasis in original).
Damages are being pursued here. At p. 9, the board states
The grievor claims a right to the remedy of damages under the collective by the
legislative compensation scheme in the Workers’ Compensation Act. This is not like
Gonneau, 227/91 (Teplitsky), where the Board awarded damages for loss to the grievor’s
vehicle. Nor is this case like Welland County General Hospital, where the injury suffered
was not compensable and the claim was for sick benefits not covered by workers’
compensation. Here the grievor is claiming damages for personal injury arising out of a
compensable accident. This is precisely the type of loss for which, pursuant to section 14
of the Workers’ Compensation Act, the legislative scheme has replaced other “rights”,
“statutory or otherwise”. The grievor’s “right” to damages under Article 18.1 of the
collective agreement is encompassed by this language. The collective agreement falls
within the rubric “or otherwise”.
Note the last sentence of this paragraph. And the following passage, pages 9 - 10:
The Union argues that the Grievance Settlement Board and the Workers’
Compensation Board have concurrent jurisdiction here. But this cannot be so in light of
section 14 of the Workers’ Compensation Act. We have to abide by the legislative
structure which is made clear in the legislation. We cannot make an award which would
be contrary to section 14 of the Workers’ Compensation Act. We cannot enforce a “right”
which has been taken away by section 14 of the Act.
The Union argues that “a Claim under the WCA is different from the remedy
requested for the breach of Article 18.1 of the Collective Agreement. The remedy
requested for the breach of the Collective Agreement is one for damages. The WCA
provides for limited compensation for time lost due to personal injury”. But this is an
attempt to draw a distinction which is meaningless in light of section 14 of the
Workers’
. The compensation provided under the Act is “in lieu of all
Compensation Act
rights……statutory or otherwise, to which a worker may be entitled against the employer
of such worker……by reason of any accident happening to him……while in the
employment of such employer”. The claim for damages under Article 18.1 is a right
which the grievor has against the employer by reason of an accident at work. It may be
that, if we were to award damages under Article 18.1, the heads of damage and the
quantification of damages would differ from the way in which the grievor’s compensation
is calculated under the Workers’ Compensation Act. But section 14 is concerned with the
source of the right to damages, not the way in which the damages are calculated. If the
“right” to damages against the employer is “by reason of any accident happening to
him……while in the employment of such employer”, such rights, statutory or otherwise,
have been replaced by the legislative compensation scheme.
42
The grievor is asserting before the WCB that as a result of exposure to various chemicals in the
workplace he became disabled and is seeking full compensation.
In seeking damages, the grievor is pursuing a right against the employer which arises
because of the “accident”. Such a right is replaced by the compensation provided by the
Workers’ Compensation Act. Section 14 of the Act says that the legislative compensation
scheme is “in lieu of” such a right. The grievor is attempting to enforce a “right” which has been
replaced by a statutory scheme of compensation.
In Thomson, 1612/92 (Stewart), the employee alleged that the employer failed to provide
adequate footwear. At p. 2 the claim for damages states
(i) replacement wages for the damages suffered by the Grievor as a result of the
Employer’s breach of the collective agreement, including:
? payment for lost work time to attend medical appointments;
? payment for hours that the Grievor would otherwise have worked, but for her
injury/condition;
? the difference between the amount of any benefits paid by the Workers’
Compensation Board and the amount of pay the Grievor would have received
had she been working regularly and but for the Employer’s breach of the
collective agreement;
(ii) declaration of breach of the collective agreement including, but not limited to, Article
18.1 and Article A;
…
The claim in Thomson was exactly the same as the claim in Lister.
In Rigglesworth, 637/90 (Fisher), the Board took jurisdiction and awarded the grievor
compensation for a work-related injury. Other cases cast doubt on Rigglesworth e.g. Johnston,
1225/91 (Tacon) and , 461/95 (Knopf), which analyzes , and
Fleming Lister Johnston
Rigglesworth. Page 8 and the decision at p. 10 in Fleming, supra,
It is clear that the Workers’ Compensation has decided consistently to date,
despite several appeals by the grievor, that the employer’s insistence on the eight
hour schedule does not offend the Workers’ Compensation Act. It is easy to
understand the employer’s concern that it may face an arbitral ruling requiring
reinstatement to a twelve hour work week which may be inconsistent with the
WCB.
Workers’ Compensation certainly has the exclusive jurisdiction to determine
whether or not there has been compliance with the Workers’ Compensation Act.
Compliance with that Act includes the employers obligation to re-employ an
43
injured worker to a suitable position which does not cause undue hardship to the
employer. According to the Workers’ Compensation Board, the employer has
complied with the Act. However, the employer also has an obligation to comply
with the collective agreement. This collective agreement requires the employer
not to discriminate on the basis of handicap. This latter obligation brings with it
the duty to accommodate someone in the grievor’s position. The question as to
whether there has been a reasonable accommodation in accordance with the
collective agreement is a question that is enforceable and arbitral before the
Grievance Settlement Board. It has jurisdiction to determine whether reasonable
accommodation has been made.
deal with exactly the same matter as here. The WCAT has jurisdiction. It is not a concurrent
jurisdiction. Where WCAT does not have jurisdiction, Art. 18 would give the Grievance
Settlement Board jurisdiction.
The employer submits the employee is not entitled to anything further. After the Wilson
order came down, the employer got the grievor on LTIP. The grievor collected LTIP from the
date of the Wilson order (December 28, 1990) to the date of his retirement. Therefore, he was
fully compensated. In order to give the grievor damages, in the form of the 1/3 of his salary not
covered by LTIP, this board must have jurisdiction beyond WCAT’s jurisdiction. This board
cannot grant him the remedy he seeks.
With respect to the Union’s claim for damages (UBA, Tab 7), October 31, 1989 is the
date of LTIP. Dr. Chong’s evidence supports the grievor’s entitlement to LTIP. The balance
falls to WCAT. The parties are agreed that the grievor did not receive LTIP from October 20,
1989 to October 15, 1990. The grievor is entitled to some compensation for that period. The
employer’s position is that in view of Dr. Chong’s evidence the grievor is not entitled to 100% of
his salary, but is entitled to receive the equivalent of his LTIP benefits, which the employer has
not yet worked out. The board can remain seised in respect of that. The employer further agrees
that he is entitled to interest on that amount under the formula.
Hallowell
The Ministry of Labour report was done in 1993 and the employer did not receive the
Walkinshaw report until 1995. Those two years should be deducted from the interest calculation.
With regard to adjusting the grievor’s OPS pension, the same arguments apply. The
employee has taken the position at WCB of permanent disability. The board has no jurisdiction
to adjust his pension in any case. The same applies to the Canada Pension Plan.
The employer agrees with Grinius, 1495/89 (Fisher), (UBA, Tab 4), if it applies.
44
With respect to the air quality issue, the numbers tell the truth. Do the math. The air
quality was adequate for healthy employees. The Ministry of Labour makes recommendations
as to how the employer can improve the air quality. The Ministry of Labour does not issue
orders. Mr. Ryder’s submissions pertain to prosecutions under the Occupational Health and
Safety Act.
Reply Argument for the Union:
Various judicial reviews of Grievance Settlement Board decisions say that the board’s
jurisdiction to fashion a remedy is unrestricted. The Wilson panel’s order binds you to the
conclusions of the experts. The Wilson panel’s order is basically dependent upon the
conclusions drawn from the joint union-management testing. This panel should make its
conclusion based on the conclusions of the experts, not of counsel for the employer. Paragraph 1
at page 8 of the Ministry of Labour’s report and Dr. Walkinshaw’s report bind this panel.
Many of the complaints as to Dr. Walkinshaw’s conclusions were not put to Dr.
Walkinshaw on cross-examination. He was not challenged on that. He was not cross-examined
on the categorizations and the standards he used. Supt. Fajertag only made his recommendation
where it was in the control of management. All recommendations were within the control of
management.
With respect to the nicotine readings, the employer and the Ministry of Labour still do not
get the point as to the reason for testing for Carbon Monoxide and Nicotine. It’s tested to
determine the presence of environmental tobacco smoke. See page 7 of the ,
Sault Ste. Marie
supra decision:
ETS, now that we have concluded that it may represent a hazard, is clearly a
hazard which has not been the subject of a regulation. Of course, some of the
typical components of ETS are substances for which exposure limits exist under
the regulations. Those exposure limits are not helpful, however. For example, it
is not helpful to conclude that the level of carbon monoxide in a workplace
where ETS is present is below the applicable limits. We are not concerned with
carbon monoxide as carbon monoxide –we are only considered (sic) with it as an
indicator of ETS.
45
Mr. Walkinshaw’s evidence, that whether the nicotine level is above or below the
standard, is persuasive, and is supported by the decision. With respect to Dr.
Sault Ste. Marie
Walkinshaw’s remarks re HEPA filters and grills welded shut, the results of air quality and
quantity in the cells are more important.
If the Ministry has a complaint about the short-term measures, it should have brought
them back to the Wilson board immediately. The protocol was agreed to and it is too late to
challenge those measures.
With respect to Dr. Chong’s statistics, the employer’s unjust dismissal put the grievor
into the position of having been absent from work in excess of one year. The grievor cannot be
held responsible for that.
This panel should not rely on the Workers’ Compensation proceedings, as they have not
been documented before this board. The Ministry has taken the position that the grievor is not
entitled to anything under the WCA. Consequently, s. 16 of the WCA is irrelevant.
There are two lines of cases, and , and . In , the
Lister Thomson Rigglesworth Lister
grievor sought Workers’ Compensation benefits. The employer says that Mr. Gibson is not
entitled to Workers’ Compensation benefits. The panel does not need to choose between
Lister
and Rigglesworth. This panel’s jurisdiction comes under the Wilson order. Its jurisdiction is not
lost, simply because the grievor made a Workers’ Compensation claim, which may have been ill-
advised. The Wilson panel found that there had been a wrongful dismissal.
The suggestion that LTIP is the appropriate remedy, rather than damages, is a way of
avoiding the finding of wrongful dismissal. With respect to the submission that part of the
interest should be denied due to delay in receipt of the Walkinshaw report, the purpose of the
claim of interest is to compensate the grievor for the loss of money he was entitled to, of which
the employer had the benefit, not to punish the union. The union received no notice of the
employer’s intention to dispute the interest claim due to delay. There is no basis to dispute the
interest claim.
Reasons for Decision:
1. Air Quality and Quantity
46
The parties agreed to the dates and locations and contaminants to be sampled. Implicitly,
they agreed that those samples would be representative of the air quality and quantity of the
institution generally for the limited purpose of determining an appropriate remedy for the grievor.
The measurements taken particularly by the Ministry of Labour, were “point-in-time”
measurements, taken during two agreed-upon days, 8 days apart. Dr. Walkinshaw’s samples
were taken over an approximately two-week period. The samples taken did not establish the air
quality and quantity in various places in the institution over the long term, e.g. over a year, under
various weather and outside air conditions, inmate and staff population and other air quality
conditions. Certainly, some of the measurements taken and observations made by the Ministry of
Labour and by Dr. Walkinshaw gave this panel cause for concern as to the air quality and
quantity at the Centre. However, we do not consider it the function of this panel to examine
whether each point in time measure taken at each place in the Centre exceeded the maximum
exposure recommended by ASHRAE, Health and Welfare Canada, the World Health
Organization or the Ministry of Labour (whether the exposure be that established in O.Reg.
833/92 or elsewhere) daily, weekly or annually, or whether long-term maximum exposures to any
or all of them are being exceeded, whether these readings are taken from areas occupied by staff
as opposed to inmates, and whether, individually or as a whole, the readings indicate that the air
quality and quantity in the institution is adequate. We are obliged to take guidance from expert
witnesses in these matters, provided that their evidence has not been discredited. Nevertheless,
we note that the samples taken were preliminary, that the appropriate standards to apply are a
matter of some controversy and differ from one authoritative body to another, depending upon
the contaminant under consideration, and are in some cases expressed and measured differently.
We conclude that much more testing over a lengthier period of even more contaminants, e.g.
formaldehyde and other components of ETS, as well as volatile organic compounds, in all areas
frequented by staff, as well as inmates, particularly all areas adjacent to inmate areas, would be
desirable and more useful to the parties “to determine whether the Hamilton-Wentworth
Detention Centre has adequate air quality and quantity for the proper needs of normal healthy
employees”. We encourage the parties to continue to pursue this issue, in the best interests of the
staff and inmates of the Centre.
47
Clearly, there is a difference of opinion between Dr. Walkinshaw and Mr. Piersol, as to
the “adequacy” of the air quality and quantity. Neither of them defined what they meant by the
term “adequate”. The Oxford Encyclopedic English Dictionary defines “adequate” as
“sufficient; satisfactory (often with the implication of being barely so); barely sufficient”. The
Wilson panel did not define either “adequate” or “the proper needs of normal healthy
employees”. It did not stipulate whether the standard to be applied would be the prevailing legal
standard i.e. legislated or regulated minimum and maximum exposure levels, for which failure to
observe would potentially result in prosecution in Ontario, or the prevailing medical standard.
We do not know whether the level of adequacy of air quality and quantity the Wilson panel had
in mind was one of e.g. sufficiency to enable normal healthy workers to continue to function and
maintain average attendance levels, irrespective of occasional (or frequent) symptoms of
respiratory problems, or e.g. a level of air quality and quantity at which discomfort was indicated
by 20% or more of employees, or whether it was the prevailing medical standard of adequacy, or
any other test of adequacy.
Despite this difficulty, we have the uncontradicted medical opinion of Dr. John Chong, a
recognized expert in the area of air quality and health, supported by the statements in the reports
of the Ministry of Labour (Ex. 1, Tab 2), Health and Welfare Canada (Ex. 1, Tab 4), O./Reg.
833/92, Table 10 (Ex. 1, Tab 5), and other sources, that the Centre does not have adequate air
quality and quantity for the proper needs of normal healthy employees. Dr. Chong’s expert
medical opinions were given substantial weight by the Wilson panel. His opinions in the
proceeding before this panel were not challenged by another expert medical opinion.
Consequently, we see no reason to depart the Wilson panel’s appreciation of his evidence and
opinions.
We recognize that Dr. Chong expressed his opinion of the air quality based on a
conservative medical standard of complete avoidance of environmental tobacco smoke in the
work environment, in the best medical interest of the Centre’s employees, as well as the grievor,
if not the inmates. In our view, this is not a standard that can be imposed upon the Employer for
.
any purpose except this hearing
48
We limit the use of this standard to the purposes of this hearing for the following reasons.
On December 28, 1990, the Wilson panel allowed the grievance against dismissal, “subject to
certain conditions”. The first condition was
The parties are to determine whether the Hamilton-Wentworth Detention Centre
has adequate air quality and quantity for the proper needs of normal healthy
employees. The testing procedures to be carried out to determine whether such is
the case are to be determined by and agreed to by the Employer and the Union
jointly. The Board will remain seised in the eventuality that they are unable to
agree on testing procedures, standards or conclusions.
The parties were unable to agree on the conclusions to be drawn from the testing, and requested
this panel to do so. The purpose of the Wilson panel’s conditions was presumably to determine
whether the air quality and quantity conditions at the Hamilton-Wentworth Detention Centre
were sufficient to enable the grievor to return to work and maintain average attendance thereafter.
If those conditions were not sufficient to enable the grievor to return to work and maintain
average attendance, the parties could then have addressed the possibility that there was another
environment maintained by the Employer in which the grievor could be employed. The delay in
obtaining the air samples and the reports of the until within 7 months of the grievor’s retirement
date rendered the parties’ addressing the possibility of the grievor returning to work almost
impracticable. The purpose of the exercise directed by the Wilson panel was to assist in the
determination of the appropriate remedy for the grievor. It has fallen to this panel to find the
appropriate remedy. It is not this panel’s intention that its conclusion regarding the air quality
and quantity at the Centre, based as it was on very limited testing, be used for any purpose other
than this grievance.
Mr. Piersol may be correct; there may be a level of exposure to environmental tobacco
smoke which constitutes a level of acceptable risk for normal healthy individuals. However, he
could not identify that level of exposure, and it does not appear that any such level has been
established, legally or medically, which could guide this panel.
While great efforts were made, and not unreasonably, to question parts of the Ministry of
Labour and Walkinshaw reports, and to cast doubt on parts of the evidence of Ms. Wilks and Dr.
Walkinshaw, as a whole, we found their reports and their evidence competent and compelling,
49
and a sufficient and reasonable basis upon which Dr. Chong could base his expert medical
opinion.
We recognize and applaud the changes that have been implemented at the Centre after
1989, as described by Supt. Fajertag:
1. The practise of giving inmates 2 bales of tobacco was discontinued.
2. Weekend inmates are not permitted to bring tobacco into the institution.
3. Two-thirds of weekend inmates serve their sentences outside the institution
under supervision, lessening the smoking population.
4. Smoking is not permitted in the common rooms and interview rooms; it is
permitted in the dayrooms, kitchen smoking room and outside exercise areas.
5. Staff may no longer smoke in their offices or at Central Control.
6. Disciplinary action has been taken against inmates and staff who violate the
smoking policy.
as well as the changes implemented since September, 1993:
7. The number of inmates permitted to smoke in the kitchen smoking area at any
one time has been reduced to 4.
8. The percentage of fresh air intake was increased from the regular setting of
30%.
9. The Stationery Engineer was directed to manipulate the system daily to adjust
the humidity to the appropriate level.
10. The Volunteer and Health Care Coordinators were directed to examine
programs toward a healthy life style:
? group seminars were run with staff and inmates
signs were posted
?
? directions were given to staff to control smoking in non-smoking areas
staff were offered smoking cessation programs
?
11. The cigarette vending machine which had been installed in 1991 in
Admission and Discharge has been removed.
12. Smoking was prohibited in Admission and Discharge in 1994.
We also acknowledge his information that the institution’s windows had been sealed because
they were structurally defective; temperature changes caused cracking and breaking, which
created a security problem. One of the windows could be tilted open, from which inmates could
50
lower a fishing line to secure contraband, yet another security problem. Opening and closing the
windows also unbalanced the air ventilation system. We note and applaud his prompt efforts to
address the Ministry of Labour’s “Advice” sections in its report, as exemplified in his Memos
dated September 14, 1993 to Mr. M. O’Byrne, Senior Assistant Superintendent,
Administration/Services, MCS and to Mr. J. Cassidy, Western Region Regional Manager, MCS
(Ex. 11 and 12). Supt. Fajertag did not trivialize the problems pointed out and advice given by
the Ministry, and took steps to act upon them within what was technically and financially feasible
at the time. He pointed out in evidence and in his memo to Mr. Cassidy, “it is significant that no
work orders have been issued under the Occupational Health and Safety Act”.
The changes which Supt. Fajertag reviewed do not, in our view, constitute an admission
with respect to the adequacy of the air quality and quantity, particularly in view of our remarks
with respect to the need for further investigation. However, for the purposes of determining the
appropriate remedy for the grievor, the fact that no work orders had been issued under the
Occupational Health and Safety Act is not, in our view, of much assistance.
The Smoking in the Workplace Act has no application to this situation. We encourage
the Ministry and the staff to continue to seek a balance between the various competing concerns,
as they have in the past.
The function of this panel is not to determine whether, as in the Sault Ste. Marie case,
supra, there was a breach of the Occupational Health and Safety Act, but rather, is to determine
the appropriate remedy for the grievor. We accept Dr. Chong’s uncontradicted expert medical
opinion that the air quality at the Hamilton-Wentworth Detention Centre was not sufficient for
the needs of the grievor such that he could not send him back in there to work on a trial basis.
2. Where the Grievor Spent his Time in the Institution
The evidence as to the areas of the institution in which the grievor spent his time in the
course of his duties was not established as having been based on records of the duration of time
and the locations where he or other Maintenance Mechanics carried out their duties over e.g. a
two year period or any period of time at all. Rather, the evidence, though sincere, was general
and impressionistic. We find, on the evidence provided, that on balance of probabilities, the
grievor’s duties at the Centre could require him to spend hours or days of his time anywhere in
51
the institution, including poorly ventilated and/or pressurized areas, and inmate smoking areas as
well as less hazardous staff areas. We are unable to draw an inference from the evidence
provided that the grievor spent most of his time in staff areas where smoking was not permitted.
3. The Purpose of the Air Samples and the Effect of Delay in Obtaining Them
The air samples were taken in June of 1993, close to three years after the grievor’s
dismissal in 1989. Dr. Chong wrote his opinion as to the adequacy of the air quality and quantity
in April, 1994 (Ex. 1, Tab 3), close to four years after the grievor’s dismissal in 1989, and about
three months after the grievor had reached retirement age. Presumably, the Wilson panel’s
intended purpose in directing the taking of the air samples on December 28, 1990 was to
determine, on a timely basis, whether the grievor, having been found to have been unjustly
dismissed on October 20, 1989, could be reinstated at the Hamilton-Wentworth Detention
Centre, or, if the air quality and quantity was inadequate at the Centre, but adequate at another
location, to ascertain whether the Ministry could offer him an appropriate position in that other
location. The net result of the delay, for which no explanation was provided in evidence, was to
deprive the grievor of the opportunity to be considered prospectively for reinstatement, whether
he required accommodation in the form of a different work location or a different job, or not, at a
time when Dr. Chong could have addressed the grievor’s then prevailing chance of a successful
return to work with an acceptable attendance record and to enable the employer to limit its
economic liability to the grievor through reinstatement or an early determination that the grievor
could not return to any work due to his then prevailing physical limitations.
4. This Panel’s Jurisdiction to Determine an Appropriate Remedy
In its December 28, 1990 Decision, the Wilson panel retained jurisdiction to determine
the appropriate remedy for the grievor. The parties invited this panel in 1995 to assume the
Wilson panel’s retained jurisdiction. In so doing, they conferred the Wilson panel’s jurisdiction
on this panel. As of January 8, 1996, with the consent of both parties, Ms. Munt-Madill
substituted as the employee nominee for Mr. Carriere. This panel, as presently constituted,
functions under the same retained jurisdiction as the Wilson panel.
52
At p. 25 of the December 28, 1990 decision, Mr. Wilson stated:
…given the substantial questions raised by the Grievor as to whether his failure to
meet the attendance standard set out in the order was due to factors within the
Employer’s control and
given that the ultimate issue is the Grievor’s prospective
ability to meet the attendance level essential to fulfilling his employment
obligations I do not find his dismissal just. I am not however going to make any
comments on the Board’s discretion under subsection 19(3). (emphasis added)
This grievance arose in 1989. We are of the view that, as was the Wilson panel, we are
still functioning under s. 19(3) of the Crown Employees’ Collective Bargaining Act (CECBA),
R.S.O. 1980, c. 108, as amended (subsequently CECBA, R.S.O. 1990, c. C.50). S. 19(3)
provides
Where the Grievance Settlement Board determines that a disciplinary penalty is
excessive, it may substitute such other penalty for the discipline or dismissal as it
considers just and reasonable in the circumstances.
This section has been interpreted on judicial review by the Ontario Divisional Court as
conferring a broad discretion on this board to fashion an appropriate remedy as seems “just and
reasonable in the circumstances”. The Court has remitted cases back to this Board where in its
view the Board has declined to excercise that discretion. It is from both the Wilson decision and
s. 19(3) that our jurisdiction originates (and see s. 6 below).
5. The Probability of the Grievor Returning to Work and Maintaining an Acceptable Attendance
Record after October 20, 1989
Dr. Chong’s evidence as to the likelihood of the grievor having made a “successful
comeback” prior to the date of his retirement was less than clear for our purposes, though not as a
result of any fault on his or anyone else’s part. In 1991, in the grievor’s initial claim for LTIP
forms (Ex. 2, p. 5) he indicated that the grievor was totally disabled from working, and that the
total disability commenced August 22, 1989. We note that the purpose behind the LTIP
“Attending Physician’s Initial Long-Term Disability Benefits Statement”, which was filled out in
April, 1991, after the December 28, 1990 Wilson decision determined that the dismissal was
unjust, was to enable the grievor to claim LTIP retroactively as far back as the terms of the
insurance coverage would permit, which apparently was to October 25, 1990. However, in his
evidence Dr. Chong stated that the grievor could have returned to work in a different job in a
53
different environment, presumably one which did not exacerbate his chronic pain syndrome and
multiple environmental sensitivities. He did not indicate the period of time when the grievor
could have done so, e.g. whether it was prior to the grievor having commenced receiving LTIP
benefits retroactive to October 25, 1990, or subsequent to that date.
It was clear, however, that the delay in obtaining the air samples left the grievor out of the
workplace for a length of time that was statistically far from optimistic for a successful comeback
(see pp. 26 - 28, evidence of Dr. Chong, infra). Assuming that the 1993 air samples reflected the
air quality and quantity in the Centre between August, 1989 and January, 1994, (which the
parties must be taken to have agreed by their protocol, for the limited purposes of this grievance),
Dr. Chong’s evidence in 1995 was that the grievor could not have returned to work at the
Hamilton-Wentworth Detention Centre due to his multiple environmental sensitivities and the air
quality and quantity at the Centre at any time up to January, 1994, the date of his retirement. The
statement that the grievor could have been placed in another job in another location did not
establish the degree of probability that he could have maintained an acceptable attendance record,
given his chronic pain syndrome. “50 - 50” was the best Dr. Chong could suggest.
In this case, it is the employer who seeks to rely on the unlikelihood of the grievor
maintaining an acceptable attendance record, even if returned to another position in another
location, in order to limit its liability to the grievor for his economic loss as a consequence of its
dismissal of him in October, 1989 to the equivalent of LTIP benefits for the period from October
20, 1989 to October 25, 1990. The Wilson panel found that dismissal unjust. The burden of
proof then shifts to the employer to establish, on balance of probabilities, that the grievor could
not have returned to any employment in any location and have maintained an acceptable
attendance record, at any time after the dismissal. The only medical evidence we have as to the
probability of the grievor returning to employment and maintaining an acceptable attendance
record is Dr. Chong’s “50 - 50”. In order to satisfy the burden of proof, the evidence must
indicate the existence of more than a 50% probability that the grievor would not have been able
to return to any employment in any location and have maintained an acceptable attendance
record. A fifty-one percent probability would have satisfied that burden of proof. But that is not
the evidence before us.
54
Dr. Chong’s statistical evidence as to the degree of probability of a successful return to
work in relation to the period of time off work pertained to results obtained from a population
which shared the attribute of having been off work for certain periods of time, and certain types
of employment. While he was cautious in expressing his view of the likelihood of the grievor’s
successful return to work, Dr. Chong did not state (nor was he asked to) that he was applying or
would or could apply those statistical probabilities to the grievor, and e.g. that in December,
1990, the grievor had only a 20% probability of being able to return to work successfully, or that
in June, 1993, the grievor had a 5% probability of being able to return to work successfully.
Consequently, we are unable to conclude that Dr. Chong’s statistics can be applied to the
grievor’s particular probability of a successful return to work.
Should we be mistaken as to whether Dr. Chong’s statistics should be applied to
determine the probability of the grievor’s successful return to work, in our view it would be
unfair and unreasonable if the lapse of time between the date of dismissal, October 20, 1989, and
the date of the decision determining that the dismissal had been unjust, December 28, 1990,
which is not outside the usual and acceptable range of time for determination of complex cases
such as this one, and the subsequent lapse of time in obtaining the tests and reports, which this
panel is unable to attribute to either party, could be used to defeat a claim for a remedy for unjust
dismissal, where the air quality and quantity of the working environment resulted in the grievor’s
absence and dismissal.
6. The Effect of the Workers’ Compensation Act on this Board’s Jurisdiction
In view of the submissions made with respect to the GSB’s jurisdiction to grant the
monetary damages sought by the grievor, it is essential to give careful consideration to the law
and the cases relied upon by the parties.
Under the heading “Pre-1998 Injuries”, s. 102 of the WSIA, 1997 provides
The pre-1997 Act, as it is deemed to have been amended by this part, continues to
apply with respect to pre-1998 injuries.
If the grievor is suffering from an injury or condition arising from employment, s. 102 would
suggest that the pre-1997 Workers’ Compensation Act (WCA) applies to his claim.
55
In Welland County General Hospital v. Ont. Nurses’ Assn. 5 W.C.A.T. REPORTER 97
(Bradbury) the tribunal stated that it was considering an application brought by the Hospital
under s. 15 of the WCA for a determination of whether the grievor’s right to grieve under the
collective agreement was taken away by the Act. S. 15 (s. 17 in R.S.O. 1990, c. W.11) then
provided
Any party to an action may apply to the Appeals Tribunal for adjudication and
determination of the question of the plaintiff’s right to compensation under this
Part, or as to whether the action is one the right to bring which is taken away by
this Part, or whether the action is one in which the right to recover damages,
contribution, or indemnity is limited by this Part and such adjudication and
determination is final and conclusive.
The grievor, a nurse, was kicked by a patient, reported the incident and left work, was absent for
one day, and returned to work after 3 scheduled days off. She did not file a WCB claim; the
employer filed one without consulting or informing her. Instead, she claimed a day’s sick pay
benefits under the collective agreement. On May 15, 1987, the WCAT panel concluded, at p.
103, supra,
…In our view, it is not inconsistent with the intent or the wording of the Workers’
Compensation Act to find that a worker has no right to bring a civil action against
his employer in certain cases but that his union continues to have the right to
pursue the worker’s grievance under the terms of a collective agreement.
We would note that a collective agreement could not waive a worker’s
right to Workers’ Compensation benefits (s. 16 of the Act). …
There is, however, nothing in the Workers’ Compensation Act which
would preclude a union and an employer from including additional provisions in a
collective agreement. They could, for example, provide for additional benefits or
for recall or job modification for workers who have had compensable accidents.
There is also nothing to preclude them from making the type of agreement that
was made in this case – that is, providing for sick benefits in cases not covered by
Workers’ Compensation.
Collective agreements are voluntary agreements which do not affect
workers’ rights under the Workers’ Compensation Act. Any such provisions in
collective agreements would be enforced by the grievance procedure. Such
provisions are not, in our view, what was contemplated by the historical “trade-
off” which is embodied in ss. 8, 14, and 15 of the Workers’ Compensation Act.
These were not the type of “actions” or “rights of action” which workers gave up
in return for a statutory no-fault accident compensation system. Thus, in our
view, the reference to “action” or “rights of action” in ss. 8, 14 and 15 of the Act
was not intended to prevent the union and the employer from using the grievance
procedure to enforce rights under the collective agreement.
56
In this context, then, the type of “action” contemplated by the Courts of
Justice Act appears to us to be consistent with the meaning of the word “action” in
ss. 8, 14 and 15 of the Workers’ Compensation Act. The panel concludes,
therefore, that the term “action” in s. 15 of the Act does not include a grievance
arbitration.
In Lister, 340/89, supra, the grievor, a nurse, suffered “physical, psychological, emotional
and financial damage” as a result of an assault by a resident, filed a claim with the WCB, and
received compensation under the WCA. She alleged that the employer violated Art. 18.1 of the
collective agreement and claimed damages, including out-of-pocket losses and general damages,
and an order “obligating the Ministry to take various steps to ensure that reasonable provision is
made for her health and safety”. Among other things, she claimed the difference between the
Workers’ Compensation benefits she received and the amount she would have received from the
employer had she continued to work during the period of Workers’ Compensation benefits.
Citing Gonneau, 227/81(Teplitsky), which indicated that a breach of Art. 18.1 “may attract a
remedy in damages”, as well as Gillies, 339/82 (Saltman), Davidson, 595/80 (Samuels) and
Union, 581/84 (Kennedy), Mr. Samuels concluded the grievor was entitled to have her grievance
pertaining to Art. 18 heard. He concluded at p. 5 that the Board was “constrained from awarding
damages by section 14 (currently s. 16) of the Workers’ Compensation Act” which provided
The provisions of this Part are in lieu of all rights and rights of action, whether
statutory or otherwise, to which a worker or the members of his family are or may
be entitled against the employer of such worker, or any executive officer thereof,
for or by reason of any accident happening to him or any industrial disease
contracted by him … while in the employment of such employer, and no action
lies in respect thereof.
Mr. Samuels expressed the view, at p. 6, supra, that the right which the grievor claimed under the
collective agreement to the remedy of damages arose because of the “accident”, and that the right
was replaced by the compensation scheme provided by the WCA. He stated at pp. 6-7:
The workers’ compensation system involves a historical trade-off.
Employees gave up the right to obtain damages from their employers—a right
which may have enabled injured employees to be compensated fully for out-of-
pocket losses and general damages, when they could establish that the employer
was at fault. In return, employees were guaranteed a measure of protection
against income losses due to injuries at work, irrespective of fault.
He noted that in the Welland County case, the Tribunal concluded that the Hospital was “not a
party to an ‘action’ the right to bring which is affected by the WCA” under s. 14 of the WCA.
57
He agreed that a proceeding before the GSB was not an “action”. At p. 9, he emphasized that the
grievor in the case before him was attempting to enforce a “ ‘right’ which has been replaced by
the legislative compensation scheme in the [ WCA]” and continued
… This case is not like , 227/81 (Teplitsky), where the Board awarded
Gonneau
damages for loss to the grievor’s vehicle. Nor is this case like Welland County
General Hospital, where the injury suffered was not compensable and the claim
was for sick benefits not covered by workers’ compensation. Here the grievor is
claiming damages for personal injury arising out of a compensable accident. This
is precisely the type of loss for which, pursuant to section 14 of the Workers’
Compensation Act, the legislative scheme has replaced other “rights”, “statutory
or otherwise”. The grievor’s “right” to damages under Article 18.1 of the
collective agreement is encompassed by this language. The collective agreement
falls within the rubric “or otherwise”. (emphasis in original)
Mr. Samuels reviewed a number of cases considering the constitutionality of s. 14 of the
WCA and concluded at p. 19 that although s. 14 of the WCA “is contrary to section 15 of the
Charter, it is justified under section 1 of the Charter”. He further concluded that the grievor is
entitled to the enforcement of concrete obligations flowing from Art. 18.1, but that the Board
“cannot award damages to the grievor because her right to damages has been replaced by the
workers’ compensation system”.
In , supra, the grievor claimed (at p. 2) “financial compensation for past and
Rigglesworth
future losses in wages together with financial compensation for the mental stress and physical
hardship I have had to endure”. The board was asked to determine whether or not the subject
matter of the grievance was solely within the jurisdiction of the WCA. For purposes of its
determination, it assumed the truth of the following facts (pp. 1 - 2):
1. From 1970 to 1984 the Grievor worked as an Instrument Repairer Foreman during
which time he spent considerable time in the repair shop.
2. The Grievor filed a claim in 1980 with the WCB that he had developed health
problems due to the use of certain chemicals at the work site. This claim was denied
by the WCB.
3. In January 1984 he filed a second WCB claim which was allowed on an aggravation
basis and compensated him only for the short time he was off work.
4. Subsequent to 1984 he accepted a transfer to another position which did not involve
exposure to these chemicals. However this new position has a lower wage rate than
the one he held as an Instrument Repairer Foreman.
He grieved
58
…that I have been subjected to unwarranted mental and physical stress and injury
due to the inability, unwillingness and negligence of my employer to provide me
with a safe working environment that has resulted in a permanent respiratory
disability. Due to reclassification at a lower salary I was further subjected to
physical injury and mental torment. As a result future prospect for promotion
have been seriously affected.
Mr. Fisher considered the reasoning in Welland County General Hospital, supra and Lister,
supra, at length and concluded on March 30, 1992, in his second preliminary decision, that the
Lister decision failed to properly appreciate the following passage in Welland County, supra:
There is, however, nothing in the Workers’ Compensation Act which
would preclude a union and an employer from including additional provisions in a
collective agreement. They could, for example, provide for additional benefits or
for recall or job modification for workers who have had compensable accidents.
Mr. Fisher stated at p. 9 of Rigglesworth, supra:
As the Lister decision is based entirely on its understanding of an (sic)
statute outside the Boards area of expertise, and as this panel feels that Lister
panel incorrectly interpreted a decision of the Tribunal which is expert on those
matters, (WCAT) we do not feel constrained by the Blake decision to follow
Lister.
In our opinion the correct interpretation of the WCA, as decided by its
own specialized tribunal in the Welland case, is that unions and employers are
free to negotiate clauses in collective agreements which may provide additional
financial benefits to workers who have had compensable injuries.
We note in passing that even if we had not found Lister to be wrongly
decided, it can be distinguished from this case because in Lister the grievor had
clearly had a compensable accident (her claim was accepted and paid by the
WCB) while in this case Mr. Rigglesworth’s claim has been rejected by the WCB
as non-compensable.
Needless to say we are not determining at this point whether or not Section
18(1) of the Collective agreement was intended by the parties to cover claims for
compensation of the nature put forth by Mr. Rigglesworth as we have only
decided that Section 14 of the WCA is not a jurisdictional bar to our deciding this
case.
In Johnston, supra, decided December 19, 1994, the grievor claimed, among other things,
that she retired from her employment “approximately two years prior to the point when her
retirement benefits would have maximized” (p. 2) and claimed compensation for the excessive
workload that she had carried, including, among other things, compensation for loss of pension
59
income due to her early retirement, as the grievor has in this case. At p. 9, Ms. Tacon stated for
the majority
The board concurs with the reasoning in the Lister decision, supra and the
conclusion that this board is constrained from awarding damages for work related
injuries which are compensable under the Workers’ Compensation Act. In so
concluding, the board distinguishes those cases (such as, Welland County General
Hospital, supra) where there has been a determination that the injury is not
compensable under the Workers’ Compensation Act. In the instant case, there has
been no such determination. Indeed, there was no dispute that no application for
compensation under the Workers’ Compensation Act had, as yet been made. The
board also notes its acceptance of the notion that benefits under the collective
agreement may well be capable of co-existing with compensation under the
Workers’ Compensation Act. That issue, however, is also to be distinguished
from the instant case wherein the grievor, in part, seeks monetary damages for an
alleged breach of article 18. The board considers its comments in this regard
appropriate given its ultimate disposition in this case.
Ms. Tacon distinguished her reasoning in Johnston from cases where there has been a
determination that the injury is not compensable under the WCA.
In her decision dated June 14, 1996 in Fleming, supra, Ms. Knopf noted at pp. 8 - 9 the
basis of the grievor’s claim:
The grievor alleges that she has been discriminated against because there are
people in positions and situations like hers who are not being forced to accept the
eight hour work schedule. The grievor seeks the twelve hour schedule. The
question of whether she has been reasonably accommodated is a factual one which
will depend on the evidence of the case. To a large extent, this will be determined
by the medical evidence. No tribunal will be willing to make a determination on
the question of accommodation and order the remedy the grievor is seeking unless
medical evidence will support that. But the sole issue before the GSB at this time
is simply whether the GSB has jurisdiction to hear the claim.
and continued:
It must be acknowledged that there appears at first blush to be some possibility of
inconsistent rulings if the GSB were to take jurisdiction over the accommodation
issue, given that the Workers’ Compensation has already ruled that there has been
compliance with the Workers’ Compensation Act. But, it is conceivable that the
employer has complied with the Workers’ Compensation Act, yet still be in
violation of the collective agreement. However, the law is capable of operating on
a common sense basis. The Grievance Settlement Board has jurisdiction over the
issues of discrimination and accommodation. This does not necessarily interfere
with the Workers’ Compensation Board’s exclusive jurisdiction over whether or
not there has been compliance with that Act. The rights under the collective
agreement between these parties are concurrent and at times greater than the rights
60
available under the Workers’ Compensation Act. The rights in the collective
agreement are enforceable through the arbitration provisions. The determination
of the grievor’s individual case will be based on the facts and medical evidence
filed.
Unlike the Lister and the Johnson cases, this is not a situation where the grievor is
seeking compensation for a work related injury. The GSB has no jurisdiction over
that type of claim. This is a claim for enforcement of a collective agreement work
schedule and a claim for a remedy (other than compensation) under the parties’
contract. As such, these limited claims fall within the jurisdiction of the GSB. …
In Thomson, supra, in her February 4, 1997 decision, Ms. Stewart stated that
Rigglesworth, 637/90 (Fisher) could be distinguished from Lister, supra, on the basis of different
facts, and continued:
…The facts of this case are similar to those in Lister. Here, where a claim for damages
for personal injury arising from an accident in the course of employment has been made
before and accepted by the Workers’ Compensation Board, it is our view that the
Grievance Settlement Board cannot award additional damages (italics added) for
personal injury on the basis of providing a remedy for a breach of Article 18 of the
Collective Agreement. Accordingly, it is our conclusion that the Employer is correct in
its position that in certain respects the claims before us relate to matters that are properly
within the exclusive jurisdiction of the tribunals established pursuant to the Workers’
Compensation Act. In particular, those matters are the claims for replacement damages,
general damages and damages for a permanent disability. As the Employer has
acknowledged, the claims for a declaration and a compliance order are matters that
clearly fall within this Board’s jurisdiction. We make no decision at this point as to the
other claims asserted by the Union on behalf of the grievor and will address those matters
as necessary upon determining the merits of the dispute before us.
As in Welland County, Rigglesworth, Johnston, and Fleming, the Thomson panel also recognized
a jurisdiction in the Grievance Settlement Board to grant a remedy under the collective
agreement, outside of damages for personal injury arising from an accident which occurred in the
course of employment which had been accepted by the WCB.
On August 20, 1997, in its decision on the merits in Rigglesworth, Mr. Fisher concluded
that the grievor was not entitled to damages for depression in reaction to delays in the arbitration
system, as, he stated, “Article 18.1 was not intended to cover a particular Grievor’s reaction to
the delays”. As well, the grievor’s damages, i.e. that “as a result of the Employer’s failure to
properly ventilate the Grievors’ workplace”, such that he became “involved in a lengthy
arbitration some 6 years later and as a result [became] psychologically disabled” had not met the
test of reasonable foreseeability. The Employer was determined not liable for any extra damages
61
after the grievor went on LTIP. The grievor was entitled to the wage difference between the
LTIP rate he received and the LTIP rate he would have received had he been receiving the
Instrument Repair Foreman Rate (his former position) before going on LTIP.
He noted, at p. 16, that the grievor was ultimately awarded WCB payments for the same
injury throughout the period in question, and was seeking the difference between his wage rate as
an Instrument Repair Foreman and the wage he received in his subsequent positions post
September 1, 1984. However, the grievor did not file his grievance until March 3, 1990. At p.
17, Mr. Fisher limited his damages to the period 20 days prior to the filing of the grievance and
awarded him damages from February 11, 1990 for the difference between his actual wage and the
wage he would have received if he had remained at the Repair Technician rate until he went on
LTIP on November 30, 1991 and other similar adjustments arising from the diminution in his
wage rate until the earlier of when the grievor retires, returns to work or dies. If he returned to
work, the award stated, he would be entitled to payment at the current Instrument Repair
Foreman rate. It directed that his pension payments were to be adjusted so that he received the
same pension he would have had if he had retired in the position of an Instrument Repair
Foreman.
Mr. Rigglesworth received a WCB Permanent Disability Pension of $122.00 per month
during the period in which he incurred the wage loss at the lower classification level. Mr. Fisher
considered, at pp. 17 - 18
At first glance, there appeared to be good reason to deduct these amounts
from the wage loss claim, for to do otherwise would result in the Grievor
receiving more compensation than he would have, had he not been required to
take the lower paying position in 1984. I was also concerned that the Grievor is
claiming that the Employer caused his injury by not taking reasonable precautions
for his health, and thus he lost income, however the same monetary loss is being
covered in part by his WCB pension. There is a valid argument that (sic) is not
fair or just that the same Employer be required to compensate the injured worker
twice for the same injury, once under a statutory no fault scheme such as the
Workers Compensation Act and second under a contractual fault based scheme, as
in the Collective Agreement. However, I am advised that the nature of the
Permanent Disability Pension from WCB is that it is paid regardless of the
claimant’s actual income. In other words, even if the grievor would have obtained
a job after his injury that paid the same or even more than his pre injury job, he
still would have been entitled to his Permanent Disability Pension. Given that
fact, it is proper not to deduct the WCB permanent Disability Pension payments
62
from this award because the Grievor would have been entitled to that payment
whether or not he incurred an income loss.
From the preceding review of the cases, we can tentatively conclude the following:
1. The Workers’ Compensation Board has exclusive jurisdiction to determine whether
there has been compliance with the WCA, e.g. accommodation (Fleming).
2. The Grievance Settlement Board has jurisdiction over rights claimed under the
collective agreement with the exception of compensation for work-related injuries
which have been determined to be compensable under the WCA. (Lister, Thomson)
3. The Grievance Settlement Board has concurrent jurisdiction with the Workers’
Compensation Board (now WSIB) in respect of rights under the collective agreement
e.g. accommodation, which may at times be greater than those under the WCA (now
WSIA). (Welland County, Fleming, Johnston, Rigglesworth)
4. An employee’s entitlement to compensation for monetary loss due to inability to carry
out their normal job may be limited in some circumstances to his/her full LTIP
entitlement, notwithstanding the employer’s contribution to his/her inability to carry
out their normal job. (Rigglesworth)
The information before us pertaining to the status of the Grievor’s claim to the WCB and
WCAT did not take the form of sworn evidence. However, the submissions of counsel for the
union and employer, which neither counsel disputed of the other, established that the employer
has taken a position at the WCB and WCAT opposing the grievor’s claim, and that that claim has
yet to be determined. The panel has no details as to the positions taken by either party before
WCAT. We were advised in 1998 that the matter is still pending before WCAT, and that there
has not been a final determination as to whether or not the grievor’s condition is compensable
under the WCA, and, if so, the extent to which it is compensable.
In all the foregoing cases, the grievor’s entitlement to Workers’ Compensation benefits
was determined by that Board, i.e. entitlement was found to exist, or not to exist. In this case, that
determination has not been made. That is a very significant difference.
The union argues that the absence of a determination as to entitlement before the WCB
and the fact that the grievor’s claim to the WCB is still pending does not affect our jurisdiction to
determine the appropriate remedy. The employer argues that we have no jurisdiction to grant a
remedy in any case, because the matter is before the Workers’ Compensation Appeals Tribunal.
We conclude that the employer’s position that this board lacks any jurisdiction to grant a
remedy is unsupportable and must be rejected. The employer seeks to limit the grievor’s damages
63
to LTIP, and to oppose the grievor’s claim of entitlement under the WCA. It is within the
employer’s rights and discretion to do so. However, the employer cannot on the one hand
maintain that the grievor has no entitlement before the WCB, and on the other hand maintain that
the GSB lacks any jurisdiction to grant a remedy for unjust dismissal because a claim is pending
before the WCB, and which is still pending because the employer is opposing it. The employer
simply cannot have it both ways. The cases we have considered, particularly Welland County,
Rigglesworth and Fleming, supra, suggest that if the grievor is denied a remedy or is granted only
a partial monetary remedy before the WCB or WCAT, and the employer has obligations to the
grievor under the collective agreement and/or the grievor has rights under the collective
agreement which may have been affected or diminished as a result of the employer’s failure to
meet those obligations, then the GSB retains concurrent jurisdiction to fashion a monetary
remedy, which may exceed the remedy granted by WCB or WCAT.
The only question remaining that this panel must address is whether it has the jurisdiction
to and should consider a remedy before the WCAT has made a determination as to the grievor’s
entitlement under the WCA. The reasoning in the cases discussed above suggests that until such
a determination is made respecting the grievor’s claim at WCAT, any exercise by this board of
its jurisdiction to provide the grievor a remedy by way of compensation for financial losses
would be premature and possibly beyond its jurisdiction. The cases above suggest that if the
grievor’s losses arose as a result of a physical condition arising out of and in the course of his
employment, his rights are restricted to the remedies to which he may be entitled under the WCA.
This suggests that this panel should refrain from fashioning a remedy for the grievor until the
WCAT has determined the extent of his entitlement under the WCA or his lack thereof.
However, the circumstances of this case are not as simple as that. In 1989, the grievor
was dismissed from his employment. The Wilson panel determined on December 28, 1990 that
his dismissal was unjust. Thereafter he retroactively received LTIP benefits from October 25,
1990 to January 31, 1994, when he reached retirement age. He had received sick benefits from
August 22, 1989 to October 20, 1989, the date of his dismissal. He received no income from the
employer from October 20, 1989 until some time in 1991 when he was determined eligible for
LTIP benefits retroactive to October 25, 1990. The reason(s) for the approximately 2.5 years
which passed between the December 28, 1990 order and the time the air samples were taken was
64
not explored in evidence. We are therefore unable to conclude that the parties are equally to
blame for the delay, or to assign or apportion the blame for the delay as between the parties in
unequal portions. The grievor clearly experienced financial loss of his regular salary and
custodial responsibility allowance between October 20, 1989 and October 25, 1990, when he
became entitled to LTIP benefits. The evidence did not directly establish the reason the grievor
did not receive LTIP benefits retroactively to October 20, 1989, despite the claim by Dr. Chong
and Dr. James in the initial application (Ex. 2) that the grievor commenced being total disabled
on August 22, 1989. Presumably, if the grievor had not been dismissed in 1989, but instead, had
remained with the status of an employee on sick benefits, his entitlement to LTIP benefits would
have been established earlier, and he would not have incurred the complete loss of income
between October 20, 1989 and October 25, 1990, would not have incurred the expense of the
additional interest on a larger amount of capital drawn on the variable rate loan, and would not
have experienced as extensive a decrease in the level of his Canada Pension Plan retirement
benefits and public service pension benefits. But events did not unfold in a manner that left him
in the same position economically as he would have been, had he not been dismissed.
By the same token, the employer was unaware that it did not have just cause to dismiss
the grievor until December 28, 1990, the date of the Wilson panel’s decision, some 14 months
after the dismissal. Within a few months of that decision, the employer apparently took steps to
ensure that the grievor received the LTIP benefits to which he was entitled under the collective
agreement. In doing so, it has limited the grievor’s damages and to some extent, its own
financial responsibility to the grievor. It has resisted Dr. Chong’s conclusion in 1994 (Ex. 1, Tab
3) that the air quality and quantity was inadequate for the proper needs of normal healthy
employees. The employer is of the view that the grievor’s health problems for which he is
claiming Workers’ Compensation benefits are not attributable to a workplace injury or accident
and is opposing his claim before WCAT. The grievor has been out of funds to a greater or lesser
extent from the date of his dismissal to the date of his retirement, and subsequent to his
retirement, in part owing to that dismissal, which was found to be unjust, and in part because he
suffers from dermatitis, chronic back pain, multiple chemical sensitivities, and other ailments.
Notionally, we are obliged to acknowledge that the employer had the use of any funds to which
the grievor may have been entitled during that period.
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Over 9 years have passed since the grievor was unjustly dismissed. He has sought a
remedy in two different forums, the GSB and the WCB (and WCAT). The remedy he seeks from
the GSB is damages for unjust dismissal following his inability to maintain an average
attendance record in 1989. Dr. Chong’s evidence, though far from clear, suggested that in 1990
“it is more likely that not” that he would “be able to return to work and with close medical
support be able to continue in his prior job at [HWDC]” (Wilson panel, Ex. 18) and that in 1995,
he had a “50 - 50” chance of a successful return to work in another job in another location.
Neither of these assertions was negatived; the former was not explored at the relevant time,
presumably in view of the concerns about the air quality and quantity that emerged in the
arbitration hearings in 1990---and the latter was simply not considered. The grievor was
sidelined from consideration for any form of employment in any environment by the
circumstances of the case. The evidence was far from clear that he was entirely physically
disabled from pursuing other employment from October 20, 1989 until he reached the age of
retirement in January, 1994, despite the statements in the LTIP applications (Ex. 2).
However, the remedy the grievor seeks from the WCB is the statutorily-determined
compensation or benefits for the loss of income he has incurred as a result of being unable to
work since August 22, 1989. If this panel orders the employer to compensate the grievor for the
consequence of having unjustly dismissed him, the amount(s) it awards could conceivably
duplicate or overlap a compensation award under the WCA. This panel is not entirely without
jurisdiction to award damages in these circumstances. However, we are of the view that our
jurisdiction to do so should be exercised with great care and caution.
We are most reluctant to require the grievor to await the outcome of the WCAT appeal
before receiving this Board’s view of his entitlement arising from the unjust dismissal. His
counsel has indicated that if he receives compensation under the WCA, the grievor will account
to the employer and deduct that amount from any amounts awarded by this Board. This panel
has the jurisdiction to determine the remedy which in our view would be “just and reasonable in
all the circumstances” in accordance with s. 19(3) of CECBA.
The panel is mindful that the grievor’s entitlement under the , if any, could range
WCA
from no compensation at all, to a small or substantial compensation, or to the maximum level of
compensation, depending upon whether he is determined to have a compensable injury or
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condition. The level of compensation, if any, to which he may be entitled under the WCA will
depend substantially upon medical evidence which will presumably result in a determination by
WCAT as to the extent, if any, to which the grievor’s conditions from time to time, after he was
dismissed on October 20, 1989, entitled him to WCA benefits. It is possible that WCAT may
determine that some of the grievor’s conditions were attributable to the conditions in which he
worked at the Centre, and that some of his conditions were not so attributable. Such a
determination is within the scope and expertise of the WCAT, and the evidence as to those issues
is not before this panel.
Returning to our statutory jurisdiction, it is the view of this panel that in the absence of a
determination of the extent of the grievor’s entitlement (or lack thereof) under the WCA, we are
not able to determine whether any remedy we could fashion at this time would be “just and
reasonable in all the circumstances”. Consequently, we must temporarily decline to fashion the
appropriate remedy for the grievor until the WCAT has made its final determination.
We encourage the parties to reach an agreement as to whether to provide full or partial
compensation to the grievor in respect of the period not covered by LTIP on a without prejudice
basis, as an interim measure, pending the outcome of the WCAT proceedings and/or a further
hearing before this panel.
In accordance with our remarks above, we will remain seised with respect to the precise
measure of damages, if any, to which the grievor is entitled, pending a final determination of his
claim at WCAT.
We wish to acknowledge the extensive efforts of counsel for both parties, which were
always professional and courteous, and particularly the efforts of counsel for the employer,
having regard to the changes of counsel for the employer during the course of this hearing.
67
th
Dated at Toronto this 28 day of July, 1999.
I dissent (see attached)
Jacqueline G. Campbell, Member
Pamela Munt-Madill, Member
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D I S S E N T
I respectfully must disagree with the majority award of this Board.
The Wilson Panel ordered that the parties engage in joint testing of the air quality and quantity
for the proper needs of normal healthy employees. The Ministry of Labour conducted a study at
the request of the Employer and Dr. Walkinshaw did so on behalf of the Union. The evidence
indicates that the parties were unable to agree on the conclusions to be drawn from this testing.
As a result, the majority chose a rely on Dr. Chong’s assessment of the air quality, based on his
review of the written reports prepared by the Ministry of Labour and Dr. Walkinshaw. Dr.
Chong testified that he had never attended the Hamilton-Wentworth Detention Centre. He
therefore had no first hand knowledge of the conditions at the institution, nor was he present
when the testing took place. His conclusions were based strictly on the written reports.
Dr. Walkinshaw was retained exclusively by the Union and his approach was to evaluate the air
quality based on optimum standards. The Ministry of Labour, which is an independent body
responsible for ensuring the maintenance of adequate health and safety standards for all workers
in the Province, concluded that some improvements could be made to improve the air quality at
the institution but did not issue any orders indicating any violations or inadequacies with respect
to air quality standards. (The Employer did respond to these recommendations and made several
improvements to improve the air quality at the institution.) Also, Dr. Chong did testify that Mr.
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Gibson suffered from multiple medical conditions unrelated to the air quality issue. Mr. Gibson
cannot therefore be considered a “normal healthy employee”.
In view of the above, I would have found that the only reliable independent evidence as to the air
quality at the institution was that provided by the Ministry of Labour, which did not identify the
air quality and quantity as inadequate for the “proper needs of normal healthy employees”.
I would also indicate that I do agree with this Board’s decision to delay consideration of remedy
until the WCAT has made a determination of Mr. Gibson’s claim.
Jacqueline G. Campbell, Member
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