HomeMy WebLinkAbout1989-1478.Gibson.99-07-28ONTARIO EMPLOYÉS DE LA COURONNE
CROWN EMPLOYEES DE L’ONTARIO
GRIEVANCE COMMISSION DE
SETTLEMENT RÈGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE 600, TORONTO ON M5G 1Z8 TELEPHONE/TÉLÉPHONE: (416) 326-1388
180, RUE DUNDAS OUEST BUREAU 600, TORONTO (ON) M5G IZ8 FACSIMILE/TÉLÉCOPIE: (416) 326-1396
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-Madill Member
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.
Of course, the Board will retain jurisdiction pending the implementation of this Order.
th
Dated at Toronto, Ontario this 16 day of October, 1987.
2
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 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
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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 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
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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 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.
5
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
? 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)
6
? 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 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
7
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 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
8
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 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
9
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; 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.
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Carbon monoxide (CO), carbon dioxide (CO), respirable suspended particulates (RSP’s) and
2
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 ASHRAE
2
Standard 62-1989 of 1000 ppm of CO “when evaluating the adequacy of fresh air supply to indoor
2
environments” (Ex. 1, Tab 2, p. 3, para. 4). It found that “the CO measurements taken on 2 June
2
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 measured” (Ex. 1, Tab 2, p. 4). It noted that CO is
2 2
generated both by “building occupants (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 below 1000 ppm”, it noted. Dr. Walkinshaw acknowledged in cross-
2
examination that O.Reg. 833/92 established a time-weighted average exposure value (TWAEV) for
CO of 5000 ppm (Ex. 1, Tab 5, Part 4, p. 537).
2
In cross-examination Ms. Wilks advised that the Ministry views the ASHRAE CO standard of
2
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 (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
2
recommended to satisfy comfort (odor) criteria.” She 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
2
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with the use of the room. She neither 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 drop below 1000
2
ppm. … When the amount of fresh outdoor air was set at 70%, the CO levels were below 1000 ppm”
2
(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 of .15
3
mg/m, which, at such level, would “indicate a build up of tobacco smoke” (Ex. 1, Tab 2, page 6). It
3
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 high level of RSP
3
(1.14mg/m) in the kitchen smoking area was of particular note. Ms. Wilks declined to respond to a
3
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 RSP values at staff stations ranged
3 3
from .03 - .13 mg/m, and on June 9, 1993 they ranged from .08 to .15 mg/m. On June 2, 1993, the
3 3
RSP values in dayrooms ranged from .05 - .66 mg/m, and on June 9, from .1 - .61 mg/m.
Ms. Wilks advised that the regulations in O.Reg. 833/92 under the Occupational Health and
Safety Act pertaining to nicotine concentration in air samples were set based on controlling 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 standard in O.Reg
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3
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:
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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 0.001
3
to 0.003 mg/m…” and on 9 June 1993 “in the same areas airborne nicotine ranged from 0.001 to
3
0.105 mg/m”. Dr. Walkinshaw stated that the TWAEV standard for nicotine in O.Reg. 833/92 of .5
3
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. He said
3 3
that levels of 0.001 - 0.003 mg/m are typical of non-smoking areas, and that the reading 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 to
2
1600 ppm and were in excess of the ASHRAE guideline of 1000 ppm. Adequate
fresh air supply is required such that the indoor CO concentrations will drop below
2
1000 ppm. CO levels over 1000 ppm are associated with widespread occupant
2
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. In assessing worker exposure to CO, a
2 2
13
TWAEV 5000 ppm is used. ASHRAE guideline of 1000 ppm CO is used as a
2
surrogate indicator of the sufficiency 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 Standard
2
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
2
1000 ppm. The restriction of the number of 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 present in
2
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 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 0.001 -
2
3
0.0138 mg/m in work rooms when the dilution ventilation was providing the
14
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 smoking
3
area were in excess of the ETS marker of 0.15 mg/m indicating a build up of
3
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.
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
15
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.
Furthermore, the lingering odour and reduced visibility from tobacco smoke
are aesthetically unpleasant to many people.
Increased risks of lung cancer have been observed in non-smoking populations exposed to
sidestream smoke. Other suspected health effects of tobacco smoke on non-smokers include the
aggravation of such conditions as asthma and angina pectoris, increased risks of spontaneous
abortion, congenital malformation …
Estimates indicate that non-smokers repeatedly exposed to tobacco smoke are at a significantly
higher risk of contracting tobacco-smoke-induced lung cancer. While these calculations involve a
number of assumptions that lead to uncertainty in the actual magnitude of the hazard, it is widely
believed that there is no level of exposure to carcinogenic substances below which a risk does not
exist.
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 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
16
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.
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
17
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
3 3
expresses the Total Particulate exposure in two values, 50 mcg/m (or .05mg/ m) for long-term (1
3 3
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
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
18
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
3
to protect public health and safety. He advised that Health and Welfare has 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 airborne
3
particles estimate to be around 180 [mcg]/m total suspended particulates or 80
3
[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 to the
2
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. applies to smoking lounges of
2
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 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
19
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 amount of smoking,
2
CO is not a relevant indicator, and it is necessary to increase the amount of fresh air entering the room.
2
He then said that it is improper to use CO as an indicator of the presence of ETS, as it is also an
2
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 acknowledged, however, that the RSP
3
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. He did not
2
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.
20
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 located behind the air intake
th
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,
21
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 that
th
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 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.
22
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 the
3
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 sure what that level
3
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 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-
23
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 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
24
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.
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.
25
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. 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
2
multiple respiratory problems. He said that 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
26
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 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.
27
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 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
28
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 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.
29
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.
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.
30
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.
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.
31
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 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 concern) for RSP from passive
32
3
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 one way of
2
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
2
excess of 525 ppm indicate that the air quality is 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 Dr. Walkinshaw
2
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 area being sampled. This
2
supports the use of ASHRAE Standards of 1000 ppm and 525 ppm. If 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
33
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 hazardous long term exposure
3
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 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.
34
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.
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.
35
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 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 also
2
measured temperature fluctuations and humidity levels. CO was the marker for air supply. ASHRAE
2
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.
36
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.
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 June
2
9, 1993 CO measurements were all below 1000 ppm except “5A dayroom left, 4A dayrooms left and
2
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
37
area in the kitchen is about 80 sq. ft. The total area where the CO levels were elevated was about
2
4,080 sq. ft., out of a total of 162,000 sq. ft. for the entire 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
2
readings higher than the ASHRAE Standard of 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 would be 5,000 ppm, as referred to in the Ministry of Labour report (Ex. 1,
2
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 used
3
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 were that the staff stations were all
3
below 0.15 mg/m. On June 9, 1993, the poorest possible conditions, with the air intake at the
3
minimum setting, only one of 20 readings were above 0.15 mg/m.
The third marker was Nicotine. The typical range of nicotine for work stations in the Ministry of
3
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
38
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.
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 hazardous long term exposure
39
3
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 the
3
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 present 8
3
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 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.
40
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 Workers’ Compensation Act, (WCA)
R.S.O, 1990, c. W.11 as amended, continue under that 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 contracted by the
st
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 Lister, 340/89, (Samuels), a case in which a nurse was sexually assaulted during the course of 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:
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
41
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’ Compensation Act. The
compensation provided under the Act is “in lieu of all 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.
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.
42
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 Fleming, 461/95 (Knopf), which analyzes Lister, Johnston and 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’ CompensationAct. 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 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.
43
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
theHallowell formula.
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.
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.
44
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.
Mr. Walkinshaw’s evidence, that whether the nicotine level is above or below the standard, is
persuasive, and is supported by the Sault Ste. Marie decision. With respect to Dr. 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.
45
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, Lister and Thomson, and Rigglesworth. In Lister, the 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
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
46
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.
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
47
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.
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.
48
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, 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.
49
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 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.
50
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 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
51
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.
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
52
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 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.
53
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.
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.
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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.
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
55
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.
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
56
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. 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 Gonneau, 227/81 (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
57
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 Rigglesworth, supra, the grievor claimed (at p. 2) “financial compensation for past and 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
…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.
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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 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’
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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 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. …
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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 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,
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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 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).
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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 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
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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 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
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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.
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
65
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) ofCECBA.
The panel is mindful that the grievor’s entitlement under the WCA, if any, could range 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 condition. The level of
compensation, if any, to which he may be entitled under the WCA will depend substantially upon
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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.
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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
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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. 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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