HomeMy WebLinkAboutUnion 24-07-15 1
In the Matter of an Arbitration
Under the Labour Relations Act, 1995
BETWEEN:
THE CORPORATION OF THE COUNTY OF FRONTENAC
(the “Employer”)
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(the “Union”)
(Union Policy Gr. 2019-0462-0010—Life Vests)
BEFORE: Eli A. Gedalof, Sole Arbitrator
APPEARANCES
For the Employer
Mark Mason, Hicks Morley Hamilton Stewart Storie LLP
Gale Chevalier
Marc Goudie
Barb McCulloch
Lisi Moreland
For the Union
Esther Song, Ryder Wright Blair & Holmes LLP (May 4, 2021)
Robert Healey, Ryder Wright Blair & Holmes LLP (Feb. 29 and Apr. 22, 2024)
Dave Doran
Andrew Gagnon
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AWARD
INTRODUCTION
1. This matter is a health and safety policy grievance dated August 19,
2019, arising from the Employer’s choice of personal flotation devices (“life
vests”) provided to paramedics working in and around the County of Frontenac
(the “grievance”). There is no dispute that paramedics should be provided with
life vests to be used when working next to one of the many bodies of water in
the County. However, the Union alleges that the style of life vest provided by
the Employer, while mitigating the risk of drowning, is bulky in nature, restricts
movement, and therefore creates its own health and safety hazards for
paramedics when carrying out their work.
2. Prior to 2015, paramedics relied on third parties, such as the Fire
Service, to provide them with life vests when needed. In 2015, the parties’
Joint Health and Safety Committee (“JHSC”) recommended that instead each
ambulance should be stocked with two life vests. It also recommended the
“Mustang Life Vest MD” (the “Mustang”) as the “best product”. The Mustang is
a life vest that is donned over the head and buckled at the waist, consisting
of two “straps” at the front. Before contact with the water, the straps contain
a deflated bladder. Upon contact with the water, a CO2 canister inflates the
bladder creating buoyancy.
3. In response to the 2015 recommendation, the Employer began stocking
ambulances with life vests. But instead of the Mustang, it provided a more
standard “recreation-style” life vest. These are yellow life vests with the word
“paramedic” across the back, lined with buoyant foam and fastened with 3
buckled straps.
4. No issues were raised concerning the appropriateness of the choice of
life vests until 2018 when they were discussed at the JHSC. The committee
did not reach a consensus on whether there was a problem with the life vests.
On July 11, 2019, the Union’s representative made a unilateral
recommendation that the life vests provided were not appropriate and
requested that the Employer provide “Mustang type” life vests instead. The
Employer rejected this recommendation. In response, the Union filed the
grievance, alleging that the Employer has violated Articles 2.02 (Management
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Rights), Article 9.01 (Health and Safety) and s.25 of the Occupational Health
and Safety Act (“OHSA”).
5. The Union’s primary argument is that in order to meet its health and
safety obligations, the Employer is required to provide paramedics with a
Mustang type life vest. This argument is premised on the assertion that the
current model is unsafe, and that a Mustang type life vest is the safe and
appropriate option. In the alternative, it argues that it has raised legitimate
health and safety concerns with the current model of life vest, and the
Employer has failed to engage in an appropriate risk assessment and to ensure
that the life vests it provides are safe.
6. The Employer maintains that the current model of life vest is safe, and
that the Union has failed to put forward any cogent evidence to support any
other conclusion. At best, the Union has articulated a preference for the
Mustang. In meeting its health and safety obligations in providing PPE, the
Employer is not required to provide the Union’s preferred option, or even the
best possible option. It is rather required to “take every precaution reasonable
in the circumstances for the protection of the worker.” The Employer maintains
that it has met this standard. It further maintains that the Union cannot simply
baldly assert a health and safety concern, without any evidentiary foundation,
and thereby require the Employer to obtain expert opinions or to carry out
studies or trials concerning the replacement of equipment that has not
presented any substantiated health and safety risk over some eight years in
use.
7. I note that while the Union argues that it is open to me to find that the
Employer’s choice of left vest and refusal to investigate alternatives
constituted an unreasonable exercise of management rights, it made no
substantive arguments on this issue that were not also made in relation to
ss.25(2)(h) of the OHSA. Indeed, in the absence of a finding of a breach of
ss.25(2)(h), the Union has not put forward any basis for finding a breach of
the Collective Agreement. Consequently, while I will identify the relevant
collective agreement provisions, I will focus in this award on the arguments
made under the OHSA.
8. Broadly framed, the issues are: i) whether the Employer has breached
its duty under s.25(2)(h) by failing to address the hazards created by the
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current life vest, ii) whether it is required to instead provide paramedics with
Mustang type life vests and, alternatively, iii) whether it is required to further
investigate the potential hazards presented by the current life vests and
possible replacements for those vests?
THE COLLECTIVE AGREEMENT AND THE OHSA
9. In Article 2.01(e) of the Collective Agreement, the Union recognizes that
it is the exclusive function of the Employer to, among other things, determine
“the kinds and locations of equipment to be used”. Article 2.02 provides that
the Employer shall not exercise these rights “arbitrarily, discriminatorily or in
a bad faith manner consistent with the terms of this Agreement.” The Union
alleges that the Employer has exercised its management right to select
equipment unreasonably and in a manner that conflicts with its health and
safety obligations. The Employer maintains that it has exercised its
management right to select the kind of life vest supplied in a reasonable
manner, consistent with its health and safety obligations.
10. The Employer’s health and safety obligations are recognized in Article
9.01, the relevant portion of which reads:
The parties agree that the Employer, the Union and the employees will
comply with the provisions of the Occupational Health and Safety Act, as
amended, and the regulations there under and also agree that the Union
shall have the right to have four (4) representatives, who are employees
of the Employer, on the Safety Committee.
…
11. Section 25 of the OHSA sets out the duties of employers. Both parties
rely on ss.25(2)(h) which provides that an employer shall “take every
precaution reasonable in the circumstances for the protection of the worker.”
THE EVIDENCE
12. Each party called one witness. The Union called Dave Doran, Vice
President of the local union and a member of the JHSC. The Employer call ed
Marc Goudie, Deputy Chief of Performance Standards. While the parties each
challenge the credibility of the other’s witness, I have no doubt whatsoever
that both witnesses testified honestly. This was particularly apparent in cross
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examination where both, to their credit, readily conceded the limits of their
knowledge and recall concerning the issues and events relevant to this
grievance. The more significant problem with the parties’ evidence is its
cogency. The fact is that the witnesses had remarkably limited first-hand
substantive knowledge of the facts that underlie this dispute. To be clear,
neither was required to be an expert on the use of life vests in the paramedic
sector. But Mr. Doran had no specific recollection of ever using the current
model or of having any issues with its use in the course of working as a
paramedic. Mr. Goudie was clear that he had never used a life vest during the
time he worked as a paramedic in the field (although he did wear one while
simulating an intubation, as discussed further below). Further, in many
instances, the witnesses simply confirmed what was written in the
documentary record, without any specific recollection of events, or any ability
to elaborate on that record.
13. There is no evidence before me that any health and safety risk has
actually materialized with the life vests. The evidence is that no paramedic
has ever reported a health and safety event involving the use of the life vests.
There is also no evidence that there has ever been a complaint that a
paramedic has requested and been refused an individually sized life vest
where there was a fit issue with the standard size placed on the ambulances.
14. The chronology of events giving rise to the instant grievance is found in
the recommendations and Minutes of the JHSC, and the limited
correspondence between the parties arising from those recommendations.
15. The issue of life vests first arose in 2015, when the JHSC made its April
29, 2015 recommendation that the Employer place two vests on each
ambulance (the “2015 Recommendation”). The “Reasons for
recommendation” read:
The geographic region within the County of Frontenac (Lake Ontario, St
Lawrence River, as well as hundreds of finger lakes and tributaries) can
often create challenges\risks for the Paramedics of Frontenac Paramedic
Services. Tiered response with Fire/Police often see paramedics working
around this water environment (Harbours, Marinas, Docks, Islands,
Watercraft etc.). Emergency responses to Island calls (via Watercraft) have
Paramedics relying on personal flotation devices provided by the Fire
department.
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The JHSC identifies the importance of these personal flotation devices in
our work environment and express safety concerns when/if these devices
are being provided by another service (Fire) when responding to any/all
water response/rescue calls.
16. The “Requirements for implementation” read:
Having researched many personal flotation products, the JHSC identifies
the Mustang Life Vest 3153 02 (EMS) as best product. The JHSC
respectfully puts forward a recommendation for the purchase of this
Mustang product (2 per vehicle as they are a universal fit).
17. Mr. Doran followed up on July 4, 2015 seeking a response to the
recommendation. Mr. Doran could not remember precisely when the current
vests were provided, but it appears that it was sometime thereafter in 2015.
18. There is no evidence before me of any issues or complaints concerning
the adequacy of the life vests until a June 27, 2018 meeting of the JHSC when
the issue of “Life Jackets” was placed on the agenda and the following Action
Item was recorded in the Minutes:
27 Jun 18 – Recommend better equipment than what is currently in use.
Research Ottawa and Toronto services about their life jackets.
19. When asked about this entry and why the committee recommended
better equipment, Mr. Doran testified that they felt the current life vest was
too bulky and restrictive and would “possibly cause other hazards.” In cross
examination, however, he acknowledged that he had no independent
recollection of the meeting and did not have any recollection of what was
discussed.
20. The issue remained on the agenda at the September 12, 2018 JHSC
meeting, with the addition of the following note:
12Sept18- Concerns continue to be expressed from workers that the
current model of life jacket being used limits mobility, creating other
hazards. Concerns have also been expressed that the fit may not be
suitable for all employees.
ONGOING
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21. Asked about this entry and what was meant by “other hazards”, Mr.
Doran responded that he thought it meant they had other concerns with the
bulkiness of the jacket. He explained that paramedics need to be able to freely
move their arms during calls, and they get used to carrying things “a certain
way”. He added that “if you have to carry equipment or a patient further out
from the body it creates ergonomic hazards, and just being restricted causes
hazards.” He also explained that concerns were expressed that the fit might
not be suitable for all employees and that for larger employees the jacket
might “ride up on them, half way up their torso because it appears to be too
small”. However, when Mr. Doran was cross-examined about this meeting, he
again acknowledged that he had no specific recollection of whether life vests
were even discussed at the meeting, or of the contents of any discussion. He
also acknowledged that he had no recollection of whether fit or suitability
issues were raised by any paramedics who had been fitted for a life vest as
the Employer has offered to do on an ongoing basis. I note that it appears
from an August 14, 2015 email submitted by the Employer that employees
were fitted for the life jackets when they were introduced, and 3 small life
jackets were purchased for employees who required them.
22. While Life Jackets remained as a standing item on the agenda, it does
not appear that there was any new information or action identified until the
November 6, 2018 meeting, when Union committee member Jeff Liddell was
tasked to “write up a recommendation for new life jackets” (this note was
repeated for the December 5, 2018 meeting). Mr. Doran was not present at
that meeting. At the February 11, 2019 JHSC meeting a note was added for
the Employer co-chair to follow up with the Chief, and a Union representative
to “talk to KPD to see what model they use.”
23. On April 1, 2019 Paul Charbonneau, who was then Chief Paramedic,
wrote to both JHSC Co-Chairs as follows:
Dave and Richard,
I have had Chris McBain researching PDFs for a possible replacement of
our current model.
The question I need to understand is; what problem are we trying to
solve here?
We currently have PDFs available in each ambulance that meet the Coast
guard standard.
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Best
Paul
24. Mr. Doran responded the same day:
Good evening Paul,
The current model of life jackets are not practical to work in. The life jacket is
very restrictive and they don't properly flt some of the medics. The JHSC
recommends a (mustang) type life jacket that would allow the paramedic to
work with ease and would infiate if submerged in water.
Best,
Dave
25. On April 4, 2019 a note was added to the JHSC Minutes saying “[n]eed
to review more models. What do other services use?” Apart from hearing that
some services provided life vests while others did not (or provided them only
to their marine unit) and that one service may have ceased providing life
vests, I heard no evidence about what models other services used. I did hear,
as discussed below, that Mr. Goudie borrowed a Mustang life vest from a
neighbouring service in order to examine it, but I did not hear any other
evidence about that service or its use of life vests.
26. At a May 10, 2019 JHSC meeting, the following note was added to the
Minutes:
10May19 – Submit another recommendation based on further evidence.
Some people do not fit, or cannot perform duties while wearing the current
model. Andrew to write up a new recommendation for the Mustang PFD.
As noted above, however, the Employer has offered to individually fit
employees for their own life vest where needed, and there is no evidence that
any employee has been denied a properly fitted life vest. Neither is there any
evidence of a single instance where an employee could not perform their
duties while wearing the current model, or where the life vest impacted their
ability to perform those duties safely.
27. At a June 18, 2019 JHSC meeting, the task of writing up the
recommendation was reassigned to Mr. Doran as follows:
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18June19 – A safety concern/risk has been raised on multiple occasions
that the current life jacket does not meet the needs of the paramedics, and
does not work for all workers. Dave will do up another recommendation for
different PFDs.
28. On July 11, 2019, Mr. Doran submitted his recommendation as the
Worker Co-chair of the JHSC. Management did not sign off on or agree with
the recommendation, which provided the following “Reasons for
recommendation”:
The JHSC has identified the need for a new style of life jacket. Although
the JHSC appreciates that the employer has provided a life vest. The style
of life vest provided was contrary to the original recommendation of
mustang style life vests and is not practical for EMS.
Paramedics need a life vest that allows them to be able to easily carry out
the duties of our job. The current vests are very restrictive and there is
also sizing issues with the current life vests.
29. Mr. Doran indicated the following “Requirements for implementation”:
In accordance with the Occupational Health and Safety Act Sec 25 (2)h,
the employer must do everything reasonable to protect the worker.
The JHSC requests that the employer Provide two Mustang type life vests
for every ambulance.
We look forward to receiving your written response to this recommendation
within 21 days. We anticipate that your written response will include a
timetable for implementation or reasons why you do not agree with the
recommendation (pursuant to OHSA s.8(13) or 9(20)(21) as applicable.
30. On August 6, 2019, the JHSC noted that it had not received a response
to the recommendation and the Employer Co-Chair was tasked to follow up.
31. On August 9, 2019, the Chief rejected the recommendation on the
grounds that the Employer had provided life vests that meet Canadian
Standards and that employees who cannot fit into the standard sizing are
offered individual issue. She did not support purchasing Mustang type vests
for each ambulance.
32. On August 19, 2019, the Union filed the instant grievance. The
Statement of grievance reads:
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The Union grieves the violation of the collective Agreement , including, but
not limited to Article 2.02, Article 9.01 and the Occupational Health and
Safety Act. Sec 25,
- Failure to cooperate with the JHSC in regards to addressing safety
hazards.
- Failure to do everything reasonable to protect the worker as is required.
33. The relief sought in the grievance includes providing two Mustang style
life jackets for every ambulance, that the Employer cease the arbitrary
practice of not following the JHSC recommendations, and that it cooperate
with the JHSC on all matters of workplace safety.
34. When Mr. Doran began his evidence, he had been with the County for
approximately 13 years. However, he candidly acknowledged in his evidence
in chief that as a result of his various Union and health and safety duties, he
has spent very little time working on an ambulance during the relevant period.
Mr. Doran had no personal experience with any difficulties performing
paramedic duties wearing a life jacket, as he did not recall ever having done
so.
35. Mr. Doran explained that prior to the Employer providing life vests,
paramedics would simply not wear one when working near the water’s edge.
When on police or fire vessels, they would wear vests supplied by those
services, and when on private vessels they would use whatever vests were
available. It was the concern over this reliance on third parties that caused
the Union to bring forward the issue in 2015. According to Mr. Doran, the
committee recommended the Mustang in particular because it was a universal
fit, you can work easily in it, it is not restrictive, bulky or cumbersome, and “it
allows you to do the job we need to do”.
36. Mr. Doran testified that he tried on the current life vest and found it
“very restrictive” and “very bulky”, particularly when worn over the uniform
winter parka. He found bending and reaching in front of his body restricted by
the padding in the jacket, and “a little bit” restrictive of twisting. When bending
it “kind of crunches” into the abdomen area restricting ease of motion. Over
the spring or fall uniform jacket, he described it as “definitely restrictive but
not as restrictive as the winter jacket”. Mr. Doran also raised a concern that
the vests did not have reflective patches on them. However, in cross
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examination, he acknowledged that the reflective patches on the paramedic
uniform were still visible while wearing the life vest.
37. Both parties submitted photographs of paramedics wearing the life
vests. The photographs were useful in illustrating what the equipment in issue
looks like, but their utility did not extend much beyond that. The Union’s
photographs depict paramedics in various positions with either ill-fitting or
improperly worn life vests, including life vests “riding up” on the model. Absent
any substantive evidence of how these models and life vests came to be in
these positions, however, they demonstrate only that the life vests are not a
universal fit, which is not in dispute, and that they can be badly worn. They
do not reveal such obvious bulk or restriction of movement to suggest, absent
further evidence, an inherent safety hazard if properly sized and donned.
38. The Employer’s photographs depict a life vest properly worn by Mr.
Goudie while he performs an intubation on a mannequin. Mr. Goudie is, as he
described himself, “a bigger guy”, and the life vest was snug. He testified that
it added a level of “discomfort”, but this was not in his view significant. He did
not find that it restricted his range of motion or interfered with his ability to
conduct the procedure. He agreed that in general it might be a little more
restrictive than not wearing a life vest, but noted this was also the case with
other forms of PPE such as when wearing a gown. He identified no health and
safety issues arising from wearing the vest while performing the procedure
and did not believe it would raise any issues in carrying out the work of a
paramedic more broadly.
39. Mr. Goudie also borrowed a Mustang life vest from a neighbouring
service to examine. He testified the manual for the Mustang indicates that it
is not appropriate for weak or non-swimmers, and that there may be delays
in inflating in cold water. He also testified that they are not actually a
“universal” fit as the Union asserted, and that people at extreme ends of the
weight and size spectrum would still need their own appropriately sized life
vest.
40. Mr. Goudie also testified that in the usual course, paramedics would not
be wearing the life vests for long while treating patients. The general practice
is to move away from the water as quickly as possible. These paramedics are
not “water rescue” employees.
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ARGUMENT AND ANALYSIS
The Union’s Argument
41. The Union argues that the Employer failed to take reasonable
precautions, as required by Article 9 of the Collective Agreement and
ss.25(2)(h) of the OHSHA, when it failed to address the hazards caused by
the current life vests. Those hazards arise from a restricted range of motion,
sizing, discomfort in performing duties and the lack of reflective material. The
risks were identified in the 2019 and 2020 JHSC recommendations. Those
recommendations were undoubtedly provided to the Employer and the Union
emphasises that there is no requirement for a unanimous recommendation
from the committee in order to trigger the Employer’s obligations under
ss.25(2)(h).
42. In the Union’s submission, Mr. Doran provided detailed evidence to
establish the existence of identified hazards, and the reasonable and
necessary precaution to address those hazards was to provide a Mustang type
vest. In contrast, it submits that Mr. Goudie’s evidence was insufficient to
establish that the Employer took any reasonable precautions to prevent those
hazards. Further, it submits that Mr. Goudie’s evidence failed to establish that
the Employer had cooperated with the JHSC in any meaningful fashion. Apart
from perhaps the one instance where Mr. Goudie performed an intubation on
a mannequin while wearing the vest, the Employer did not conduct any
meaningful tests to assess the current vests. It conducted no testing on a
Mustang vest. It did not consult with any expert or seek input from any of the
paramedics in the field who had used the vest while working.
43. In the Union’s submission, in response to the Union identifying hazards,
the Employer has effectively demanded that the Union first provide “hard
evidence” that the risks have actually caused harm before acting. In the
Union’s submission, the Employer’s untenable position is essentially that a
crisis must materialize while responding to an emergency before it will take
any steps to address the hazards identified. The Union’s primary position is
that the appropriate response in addressing the identified hazards is to provide
a Mustang type life vest. In the alternative, it maintains that ss.25(2)(h)
requires that the Employer at the very least engage in a meaningful
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assessment of the hazards identified and determine whether a Mustang type
vest would address those hazards.
44. In support of its argument, the Union relies primarily on the decision in
Cambridge Memorial Hospital and OPSEU Local 239, Re, 318 CarswellOnt 3847
(Ont. Arb.)(Marcotte)(“Cambridge Memorial”), which it asserts is on all fours
with the present case. It also relies upon Canada Border Services Agency v.
PSAC, 2014 CarswellNat 2387 (COHST)(“Canada Border Services”) and Prairie
North Health Region and CUPE, Local 5111 (Employee Name Tags), Re, 2015
CarswellSask 768 (Sask. Arb.)(Ponak)(“Prairie North”), cited therein. As in
Cambridge Memorial, the Union argues that in the absence of a formal risk
assessment, neither the Employer nor the arbitrator can properly assess the
risks posed by the current vests. In the Union’s submission, the Employer’s
uninformed opinion that there are no such hazards is not sufficient to meet its
obligation under ss.25(2)(h).
The Employer’s Argument
45. The Employer argues that from the outset the Union has premised its
case on an inaccurate articulation of the Employer’s obligations under
ss.25(2)(h), and bald unsupported assertions. It argues that I ought to prefer
the direct and forthright evidence of Mr. Goudie to the vague and poorly
remembered evidence of Mr. Doran. The onus in this case is on the Union, and
the Employer maintains that the Union has failed to meet that onus. The
Employer accepts that one need not wait for a health and safety problem to
materialize before acting, but there must, it argues, be some basis put forward
for investigating or addressing a concern. In this case, the only actual evidence
of using the current vest while carrying out paramedic duties was the test
performed by Mr. Goudie, who said the vest was “snug” but created no
problems.
46. The 2015 JHSC recommendation identifies the risk of working near
water, which the Employer submits it has addressed with the current vests.
The recommendation identifies the Mustang as the “best product” and
indicates that the committee “researched many personal flotation products”.
But it identifies no actual safety-related basis for choosing the Mustang, and
there is no evidence of any research conducted. The current vest addresses
the risk that was identified in 2015 and had been in use for several years
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without issue before the Union raised any concerns. It has now been in use
for several more years, and the Union has still not identified a single specific
concern beyond its vague and speculative assertions.
47. The 2019 unilateral recommendation from the Union JHSC
representative, submits the Employer, misstates the standard under
ss.25(2)(h) and does not raise any health and safety issue with the current
vest. The issues identified are that it is “not practical for EMS”, they need a
life vest “that allows them to easily carry out the duties of [their] job”, and
“the current vests are very restrictive and there is also sizing issues with the
current life vests.” The Employer has addressed the sizing issue by offering
employees a fit test and agreeing to issue individually sized vests where
required. The other concerns raised may explain why the Union prefers the
Mustang, but do not raise health and safety risks, which must be the basis for
a complaint under s.25 of the OHSA.
48. The Employer does not accept that the unsigned 2020
“recommendation” is a proper recommendation of the committee.
Nonetheless, the 2020 recommendation primarily relates to concerns about
restricted range of motion and the comfort and ease of carrying out
paramedical duties; not health and safety issues. It does not raise issues of
fit. The only actual health and safety concern raised is the absence of reflective
material, and Employer submits that on the evidence, the reflective material
on the paramedic’s uniform is visible while wearing the life vest. To the extent
that the recommendation asserts that the current vests were designed
primarily for recreation, there is no basis put forward to establish why, from a
health and safety perspective, this feature would render it any more or less
appropriate than the Mustang. The Mustang, it notes, is also used for
recreation.
49. In sum, the Employer submits that the Union has baldly asserted a
preference for one product over another and seeks to require the Employer to
either satisfy that preference or engage experts and perform testing of that
product, in the absence of any actual identified health and safety problem.
Further, in response to the Union’s 2019 recommendation, Mr. Goudie did
investigate the Mustang, and identified potential concerns from the product
manual (risk of non-inflation and risk to poor swimmers). The Mustang may
also require additional maintenance on an ongoing basis. In the
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circumstances, the Employer maintains that there is no basis to replace a
product that is working without issue with one that may introduce new
identifiable risks. In forwarding this argument, the Employer emphasizes that
its paramedics do not engage in search and rescue on and around the water.
Indeed, their practice is to move the patient away from the water at the
earliest opportunity.
50. In support of its argument, the Employer relies on the principles in
Glencore Canada Corp. v. Sudbury Mine, Mill & Smelter Workers’ Union, Local
598, [2015] OLRB Rep. 887 (“Glencore”), Grain Workers’ Union, Local 333 v.
British Columbia Terminal Elevator Operators’ Assn., 2001 CarswellNat 6819
(Can. Arb.)(Jackson)(“Grain Workers’ Union”), O.P.S.E.U. v. Ontario
(Community & Social Services), 2008 CarswellOnt 10283 (Ont.
GSB)(Watters)(“Community & Social Services”) and Humber College and
Ontario Public Service Employees’ Union, unreported, April 27, 2023
(Raymond)(“Humber College”). It further distinguishes and questions the
precedential value of Cambridge Memorial, which does not appear to have
been followed in any other case (see Toronto Transit Commission and ATU,
Local 113, 2021 CarswellOnt 449 (Ont. Arb.)(Slotnick)).
Union Reply
51. In reply, the Union emphasises that a JHSC recommendation is not a
formal legal pleading and should not be read as a comprehensive statement
of the Union’s case. The Employer’s obligations under ss.25(2)(h) stand
absent any recommendation from the JHSC. In addressing the authorities
relied upon by the Employer, the Union emphasizes that a “reasonableness”
analysis is always fact driven, and those cases are easily distinguished on their
facts. It maintains that the Cambridge Memorial decision provides the best
analogy to the current case.
52. In response to the Employer’s submissions on onus, the Union argues
that while it may bear the ultimate onus to establish its grievance under the
Collective Agreement, it has more than done so. Once it identified a genuine
risk of harm, as it maintains it has done, it became the Employer’s obligation
to meaningfully address that risk. The Union does not bear some additional
obligation or evidentiary onus in order to trigger the Employer’s duty to act.
The OHSA is remedial public welfare legislation, it emphasizes, which should
be interpreted broadly (see Quinten Steel, 2017 ONCA 1006 CanLII).
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Analysis
Is the Employer Required to Provide a Mustang-style Vest?
53. The Union’s request for an order that the Employer supply Mustang style
type life vests in place of the current vests is easily disposed of. There is, quite
simply, no cogent evidence before me to support a positive conclusion that
the current model is unsafe, or that that the Employer is required to provide
a Mustang style instead, in order to meet its obligations under s.25 of the
OHSA. I will address the evidence concerning the current life vests below. With
the respect to the Mustang, however, the Employer articulated concerns about
delayed inflation in cold water and that the equipment may not be suitable for
use by poor or non-swimmers. These concerns are based on Mr. Goudie’s
review of the manual for the product and are therefore not without some
foundation. But on the evidence before me I have no basis for assessing how
significant (or insignificant) these concerns might be, and how one might
weigh these concerns against the relative advantages and disadvantages of
any other available option. A Mustang or Mustang style life vest may well be
an excellent option. But it would constitute an entirely inappropriate incursion
into management rights to order the Employer to use that particular piece of
equipment in these circumstances.
Does the Current Model Raise Health and Safety Issues?
54. The more substantial issue in this case is whether the Union has raised
sufficient health and safety concerns with the current model life vest such that
the Employer is required to either replace it or to at least conduct further
studies or inquires with respect to those safety issues. Before assessing the
evidence on this issue, it is useful to set out some general principles
concerning the application of s.25 of the OHSA.
55. First and foremost, it must be emphasized that one need not wait for a
health and safety risk to manifest before the Employer’s obligation to “take
every precaution reasonable in the circumstances for the protection of the
worker” is triggered. It is also beyond dispute that where new policies,
practices or equipment introduce a new health and safety risk to the
workplace, the OHSA requires that those risks be examined, understood and,
subject to the standard established by s.25, addressed. As the Union correctly
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emphasizes, the Occupational Health and Safety Act is remedial legislation
and it should be broadly interpreted and applied in support of its purpose. The
primary and obvious purpose of health and safety legislation is to prevent
injury from happening in the first place.
56. The Union relies primarily on the principles articulated in Cambridge
Memorial. That case arose from the introduction of name tags for hospital
staff, and the concern that displaying staff member’s full first and last names
might enable stalking and other targeted behaviours by patients and their
families. There was at least some evidence that patients had threatened
employees in reference to their personal lives outside the workplace. The
arbitrator concluded that in introducing its name tag policy, the employer had
introduced a risk into the workplace, and had failed to assess that risk as
required by the collective agreement, or to take steps to mitigate against that
risk as required by the OHSA.
57. In reaching these conclusions, the arbitrator in Cambridge Memorial
recognized that the assessment of risk under the OHSA must be both objective
and grounded in the circumstances of the particular workplace (para. 45). He
cites Toronto Police Association for the proposition that a finding of risk must
be based on “predictability through empirical data, not speculative information
or conjecture” (at para. 43). The risks associated with the introduction of
name tags, particularly in workplaces where employees may be subject to
retaliation, have been the subject of prior awards, reviewed in detail by the
arbitrator (see Canada Border Services and Prairie North). It appears that the
arbitrator in Cambridge Memorial, upon reviewing these awards, concluded
that there was an objective basis for finding a similar risk in the workplace
before him. As the Employer notes, other cases addressing employee
identification do not reach the same conclusion as those cited by the Union.
Clearly, each case must be assessed on its own facts and having regard to the
circumstances of the particular workplace. I take no issue with the general
principles articulated in Cambridge Memorial, but it bears little in common
with the instant case.
58. In broad terms, the cases cited by the Union stand for the proposition
that even where a risk may be remote, if it is significant and objectively
founded, the employer must meet its obligations under s.25 of the OHSA. The
cases do not, however, stand for the proposition that it is sufficient to merely
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articulate a speculative risk without objective foundation, and thereby require
an employer to alter its existing practices. Rather, the awards emphasize the
need to look to the specific circumstances in each case, and to conduct an
objective assessment of risk based on the facts.
59. The cases cited by the Employer largely address the issue of
proportionality. The Employer emphasizes that its obligation is not to eliminate
all risk, but to take every reasonable precaution in the circumstances. It
emphasises that its obligations under the OHSA are proportionate, not
absolute, and that the Act strikes a balance between the risk of harm and the
employer’s ability to carry on business (see, e.g., Glencore at paras. 168-171).
It emphasises that paramedics do not engage in water rescue, and that they
do not generally carry out their duties wearing life vests. Rather, on those
occasions where they are required to wear a life vest—which appear to be
relatively infrequent based on the limited evidence of use before me —their
aim is to move the patient away from the water as quickly as possible.
60. I take no issue with the proportionality analysis, subject always to
maintaining a purposive application of health and safety legislation as
discussed above. I emphasize, though, as is also noted in Glencore, that while
the Act does not impose an absolute obligation to eliminate risk of harm, it is
nonetheless “heavily slanted in favour of eliminating risk” (at para. 168). But
as the Employer also argues, in order to engage the proportionality analysis
there must be objective evidence of a risk to health an d safety in the first
place. To be clear, I do not suggest a need for “scientific proof”; in matters of
health and safety, particularly where there is risk of serious harm, the
precautionary principle applies. But as the cases make clear, evidence of
subjective feelings, absent an objective factual foundation, is not sufficient.
61. In this case, I find that the Union has failed to put forward an objective
factual basis for its subjective concerns regarding the current life vests. While
the original JHSC life vest recommendation in 2015 identified the Mustang as
“best product”, it does not identify any health and safety basis for this
conclusion. When the issue was raised again in 2018, the Union
representatives on the JHSC asserted a need for “better equipment”, and that
the current vest limited mobility “creating other hazards”. It also raised issues
of fit. The evidence supports the Employer’s position that it has addressed the
concerns related to fit and continues to offer individual issue where
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appropriate. The evidence does not establish that the Union identified any
particular “other hazards” prior to the hearing of this grievance. Then Chief
Charbonneau asked the right question when he wrote “[t]he question I need
to understand is; what problem are we trying to solve here?”. In response,
aside from the fit issue which has been addressed, he was advised that the
current vests were “not practical” and that a Mustang type vest “would allow
the paramedic to work with ease and would inflate if submerged in water”. He
was not advised of any actual health and safety risk posed by the current life
vests.
62. The closest the Union’s evidence approaches to identifying an actual
health and safety risk was Mr. Doran’s testimony that Paramedics become used
to carrying things a certain way and that if you carry equipment or a patient
further out from the body it creates “ergonomic hazards”. But Mr. Doran was
not able to provide any objective factual basis for the claim that the current
vests create such a risk in the performance of a paramedic’s actual duties. The
fact that there has not been a single issue or complaint arising from the actual
use of the life jackets over a period of several years supports this conclusion.
I emphasize again that this is not to say that the Union requires proof of injury
to make its case. But the concern raised by Mr. Doran in his evidence relates
to restriction of motion and ergonomics, risks (as opposed to actual injury)
that one would expect to arise on a routine basis with use of the life jackets.
Yet I heard no evidence of a single actual circumstance in which the use of the
life vests created this risk.
63. The only evidence before me that provides any insight into the real-
world impact of wearing a life vest as a paramedic was the evidence of Mr.
Goudie’s simulated intubation. While hardly a scientific or exhaustive
assessment of the use of life vests by paramedics, it demonstrates that the
Employer did not simply dismiss the Union’s concerns out of hand. In response
to a vague and unparticularized health and safety concern, Mr. Goudie donned
the vest to perform an invasive procedure that required him to bend over in
an awkward position, and he found that the vest did not cause any health and
safety concerns. The photographs, in conjunction with his testimony, support
his evidence. Had the Union identified any particular risk posed by the life
vests, based on realistic circumstances of use by paramedics, the Employer
might well have been required to investigate further. But in the absence of any
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such objectively grounded concern, Mr. Goudie cannot be criticized for failing
to conduct further tests or trials.
64. Considering all the evidence before me, I find that the Union has not put
forward an objective basis for finding that the Employer’s use of the current
life vests creates a health and safety risk that it has failed to properly assess
or address. The Union did identify a specific risk related to fit, but I find that
the Employer has addressed this risk by offering fitting on an ongoing basis
and offering individual issue where appropriate.
CONCLUSION
65. For all these reasons I do not find that the Employer has breached Article
9.01 of the Collective Agreement or s.25 of the OHSA in selecting and issuing
the model of life vest currently in use. There is no dispute that the current life
vests serve the health and safety purpose for which they were introduced, i.e.
to mitigate the risk of drowning. The Union has failed to put forward an
objective basis for concluding that the equipment selected to address this risk
itself introduces new health and safety risks that must be addressed. The
Employer has exercised its management right under Article 2.01(e) to select
the kind of equipment to be used, and the Union has not established a basis
for finding a breach of management rights under Article 2.02.
66. The grievance is therefore dismissed.
Dated at Toronto, Ontario, this 15th day of July 2024.
“Eli Gedalof”
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Eli A. Gedalof
Sole Arbitrator