Ontario Public Service Employees Union v Ontario (Natural Resources and Forestry)

GSB#2011-3796, 2012-0167

UNION# 2011-0232-0035, 2012-0362-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union

(Martin)

Union

- and -

The Crown in Right of Ontario

(Ministry of Natural Resources and Forestry)

Employer

Arbitrator

BEFORE

Nimal Dissanayake

FOR THE UNION

Michael Hancock

(From Sept. 6, 2013 to Oct. 2, 2014)

Mike Biliski

(From March 25, 2015 to Dec. 21, 2018)

Koskie Minsky LLP

Counsel

FOR THE EMPLOYER

HEARING

Stewart McMahon and Thomas Ayers

Treasury Board Secretariat

Legal Services Branch

Co-Counsel

September 6, October 29, November 12, 15, December 19 of

2013; May 21, June 18, July 3, 4 and 10, September 4, 29,

October 2 of 2014; March 25, 27, April 15, 16, 28, September 1,

of 2015; September 16 of 2016; January 16, 30, February 23,

March 7, 8, 30, May 11, September 19, November 20 of 2017;

February 22, April 24, May 10, October 16, 24, November 30

and December 21 of 2018

- 2 -

Decision

[1]

This decision relates to a group grievance filed on behalf of all seven individuals

employed in the position of Agricultural Investigators (“AI”) in Agricultural

Investigations Unit (“AIU”) of the Ministry of Natural Resources and Forestry,

(“MNRF”) a part of the Investigation and Intelligence Services Branch of the

Ministry’s Enforcement Branch, and an individual grievance filed by one of those

AI’s, Mr. Michael Martin. In substances both grievances allege violations of

article 9.1 of the collective agreement and section 25(2)(h) of the Occupational

Health and Safety Act (“OHSA”).

[2]

The relevant parts of those provisions read as follows:

Article 9.1 of the Collective Agreement

The Employer shall continue to make reasonable provisions for the safety

and health of its employees during the hours of their employment.

Section 25(2)(h) of the OHSA

… an employer shall …,

(h) take every precaution reasonable in the circumstances for the

protection of a worker.

[3]

The Ministry of the Ontario Agriculture, Food and Rural Affairs (“OMAFRA”) had

previously employed a number of AI’s to enforce legislation related to food safety.

At the time they had not been provided sidearms/pepper spray as personal

protection equipment (“PPE”). Through a reorganization in 2006 OMAFRA AIs

were moved to the MNRF’s AIU, which had been created in 2000. Upon joining

the AIU, the AIs were appointed as Conservation Officers (“CO”) under the Fish

and Wildlife Conservation Act. Along with their CO designation, they were

provided with sidearm and pepper spray.

Their primary function was

enforcement of the Food Safety and Quality Act (“FSQA”). Described very

generally, their role was to investigate violations of the FSQA and gather

evidence to facilitate prosecution.

[4]

In January 2012 the employer announced its decision to revoke the Als

designation as COs and required them to return their sidearms and pepper spray.

- 3 -

That left them with limited PPE including soft body armour and collapsible baton.

The removal of sidearm and pepper spray is the focus of the group grievance. In

essence, the grievors allege that considering the nature of their work, by

requiring them to carry out their duties without sidearms and pepper spray, the

employer exposes them to unreasonable risk, and thereby fails to comply with its

obligation under the collective agreement and OHSA. It is alleged that the

decision to remove sidearms and pepper spray was made without due

consideration and assessment of its impact on the health and safety of Als.

[5]

While the group grievance consisted of two parts, the union proceeded only on

one. It reads:

We, the seven (7) employees of the Agriculture Investigation Unit, as a

group, hereby grieve the actions of our employer, who on January 30,

2012, arbitrarily removed from us our Conservation Officer appointments,

resulting in the loss and removal of our use of force tools. The use of

force tools were recommended based on 2006 Justice Haines report and

further justified and supported by a business case that detailed the

inherent dangers of the work performed by Agriculture Investigators. The

decision by management on January 30, 2012 was based solely on the

legal authority to possess firearms and failed to address the health and

safety issues that was the basis for the arming of officers in the first place,

as per article 22.11 or any other article or act that may apply.

Settlement Desired

Return of conservation Officer Designation and Use of Force options,

specifically, firearms and pepper stray, under the Fish and Wildlife

conservation Act or any alternative legislation that would allow us to

maintain Peace Officer status and designation.

Recognize the duties performed as duties of employment for the

preservation and maintenance of public peace, thereby defining

them as “Peace Officers” pursuant to subparagraph (c) of s. 2

“peace officer” definition within the Criminal Code of Canada,

thereby enabling them under legal authority to possess firearms.

(bold original).

[6]

Of the seven signatories, four participated in the arbitration proceeding and

testified about incidents they were involved in while performing AI duties, which

in their view exposed them to unreasonable health and safety risk. They were

grievors Ridley, Campbell, Hartnick and Martin. Grievors Prey and Grosley did

- 4 -

not participate at all and no evidence was adduced about any unsafe situations

they were exposed to. Grievor Todd did not personally participate due to

sickness, but evidence was adduced by the union about incidents he was

involved in, which the union relies on to support the group grievance.

[7]

Mr. Martin’s individual grievance is also about denial of sidearm and pepper

spray, but in a different context. He was hired as an AI at the AIU in August

2010, at which time his colleagues were designated as CO’s and had full PPE.

However, until the sidearms and pepper spray were removed from all AIs in

January 2012, Mr. Martin was not appointed as a CO and was not issued

sidearm or pepper spray. Thus from August 2010 until January 2012 he

performed duties of an AI, but unlike his colleagues, he had no sidearm or

pepper spray. His grievance claims that thereby the employer put his health and

safety at risk in contravention of article 9.1 of the collective agreement and s.

25(2)(h) of OHSA; and also exercised its management rights in a manner

contrary to article 2 of the collective agreement, by providing him less protective

equipment than his colleagues. At the commencement of the hearing, in the

face of a proposed motion of no prima facie case by the employer, the union

formally conceded that for Mr. Martin’s grievance to succeed, the union must

establish that the employer’s exercise of its management rights under article 2 to

not to appoint Mr. Martin as a CO and not to issue him sidearm and pepper

spray, resulted in the denial of a substantive right Mr. Martin had under the

collective agreement or legislation. Counsel acknowledged that if the Board

concludes that the employer did not contravene the collective agreement or

OHSA by deciding to remove sidearms and pepper spray from all AIs, Mr.

Martin’s claim that the employer contravened article 9 and s. 25.(2)(h) of OSHA

by requiring him to perform AIs duties, without sidearm and pepper spray could

not succeed.

[8]

Although the Act provided powers of arrest and the authority to stop vehicles in

certain circumstances, the parties agreed that at the relevant time AIs had no

authority to exercise either of those powers.

Ontario Regulation 31/05,

- 5 -

commonly referred to as the Meat Regulation, imposes a number of restrictions

on the selling, transportation of meat or meat product derived from animals. For

present purposes, it suffices to note that the regulation includes licencing and

inspection and approval for use as food under the Meat Inspection Act (Canada).

[9]

A large part of the grievances relates to the AIs work investigating slaughter of

animals for food in contravention of the FSQA. It is alleged that the individuals

AIs encounter in the course of investigating suspected illegal slaughter are often

violent individuals, some with criminal backgrounds. Moreover in rural farms,

where illegal slaughter is carried out, weapons such as guns, large knives, axes,

as well as meat hooks, pitch forks and shovels are common. The union

maintains that those engaged in illegal slaughter strongly oppose the

government’s interference with their activity. It is thus grieved that the removal

of sidearm and pepper spray from the AIs personal protection equipment

exposes them to unreasonable health and safety risk. It is claimed that side

arms are necessary not to engage in a fire fight with the perpetrators, but to

deescalate volatile situations, and if that fails, to enable AIs to disengage and

leave safety.

[10]

[11]

The employer’s position is that considering the nature of an AI’s duties and

responsibilities, the directions, policy and procedures in place, even in the

absence of sidearm and pepper spray, it has the reasonable precautions

required by the collective agreement and OHSA.

The Board notes that by agreement of the parties the evidence led in this case

was not cut off as of the date the grievances were filed. Evidence was led about

additional precautions the employer implemented for AI’s health and safety

following the filing of the grievances.

- 6 -

UNION EVIDENCE

EVIDENCE OF MIKE KINDRIE

[12]

The union led voluminous evidence on the period that led up to the arming of

AIs in 2006. Mr. Mike Kindrie had been the Manager of the Intelligence and

Investigation Section (“IIS”) from 2003 to mid-2008 and had retired in 2013. At

the time the AIU was part of the IIS, and under Mr. Kindrie. He testified that

when he assumed duties as manager of IIS, he only had a general knowledge of

the duties of an AI. As manager, he had no direct involvement with AI work,

although the AIU reported directly to him. However, in time he became

intimately aware of AI duties and responsibilities.

[13]

Union counsel referred Mr. Kindrie to a briefing note he prepared for the Deputy

Minister, which received approval in November 2005. He testified that its

purpose was to seek approval to arm AIs. This change was sought to

“adequately protect” AIs. He discussed that with his superior, Mr. Serge

Tenaglia, then Director of the Enforcement Branch. He stated that his

realization of the need to arm AIs with sidearm and pepper spray was not

related to any incidents. However, when he compared the duties of AIs with

those of “officers of other agencies like OPP, municipal police, and even MNRF

conservation officers” he saw that “there were huge similarities”. The only

difference was the commodity they dealt with. The bad guys and their behaviour

were all the same. Asked to explain the similarities between AI and police

duties, he referred to “under-cover buys, mobile surveillance and stationary

surveillance”. Mr. Kindrie testified that he sought input from AI Mr. Harry

Prentice on these issues because he had been with the Hamilton police force

and had intimate knowledge about IA health and safety issues. He also had

input from “Christal in Health and Safety”, because he wanted to “make sure we

are in the same ball park with other employees doing similar work”. Asked who

those were, he replied, “OPP, Municipal Police forces and our COs”. He

testified that at the time there were no health and safety complaints or

grievances at the AIU. Mr. Kindrie testified that he also sought input from Mr.

Roger Dunlop, Supervisor at the AIU and Mr. John Downey, supervisor at the

- 7 -

Provincial Training Unit.

Mr. Dunlop was familiar with the background

information because he had come from OMAFRA, and had been an AI himself.

Mr. Downey received all use of force reports for Ontario in his position and was

familiar with all use of force training and use of force issues.

[14]

Mr. Kindrie testified that AIs executed search warrants in rural slaughter houses

as well as urban commercial businesses. Asked if an AI would ever be on his

own when executing a search warrant, he said that the AI would always be

assisted by a CO, OPP or Municipal Police Officer. Asked whether COs or

Police Officers assisting would be armed, he replied “I can’t recall. I’d have to

say no”. Asked if he had received requests by AIs for assistance, he replied that

he was not sure since supervisors dealt with those requests. He agreed that

after the AIs were armed COs continued to assist them in executing search

warrants.

[15]

Mr. Kindrie testified that many kinds of knives are commonly used in the illegal

slaughter operations, and that guns may also be used to kill some kinds of

animals. He said that he is aware that illegal slaughter houses use dogs to alert

the owners of the presence of intruders. He said that these dogs do not

generally pose a threat to Als, but occasionally can, particularly in remote

locations where immediate back up assistance may not be available.

[16]

In the Briefing Note, Mr. Kindrie had written that:

“Independent studies by NGOs and Government Law Enforcement Institutions

have consistently shown that law enforcement officers cannot effectively defend

a themselves against edged weapons without a firearm. Even with a firearm, a

reactionary gap of no less than 21 feet, between an officer armed with a side-

arm, and a suspect armed with a edged weapon (knife, screw driver, axe etc.) is

required for the officer to effectively apply approved use of force techniques and

prevent being stabbed”).

[17]

Mr. Kindrie stated that while he was not aware of those studies, he agreed with

those conclusions and that “it was a training mantra that is drilled into our

heads”. Mr. Kindrie testified that the collapsible baton AIs had would not

generally be effective against sharp edged weapons, but if that is the only option

- 8 -

available, in certain situations a baton could be useful. He stated that the

incident of an assault with a baseball bat referred to in the Briefing Note had

occurred at least 2-3 years earlier. Mr. Dunlop was the AI involved, but he did

not know any specifics of what occurred, other than that Mr. Dunlop was not

injured.

[18]

Mr. Kindrie testified that in preparing the Briefing Note he obtained all available

information about other jurisdictions, and it was clear that there was no

agricultural investigation agency that had equipped their officers with fire-arms.

However, he stated that the practice in other jurisdictions did not really matter to

him because “I wanted to ensure I was providing our officers with the tools to

protect themselves as compared to what was normal in the law enforcement

community”.

[19]

Counsel referred to an agenda for a meeting held on April 20, 2005, attended by

all AIs, Mr. Kindrie and a lawyer from Legal Services. Mr. Kindrie testified that

he took the opportunity to update the meeting about his attempt to arm Als.

Referring to notes taken by the Administrative Assistant, he testified that at the

meeting he stated that there is a need to build support for arming Als within

MNRF before going to OMAFRA, to make sure that the Minister would support

the change. He also agreed that he opined that AIs cannot be armed without

appointing them as COs, because appointing Als as COs would be consistent

with the intent of the original cooperative agreement between MNRF and

OMAFRA about cross-appointment, cross-training and cross-utilization.

[20]

Under cross-examination, Mr. Kindrie agreed that since the first draft of the

briefing note was produced in October 2004, he must have started that project

earlier, and that would have been approximately about one year after he started

as full time manager of the AIU. When suggested that since he only had a very

general idea of AI work and the risks involved at the time, he had to seek

information from others like Mr. Prentice about details, he said “not entirely”, and

explained that he had experience as a CO. Counsel suggested that as he

- 9 -

pushed his proposal to arm Als, the groups he consistently looked at for

comparison were police officers and COs. Mr. Kindrie agreed. He also agreed

that by the time he did the first draft in October 2004, he had concluded that the

appropriate option to recommend was to appoint Als as COs, and that he

reached that conclusion even before getting detailed information from Mr.

Prentice or talking to Mr. Downey.

[21]

Counsel referred to a statement in the draft Briefing Note, “if there was a

grievance or investigation by the MOL, very likely the result would be a labour

order requiring MNRF to provide sidearms to AIs”. Employer counsel put to Mr.

Kindrie that it was a presumption on his part that if a health and safety complaint

or grievance is filed by an AI, it would be held that it was not safe for Als to work

without sidearms. He agreed. When counsel put to Mr. Kindrie, “So it was

paramount to get in front of such labour actions”, he replied, “No. From my

discussions we decided we have a duty to protect our officers like others in law

enforcement”. When counsel put, “That’s Police Officers and COs and not any

other law enforcement agency officers”, Mr. Kindrie agreed and added that only

police officers and COs perform law enforcement duties similar to AI duties.

[22]

Counsel referred to the following paragraph in the Briefing Note: According to

Justice Haines’ report “… given the nature of the activities investigated, the

instruments utilized to slaughter animals and to process meat, the wisdom of the

prohibition (from carrying firearms) should be reconsidered”, and suggested that

this paragraph was one of the driving factors for his initiative to arm Als. Mr.

Kindrie disagreed and stated that the initiative was well underway before the

Haines Report. Counsel referred to the list of “pros” favouring the arming of AIs

listed to the effect that it would ‘satisfy the recommendation in the Haines

Report”, and asked whether Mr. Kindrie was stating that Justice Haines was

recommending that Als be armed. Mr. Kindrie replied, “the language was sloppy

but that was the intention”. Counsel pointed out that the Haines Report was

about food safety and not officer safety, that the quoted language was set out in

a foot-note, and that Justice Haines only suggested that the policy be

- 10 -

reconsidered, and asked whether it was Mr. Kindrie’s position that if Als were

not provided with sidearms, MNRF would not be complying with a

recommendation in the Haines Report. Mr. Kindrie replied, “yes”.

[23]

Mr. Kindrie agreed that the purpose of the Briefing Note was to obtain approval

of senior management for arming of Als, and therefore, he put forward the best

examples of incidents he could find, where Als were exposed to risk while

performing their duties. He also agreed that when he asked Mr. Prentice for

information that supported his position, Mr. Prentice provided only the following:

(1) That where illegal slaughter takes place, the individuals involved have

access to weapons such as knives and fire arms and in rural areas immediate

backup may not be available if a volatile situation arises.

(2) That when doing undercover operations, although cover teams are assigned

to protect AIs, AIs having sidearms would increase their current level of safety in

the event they have to quickly remove themselves from risky situations.

(3) That studies show that law enforcement officers cannot effectively defend

against edged weapons without a firearm, and even with a fire-arm a gap of no

less than 21 feet between officer and offender is required.

(4) That the protection equipment AIs had are ineffective against offenders

armed with edged weapons, firearms, clubs or guard dogs.

[24]

Mr. Kindrie agreed that Mr. Prentice only states that the people AIs encounter

have access to knives and guns, not that they confront AIs brandishing those;

that he only states that they have dogs, not that dogs have attacked AIs. When

counsel, suggested that knives, guns and dogs are common in rural farms, Mr.

Kindrie replied that he could not comment. Employer counsel put to Mr. Kindrie

that if immediate back-up is made available the risk to AIs would be significantly

reduced. Mr. Kindrie disagreed and said that he can think of situations where

that may not be so.

[25]

Mr. Kindrie agreed that undercover work by AIs is mostly about posing as a

member of the public and “making a buy”, and that Mr. Prentice states that the

- 11 -

cover team assigned to assist must be armed. He agreed that the “cover team”

when AIs do under-cover work could be police officers or COs who would be

armed. Mr. Kindrie agreed that since under-cover buys are done in the open or

in public places the level of risk to AIs is on the lower end.

[26]

Mr. Kindrie confirmed that by e-mail dated February 14, 2005, he requested Mr.

Terry O’Neil of MNRF to do a search of non-police agencies which provide their

officers with pistols, and told Mr. O’Neil that he needed that information to

rationalize the need to arm AIs with sidearms. He agreed that, he is not aware

of any Canadian jurisdiction or province that provides sidearms to their officers,

apart from Police and conservation officers.

[27]

Counsel suggested that the highest point of risk when executing a search

warrant is the securing of the location, and getting the people in the location to

come out, and that this task is done by the Police first before AIs enter. Mr.

Kindrie agreed. Employer counsel asked Mr. Kindrie, whether there was any

occasion, during his tenure as Manager of AIU, when an AI told him that he/she

was not prepared to go on an assignment because it was too risky. Mr. Kindrie

replied that he was sure there would have been such occasions, but he could

not recall any. He agreed that in such situations he would never compel to go

despite the AI’s concern about risk.

[28]

Mr. Kindrie had set out in the Briefing Note that without an appointment as CO,

AIs would not be able to carry sidearms, and without issuing sidearms, the

employer would not be able to meet its obligations under OHSA. Counsel asked

whether Mr. Kindrie based that on his belief that if there is a work refusal by an

AI, a Ministry of Labour inspector would make a finding that because the

employer did not equip the AI with sidearm, it had failed to take “reasonable

precautions” as required by OSHA. Mr. Kindrie replied “yes”. When referred to

Mr. Kindrie’s rationale for the recommendation that Als be appointed as COs,

Mr. Kindrie agreed that in this version the only rationale he set out was that

- 12 -

arming AIs would improve the level of their health and safety and also would

minimize the chance of liability in the event of law suits against the employer.

[29]

Mr. Kindrie agreed that he asked Mr. Dunlop to provide a history of incidents of

assault on AIs because he was one of the original AIs who had come over to the

AIU from OMAFRA, was one of the most experienced, and therefore, would be

aware of that history. He also agreed that Mr. Dunlop was aware of only one

incident, an assault with a baseball bat, that Mr. Dunlop was the AI involved, and

that he was not injured. When counsel put to him that Mr. Dunlop was not

struck with the bat, Mr. Kindrie replied that he did not know.

[30]

Employer counsel put the following hypothetical to Mr. Kindrie. If an AI armed

with a sidearm is confronted by an individual wielding an edged weapon, as per

training the AI would draw his sidearm and order the person to drop the weapon.

Mr. Kindrie agreed. Counsel asked whether the AI would shoot the person, if he

does not comply and continues to advance. Mr. Kindrie replied that the AI

would, if he was in fear of grievous bodily harm and if all the standards taught in

training are met. Mr. Kindrie agreed that AIs are required to complete an

Incident Report whenever there is use of force. Counsel put that the Briefing

Note does not indicate that Mr. Kindrie had searched for any Incident Reports

relating to use of force in the previous 2-3 years. Mr. Kindrie agreed.

[31]

[32]

Mr. Kindrie agreed with the following propositions by counsel: that MNRF

employs other enforcement officers such as Park Wardens, Deputy COs, and

Port Observers, that none of those officers carry sidearms; that Park Wardens

have the same powers as police officers within Provincial Parks.

Mr. Kindrie agreed that the primary duties of police officers are to keep the

peace and protect the public, and that they have a general power of arrest and

detention. When counsel put to him that AIs do not have any power of arrest or

detention, Mr. Kindrie replied that he did not know, but agreed that his Briefing

Note does not state that they do. Mr. Kindrie agreed that AIs have no duty to

- 13 -

keep the peace, or to protect the public other than by removing unsafe meat and

food. Mr. Kindrie agreed. Counsel then referred to Mr. Kindrie’s testimony in

chief when comparing AIs with police officers, that the only difference was the

commodity they deal with, and that the bad guys they deal with and their modus

operandi are the same. Counsel put to him that the testimony was “utter

nonsense”, and asked whether Mr. Kindrie was aware of the following: that

police officers deal with organized criminal gangs that sell guns and narcotic

drugs; that it is common for such gangs to engage in armed competition with

each other; that it is not uncommon for these gangs to exchange gun fire with

each other or with police; and that part of the modus operandi of these gangs is

to use severe forms of intimidation against rival gangs and police forces. Mr.

Kindrie agreed that he was aware. Counsel put to Mr. Kindrie that he was not

aware of any incident of an illegal slaughter operator or anyone selling illegal

meat after hours ever doing any of that. Mr. Kindrie replied that the focus of the

Briefing Note was on day to day work and not on extreme situations, and that

police officers also do not face those situations every day. Counsel asked, “Can

you point to any incident where a subject even threatened an AI with grievous

bodily harm?” Mr. Kindrie replied that he could not think of one.

[33]

In re-direct, Mr. Kindrie explained that in the Briefing Note his focus was on the

day to day work of AIs compared to day to day work of police and other

agencies, not on extreme events, and that he tried to focus on the 99% and not

the extreme 1%. He added that “we have to think about the 1% but not focus on

it”. Asked how often bad guys exchange gun fire with police in Ontario, he

replied that it is probably a daily or weekly event, based on media and news

reports. Asked why he did not focus on it, if that was so, he said that his focus

was on the risks involved in daily routine duties like surveillance, and that they

were similar to daily police duties.

[34]

Pointing out that he had agreed with employer counsel that history was the best

indicator of future events, union counsel asked, apart from history what else Mr.

Kindrie relied on to conclude that injuries to Als may increase if they are not

- 14 -

issued sidearms. He replied that “the lay of the land, the current situation, the

history of the subjects, our ability to respond, are all part of the risk analysis”.

Counsel asked why he testified that the availability of fast back-up does not

eliminate risk to Als, he replied that the AI’s job is inherently risky because they

are taking away people’s livelihood and they are angry towards law enforcement

officers for doing that and may respond inappropriately.

EVIDENCE OF GRAHAM RIDLEY

[35]

Mr. Graham Ridley has been employed as an AI since 2010. He had been a

police officer with the Ottawa City Police from 1976 to 1981, and the Calgary

City Police from 1981 to 1982. Then he joined Environment Canada Wildlife

Service as Chief of Intelligence, a senior management position, before joining

the OPS.

[36]

Mr. Ridley testified that at one time Als mostly did mobile surveillance.

However, due to concern about officer safety and potential civil liability, the way

mobile surveillance was carried out was changed pending a review whether an

exemption should be requested for Als from the provisions of the Highway

Traffic Act, particularly relating to speed limits. He believed that this was still

unresolved. Therefore, “full blown” mobile surveillance is not done now. Als are

only allowed to follow vehicles passively. Mr. Ridley testified that nevertheless,

even sitting in a vehicle to carryout surveillance is risky because passersby,

neighbours or even the target itself may get suspicious about someone sitting in

a car in a rural road, and can get aggressive.

[37]

Mr. Ridley stated that “dogs on the property is the biggest concern. Dogs pose

a risk”. He stated that, moreover, a barking dog can alert the property owner.

Then the AI has to get out fast. He said that even if an AI finds a good spot to

set up for surveillance, for example with the cooperation of the owner of an

adjacent property, there is no guarantee that he will not be detected. He

testified that there would be a particularly high safety risk if an AI doing

surveillance is detected by a member of a “radical group”, like the Ontario

- 15 -

Landowners Association. They have sign boards like “Government back off.

This is our land” on their properties. They had dumped bales of hay at the doors

of the OMAFRA office, and threatened a MNRF lawyer leaving court hearings.

[38]

Mr. Ridley testified that when he applied for the AI position he expected that he

would have the “CO use of force tools”, that is sidearm, suit body armour,

pepper spray and collapsible baton. As an AI he was assigned files by his

supervisor, Mr. Dennis Beuckelman, who receives files from OMAFRA. Files he

received generally contained information only about food safety risks, not officer

safety. Occasionally OMAFRA may include information that the individual is a

person of interest and can be violent, but OMAFRA had no way of doing a CPIC

check, which would disclose charges under the Criminal Code, and the

disposition, and whether the person possessed a fire arm licence.

[39]

Asked when an AI would have covert contact with a suspect, Mr. Ridley stated

as an example when a complaint is received that someone is selling pepperoni

containing uninspected meat, an AI would go posing as a consumer and

purchase pepperoni, to enable determination whether the complaint is valid. AIs

would also make overt contact with suspects. Then the AI would introduce

him/herself as an AI and show the badge and obtain a cautioned statement from

the suspect. Mr. Ridley testified that suspects do not focus on the badge. They

have to decide whether to “flight or fight”. Often they are wondering whether the

officer is from Police, Customs, or Immigration. Therefore, overt contact is

always a “touchy situation”.

[40]

He agreed that when overt contact is made there are always two AIs, for two

reasons. First, for officer safety so one can watch the others back, and second

to have a witness in the event of allegation of unlawful conduct by AIs. He

explained that even in what appears to be a safe situation like sitting with the

subject who has no violent history at a table and documenting something,

people can still get agitated. While one AI is writing with head down, someone

- 16 -

may come in. Since AIs have no power of arrest, there may be a need to get

out quickly.

[41]

Mr. Ridley testified that the point of making first contact with a suspect is

particularly risky. He considered that to be a “flash point”. The AI has to be very

aware of where he is and the surroundings, and be non aggressive and non-

confrontational. He said that when the badge is shown, a suspect would feel a

bit threatened. So Mr. Ridley typically talked about the weather or something in

the news to put the suspect more at ease. Then he would explain why he is

there, like “to investigate something on your farm”. However, Mr. Ridley testified

that the AI would not know who else is present in the premises besides the

people he can see. He said, “I won’t know if he knew I was coming and had

people come over – possible assailants”.

[42]

Counsel asked how search warrants were executed when AIs were designated

as a CO and therefore armed. Mr. Ridley testified as follows: An operational

plan is drafted including the date of execution, names of all officers who will be

involved, their cell phone numbers, and duties during the search, the evidence

the AIs were looking for and information about the hospital closest to the

location to be searched. He said that as many as possible of the seven AIs in

the province are included in the search warrant. The operational plan then has

to approved and signed by the supervisor. Mr. Ridley was asked besides AIs,

who else may be involved in the execution of a search warrant. He testified that

Als may call on COs to provide security, and sometimes experts from the

Ministry of Finance may accompany them. Since AIs were armed themselves,

police were not requested to provide back-up.

[43]

He testified that upon arrival at the location, the lead AI and the second in

command would enter the premises, while the rest remain out of sight so it does

not look like an invasion. The lead AI would ask to speak to the owner and

explain why they were there, and show the search warrant. Depending on the

owner’s response, the rest of the team would join and begin the search. Mr.

- 17 -

Ridley testified that a search warrant may be executed anywhere including a

residence. Officers do not always know how many people are in the premises to

be searched. So one AI would go early and watch the premises from a covert

position to see who goes in and out. That AI must not be detected because if

the owner gets tipped off evidence may be removed or destroyed.

[44]

Counsel asked whether execution of a search warrant is done any differently

after the sidearm and pepper spray were removed. He replied: “Yes. Now we

cannot call on COs for security assistance. We have to call the local police or

OPP”. He testified that since AI’s sidearm was removed he had concerns for his

safety. He said, “If we have two armed police officers and four or five unarmed

AIs, it is still a concern. We wouldn’t know how many people are in the

premises. If there are five people, there won’t be enough police power to hold

off those five. We need at least one to one to be safe”.

[45]

Mr. Ridley testified that compared to the time when AIs were armed, now more

officers are involved in investigation of illegal slaughter, and instead of COs, AIs

now have police assistance. He said that the problem, however, is when the

police officers do not want to be involved. Although the FSQA requires the

police to provide assistance upon request, it does not happen always. He

referred to the Barn/OPP assistance incident where the police were called for

assistance before he and two other Als entered a farm where illegal slaughter

was going on. One police officer arrived ten minutes later but remained in his

vehicle, while the three Als had to control eleven people who had access to

large knives. He said that since Als were armed at the time everything went

well. He said that since he is no longer armed, he would not do such an

investigation.

[46]

Mr. Ridley testified that sometimes, there are reasonable grounds to believe that

a food safety related offence has occurred, but if there is delay in obtaining a

search warrant, the evidence may be removed. To prevent that the FSQA

allows AIs immediate entry and search of the premises, other than residential

- 18 -

dwellings. Mr. Ridley was asked how such a search, described in the Act as an

“exigent circumstance search”, was done prior to the removal of sidearms. He

testified as follows: No operational plan was prepared. The AI obtains approval

of the supervisor to do an exigent circumstance search. The search would be

conducted by the AI with assistance from other AIs, or COs. He recalled once

calling for assistance from the Ottawa Police because he was by himself, and he

believed the evidence was in the process of being removed. He described the

typical process as follows: The team of two AIs enters the barn in a rural farm

and assesses how many individuals are present. The lead officer identifies the

team as from AIU and orders all the people who were involved in the slaughter

to drop the knives they hold. The people are moved to a corner away from

weapons on the ground. One officer collects all weapons and each weapon is

photographed, and placed outside the door. One AI then would get identification

and relevant information from the owner/operator, while the other obtains

identification from the rest one by one. Each is asked what they were doing

there, are they employees or customers and how much they were paid etc.

Then they are free to leave. If anyone decides to leave before being

interviewed, AIs have no authority to detain them. Finally, the area is

photographed. Mr. Ridley testified that in an exigent circumstance search AIs

would have no information at all about the criminal/violence history of the people

they encounter.

[47]

Mr. Ridley testified that after the removal of sidearms, in performing an exigent

circumstance search, in addition to calling the supervisor, police are always

called for assistance. It was the police that enter the property first. He testified

that exigent circumstance searches pose increased risk to AIs. They have no

search warrant or other legal document to establish authority to enter and

search someone’s property. People therefore see it as government trespassing

into private property and get very emotional. It takes longer for Als to explain

that they have authority and get the owner’s anger level down. Sometimes they

yell, stomp around, point fingers and argue. So the AIs must do the search and

get out quickly.

- 19 -

[48]

Mr. Ridley testified that a family would buy an animal from the farmer and

slaughter it in accordance with their religious beliefs. They do not want

government officers interrupting it. Asked what the officer safety concerns were

when seizing meat in these circumstances, Mr. Ridley referred to “the Goat

slaughter incident” as an illustration. He said five men were slaughtering and

carving a goat. They had knives and the floors were covered with blood and

animal parts. He said that an AI could slip and get injured. If the dirty blood

gets into the wound there is a high risk of an infection.

[49]

Mr. Ridley testified that in the period when he was armed, he did not have to

draw his sidearm even once. Asked if he has ever been involved in a physical

altercation in his career as an AI, he responded that in the Ontario Landowners

Association incident, there was no actual physical contact, but “it could have got

out of hand”.

[50]

Mr. Ridley testified that disengagement was a predominant part of the use of

force training provided to Als. Whether armed or not, if the situation is

escalating and an AI identifies a potential risk, the AI has to remove himself from

the situation even if that means that the incriminating evidence is lost. He said,

“The Ministry is emphatic that officer safety is of paramount importance and loss

of evidence is secondary to you being safe”.

[51]

Mr. Ridley testified that he first heard about the removal of sidearms from AI Ed

Hartnick. Mr. Ridley called his supervisor Mr. Benkelman and asked about it.

The next day Mr. Benkelman sent him an e-mail that it was just a rumour. The

AIs met as a group to discuss about the rumour. Mr. Noel Todd, sent an e-mail

to senior management stating that if removal of sidearms is being considered,

the AIs would like to assist in the study of the issue. Mr. Ridley testified that he

also drafted a report outlining two options, retain the status quo or remove the

CO designation from AIs but retain their sidearms under a FSQA designation.

He said that the only response from Mr. Benkelman was to the effect that he had

- 20 -

sent the report up to senior management. There was no further contact from

management until the conference call in January 2012 when Mr. Moody

announced the decision to remove the CO designation and sidearms.

[52]

Counsel referred to the speaking notes Mr. Moody had used during that

conference call to the effect that since AIs were first appointed as COs in 2006

AIs had performed only around 1% of MNRF enforcement duties and laid only 4

MNRF charges since 2000. Mr. Ridley said that was inaccurate. He explained

that when AIs assist MNRFs COs to execute a search warrant related for

example a deer or moose hunting or ice fishing offences, the enforcement action

is credited to the CO on the CAVERS system and not to the AI. Thus a lot of

MNRF enforcement related work AIs do is not recorded.

[53]

Mr. Ridley agreed that AIs continued to receive use of force training following

the removal of sidearms. However, the training had been amended. Previously

the training was based on the “one up” rule. For example, if the offender comes

at you with his fists, you go one up and use the baton. If someone lunges at you

with a weapon, you go one level up and use the sidearm. He said that now if

someone comes at you with a knife, the AI cannot go one up with no sidearm.

He explained that while AIs are expected to disengage from unsafe situations it

is not always possible to disengage. If the offender is blocking the only exit to

the room, and is armed with a knife or axe, there is no way to disengage.

[54]

Mr. Ridley agreed that during the conference call Mr. Moody had assured that

he would be requesting the Regulatory Compliance Unit (“RCU”) to address any

known or suspected safety issues on each occurrence sent to the AIU for

investigation. Mr. Ridley testified that despite that assurance, the RCU provides

very little other than food safety related information. The RCU has no access to

CPIC to check criminal records of individuals. At times they provide unverified

information about officer safety issues based on rumours, such as X owns guns

or Y is aggressive. While even that information is helpful to AIs, they have to

make their own inquiries and seek police assistance.

- 21 -

[55]

Mr. Ridley testified that during the call Mr. Moody stated that management had

concluded that designation of AIs as COs is inappropriate and invited AIs to

suggest options that would allow them to carry sidearms without a CO

designation. That is why he suggested in the report that AIs should be allowed

to carry sidearms with a designation under the FSQA.

[56]

The evidence is that a “Request for Direction”, dated February 3, 2012 signed by

all AIs was submitted to Mr. Moody. It included the following:

Since 2006 Agriculture Investigators, have through policy been required

to wear and carry use of force tools for health and safety reasons,

therefore we request clarification and direction on how to proceed when

we are in situations where we have reason to believe that we are in a

health and safety risk.

We respectfully request clarification on how you propose to provide us

with reasonable provisions for our safety, since no direction has been

given, and present policies are contrary to your verbal direction. This

request is pursuant to section 25(2)(a) of the Occupational Health and

Safety Act.

At the same time the AIs submitted a request for a workplace risk assessment

pursuant to s. 32.0.3(1) of OHSA. Mr. Ridley testified that he could not recall

any specific action in response to either request by management.

[57]

Mr. Ridley testified that there were two work refusals by AIs pursuant to s. 43 of

OHSA. He was involved in one of those. He stated that RCU had forwarded an

informant complaint alleging that the meat packing business was slaughtering

animals outside the licenced hours, which meant that the meat was not being

inspected as required by law. The documentation from RCU set out many food

safety risks, but with regard to officer safety it only stated “Licenced abattoir-

history shows the operator has been cooperative with inspectors, small

language barriers, licence holder is the father”. Mr. Ridley testified that prior to

doing surveillance on this location he did a CPIC check. It disclosed that the

operator had criminal charges of robbery, extortion, theft over $ 2000, had a

peace bond from 2009, had a fire arms licence but no record of possessing any

- 22 -

fire arms. Mr. Ridley testified that he and Mr. Hartnick set out around 8 p.m.; he

in an unmarked mini-van and Mr. Hartnick in his own pick-up truck. It was dark

and streets were not lighted. The area was not populated. The owner’s house

and the business were next to each other. Mr. Ridley decided that it was not

safe to get close because there was little cover. They took photographs from a

distance. Mr. Ridley testified that at the point he decided to engage in a work

refusal. Asked why, he said “There were only two of us. If one of us is dropped

off close to the house, he is left exposed. We couldn’t park and walk close to

the house because there was no way to conceal the vehicle. There was no

cover for us once away from the vehicle. We discussed and decided that the

“cons” outweighed the “pros”. We were so far away from the nearest OPP. So

even the panic button on our radio won’t get us back up. So we agreed to

refuse”.

[58]

Therefore, Mr. Ridley called Mr. Beuckelman and informed about his refusal to

do unsafe work. Mr. Beuckelman directed them to get to a safe location and do

a report. They drove back to the Kemptville AIU office and wrote a report. In it

Mr. Ridley reviewed the operator’s criminal background disclosed in the CPIC

check, and wrote the following:

In view of having been accosted previously by the Ontario Land Owners

Association in a similar situation, the time of night, the above information related

to the individual, the remoteness of the location, that butchering is conducted

with long bladed knives, I was of the honest belief that I was not in a safe

situation and that a danger existed to me without my protective tools.

[59]

The work refusal was referred to the Ministry of Labour, and a number of

conference calls were held with the Inspector who was appointed, with Mr.

Hartnick, Mr. Moody, and others participating. In the inspector’s Field visit

Report dated February 29, 2012, the following is included:

These workers investigate illegal slaughter and meat processing

operations. Cases are passed to them for investigation by the Ontario

Ministry of Agriculture Food and Rural Affairs. Until January this year the

workers were appointed Conservation Officers and carried body armor,

hand cuffs baton, pepper spray and a firearm. Recently their status as

Conservation Officers was withdrawn and their pepper spray and firearms

were handed in.

- 23 -

Firearms are often used in the locations being investigated to kill animals.

Knives are also in regular use.

In each of the refusals the workers were operating in teams of two.

Existing protocols allow the investigators to call on local police

departments for assistance in pursuing their investigations.

The workers believe their ability to protect or defend themselves in a

conflict situation has been compromised as a result of removing the

pepper spray and firearm.

[60]

[61]

[62]

With respect to the two work refusals, the inspector concluded:

Under the Occupational Health and Safety Act section 43.3 a worker has

the right to refuse where workplace violence is likely endanger him or

herself.

The threat scenarios presented in the two work refusals refer to

hypothetical situations. In other words the workers were refusing on the

basis that a series of hypothetical events might occur which in turn might

lead of a conflict situation which might lead to an unsafe situation. This is

insufficient to meet the requirement of “Likely to endanger” as required by

the OHSA. This inspector finds that the circumstances reported in the

two refusals mentioned do not meet the requirements of the OHSA.

However, the inspector ordered that the employer do a risk assessment

for AIs.

On March 1, 2012 Mr. Moody requested the following from each of the AIs:

As I move toward compliance with the orders I will need your input to

ensure that all of the workplace violence risks associated with AIU duties

can be identified and assessed. To that end, please send me a list of all

the situations and locations that you think an AIU investigator could

reasonably find themselves in during the course of an investigation. This

means everything from routine business to higher end things like

executing search warrants etc. Think about the types and locations of

places you go, the times of day, people you deal with and the activities

they are engaged in. In each case, briefly describe the violence risk you

believe is associated with each location or situation. I would like separate

input from each AIU member so that I know everyone has had an

opportunity to provide their personal view.

An interim direction dated March 23, 2012 was issued to AIU officers in

response to the MOL order. Reviewing its provisions, Mr. Ridley’s opinion was

that most of it was newly written down, but not new in practice. He testified that

AIs still operate in accordance with this interim direction. With input from his

colleagues, he responded to the interim direction raising questions and

concerns. As examples, he said it uses the words “Risk” and “Threat”, but it had

never been explained to AIs what the difference between the two words are.

- 24 -

Also, the interim direction did not explain how an AI with no sidearm can

disengage if an armed person is blocking the only exit and there is no way to

escape. If the person is wielding a knife, the AI, if armed, is able to draw the

sidearm to get the person to move away from the exit, or to drop the knife, to be

able to disengage. Without a sidearm disengagement is not possible. Mr.

Ridley testified that he has never faced a situation where he could not

disengage, but said that it could happen. If it does, an AI is able to log on to

notify the PSU on his radio which is connected to the OPP Fleetnet system.

However, the problem is that if he is in a rural location, the closest police vehicle

receiving his call for assistance could be 10 minutes away and in that time “a lot

can happen”.

[63]

Union counsel asked who gets to the scene first, where AIs have police

accompanying them, AIs or police. He replied, “It depends. The Police are there

to keep the peace, not to enforce legislation. Unless we have grounds to

believe there is imminent danger we cannot ask police to go in first and secure

the place. In my view, they can’t be there until we are there. I may be wrong on

that. That is why we asked the question”. Mr. Ridley agreed that AIs were

issued radios with a red button. When the button is pressed the radio sends a

message to the OPP with the AIs name, his vehicle identification and the

address the AI had logged in as the location he was going to. He said, however,

that this tool would not help if the AI had left the radio in the vehicle and did not

have it on his belt.

[64]

Union counsel asked Mr. Ridley why he took the position that he would not be

adequately protected by one police officer, when a number of persons of interest

are present. Mr. Ridley replied, “A police officer is there to preserve the peace.

But his first concern is to protect himself, and then perhaps protect me later. He

will be first concerned with the person of interest closest to him”. He said that he

formed that opinion based on his time as a police officer, that “we were told you

have to protect yourself first because if you go down you can’t protect the

public”.

- 25 -

[65]

The evidence is that the employer contracted the Public Service Health and

Safety Association (hereinafter “consultants”) to do the risk assessment ordered

by the MOL. Each AI was invited to be interviewed by the Consultants. The

Consultant’s report (hereinafter “The Risk Assessment”) authored by Mr. Jeff

Pajot and Mr. Dave Carter was released in August 2012. The 28 page report

sets out the following conclusion:

Conclusion

The MNRF Agriculture Investigators (AI) may occasionally face moderate

and low risks of Violence in the workplace. Management and workers

alike at MNRF have exhibited top-notch professionalism and strong

desire for the safety of all AI’s. The current Violence prevention controls

at MNRF are numerous and the training is excellent especially related to

disengagement, defensive tactics, conflict resolution skills/tactical

communication and negotiation skills. Historically, the actual use of force

is extremely rare. There has not been a single officially documented

report of use of force with the AI’s in accordance with policy ENF PO

3.01.02 (Use of Force Reporting).

Furthermore, the Rules of

Engagement policy is very clear and the AI’s are not required to

knowingly place themselves into a potentially violent situation without

adequate safeguards in place.

[66]

Mr. Ridley testified that he disagreed with that conclusion. The AIs met as a

group to discuss. Using input from the AIs, he put together a document titled

“Employee Input and Comments”, and it was submitted to Mr. Moody. In that,

he included the following criticisms: First, the report mitigates risk because

employer policy states that AIs are to disengage where risk arises. That fails to

recognize the unpredictability of human nature. Seemingly calm situations can

quickly turn violent. Second, AI investigations sometimes involve contact with

individuals with criminal records. “What can start off as a cordial conversation

can quickly and without warning turn into a life and death struggle because the

place is a grow op, or the person being contacted by an AI has just committed a

criminal offence.” Third, consultants conclude that AI training is “excellent” but

does not address the fact that AIs have not received any training on how an AI

may disengage, where it is not possible and they no longer can rely on the use

of deadly force for officer safety.

- 26 -

[67]

Mr. Ridley was asked about incidents he was involved in as an AI where he felt

at risk. He testified as follows. In the OPP Detachment Incident in 2010, when

AIs were still armed, Mr. Ridley was asked to return records seized by another

AI to an individual C. C had been just released from jail and was required to

periodically report to the Renfrew OPP unit as a condition of release. Mr. Ridley

arranged with the OPP to hand over the records to C at the OPP detachment in

Renfrew. Counsel asked what the safety concern was. He replied that the OPP

advised him that C had a bad temper and had been convicted and jailed

because he had driven his vehicle head on to the vehicle driven by his ex-wife’s

boyfriend. Mr. Ridley met C at the OPP detachment, walked together to Mr.

Ridley’s vehicle and the records were handed over to C.

[68]

The Ottawa Police Incident was in 2009, and AIs were still armed. It related to

an allegation that a home owner A was slaughtering animals on his property.

A’s house was on a 5 acre property on a rural side road. The neighbour who

complained had informed that currently A had meat hanging from hooks in his

garage. Mr. Ridley and AI Todd entered the property under s. 24(1) of the

FSQA and looked from the window of the detached garage. He observed 6

sides of beef and a pig hanging from hooks. He photographed the evidence.

He did not observe any activity or any butchering tools like knives. Then on

three consecutive days, he carried out passive surveillance of the property with

a CO, who remained out of sight in his marked vehicle. One day he observed A

put plastic bags in a container, and placing the container in the trunk of a car

and the car drove away. He and the CO followed and stopped the car. An

inspection of the trunk revealed 24 zip-lock bags of ground pork. Using that

evidence, Mr. Ridley obtained a search warrant to search the garage. The next

day AIU received a complaint that meat was being removed in a rental truck.

Mr. Ridley informed the COs in the area and the local police, and requested that

any vehicle leaving the property be stopped. When Mr. Ridley arrived, the truck

had been stopped on the road by the police. The truck contained meat –

evidence of unlawful slaughter. With his supervisor’s consent, Mr. Ridley

initiated an exigent circumstance search. In the meantime the police officers

- 27 -

had checked A’s background and found that he was an active member of the

Canadian Armed Forces and owned guns. As required by Police policy they

called a SWAT team but they were busy. Therefore it was agreed that A, who

was still in his residence, should be called and asked to turn on the lights and

come out and meet them on his driveway. It was night time and dark. The

police took the lead and proceeded to the driveway and met A. Mr. Ridley

testified that A was very cooperative. He did as directed. Mr. Ridley, in a

Ministry Vehicle, entered the property. He testified that he observed a police

officer walking behind a police vehicle as it approached the house, crouched

and holding a high-powered rifle at his shoulder. The police kept A occupied,

while Mr. Ridley and the CO searched and seized evidence. After the police

officers left, Mr. Ridley and the CO went in to the house with A, sat at the kitchen

table and took a statement from him and left. Mr. Ridley said that since he and

the CO were both armed, he felt he had the situation under control.

[69]

Mr. Ridley next testified about the Lamb Slaughter incident in a rural area west

of Ottawa in 2009, also prior to the removal of sidearms from Als. It related to a

complaint that the property owner M was slaughtering lamb in a barn behind his

house. Mr. Ridley and Mr. Todd set up surveillance. Mr. Ridley testified that he

observed a man carry garbage bags out of the barn and load them on to a

vehicle. They stopped the vehicle as it left M’s property and the meat was

seized. Mr. Ridley stated that the man at first was “pleading and crying on his

knees”. Then he stood up angrily and forcefully leaned towards the two AIs,

clenching his fists and raising his voice. Mr. Ridley testified that he believed that

he was “going to be assaulted”. Then the man calmed down and passionately

explained that he needed the meat for a family religious ceremony in Montreal.

A statement was then obtained from the man.

[70]

Mr. Ridley then called his supervisor and received authorization to conduct an

exigent circumstance search of M’s property. They opened the barn door and

entered. M was seated and watching 5 men butchering sheep and goats

hanging on hooks, each using a large butcher knife. Mr. Ridley held up his

- 28 -

badge and in a loud voice announced who they were and ordered the men to

drop the knives. The men moved to a side of the barn, some dropping their

knives. Mr. Ridley ordered everyone to pull out their identification. Mr. Ridley

went over to M, who had his identification in hand, and took his note book out to

take a statement from M. As he did that he heard Mr. Todd yell out “show me

your hands” twice, and then “stop where you are”. He saw the five men walk

towards Mr. Todd. He saw that four of the men had nothing in their hands. The

fifth had his hands behind his back and was not visible to Mr. Ridley, and he did

not stop but kept walking towards Mr. Todd. He observed Mr. Todd reach into

his jacket and believed he was going to draw his sidearm. Mr. Ridley testified

that the four other men started to yell to the fifth in Arabic. The man abruptly

stopped and put his hands up to show he was not holding anything. The officers

then took separate statements from the five men, and left. M stayed and was

then interviewed by the two AIs.

[71]

The officers searched the property and took photographs. Referring to the

photographs, Mr. Ridley highlighted the health and safety risks he faced during

this investigation; Five knives, two large and three smaller; Two meat hooks,

which could have been used as weapons; Animal parts, blood, water and feces

covering the barn floor would have prevented traction and hindered

disengagement if there was a threat to safety; There was a hammer on the floor

near the chair M was seated on, and a shovel outside the barn back door which

also could have been used as weapons; Behind the barn, there was a burn pile

with animal parts, which could attract predatory animals. Mr. Ridley testified that

when they arrived at the property, there were three parked cars. Therefore, they

knew at least three people were there. Union counsel asked why he entered the

barn without knowing how many people he would encounter. He replied, “We

were both armed and therefore secure, and we were not going too far into the

building”.

[72]

The next illustration of safety risks, Mr. Ridley testified about was the Ontario

Landowners Association Incident in 2009, relating to a complaint that A, a

- 29 -

farmer in a rural area outside Ottawa was illegally slaughtering sheep. He and

Mr. Todd were assigned the file, but received no information about A. On

November 27, 2009, he and Mr. Todd went out to the property on a rural road.

They were both armed, but in civil clothes, and were in separate unmarked

MNRF vehicles. Mr. Ridley parked on the gravel part of the road in front of A’s

property with the intention of surveilling the property. Mr. Todd was parked

some distance away out of sight.

[73]

Mr. Ridley testified that he got out to go sit in the back of his van, when a pick-up

truck approached from the front and stopped 5 feet in front of his van. Two men,

A and his adult son, got out and approached. Mr. Ridley saw a plywood sign on

the bed of their pick-up, with the lettering, “This is our land – Back off

government”. Mr. Ridley testified that he was aware that the OLOA was a

radical group described by the OPP as a vigilante group supporting the right to

do traditional farming. He had heard that its supporters had dumped bales of

hay in front of an OMAFRA office and harassed a crown prosecutor leaving the

court house. The two men stood between the two vehicles. Mr. Ridley said

that A “came towards me and in an aggressive way – not shouting but in a loud

voice said, “what are you doing here, get off my property”. Then another vehicle

came and parked behind Mr. Ridley’s van, boxing it in. Mr. Ridley asked A, “Are

they with you” and A said “yes”. Mr. Ridley told A, “tell them not to get out of the

car”, and A shouted, “stay in your car”. Then Mr. Ridley opened the driver’s

door of his van and turned on the red lights to indicate it was a law enforcement

vehicle, and also displayed his badge. The 2 men calmed down when they saw

the red-lights and Mr. Ridley’s badge. Mr. Ridley asked them to “back off” and

they did. Mr. Ridley moved towards his van and had a conversation with A, who

said to the effect that someone was stalking his daughter and he thought Mr.

Ridley was that person. Mr. Ridley did not believe A. He also lied to A that he

was watching the area because of reports of someone hunting deer at night.

Finally, since he had not seen any other vehicles, he told A the truth that he was

investigating a report that he was slaughtering on his property. A started ranting

a bit about government interfering with his farming business. Mr. Ridley

- 30 -

explained that he was only doing his duty and told A that he and the others

should leave. The two men got in and drove up the driveway to the house

followed by the other vehicle.

[74]

Mr. Ridley testified that the encounter was “fairly stressful”. He sat in his vehicle

for a few minutes. He saw 8 to 10 vehicles arrive and drive up to A’s house. Mr.

Ridley had heard that the OLOA had a communication system for use by its

members, and believed that A had called for backup. Union counsel asked why

Mr. Ridley did not call Mr. Todd on the radio when he found himself in a stressful

situation. He replied that had he reached for the radio in the car, it would have

escalated the situation. He said that he could not disengage immediately and

drive away because his vehicle had been boxed in. After a few minutes Mr.

Ridley decided not to continue any surveillance because it was not safe, and

left. Mr. Ridley later found out that A was a leader of the OLOA and that he had

firearms registered in his name. A had subsequently lodged a complaint about

Mr. Ridley being there that night, and his supervisor Mr. Kyle Cachagee had

visited A to discuss it.

[75]

Mr. Ridley also testified about the animal part dump site incident. Referring to

photographs taken during his visit to the site accompanied by a CO, he testified

that he discovered a dump site with animal parts strewn around in the woods

behind a remote rural property. He later determined that the site had been used

regularly to dump animal parts. He was able to identify and contact the owner of

the property owner M. M told him that he had arranged with a friend who

operated a beef processing business to give him discarded beef bones/and

parts which he dumped at the site. He assured Mr. Ridley that he did that so the

under nourished bears in the area can feed on it, and not to bait bears.

[76]

Asked what Mr. Ridley’s health and safety concern was, he said there was “a

high possibility” of a bear or other predatory animal emerging from the woods

while he was inspecting the dump site. He felt secure only because he had a

sidearm. He added that, even if an armed CO was with him, he would not feel

- 31 -

safe if he did not have his own sidearm because the CO may delay shooting the

bear out of reluctance to kill it.

[77]

Mr. Ridley also testified about an investigation relating to a former veterinarian

V, in July 2010, while he was still armed. V’s veterinarian licence was revoked

and he had been ordered to return all medicines he had. He did not comply.

Mr. Ridley was assigned the file. Mr. Ridley testified that V had assaulted a

RCU Inspector by grabbing her arm when she attempted to serve a document

on him. Mr. Ridley obtained a search warrant and attended at V’s residence to

execute it. The team consisted of Mr. Ridley, 3 other AIs, 3 RCU officers, and 4

police officers. The police knocked on the door and V opened the door. The

police showed him an arrest warrant for assaulting the RCU officer and took him

into custody. When asked who else was in the house, V said that only his

daughter, who was sleeping in her bed-room. The police brought her also

outside, and the search of the house commenced. Mr. Ridley testified that

police assistance in the execution of this search warrant was requested because

he believed there was a risk of someone being bitten by V’s dogs, and that he

may have firearms. A check of the Canadian Firearms Registry did not show

any registered firearms in V’s name. However, the search disclosed 9 long guns

in the premises. Two shot guns were also located, one inside and the other in

V’s pick-up truck parked outside. Only the shot gun in the truck was loaded.

Several boxes of ammunition, some loose shells, and a knife were also located

in different areas in the house. Mr. Ridley did not know if the ammunition fitted

any of the firearms found. Mr. Ridley testified that the discovery of the firearms

raised two safety concerns for him because of the way and they had been

placed behind doors and propped up on the floor. First, it was unsafe storage.

Second, why were they placed to enable quick access – was it to be used on

critters or on people V did not like.

[78]

Mr. Ridley next described the Barn Slaughter Investigation he conducted in the

Ottawa area in August 2011, when AI’s were still armed. Following a complaint

that a farmer, N, was slaughtering cows, goats, sheep and pigs in a barn on his

- 32 -

farm and selling the meat, Mr. Ridley, Mr. Hartnick and a CO set up surveillance

of N’s farm. On the second day of surveillance, they observed a number of

vehicles arrive. Several men exited and entered the barn. Then another man

arrived in another car, went in and came out carrying five large garbage bags

and loaded them into his vehicle and drove off. The officers followed and

stopped the vehicle and a search revealed that the bags contained freshly

butchered meat. The man told them that he had just purchased the meat from N

and that a slaughter of a cow was still going on.

[79]

Mr. Ridley got permission from his supervisor to do an exigent circumstance

search and called the OPP for assistance. Then Mr. Ridley, Mr. Hartnick and

the CO entered N’s property. They entered the barn and the CO took position at

the door. They observed about 10 men kneeling and cutting chunks of meat

with knives. Nearby on the floor was a cow’s head. Mr. Ridley yelled out an

order to the men to put their knives down and exit through the door where the

CO was. They were slow complying, but they did. Later, one of the men told

him that they had recently immigrated from Vietnam and did not understand

much English. Upon questioning, it was determined that they were customers.

After taking statements from them they were ordered to leave and they did. N

was ordered to remain. Mr. Ridley testified that while the three officers were

dealing with “10 to 15” people, an OPP officer arrived in a cruiser, but remained

in the vehicle. Mr. Ridley commented that it was a very hot day.

[80]

Using the photographs put into evidence, Mr. Ridley noted the following potential

weapons found in the slaughter area: numerous butcher knives, including one

19½ inches long; two band saws; a foot long knife sharpener; a shovel; and a

hammer. He also highlighted that the floor was covered with blood, animal parts

and water from a hose which was running, and therefore was extremely slippery.

Mr. Ridley demonstrated that the collapsible baton AIs have is only 21 inches

when extended. It is supposed to be used in an “eight motion”. He said that to

defend against a 19½ inch knife with it he would have to get close to the

attacker, and the knife would be within striking distance.

- 33 -

[81]

Mr. Ridley also testified in some detail about an investigation he conducted after

the removal of the CO designation and sidearm from Als. It related to an

allegation that S was allegedly slaughtering animals on his farm. Mr. Ridley

testified in some detail, starting with conducting surveillance, obtaining

statements from persons who drove off the property with illegally slaughtered

animal meat, to the point when he and Mr. Hartnick met with S at the farm, and

obtained a cautioned statement from him. When asked what his health and

safety concerns were during this investigation, he replied that there was none.

[82]

Union counsel referred to Mr. Ridley’s evidence that the highest level of risk is in

illegal slaughter files, and asked how many illegal slaughter investigations he did

in a year. He said 2 or 3 files a year would be assigned to him, and he may

assist in some others, and added that the number does not matter because one

high risk situation is enough.

[83]

Asked about communication tools available, Mr. Ridley testified that Als had cell

phones, which like OPP cell phones work through towers. Therefore, if the

tower is down nothing works. He said that he is also provided a satellite radio.

He takes it only when working in remote areas. He would usually be calling 911

if he uses it. Mr. Ridley testified that the satellite phone “is not the easiest to

use, because in high stress situations you lose your motor skills. So it is not

easy to punch in the right numbers”. He said that in remote areas, nearest

police assistance could be “round the corner or half an hour away”.

[84]

In cross-examination, Mr. Ridley confirmed that he was very concerned about a

possible bear attack during the dump site incident. Counsel asked Mr. Ridley

why he did not mention during testimony that at the time AIs had been issued

bear spray and trained on how to use it. Mr. Ridley replied that “It slipped my

mind” and added that in any event in training he was told that to be effective the

bear has to be sprayed on the nose, and he would not want to get that close to a

bear. Referring to material used during the AI training counsel asked whether

- 34 -

Mr. Ridley recalled being taught not to use a sidearm like the ones AIs had on a

bear because it would be ineffective. Mr. Ridley said he could not recall. Asked

whether he disagreed with what the material states, he replied “No. It is a

scientific document”.

[85]

Mr. Ridley agreed that the Risk Assessment is designed to allow AIs to assess

the extent of risk to be expected in an investigation, and that AIs are required to

complete it based on the information available. Counsel reviewed with Mr.

Ridley how each of several potential activities are scored and then added up to

come up with a total score. If the total is zero to 8 an AI can do the assignment

alone. If it is 9 to 16, the AI must be accompanied by another AI. If it is 16 to 24

an operational plan must be done and two AIs are required. If the score is 25 or

higher two AIs and operational plans are required and the Police must be

present. The AI must present the completed risk assessment to the supervisor,

who will approve it with or without changes to the total score. If an AI finds

during the assignment that unanticipated activity is necessary, a risk

assessment must be completed for that activity.

[86]

Mr. Ridley agreed that the review was accurate. He also confirmed that the last

time he was a member of a police force was 30 years ago, and that the Federal

Intelligence Service of which he was the chief was primarily a research and

analysis unit that supported federal officers. He also agreed that the review he

testified about disclosed that besides the RCMP, only three other groups,

Canadian Wildlife Wardens, Corrections Canada Jail Guards, and Fisheries and

Oceans Officers were armed. He agreed parks Canada Officers were not

armed, and that while Parliamentary Committee recommended that fire-arms be

retained for the three groups, it did not recommend that Canadian Food

Inspectors be armed.

[87]

Mr. Ridley testified that compared to the past, limited mobile surveillance is

conducted by the MNRF and by the AIU now. He agreed that AIs were given

direction that they cannot exceed the posted speed limits or stop vehicles by

- 35 -

turning on the red lights on MNRF vehicles. He added that AIs may still stop

vehicles using hand signals if it can be done safely. Counsel reviewed Mr.

Ridley’s evidence about how he would follow a vehicle leaving a farm and when

it stops at the driver’s destination, he would make contact and obtain

information. Mr. Ridley agreed that while he did that when he was armed, he

had not done that since his sidearm was removed. Now he would take

photographs and videos as he follows the car to its destination, but if the driver

detects him following, he would call off the surveillance.

[88]

[89]

[90]

Mr. Ridley agreed with the following facts suggested by employer counsel.

Presently, before conducting surveillance of a farm or business, he would

complete the risk assessment and determine whether he could do it alone, or

would need the presence of other officers and/or police; he would inform his

supervisor as well as dispatch, the date, time, location, who he is accompanied

by, and the identity of the person of interest, and what vehicle he would be in; if

he has any safety concerns during the surveillance he could inform the

supervisor or simply stop the surveillance.

Mr. Ridley agreed that if he was doing surveillance on an illegal slaughter

operation by himself based on the risk assessment tool, he would in most cases

sit in his vehicle and look out for vehicles entering and leaving the farm. In

some cases, where there is no suitable spot to park his vehicle to do

surveillance, he would be dropped off by a second officer and he would observe

on foot from a position where he could not be seen. In those instances he would

be in radio contact with the second officer who would be close by in the vehicle

out of sight.

Mr. Ridley agreed that of all of the incidents doing surveillance he testified

about, he was detected only in two. Counsel put to him that despite his

testimony that it could be very dangerous if detected, in one, the OLOA incident,

all that happened was the individual got agitated and aggressive, but in the

other, the CPIC incident, the person did not even approach him. He agreed.

- 36 -

Counsel put to Mr. Ridley that although he testified that presence of dogs was

one of his “biggest dangers” when investigating illegal slaughters, he did not

mention dogs in any of the incidents. Mr. Ridley agreed.

[91]

Mr. Ridley confirmed his testimony that people associated with OLOA posed a

particular threat to his health and safety. Counsel put to him that, besides the

incident involving a member of that organization, the only other evidence he

tendered to support the presence of such a threat was: that they had dumped

bales of hay at an OMAFRA office; that they display signs like “Government

back off. This is our land” on their vehicles, on road signs or at entrances to

their farms; that they show up at court proceedings and once blocked a crown

attorney. Mr. Ridley agreed. Counsel put to him that all of these actions were

public statements by the OLOA of their displeasure about government interfering

with their rights. Mr. Ridley agreed. He also agreed that he is not aware of any

member of the OLOA ever making a threat against or assaulting anyone.

Counsel put to Mr. Ridley that threatening or assaulting someone would be

entirely inconsistent with the very public and vocal campaign the OLOA is

carrying on against government interference. Mr. Ridley agreed.

[92]

Counsel suggested that generally in investigating illegal slaughter, the AI would

first review all information gathered through informants and surveillance, and

based on those obtain a search warrant. Presently a search warrant may only

be executed with police presence. The team would conduct the search after the

police had secured the place. Then the person of interest would be invited to

provide a cautioned statement in the presence of at least two AIs. If deemed

necessary, the police can be asked to stay until the statement is obtained and

the AIs are ready to leave. Mr. Ridley agreed.

[93]

Counsel referred to Mr. Ridley’s testimony that the point of first contact with a

person of interest is a “flash point” because people get agitated as soon as an

officer shows the badge which identifies him as law enforcement, and that at

that point the person decides whether to “fight or flight”. Counsel asked whether

- 37 -

Mr. Ridley can think of any instance of a person either fighting or fleeing when

first contacted by him. He said he could not. Counsel suggested that when an

AI shows the badge, beyond providing identification, it is a means of asserting

control. Mr. Ridley disagreed. Following further cross-examination, Mr. Ridley

stated that if the officer is uniformed, a badge may help assert control, but not

for AIs because they are in civil clothing. For AIs the badge provides

identification and shows that the officer has authority to be there. Under further

questioning he agreed that he has seen that the badge has a calming effect on

people.

[94]

Mr. Ridley testified that AIs are still allowed to stop vehicles with hand signals,

but it is not safe to do so. Counsel put to Mr. Ridley that when AIs raised that

concern, by email dated November 12, 2012, Mr. Moody directed that AIs

should not stop vehicles at all, even if it means evidence would be lost; that if

deemed essential to stop a vehicle the police should be called; and that “safety

comes first”. Mr. Ridley agreed. When counsel put to him that this is consistent

with “what Mr. Moody always said that Officer safety comes first”. Mr. Ridley

agreed.

[95]

Counsel put to Mr. Ridley that members of the OMFRA Regulatory Compliance

Unit are also engaged in regulatory compliance relating to food safety like AIs,

the only difference being their investigations lead to a direction, while AIU

investigations lead to prosecution. Mr. Ridley agreed. He also agreed that RCU

officers attend the same farms and businesses and interview the same people,

before AIs investigate illegal slaughter. Mr. Ridley agreed that RCU officers

have never been appointed as COs and were never armed with a sidearm.

[96]

Mr. Ridley disagreed that when RCU officers make contact with farmers, those

are non-confrontational, and testified that he was aware of quite a few instances

where RCU officers had to call the police. He agreed, however, that if he felt

there was any risk in meeting with a farmer, he would not proceed. Counsel

reviewed again the steps the lead AI has to take in order to obtain a search

- 38 -

warrant and how an operational plan is created. Mr. Ridley agreed that before a

search warrant is executed a briefing meeting is held with everyone, including

the police, in attendance, and that the role of each individual is outlined.

[97]

Mr. Ridley agreed that in the “old days”, AIs used the police much less than

presently; that it was COs who assisted in execution of search warrants. They

would secure the property, locate all individuals present and keep them isolated

securely while AIs searched the property. He agreed that instead of COs, now

the police perform that function. He also agreed that the point of first contact is

when the lead AI seeks out the owner or operator of the property where illegal

slaughter is suspected, serves him with the search warrant and explains what

they would be doing, and that all of this is done with the police present.

[98]

Counsel reviewed that in the Goat Slaughter incident two armed AIs came upon

five men who had butchering knives in their hands, and in the barn/police

assistance incident two armed AIs and an armed CO came upon thirteen men

who also had access to knives and other potential weapons. Counsel pointed

out that Mr. Ridley had testified that despite being badly outnumbered he felt

safe because the AIs and CO were armed. Counsel asked why he then takes

the position that today, AIs are not safe unless there are armed police officers in

a one to one ratio to the number of people they come upon. Mr. Ridley replied

that when he is armed he is in control of protecting himself. “Now we are not

armed. The police officer will protect himself before he protects me”. Mr. Ridley

agreed that he is contemplating a situation where multiple people attack with

weapons, the police officer shoots the one attacking him and will not have time

to shoot the others who continue to attack the AIs. Mr. Ridley agreed that he

had never made a complaint about the number of officers assigned when police

assistance is requested. Counsel asked, “Let alone multiple attackers, can you

give any example of even one person attacking an AI with a weapon”. Mr.

Ridley replied that he was not aware of any.

- 39 -

[99]

Counsel referred to Mr. Ridley’s testimony that in the Barn/OPP assistance

incident when police assistance was requested one officer arrived but sat in the

vehicle and that the three officers had to control eleven men who had knives.

He asked whether he was saying the police officer was derelict and failed to

provide the support requested. Mr. Ridley replied, “I didn’t say derelict. It was

just that it was a hot day and he had AC in the vehicle”. Counsel put to Mr.

Ridley, “You are saying to the arbitrator that the police cannot always be relied

on”. He replied, “I am indicating they don’t necessarily assist although we call

them”. Counsel pointed out that the employer had informed AIs that the FSQA

requires the police to assist when requested, and asked whether Mr. Ridley ever

complained that the police failed to assist. Mr. Ridley replied that the police

officer in this instance was not asked to do anything and he was not going to

make a big fuss about it. Asked whether he asked the police officer to assist, he

replied that he did not because he did not feel there was a need for assistance

because “nothing happened”. Asked whether the police officer would have

assisted if requested, Mr. Ridley replied, “probably”. Counsel pointed out that

since the police attended the briefing meeting held prior to execution of a search

warrant the role of the police would be determined at that meeting. Counsel

asked Mr. Ridley whether he was saying that despite that, and the legislated

duty to assist, police officers decide if and when they would assist. Mr. Ridley

replied, “they fulfill the role assigned during the briefing”. Mr. Ridley agreed that

the weapons usually found at illegal slaughter locations are knives used to kill

the animals and that he had never seen guns.

[100] Mr. Ridley agreed that in April 2014 Mr. Moody made a presentation by

teleconference, followed by a written direction which included the following: that

exigent circumstance searches should not be resorted to where use of force,

such as kicking down a door, is necessary; that evidence found during an

exigent circumstance search may not be removed unless the person consents;

and that whenever possible search warrants should be resorted to instead of

exigent circumstance searches.

- 40 -

[101] Mr. Ridley agreed that on an application of the risk assessment tool presently

used, exigent circumstance searches always exceed the 25 score and therefore

can only be done with an operational plan and police presence. He agreed that

this was a marked change from the past practice when an AI who believes that

illegal slaughter was going on could do an exigent circumstance search with a

second AI, after obtaining permission from the supervisor. Employer counsel

put to Mr. Ridley that now, like in a search pursuant to a warrant, in exigent

circumstance searches the police enters the property first, secures it, locates

and isolates all persons on property and watches them while the officers carry

out the search. Mr. Ridley agreed.

[102] Counsel referred to Mr. Ridley’s testimony that adequate training had not been

provided to AIs on how to disengage with no sidearm or pepper spray,

particularly if the person is blocking the exit and has a weapon. He pointed out

that now during a search there always would be an armed police officer present.

Mr. Ridley replied that this danger can arise when AIs are there not to do a

search, but to simply question the person. He said that once he went to a

business with its manager with no intention of doing a search. Upon entering he

saw calves hanging from hooks. When counsel put to him that the business in

question was licenced, that the AIs were being taken around by the manager to

show the operation in broad daylight, and suggested that in those circumstances

the chances of the manager or anyone else assaulting the officers were

negligible. Mr. Ridley replied, “No. Anything can happen”. Asked if that has

ever happened to an AI, Mr. Ridley replied “no”. Counsel asked whether he

would go by himself to question a business owner if the risk assessment score

indicated an under 8 score – the least risky. Mr. Ridley said, “yes”. Counsel

suggested that if Mr. Ridley cannot obtain the information about the person he

was meeting, about his record relating to crime, violence and threats etc. through

a CPIC, he could say that he was not going because the risk cannot be

assessed. Mr. Ridley replied, “Yes. But you can get a CPIC report indicating no

risk. But then later they may say we made a mistake”. Asked whether he was

- 41 -

aware of that ever happening or of an AI ever getting injured to date, he replied

“no”.

[103] Mr. Ridley was cross-examined at length on the incidents he testified had

caused him serious concern about his safety. The following are the key parts of

that cross-examination: with regard to the work refusal incident, Mr. Ridley

agreed that before going out to do surveillance he had followed the procedure

and obtained all available information about the two persons of interest,

including their criminal records and the fire-arms they had. Asked when he

decided that he should refuse work, Mr. Ridley said that it was shortly after

arrival at the property. He agreed that he had scouted the area in advance and

knew that there was no spot from which to do surveillance without risk of

detection. Counsel asked what happened or what new information he received

after arrival caused him to decide to resort to a work refusal. He said there was

nothing. Counsel asked what prevented him from simply driving off at that point

and explaining to his supervisor the next day what occurred rather than invoking

a formal work refusal under OHSA. Mr. Ridley replied that Ministry of Labour

policy and procedure did not allow that. He said that at the time of removal of

sidearms, he inquired from the Ministry of Labour, and was told that simply

staying in the office without going to the site was not a valid exercise of the right

to refuse. Counsel asked whether Mr. Ridley still believes, despite the directions

he has received, that if he is on site and is concerned about his safety, he is not

allowed to simply leave but must call the supervisor and get directions, he

replied “yes”, and explained that a MNRF directive on disengagement required

that. He agreed with counsel that if that situation arises today, with the

completion of the risk assessment he would be able to discuss with the police

and arrange for police attendance.

[104] Counsel reviewed Mr. Ridley’s testimony that during the dump site incident, he

was in a state of heightened alert because there was a good possibility of a bear

attack, and because he did not know “what wild critter may emerge from the

woods”. Mr. Ridley agreed that at the time he was accompanied by a CO and

- 42 -

that he got a CO to assist because the CO had expertise, had a sidearm, and

had access to long guns also if necessary. He agreed, but could not recall

whether the CO also had a concern about a bear attack. Counsel showed Mr.

Ridley a photograph showing the CO posing with hands in pockets near the

animal part dump site and with his back to the woods, and suggested that it

appears that the CO was relaxed and not concerned about a bear emerging

from the woods behind him. Mr. Ridley replied that the photograph only shows a

moment of time. Counsel asked why he did not ask the CO to bring a long gun

for added protection if he was so concerned about a bear attack. Mr. Ridley

replied “I saw no need because we both had pistols”. Asked whether a long gun

would not be more effective against an attacking bear, he replied that he left it to

the CO to decide whether to bring his long gun, and that he felt secure because

he had his own sidearm. Counsel put to Mr. Ridley that if the dump site

scenario arose today, he would devise a plan which would include police

presence. Mr. Ridley replied that today he would probably refuse the

assignment after completing the risk assessment. Asked if would refuse even

with the presence of an armed CO or a police officer, Mr. Ridley replied that he

probably would, because armed only with bear spray he “won’t have a chance”.

He said that he would not know how proficient and fast the armed officer is,

whether his gun was loaded, and whether he may not want to kill a bear by

shooting it.

[105] On the ex-veterinarian incident, Mr. Ridley agreed that he was accompanied by

two officers from PCU and a police officer. Counsel put to him that the guns

found were old, some rusted and covered in dust. Mr. Ridley agreed. He also

agreed that none of the guns found in the residence was loaded, and that no

ammunition associated with the guns were found in the vicinity; that some guns

and the two boxes of ammunition found were also covered in dust and were

found with all kinds of “junk”. He agreed that all indications are that the gun and

the ammunition had not been moved in a long time. Counsel put to Mr. Ridley

that contrary to his evidence in chief that the guns had been strategically placed

for easy access, the guns and the ammunition were haphazardly thrown about.

- 43 -

Mr. Ridley disagreed. Counsel asked how he says that the guns were

strategically placed for easy access to use on “critters and people he didn’t like”,

when none of the guns were loaded and there was no associated ammunition in

the vicinity. Mr. Ridley replied that he could have loaded a gun because there

was a box of ammunition on the window sill. He said that although the guns

were old it was possible they could still fire. Mr. Ridley agreed that when he

went to execute the search warrant, the person cooperated and made no threat,

and that even today in those circumstances, he would be accompanied by

police.

[106] Counsel next referred to Mr. Ridley’s testimony about the Ottawa Police

incident, that after two police vehicles and a marked MNRF vehicle had arrived,

and after the property owner was called and directed to turn on the house lights

and come out to the drive way, a police officer had his high powered rifle raised

and was crouching and taking cover behind cars. Counsel put to Mr. Ridley that

he was indicating that the police were anticipating a possible shoot out. Mr.

Ridley replied that they were expecting trouble. Counsel pointed out that Mr.

Ridley’s notes make no mention of the police crouching, taking cover or having

rifles raised ready to fire. Mr. Ridley agreed. Employer counsel put to Mr.

Ridley that he testified about a dark back country road, a police policy requiring

SWAT attendance and heightened readiness by the police, all of which were

factually incorrect, to suggest to the arbitrator that there was a significant risk.

Mr. Ridley replied that as it turned out nothing happened, but there was a risk.

[107] Mr. Ridley agreed that the police and MNRF vehicles entered the property

without incident, that the owner turned on the lights and came out as directed,

was non-confrontational, and that the resident was searched and evidence

seized without any incident. Counsel pointed out that Mr. Ridley took a

cautioned statement from the POI, after the police had left, and suggested that if

he had any concern at all for his safety, he would have asked the police to stay,

but he did not. Mr. Ridley agreed. He agreed that if this scenario happened

today, the police would be required to stay while the AI takes the statement.

- 44 -

[108] Counsel pointed out that the CPIC incident took place after the removal of

sidearms from AIs, and yet Mr. Ridley contacted the individual, met him outside,

and suggested that they go inside the residence to have a discussion. He could

have asked for police assistance but did not. Counsel put to Mr. Ridley that this

suggests that he had no concern for his safety and felt comfortable meeting with

the person by himself in his residence. Mr. Ridley agreed.

[109] On the Ontario Landowners Association incident, Mr. Ridley agreed that when

the owner and his son exited the pick-up truck and were walking towards him,

he directed them to tell the person in the other car parked behind his vehicle to

stay in the car and told the owner and son to stop advancing and that they

complied. When he directed the owner, and his son to step back, so Mr. Ridley

could get close to his vehicle, they complied again. They complied with all of his

directions without him having to use any of his protective equipment. Counsel

put to Mr. Ridley that when a discussion ensued, the owner went on about the

government interfering with his property rights, but did not direct any threat to

Mr. Ridley. He agreed. Counsel referred to Mr. Ridley’s evidence that as the

owner was ranting about government interference, he was thinking about what

protective equipment, baton or sidearm, he would have to use. Counsel asked

why he would anticipate using a sidearm, when the men were unarmed and had

complied with every direction he had given. Mr. Ridley replied that he would

have used the sidearm only if they attacked and there was a threat to his life.

Counsel pointed out that the pick-up truck was blocking his vehicle, but was on

the gravel shoulder. He asked why Mr. Ridley would contemplate using the

sidearm instead of simply getting in and driving off around the parked vehicle.

Mr. Ridley replied, “I could have if I can get in”. Counsel asked, “Were you not

standing right by your vehicle?” Mr. Ridley replied, “yes”.

[110] Counsel put to Mr. Ridley, referring to a google map, that while he had

described that the goat slaughter incident was in a rural area, the map shows it

was in Orleans near two busy roads, and that there was a built up residential

- 45 -

area to the north of the property and an industrial area to the east. He agreed.

Counsel put to Mr. Ridley that despite his testimony that the customer he

stopped went through “stages of potential violence”, he made no overt threats

and had no weapons. Mr. Ridley agreed. Counsel pointed out that at this time

he was accompanied by an AI. Todd and both were armed with sidearms.

Counsel asked why Mr. Ridley chose to engage the customer by asking

questions rather than simply disengaging, if he was so concerned about

potential violence. Mr. Ridley replied that he was able to talk to the person and

calm him down before it reached the state of a potential assault. Counsel

suggested that when Mr. Ridley and Mr. Todd entered the barn on an exigent

circumstance search and saw the owner seated to the left of the entrance and

five men with knives in hand butchering an animal, they could have simply

disengaged if there was a concern about being outnumbered by five men, four

with knives. Mr. Ridley agreed. He also agreed that the five men dropped their

knives when directed to, and the one who kept advancing towards the officers

did so only because of a language barrier and that he had dropped the knife

when the others spoke to him in Arabic. He also agreed that the two AIs were

able to take the five men to a side, question them and release them with no

incident. Counsel pointed to Mr. Ridley’s evidence that the slippery condition of

the floor with blood and water was a safety concern because it would have

impeded disengagement. Counsel put to Mr. Ridley that disengagement would

not have been an issue because, the AIs had control of the situation from the

moment they entered. Mr. Ridley agreed. Counsel referred to Mr. Ridley’s

evidence that the hammer and shovel were potential weapons that could have

been used against the AIs, and put to him that the shovel was outside the back

door of the barn, and the hammer was on the floor inside the barn, and both

were discovered only after the event. Mr. Ridley agreed. Counsel asked Mr.

Ridley what his safety concern was about the pile of animal parts outside the

barn. He replied that it was about the possible presence of foxes, coyotes and

dogs. Counsel asked whether Mr. Ridley was aware of an AI ever been

attacked by a fox, coyote or dog, and Mr. Ridley replied that he was not. Mr.

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Ridley agreed that if this event took place today, police presence would be

required, and that the police will enter and secure the premises before AIs enter.

[111] Relating to the Barn/OPP assistance incident, Mr. Ridley agreed with the

following: that when he and AI Hartnick entered the barn and encountered the

POI and 8 to 10 other men slaughtering an animal he ordered them to drop their

knives and they did so; that the men were taken outside to be supervised by the

CO who had accompanied them; that they had called for police assistance, but

entered the building and conducted the search without waiting for the arrival of

the police. Counsel put to Mr. Ridley, and he agreed, that once the police officer

arrived, if he had asked for any assistance, the police officer had a duty to

provide assistance, but no assistance was requested because the AIs had

already secured the place and everything was under control.

Counsel

recounted the evidence that after the search was done and the 8 to 10 men had

been interviewed, the police officer left. Mr. Ridley and Mr. Hartnick then

accompanied the owner to his residence next to the barn, sat in the kitchen and

obtained a statement. Mr. Ridley agreed that he would not have done that if he

had any concern about potential violence. He also agreed that if this incident

plays out today, police presence would be required and the AIs would not enter

the barn until the police had arrived and secured the place.

EVIDENCE OF MICHAEL MARTIN

[112] Mr. Martin was a signatory to the group grievance and filed an individual

grievance also. The significant aspect of the individual grievance is the

allegation that for a period of some months following his hire as AI, he was

required to perform duties of an AI with no CO appointment and no sidearm,

when all his colleagues had the appointment and the sidearm. His position is

that he was exposed to unreasonable health and safety risk by not having the

personal protection equipment other AIs have. His evidence is, therefore,

relevant to the issue for determination in both grievances, i.e. whether working

with no sidearm and pepper spray exposes AIs to unreasonable risk.

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[113] Mr. Martin testified that when he applied for the AI position in April 2010 he

expected that he would be designated a CO which would include duties

enforcing fish and wildlife legislation. He expected that he would receive various

levels of use of force and firearms training and would work in the field as a

uniformed CO. As such he understood that he would carry a sidearm, because

his review of web-sites about what CO’s do informed him that COs are

considered to be police officers with Provincial parks. Due to the duties

involved, he understood that to be able to protect the health and safety of the AI,

as well as others under public safety legislation, a sidearm would be issued.

[114] Once he started as an AI, he received MNRF defensive tactics training in

November 2010, and fire-arms training in April 2011. Asked to compare that

training with training received as a police officer, he stated that they were

similar, the main difference being in the approach. He opined that the difference

in approach was due to the fact that COs do not encounter serious violent

situations as often as police officers, particularly those in police forces in big

cities like Hamilton. Mr. Martin testified that he was directed to purchase a

baton, hand-cuffs and a duty belt to carry those prior to attending the defensive

tactics training. He received pepper-spray only after completion of that training

at the end of November, 2010.

[115] Asked whether he did any field work prior to end of November, Mr. Martin

replied that in August 2010 he was assigned by Mr. Cachagee to assist AI Brett

Campbell with an investigation in Markham. It involved locating a particular

vehicle associated with a person of interest. During this investigation he did

surveillance in several places in a MNRF vehicle, which was equipped with

Fleetnet link to the OPP system. He also had a cellular phone. Mr. Martin

testified that although he did not have a sidearm or pepper spray at that time, he

did not raise any safety concerns per se when he received the assignment.

However he questioned Mr. Cachagee about when he would get to challenge

the exam for level 1 training, which was required for a CO designation. He

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testified that one reason the CO designation was important to him was because

he would receive full personal protection equipment that came with it.

[116] Mr. Martin testified that on September 15, 2010, Mr. Cachagee told him that Mr.

Moody directed him to get him “on the road”, doing interviews, surveillance and

assistance with search warrants as long as no threat is expected, and provided

he is not the lead investigator. An e-mail dated January 13, 2011 from Mr.

Cachagee to Mr. Martin was filed in evidence. It speaks about extra precautions

Mr. Cachagee set out in view of the fact that Mr. Martin was not issued a

sidearm. Mr. Martin testified that he understood these would mean that he

would only do “soft enforcement”, that is, he would be sent only to low risk

situations and that if he saw something happening on the street, he should not

put himself in harm’s way. Mr. Martin testified that Mr. Cachagee advised “If you

feel uncomfortable about anything I ask you to do or situations you are getting

yourself into, please stand down and let me know”.

[117] Mr. Martin testified about his participation in the Massey Investigation,

accompanied by Mr. Ridley who was armed.

Mr. Martin substantially

corroborated Mr. Ridley’s evidence including the observation of a shot-gun

leaning against the door to the person’s residence and a wooden block with

knives in the kitchen, and that the two officers, the subject and his wife sat at a

table and had a “very cordial” conversation. When union counsel asked why Mr.

Martin’s notes do not make any reference to seeing a shot gun, Mr. Martin

responded that finding a firearm in a rural residence was not a surprise and that

the gun “was never a threat”.

[118] Mr. Martin described the captive bolt gun incident where the individual was

waving the captive bolt gun around while ranting about how government

regulations result in waste of meat which could feed a family for months. He

said that captive bolt guns of various types are commonly used in sales barns to

euthanize sick animals. They are really not “guns” because there is no

projectile. The person was not pointing it at anyone, but Mr. Martin was still

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concerned as it could be used as a weapon. He said that in any event he kept

at a safe distance, and the person never gave any body language or other

indication that he would lunge at him or anyone else.

[119] Mr. Martin testified in detail about repeated reminders he made to Mr. Cachagee

about arranging him to challenge the exam, and his designation as a CO. The

response he received from Mr. Cachagee always was that he was trying to do

that, but senior management was not comfortable allowing Mr. Martin to

challenge the exam. Over a year passed since he was hired, but he had not

been appointed as a CO. As a result he was unable to carry a sidearm or

pepper spray, but was required to work in the field accompanied by another AI

or CO. Counsel asked Mr. Martin what, if any, duties specified in the AI job

description he was unable to perform safely because he had no CO designation.

Mr. Martin replied that he was able to “do it all” and he was not hurt. However,

he said that if a threat to his safety arose he had no sidearm or pepper spray to

protect himself.

[120] Mr. Martin testified that when he got no results from his repeated requests to Mr.

Cachagee, he started to copy his correspondence to other managers including

the Director of the Enforcement Branch and the supervisor of the Training

Branch. They generally were supportive and understood his frustration, but

gave no satisfactory explanation for the delay. Therefore, on September 29,

2011, he sent an e-mail to Mr. Moody, expressing his frustration that after 14

months he had still not received his CO appointment, and he is required to do

field work without protective equipment which his colleagues carry. He detailed

his various concerns, including safety concerns. Mr. Moody replied by e-mail,

but did not explain the delay to Mr. Martin’s satisfaction. The same day, Mr.

Martin called Mr. Moody and had a discussion during which he reiterated his

concerns and frustration. Mr. Moody apologized and assured that he had been

working on this for the past 14 months. Mr. Moody explained that the matter has

become very complex because there is an on-going review of the cross-

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appointment of AIs as COs. He told Mr. Martin that he expected the review to

be completed by end of October 2011.

[121] The evidence is that the next day September 30, 2011, Mr. Martin met with Mr.

Moody at the Guelph office. Mr. Moody again mentioned the on-going review of

the cross-appointment and how the subject is very complex and frustrating. Mr.

Martin asked Mr. Moody who was involved in the review and whether there is

input from the AIU. Mr. Moody was not prepared to discuss those details. He

again apologized, told Mr. Martin that it had nothing to do with him or his

experience or competence, and asked him to be patient. Mr. Moody undertook

to provide him with directions in view of the concerns expressed about working

in the field with no CO appointment and no sidearm or pepper spray. The same

day Mr. Martin received a rewritten direction from Mr. Moody. It confirmed that

he is not to exercise any power or authority that flows from CO status, and that

he should “follow the spirit and intent of those policies and procedures that

reasonably apply to your duties as an AI”. The direction also stated, “Should

you ever feel concerned about your safety during performance of your assigned

duties, you are to immediately disengage and discuss your options with your

supervisor or myself”.

[122] Counsel asked Mr. Martin why he brought up the Motor Cycle Club Incident with

Mr. Moody. Mr. Martin explained that the person of interest in that incident

made no verbal threats or threatening physical gestures. He merely wanted to

emphasize that while AIU policy recognizes that an environment can change

rapidly, he is required to do investigations without protective equipment which

other investigators have. He reminded Mr. Moody that the job posting stated

that the AI would be appointed as CO. Mr. Martin testified that Mr. Moody stated

that the posting only required the applicant to have the “ability to be a CO”, not

to “be a CO”. Mr. Martin testified that he was not “completely satisfied” with the

direction to disengage if there is any safety concern, because “at times you may

not be able to disengage”.

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[123] In cross-examination, counsel put to Mr. Martin that when preparing particulars

union counsel had asked for, and Mr. Martin had provided information about any

work he had been involved in where he asserts a health and safety risk existed.

Mr. Martin agreed. Counsel put to Mr. Martin that while he had raised the New

Liskeard Investigation with Mr. Moody in his attempts to obtain a CO

appointment, he did not include that investigation in the particulars because he

was not asserting any safety concern. He agreed. He also agreed that the only

unsafe situations he was relying on were the ones he had testified about.

[124] Employer counsel reviewed with Mr. Martin his testimony in chief about the

Massey investigation. Counsel pointed out that Mr. Martin did not avail himself

of safety precautions he could have obtained, including assistance from another

armed AI or a CO. Counsel suggested that he acted as he did because he had

no concern for his safety. Mr. Martin agreed. He also agreed that he could

have, but did not leave even after he saw a shot gun propped up against a door,

but decided to sit at the individual’s kitchen table because there was no safety

concern. Mr. Martin also agreed that he had a CO accompany him when he

toured various locations where the portable slaughter house had allegedly been

seen, not as a safety precaution, but because that CO was very familiar with the

area and was helpful as a guide in finding the various locations.

[125] Similarly, employer counsel reviewed Mr. Martin’s testimony about his

surveillance activity in the Markham investigation and put to him that as an

experienced former police officer he would not have engaged in that activity

under those conditions if he had any safety concerns. Mr. Martin agreed.

[126] Under questioning about the captive bolt gun incident, Mr. Martin agreed that

captive bolt guns are routinely used at sales barns and are not per se a health

and safety risk to anyone. Counsel put to him that while the individual was

upset and was “acting like an idiot”, negligently waving the captive bolt gun with

people close by, Mr. Martin did not have any concern for his safety. He agreed.

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Mr. Martin also agreed that the fact that he had no sidearm made no difference

that day.

[127] On the Motor Cycle Club incident, counsel put to him that while the individual

may have had some link to the Motor Cycle Club, he was not a member of that

club and had no criminal record. Mr. Martin replied that he did not know. He

agreed that while the person was upset, he made no threat, and that there was

no health and safety risk higher than that in the New Liskeard incident. Counsel

put to Mr. Martin that while he had referred to this person and his family as an

“organized criminal group” in his communications with Mr. Moody, it is not true

because to his knowledge no one in that family had ever been convicted of any

crime. Mr. Martin agreed.

[128] Mr. Martin was cross-examined extensively about his testimony in chief to the

effect that he had been hired as a CO performing AI duties. Counsel reviewed

in detail the contents of the job posting and put to him that other than the

requirement of “ability to qualify as a CO”, all the provisions set out under

“purpose of the position”, “knowledge”, and “duties and responsibilities” relate to

enforcement of OMAFRA legislation and AI duties relating to food safety, and

any reference to CO duties involving enforcement of MNRF duties is merely

incidental. Counsel pointed out that even in his cover letter to the job

application, Mr. Martin had highlighted his qualifications and experience relating

to performance of AI duties, not CO duties. Mr. Martin disagreed. He agreed,

however, that the job offer letter states that he was being hired as an AI and not

as a CO.

[129] Employer counsel put to Mr. Martin that while it is true that a CO has the same

powers as a police officer within provincial parks, a CO has no general duty to

protect the public from physical threats as a police officer does. Mr. Martin

agreed. Counsel put to Mr. Martin that in contrast, an AI’s only role is to protect

the public from unsafe food. Mr. Martin replied that while an AI’s primary duty is

about food safety, since an AI is also a CO, if an AI who sees a physically

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threatening situation does not act “it would put the MNRF in a bad light”. He

added that a CO would have an “inherent duty to Act”. Counsel asked Mr.

Martin whether in his opinion then, if an AI sees a threat of physical violence to

the public while in the field investigating violations of OMAFRA legislation, the AI

has a legal obligation to act. Mr. Martin replied “I don’t know”. Mr. Martin

agreed that under OMAFRA legislation AIs do not have the power of arrest, and

that AIs have been directed that they should not stop vehicles. He also agreed

that police officers would be dispatched to respond to situations of public

disturbance or violence, but AIs would never be so dispatched. Counsel put to

Mr. Martin that while police officers would be expected to intervene if they

observe such situations while patrolling, there is no expectation that an AI

observing such situations while in the field investigating violations of food safety

legislation would intervene. Mr. Martin replied, “I don’t know”.

[130] Counsel reviewed Mr. Martin’s evidence that Mr. Cachagee had told him that he

would only be doing “soft enforcement”, should not put himself in harm’s way,

and should not undertake any assignment if he had any safety concern and

should ask that he be accompanied by another AI who is armed, if he felt it

necessary, Mr. Moody’s direction also included a statement to the same effect.

Mr. Martin agreed. Counsel asked him whether he had ever raised a safety

concern or turned down any assigned activity on the grounds that it was not

safe. Mr. Martin stated that he had not.

EVIDENCE OF BRETT CAMPBELL

[131] Mr. Brett Campbell, has been employed as an AI since 2004, after a 16 year

career as a member of the Hamilton Police force. He could not recall what use

of force tools he had when he started at the AIU, but testified that around 2005,

AIs received full personal protection equipment including sidearm and pepper

spray, and soon after received use of force training. Then when sidearm and

pepper spray were removed from AIs in 2012, no new training was provided until

a year had passed. In that period the AIs were left to rely on “old” training given

at a time when they were fully armed.

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[132] Mr. Campbell testified about the Caledon Farm investigation. The AIU received

a complainant about possible illegal slaughter. He received a report from the

PCU containing background information. Mr. Campbell set out to identify who

were involved in the alleged illegal operation. He attended a live stock

exchange and observed the suspect V purchase a goat and drive off. Mr.

Campbell followed V to a farm. Mr. Campbell conducted surveillance on that

farm for several days, but did not obtain any useful information. However, on

May 4, 2012, he was continuing surveillance with AI Ed Hartnick and observed a

vehicle leave the farm. They suspected that the driver Y had made a purchase

of meat. After informing Mr. Cachagee and obtaining his consent the officers

followed the vehicle to Y’s residence. They approached Y, who Mr. Campbell

described as very honest and straightforward. Y told them that he had

purchased two freshly slaughtered goats at the farm and showed the goats.

With the assistance of Y’s son on the phone as interpreter, Mr. Campbell

questioned Y in an attempt to identify who owned that farm.

[133] Mr. Campbell then called Mr. Cachagee and requested permission to

immediately return to the farm, and conducted a search. Mr. Cachagee refused,

despite Mr. Campbell pointing out that the FSQA allows an exigent circumstance

search in these circumstances to prevent destruction of evidence of illegal

slaughter. Mr. Cachagee insisted that an operational plan must be done and a

search warrant obtained, before returning to the farm. Mr. Campbell felt that Mr.

Cachagee refused permission for an exigent circumstance because he believed

that the evidence the AIU already had was sufficient to obtain a conviction. Mr.

Campbell testified that he is not in agreement with Mr. Cachagee’s interpretation

of the law. In his view the exigent circumstance search provision in the Act is

there specifically to prevent loss of evidence in this type of circumstances. He

only had the information obtained from the customer as evidence, which in his

view, would be insufficient to get a conviction.

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[134] Mr. Campbell testified that as directed by Mr. Cachagee an operational plan was

done, a search warrant was obtained and executed on May 16, 2012. The farm

was searched by Mr. Campbell and Mr. Noel Todd without incident, since there

was no one present at the time they arrived. Mr. Campbell stated that there was

a briefing held at the OPP detachment prior to the execution of the search

warrant, and that a number of OPP officers accompanied the AIs to the farm and

secured the farm before the search began. During the search some firearms

other weapons and illicit drugs were found. The police also discovered a stolen

ATV vehicle. The search was well underway when the police brought someone

who had driven in to the farm to Mr. Campbell. That person turned out to be V,

the suspect in the illegal slaughter investigation.

[135] Counsel asked Mr. Campbell what his concerns were about officer safety. Mr.

Campbell explained that the AIs had gone looking for evidence of illegal

slaughter with no sidearm or pepper spray. When they got there they found

“things we wouldn’t have guessed would be there”. They had not received new

training since sidearms and pepper spray were removed. Mr. Campbell was

uncomfortable that “things were being done in a patch work way”. He said that

having been a police officer himself, he disagrees that the presence of police

makes any difference. He said, “If something had gone wrong, I don’t know if

the police officers would run, stand in front of me, or protect themselves first. Its

human nature to protect yourself first”. Mr. Campbell testified that by not

conducting an exigent circumstance important evidence was lost, which in his

view, lessened the chances of a successful prosecution. Physical evidence like

bloody knives and animal meat, which he had hoped to find was never found.

[136] Union counsel asked what Mr. Campbell’s concerns were about the Georgina

incident. He stated that on April 20, 2013, he and AI Todd went to that farm not

to do any inspection, but only to confirm information that the owner had

purchased a lot of goats. They parked the vehicle halfway into the drive way

and walked towards the barn. They observed a vehicle parked near the barn

and a family standing near it. When they got closer they found that a slaughter

- 56 -

ritual was going on in the barn. Mr. Campbell “knew that they were not happy

we were there”. At that point, the owner came out of the barn and recognized

Mr. Campbell since they had met during previous court appearances. Mr.

Campbell told him to show the goat being slaughtered. When he took the two

officers in, they observed a goat hanging upside down. The suspect began to

plead with Mr. Campbell not to proceed against him. Mr. Campbell testified that

up to that point, the owner had been very cooperative. He testified “But then

without warning his attitude of cooperation disappeared. He became very

agitated and started yelling for us to leave, and said we need a warrant to be

there”. When Mr. Campbell responded that he did not need a warrant the owner

yelled “you leave now”. Mr. Campbell said, “Then he blocked me with his body.

He didn’t push me. It was more to escort me away. He sort of pushed at my

elbow telling you have to leave”.

[137] Mr. Campbell testified that he was not sure whether the owner was looking for a

fight. He decided it was best to leave and not get into a confrontation. He said

he is sure that if they had not left at that time, “things would’ve got a lot worse”.

They got into the vehicle and called 911 and asked for police assistance, then

drove slowly to the top of the driveway and stopped to wait for the police. Mr.

Campbell testified that the owner had walked behind the vehicle. When the

vehicle stopped the suspect again yelled for them to leave and began swinging

the metal gate back and forth as if to damage the vehicle. Mr. Campbell told

him that if he damaged the vehicle he would be prosecuted. Then the police

arrived and spoke to the owner. After that Mr. Campbell and Mr. Todd were

able to collect evidence, take photographs and leave.

[138] Mr. Campbell also testified about his involvement in an investigation, also in

Georgina, of suspected sale of pigeon meat from a farm. There was no

identified suspect. However, there was information that numerous vehicles were

going in and out as part of the AIU investigation. A hidden camera had been

installed pointing at the driveway. Mr. Campbell’s assignment was to do

surveillance and identify the licence plates, so that the farm owner and others

- 57 -

involved could be identified by running the plates through the MTO system. Mr.

Campbell testified that the vehicle plate run identified the owner of the farm. A

CPIC check revealed that he was flagged as “caution violent”. He testified that

the information was that the individual is a high risk offender, a serious threat to

society and had been convicted of attempted rape, sexual assault and

abduction. He was still on probation and owned firearms and explosives. Mr.

Campbell testified that this assignment did not expose him to any health and

safety risks, and that he did not even encounter the suspect. He said that

another name of a person who had visited the farm also had a lengthy criminal

record and numerous flags. He said that he raised this assignment in support of

the grievance only “to show the kinds of people out there you don’t know about”.

[139] Under cross-examination, Mr. Campbell agreed that when he accepted the AI

position he knew that it involved regulatory enforcement work, that such work

involves some safety risks and that AIs were not armed. Mr. Campbell agreed

that AIs had two communication devices when going out in the field, a vehicle

radio and a portable radio, which had the following features. They were linked

to the OPP dispatch system called Fleetnet. The AIs could log on to Fleetnet

and inform OPP dispatch where they are heading and update their whereabouts

as they continue an investigation; both radios had local channels which allowed

secure communication with other AIs or with police forces; Both radios had a

panic button, which sends a signal to the Police Communication Centre when

pressed, indicating that the AI needs police assistance and the Centre would

know precisely where the AI is. Mr. Campbell agreed that he knew that the

covert surveillance he did on the Georgina farm had no high risk of detection

and was safe. Yet a contingency plan had been prepared for him to leave the

property in the event he was detected by the suspects, and a secure

communication channel was set up for his use during the surveillance. He also

agreed that with a neighbour’s cooperation he was able to install a camera with

no issues.

- 58 -

[140] Mr. Campbell agreed that as lead investigator on this file, he did a lot of

preliminary work, including running licence plates and a CPIC check, to obtain

as much information as possible about the suspects, and all persons involved,

including purchasers and people coming and going. Through this means he

identified two suspects who had past criminal records and “flags”. Using this

information a search warrant was obtained after an operational plan was

prepared. All participants in the search, AIU staff and the public officers were

made aware of all information about who may be encountered during the search

and their criminal records. Counsel then put to Mr. Campbell that, given that

evidence, it was not correct to say, as he did, that “you don’t know who is out

there”. Mr. Campbell replied that “in this case we had information about the

people”, but added that in some cases you may encounter “people not in your

radar”. He agreed that in any event he did not encounter any of the two

suspects he testified about.

[141] Mr. Campbell agreed that by May 4, 2012, when the Caledon Incident occurred,

sidearm and pepper spray had been removed from AIs. Asked if he was

comfortable following the vehicle to the residence of the individual, accompanied

by AI Ed Hartnick, and talking to him, Mr. Campbell replied that he had a CPIC

check run while following the vehicle, did an assessment of the individual, and

decided “it was worth doing it”, and spoke to him in the garage. Mr. Campbell

agreed that based on the information from the purchaser, he wanted to return to

the farm with another AI and do an exigent circumstance search of the barn to

obtain evidence of illegal slaughter, but Mr. Cachagee refused permission.

Counsel put to Mr. Campbell that permission was refused not only because the

supervisor thought there was enough evidence already, it was mainly because

an operational plan had not been done, and therefore was unsafe. Mr.

Campbell replied he did not know. Counsel put to Mr. Campbell that he was

prepared to proceed to the farm immediately with no warrant or operational plan,

even though he and his partner were both unarmed. Mr. Campbell replied that

he would have requested police assistance under the FSQA if he got

- 59 -

permission. Counsel put to him that if he did that, police would have entered the

farm first and secured it, before the AIs enter. Mr. Campbell agreed.

[142] Counsel asked Mr. Campbell why he was ready to proceed with no search

warrant or operational plan, and neither of them were armed. Mr. Campbell

replied, “although policy requires an operational plan and search warrant it was

in my view not practical. That takes time. The longer you take the greater the

chance the evidence will be gone”. Counsel put, “so you say sitting down and

planning is inconsistent with the goal of getting the evidence before it

disappears”. Mr. Campbell replied, “My interpretation is, the meat and potatoes

of why the Act provides for exigent circumstance searches is to prevent loss of

evidence”. Counsel asked, “But do you agree, the more planning you do, the

safer it will be for you?” Mr. Campbell said “yes”. Counsel put to Mr. Campbell

that although the AIs disagreed with management on when exigent

circumstances searches are appropriate, ultimately the direction from

management was that such searches are to be used in very limited

circumstances. He agreed. Employer counsel summarized the management

direction to be “If not satisfied it is safe or if in doubt, don’t do it”. Mr. Campbell

said “If I know there is a significant risk I won’t do it”. Counsel asked, “So if you

don’t know you will go?” Mr. Campbell replied, that he would not just rush in, but

would get police assistance or at least other AIU assistance, and added, “Today

I don’t go too many places without the police”.

[143] Counsel suggested that the discovery of the fire arms in the Caledon incident

was not surprising and did not pose any safety threat to him or to any other AIU

staff. He agreed. Counsel suggested that similarly the arrival of an individual

while the AIs were conducting the search posed no threat, because the police

met him and took control. Mr. Campbell replied that he disagreed because the

police may not stay there the whole time. Counsel put to Mr. Campbell that if he

felt unsafe, he could have advised the police, and they would have either stayed

or taken anyone who was of concern to the police station. He agreed. Counsel

put to Mr. Campbell that in the post-mortem report, he wrote that everything

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went well, and no work refusal was necessary. Mr. Campbell testified that

during the vehicle stop, a work refusal was considered, but it was decided “it

was safe enough”. Counsel suggested that rather than engage in a work

refusal, if he had simply called Mr. Cachagee, he would have directed him not to

proceed, and that the operational plan also stated “if not comfortable about

safety stop”. Mr. Campbell agreed.

[144] Counsel put to Mr. Campbell that he is more cautious now because he is not

armed.

Mr. Campbell replied, “Yes”.

But still I think “we go place

subconsciously and put ourselves in harm’s way. But I am happy the police is

there because we have no sidearms”. Counsel asked “The policy says you

don’t go until the risk is assessed. Are you saying that sometimes you don’t

follow policy?” He said “yes”. Asked, “Also you seem to say that police

presence is not a complete answer because they will protect themselves first

before protecting you”. Again Mr. Campbell said, “Yes”. Counsel pointed out

that now, when on a search with or without a warrant, the police go in first and

secure the place before AIs go in, and suggested “therefore you won’t have a

situation where police officers have to protect themselves first before you”. Mr.

Campbell replied, “Yes, but in one case a person came in after the place had

been secured and we had gone in”. Counsel asked, “Yes and the police

handled him properly?” Mr. Campbell replied “yes”. Counsel put to him that in

all three files he testified about, he was able to safely conduct the assignment.

He replied, “correct”.

[145] In relation to the Georgina Farm incident, employer counsel reviewed Mr.

Campbell’s testimony and suggested that he and AI Todd had dropped by to

speak to the farm owner; while there they observed signs indicating that the

suspect, who had previously been charged for illegal slaughter, was continuing

that operation and decided to investigate by going into the barn. Mr. Campbell

agreed. Counsel asked why he did that without seeking police assistance,

knowing that neither officer was armed. Mr. Campbell replied that he had known

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the suspect from before and he had been “good all along”, and he assessed it

was safe.

[146] Counsel put to Mr. Campbell that he could have safely left after the suspect

became agitated and started to yell for them to get out of his property. Mr.

Campbell agreed. Counsel put to Mr. Campbell that, instead of walking away,

he chose to stay and engage the suspect to convince him that he had a right to

search without a warrant, and left only after the suspect pushed him at the elbow

to get him to leave. Mr. Campbell agreed. Counsel stated that the suspect

pushed his elbow to prevent Mr. Campbell from going further into the barn and

to escort him out. Mr. Campbell replied, “Yes. It was not to hurt me. He wanted

me out of there “. Counsel asked Mr. Campbell why he did not leave the

property even at that point, but chose to stop at the end of the driveway and wait

for the police to arrive. Mr. Campbell replied, “We were thinking that if we leave,

the meat and the carcasses we saw may be gone”. Counsel asked, “So you

wanted to remain to protect the evidence?” Mr. Campbell replied, “Yes. If

safety was an issue we would’ve left. It wasn’t that important to me.” Counsel

put to him that he sought police assistance not for protection due to a safety

concern, but to be able to immediately continue with a search of the property.

Mr. Campbell replied, “Mostly yes. But he had also got more agitated”. He

agreed that the suspect’s state of agitation would not have been a concern if

they had left the property, when told to. Counsel put to Mr. Campbell that when

the suspect was swinging the gate at the top of his driveway he was threatening

to damage the vehicle, not to injure Mr. Campbell. Mr. Campbell agreed. He

agreed also that after the police arrived, the suspect calmed down and Mr.

Campbell and Mr. Todd were able to continue with the investigation safely.

[147] In re-direct, union counsel asked Mr. Campbell to comment on his statement

that the employer direction to leave if uncomfortable or in doubt works “only if we

can”. Mr. Campbell explained that “it is possible that things can go wrong during

a search because of the type of people we deal with. For example unknown

people can show up. Though your first choice is to leave, there can be

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something or someone there which makes it not possible. Your vehicle may be

parked too far away or you may not be quick enough or you may be in a bad

spot. Sometimes these are big farms or factories”.

EVIDENCE OF ED HARTNICK

[148] Mr. Ed Hartnick had been employed as an AI from February 2009 until 2014.

From 2009 he worked as AI with full personal protection equipment until sidearm

and pepper spray were removed in early 2012. He testified about investigations

he had been involved in as AI, where he felt he was exposed to health and

safety risk. His role in the Caledon investigation was as photographer. He

described in detail the discovery of weapons including knives in the kitchen a

sword, a pry bar, various firearms and pellet guns, as well as illicit drugs. In the

barn and outer buildings, a hook knife used to cut hay, shot gun shells and belt,

a mini cross bow, a deboning knife and two meat hooks were found. He also

testified that three large “guard type” dogs were in a pen close to one of the out

buildings. He testified that the police entered the farm first, did a “sweep” and

informed that there was no one present, and the AIs proceeded with the search.

At this point, Mr. Hartnick had no concern about his safety. He testified,

however, that as the search continued and various weapons were found, it

became evident that this was not just an illegal slaughter operation, and that

other criminal activity was going on. He said, “I realized there was more

potential for danger than I initially thought, that there may be someone hiding

inside who decided not to answer the phone when the police called. So there

was a heightened level of awareness something could happen”. He noted that

he realized that the firearms were either in unlocked cabinets or placed

purposely by doorways for easy access. Union counsel asked Mr. Hartnick why

permission was sought to do an exigent circumstance search on May 14, 2012,

by going back to the farm the same day without a search warrant or operational

plan. He replied, “We both felt it was necessary to go back to find proof that the

slaughter took place before the evidence is removed”.

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[149] Mr. Hartnick testified that the Bancroft investigation resulted from a complaint

that illegal slaughter was taking place in the meat packing plant and left over

meat dumped behind the complainant’s premises. He was asked whether he

was concerned for his safety at the dump site. He replied, “yes and no”, and

explained that the information was that the site was used for “blind hunting”, i.e.

hunters climb and wait on trees and shoot animals that come to scavenge. He

observed turkey vultures in the vicinity. He said that as a result, he became

apprehensive. Mr. Hartnick testified that it made a difference that at the time he

was armed because if an animal attacked he could have shot it.

[150] Union counsel asked Mr. Hartnick whether the employer provided any training to

AIs on how to deal with bears since sidearm and pepper spray were removed.

He testified that just before he left the AIU the employer arranged for a senior

wildlife technician to provide to AIs the same training wildlife technicians receive

about bears. At the end of that training AIs were issued bear spray. He testified

that the trainer stated that to use bear spray one has to be at touching distance,

and if one does not properly assess the wind direction, “you can spray yourself”.

[151] Mr. Hartnick testified that the suspect in the Sutton investigation had been

convicted of fraud and was flagged as “violent”. He said that this told him that

he should be extremely cautious. However, since he was fully armed and in

communication with the CPU and Fleetnet systems he had no concern about his

personal safety. Asked whether he would have concern if this happened after

sidearm and pepper spray were removed, he said that he was doing

surveillance of the suspect’s farm from a neighbouring property, using

binoculars. Based on the suspect’s criminal record, he would be concerned

about how the suspect would react if he is spotted.

[152] Mr. Hartnick testified that he put forward his involvement in the Parnham

investigation to support the grievance because the suspect owned a number of

firearms including a semi-automatic rifle and shot guns. While all those guns

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were legally owned and he did not encounter the suspect, the fact that he had

those weapons was something he still was concerned about.

[153] Mr. Hartnick also testified about the Scarborough incident in August, 2010. He

did an investigation of a family owned store-front meat packaging business

operated by Mr. and Mrs. K. His initial checks revealed that Mr. K had been

flagged for “violence” and “family violence”, and he dealt with the suspects with

a “heightened level of awareness”. The investigation followed information that

the suspects were re-packaging meat products without licence. On August 17,

2010 Mr. Hartnick, visited the operation accompanied by two officers, one from

OMAFRA and one from Toronto Public Health, with the intention of securing

evidence and obtaining cautioned statements. Mr. K stated that Mrs. K, the

legal owner of the business, could not speak English and offered to act as

interpreter. However, that process did not work and Mr. Hartnick left. On

Monday August 23, 2010, Ms. Hartnick called Mr. K and informed that he would

be returning with an official interpreter to obtain statements. At this point, Mr. K

claimed that Mr. Hartnick was targeting him because he was a Muslim and

threatened to call his lawyer, the M.P.P. and the media. A date for the visit by

Mr. Hartnick was, however, agreed upon. When Mr. Hartnick, accompanied by

AI Brett Campbell attended, Mrs. K was not present. A cautioned statement was

obtained from Mr. K and was advised that his re-packaging was illegal and that

product would be placed on detention, Mr. K got agitated. He bent over, put his

hands behind his back and said “just arrest me”. He testified that since Mr. K

had first got agitated during the telephone call, and “subsequently tended to get

more and more agitated faster”, this caused him concern about his safety.

[154] Subsequently Mr. Hartnick and AI Todd attended to serve summons on Mr. and

Mrs. K. As they arrived, the suspects’ car was also pulling in to their drive way.

The AIs parked behind the suspects’ car. Mr. Hartnick attempted to hand the

summons to Mr. K, but he refused. When Mr. K opened the trunk of his car to

take out something, Mr. Hartnick tried to put the summons in the trunk, but Mr. K

quickly closed the trunk. Mr. Hartnick testified that this was the point of time

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when Mr. K got agitated the most. He was yelling and asked Mrs. K for the

phone and called 911 for police assistance. He could hear him say that “there

are two men here with guns”. Mr. Hartnick called the police communications

centre and also asked for assistance. When the police arrived, Mr. K was still

agitated. The police officers told him that he would be arrested if he did not

calm down, and he did. A police officer put the summons in the suspect’s

garage.

[155] Union counsel asked Mr. Hartnick whether he was concerned about his safety

on this occasion. He replied, “Yes. I thought maybe he’d grab or push me. But

it didn’t happen”. Counsel asked Mr. Hartnick what would have happened if he

and Mr. Todd were not armed at the time. Mr. Hartnick replied, “We would’ve

just left,” and explained that always, before and after removal of sidearms, the

policy is to disengage if there is any fear for one’s safety. However, he said that

“the problem is, if Mr. K had a gun or a knife I am not going to turn my back to

him and run. I will maintain eye contract”. He stated that he may not be able to

casually walk out of there because Mr. K may “start shooting or he may be a

faster runner than I am”. He said depending on how far his car is parked, it may

not be easy to disengage. Counsel asked Mr. Hartnick why he put this evidence

forward. He replied that Mr. K had been flagged as violent, and although he was

never hit or assaulted, “there certainly was the potential of the situation getting

violent”.

[156] In cross-examination, Mr. Hartnick agreed that in the Caledon investigation both

he and Mr. Campbell wanted to search the suspect’s farm the same day without

search warrant because of the risk of losing useful evidence of illegal slaughter,

and if Mr. Cachagee had given permission they would have immediately

returned to search the farm. He also agreed that because a search warrant was

obtained the AIs did not enter the farm until the police had gone in first and

advised that it was safe to enter, and that there was nobody present. He said

that he felt safe at the time he entered to commence the search, and agreed that

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the operational plan explicitly provided that disengaging is always an option and

that anyone can shut down the search if concerned about safety.

[157] Mr. Hartnick agreed that he did not check whether any of the fire-arms were

loaded, but agreed that they were covered in dust, that some were found “sitting

on a pile of junk”. He agreed that the pellet guns found were not powerful

enough for hunting, that those may have been used to keep the number of

pigeons in the barn down, and that a pellet gun is not a good choice if someone

wants to confront a person. He agreed that the mini cross bow was found in an

unlocked filing cabinet drawer in the outer building and that no bows or arrows

were found and that all of the firearms, ammunition and the cross bow were

found in the two outer buildings.

[158] Counsel referred to Mr. Hartnick’s evidence in chief that some of the fire arms

had been purposely placed for easy access, and put to him that if he was

suggesting that they were so placed to be used against people, that would be

pure conjecture. Mr. Hartnick agreed. Counsel put that Mr. Hartnick`s concern

was that firearms are required by regulations to be kept in locked cabinets, and

these were not secured as required. Mr. Hartnick agreed.

[159] Counsel put to Mr. Hartnick that his concern that someone may have been

hiding in the premises was unwarranted because the police had gone in first and

advised that it was safe for the AIU to go in, and that there was no one present.

Mr. Hartnick agreed. Counsel put to him that there would be a potential risk only

if there was someone hiding and that person would use the weapons found in

the house against him. Mr. Hartnick replied that the mere presence of firearms

was a concern to him because “maybe someone inexperienced handles a gun

and it goes off”. Counsel pointed out that the only AIU staff and the police were

there and all of them are trained and experienced in handling firearms. Mr.

Hartnick replied that police officers may not be familiar with the various types of

firearms found during the search. Counsel suggested that police officers

regularly seize guns as part of their job. Mr. Hartnick agreed and added “All I

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say is it is still a possibility. I don’t say I was at risk”. When counsel put to him

that it was only a theoretical risk and not a realistic risk, Mr. Hartnick disagreed.

Counsel asked what steps he took if he was so concerned. Mr. Hartnick replied,

“I wasn’t worried I’ll be shot accidentally. All I say is, there is always a possibility

of something like that happening. A small possibility only”. When counsel

asked, “The possibility was so small that you took no steps to address it”, Mr.

Hartnick agreed. Counsel put to Mr. Hartnick that when the owner arrived later

he was met by the police, that he was cooperative and gave permission for the

search to continue, and if he had caused any problems the police would have

taken care of that. He agreed.

[160] Counsel referred to Mr. Hartnick’s evidence that he felt unsafe when he went

into the buildings by himself to photograph the evidence, and suggested that if

he had any concern he could have asked a police officer to accompany him. Mr.

Hartnick agreed. Counsel put to him that if any concerns he had reached the

level of being threatening, he had the option of shutting down the search in

accordance with the operational plan, and therefore, Mr. Hartnick must not have

felt his safety was threatened because he carried on by himself. Mr. Hartnick

agreed.

[161] With regard to the Bancroft dump site investigation and Mr. Hartnick’s safety

concern about an attack by black bears, he agreed that he felt safe because at

the time he was still armed. Counsel put to Mr. Hartnick that if this happened

after sidearms were removed, he could have requested a police officer, who

would be armed, to accompany him, and if he still did not feel safe, he could

have asked his supervisor to remove him from that assignment. Mr. Hartnick

agreed, but added that even if the police officer shoots the bear, it may not be

killed immediately and could continue to attack. Counsel asked whether Mr.

Hartnick agrees that, since police sidearms are similar to sidearms AIs had,

when accompanied by a police officer he would be safe at least to the degree as

he would have been prior to removal of sidearms from AIs. Mr. Hartnick agreed.

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[162] Counsel put to Mr. Hartnick that he knew in advance that the suspect in the

Sutton investigation, which took place prior to removal of sidearms, had been

flagged as violent and had an assault with a weapon charge withdrawn. He

agreed. Counsel put to him that he decided to conduct covert surveillance with

binoculars on the suspect’s residence from an adjoining property because he did

not see a realistic threat that the suspect would detect and confront him with a

weapon. Mr. Hartnick responded that if there was a realistic possibility he would

not go at all, before or after the removal of sidearms. When counsel put to him

that after the removal of sidearms, if he had a safety concern he had the option

to request for police assistance. Mr. Hartnick agreed, but commented that he

was not sure whether a police officer would sit with him in the bush. Counsel

asked, “Then you have the option to say I am not doing this surveillance”? Mr.

Hartnick agreed.

[163] In relation to the Parnham investigation, counsel put to Mr. Hartnick that if he

had any concern about his safety, even though he was armed at the time, he

would not have gone by himself to the residence of one of the two suspects,

knocked on the door and then accompanied the suspect to the slaughtering

area. Mr. Hartnick agreed.

[164] Counsel suggested to Mr. Hartnick that in the Scarborough investigation, the

“violence” flag for Mr. K indicated in the CPIC check related to violence on Mrs.

K, the other suspect. He agreed. Counsel put to him that in his report to his

supervisor, Mr. Hartnick recorded that Mr. K accused him of racism etc. and

threatened to contact a lawyer, his MPP and the media, but there is no mention

that Mr. K threatened to harm him in any fashion. Mr. Hartnick agreed. Counsel

pointed out that Mr. Campbell in his report stated that he accompanied Mr.

Hartnick on the second visit to serve a summons and there was no mention that

Mr. K threatened to harm the AIs on that occasion either. Mr. Hartnick agreed.

Counsel asked Mr. Hartnick why he continued to engage with Mr. K without

leaving, if he feared that Mr. K may grab or push him, as he testified. Mr.

Hartnick replied that he did not feel he had to leave to be safe. Counsel put to

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Mr. Hartnick that after removal of sidearms, if this scenario plays out Mr.

Hartnick would have the option to request that a police officer accompany him.

He agreed.

EMPLOYER EVIDENCE

EVIDENCE OF TOM BARNETT

[165] Mr. Tom Barnett joined the OPS in 2001, and holds an AMAPCEO bargaining

unit position of Health and Safety and Peer Support Program Coordinator in the

Provincial Services Division of MNRFF. In that position he manages the

Division’s health and Safety Program and provides branches under it advice and

guidance on health and safety. Prior to that, since 2001 he has held health and

safety related positions at several other Ministries.

[166] He referred to a pyramid-like chart from the Canadian Safety Association

developed to rank the effectiveness of safety controls available when a hazard is

identified. It indicates that personal protective equipment is the least effective of

the six controls, and also that as the reliance on human judgement increases in

the deployment of a control, the degree of effectiveness decreases.

[167] Mr. Barnett testified that personal protective equipment is the easiest to provide.

However, a human has to decide how and when to use it. Therefore, they are

less effective. He said a lot depends on the training and procedures in place to

make protective equipment work. He said that sometimes instructions and

procedures for use of protective equipment are not clear and leads to confusion

on how to use them. In a crisis situation, having protective equipment can affect

one’s judgement and reaction.

People working in hazardous situations

regularly, tend to get complacent and do not use the equipment. Mr. Barnett

explained that “they tend to believe the risk is very low because they have

personal protective equipment”, and when there is complacency the risk

increases”.

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[168] Employer counsel asked whether it makes sense to always provide personal

protective equipment because it is available. Mr. Barnett replied, “only if the

procedure requires it”. Asked whether providing personal protective equipment

would make it safer, Mr. Barnett replied, “It does not follow. A firearm to me

introduces another risk. A firearm is designed to inflict harm, unlike personal

protective equipment you wear”. Asked whether he was talking about harm to

the employee, co-workers or others, he said that one needs to look at risk to

anyone.

[169] In cross-examination, Mr. Barnett agreed that repeated good training can

mitigate the chances of complacency. He agreed that he has had no training

specifically on workplace health and safety relating to firearms, or law

enforcement, and that his opinions on those are based on his general

understanding.

[170] Counsel asked Mr. Barnett for his opinion on what steps the government should

take before removing a control already in place. He said that a risk assessment

should be conducted to evaluate the control that is needed based on the

hierarchy of controls. He explained that this is done by starting with the most

effective control i.e. eliminate the risk. If this is not possible you go down the

pyramid. As you go down the list of six control types the degree of effectiveness

decreases.

EVIDENCE OF MARTIN OBBARD

[171] From 1998 to 2016, Mr. Obbard had worked at the Wildlife Research and

Monitoring Section of the Employer in the position of Research Scientist –

Predators and Conservation Biology. Following questioning by employer

counsel on his qualifications and work experience the union agreed that Mr.

Obbard is an expert on black bear behaviour and historical data on black bear-

human conflict that resulted in fatality, on use of bear spray in Ontario and

scientific research on its effectiveness.

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[172] Mr. Obbard testified that black bear encounters with humans could involve

defensive behaviour by bears, or could involve predatory bears. He testified that

defensive bears keep a safe distance from humans. If a human gets too close,

the bear gets stressed and would raise head with ears up and may make a

noise with its mouth. If the human does not leave, the bear would go to the next

level and may sit up and swat the ground with paws. Then it would start huffing

and snorting and clacking with its jaw. Finally it will do a bluff charge to get the

human to back off, and increase the distance of the perceived threat by the

human.

[173] Mr. Obbard described a predatory black bear as one “interested in killing and

eating a human”. A predatory bear does not give any of the warnings as a

defensive bear would, to get a human to back off. Instead, it will stealthily try to

get closer. Mr. Obbard testified that almost always deaths and serious injury to

humans are by predatory bears. He testified that evidence is that bears who

frequent dump sites or other food sites are defensive bears and not predatory.

[174] Mr. Obbard testified that statistics from the 1970’s establish that there have

been four incidents in Ontario resulting in seven human deaths. In 1978 three

boys were killed by a black bear in Algonquin Park; in 1991 a man and woman

were killed, also in Algonquin Park; in 1992 a geology student was killed North

of Cochrane; in 2005 a woman was killed at a camp site at a Provincial Park

north of Chapleau.

[175] Statistics for North America, according to Mr. Obbard, indicate that between

1900 and 2009 there have been 59 incidents of black bear attacks, resulting in

63 human deaths. Referring to published research, he testified that 88 percent

of the human deaths resulted from attacks by predatory black bears and that the

research concludes that the risk of fatal black bear attacks is extremely low.

[176] Filed in evidence was a peer reviewed article published in 1998. Mr. Obbard

opined that the author was “the guy to go to” on the subject of the effectiveness

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of Capsicum spray, commonly known as bear spray, as a deterrent on bears.

He reviewed the article and pointed out that the author concludes that research

shows that bear spray is effective in changing behaviour of a bear. In a study of

26 instances of use of bear spray on bears searching for food in garbage, it had

the effect of changing the bear’s behaviour 73 percent of the time. In the rest,

the bear had no response or had an unclear response. He referred to another

study reviewed in the article where of 20 incidents studied between 1985 and

2006 bear spray stopped the behaviour of black bears 90 percent of the time,

and that none of the bears acted aggressively when bear spray was deployed.

That study also concludes that bear spray is an effective deterrent.

[177] Mr. Obbard testified that carrying of bear spray by Ministry of Natural Resources

field staff became mandatory only in 2012. This followed a ministry biologist in

Thunder Bay being severely injured by a black bear. That biologist had chosen

not to take bear spray. As a result the policy was revised to make carrying of

bear spray mandatory and as a rule training was provided to staff every three

years on dealing with bear encounters.

[178] Mr. Obbard testified that, to be effective, bear spray must be used from a

distance of 3 to 5 meters from the bear. Because the spray spreads like a cone,

there is a greater chance of it hitting the bear. Reviewing the reasons discussed

in the study as to why bear spray had a greater success rate than guns against

bears, Mr. Obbard testified that the committee appointed to revise ministry policy

was convinced that bear spray and not firearms would be the better and safer

option.

[179] Mr. Obbard testified that he was licenced and was issued a magnum 45 sidearm

restricted to his work on polar bears in the St. Lawrence-Hudson’s Bay area.

However, he always had someone carrying a long barrelled shot gun. In order

to get his licence he had to complete a course on basic hunter safety and

various types of guns. Referring to provisions of the manual used in that

training, he testified that the sidearm AIs had were 40 calibre, and smaller than

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the 44 or 45 calibre, and that the authors conclude that a 40 calibre is only

marginally effective against bears.

[180] In cross-examination, Mr. Obbard agreed that he is no expert on weapons and

has no direct knowledge on what the best weapon is against bears, and that his

knowledge came from the wilderness course he received from experts. Counsel

put to Mr. Obbard that the studies he referred to do not state that one type of

firearm is better than others against bears. He agreed, but reiterated that the

studies do state that regardless of the type of firearm, they are less effective

than bear spray.

[181] Counsel put to Mr. Obbard that if a slaughter house regularly dumps carcasses

or animal parts, that could attract black bears, and those bears would get

habituated to humans. Mr. Obbard agreed. Counsel suggested that when that

happens, bears are more likely to be aggressive. Mr. Obbard disagreed, and

stated that they are more likely to get defensive and to exhibit warnings such as

stomping and growling. Counsel referred to the study which states that in four

out of thirty documented cases the bear acted aggressively, and in those the

use of bear spray did not result in the bears leaving the site. Mr. Obbard agreed

but added that the use of spray gives the people time to get out of danger.

Although the study observes that the bear continued to follow the person, it also

states that no one was injured. Mr. Obbard testified that he was aware of cases

where people were able to get out of danger by using bear spray a second or

third time. Asked whether he is aware of any cases where the bear was

unaffected by bear spray, Mr. Obbard replied that he was not aware of any such

case, but there have been cases where the bear spray had to be used twice.

Union counsel referred to research indicating that bear spray is 90 percent

effective, while fire arms are 86 percent effective, and suggested that there is

little difference between the two. Mr. Obbard replied that statistically that is

correct.

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[182] In re-direct, Mr. Obbard was asked what all of the research suggest to him,

about the risk of encountering black bears when an AI is investigating slaughter

operations in rural farms. Mr. Obbard testified that most encounters are with

bears approaching homes looking for garbage, and that suggests that at

slaughter houses the chances of encountering a bear is much lower. It is the

same where an officer walks down a trail or across a field. Counsel asked

whether Mr. Obbard was aware of any case where a black bear was subjected

to bear spray and the bear subsequently attacked an individual or a team. He

replied that he was not aware of any case of a bear actually making contact.

However, he was aware of cases where bear spray had to be used a second

time.

[183] Counsel asked what Mr. Obbard would expect to happen, if people encounter a

black bear at a farm where animal carcasses had been dumped. Mr. Obbard

testified that this scenario is parallel to experiences he has had, where he

encountered black bears at a site where the bear had killed a moose or another

bear for food. In each case when Mr. Obbard approached the bear left. He

testified that the same would likely happen at farm dump sites. Counsel asked

whether it would be any different if the bear is habituated with humans. Mr.

Obbard replied that more than likely the bear would give warnings and behave

defensively to get the human to leave. Asked what other steps he would

recommend to management to prevent risks associated with bear encounters.

He replied that “working in pairs” would reduce the risk phenomenally. He would

also suggest that officers should always be aware of the environment, know how

to use bear spray properly, and carrying bear spray should be mandatory.

EVIDENCE OF TIM MOODY

[184] Mr. Tim Moody was the Manager of the Intelligence and Investigations Section

of the Ministry Natural Resources Enforcement Branch, a position he held from

June 2010. He joined the OPS in December 1987 as a Conservation Officer of

the Ministry, having previously worked as a police constable in the Peel

Regional Police Force from May 1983 to December 1987. From his CO

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position, he progressed through a number of management positions, District

Enforcement Supervisor, Enforcement Supervisor, Enforcement Program

Advisor and Regional Enforcement Operations Manager, before assuming his

present position. He retired in November 2016.

[185] Mr. Moody testified that as District Enforcement Supervisor he supervised some

15 to 16 dispatchers at the Provincial Coordination Centre, since renamed the

Provincial Communications Unit. (“PCU”). He said that the role of the PCU was

twofold. He called the first role “safety watch”. Field staff can log into PCU and

advise the dispatchers where they are and when they expect to complete the

work at that location. If the officer does not call at the time provided to log out, a

procedure is set in motion to track down the officer. First the officer is called by

the PCU. If there is no response, the officer’s direct supervisor is contacted. If

that fails, the District Management is called and finally the Police are contacted.

Mr. Moody testified that an officer may call the PCU and update his/her

whereabouts any time during the shift or may request a more immediate

response. He stated that safety watch process was mostly used by COs, but

was available to any MNRF field staff. Mr. Moody testified that the second role

of the PCU was to provide real time investigative assistance. It allowed COs to

have PCU dispatchers do checks on CPIC and Ministry data. He stated that

since his time, the role of the PCU has not materially changed, but the

technology used has. Cellular service is now available much more widely. He

stated that the biggest change was the implementation of the Fleetnet system.

[186] Mr. Moody described Fleetnet as a province-wide two-way radio system, which

allows the user to push a button and talk with a dispatcher. He stated as an

example that a CO in Kenora can talk to a CO in Cornwall by contacting a

dispatcher on Fleetnet. The system was set up mainly for the OPP, which had

five dispatch centres in Ontario. At the time of roll out, the dispatch centre for

MNRF was the PCU. Presently dispatch for MNRF is done from Sault Ste

Marie. However, it is still possible for communication between the OPP and a

CO in the field through Fleetnet.

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[187] Mr. Moody testified that a CO has access to three radios linked of Fleetnet; one

in the MNRF vehicle similar to the radios in police vehicles; one portable radio

which the CO can carry, and allows a CO to talk to the vehicle radio which will

re-broadcast the communication; and a “walkie-talkie radio which allows

communication with a dispatcher directly through the tower. He testified that all

three Fleetnet radios have a panic button, which activates an alarm on the

dispatcher’s screen when pressed, and sets in motion a response of calling the

CO first, followed by calls to management and the police. He explained that

Fleetnet now is a communication tool and not a method of watching and tracking

COs. Through Fleetnet COs can communicate from vehicle to vehicle or walkie

talkie to walkie talkie. COs were issued cellular telephones also. They are not

linked to Fleetnet, but allows a CO to call another CO on her/her cellular phone

or a land line.

[188] In his last position, the AIU was one of several units Mr. Moody managed. He

testified that the AIU’s mandate was to investigate violations of OMAFRA

legislation at the request of OMAFRA pursuant to a Memorandum of

Understanding (“MOU”) between MNRF and OMAFRA. While there are some

twenty pieces of OMAFRA legislation, the primary statute the AIU had

responsibility was the FSQA. Under it AIs are authorized to search property

other than residences, with a search warrant, or without a search warrant in

exigent circumstances where there are reasonable grounds to believe that

evidence of violation exists and that evidence might be lost if the search is not

done promptly. Mr. Moody reviewed a broad range of investigations AIs may be

assigned from mislabelling food products, unhygienic food handling and storing

or packaging of product contrary to regulations, to use or distribution of livestock

medicine contrary to the Livestock Medicine Act and regulations. Mr. Moody

testified that the AIU for most part investigates illegal slaughter of animals.

These typically result from a complaint received by the RCU. RCU staff would

attempt to bring the alleged violator into compliance. If those attempts fail or if

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the situation is too complex, the RCU would refer the case for investigation by

the AIU, which could lead to prosecution.

[189] When referring a case to the AIU, the RCU completes and provides an

occurrence report on a template form. It sets out the alleged complaint, a

history of the alleged offender if any, the regulations violated and any other

agencies such as local health units that have been contacted. The report will

also set out available information on the complainant, the suspect and the RCU

inspector who handled the case. Sometime after Mr. Moody became manager,

the RCU also attached a Risk Assessment Form which expanded on the

Occurrence Report. It could include, information such as a site description, any

history, whether the suspect has been a repeat offender, the best time of day to

do surveillance, copies of licences and photographs.

[190] Mr. Moody testified that when the AIU staff were moved from OMAFRA to the

MNRF pursuant to the MOU, they were not armed. Subsequently a decision

was made by MNRF to designate AIs as COs under the Fish and Wildlife Act

(“FWA”). At the time Mr. Moody became manager of the AIU, the AIs were so

designated and carried sidearms. When Mr. Moody took over in June 2010, his

predecessor, Mr. W. Ackerson provided him with a report. It reviewed whether

the goals of the AIU when it was originally established had been achieved, and

set out a number of recommendations. Mr. Moody testified that one of the

primary concerns flagged in the Ackerson report was about the designation of

AIs as COs under the FWLA, and arming them. The report pointed out that

while the purpose of the CO designation and the arming of AIs ostensibly was to

enable them to enforce the FWLA, in reality they were doing very little of that

work. Although the intention, when the AIU was moved to MNRF was to cross-

train AIs so they would be enforcing both MNRF and OMAFRA legislation,

including the FWLA, no integration of the two functions occurred. The AIs were

involved in enforcing OMAFRA legislation only on an exceptional basis. The

report expressed concern that designation of staff who do not enforce the FWLA

as COs may be perceived as an abuse of the CO appointment authority.

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[191] The Director of the Enforcement Branch, directed Mr. Moody to follow up on the

issues flagged in the report. Mr. Moody decided that the CO appointment issue

required the most immediate attention because it was very clear to him that AI

work had nothing to do with enforcement of the FWLA. He testified that he was

also concerned that if an AI relies on the CO appointment to take action against

a business under OMAFRA jurisdiction, there could be civil liability to the

Minister and the Director, or the AIs for abuse of power or misuse of legal

authority.

[192] Mr. Moody studied the documentation on the moving of the AIU from OMAFRA

to the MNRF and the decision to designate AIs as COs and issue sidearms.

This included the MOU between OMAFRA and the Kindrie Briefing note. He

reviewed the MNRF data base on the types of investigations carried out by AIs

the charges laid etc. The goal was to ascertain whether or not the AIU was

performing FWLA work. He then issued a report dated May 12, 2011 setting out

his findings.

[193] The Moody Report concluded as follows: “A review of the activity data recorded

in the MNRF Compliance Activity and Violation Reporting System reveals that

the entire AIU have performed less than 1% MNRF legislation since the creation

of the unit ten years ago”. The report also states that a jurisdictional scan

confirmed that “agriculture and food safety investigators in other agencies in

Ontario and Canada are not armed nor are they appointed under legislation

unrelated to their mandate”, and that “Investigators in other inspection,

investigation and enforcement ministries in Ontario (MTO, MOE, MOF) are not

armed nor are they appointed under legislation unrelated to their mandate”. Mr.

Moody testified that from his review, he concluded that the authority to appoint

staff as COs under the FWLA had been used to find a legal justification to allow

AIs to carry restricted weapons. In his report, Mr. Moody set out options to

address the concern, and discussed the pros and cons of each. The options

were: (A) To retain the status quo, (B) To change the job specification and

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delivery model, (C) To retain the status quo but revoke CO appointments and

issue restricted and prohibited weapons under peace officer status under the

Criminal Code and case law, (D) To retain the status quo, but revoke CO

appointments and return restricted and prohibited weapons to MNRF, (E) To

revoke CO appointments, return restricted and prohibited weapons to MNRF,

and retain operational governance of AIU, but return administrative responsibility

OMAFRA, and (F) To return full responsibility and governance of the AIU to

OMAFRA, and revoke CO appointments, to return restricted and prohibited

weapons to MNRF and allow OMAFRA to issue weapons at their discretion.

[194] Mr. Moody pointed out that options D, E and F involved removal of sidearms

from AIs and that he had identified as a “con” in each these, the possibility of a

health and safety grievance. However, he opined that the risk was low since

sidearm was not the industry standard and was not supported by law. Mr.

Moody recommended option F as the preferred option, followed by options D

and C respectively. Attempts to implement option F failed because OMAFRA

refused to take back the AIU. Therefore option D was adopted by the ADM. He

testified that his biggest concern about option D was the possibility of a health

and safety grievance by AIU members. Mr. Moody testified that after the

decision had been made to implement option D, he looked at any possibility of

arming AIs, without CO appointments. He consulted with fire services and

MNRF Legal Services. He ultimately concluded that there was no other legal

way to arm AIs.

[195] Mr. Moody testified that he disagreed with Mr. Kindrie that carrying a sidearm

and pepper spray was a necessary and reasonable safety precaution when

performing AIU work. Mr. Kindrie had overstated the risks faced by AIU

members in the briefing note. He testified that he had reviewed all the

documentation that led to the arming of AIs and “saw no evidence of a historical

or likely risk that would require a lethal weapon”. He disagreed with Mr.

Kindrie’s use of police duties as a comparator to work of AI’s. He testified that

the mandate and expectations of a police officer is very different from an AI.

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The primary role of police officers is the protection of the public. They enforce

the Criminal Code and other Federal Legislation and deal with murderers, bank

robbers, rapists and other criminals. When they are called to a dangerous

situation they have to stay and protect the public until the situation is brought to

a conclusion. In contrast the AIs’ role is to deal with regulatory non-compliance

with provincial legislation. More importantly, unlike police officers, AIs are not

obligated to attend or to stay after attending, if they think it is dangerous. He

testified that AIs investigate complaints referred to the AIU by the RCU. In most

cases the subjects had already been contacted by RCU officers, who have

useful information to provide to the AIU. Police officers on the other hand

cannot refuse to go on the grounds that it is dangerous and rarely have

opportunity to plan. Mr. Moody testified that in his view Mr. Kindrie’s comparison

of AI work and police work was an “extreme stretch”.

[196] Mr. Moody testified that police officers attending a call are obligated to stay, and

often have to arrest offenders who resist arrest. AIs do not have to do that and

do not even have the power of arrest. Counsel put to Mr. Moody Mr. Kindrie’s

testimony that although the offences police and AIs deal with may be different,

the types of people are similar. Mr. Moody disagreed. He stated that a criminal

offence is not the same as a regulatory violation, and that it is simply not

possible to equate people committing murder, rape and bank robberies with

those failing to comply with regulations by mislabelling berries or slaughtering

animals and selling meat without a licence.

[197] The AI job description was revised following the removal of the CO appointment

and the arms. Comparing the new job description with the old, Mr. Moody

pointed out that reference to duties and responsibilities touching on MNRF

program areas were removed in the former. The letters dated January 30, 2012

sent to AIs advising of the removal of the CO designation and sidearm/pepper

spray also advised that their job description had been revised because the old

one was inaccurate in relation to the actual work performed.

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[198] Mr. Moody testified that on January 30, 2012, he also convened a meeting of all

AIU staff by teleconference. A Human Resources Advisor was also in

attendance. Mr. Moody reviewed his speaking notes prepared for the meeting

and testified that he announced the employer’s decision, and that AIs are

required to return their sidearms and pepper spray by February 10, 2012,

together with all associated equipment. He also reviewed provisions of the

FSQA to highlight that AIs are able to request police assistance and that the Act

obliges the police to provide assistance when requested. He specifically

directed that if an AI is “not comfortable entering a particular work location or

dealing with any particular subjects for demonstrable reasons, then do not enter,

or immediately disengage and discuss your options with your supervisor”.

[199] Mr. Moody referred to three requests for direction signed by seven AIU staff he

received on February 3, 2012. (supra para.). The first was a request for written

direction on how AIs are to proceed if they believe there is a health and safety

risk, since they would no longer have sidearm or spray. The second was a

request that the employer do a workplace risk assessment pursuant to OHSA,

and the third, that Health and Safety Committee conduct an inspection to identify

hazards faced by AIs.

[200] On February 15, 2012, Mr. Moody issued a four page Interim Direction in writing

to the AIU. He reviewed it in detail during testimony and highlighted the

following:

“You are to follow the spirit and intent of existing MNRF Enforcement Branch

-

Policy and Procedure. Where those policies or procedures refer to

“Conservation Officer” you are to read them to include “Agricultural

Investigator” where they reasonably apply in the context of your duties and

authorities”.

Als were directed to obtain copies of the MNRF Enforcement Branch Field

-

Manual and refresh their knowledge and understanding before they engage

in any AI investigative activities outside of the office.

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“Whenever possible, AIs shall disengage from any activity where,

under the circumstances, their training, experience, knowledge and

individual ability is insufficient to ensure their safety”. (bold original)

“Officer safety is the over-riding priority in deciding when to disengage. It is

not likely that any violation of legislation usually enforced by AIs will require

or justify an officer to intentionally place themselves or the public at

unreasonable risk of assault, attack, injury or death”.

-

It is mandatory that there be a minimum of two officers when conducting field

enforcement activities; (i) During the period 11 p.m. to 5 p.m. (ii) Where high

risk activity is conducted, regardless of the time of day. (iii) Where a

supervisor determines in his/her discretion that it is in the best interest of

officer safety.

-

AIs shall carry an appropriate means of communication under the

circumstances, and ensure log-on and log-off procedures are adhered to.

“You are expected to make general requests or use compelling legislation

request to police assistance whenever you feel it is reasonably required to

protect your safety and you are to wait until the police have attended before

entering locations or making contact with persons of concern”.

-

“You are directed to disengage (or not engage) from any situation where you

reasonably believe you are not able to ensure your safety in the

circumstances.

-

[201] Mr. Moody testified that on February 21, 2012 there was a work refusal initiated

by Mr. Hartnick while on a surveillance assignment in Kemptville with Mr. Ridley.

The two officers had called supervisor Beaukelman from the site and advised

that they felt unsafe doing the surveillance because they did not have sidearms

or pepper spray should a dangerous situation arise. Mr. Beaukelman had

directed the officers to return to the Kemptville office. The Ministry of Labour

was contacted and an inspector from MOL met with a number of individuals

including Mr. Hartnick and Mr. Ridley. Mr. Moody testified that, subsequently

.

the inspector issued a field visit report relating to the Kemptville work refusal, as

well as another work refusal in Timmins, initiated by Mr. Noel Todd and Mr. Brett

Campbell. The inspector concluded that the work refusal was not justified

because it was based on hypothetical facts. The inspector nevertheless ordered

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that the employer do an assessment of workplace violence risk, and establish a

plan and timeliness for doing that.

[202] Mr. Moody testified that prior to the MOL order, in response to Mr. Ridley’s

request, he had discussions with AIU members and the Ministry Health and

Safety Advisor about establishing a Risk Assessment Plan following the

template MNRF Risk Assessment. However, the inspector had commented that

the MNRF risk assessment plan was too generic. Therefore, he discussed his

experience and knowledge relating to risks associated with AI work with Human

Resources Advisors and produced a plan as ordered by the Inspector. That

plan called for the issuance of a further interim direction pending the creation of

the risk assessment ordered. The second interim direction was issued on March

23, 2012. Mr. Moody testified that it expanded and provided more detail to the

first interim direction. Mr. Moody reviewed in detail the contents of the second

interim direction. He said that he wanted to make it clear that “disengagement”

did not only mean getting out when one is in danger but that officers should not

even initiate contact if they believe it is unsafe. The message was, “It is ok to

just don’t go”. He directed that if the situation changes after an officer had

initiated contact, and it is felt that, it is unsafe, “it is ok simply to leave”.

[203] Mr. Moody testified that he also worked with OMAFRA to improve the

information in the occurrence reports, to enable officers to plan. A file would not

be assigned to an AI, if OMAFRA had not provided a risk assessment including

any concerns about workplace violence.

Als were directed to discuss

OMAFRA’s risk assessment, and techniques and steps for reducing risk with the

supervisor, even in cases already under investigation. They were directed not to

contact known persons of interest, until CPIC and background checks had been

done to see whether there was any risk of workplace violence.

[204] Mr. Moody testified that he directed that AIs should log on/log off with the PCU

and the Fleetnet system, and when in the field use Fleetnet radios in the same

manner they did when they were designated as COs. If in an area with

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coverage they were not to contact a person of interest without using Fleetnet. If

no Fleetnet coverage is available, they were directed to use radio or cellular

phone to contact the PCU, which provides coverage to the entire province.

[205] Mr. Moody stated that he reinforced that AIs should not enter a property for an

exigent circumstance search unless an approved operational plan was done,

and also that such a search was not to be done alone. He said that he

emphasized this because many AIs were regularly using exigent circumstances

searches, when it was not necessary considering the nature of the offences and

consequences of potential loss of evidence. He felt that some AIs were very

concerned about losing even one piece of evidence. He said that it was risky to

“just charge in” to secure evidence. Moreover, that use of exigent circumstance

search provisions of the FSQA routinely could result in dismissal of prosecutions

on constitutional grounds.

[206] Mr. Moody highlighted provisions in the interim direction, where the message

was, “make sure you stay safe. If you lose evidence it is ok”. They were

directed not to enter a property unless accompanied by another AI or police,

because many AIs had been going in alone. Mr. Moody agreed that AIs

encounter people holding knives and sharp-edged weapons when investigating

slaughter operations. The interim direction required AIs in those circumstances

to first order the persons to drop the weapons on the ground and move away. If

they do not comply, the officers were to leave the site and call their supervisor.

Mr. Moody was invited by employer counsel to comment on evidence by union

witnesses to the effect that even if they are accompanied by police officers they

would protect themselves first, exposing the AIs to danger. Mr. Moody stated

that evidence was “nonsense” and “ludicrous”, and defies logic, particularly

considering that many of the AIs had been police officers previously.

[207] Mr. Moody testified that when the MOL inspector made an order that the

employer do a risk assessment of workplace violence, in discussion with MNRF

health and safety advisors, a decision was taken to retain an outside consultant.

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Mr. Moody reviewed the government’s list of vendors of record and also did an

internet search for consultants with expertise in health and safety in

enforcement. It was difficult to find one, but ultimately the Public Services

Health & Safety Association was selected. Their mandate set out in the

contract, was to issue a report after a review of on-site documents and data,

including conduct of interviews. In order to facilitate that Mr. Moody prepared a

schedule and all AIs were interviewed by the consultants.

[208] Mr. Moody stated that the consultants were Mr. Jeff Pajot and Mr. Dave Carter.

Mr. Moody reviewed speaking notes he had made in preparation to meet with

them, on April 20, 2012. He related to them the history of how and when the

AIU was armed, did not include enforcement of the FWLA, and the reasoning

behind the employer’s decision to remove the CO designation, and along with it

the sidearm and pepper spray. Mr. Moody testified that he reviewed with the

consultants the kinds of duties the AI’s performed during investigations. He

informed them about the work refusal, the MOL inspector’s findings and order.

He told them that there is no evidence, formally or anecdotally, of any significant

incident, and that Mr. Ridley’s assertion that on numerous occasions lives were

saved and serious injury to AI’s was prevented as a result of having ready

access to sidearms, was utter nonsense, because there is no evidence of even

one instance of an AI ever drawing a sidearm or even the baton.

[209] Mr. Moody told the consultants that in his opinion, since most AIs had many

years of police experience, regardless of management directions, they were not

receptive to the idea of leaving or not going to a confrontational or potentially

risky situations. It was an alien concept to them, and that he anticipated that

AIs, during their interviews, would state that they are required to rush into

confrontational or risky situations, or to stay and deal with such situations. He

wanted to ensure that the consultants are informed that the employer’s

expectations were quite the opposite.

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[210] The evidence is that Mr. Pajot on June 11, 2012 forwarded to Mr. Moody a draft

report, and requested Mr. Moody’s “thoughts” about it. In this draft, the

consultants, evaluated numerous aspects of AI work and rated each for risk as

high, moderate or low. Various safety controls were recommended for each

aspect of the work. In the draft report in many cases the recommended controls

included provision of sidearm and pepper spray. The conclusion” in the draft

report reads:

Conclusion

The MNRF Agriculture Investigator (AI) faces numerous High and

Moderate risks to Violence in the workplace. Management and workers

alike at MNRF have exhibited top-notch professionalism and a deep

desire for the safety of all AIs. The current Violence prevention controls

at MNRF are numerous, however the lack of Pistol firearms and pepper

spray is a major lack in controlling violence and maintaining the safety

of the AIs. The nature of enforcement places the AI in contact with

people who are suspected of being involved in criminal activity, often in

isolated locations and often with ample edged weapons and firearms.

The high-degree of skill and experience exhibited by the AIs in Policing

or Enforcement is a testimony to the risky nature of the work. Although

the actual use of force is rare, the AIs require all the tools reasonable for

the protection of their health and safety. There is evidence form the AIs

themselves that even the show of force, such as placing their hand on

their pistol, has had a calming effect on violent behaviour exhibited by

suspects. Equipping the AIs with Pistol firearms and pepper spray and

the associated rigorous training, is essential in maintaining a high

degree of protection for the Agriculture Investigators.

[211] The next day Mr. Moody wrote to Ms. Sabina Mason, a Regional Health &

Safety Advisor, commenting inter alia, that the draft report “is a very poor piece

of work, full of inaccurate or stretched facts or no facts at all. They appear to

have ignored volumes of support material and seem to have based all their work

on short interviews with admittedly biased staff but without any follow-up fact

checking. I believe they have incorrectly interpreted what “likelihood” means in

the context of a WV occurrence and they also make some statements that

reveal a frightening lack of understanding about appropriate use of certain

sidearms”.

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[212] Asked by employer counsel why he felt that way about the draft, Mr. Moody

testified that the authors had made their conclusions based on how bad it would

be if the worse happens, without any consideration of the realistic likelihood of

that ever happening based on objective evidence. He stated that he felt that the

consultants did not have an understanding about use of sidearms in the context

of law enforcement from their statement in the conclusion that placing a hand on

the sidearm would have a calming effect. He testified that there was no

evidence of that ever happening. To the contrary, the evidence in the

Scarborough incident was that as soon as the subject noticed the sidearm under

Mr. Hartnick’s jacket, he became extremely agitated and called the police.

[213] Mr. Moody provided to the consultants a document of over 50 typed pages,

including detailed comments on what he viewed as numerous factual

inaccuracies and misunderstandings about the AI work, the safety controls in

place and the employer’s expectations. I have reviewed all of the comments,

but will not set them out here. I shall only highlight the general concerns Mr.

Moody had with the content of the draft report which formed the basis of his

comments communicated to the consultants. He testified that investigations

require AIs to attend illegal slaughter locations in farms, sales barns where

unlicensed activity may be taking place, and retail stores and markets where

unlicensed or mislabeled food product is sold. None of these locations can

reasonably be described as “high crime areas” as the report seems to have

done.

[214] Mr. Moody testified that even if an AI is assigned an investigation which involved

attending a high crime area, substantial safety controls were in place to protect

AIs. He referred to his earlier testimony that at the time the removal of sidearms

and pepper spray was announced, he provided verbal as well as formal

directions to AIs that if they were not comfortable entering a particular location or

dealing with particular individuals, they should not enter, or if already engaged

they should disengage and leave.

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[215] Mr. Moody testified that a risk assessment must necessarily involve not only the

evidence about the existence of an item that may potentially be used as a

weapon it must also involve a consideration of the individuals with access to

such item and the likelihood of them using it as a weapon to attack an AI. This

must include a review of evidence as to how often such item has been used as a

weapon against AIs. He said that the mere existence of knives or axes in a

slaughter house, for example, by itself does not create a safety risk. The people

there and their actions and mind set must be very significant considerations.

The consultants seem to conclude that merely because a potential weapon was

there, that by itself exposed AIs to a safety risk.

[216] Another significant concern Mr. Moody expressed was that the consultants

made recommendations for controls, including provision of sidearm and pepper

spray, in numerous aspects of AI work, but provided no rationale for concluding

that sidearm and pepper spray were necessary or would help in all of the

circumstances, particularly in light of controls already put in place by the

employer. He pointed to several recommendations as examples where no

rationale is provided.

[217] Mr. Moody testified that the draft report in many instances had failed to consider

whether AI safety could be achieved by controls other than a lethal weapon. It

does not appear the consultants considered whether safety could be achieved

by doing the job differently, for example by disengaging, not working alone,

doing more advance planning, not resorting to exigent circumstances searches

routinely and seeking police assistance more often. He pointed out that while

the draft report provided members of Ontario Land Owners Association as an

example of a high risk situation where AIs encounter unstable and volatile

people who become belligerent to government officers, he was not aware of any

instance where a member of a land owners association had assaulted an AI, or

other government officer.

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[218] Mr. Moody testified that the consultants appeared to have ignored the

communication systems AIs have. Years earlier the Ministry of Labour had

ordered that AIs should be provided radios with a direct link to police. The

employer responded by creating the CPU. Following that, the technology

improved and the Ministry was linked to the OPP Fleetnet communication

system. The consultants were provided with this information, but do not appear

they gave communication tools available any consideration.

[219] Mr. Moody further testified that he could not understand why the draft report, in

recommending provision of lethal weapons to AIs, considered vehicle stops on

highways as dangerous work, when by 2014 AIs had been directed that they

were not to do vehicle stops on highways. If they ever did that it was rare, and

even then always at the AI’s discretion. That caused him to comment, pointing

out that even other OPS staff like MTO enforcement officers who do vehicle

stops daily are not armed. Mr. Moody testified that under MNRF use of force

policy, an AI would be justified using a sidearm only in situations where he/she

is in imminent danger of being seriously injured or killed. He was not aware of

any instance where an AI faced such a situation. The consultants seem to

assume that the mere presence of an unstable or volatile person puts the AI in

imminent danger of serious bodily injury or being killed.

[220] Mr. Moody testified that after providing written comments he met with the

consultants and elaborated further on his concerns about the draft. He

particularly emphasized that the draft report fails to distinguish between “criminal

offences” and “regulatory non-compliance”, and the absence of a rationale in

many instances of why they recommend sidearm and pepper spray as a

required control when there is no objective evidence to support such a need.

On June 27, 2012, he wrote to the consultants elaborating on the distinction

between criminal offences and regulatory violations.

[221] Mr. Moody testified that Mr. Pajot on July 9, 2012, advised Mr. Moody that he

had a “great conversation” with “a PSHAS police expert”, and that the expert

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raised the question of how AIs are tracked while in the field. Mr. Moody

responded with information on the communication equipment available to AIs.

He pointed out that unlike police and conservation officers, AIs “do not stop

random people at random locations”, but “make contact with clients at planned

and known locations”. They are expected to use the communication tools to

inform the MNRF communication centre where they are going and how long

they expect to be there when done, they are to inform the centre again. If an AI

does not contact the centre at the anticipated time, “an alarm goes off and help

is automatically sent to the location without waiting for a call for help”. He also

wrote: “In all cases though, it is incumbent upon the AI to ensure the

communication centres know where they are and what they are doing”.

[222] On August 7, 2012, Mr. Pajot submitted a Second Draft of the Violence Risk

Assessment and invited Mr. Moody to provide “any further comments” before he

submits a Final Report. The second draft was significantly different from the

first. In several areas “the level of risk “was dropped from “high” to “moderate”

and in a few to “low”. Also, while the first draft had recommended provision of

sidearm and pepper spray as a control in many areas, the second draft did not

recommend sidearm or pepper spray anywhere. On August 9, 2012, Mr. Pajot

submitted a final draft and Mr. Moody responded that he had “no edits to

suggest”, and requested that Mr. Pajot submit a “final final” report.

[223] The second draft of the Report contained the following “conclusion”.

The MNRF Agriculture Investigators (AI) occasionally face moderate and

low risks of Violence in the workplace. Management and workers alike at

MNRF have exhibited op-notch professionalism and a strong desire for

the safety of all AIs. The current violence prevention controls at MNRF

are numerous and the training is excellent especially related to

disengagement, defensive tactics, conflict resolution skills/tactical

communication and negotiation skills. Historically the actual use of force

is extremely rare. There has not been one documented report of use of

force with the AIs. Furthermore, the disengagement policy is very clear

and the AI will never are not be required to knowingly place themselves

into a potentially violent situation without adequate safeguards in place.

It included a “note” as suggested by Mr. Moody. It read:

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“It has been suggested that entry into on-farm illegal slaughter operations

may pose the highest potential WV risk to AI. The AIs investigate on

average approximately 10 illegal slaughter operations per year for the

entire AIU (approx. 1-2 illegal slaughter operations per AI per year”.

[224] Mr. Moody made suggestions to change the content of the note in question and

the conclusion. In submitting his final report on August 9, 2012, Mr. Pajot noted

that he had made a “slight change in wording” in the note, and had drafted “new

wording of the conclusion”. The note and the conclusion in the final Report read

as follows:

Note: In the context of the AI work, it has been suggested that entry into

on-farm illegal slaughter operations may pose a high risk. However, the

frequency is very low. The AI’s investigate on average approximately 10

illegal slaughter operations per year for the entire AIU (approx. 1-2 illegal

slaughter operations per AI per year) Furthermore many other violence

prevention controls mitigate the risk substantially e.g. disengagement.

Conclusion

The MNRF Agriculture Investigators (AI) may occasionally face moderate

and low risks of Violence in the workplace. Management and workers

alike at MNRF have exhibited to-notch professionalism and a strong

desire for the safety of all AIs. The current violence prevention controls at

MNRF are numerous and the training is excellent especially related to

disengagement, defensive tactics, conflict resolution skills/tactical

communication and negotiation skills. Historically, the actual use of force

is extremely rare. There has not been a single officially documented

report of use of force with the AI’s in accordance with policy ENF PO

3.01.02 (Use of Force Reporting).

Furthermore, the Rules of

Engagement policy is very clear and the AIs are not required to knowingly

place themselves into a potentially violent situation without adequate

safeguards in place.

[225] Mr. Moody testified that he provided copies of the Final Report to the AIU staff

and to the MOL inspector who had issued the order. The AIs were given an

opportunity to comment on the report. The AIs responded by collectively filing a

complaint with MOL. It stated, inter alia:

The assessment is flawed due to the many incorrect statements

contained therein such as tools that are mentioned but not available to

the AIU, or tools that are inadequate. It is flawed because on-site field

visits were not conducted. The report references past practices and

policies but fails to mention that the unit was once armed for health and

safety reasons. It is flawed because the assessment does not provide a

solution for those situations were AIU investigators cannot disengage.

. . .

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We, the members of the AIU honestly believe that despite the interim orders and

policy, that our health and safety is at serious risk with the only solution being

the return of our sidearms as safety tools.

[226] The evidence is that the same MOL inspector met with two AIs to discuss the

group’s comments on the Report. Then he met with the PSHSA consultants and

discussed those comments. Their response was that none of the comments

materially affect the conclusions reached in the Report. In a Field Visit Report

dated February 20, 2013, the Inspector observed inter alia, that “During

discussions it was apparent that the only resolution that would be acceptable to

the investigators would be the return of their firearms” and concluded that “the

risk assessment does not support the need for Agricultural Investigators to carry

sidearms”. He concluded that the MOL would not issue any orders and no

further action is required by the MOL.

[227] Mr. Moody testified that there was a Rules of Engagement Policy which applied

to all staff in the Enforcement Branch. Following the release of the Risk

Assessment Final Report, he revised that policy to create a Rules of

Engagement Policy which was specific to AIs. He testified that the existing

policy was very focussed on COs. He deleted provisions not applicable to AIs

and added provisions specifically relevant to them. His intention, in effect was to

formalize as a policy the content of the interim directions he had provided

following the MOL Inspector’s order.

[228] Mr. Moody testified that the revised policy included a number of provisions

relating to officer safety. He pointed to the following “principles” set out:

-

Officer safety is the over-riding priority in deciding when to

disengage. No violation of legislation usually investigated by AIs will

justify and AI to intentionally place themselves or the public in a

highly-likely risk of assault, attack, injury or death.

- There is no situation within the mandate of the AIU that justifies using

force in order to continue an investigation. There is no circumstance

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within the AIU mandate that would compel an investigator to rush into

or remain in a workplace violence situation simply to obtain evidence.

- Using force for defense and escape may be appropriate and justified

in some workplace violence situations. Use of force for offensive

purposes, to compel a person of interest (POI) to submit to general

AI direction, to remain engaged with a POI or to continue

investigating in the face of workplace violence is not appropriate

expected or required within the mandate of the AIU.

[229] While the new policy consisted mostly of the content of the earlier interim orders,

Mr. Moody testified that he also included some new provisions on officer safety.

He stated the most important was the following:

Before investigative action is taken on each file, the Workplace Violence

Risk Assessment Too and the Workplace Violence Activity Selection

Chart shall be used to ensure a consistent approach in evaluating the

workplace violence risk and determining the best approach. These tools

may be re-used throughout the course of an investigation as

circumstances change.

[230] Mr. Moody explained how the risk assessment tool is to be used. When an

investigation is assigned, the tool identifies various activities that may be

undertaken. The goal is to determine whether the investigation may be done by

an AI alone, or by a two person team, whether an operational plan should be

done, whether police assistance should be sought. Each activity is assigned a

score depending on the circumstances of the particular investigation. If the total

score exceeds 25, police assistance is mandatory. If the risk of violence is high,

the activity is not to be undertaken even with police assistance. He testified that

the tool assists the AI to focus on factors to consider. At the end of the risk

assessment, the AI may have safety concerns. If so, he may choose not to

engage or to disengage if already started, or he may seek directions from the

supervisor. He testified that as the tool was used, it was further revised by the

supervisor in consultation with the AIs. Mr. Moody testified that a score of at

least 25 is reached anytime a search warrant is to be executed or an exigent

circumstance search is to be done. Therefore, AIs will be accompanied by

Police. Before AIs enter a property or contact a subject in these circumstances,

the police first enter and secure the scene.

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[231] Mr. Moody reviewed an e-mail he sent in November 2012 to all AIs where he

had provided directions to AIs that they ought not stop any moving vehicles even

by using hand signals, that they should approach a vehicle only if it has stopped.

If a moving stop is absolutely necessary they should call the police. If an AI

feels that a vehicle stop is not safe, they should not do it, that it was “ok” even if

evidence is lost and a court prosecution may be compromised.

[232] Counsel put to Mr. Moody, a “use of force wheel”, the union had put in as an

exhibit. Mr. Moody said that it was applicable to all enforcement officers in

Ontario, from the police to the AIU. It shows an officers’ response in an

escalating situation, from trying to talk to the subject and moving to resort to

physical control as the subject’s resistance increases. He pointed out however,

that this document does not include disengagement as an option even as the

situation escalates and observed that this demonstrates a key difference

between enforcement officers like the police and AIs. The former are required to

attend and remain however unsafe the situation is. AIs have been explicitly

directed that they do not have to attend, or should leave, if they feel unsafe.

[233] Employer counsel reviewed with Mr. Moody in great detail the testimony by AIs

about the incidents the union relied on to demonstrate that AIs faced with

serious health and safety risk. In each case Mr. Moody disagreed that there

was any realistic threat. In some cases, the assertion, he said, was inconsistent

with the AIs’ own conduct. For example, in one instance, the AI remained and

continued engaging with the subject after the police had left. In another case,

two AIs asserted that they were at risk because they were outnumbered by

individuals engaged in illegal slaughter using knives. They asserted that it

posed a significant risk. Mr. Moody pointed out that the AIs had admitted in

cross examination that from the number of vehicles parked in the drive-way,

they knew that very likely they would be outnumbered by people in the barn.

Yet they entered the barn rather than leave. Even when they saw they were

outnumbered, they did not leave.

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[234] In other incidents, Mr. Moody took the position that, although the subjects were

upset that government officers were interfering with their affairs, when the AI’s

talked to them they calmed down. In one case when ordered to drop the knives

the individuals were using to butcher an animal, they did so. Mr. Moody testified

that these examples in fact demonstrate that what the subjects wanted was for

the AIs to leave, not to confront and assault them. In each case Mr. Moody

referred to directions he had issued, and stated that if these incidents had taken

place after the removal of sidearms, the directions, if followed, would have

protected the AI’s safety. He repeatedly referred to the direction to the effect, “if

not comfortable do not go, or if already there just leave. Officer safety is more

important than protecting evidence”.

[235] About the individual grievance filed by Mr. Michael Martin, Mr. Moody testified in

detail about the reasons for why Mr. Martin’s appointment as CO did not

happen. I will not review that evidence. The point is that Mr. Martin did at least

some AI field work with no sidearm or pepper spray. He was therefore, at

worse, in the same position as his colleagues were after all AIs were disarmed.

The issues that would determine the group grievance would also determine Mr.

Martin’s grievance.

Cross-Examination

[236] Union counsel referred to a 10 year review dated June 21, 2010, known as the

“Ackerson Report” prepared by Mr. Moody’s predecessor. The following excerpt

from the Ackerson Report was reviewed with Mr. Moody:

As mentioned previously when this unit came to OMNRF from OMAFRA

there was no consideration to appoint these investigators as COs under

the FWCA. It was not until 2006 that the Manager of IIS prepared a

Briefing Note (BN) to the Deputy Minister seeking issuance of side arms

to the Agriculture Investigators which led to investigators being appointed

under the FWCA. This BN is attached to this report as Appendix “D”.

While the primary purpose of this BN was the request for issuance of side

arms to the AIU investigators, another objective was to have agriculture

investigators appointed under the FWCA in order to have an integration of

staff so they could carry out OMAFRA legislation or OMNRF legislation

including but not limited to the FWCA. In reality there has been limited

integration to date because the mandate of the Agriculture Unit is to

enforce OMFRA legislation and their workload is such they do not have

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time to take on OMNRF investigations. While agriculture investigators

made efforts to take part in FWCA work such as assisting during the deer,

moose hunt or other special enforcement activities, one could not

consider the relationship between the agriculture investigations unit and

the rest of enforcement branch as being “integrated” for the purposes of

carrying out both investigative functions.

[237] Mr. Moody agreed that Justice Haines as cited in the Kindrie Briefing note,

opines that the limitation of the power of arrest to instances involving fish only is

illogical and in a foot-note to that opinion wrote, “Given the nature of the

activities investigated, the instruments utilized to slaughter animals and to

process meat, the prohibition (of AIs carrying firearms, batons or pepper spray)

should be reconsidered”.

[238] Reference was also made to the following comment by Justice Haines with

regard to the Kindrie Briefing note:

Another point raised in this BN relates to other agencies across Canada

in similar high risk enforcement activities being restricted to police and

Natural Resource Ministries. While I did not conduct a full agency

comparison my research indicates the Canadian Food Inspection Agency

(CFIA) who carries out similar work are not armed. It is my understanding

other provincial agencies who conduct similar work are not armed either.

This is not to diminish the fact officers in the AIU face safety issues when

dealing with illegal activities and require appropriate safety measures.

The safety aspect of this BN is one that will require more consideration to

determine if we have the correct model that provides safety for

investigators and if CO appointment for the AIU investigators remains

appropriate.

[239] Mr. Moody also referred to the conclusions in the Ackerson Report to the effect

that the primary intent of the appointment of AIs as COs was the issuance of

sidearms to AIs, while under s. 87 of the FWLA the appointment is for the

purposes of enforcing the FWLA. He said that appointing AIs who do not carry

out FWLA enforcement could be perceived as an abuse of the appointment. He

pointed out that Mr. Ackerson posed the question, “Why do AIU investigators

require an appointment under the FWLA when they do not enforce this

legislation and in fact their mandated legislation is not within OMNRF”.

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[240] Mr. Moody agreed that the Kindrie Briefing note refers to the Haines report,

particularly the observation in foot-note 88. He also agreed that Mr. Kindrie

advocates the “one up principle”, that is to the effect that if the other person has

a weapon, you need a weapon which is one up from that weapon, to be able to

defend yourself. Mr. Moody replied that he did not agree with it as a principle

that applies in all cases. It depends on the circumstances of each case. What

is relevant is not what someone has in his hands. It is what the person is doing

with it. Whether he is simply holding the knife for example carving meat or is he

threatening you with it or attacking you. Mr. Moody stated that in the former, you

would not need any weapon at all because there is no need to defend yourself

against any threat or potential harm. Counsel put to Mr. Moody that where the

person has an edged weapon, you need to be equipped with something more

serious than an edged weapon to be safe. Mr. Moody disagreed. He said, “It is

not the weapon he has that’s important. It is what he is doing with it. If he is just

standing there with a knife in his hand, you don’t need anything.” Under

questioning, Mr. Moody agreed that in some circumstances, for example, you

are being attacked with a weapon, the one up principle may be appropriate.

[241] Mr. Moody agreed that AIs sometimes encounter persons who have edged

weapons, clubs or firearms. He said that while there are dogs in many farms, he

was not aware of any instance where an AI had encountered a guard dog, or of

a dog attacking an AI. Mr. Moody was shown photographs of dogs taken during

the Caledon Incident. Union counsel suggested that those were likely “guard

dogs”. Mr. Moody pointed out that one was a pup, and that in any event, all of

the dogs were in cages, and all they would be able to do was to bark at the AIs.

[242] Mr. Moody agreed that AIs do covert surveillance, and that the risk from the

subject is not always obvious. There may be no advance information that the

person is hostile, but he may turn out to be. It was put to Mr. Moody that AI’s

often investigate persons who have or are engaging in illegal activity other than

the activity the AI is investigating. Mr. Moody replied that it does not happen

often, but it could. He agreed that evidence has been led about AIs

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investigating individuals who have been convicted of assault or had ties to

organized crime.

[243] Mr. Moody was referred to the evidence that Mr. Ridley had come into contact

with a member of the Landowners Association of Ontario, (LAO) which while not

affiliated to the USA organization called “Freemen of the Land”, share a similar

ideology opposing government interference with business carried on their

private property. Mr. Moody agreed that he had seen signs posted by the LAO,

such as “Government get your hands off my property”, and that an OPP officer

had made a presentation to the AIU about the “Freemen of the Land”. He

added, however, that while the LAO, like the Freemen oppose government

regulation, it is not as extreme as the Freemen. The Freemen refuse to get

licenses and do not recognize courts.

[244] Counsel asked Mr. Moody why he did not include the Kindrie Briefing Note in the

documents disclosed to the MOL inspector appointed to investigate Mr. Ridley’s

work refusal. Mr. Moody replied that he did not consider the briefing note to be

a risk assessment and therefore irrelevant to an investigation of a specific work

refusal, particularly considering that the briefing note was six years old.

[245] Mr. Moody was cross-examined on his 10 year AIU Review Report dated May

12, 2011. In that report he expressed the view that the appointment of AIs as

COs under the FWLA was inappropriate when their jobs involve almost

exclusively enforcement of OMAFRA legislation. He pointed out in the report

that since their appointment as COs in 2006 they had performed less than one

percent of MNRF mandated duties. He expressed his opinion that the CO

appointments under the FWLA had been resorted to solely as a means of

arming AIs. He testified that this legal interpretation had been endorsed by the

Legal Services Branch.

[246] In his report, Mr. Moody had presented a number of options on the issue and

discussed the “pros” and “cons” of each. He testified option D was not his

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preferred option. Branch senior management discussed his report and it was

the Director of the Enforcement Branch that decided to implement option D, to

revoke the CO appointment from AIs and remove restricted weapons, sidearm

and pepper spray from them. This option required development of “health and

safety protocols to address officer safety as it applies to AIU business”, and to

continue to provide use of force training to AIs, similar to that provided to

wardens employed by Ontario Parks. The director’s decision was approved by

the ADM. Mr. Moody was cross-examined on the direction he issued, requiring

that AIs return sidearms and pepper spray; the request for direction by AIs; Mr.

Moody’s verbal direction in response. He agreed that the subsequent formal

written direction he issued was in substance the same as his earlier verbal

direction.

[247] Mr. Moody agreed that the workplace violence Risk Assessment by the PSHSA

was done in response to the MOL inspector’s order. Asked why he did not do a

formal risk assessment without waiting for a request by AIs and a MOL order, he

replied that he understood the nature of AI work and the risks they face, and

was of the view that the existing MNRF training together with the directions he

had issued following the removal of sidearm and pepper spray were reasonable

precautions for officer safety to meet the employer’s legal obligation.

[248] Counsel suggested that that it was important that the risk assessment appears

to be fair and unbiased and based on input from all interested parties. Mr.

Moody testified that he and the Director discussed that and, “We felt a third party

can do it with no appearance of being on one side or the other”, and agreed that

getting input from all is part of that. Mr. Moody agreed that the PSHSA had

experience in the police and enforcement field and that expertise was valuable.

He testified that prior to the consultants writing any draft he met with them for

less than one hour. Based on the speaking notes he had taken to the meeting,

Mr. Moody was questioned at length about what he told the consultants Mr.

Moody testified that while he did not read the notes to the consultants, they

generally reflected what he told them. Of note, he told them that the

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appointment of someone as a peace officer is not an option as a means of

arming the person, that not all peace officers are authorized to carry arms by

virtue of the appointment. The authority depends on the activity the person is

engaged in. As an example he cited that Mayors and Reeves have peace

officer status, but have no authority to carry a gun. He also told the consultants

that the MNRF use of force training was weighted heavily on how to apprehend

a suspect rather than how to leave a confrontation situation. They were not

encouraged to simply leave. However, he had repeatedly directed AIs that if

they felt unsafe they should disengage and leave, and that that their safety was

more important than securing evidence.

[249] Mr. Moody further confirmed that he told the consultants that the AIs had a clear

goal of using the risk assessment to re-arm themselves, and that he expected

the risk assessment to address actual risks that have a realistic likelihood of a

significant incident occurring rather than worst case hypothetical possibilities,

and that it would include appropriate mitigation suggestions on how to do the AI

work safely without sidearms. Mr. Moody testified that he indicated to them that

their task was not to decide whether the AIs should or should not be armed, but

to make recommendations on how AIs could work safely under the present

working conditions which did not include sidearms.

[250] Union counsel pointed out that the contract for the risk assessment does not

explicitly call for a draft report, and asked when it was decided that a draft will be

provided to the employer for comment. Mr. Moody replied that there was no

such decision, and added that it was very common for consultants to provide a

draft to the client for comment, and that he expected one.

[251] Mr. Moody testified that he believed that the consultants had taken a very

narrow view of all of the information provided to them; that they had

misunderstood what “likelihood” means. Asked what he was alluding to by

mentioning a “negative fallout” Mr. Moody explained that he, as well as other in

management felt that if AIs were armed by means other than a CO appointment,

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every other enforcement group would make the same request. They were

aware that enforcement staff in the MTO and MOE had active grievances

seeking arms. It was felt that the resolution of the issue with the AIU would have

repercussions not restricted to the AIU.

[252] Mr. Moody agreed that in their assessment of specific risk areas in the draft, the

consultants recommended new controls, and that in many cases that included

providing AIs with sidearms and pepper spray, had stated that in those areas

sidearms and pepper spray were necessary to maintain a high degree of

protection. Asked what his concern was about the consultants’ interpretation of

criminal activity, Mr. Moody testified that they interpreted regulation non-

compliance as the highest level of criminal activity and regulatory enforcement

as dealing with Criminal Code offences. Mr. Moody agreed that he also

repeatedly commented to the consultants that the draft report failed to consider

disengagement as an option.

[253] Mr. Moody testified that in assessing risk in this particular work, in his opinion,

the consultants made their recommendations based on the worse possible

scenarios without considering the likelihood of those ever happening. They

gave no weight to the information they had been provided that established that

the hypothetical “possible” safety risks the AIs had put to them in their interviews

had never happened, and are very unlikely to happen. He said that while they

recommended sidearm and pepper spray in many aspects of AI work, they

provided no rationale or explanation of how they got to that recommendation, or

why the existing controls were inadequate. That is why he felt that the

consultants simply accepted the AIs biased assertion of risks not supported by

any evidence. He expected that they would present all options to provide AIs

reasonable safety precautions. Instead they made a leap directly to the highest

level of protection possible of arming AIs.

[254] Mr. Moody disagreed with the suggestion that he concluded that the consultants

were incompetent. He again repeated the concerns he had with the draft and

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testified that by providing his comments he expected the consultants to provide

some rationale and explanation as to why they felt the existing controls were

inadequate and why it was necessary to arm AIs in the context of their work

duties. Instead of providing the explanation he had requested, the consultants

responded to his comments by removing the recommended controls he wanted

explained.

[255] Under questioning Mr. Moody reviewed what he viewed as new controls

recommended without rationale or explanation, factual errors and gaps or

relevant facts not considered in the draft. He agreed that he brought all of these

concerns to the attention of the consultants by providing written comments.

When union counsel suggested that he had accepted some recommendations

which also had no rationale or explanation he agreed and explained that they

were not expected to rationalize existing controls if they are satisfied with them,

but he wanted some explanation for new controls they recommended. Asked

why then he wanted a rationale or explanation for recommending sidearms and

pepper spray, he explained that the mandate of the consultants was to present

ways of providing a safe workplace in the present work environment which did

not include sidearms or pepper spray. They had recommended that this be

changed, but provided no rationale or explanation. If the existing controls, in

their view, were insufficient, they were obliged to explain why.

[256] Mr. Moody agreed that he did not provide a copy of the draft to the AIs and did

not inform them that he had provided comments and met with the consultants to

discuss the draft. Counsel suggested that he did not do that because he did not

want the AIs to know about the consultants’ initial recommendations. Mr. Moody

disagreed. He explained that he did not see a need to involve AIs or the union

because the risk assessment was not a joint venture undertaken by the

employer, the union and the AIs. The MOL had ordered the employer to do a

risk assessment. The employer had the obligation to have a risk assessment

done, and it hired consultants to comply with its legal obligation. Therefore, it

was between the employer and the consultants to come up with a satisfactory

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and accurate risk assessment. The AIs had no role in relation to the obligation

to comply with the MOL order.

[257] Counsel reviewed with Mr. Moody the comments AIs had provided once they

received the final risk assessment which did not include a recommendation that

they be provided sidearm or pepper spray as a reasonable safety precaution.

He questioned Mr. Moody about how the AIs may have reacted if the initial draft

had been issued as the Final Risk Assessment. Mr. Moody’s response was to

the effect that the AIs would not have disagreed with anything in the Risk

Assessment as long as it met their goal of getting their arms back. Counsel

suggested that similarly, as long as sidearm/pepper spray was not

recommended Mr. Moody would have had no issue with the risk assessment.

Mr. Moody disagreed. He testified that he still would have wanted explanations

for several other substantial recommendations made, such as a panic button at

reception and a GPS, although they are not of the same significance as a

recommendation to provide a lethal weapon.

[258] Referring to the Foot-note 88 to the Haines Report, employer counsel in re-

direct asked Mr. Moody the context in which that comment is made by Justice

Haines. Mr. Moody replied that it was in the context of the conclusion by

Justice Haines that the FSQA limiting the power of arrest only to activity about

fish was illogical. He testified that AIs are never involved in activity relating to

fish. He stated that the power of arrest requires an officer to remain engaged,

taking a person into physical custody, and keeping him safe in custody. It does

not allow an officer to disengage and leave. AIs are not required to do any of

that.

[359] Union counsel asked Mr. Moody to explain the distinction he drew during cross-

examination about the Ontario Landowners Association incident Mr. Ridley had

testified about. Mr. Moody testified that Mr. Ridley had testified that the

individual was hostile. Hostility could involve a range of behaviour. Here

“hostile” means raised voice or other verbalization of agitation. Mr. Ridley was

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not saying that the person was threatening. He said that there is a range in the

severity even in threats. Not all threats involve threat of physical violence.

[260] In re-direct, employer counsel referred to Mr. Moody’s evidence that he had not

done a “template or formal” risk assessment before deciding to remove sidearm

and pepper spray from AIs. He asked Mr. Moody whether he did any kind of risk

assessment before the decision. Mr. Moody testified that he considered the

risks faced by AIs in doing their work, whether those risks were significant, how

likely it was that those risks would arise, and whether or not the processes and

controls in place were adequate in the circumstances. He said that he did not

do this in a formal way, but “as a matter of doing business”.

[261] Counsel pointed out the evidence that at the initial meeting with the consultants,

he had told them that AIs were not required to remain if they felt unsafe and

were free to disengage and leave. Counsel asked why Mr. Moody had repeated

that same information when commenting on the draft Risk Assessment. Mr.

Moody replied that despite his raising it at the meeting, it did not appear that the

consultants addressed or considered that important information.

[262] Counsel reviewed that when asked whether he had made any changes to

protect the safety of AIs prior to the removal of sidearm and pepper spray, Mr.

Moody’s reply was, “not prior to”. Counsel asked when the changes were made.

Mr. Moody replied that he issued an amended direction to AIs, and as he

recalled that was done concurrently with the removal of sidearm and pepper

spray.

EVIDENCE OF MR. JEFF PAJOT

[263] The lead author of the Risk Assessment, Mr. Jeff Pajot, was employed as

Ergonomist and Occupational Health & Safety Specialist at the PSHSA since

2007. He had extensive education and experience in workplace ergonomics

and health and safety. He has worked in the public and private sectors in his

area of specialty, including as an Ergonomics Specialist with the WSIB for nine

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years. He has taught at Algonquin College, and had his own Ergonomics

consultation firm in Ottawa for 7 years. He also had numerous certifications and

affiliations with Associations and Boards in related fields.

[264] The evidence indicates that on March 12, 2012, Mr. Moody sent an e-mail to the

PSHSA under the subject “Request for Consultation Services”. It stated that in

response to a MOL order a workplace violence Risk Assessment has to be done

with regard to employees in a specialty unit with MNRF who work in the field.

Mr. Moody wrote, inter alia,:

Specifically, the work will include identification of situations commonly

faced by these employees in the course of their assigned duties,

identification of workplace violence risks associated with those situations

and risk ranking (likelihood and consequence) of identified workplace

violence risks associated with those situations.

[265] Mr. Pajot testified that the e-mail was referred to him and he called Mr. Moody

the next day. Mr. Moody described the work of AIs generally and also about the

work refusals which led to the MOL order to do a Risk Assessment. Mr. Moody

informed him that sidearms and pepper spray which had been provided as part

of the AIs personal protection equipment had been removed and that this has

caused some conflict.

[266] Mr. Pajot discussed with his superior, the Executive Director the information

about the requested Risk Assessment, and it was decided that Mr. Pajot, being

the local consultant, and Mr. Dave Carter, with his experience with police

services would do the Risk Assessment. On March 20, 2012, Mr. Pajot wrote to

Mr. Moody advising that PSHSA has agreed to do the Risk Assessment for a fee

of $6,000.00 to be invoiced upon completion. He informed that the Risk

Assessment would consist of a review of documentation, on-site data collection

including interviews of AIs, supervisors and other personnel as needed, visit of

workplaces if relevant, and issuance of a final report.

[267] Mr. Pajot and Mr. Carter interviewed Mr. Moody on April 30, 2012. Referring to

notes he had made at the time, Mr. Pajot testified that Mr. Moody explained in

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detail the role of AIs in investigating non-compliance with OMAFRA Legislation

and that the issue was whether they should be armed with sidearm and pepper

spray. Mr. Moody described other controls in place to prevent violence and felt

that AIs should not be armed.

[268] Employer counsel put to Mr. Pajot the Interim Direction Mr. Moody had issued to

AIs on March 23, 2012, and asked whether Mr. Moody informed him about that

at the interview. Mr. Pajot reviewed his notes and stated that the notes make no

mention of any interim direction, and observed that if Mr. Moody referred to the

Interim Direction, he would have made notes about that, and that he had no

specific recall either of that being discussed.

[269] Mr. Pajot testified that he asked Mr. Moody a lot of questions about what other

personal protection equipment were in place. Mr. Moody informed him about

the baton, body armour, emergency radios and hand-cuffs. He informed that

AIs had no power of arrest except under the FWLA, and that AIs did not do

investigations under that Act. Mr. Moody’s position was that AIs were not peace

officers either and therefore should not be armed, and had no legal authority to

be armed. Mr. Moody also described the group grievance and two work refusals

AIs had engaged in.

[270] Mr. Pajot testified that during interviews with AIs he asked them to tell him about

risks they face during work, including worse case scenarios. Their general view

was that most of the time at work there was no risk. However, some stated that

sometimes people who do not want to be investigated by government officials

can potentially get violent, and mentioned interacting with persons butchering

animals for consumption or for illegal sale, and land owner groups who want the

government to back off. Most felt that while the likelihood of that happening was

low, there was potentially high risk. Counsel asked Mr. Pajot what the AIs

thought about the level of threat they faced. He replied that some felt that there

were potentially high risk involving knives, and sometimes firearms, and that

sometimes they did not know what the risk level was.

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[271] Referring to the risk assessment tool used, Mr. Pajot testified that the tool

identifies nine categories of violence that may have to be assessed. He

discussed those with Mr. Carter and it was determined that seven of the

categories are relevant based on all of the information they had received and

should be assessed in this case. Once a category of risk is present based on

the evidence, a risk matrix is used to rank each risk category as high, moderate

or low. Mr. Pajot testified that once the existence of a safety hazard is identified,

an assessment must be made of the likelihood of that hazard causing harm and

how severe that harm could be. Based on those assessments, the risk is rated

as high, moderate or low. He testified that when an AI mentioned a risk, he

asked questions about the frequency and likelihood of that happening. Mr. Pajot

explained that when a safety hazard exists, for example a knife, whether it will

cause harm is based on the risk involved. Risk must be assessed based on a

combination of the likelihood of harm resulting the hazard and the severity of the

resulting harm. Mr. Pajot testified that once the level of risk is assessed, he

considered the impact of the controls in place on the risk. Only where he felt the

controls were inadequate to eliminate the identified risk, he made

recommendations for additional controls. Mr. Pajot testified that it is very

important to distinguish between the existence of a hazard and the existence of

a risk. If the hazard itself can be removed there can be no risk and nothing

more needs to be done. A control is provided to prevent a hazard from causing

harm when the hazard itself cannot be eliminated.

[272] Mr. Pajot testified that after completing all interviews, his general impression

was that overall the risk of physical violence to AIs was low. He said that the AIs

did not offer any instance where they were assaulted with a weapon or were

trapped with no way to leave. He testified, however, that he got the impression

that Mr. Carter felt that AIs should be armed with sidearm and pepper spray. He

testified that Mr. Carter later confirmed that opinion by e-mail, emphasizing that

while an officer may never remove his weapon from the holster, its presence

would serve as a deterrent against resort to violence. Mr. Pajot testified that he

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authored the first draft of the Risk Assessment of the Report, rating a number of

risk categories as “high”. In the conclusion, he recommended that AIs be

provided with sidearm and pepper spray. He testified that he forwarded a copy

of the draft to Mr. Carter and he approved it.

[273] Mr. Pajot testified that he also provided a copy of the draft report to Mr. Moody

on June 11, 2012 and on June 26^thmet with him to discuss it. Later Mr. Moody

sent to him a marked copy of the draft, including Mr. Moody’s comments on

many of the contents in the draft. Mr. Pajot testified that Mr. Moody disagreed

with the rankings of “high” and “moderate” to categories of risk. He specifically

took exception to the “high” rating assigned to the categories “working with

volatile clients” and “working alone or in small numbers”. Mr. Moody pointed out

that the frequency of AIs working with volatile clients was very low and that even

where a client may be volatile the likelihood of the person resorting to violence

was very low. Mr. Moody agreed that on occasion AIs may work alone, but said

that in situations where an AI is contacting a potentially dangerous person, he

will not be alone. The AI will have back up or police presence. Mr. Moody’s

point was that the context of what the AI was doing alone must be considered.

[274] Mr. Pajot testified that with regard to the category of risk, “working in high crime

areas”, Mr. Moody took the position that he had taken every illegal act as

“criminal”. He explained to Mr. Pajot at length about the distinction between

Criminal Code offences and offences resulting from failure to comply with

legislative regulations. Mr. Pajot testified that he did not agree with that

distinction, although Mr. Moody may have been right on strict law. He did further

research and also had discussions with Mr. McCague, the PSHSA expert on

police, and both concluded that illegal regulatory activity can be “a crime”, and

disagreed with Mr. Moody’s definition of “a crime”. However, while he disagreed

with Mr. Moody’s technical definition, he agreed that there is a difference

between the risk profiles of someone committing a regulatory offence such as

illegal slaughter of an animal, and some committing a criminal code offence,

which was also a distinction Mr. Moody had emphasized.

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[275] Mr. Pajot testified that Mr. Moody disagreed with the recommendation that the

AIs be given sidearm and pepper spray as a control, and took the position that

the risk of violence is so low that the AIs would hardly ever have to use any

force, and therefore sidearm and pepper spray are not warranted.

[276] Employer counsel recounted Mr. Pajot’s earlier testimony that the interim

direction Mr. Moody had issued following the MOL order did not come up during

the meeting he had with Mr. Moody on April 20, 2012. He asked Mr. Pajot

whether it was discussed when he and Mr. Carter met with Mr. Moody following

the Draft Report. Mr. Pajot replied that they did, and that a copy of the interim

direction was among a number of documents Mr. Moody provided at that

meeting.

[277] Mr. Pajot testified that following that meeting, he and Mr. Carter had further

discussions. He said that he was adamant at that time that it was inappropriate

to recommend sidearm/pepper spray.

Referring to his notes on those

discussions, Mr. Pajot testified that he told Mr. Carter that the interim direction

was “key” in deciding on the appropriateness of the recommendation, and that

Mr. Carter finally agreed.

[278] Mr. Pajot testified that he then discussed the matter with Mr. Lynn McCague, the

PSHSA consultant on the police sector, who had been a police officer and had

dealt with use of force and disengagement policies. Mr. McCague looked up the

dictionary definition of “criminal”, and disagreed with Mr. Moody’s legal

definition., but was also of the view that the level of risk to AIs was very low and

that sidearm/pepper spray are not appropriate controls in the circumstances.

Mr. McCague also commented that an officer would draw his sidearm only as a

last resort and only to impose lethal force. Mr. Pajot then informed Mr. Carter

about Mr. McCague’s opinions. He testified that it was subsequent to this that

Mr. Carter finally agreed by e-mail dated July 9, 2012, that the recommendation

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made in the Draft Report was inappropriate, in light of the provisions in the

interim direction.

[279] Mr. Pajot testified that he drafted a second draft of the Risk Assessment. He

reviewed the various changes he made of note, lowered the level of risk in

several areas and removed the recommendation of sidearm/pepper spray in the

conclusion. He forwarded it to Mr. Carter who agreed with the second draft and

made no suggestions for any changes. On August 7, 2012 Mr. Pajot submitted

the second draft to Mr. Moody. The next day, Mr. Moody e-mailed, effectively

agreeing with it, but made comments about some additional controls in place.

After reviewing the related documents he stated that it does not appear that he

made any substantial changes when he issued the Final Risk Assessment

Report.

[280] Mr. Pajot testified that following the release of the Final Report, early in February

2013 the MOL inspector contacted him and informed that the union had

conveyed to him its disagreement with it, and wanted to meet with him. When

they met later in February, the inspector showed him a document which set out

a list of bullets describing the provisions in the report the union had taken issue

with. Mr. Pajot testified that he reviewed the list and informed the inspector that

the union’s submission does not cause him to make any changes to the Final

Report he had issued.

[281] In cross-examination, union counsel reviewed the qualifications and experience

of Mr. Pajot and Mr. Carter, and suggested that both had a thorough

understanding of how to do a violence risk assessment and the difference

between a hazard and a risk, and between a risk and control used to mitigate

risk. Mr. Pajot agreed.

[282] Counsel reviewed with Mr. Pajot the manner in which the risk assessment tool

was used and how the risk level was rated as high, moderate or low. He noted

that no site visits were made as part of the assessment and asked Mr. Pajot

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whether it was his choice or Mr. Moody’s, not to do any site visits. Mr. Pajot

replied that it was his choice. Mr. Pajot agreed that he chose six categories of

risk to assess because AIs faced potential risk in those areas. He also agreed

that he then examined the controls that are in place in relation to each category,

and if he concluded that those were insufficient, additional controls were

recommended.

[283] Counsel reviewed the contract signed by the Ministry and the PSHSA for the

services of two consultants for 3 days for a total price of $ 6,000.00. Mr. Pajot

agreed and added that the contract contemplated interviews with Mr. Moody, Mr.

Cachagee and the AIs, but not the meetings the consultants had with Mr. Moody

after the first draft report was issued. Not counting those meetings, the work

took approximately 3 days as per the contract. Mr. Pajot agreed that he wrote

the first draft after a review of all documents and interviews with the two

managers and the AIs were completed. He testified that he consulted with Mr.

Carter extensively before writing the first draft, and confirmed that Mr. Carter’s

opinion at that time was that “the risk was high and an armed officer is needed in

the field and a weapon was needed”.

[284] Counsel put to Mr. Pajot that at the time he wrote the first draft, his opinion also

was that sidearm/pepper spray was a necessary control. Mr. Pajot replied, “My

answer is a qualified yes, because I had strong reservations”. Counsel put to

Mr. Pajot that once he sent the draft to Mr. Moody his assessment was done.

Mr. Pajot replied, “No. I did a draft because of my strong reservations. I wanted

to make sure I was on the right track”. Counsel asked if so, why he sent an

invoice to the Ministry one week after forwarding the first draft, saying that the

risk assessment has been “completed”. Mr. Pajot responded that the work was

completed for billing purposes at that point. Asked to explain, Mr. Pajot testified

that he anticipated that more work would have to be done because of the

reservations he had about the recommendation he had made in the draft, but

any additional work that may be required would be part of the three billable

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days. Asked whether the Ministry was billed for the extra work he did after

forwarding the draft, Mr. Pajot replied, “No. We had a contract. So it was ok”.

[285] Mr. Pajot agreed that the contract itself did not contemplate a draft. When

shown documentation, Mr. Pajot agreed that the Executive Director of the

PSHSA at the time had directed sometime after this project had been completed

that no drafts should be provided in the future. Mr. Pajot testified that he

reported to a director, Mr. Alain Chenard, who reported to the Executive

Director. He testified that he disagreed with the Executive Director’s direction

and discussed with Mr. Chenard that if he felt it was necessary he would provide

drafts because he wanted to ensure that any inaccuracies or errors are

corrected.

[286] Mr. Pajot agreed with union counsel that just like Mr. Moody felt that it was

important to have an unbiased third party do the risk assessment, it was equally

important that the third party make the assessment independently without being

unduly influenced by any one, that all affected parties be made aware of the

process followed, and that the assessment appear to them to have been done

impartially.

[287] Counsel put to Mr. Pajot that when Mr. Moody met with him and Mr. Carter on

April 20, 2012, he gave a copy of the Interim Direction. Mr. Pajot replied that he

received it sometime, but was not sure it was at that meeting. However, he

agreed that he discussed the Interim Direction with the AIs. Asked what the AIs

position was on the Interim Direction, Mr. Pajot replied that there was some

divergence among the AIs.

They were aware of the policy requiring

disengagement, but emphasized two concerns. That there are situations when

it is not possible to disengage and second, that the presence of sidearm and

pepper-spray serves as a deterrent against physical violence.

[288] Union counsel presented to Mr. Pajot the Kindrie Briefing Note. Mr. Pajot

testified that he has not seen it before. Reviewing its content, counsel

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suggested that that was the type of information he would use when assessing

risk of violence. Mr. Pajot agreed. Counsel pointed out that the Briefing Note

was prepared by the Manager of the AIU at the time and had been approved by

several senior managers, and put to Mr. Pajot that if it had been provided to him

before he did the assessment, it could have at least raised some questions for

Mr. Pajot to follow up on. Mr. Pajot agreed. Counsel put to Mr. Pajot that the

Briefing Note set out information on why AIs were provided arms initially, and

that the absence of that information did not allow Mr. Pajot to consider all

relevant information in making the assessment. Mr. Pajot disagreed and

explained that from a review of the Briefing Note he finds very little factual

information about risks AIs faced he already did not have from the interviews

and the documentation review he did.

[289] Counsel put to Mr. Pajot that when he and Mr. Carter met with Mr. Moody on

June 26, 2012, Mr. Moody strongly disagreed with the recommendation to arm

AIs. Mr. Pajot agreed. Counsel put to him that Mr. Moody accused him of not

understanding how to assess risk, and had advised others that the draft report

was a very poor piece of work, and asked Mr. Pajot whether he agreed with Mr.

Moody’s assertions. Mr. Pajot replied that he did not agree it was a very poor

piece of work, but added, “But I won’t say it was perfectly accurate either”.

[290] Employer counsel put to Mr. Pajot that at that meeting Mr. Moody clearly

indicated that he would not accept the assessment unless the recommendation

to arm AIs is removed. Mr. Pajot replied, “I am not sure about that. But he did

dispute it”. Counsel referred to an e-mail Mr. Moody had sent to the MOL

inspector, where he says that the draft was “not acceptable’. Mr. Pajot replied

that Mr. Moody’s emphatic position was that the conclusion that AIs should be

armed was not acceptable, explained why that recommendation was

inappropriate.

[291] Counsel pointed out that in the Final report, the level of risk in relation to

“working with unstable or volatile clients”, which includes “clients who are or may

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be in the midst of criminal activity” had been lowered from “high” in the draft, to

“moderate”. Counsel asked what new information he had received at the

meeting that caused him to do that. Mr. Pajot responded that Mr. Moody did not

provide any additional documents. He explained, “Mr. Moody explained the

disengagement policy and how it is followed. We also talked about the

frequency and likelihood of contact with those kinds of people and the risk

associated with that contact. That led me to conclude that it was not high. It

was moderate. The evidence in my opinion showed that my initial assessment

was inaccurate”. Counsel asked whether it then was the new information Mr.

Moody provided about the disengagement policy and the frequency and

likelihood of contact that caused him to lower the risk level, Mr. Pajot replied

“yes”.

[292] Counsel put to Mr. Pajot that whatever contact AIs have with potentially violent

people is a hazard that exists and the disengagement policy is a control, and

suggested that the existence of a control is irrelevant to determine whether a

risk exists. Mr. Pajot strongly disagreed. He explained that a hazard is

something that can cause harm. Risk is the likelihood of harm resulting and the

degree of severity of the consequences. Controls are put in place to mitigate

the risks. He said that controls are relevant to determine risk because they

modify the level of risk. He added that some controls may even increase the

risk.

[293] Asked what specific new information was provided by Mr. Moody, Mr. Pajot

replied that it was not new information per se. But Mr. Moody fleshed out and

explained how the disengagement policy worked. He recalled asking Mr. Moody

about the frequency of AIs coming into contact with violent people. He said,

“Considering all the controls in place including background checks like CPIC and

CAVERS, I believed and it became clear what the disengagement policy would

do to increase the safety of AIs”. He went on to testify that if AIs disengage,

which includes not going when in doubt, there is less contact. He said, “Mr.

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Moody emphasized that there was a clear direction – if you think there is a risk

do not engage”.

[294] Counsel asked what information Mr. Moody provided about AIs working alone or

in small numbers. Mr. Pajot replied that he already knew, but Mr. Moody

emphasized that if there are any red-flags about a client having a criminal record

or past violent behaviour, AIs are not to engage such client alone. They are to

get co-workers to assist or get police back-up. Union counsel asked what Mr.

Moody learned about AIs working in “high crime areas”. He replied that Mr.

Moody explained and fleshed out the nature of AI work. That led him to

conclude that the likelihood of AIs working in areas where crime is known to

exist “was extremely low. So low it wasn’t even a risk factor for them”. So he

lowered the risk level to “low”. Mr. Pajot agreed that after the meeting with Mr.

Moody, he did not go back and discuss his “new understanding” about the

disengagement policy and its impact on the level of risk with the AIs.

[295] Counsel suggested that the risk assessment contemplated that each risk factor

or category would be assessed for risk individually and then there would be an

overall assessment of risk considering all risk factors. Mr. Pajot agreed.

Counsel pointed out that in the final Report Mr. Pajot had rated five risk factors

as “moderate” and one as “low”, and asked why he stated several times during

testimony that the level of risk AIs faced was “so extremely low”. Mr. Pajot

responded that the assessment of individual risk factors show that the risk factor

exists to some level high, moderate or low. But not that violence will result from

that risk. There must be an assessment of the degree to which the existence of

that risk poses a likelihood of violence occurring. He said that both those

assessments must be looked at together.

[296] Counsel put to Mr. Pajot that he had testified that when Mr. Moody objected to

the phrase “criminal activity”, he changed the phrase to read “criminal and illegal

activity” as a fair compromise. Mr. Pajot testified that he did not discuss with Mr.

Moody about adding the words “and illegal” as a compromise. Counsel put to

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Mr. Pajot that when Mr. Moody made strong objection he removed the

recommendation because he wanted to come to an understanding with Mr.

Moody about what the Report would say. Mr. Pajot replied, “It was more him

convincing me that I was incorrect and should change it.”

[297] Counsel reiterated Mr. Pajot’s earlier evidence that the consultants or the

PSHSA were not compensated for the extra work done, meeting with Mr. Moody

to discuss the draft, reviewing additional documents, and re-drafting the risk

assessment, and put to him that a lot of extra work was done without

compensation, Mr. Pajot agreed and explained that sometime estimates are

made when contracts are signed, but it turns out that more work than anticipated

becomes necessary.

[298] Counsel put to Mr. Pajot that when the AIs were not made aware of the

existence of a draft report on which Mr. Moody made comments and that the

recommendations were radically changed as a result, it may give the

appearance to the AIs that the report may have been unfairly influenced. Mr.

Pajot replied, “Yes. I suppose it can”. Counsel put to Mr. Pajot that the initial

difference of opinion between him and Mr. Carter on the appropriateness of

recommending sidearm and pepper-spray and the change in the

recommendation from the draft to the final report shows that “it was a close call”.

Mr. Pajot replied, “to be honest it depends on who you ask. From the start my

gut feeling was it was not necessary. But Mr. Carter was a strong proponent of

the sidearm and pepper spray at the start.” Counsel put that at the start it was a

close call for Mr. Carter, but not for you, and therefore transparency was even

important, Mr. Pajot agreed.

[299] Counsel asked Mr. Pajot whether in his opinion an employer should do a risk

assessment before deciding to remove an existing safety precaution, Mr. Pajot

replied that the answer is not “black and white” and depends on many factors.

He said, however, that it is wise to do risk assessments both before and after

the removal.

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[300] The employer called no evidence in reply. The parties jointly requested that in

addition to the closing submissions that were to follow, I should consider the

submissions the parties made in relation to the employer’s non-suit motion

which was dismissed by decision dated May 3, 2016. I have done that in the

disposition of these grievances.

UNION SUBMISSIONS

[301] Union counsel submitted that the issue for the Board to decide is not whether

the employer had put in place “adequate” safety controls, but whether it

complied with its obligations under the article 9.1 of the collective agreement

and s. 25(2)(h) of OHSA, which is to provide “every” reasonable precaution.

[302] Counsel submitted that much of the evidence by the employer to support its

position that it met its post-dates the filing of the instant grievances. The

employer led evidence that in 2014 it introduced a revamped tool for AIs to

assess risk of workplace violence; that in 2013 new training focussing on de-

escalation and disengaging was provided; that between 2012 and 2014 policy

and procedure were revised and directives were issued to address changed

working conditions resulting from the removal of sidearms and pepper-spray;

and a workplace violence risk assessment was done following an order from

MOL. Counsel agreed that all of these were reasonable precautions to make AI

work safe. However, these reasonable precautions, they should have been

taken before the removal of sidearms and pepper spray, and not after. The

failure to do that resulted in the AIs working for a significant period without the

protective equipment, and also without the reasonable precautions later deemed

by the employer to be reasonable and needed. In that period the employer was

not compliant with its legal obligation.

[303] Union counsel reviewed in detail four “reasonable precautions” and argued why

each of those ought to have been taken before removing sidearms and pepper-

spray. The failure to do so exposed AIs to unreasonable risk. Counsel pointed

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out that at the time he issued the direction Mr. Moody did not have the benefit of

a workplace violence risk assessment; he had not reviewed the adequacy of the

training AIs had to be able to work in the absence of sidearm and pepper spray;

he had not revised the policy and procedure in response to the removal

decision; and most importantly he had not sought input from AIs about the safety

risks they were concerned about when working without sidearms and pepper

spray. Yet Mr. Moody testified that he was satisfied that all of the other controls

in place were adequate, to protect AIs. Counsel argued that Mr. Moody was

downgrading the legislative obligation to “take every reasonable precaution”, to

a lower standard of “adequate”. Counsel argued that the evidence is that in the

absence of sidearms and pepper spray, the existing controls did not even meet

the “adequate” standard.

[304] Union counsel submitted that the crux of this arbitration is about the Workplace

Violence Risk Assessment done by the consultants retained by the employer.

He reviewed in detail the evidence on the issue, and submitted that the whole

process that led to the final report, which made recommendations and reached

conclusions completely opposite to those in the draft, was “absurd” and

undermined the reliability of the report as a whole. It was biased, or at least

created an appearance of bias. Counsel reviewed the evidence that the

consultation contract had no provision for submitting a draft for Mr. Moody`s

comments, or that the consultants would meet with Mr. Moody to get his input.

He submitted that this was “extra work” the consultants did without

compensation. Union counsel argued that the whole process becomes very

suspect, particularly when seen together with the evidence that the existence of

the draft report was kept “secret”. It was not disclosed to the union, the AIs, the

MOL, or the Joint Health and Safety Committee. The existence of the draft

report was disclosed to the union and the AIs only well into the instant arbitration

hearing. He compared this conduct to be similar to the GSB producing a draft

decision following a proceeding, and submitting it to one of the parties for

comment and input, without the knowledge of the other party.

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[305] Union counsel described the process followed by the employer in deciding to

remove sidearms and pepper spray as “the Moody Show”. The decision was

made by Mr. Moody alone, with no input from or consultation with any employer

health and safety or human resources specialists. More importantly, no input

was sought from the union or the AIs. He pointed out that Mr. Moody had never

been an AI. However, he had testified that he was familiar with the work AIs did

and the risks they faced. Counsel argued that the people who actually do the AI

work and face the risk, know best the risk that exists. In addition, Mr. Moody

had failed to provide relevant documents such as the Kindrie Briefing Note to the

consultants. He submitted that there is no evidence that the consultants were

provided any new information of any significance which could reasonably have

caused them to change their mind. The complete turnaround was driven by

undue influence and pressure by Mr. Moody.

[306] Counsel argued that the decision to remove sidearm and pepper spray was not

made on the basis of an assessment of risks associated with AI work. The

evidence indicates that it was based on Mr. Moody’s opinion that CO

appointment for AIs was not legally justified since they do not enforce Fish &

Wildlife legislation.

The decision was driven by legal and technical

rationalization. This is in stark contrast to the evidence that AIs had been armed

for officer safety reasons set out in the Kindrie Briefing Note.

[307] Counsel sought the following remedies for the group grievance:

- A declaration that the employer violated article 9 of the collective

agreement and s. 25(2)(h) of OHSA by failing to provide AIs with new

policies, procedures, and directions addressing the ramifications of

the removal of their CO status and their sidearms and pepper spray,

prior to implementing the decision to do so.

- An order that the employer pay to the union nominal damages of

$ 5,000.00 for the breach of the collective agreement.

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- Declare that the employer violated article 9 and s. 25(2)(h) by failing

to provide AIs with training on de-escalation and disengagement prior

to the removal of their CO status and sidearms and pepper spray.

- A similar declaration resulting from the employer’s failure to do a

Workplace Violence Risk Assessment prior to the removal of the AI’s

CO status and sidearms and pepper spray.

- A declaration that the employer violated s. 25(2)(m) of OHSA by

failing or refusing to provide a copy of the Kindrie Briefing Note when

requested by AIs.

- A declaration that the employer violated, and continues to violate,

Article 9 of the collective agreement, s. 25(2)(h) and s. 32 of OHSA by

failing to do a proper Workplace Violence Risk Assessment to date

because the one done was biased and not reliable.

- Order the employer to pay to the union $ 15,000.00 as nominal

damages for continuous breach of the collective agreement and the

Act for over 6 years.

- Order the employer to contract an outside consultant agreed to by the

union to do a Workplace Violence Risk Assessment for the AIU.

- Order that this Workplace Violence Risk Assessment be conducted in

a manner open and transparent to the union, and specifically that

communications with one party be done with the knowledge of the

other, and the content of all communications be disclosed to the other

party.

- Order that the Risk Assessment be completed no later than 90 days

from the date of the Board’s decision.

- Order that, if the employer is of the view that AIs are not legally

permitted to carry sidearms or pepper spray when enforcing the Food

Safety and Quality Act, the employer so advise the union and the

Board, and that upon receipt of such advise the Board would remain

seized with jurisdiction to determine that issue.

- That the Board remain seized with respect to all remedies ordered.

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EMPLOYER SUBMISSIONS

[308] Employer counsel reminded the Board that prior to the commencement of this

proceeding the employer gave notice that it would be making a motion to

dismiss Mr. Martin’s individual grievance alleging that the employer violated

article 2 of the collective agreement by denying to him the same protective

equipment provided to all other AIs. On the first day scheduled for arbitration,

the Employer was prepared to present the motion that the allegation was a “me

too” claim, and was not arbitrable. Faced with the motion, union counsel

conceded that for Mr. Martin’s grievance to succeed, the union must establish

that by the denial of protective equipment provided to other Als, the employer

violated Mr. Martin’s rights under article 9.1 of the collective agreement and s.

25(2)(h) of OHSA. As a result the employer withdrew the motion.

[309] Employer counsel submitted that the submission by Mr. Biliski in closing that the

core issue in this case is whether the employer failed to take every reasonable

precaution for the health and safety of AIs as required by article 9.1 and

s.25(2)(h) is consistent with the opening statement made by Mr. Michael

Hancock, then union counsel. Counsel asserted that my notes will confirm that

no provision of OHSA other than s. 25(2)(h) was even mentioned during the

union’s opening statement, let alone an allegation of violation. He reminded that

Mr. Hancock also acknowledged that while Mr. Martin will participate in the

group grievance, if the Board concludes that the employer did not contravene

article 9.1 or s. 25(2)(h) of the Act by removing sidearms and pepper spray from

all AIs, and dismisses the group grievance, that would result in the dismissal of

Mr. Martin’s individual grievance also.

[310] Employer counsel submitted that the evidence is clear that an armed AI is

allowed to use the sidearm only when faced with a risk of serious bodily harm or

death. Therefore, the critical question for the Board to answer is whether the

AIs were subjected to a real and unreasonable risk that was not properly

addressed or mitigated in the absence of sidearm and pepper spray. If the

answer is in the negative both grievances must fail. To answer that question the

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Board must determine based on the evidence, whether AIs would be unable to

safely disengage if they are not equipped with sidearm and pepper spray. He

stated that these grievances are not about the CO designation per se. It is

about the safety risks in the absence of sidearm and pepper spray.

[311] Employer counsel asserted that my notes would confirm that at the end of his

opening statement, Mr. Hancock set out the union’s remedial request as follows:

(1) That the Board declare that article 9.1 of the collective agreement and s.

25(2)(h) of OHSA were contravened.

(2) That the Board declare that the employer contravened the same provisions

with respect to Mr. Martin by not providing him the same personal protection

equipment carried by all other AIs.

(3) That the Board Order that the employer issue to all AIs appropriate safety

precautions including sidearms.

[312] Employer counsel submitted that the union did not at any time indicate that it

would be asserting that any other provision of OHSA was violated by the

employer by failing to provide any reports, or by failing to conduct risk

assessments. Nor was it asserted that the union would be claiming any award

of damages. Counsel submitted that those allegations and the claim for

damages were raised for the first time during the union’s closing submissions by

Mr. Biliski, who had replaced Mr. Hancock.

[313] Employer counsel submitted that if the Board concludes that the removal of

sidearms and pepper spray before the employer had taken the precautions it

took later – the de-escalation and disengagement training, the revision of policy

and procedure to reflect absence of sidearms and pepper spray, the risk

assessment tool and the Workplace Violence Risk Assessment for the AIU –

exposed them to unreasonable risk, the union would be entitled to a declaration

that article 9.1 and s. 25(2)(h) were violated until the date those precautions

were implemented. Since the union had taken the position that those were

reasonable precautions for the safety of AIs, the violations could not have

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continued once those were implemented. At that point the employer must be

found to have met its collective agreement and statutory obligation, unless the

Board decides that some additional precautions were required to meet the legal

obligation, such as sidearm and pepper spray.

[314] Counsel submitted that when he took over as AIU manager Mr. Moody did a

thorough search and located relevant documents including the Kindrie Briefing

Note. Counsel submitted that Mr. Kindrie’s effort to arm AIs was driven by the

Haines Report. He pointed out that the Haines Report was not about officer

safety. It was about food safety. The comment by Justice Haines was in a foot-

note, and not the body of the report. The foot-note was appended to Justice

Haines’ criticism about officers not having the power of arrest under the FSQA.

There is no analysis at all in the report of the risks AIs face or what safety

controls were in place. In any event, even the foot-note did not recommend that

AIs be armed. All it did was query whether the employer should reconsider its

decision to disarm AIs.

[315] Counsel agreed that the Kindrie Briefing note was focussed on officer safety.

However, it had very little analysis of the risks AIs face which would require

them to be armed. The little analysis amounted to a reasoning that since AIs

encounter weapons, that by itself means that they are at risk. There was no

consideration of the likelihood of those weapons being used against the AIs, as

would necessitate AIs to defend themselves with fire-arms.

[316] Counsel submitted also that the comparator Mr. Kindrie repeatedly used to

support his position was the police. He submitted that this was a fundamental

error because the work of police officers and AIs is very different. Police officers

have a general duty to protect the public from violent people and have to remain

engaged with violent people and arrest them. They cannot leave because risk

exists. In contrast, AIs have no power of arrest and have been repeatedly

directed that they should disengage and leave if they have any concern about

their safety. If they believe there is risk, they do not have to go there. The

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principle always has been, and all union witnesses agreed, that officer safety

comes first, and that it does not matter if evidence is lost. Mr. Moody’s evidence

is uncontradicted that no AI had ever been disciplined for leaving or not

proceeding to a situation where he/she feels is not safe.

[317] Counsel submitted that while Mr. Kindrie acknowledged in his Briefing Note that

other than COs no other group of officers in Ontario regulatory agencies are

armed, he does not provide why these grievors face any greater safety risk. He

suggested that a review of the two cases where the OLRB denied complaints by

Ontario Transport Enforcement Officers that the employer had violated s.

25(2)(h) of OHSA by not providing them with sidearms, would reveal that the

work of those officers involved greater safety risks than AIs do.

[318] Reviewing the Ackerson Report which was issued some 5 years after AIs were

armed, employer counsel submitted that it was Mr. Ackerson who first

questioned the appropriateness of AIs being designated as COs, and suggested

that another legal way be found if AIs have to be armed. This evidence dispels

the union’s position that Mr. Moody was on a personal mission of his own to

disarm AIs when he took over as manager of the AIU. The evidence is that Mr.

Moody was tasked by the Director to follow up on the concern raised in the

Ackerson Report about the appropriateness of designating AIs as COs.

[319] Employer counsel also referred to the 10 year Review Report authored by Mr.

Moody in May 2011. In that Report, Mr. Moody set out 6 possible ways of

addressing the concern about the CO designation for AIs. He reviewed the

“Pros” and “Cons” of each option. One, option D, was to retain “the status quo

but revoke CO appointments and return restricted and prohibited weapons to

MNRF”.

Counsel pointed out that of the 6 possible options, the one

recommended by Mr. Moody was option F, not option D. Option F was to

“Return governance of the AIU to OMAFRA and dissolve the service delivery

agreement”. Counsel submitted that senior management directed that option D

be implemented although Mr. Moody had recommended option F.

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[320] Counsel further reviewed the evidence about efforts Mr. Moody made to find a

legal basis to keep AIs armed once their CO designation is removed. He

discussed possible options with the Chief Firearms Officer of Ontario; requested

the OPP to designate AIs as Special Constables. He researched how other

provinces treated their officers similar to AIs; and discussed the issue with the

MNRF Legal Services Branch. This shows that Mr. Moody did not take this

issue lightly.

[321] With regard to Mr. Martin’s grievance, counsel pointed out that the only evidence

the union offered to establish that he was at risk working in the field with no

sidearm or pepper spray was the fact that Mr. Martin repeatedly complained to

Mr. Moody that he was at risk with no sidearm. This was despite his police

background and Mr. Moody’s direction to Mr. Chchagee to assign only low risk

work to him. Counsel submitted that very little weight could be attached to Mr.

Martin’s assertion of risk, particularly when that is contrasted with evidence on

how Mr. Martin conducted himself in the field. Counsel reviewed Mr. Martin’s

evidence that establishes, in his view, that Mr. Martin did not have any safety

concerns in any of the incidents he testified about. As examples, counsel

pointed out that in the Massey Incident the employer had arranged for a local

CO, who would have been armed, to accompany Mr. Martin. However, Mr.

Martin decided to proceed alone to the suspected illegal slaughter operation

without waiting for the CO. Mr. Martin even exited his vehicle and spoke with

the owner, went with him to the residence and interviewed him seated at the

kitchen table. In testimony Mr. Martin stated that he noticed a long gun propped

up behind the door and butcher knives on the kitchen counter. When asked why

he did not wait for the CO, he replied that the CO was arranged not because he

was armed, but because the CO would have local knowledge. When asked why

he did not leave when he saw the gun and the knives, Mr. Martin replied that

there was no need to leave, because he was not surprised to see knives in the

kitchen or a gun in a farm residence.

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[322] In the New Liskeard Incident Mr. Martin and two other armed AIs were

investigating a suspected illegal slaughter operation in a rural farm. It was

decided that one would exit the vehicle and do surveillance hiding in the bushes

across from the farm. Asked why Mr. Martin who was the only unarmed AI got

out of the car and hid in the bushes, Mr. Martin gave four reasons. First, he was

the new AI. Second, he had the binoculars. Third, he was wearing warmer

clothes than the others. Fourth, there were dogs in the farm, and he was more

experienced with dogs than the other two AIs. When asked what the concern

was with the dogs, Mr. Martin testified that he was concerned that if the dogs

spot him and start barking, the farmer would think there were some wild animals

outside and take pot shots in that direction. Counsel submitted that none of

these rationalizations are credible. For example, Mr. Martin was unable to

explain why he could not have simply given the binoculars to one of the armed

AIs. There was also no evidence that Mr. Martin expressed any concern or

reluctance to undertake the more risky work or that the others wanted him to do

the risky work because he was the most junior. Counsel asked the Board to find

that Mr. Martin acted as he did because he had no concern of any risk to his

safety because he was unarmed.

[323] Referring to the Motor Cycle Club incident, employer counsel pointed out that

Mr. Martin came into contact with the individual connected to the motor cycle

club three times during his visit. Once the person sought him out. Then the

person came in while Mr. Martin was interviewing an employee of that person.

Finally, Mr. Martin found out that a long term employee of the person had

recently died, and Mr. Martin sought out the person to offer his condolences.

Counsel submitted that if Mr. Martin had any concern whatsoever about dealing

with the person, he would not have on his own seek him out to express his

sympathy because an employee had died.

[324] Counsel pointed out that Mr. Moody had testified that during the conference call

with AIs on 30^thJune, 2012, he closely followed the speaking notes he had

prepared, which were in evidence. Counsel referred to the note “Also effective

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February 10, 2012, your badge, CO ID, sidearm and OC spray are to be

returned …” Counsel then referred to the following portions of the speaking

notes:

- As for the employees, the OHSA applies.

If you are not

comfortable entering a particular work location or dealing with specific

subjects for demonstrable reasons, then do not enter or immediately

disengage and discuss your options with our supervisor. This applies

whether armed or not.

- I am requesting that the RCU address any known or suspected

safety issues on each occurrence they send to us for investigation.

- Could a business contact turn dangerous? – of course; just as it

could for any client contact in the context of regulatory compliance (or

front counter service staff for that matter). You are expected to rely

upon your training and experience to continually evaluate your

circumstances while on duty.

- Ask for police assistance if required – as you know legislation like

subsection 15(8) FSQA compels them to assist.

Employer counsel also reviewed the speaking notes that corroborate that Mr.

Moody told the AIs that existing MNRF Policies and Procedures will be edited or

new ones created specifically for the AIU as soon as possible, and that in the

interim AIs should follow existing policies and procedures to the extent they

reasonably apply to them, and if they are not sure they should ask their

supervisor. Counsel argued that the foregoing evidence establishes that during

the conference call when the removal of the CO status and sidearm and pepper

spray was announced, precautions were taken. AIs were directed that, if

uncomfortable, they should not proceed with the work. They should disengage

or seek police assistance.

[325] Counsel disagreed with the union’s argument that because the amendments to

policies and procedures, the rolling out of the risk assessment tool, and the

completion of the Workplace Violence Risk Assessment did not happen till much

later, the employer was in breach of article 9.1 and s. 25(2)(h) in the interim

period. He reiterated that the employer’s obligation is to take every “reasonable”

precaution for officer safety, not to take every “possible” precaution. He

submitted that reasonable precautions were in place sufficient for AI safety,

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when considered in light of the safety risks AIs faced. Counsel argued that

refusal to provide or removal of a specific safety precaution by itself cannot be a

violation. The Board must decide whether reasonable precautions had been

taken for officer safety in the absence of that specific safety precaution not

provided or removed. Counsel argued that the directions Mr. Moody provided

during the conference call on January 30, 2012, when considered in light of the

evidence of what risks the AIs faced, should lead the Board to decide that no

violation of the Collective Agreement or the Act is established.

[326] Counsel also disagreed with the union’s assertion that from February 10, 2012

until February 15, 2012, (when Mr. Moody provided a written direction) the AIs

had no safety precautions as required by law. He reiterated that on January 30,

2012, during the conference call held with all AIs Mr. Moody had made a

number of directions on how AIs should proceed in the absence of sidearms and

pepper spray. On February 15^th, Mr. Moody issued those directions in writing in

response to a request from Mr. Ridley. Counsel submitted that in any event

there is no evidence that any AI did any field visit until February 15, 2012, when

written directions were provided, or until March 23, 2012 when a more formal

direction was provided by Mr. Moody, following the work refusals and the MOL

order. The union did not present any incidents prior to then where it claims AIs

were exposed to risk. All of the incidents relied on by the union occurred after

the formal directions were in place. The written directions were largely a

reiteration of the verbal directions provided during the conference call except

that in it Mr. Moody also redrafted five policies that relate to officer health and

safety and directed how those policies should be applied.

[327] Evidence was presented only in relation to the Kemptville work refusal on

February 21, 2012. Mr. Ridley and another AI did a CPIC check and one of the

individuals involved had a flag for domestic violence. The AIs found that there

was no place to park their vehicles out of sight and felt unsafe. Counsel pointed

out that by then AIs had been provided verbal directions, and just two weeks

before the work refusal written directions had been given to the effect “if you do

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not feel safe don’t go or leave if already there”. Instead of following those

directions Mr. Ridley “concocted” a work refusal under OHSA. Counsel pointed

out that the right to refuse work under s. 43(3) of OHSA is only where the worker

has reason to believe that the work is “likely to endanger” the worker or another

worker. Since the AIs had in fact been directed to leave in these circumstances

all they had to do was simply drive off and return to the office. Instead, they

concocted a formal OHSA work refusal to support their case for sidearms, and it

was found by the MOL inspector to be not substantiated.

[328] Employer counsel referred to Mr. Ridley’s submission to Mr. Moody dated March

8, 2012, on how to do the Workplace Violence Risk Assessment ordered by the

MOL, wherein he wanted the AIs as well as the union to be involved directly.

Counsel submitted that the union had not pointed to any law or term of the MOL

order itself that obliged the employer to do so. The employer arranged for the

consultants to privately interview and have input from each AI, and there was no

obligation to do anything more.

[329] Counsel submitted that following the two work refusals and the MOL order, Mr.

Moody issued a more formal interim direction which reiterated the previously

issued directions, and also included certain additional directions that AIs were

no longer allowed to enter property to conduct an exigent circumstance search

unless an operational plan had been completed and that AIs should disengage

and leave if they feel unsafe due to the number of people present on the

property or due to the demeanor of those present. It was also emphasized that

if AIs encounter someone using weapons such as knives at a slaughter

operation, they should direct that the weapons be dropped to the ground. If the

person(s) do not comply the AI should disengage and leave.

Incidents after the 3 directions but before other precautions were put in place

[330] Employer counsel then turned to several incidents, which he said illustrate that

the risks AIs testified about were not real, but mere theoretical possibilities.

Counsel pointed out that AIs Campbell and Hartnick, despite the repeated

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directions from management, sought permission from management to do an

exigent circumstance search of the Caledon Farm when they observed

someone who they believed was driving away from the farm with newly

slaughtered meat. Permission was denied since no operational plan had been

done as required by the directions issued. They returned to the office, did an

operational plan which called for police presence. At the briefing they were

reminded that if they feel unsafe at any time, they should “shut it down”. On

arrival at the farm the owner was met by the police and brought to the AI in

charge. The search revealed the presence of some firearms and a cross-bow.

Counsel submitted this is a clear illustration of the AIs safety being properly

addressed. They were not at any risk at any time. The mere presence of

weapons in the farm presented no risk of injury to the AIs or anyone else.

[331] Yet, Mr. Hartnick had testified that he was at risk because when the police

arrived someone could have hidden inside the building and later come out

rushing with a gun. He also testified that he could also have been accidentally

shot if a police officer mishandled a gun. Counsel submitted that this evidence

is nonsensical. There is no evidence that offenders investigated by AIs hide in

waiting until AIs come inside, and then attack. The overwhelming evidence is

that all they want is for the AIs to not come or to leave. He submitted that the

alleged risk of being accidentally shot by police who are well trained on handling

firearms is even more absurd. He asked the Board to consider how the AI being

armed would make any difference if that absurd scenario somehow played out.

Counsel submitted that Mr. Campbell’s testimony that he was concerned that a

number of people could have laid in hiding and launched a mass attack was

equally fanciful. There is not even a remote possibility that this would ever

happen. Counsel also pointed out that this incident occurred in May 2012 and

by this time the AIs had been directed three times to the effect, “if you feel

unsafe at any time disengage”. The fact that neither Mr. Hartnick and Mr.

Campbell saw a need to leave is testimony that they in fact had no concern for

their safety at all. Similarly the direction was that no exigent circumstance

searches are to be done without an operational plan. Yet the two AIs were

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prepared to enter the farm and search it on the spot with no police and no

operational plan, precautions required by the employer to support officer safety.

[332] Employer counsel submitted that union counsel’s equating the consultants

providing draft of the risk assessment to the employer and meeting with Mr.

Moody, without giving the same opportunity to the AIs and their union, with the

GSB providing a draft decision for comment and input by one party, but not the

other, is wholly inappropriate. The GSB is a quasi-judicial body created by

legislation with authority to make binding decisions in disputes between two

litigating parties. In contrast, the employer who has a legal obligation to take

safety precautions, retained and paid a consultant to obtain a risk assessment

which would assist it to comply with that legal obligation. The two situations are

not in any manner analogous.

[333] Counsel pointed out that the MOL inspector did a field visit and met with the AIs

following the release of the Risk Assessment. The AIs commented on the report

and expressed their concerns. The inspector then met with the authors of the

Risk Assessment. In his field visit report, the inspector wrote that, “During

discussions it was apparent that the only resolution that would be acceptable to

the investigations would be the return of their firearms. The investigators’

position is that the sidearms previously issued, and then withdrawn, are

essential to protect their health and safety”. Then the inspector wrote:

This inspector met with the PSHSA and discussed the comments to the

risk assessment provided by the Agricultural Investigators.

The PSHSA response was that none of the comments made materially

affect the conclusions reached in the risk assessment.

The risk assessment does not support the need for Agricultural

Investigators to carry side-arms.

In view of the above no orders have been issued no further action is

required by the MOL.

[334] Counsel next reviewed the evidence relating to the Video Surveillance incident.

Counsel pointed out that this was one of the incidents the union put forward to

establish that AIs need to be armed to be able to defend against workplace

violence. Counsel reviewed the evidence and submitted that it does not indicate

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that the AI involved, Mr. Campbell, was at any risk when conducting surveillance

on the suspected Pigeon slaughter operation. When asked in cross-examination

what risk he faced, Mr. Campbell’s response was that during surveillance he

recorded licence plates of vehicles entering and exiting the property, that a CPIC

check conducted later disclosed that an owner of one of the vehicles had been

flagged for potential violence, and that this incident was put forward to the kind of

people AIs have to deal with. Counsel submitted that this incident does not

establish any risk to Mr. Campbell that was not properly addressed by the

directions he had refused.

[335] The CPIC check incident involved Mr. Ridley and Mr. Hartnick. Counsel

reviewed the evidence and argued that the only risk disclosed is the fact that the

AIs did CPIC checks on licence plates of vehicles leaving the property and one

had a positive “hit”. There was no evidence that either AI even had personal

contact with that individual.

[336] Employer counsel submitted that if there was any risk associated with the

Georgina Farms incident it was not because the directions were inadequate, but

because Mr. Campbell and Mr. Todd chose to do an “end-run” around those

directions. The evidence was that based on information received the AIs

discussed with the supervisor and devised a plan to follow a customer who was

suspected to have purchased illegally slaughtered meat. However, despite the

three directions, instead of following the plan, the AIs decided to visit the

suspect operation and see whether illegal slaughter was going on, by

“concocting a statutory justification” to do so. They entered the barn and

observed the slaughtered animal. The testimony was that the AIs obtained a

cautioned statement from the owner, who was getting increasingly agitated.

When the AIs continued their search the owner blocked them to prevent them

from going further in to the barn, got hold of Mr. Campbell’s arm and led him out

of the barn. The AIs then got in the vehicle and drove off. Counsel argued that

there was no safety risk to the AIs during this incident which required them to be

armed with sidearm and pepper spray. If the AIs had simply left as soon as they

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realized that the owner was getting agitated, there would have been no risk at

all. Instead, they continued to engage contrary to the directions of management

and now claim they were at risk. This incident, submitted counsel, in any event

illustrates that while people may get agitated and upset when AIs intrude into

their business affairs, their goal is to get the AIs to leave, not to assault or injure

them.

[337] Employer counsel agreed that the issuance of the revised policies and roll out of

the risk assessment tool represented enhancement of the existing safety

precautions. The revised policies amended the existing enforcement branch

policies to specifically address the working conditions of the AIU and provided

some discipline to the procedures.

However, for the most part these

enhancements were nothing more than reiteration and emphasis of the

directions Mr. Moody had provided “on day one” when the removal of sidearms

was announced. The only new policy was the mandatory requirement to use the

risk assessment tool. Counsel submitted that the evidence does not support a

finding that assigning field work to unarmed AIs before the issuance of the new

policies and the risk assessment tool was a violation of either the collective

agreement or OHSA. The evidence shows that in the incidents relied on by the

union there was “zero risk”, or at the most, if there was any risk they were

addressed by the directions that AIs should not proceed or should disengage

and leave if they had any concern about their safety.

[338] Employer counsel took the position that the union’s remedial request was

inappropriate in several aspects and should be denied. In respect of both the

group grievance and Mr. Martin’s grievance the union seeks a declarations that

article 32.0.3(4) of the collective agreement and s. 25(2)(m) of OHSA were

contravened. Counsel submitted that those allegations were made for the first

time during union counsel Mr. Biliski’s closing submissions. He submitted that

there was no reference whatsoever in the grievance forms or in the union’s

opening statement, to any violation other than of article 9.1 and s. 25(2)(h).

Employer counsel acknowledged that the opening statement was delivered by a

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different union counsel, who was later replaced by Mr. Biliski. He submitted that

this nevertheless is an improper expansion of the grievances the employer was

presented with and highly prejudicial to the employer. Counsel requested that

the Board dismiss those claims on that basis.

[339] Employer counsel also argued that the claim for damages made as remedial

redress for each of the grievances should be denied. He argued that during the

opening statement union counsel laid out the union`s remedial request in detail.

This did not include any claim for damages in either grievance. Nor did the

grievance forms include a claim for damages. Counsel argued that again it is

highly prejudicial to the employer to make claims for damages after the evidence

has been closed. It deprived employer counsel the opportunity to cross-

examine the grievors with respect to their claim for damages.

[340] Employer co-counsel, Mr. Thomas Ayers reviewed the safety precautions that

were in place at the time of the various incidents the union put forward to

support the grievances, including the directions Mr. Moody had given verbally

and in writing. Counsel also referred to the evidence that the AIs had soft body

armour, baton, self-defence training using hands and feet, the OMAFRA initial

threat assessment, access to PCU dispatch, radio with panic button in vehicle

and the Fleetnet communication system linked to the police. Counsel pointed

out that during some of the incidents the AI had no access to the radio only

because he left it in the vehicle or had decided not to use the radio. However,

there was no evidence that any AI ever had difficulty communicating with each

other or with management or reaching PCU dispatch.

[341] Counsel highlighted evidence related to each incident in detail, which he

submitted indicates that the AIs did not, contrary to their assertions, feel unsafe

during the incidents in question. I do not set out that detail here since they have

been noted above.

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[342] In summary, counsel reiterated Mr. McMahon’s submission that the core

precautions reasonably necessary for safety of AIs were in place from the time

their sidearms were removed. He submitted that the AIs had been clearly

directed to the effect, “If you are not comfortable going or dealing with someone

don’t go. If you are already there, leave and get police assistance”. In addition

they had a number of other tools.

UNION REPLY SUBMISSIONS

[343] In reply, union counsel disagreed that the legal question for the Board to decide

is whether in the absence of sidearms and pepper spray, the AIs’ rights under

article 9.1 and s. 25(2)(h) were violated. He submitted that the Board must

apply a two part test. First, determine whether an existing safety precaution was

removed, and second whether that removal was done reasonably, that is, “was it

done legally after considering all facts and according to reason.”

[344] Counsel submitted that the decision in Re Anger, 2004-1321 (Watters) relied

upon by the employer is of limited assistance in this case, because it was not

about removal of an existing precaution. There the union was seeking a safety

precaution. Counsel agreed with the Board’s finding in that case that the test in

applying the provisions was an objective one, not what the employer or the

employees believed. Counsel submitted that although the union led evidence

about a number of incidents, it is not necessary to establish that in each incident

the AIs faced unreasonable risk. The Board must consider all of the evidence

and make a decision whether given the nature of the work, sidearms and pepper

spray are reasonable precautions which must be provided for the employer to be

in compliance with the collective agreement and the Act.

[345] With regard to the Martin individual grievance, counsel acknowledged that the

union had conceded that it must establish a violation of a substantive right Mr.

Martin had under the collective agreement or statute, other than the

management rights clause. Counsel submitted that the union has done that by

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adducing evidence that Mr. Martin was exposed to unreasonable risk since his

hire, contrary to article 9.1 and s. 25(2)(h).

[346] Counsel disagreed that the union’s submissions that s. 32 of the OHSA had

been violated constitutes an improper expansion of the grievances. He

submitted that there is no expansion of the grievances because the group

grievance itself raises the employer’s obligation under Part iii s. 32.0.3(1) of

OHSA. It also refers s. 25(2)(m) in relation to the request to be provided a copy

of the business case supporting the arming of AIs. Even though the allegations

may not have been addressed by union counsel in his opening statement, the

employer was aware from the grievance itself that the allegations were always a

part of the grievance. He submitted that in any event, the employer’s failure to

reassess the risk of workplace violence before removal of an existing safety

precaution was unreasonable and also contravened article 9 and s. 25(2)(h).

[347] Counsel reiterated the union’s position that the precautions the employer took

subsequently, including the Workplace Violence Risk Assessment, were

reasonable precautions. However, those precautions should have been put in

place before the removal of sidearms and pepper spray. By requiring AIs to

work without sidearms and pepper spray and without those reasonable

precautions, the employer was in contravention of its legal obligation in the

period until those were put into place. He submitted that the employer, in any

event was in violation throughout the whole period, and continues to be in

violation as far as the Risk Assessment was concerned, because the risk

assessment done was tainted by undue influence by Mr. Moody and other

deficiencies, and did not meet the requirements of OHSA.

[348] Counsel argued that evidence that in many instances the AIs proceeded to

engage and continue when they could have refused to proceed and left, does

not contradict their testimony that they felt unsafe at the time. He argued that

refusal of unsafe work is a legal right, not a legal obligation. He stated that Mr.

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Martin, for example, continuously raised concern for his safety, although he

continued to work. That should not be held against him.

[349] He also argued that the presence of a CO who is armed, does not provide

protection for an AI. He submitted that COs are appointed under the Fish and

Wildlife Act and are armed for the purposes of enforcing that Act. When

accompanying an AI, a CO is not enforcing that Act and would not be authorized

to use his sidearm to protect an AI.

[350] Counsel argued that the precautions that existed at the time sidearm and pepper

spray were removed were “nowhere near” the reasonable precautions required

by the collective agreement and OHSA. The removal was not done in a fair or

reasonable manner after a thorough review of the safety risks unarmed AIs are

likely to face. There is no compelling evidence that there was any urgency to

implement the removal immediately.

[351] Counsel argued that the distinction Mr. Moody drew between risk and weapons

was confusing and nonsense. The existence of tools that can be used as

weapons against AIs puts the AI’s safety at risk. The fact that in many of the

incidents AIs were able to calm down agitated people by skillful use of

communication skills does not mean that no risk existed. Mr. Moody had

testified that if Mr. Ridley feared for his safety during the Ontario Land Owners

Association incident, he could have used the radio in the vehicle to call for help.

Mr. Ridley had testified that he did not use the radio because he felt that it would

escalate the situation. Mr. Ridley’s judgement should prevail over Mr. Moody’s,

who has never worked as an AI.

[352] Counsel submitted that Mr. Moody and the employer point to isolated incidents

where people were agitated and upset, but no AI was harmed, to argue that

agitation does not result in bodily harm to AIs. Counsel submitted that the Board

should consider the evidence as a whole, not isolated incidents. It should

consider the existence of weapons or potential weapons, the type of violent

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people AIs have to deal with, where the work is performed, and ask whether in

all of the circumstances sidearms and pepper spray are a reasonable precaution

required, and whether the employer should have made that assessment before

removing those precautions.

[353] Counsel reiterated his position that the removal was a “Moody show” in that the

evidence shows that Mr. Moody made the decision with very little consultation.

Although Mr. Moody gave hearsay testimony about discussions he had with

MNRF legal services, the OPP and OMAFRA, no documentary evidence was

presented to substantiate that. He submitted that the evidence is clear that the

decision to arm AIs in 2006 was made following much wider consultation than

Mr. Moody’s decision to remove sidearms.

[354] Counsel argued that while the employer reiterated that AIs were provided with

multiple directions at the time of removal which addressed risks unarmed AIs

would face, it is very telling that the employer did not mention what it did not do.

Prior to the announcement of the removal there was a request by AIs, for a risk

assessment to be done, and for the involvement of the Joint Health & Safety

Committee in the decision making process. The employer did not do either.

Instead, Mr. Moody was comfortable making the decision from his desk, based

on his personal knowledge of the risks AIs face and the employer’s legal

obligations.

[355] Union counsel concluded his reply submissions to the effect that the damages

sought are not for any injury or pain and suffering, but for the denial of

substantive rights under the collective agreement and OHSA.

DECISION

[356] Including the motion for non-suit which was dismissed by decision dated May 3,

2016, hearings were held on 41 days, spanning the period September 6, 2013 to

December 21, 2018. A large volume of documentary evidence was filed. The

union called six witnesses and the employer two, each of whom testified and

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was cross-examined in great detail. I have reviewed all of the evidence, and the

submissions of counsel, including the submissions made with respect to the

motion for non-suit. I did not find a substantial part of the evidence of assistance

to the issue that I am required to decide. In this decision I have attempted to set

out only the evidence that is relevant to the issue to be decided, which was itself

in dispute.

THE SCOPE OF THE GRIEVANCE

[357] The statement and the settlement desired in the group grievance is set out

supra at para. 6. Attached to the grievance were two documents dated

February 3, 2012 and signed by the same 7 AIs who had signed the group

grievance itself. The first was titled “Request for Direction”. The document

refers to the employer’s announcement on January 30, 2012 that the

designation of AIs as COs would end effective February 10, 2012, and that as a

result AIs were required to turn in their sidearms and pepper spray. It then

states:

Since 2006 Agriculture Investigators, have through policy been required

to wear and carry use of force tools for health and safety reasons,

therefore we request clarification and direction on how to proceed when

we are in situations where we have reason to believe that we are in a

health and safety risk.

We respectfully request clarification on how you propose to provide us

with reasonable provisions for our safety, since no direction has been

given, and present policies are contrary to your verbal direction. This

request is pursuant to section 25(2)(a) of the Occupational Health and

Safety Act.

[358] The second document is similarly signed and dated, and was titled “Violence in

the Workplace”. It also reviews the announcement that effective February 10,

2012, the AI’s CO designation, as well as sidearms and pepper spray would be

removed, and that “it places us in an unsafe working position relative to

workplace violence and the enforcement duties we perform”. The document

sets out s.32.03(1) of OHSA and states “That pursuant to s. 32.0.3(1) of the

Occupational Health and Safety Act “Part 111.0.1 Violence in the Workplace”,

we hereby request a workplace risk assessment”.

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[359] The parties are agreed that the grievance alleges a violation of s. 25.2(h) of

OHSA. The dispute is whether the grievance also alleged violations of section

25(2)(a) (by failing to provide directions) and section 32.0.3(1) (by failure to do a

risk assessment).

[360] The union appears to be making two arguments in support of its position. The

first is to the effect that section 25(2) imposes a number of obligations on the

employer. Part III.0.1 of the Act imposes further obligations on employers

intended to protect workers from workplace violence and harassment. All of

these are reasonable precautions mandated by statute to protect workers.

Therefore, when an employer fails to comply with any of them it contravenes s.

25(2)(h) which requires employers to take “every reasonable precaution”.

[361] I do not consider that to be a reasonable interpretation of the Act. Section 25(2)

imposes 13 obligations on employers listed under sub-sections (a) to (m).

Section 25.2(h) is one of the 13 mandated obligations. The Act also imposes

additional obligations on employers intended to protect workers from specific

types of hazards in relation to construction, toxic substances, violence and

harassment etc. To read the Act to mean that a failure to comply with any of the

employer obligations, ipso facto, also constitutes a violation of s. 25.2(h), to say

the least, is an unreasonable stretch. If the legislature intended such a result, it

would have imposed the duty to provide reasonable precautions as an

overriding general obligation, and stipulated that failure to comply with any of the

specific obligations in the Act would constitute a violation of that general

obligation. That is not the way the Act has been structured. The Act contains

numerous substantive obligations on employers, and the obligation in s. 25.2(h)

is one of the many.

[362] If the interpretation of the union is accepted, it would lead to absurd results. For

example, even if AIs continued to be armed and had been provided every

conceivable safety precaution, if the employer is found to have not complied with

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s. 25(2)(k) which requires the employer to post a copy of OHSA in the work

place, that would automatically amount to a violation of s. 25.2(h) even in the

absence of any evidence that AIs faced any unreasonable risk at work. I am

convinced that the legislation does not contemplate such a result. Therefore, I

reject that interpretation.

[363] The union’s second argument is to the effect that the grievance on its face

alleges violations of s. 25(2)(a) and s. 32.0.3(1). This argument is based on the

two documents that were attached to the group grievance, reviewed at

paragraphs 359-360 supra. With respect, I must find that this argument also

fails. Arbitrators in general, and this Board specifically, have established

principles that apply in disputes of this type. In Re Brown-Bryce et al, 2014-

1158 (Dissanayake) at paragraphs 9-11, the Board reviewed those principles:

[9] In terms of the principles that apply in motions of this type, I was referred to

Re Greater Sudbury Hydro Plus Inc. (2003) 121 L.A.C. (4^th) 193 (Dissanayake).

At para 12-14, the Board in that award wrote:

12. Both parties referred me to the oft-quoted judgement of the Ontario

Court of appeal in Re Blouin Drywall Contractors Ltd. and Carpenters

Local 2486, (1975), 1975 707 (ON CA), 57 D.L.R. (3d) 199. At p.

204 Mr. Justice Brooke wrote:

“No doubt it is the practice that grievances be submitted in

writing and that the dispute be clearly stated, but these

cases should not be won or lost on the technicality of

form, rather on the merits and as provided in the contract

and so the dispute may be finally and fairly resolved with

simplicity and dispatch”

13. He went onto state:

“Certainly, the board is bound by the grievance before it

but the grievance should be liberally construed so that the

real complaint is dealt with and the appropriate remedy

provided to give effect to the agreement provisions…”

14. I find two countervailing principles in the foregoing statement

by the Court of Appeal. The first is that, where on a liberal reading

of the grievance an issue, although not articulated well, is inherent

within it, an arbitrator ought to take jurisdiction over that issue,

despite any flaws in form or articulation. However, there is also a

countervailing principle to the effect that an arbitrator ought not, in

the guise of “liberal reading”, permit a party to raise at arbitration

an issue which was not in any manner, even inherently, joined in

the grievance filed. To do that would be to defeat the very

purpose of the grievance and arbitration procedure. In Re Liquid

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Carbonic Inc. (1992), 25 L.A.C. (4^th) 144 (Stanley), the arbitrator

wrote at p. 147:

The whole process of grievance arbitration, and

grievance procedure, is designed to permit the parties at

the earlier stages to resolve the dispute between

themselves. Hence, collective agreements invariably

contain grievance procedure provisions so that grievances

are funneled to an arbitration board only after the parties

have had a chance to resolve the matter. It is our view that

the comments of Professor Laskin and the decision in the

Re Blouin Drywall case attempt to accommodate both

values. If the issue raised at the arbitration hearing is in

fact part of the original grievance, a board of arbitration

should not deny itself jurisdiction based on a technical

objection as to the scope of the original grievance. To do

so would deny the value of flexibility and would be to

compel the parties to draft their grievances with a nicety of

pleadings. On the other hand, if the issue raised by one of

the parties is not inherent in the original grievance, for the

board to permit the party to raise that issue as part of their

original grievance would be to deny the parties the benefit

of the grievance procedure in an attempt to resolve the

issue between themselves. In fact, it would be to permit

one party to substitute a new grievance for the original

grievance.

[10] At para. 17 of the Sudbury Hydro Plus decision, the arbitrator concluded:

17 I have concluded that the employer’s objection must be

upheld. The problem here is not the union’s failure to specify

an article number or an exact remedy. It is about its failure to

raise the alleged violation until the arbitration state. In the

grievance the union clearly complained that the grievor had

been denied her bumping rights under the collective

agreement. There was no mention of a “demotion”. The union

submits that by complaining about the denial of bumping

rights, it put the employer on notice that the union was

objecting in a general way to the way the grievor was treated

following the contract out. That, in my view, is not what the

courts meant by “liberal reading” of a grievance. To include an

issue through a “liberal reading” I must be able to conclude

that the employer reasonably should have understood upon

reading the grievance that the issue in question was part of the

grievance. I am unable to reach that conclusion in this case.

The grievance was very specific about the right, violated. It

was about bumping rights. It was open to the union to clarify

or amend the grievance during the grievance procedure to

include additional claims. There is no suggestion that this was

done.

[11] This Board in Re Labanowicz 2012-3224 etc. (Lynk) decision dated

September 12, 2014, referred to the Greater Sudbury Hydro Plus decision

(supra) and wrote at para. 22:

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22 When faced with this issue, an arbitrator’s considerations

would include some or all of the following: (i) a review of the

language of the grievance, (ii) a review of the language of the

collective agreement; (iii) a consideration of any other

admissible evidence that would cast light on the parties’

understanding of the issues raised by the grievance, such as

the scope of the discussions and exchanges during the

grievance process; (iv) a review of the remedy sought; (v) an

assessment of the time frame involved; and (vi) the degree of

prejudice, if any, suffered by the employer. One useful

indicator is to ask whether the other party reasonably should

have understood upon reading the grievance and engaging in

the grievance process that the new claim in question was

organically part of the original grievance: Re Greater Sudbury

Hydro Plus, supra.

[364] Assuming that the two documents form part of the group grievance, since they

were dated and submitted the same day as the grievance, counsel is correct

that they “mention” or “refer” to the collective agreement and OHSA provisions in

question. However, the mention or reference is in the course of making

requests under those provisions. They are “requests” under the Act not

allegations of any violation. If the documents are given the most liberal reading

possible, at best the requests may be characterized as remedies for the violation

alleged in the grievance, being s. 25.2(h) of OHSA and article 9.1 of the

collective agreement.

[365] I find that on an application of the test in Re Greater Sudbury Hydro Plus Inc.

(supra), I cannot conclude that the employer ought reasonably have concluded

from reading the grievance and the requests, that it was required to defend

independent allegations of the provisions in question. This is confirmed from the

employer’s assertion which is not challenged, and indicated by my own notes,

that there was no mention at all of the provisions in question, leave aside an

allegation of violation, during the union’s detailed opening statement describing

the union’s case. Nor did the union at any time seek to amend the grievance.

[366] Therefore, I conclude that in those circumstances, to allow the union to make

allegations for the first time during final submissions, would significantly modify

and expand the grievance and would be unreasonably prejudicial to the

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employer. It would be denied an opportunity to address the allegations made

against it. I uphold the employer’s position that the allegations in question do

not form part of the group grievance before the Board. Those aspects of the

union’s allegations are therefore not arbitrable and are dismissed.

[367] While I have concluded that the union may not allege violations other than s.

25.2(h) of OSHA and article 9.1 of the collective agreement, that does not,

however, mean that the union is precluded from leading any relevant evidence

to support the allegation properly before the Board. In fact, a substantial part of

the union’s case was to the effect that the employer should have taken a

number of precautions, some of which are required by OHSA, before disarming

AIs. In determining whether or not the employer had taken reasonable

precautions for purposes of s. 25(2)(h) and article 9.1, I have taken that

evidence into consideration.

[368] I agree with the employer that the issue for determination for the Board is

whether or not the employer had taken safety precautions in compliance with

article 9.1 and s. 25(2)(h) following the removal of sidearms and pepper spray.

The process followed – steps taken or not taken – in making the decision are

relevant only to the extent they relate to that issue.

THE MERITS OF THE GRIEVANCE – HAS THE UNION ESTABLISHED A

VIOLATION OF S. 25.2(H)OF OHSA AND/OR ARTICLE 9.1 OF THE

COLLECTIVE AGREEMENT?

[369] The union and the employer provided me with numerous legal authorities. While

I have reviewed the material portions of all of those authorities I will not review

most of them because the legal principles are not controversial. Each case

turns on an application of the principles to the evidence before the decision

maker.

[370] In Re City of Toronto [2015] 260 L.A.C. 4^th304 (Herman), the arbitrator was

required to apply 25.2(h) of OHSA and a collective agreement provision similar

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to the one here. In this reported award relating to remedy, the arbitrator at

para.3 reproduces a portion of his award on the merits, including the following:

However the Act and the Collective Agreement require that the City

provide a safe and healthy work environment and take all reasonable

precautions to protect the employees working there. These obligations

do not disappear if no-one is injured because of unsafe conditions in a

workplace. An employer will generally be in breach of the Act (and any

collective agreement provision like the one in issue here) through a failure

to take reasonable precautions to make the workplace safe, regardless of

whether an employee suffered harm as a direct result of any such failure.

[371] This principle is also reiterated by the Ontario Labour Relations Board in Ministry

of Public Safety and Security v. William Schill et al, [2003] O.O.H.S.A.D., No:

105 at para 14, as follows:

No prior adverse incident is necessary to involve the protection of

the Act. In another context, one need not wait for a worker to be

electrocuted to justify an order that hoisting equipment not be permitted

within close proximity to a high voltage power line. The absence of a

prior incident does not necessarily lead to the conclusion that there is no

risk to worker safety.

[372] The Grievance Settlement Board in Re Andrews et al, 1815/89 (Goldenberg),

interpreting article 9 (then article 8) set out the following principles at page 15:

“1.

There is no obligation on the employer to guarantee an

employee’s safety against every possible risk, no matter how

remote the possibility that it will occur;

2.

It is necessary to balance the safety of the employees against the

operational needs and purposes of the institution or program in

which they work; and

3.

Proper planning can reduce the potential or likelihood of

incidents, but it is not possible to eliminate all conceivable risks.”

See also: Re McFarlane, 1641/94(Watters)

[373] In Re Anger et al, 2004-1321 (Watters), the Board reviewed the foregoing

principles with approval, and at p. 18 wrote:

In summary, a similar approach must be taken when assessing the applicability

of article 9.1 of the collective agreement and/or section 25(2)(h) of the

Occupational Health and Safety Act. An Employer, under both the agreement

and the statute, does not have to take steps to guarantee an employee’s health

and safety against all possible or conceivable risks, no matter how remote they

may be. The Employer, instead, is bound to make reasonable provisions under

the former, and to take reasonable precautions under the latter, so as to provide

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the appropriate level of protection to employees.

The test is one of

reasonableness which, necessarily, requires consideration of a multitude of

factors. I also accept that, in resolving the type of issue now before me, an

objective standard must be used. I note the following comment in Re Caughlin

on this point:

“13 …………………, I find that one must look at objective criteria

to determine if any worker is endangered by the work

environment and that the worker’s subjective feeling about

danger is not sufficient to render a job dangerous to that

worker. The worker’s perception must be a reasonable

one grounded on demonstrable and objective criteria.”

See: Re Caughlin [1987] O.O.H.S.A.D. No. 21

[374] In Re Anger et al (supra), the Board considered the interpretation of the word

“reasonable” in both the Statutory and collective agreement provisions at issue.

At pp. 16-17 the Board wrote:

In R.v. Timminco Limited, the Ontario Court of Appeal commented as

follows with respect to the nature of the Occupational Health and Safety

Act:

“[22] The Occupational Health and Safety Act is a public welfare

statute. The broad purpose of the statute is to maintain

and promote a reasonable level of protection for the health

and safety of workers in and about their workplace. It

should be interpreted in a manner consistent with its broad

purpose…….”

The word “reasonable”, as found in section 25(2)(h), was the subject of

interpretation in Ministry of Transportation and Ministry of Labour, a

decision of the Ontario Labour Relations Board. The Board there noted:

“146 There is surprisingly little case law on what the word

“reasonable” in s. 25(2)(h) means. However, on the face

of the provision the word “reasonable” clearly modifies the

words “take every precaution in the circumstances”.

Therefore, it is not every precaution which must be taken,

but only reasonable precautions. Determining what is

reasonable involves balancing the benefit to be gained by

taking the precaution against all other relevant factors.

These factors could include, among other things, the cost

of the precaution and its effect on efficiency.

147 There was some suggestion that the severity of the risk

and likelihood that the risk will actually occur are not

relevant. I disagree…………………………………..”

On this latter point, the Ontario Labour Relations Board in Intercept

Security Services similarly observed:

- 147 -

“57

Although counsel for the applicant argued that the

frequency with which the risk is faced is irrelevant, I

disagree. Section 25(2)(h) requires an employer to take

“every precaution reasonable in the circumstances for the

protection of a worker”. The language “reasonable in the

circumstances” requires a consideration of the magnitude

of the risk and its frequency………………”

[375] In Re Anger et al (supra), in October 2003 the Windsor ODSP Office was moved

to a new location in Windsor. At the old location the reception area desk had a

physical barrier separating staff from client contact which had been erected

pursuant to without prejudice terms of Minutes of Settlement of a union

grievance. The reception area desk at the new location had no physical barrier

separating staff from clients. The grievance alleged that the employer had

violated s. 25(2)(h) of OHSA and article 9.1 of the collective agreement. The

statement of grievance reads: “We (attached) grieve that the provisions for our

health and safety in our new work location have been compromised in regard to

the front counter - Article 9 collective agreement”. The settlement desired was:

“That management take immediate steps to provide plexiglass to the front

counter as we had in our previous work location prompted by a grievance for

health and safety. That management consider input from staff and a qualified

member from OHCOW for advice in the construction”.

[376] The grievance was settled by minutes setting out a process of review and

consultation with the goal of reaching agreement on effecting modifications to

the reception area that would enhance staff security without adverse impact on

the employer’s operational interests. The parties were unable to reach

agreement on acceptable modifications and the matter was referred back to the

arbitrator. The union proposed a physical barrier of no less than six feet in

height. The decisions sets out the following reasons put forward by the union to

support the need for such a barrier:

- “To protect OPSP staff form physical contact and/or the possibility of

human bodily fluid exchange with clientele or the general public”.

- That the employer’s proposal “could facilitate an aggressive person

striking the employee. The opening should be reduced to permit

unhindered conversation but will still prevent physical contact”.”

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- That the barrier proposed by the union will not reduce accessibility,

comfort or confidentiality for ODSP clients. At p. 19 arbitrator

Watters sums up “In substance, the union asserts that the installation

of a barrier is a reasonable provision or precaution and is necessary

to protect the health and safety of the employees in question.”

[377] In that case the union had relied on 28 incident reports and submitted that

evidence establishes “a continuing, real and imminent threat of physical harm

for ODSP staff…, and that the measures proposed by the employer “do nothing

to protect front-line staff from agitated and angry clients, many of whom suffer

from mental illness, who may be intent on taking their frustrations out on

employees at the reception counter”, and “…fail to address the union’s

concerns about the potential for individuals to jump across the counter and

assault a staff member, throw projectiles at staff, or spit at staff”.

[378] The employer took the position that erection of a physical barrier as proposed by

the union would be inconsistent with the intent of the Ontarians with Disabilities

Act 2001, which is to remove barriers disabled persons face in participating in

the mainstream of society. It submitted that in any event safety precautions

implemented, and those offered in its proposal meet its obligations under s.

25.(2)(h) of the Act and article 9. At pp. 24-25, arbitrator Watters wrote:

In summary, it is the Employer’s position the Union failed to present any

evidence, relating to the likelihood of risk to employees’ health and safety; that

would justify the need for the physical barrier sought. In the alternative, counsel

for the Employer argued that, at most, the likelihood of risk is minimal or remote,

and that the Employer has taken reasonable precautions to minimize the risk.

Given the nature of the evidence presented, and the seriousness of the issue, I

have elected to focus on this latter submission as, in my judgment, it is the

threshold issue separating the parties.

There is no doubt that employees working at the ODSP Office in Windsor have

difficult jobs to perform. The challenges they face are referenced in the following

excerpt from the Union’s response to the Model Office Guidelines:

“……………In the past decade the client base has changed

considerably from sole support parents who were downloaded to

the municipalities to a more high risk, high needs clients group

who present a variety of challenges to their service providers.

The closure of facilities for the Developmentally Handicapped and

Psychiatric Hospitals has also had an impact on our program. In

the past these clients had their immediate needs met by the

facility or the hospital. Now these clients are living in the

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community and depend on our ODSP offices for continual

assistance and support.”

The clients served suffer from mental and/or physical disabilities. I accept that,

from time to time, clients may become frustrated, upset or annoyed at the need

to comply with requirements relating to the initial claim for assistance and/or the

continued receipt of benefits. These emotions, for example, could be triggered

by an employee request for additional information or by a client’s failure to

receive a benefits cheque. As a consequence, ODSP staff may periodically have

to deal and interact with persons who act in a disruptive, inappropriate and

unpredictable manner. I am left, however, with the distinct impression that the

vast majority of clients do not conduct themselves in this fashion. In this regard,

as previously mentioned, the Union filed some twenty-eight (28) incident reports

of what was perceived to be threatening or disruptive behavior occurring from

and after November 2005. I consider it material that in the period 2004 to 2007

inclusive, some eight-six thousand (86,000) clients were served in the Windsor

ODSP Office.

[379] At pp. 25-26, he made the following findings of fact:

I have reviewed all of the incident reports, and related material, filed by the Union

in this proceeding. My conclusions are as follows:

i.

The bulk of the reports deal with inappropriate behavior of a

verbal, rather than a physical, nature. I accept that many of

the comments contained therein, which were attributed to

clients, are threatening, intimidating, disruptive, abusive and

profane. I have not been convinced, however, that this form of

objectionable language would be either prevented or reduced

by the erection of a physical barrier;

ii.

There is no evidence that any ODSP employee in the Windsor

Office has ever been physically assaulted by a client, either

directly or by way of a thrown projectile.

The reports

document one (1) unsuccessful attempt, on the part of a client,

to hit an employee. While there is not much detail relating to

this attempt, the client’s inability to make physical contact

supports the Employer’s position that the front counter is of a

sufficient depth to offer reasonable protection to employees

working at that location;

iii.

Similarly, there is no evidence that any client has ever jumped

or climbed over the front counter at the Windsor ODSP Office.

In any event, I have some real doubt as to whether the

plexiglass barrier, as depicted at Tab 10 of the Union’s Book of

Documents, would prevent a person from climbing across the

counter if they were truly motivated to do so. At most, I think

that the barrier would slow them down. There is a statement

in certain of the reports that staff members were afraid that the

client involved was going to jump across the counter in an

effort to reach them. Their subjective beliefs on this point are

not determinative in the absence of more objective evidence

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that such conduct has actually occurred in the period of

relevance to this dispute;

iv.

There is no evidence of any employee having been spit on by

a client. Additionally, apart from one (1) exception, the reports

do not document any incident where there was some potential

for the transmission of infectious disease. The exception

relates to a situation in which a client elected to slice his arm

with a knife resulting in blood dripping from the wound. I am

unable to find that the Union’s proposal would either eliminate

or reduce this type of contact were such to occur;

v.

I note from the reports that a significant number of the

incidents were diffused or resolved by staff; and

vi.

The fact there have been no instances of physical assaults, or

related client misbehavior, is not determinative in and of itself

that there is no risk to employee safety. On the evidence

before me, however, I have not been persuaded that this

group of employees are subject to a continuing, real and

imminent threat of physical harm, as claimed. The content of

the incident reports, in the context of the total number of

clients served, does not support such a claim.

[380] At p. 29 the arbitrator concluded:

After reviewing all of the above-mentioned components, together with the

supporting material, I am satisfied that the Employer’s package of proposals

complies with the requirements imposed by article 9.1 of the collective

agreement and section 25(2)(h) of the Occupational Health and Safety Act. More

specifically, I find that the package in its totality is a reasonable provision for the

safety and health of the ODSP employees working at the Windsor Office.

Further, I find that, upon complete implementation, the Employer will have taken

every precaution reasonable in the circumstances for the protection of these

employees.

[381] Turning to the evidence before me, a large part of the union’s evidence was

focussed on the process that led to the initial arming of AIs in 2003. Mr. Kindrie

testified at length about what motivated him to submit a briefing note

recommending that AIs be armed, the consultations and research he engaged

in, and the approvals he received from senior management. The most

significant point to be made was that officer safety concerns drove the decision.

[382] Mr. Moody testified in even greater detail about why he felt that arming AIs by

continuing to designate them as COs was an abuse of the CO status, and why

the CO designation and the sidearms and pepper spray that came with that

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designation were not necessary given the way AI duties had evolved. He

concluded that officer safety can be protected as required by the collective

agreement and OHSA by other means, without designating them as COs, which

in his view was the only legal means of arming them. He testified about

consultations he had, including with MNRF Legal Services. In short, he also

testified why and how he came to the decision.

[383] Mr. Moody was extensively cross-examined about what he did not do before

deciding to disarm AIs, particularly that he did not have a risk assessment done

on workplace violence AIs would face in the absence of sidearms and pepper-

spray, and did not consult or seek input from the AIs themselves or their union.

[384] The workplace violence risk assessment by the PSHSA was done well after the

decision to remove sidearms and pepper spray had been made and

implemented. The final report by the consultants concluded that sidearms and

pepper-spray were not required, in effect agreeing with the employer’s decision.

The union challenged the reliability of that report on two grounds. The first was

on its view that some of the reasoning and factual conclusions were defective.

More importantly, the union was of the view that the report was not independent.

It was unreasonably influenced by Mr. Moody. It took the position that the

authors had provided a draft of the report for Mr. Moody’s comment. That draft

had recommended that AIs be provided sidearms and pepper-spray. Mr. Moody

made it clear in his comments that he disagreed with that recommendation and

would not accept the report as drafted, and that this caused the authors to make

a completely opposite conclusion. The union pointed out that the existence of a

draft which Mr. Moody had opportunity to comment upon was kept secret. The

union and the AIs became aware of this only after the instant arbitration was well

under way. Counsel likened what occurred, to this Board providing a draft

decision to only one of the parties for comment without the knowledge of the

other. Mr. Moody had the opportunity to comment on the draft, but the AIs did

not. Counsel submitted that this is evidence that the risk assessment was

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biased, or at the very least that it raises an apprehension of bias. In either case

its conclusions are not reliable.

[385] In support of the group grievance union counsel relied on the testimony of the

union witnesses, particularly the risks the AIs were exposed to during the many

incidents they testified about. He relied on the evidence that AIs have to deal

with persons with criminal or violent backgrounds, people associated with

organizations such as motor cycle clubs. The individuals see AIs as “the

government” interfering with their property rights and their businesses. It was

pointed out that often there are weapons, such as firearms and knives, in the

rural farms and illegal slaughter operations the AIs visit.

[386] However, union counsel spent much more time criticizing the process that led to

the decision to disarm the AIs. He pointed to a number of steps Mr. Moody

should have taken before making the decision, including doing an assessment

of the risk of workplace violence if AIs are deprived of their sidearms and

pepper-spray. He pointed to actions or inaction on Mr. Moody’s part, such as

his failure to invite input from the AIs or their union. He took the position that Mr.

Moody did not do meaningful consultation or research, compared to the

consultation and research that went into the Kindrie Briefing note, which led to

the initial decision to arm AIs. He was very critical of Mr. Moody, who had never

worked as an AI, making the decision sitting at his office desk. He repeated and

emphasized that the AIs who actually do the work “know best” the risks they

encounter. The AIs testified that they faced serious safety concerns they had in

carrying out their duties. On that basis, counsel urged the Board to give greater

weight to their evidence rather than the evidence from someone who had never

worked as an AI, that AIs do not face unreasonable risk.

[387] Counsel pointed out that the employer relied heavily on the direction the AIs had

received that they should disengage if concerned about personal safety, in

arguing that it had met its legal obligation. He pointed out that the AIs had

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testified that there could be circumstances where disengagement is not an

option, for example, where the only exit is blocked by someone with a weapon.

[388] I first turn to the union’s submissions on the employer’s decision making

process. It is the employer that has the obligation to “make reasonable

provisions” (under article 9.1) and to “take every precaution reasonable in the

circumstances” (under s. 25(2)(h) of OHSA). The task is on the employer, in the

exercise of its management rights, to decide how it will comply with that

obligation. However, an employer’s right to exercise its management rights may

be restricted by statutory or collective agreement provisions imposing

substantive obligations. Section 25(2)(h) of OHSA and article 9.1 of the

collective agreement between the instant parties are such provisions. In

carrying on its operations, the employer is legally obliged to exercise its

management rights subject to the safety standards prescribed by those

provisions. Another example would be “just cause” provisions commonly

included in collective agreements. While employers may have the general

management right to terminate employees, that management right must be

exercised subject to the just cause standard.

[389] Another limitation that may be placed on an employer’s management rights may

be by way of mandatory process or procedural requirements. For example,

while the employer has the management right to hire employees, that right may

be restricted by an obligation to post vacancies for a specified period, and/or to

interview applicants before the successful applicant is selected. Depending on

the language in the provision, the employer’s decision may be annulled, if the

mandated process is not followed. Similarly, a collective agreement may

provide, as many do, that an employee must be provided union representation

at a meeting that could result in discipline or discharge. If the language in the

provision is found by an arbitrator to be mandatory, the employer’s decision may

be annulled regardless of whether or not there was just cause, if the union

representation requirement was not complied with. Union counsel argued

strenuously that an employer, when contemplating the removal of an existing

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safety precaution, must do a number of things prior to or as part of the decision

making process. However, he did not point to anything in the collective

agreement or OHSA that imposes such an obligation.

[390] On the evidence before me, I find that Mr. Moody was the effective decision

maker and that he made the decisions with minimal consultation. To be clear, it

is always prudent for an employer to satisfy itself that it is making a decision

which is correct factually and in law. That could require investigations,

consultations, and seeking advice from legal and other experts. Where the

decision maker is not familiar or experienced with the subject matter, it would be

even more advisable to do so. Where a manager contemplating disciplining an

employee, for some culpable conduct for example, in the absence of a

requirement in the collective agreement, is free to decide not to do an extensive

investigation before making the decision. It is open to the manager to make the

decision without hearing the employee’s side of the story or without inquiring

whether there were any witnesses to the alleged culpable conduct by the

employee. The Board does not encourage or recommend that approach to

decision making. It is not prudent, because a manager who does that runs the

risk that facts he had not been aware of may be established at arbitration, which

make it impossible for him/her to defend the decision. In some cases no such

damaging evidence may turn up, and the decision, although made with little or

no investigation, may still be defensible. The point of this example is that, while

the manager may not have acted prudently, ultimately the arbitration would turn

on whether or not his/her decision turns out to be correct. i.e. whether there was

just cause for the discipline imposed.

[391] With the greatest respect to counsel on both sides, who spent a large proportion

of the hearing on the process followed by the employer that led to the decision

to disarm AIs, I find that evidence to be of no assistance to the Board in deciding

the only issue before it, namely whether or not the employer was in violation of

its obligations under article 9.1 of the collective agreement and s. 25(2)(h) of

OHSA, once sidearms and pepper spray were removed from the grievors.

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Assuming that the union is correct in pointing out the unfairness, defects, etc., in

the process, the determinative issue is whether the decision arrived at thorough

that process resulted in a violation of the collective agreement and statutory

provisions in question.

[392] Union counsel seemed to suggest that the collective agreement and OHSA

impose some higher standard and/or additional obligations on an employer

removing an existing safety precaution, than one who fails or refuses to provide

a safety precaution. The collective agreement nor OHSA makes that distinction.

In the latter situation the test is whether precautions already in place, meet the

standard of reasonableness contemplated by those provisions, despite the

failure or refusal to provide the additional precautions. When removing an

existing safety precaution, the issue is whether, the precautions that still remain

in place following the removal, meet the test of reasonableness. In this regard, I

also disagree with union counsel that Re Anger, (supra) should not be given

weight because it did not involve removal of an existing precaution. It was such

a case although in a different context. The substance of the grievance was that

the precaution of a physical barrier which he grievors had, no longer was

available in their new location.

[393] The parties also spent significant time on the reliability, or lack of it, of the risk

assessment report authored by Mr. Pajot. Given the issue for decision before

me, I am of the view that it is not necessary for me to decide whether the report

was biased or tainted by an apprehension of bias. As noted above, s. 25(2) of

OHSA imposes specific obligations on employers relating to conducting risk

assessments. If the union was of the view that the Pajot risk assessment did not

comply with the statutory obligations, it was open to it to grieve. I have

concluded that the grievances before me only allege a violation of s. 25(2)(h),

and no other provision of OHSA. Therefore, in the context of the issue before

me, the reliability of the Pajot risk assessment and whether or not it was biased

is irrelevant. First, that report was done well after the decision to disarm AIs had

been made and implemented. Therefore, the only possible relevance of that

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report is whether or not it supports the decision the employer had made that

sidearm and pepper spray were not safety precautions required for compliance

with the collective agreement and OHSA. I have not given any weight to the

Pajot Report in considering whether or not the employer had violated the

collective agreement or OHSA.

[394] In determining that issue, I turn to the applicable legal principles which are set

out in the authorities I have reviewed above. The first is that the collective

agreement nor OHSA imposes an obligation on the employer to guarantee the

grievors’ safety against every possible risk, no matter how remote the possibility

that it will occur.

[395] Second, in order to establish a violation of article 9.1 or s. 25(2)(h) it may be

useful, but not a necessary requirement, to be able to adduce evidence that

employees have actually suffered injury or other harm. More the instances of

such evidence, and more serious the injury or harm suffered, the stronger the

union’s case would be. However, the absence evidence of actual injury or harm

is not by itself an unsurmountable hurdle for a successful prosecution of a

grievance, if objective evidence is adduced of a real likelihood of risk to AIs

health and safety.

[396] Third, the words “take every precaution in the circumstances” in s. 25(2)(h) are

modified or qualified by the word “reasonable”. Therefore, the obligation is to

take reasonable precautions, not every possible precaution. In determining

what is “reasonable”, it has been held that the benefit to be gained by taking the

precaution must be balanced against all other factors including the cost of the

precaution and its effect on efficiency, and the severity of the risk and likelihood

that the risk would actually occur. (Re Ministry of Transportation and Ministry of

Labour (OLRB) supra. It has also been held that the magnitude of the risk and

the frequency with which the risk is faced are relevant considerations in deciding

whether a precaution is “reasonable in the circumstances”. (Re Intercept

Security Services, (OLRB) supra.

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[397] The final principle that emerges from the authorities is that the test in

determining whether or not a particular safety risk exists is an objective one.

The employee’s subjective belief that he is in danger, however honestly held, is

not a sufficient basis to conclude that the perceived danger in fact existed. The

perception must be a reasonable one grounded on demonstrable and objective

criteria. (Re Caughlin, supra)

[398] Now I turn to apply the aforementioned principles to the evidence before me.

There is no evidence that any AI has suffered any physical injury or harm before

or after the removal of their arms. Mr. Ridley and Mr. Martin agreed with

employer counsel that the incidents the union had put forward represented the

strongest evidence available to demonstrate the risk of workplace violence AIs

face. The only instance where there was any physical contact between an AI

and a person under investigation occurred in the goat slaughter incident where

the individual prevented the AI from proceeding further in, took him by his arm,

and led him out of the barn.

[399] I accept that AIs are from time to time required to deal with individuals who have

been in trouble with the law or have exhibited a propensity for violence. I also

agree that when AIs show up for investigation, they would rarely be welcomed.

More often than not, the individual being investigated may be upset, annoyed,

and even angry, because AIs are seen as “the government” interfering with

activities they carry on within their own property. This perception would, on

occasion lead to use of intimidating and abusive verbal outbursts. There is

evidence that some have resorted to yelling. There is no evidence, however, of

any occasion where someone threatened to inflict physical harm on any AI.

[400] The authorities are clear that an employer has no obligation to guarantee an

employee’s safety against every possible risk. As the Ontario Court of Appeal in

R v. Timminco Limited (supra) commented, the broad purpose of OHSA is “to

maintain and promote a reasonable level of protection for the health and safety

of workers in and about their workplace.” Particularly considering that AIs core

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function is regulatory enforcement, a certain amount of risk would be inherent

and unavoidable. Their entitlement is to reasonable protection.

[401] It is also significant that the evidence is consistent that in every instance where

an individual was agitated or angry, the goal was to get the AIs to leave. Even

in the only occasion where physical contact with the AI was made, the purpose

was to escort him out of the barn and to get him to leave, not to detain or assault

him.

[402] Union witnesses as well as union counsel discounted the value of the

employer’s direction that AIs should disengage, that is not to proceed if

concerned about safety at all or to leave if already engaged. They reasoned

that this direction ignores the possibility that AIs may not be able to leave, if

someone with a weapon is blocking escape. While that is possible in theory, the

evidence does not indicate that to be a realistic or likely scenario. There is no

suggestion in the evidence that the people AIs encounter, even those agitated

and angry, have ever shown any intent to prevent an AI from leaving and detain

an AI in order to inflict harm on the AI. As I have already noted, in every incident

where the person exhibited agitation or verbal hostility, the intent was to get the

AI to leave. In one instance the person himself called the police to report the

presence of AIs on his property. In one instance an AI testified that he could

have been injured when the person slammed the trunk lid of the person’s

vehicle, when the AI attempted to put a search warrant into the open trunk.

Even in that instance, I am convinced that the intent was to get the AIs, who

were on his property to serve a search warrant, to take the search warrant and

leave. The AIs had attempted to personally serve the search warrant, but the

individual would not accept service. The incident occurred in response to the

AI’s attempt to effect service by placing the search warrant in the trunk of the

person’s vehicle. This would have been avoided if the AIs left or sought police

assistance when the individual got agitated, refused to accept service of the

search warrant, and asked them to leave. In light of the evidence, in my view,

the likelihood of someone trapping an AI and preventing his escape with the

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intent of inflicting harm is extremely remote.

It does not meet the

reasonableness test contemplated by the collective agreement or OHSA.

[403] The union also highlighted that AIs encounter weapons during their

investigations, particularly when doing surveillance or searches of illegal

slaughter operations and in rural farms and residences. Union witnesses cited

numerous instances where various types of weapons such as knives, axes,

meat hooks, firearms and cross-bows were present. The union’s position

appeared to be to the effect that whenever a weapon exists AIs’ safety is a risk.

The employer acknowledged the evidence that AIs come across individuals who

possess various types of weapons. However, the employer disagreed that the

mere existence of weapons puts the AIs safety at risk. That would be the case

only if there is a likelihood that the weapons may be used to inflict physical injury

on AIs or to kill them. Employer counsel argued that the weapons discovered

existed for reasons other than to attack enforcement personnel such as AIs who

are unwelcome. Counsel disagreed that the AIs safety is at risk merely by the

fact that the person being investigated possesses weapons.

[404] I agree with the employer. All witnesses agreed that it is very common to find

butcher knives, axes, meat hooks etc. in locations where slaughter of animals is

carried on, and to find firearms in rural farms and associated buildings. In

slaughter houses, sharp edged “weapons” such as knives and axes are

necessary “tools of trade” to carry on the operation. None of the witnesses

suggested that farmers possess firearms to be used against government

enforcement officers. They simply testified that guns were found. I find that in

the circumstances it is reasonable to conclude, and I do, that the firearms are

there for other personal or recreational uses. The likelihood of those being used

to injure AIs is extremely remote.

[405] If it is true that whenever a weapon exists AIs are at risk, it is not clear to me

why the same risk does not exist if potential weapons, for example, a base-ball

bat, or a metal vase is observed, because those objects could also potentially be

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used as weapons to injure. Therefore, what is important is the likelihood of the

individual attacking the AI. If there is no such likelihood, the existence of a

potential weapon by itself does not expose an AI to unreasonable risk.

[406] Union witnesses, however, did testify that in some cases the firearms were

“strategically placed” or “placed for easy access”, which seemed to suggest that

they were there to be used against them. However, based on the evidence that

is not reasonable or likely. First of all, there was no evidence that any of the

firearms strategically placed were loaded, or that ammunition associated with

the firearms was found in the vicinity. As already noted, in all cases, including

where individuals were visibly agitated and upset, those emotions were driven

by the fact that the AIs were on private property in their view, unreasonably or

even illegally interfering with their activities. The ranting, yelling etc. in every

case was to get the AIs to leave. If AIs felt that they were at risk when weapons

were observed, they had the option to simply leave. There is no evidence in any

of the incidents that the AIs attempted to do that, leave aside evidence that such

attempts were impeded or prevented by the individuals.

[407] With regard to presence of sharp edged weapons like knives, axes etc. in

slaughter operations, the union relied heavily on the goat slaughter incident to

demonstrate the danger faced by AIs, because they encountered several men

who had knives in their hands. However, they had the knives in hand because

they were butchering a goat, not to confront the AIs. When ordered to do so

they dropped the knives on the floor. Despite badly outnumbering the AIs and

despite ready access to weapons, the AIs were not subjected to any violence or

even a threat of violence. This evidence is also consistent with my finding that

the mere existence of weapons does not mean existence of risk of injury or

death, where the evidence is that the people having access to weapons had no

inclination to use the weapons for that purpose. The evidence strongly suggests

that the AIs themselves did not believe that there would be a mass knife attack

on them by a group of men that outnumbered them. Had they believed that to

be a possibility they would have immediately disengaged and called for help.

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[408] The same reasoning applies to the union’s theory that AIs are at risk because of

the “type of people” they deal with. Reference was made to persons who

possess firearms, a cross-bow, people flagged for violence, those who had

criminal records or served in the Canadian Military, associated with a motor

cycle club or a land owners association. Again, while they testified that they

were concerned about their personal safety when dealing with these types of

people, the AIs conduct is not consistent with that testimony. There is no

evidence that the AIs in question backed off or disengaged, or even thought

about doing so in any of those situations. To the contrary, they continued to

engage when it should and would have been clear to them that they were

unwelcome, and the individuals concerned were agitated.

[409] Another difficulty with the union’s position is that there was no explanation

provided why a sidearm and/or pepper spray was necessary, or how they would

have helped in any of the incidents. Mr. Martin was not armed for example,

during the bolt gun incident. In cross-examination he could not give a credible

explanation of how the risk, if any existed, could have been avoided or

mitigated, if he had been armed. In the incident where Mr. Hartnick testified that

he was at risk, he could not explain how a sidearm could have helped to

address the risk of being accidentally shot if the police officer mishandled a

firearm that had been seized. In another incident, the concern was about being

shot, if the farmer started to take pot shots from his residence thinking that his

dog was barking at some wild animal on his property. Assuming that these are

realistic concerns, I have not heard any explanation of how a sidearm or pepper

spray could possibly have addressed that concern.

[410] The MOL inspector had concluded in his field visit report that the AIs would not

accept any offer of precautions if it did not include sidearms. I reach the same

conclusion. It is very clear to me that the grievors are of the view that regardless

of what other precautions are put into place, regardless of how changes are

made to the way work is done, and regardless of how policy and procedure is

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modified, they are in danger if they are not carrying a sidearm. The union’s

position on the law was clearly that the “reasonable” precautions standard in the

collective agreement and OHSA cannot be met as long as the sidearms

removed are not reissued to Als.

[411] There is no question that the union witnesses testified that they felt at risk when

performing AI duties without sidearms. They also repeatedly complained to

management about the removal of their sidearms. Union counsel urged the

Board to accept their evidence because “the AIs know best” the risks they

encounter. With respect, I am unable to do so in light of the evidence. As the

authorities have clearly established, the test is an objective one and not one

based on what a worker may have subjectively believed.

[412] In the face of the evidence before me, it is very likely that the grievors did not

even honestly believe that they were at risk as they say. Their conduct as

established by their own evidence speaks louder than their words in this regard.

If they believed they were at risk as asserted, it is very unlikely they would have

acted as they did. I have reviewed the evidence of numerous instances of AIs

conducting themselves in a manner indicating that they were not concerned

about their safety, although claiming to be in danger. They include the following:

- Not using communication tools available to call for assistance.

- Not seeking police assistance.

- Readiness to resort to exigent circumstance searches with no

operational plan or other precautions available.

- Continuing to engage with individuals who are agitated and upset

when they could have easily left safely.

- Proceeding with the operation despite encountering weapons

and/or being outnumbered.

- Proceeding alone rather than waiting for a CO or police officer

arranged to accompany the AI.

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- Generally showing no inclination to disengage form situations

claimed to be dangerous.

[413] I am satisfied that the precautions in place at the time sidearms and pepper

spray were removed, together with the verbal direction by Mr. Moody at the

conference call announcing the decision to remove met the obligation the

employer has under article 9.1 and s. 25(2)(h) of OHSA. The additional

precautions implemented subsequently further supplemented that compliance

on the part of the employer. In short, the evidence leads me to conclude that

the employer was not in violation at any point of time.

[414] It follows that the group grievance is dismissed. The parties agreed, and I find,

that given that disposition of the group grievance, the individual grievance filed

by Mr. Martin must also fail. It is also dismissed.

Dated at Toronto, Ontario this 13^thday of September, 2019.