Creamer and Treasury Board (Health Canada)

Full Text

165-2-94
Creamer and Treasury Board (Health Canada)

Before: M. Korngold Wexler
Appearances: R. Taylor, for the Applicant; R. Lafrenière, for the Employer
Decision rendered: November 7, 1996

Jurisdiction - Occupational health and safety - Refusal to work - Reference of decision of safety officer pursuant to subsection 129(5) of Part II of the Canada Labour Code - Alleged harassment by supervisor - Evidence - on October 25, 1993, applicant refused to work alleging that his supervisor's continued harassment of him constituted a danger as defined in subsection 122(1) of Part II of the Canada Labour Code - safety officer investigated the matter on October 26, 1993, and determined that no condition existed in the workplace that constituted a danger to the applicant - on request of the applicant, safety officer referred her decision to the Board - employer alleged that harassment did not fall within the definition of danger in Part II of the Code - employer also raised the issues of laches and mootness - Board indicated that it was impossible for it to make a determination with respect to the applicant's stress and its cause on October 25 and 26, 1993, without medical or other expert evidence as to his health at the time of his refusal to work and the safety officer's investigation - such evidence had not been adduced before the Board - the task of the safety officer was to determine whether at the time of the investigation a condition existed that constituted a danger to the applicant - there was no evidence, apart from applicant's testimony, to support his allegation of such a danger - the danger has to be real and not a mere perception or an anticipation that the future would be a mere repetition of the past - Board concluded that applicant, who had the burden of proof, failed to produce the required evidence to establish his claim - in light of its finding on the evidence, Board stated that it was not necessary for it to determine whether the definition of danger applies to a situation such as the one raised by the applicant - similarly, Board determined that it was unnecessary for it to deal with the issues of laches and mootness raised by the employer.

Decision of safety officer confirmed.

Cases cited: Bidulka et al. v. Canada (Treasury Board) 1987 3 F.C. 630 (F.C.A.); Boothman v. Canada (1993), 63 F.T.R. 48; Decision No. 636/91 (1992), 21 W.C.A.T. Reporter 277; Bliss (165-2-18); Scott (165-2-71).