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ON AGAIN, OFF AGAIN

It was two days before Christmas in 2008. An off-duty transit police officer and his family were on their way ...


Illustration credit: James Wardell
Illustration credit: James Wardell

It was two days before Christmas in 2008. An off-duty transit police officer and his family were on their way home for the holidays when they came upon a disconcerting scene.

Driving through the British Columbia city of Chilliwack, the designated constable for the South Coast British Columbia Transportation Authority Police Service (SCBCTAPS) noticed a truck stopped in the middle of an intersection. But that was not all. Beside the truck was a man urinating on both himself and the vehicle.

The man, visibly unsteady, got back into his vehicle and drove away.

Convinced the man was drunk, the officer called 9-1-1 and, being told officers would be unable to immediately respond, pursued the truck. He witnessed the speeding truck sideswipe a parked vehicle, mount curbs and drive toward oncoming traffic.

When the truck stopped at the side of the road, the transit officer approached and tried to retrieve the keys from the ignition. A struggle ensued, ending with injuries to the officer.

The circumstances raised a specific question: Is an off-duty transit officer eligible for workers’ comp benefits if injured? And, more generally, does eligibility extend to any worker injured while trying to stop an illegal act?

TWICE DENIED

The transit officer did file a claim, but was denied twice: first by WorkSafeBC in March, 2009, and then by the board’s review division that November. At both levels, decision-makers determined the officer’s multiple soft-tissue injuries did not “arise out of and in the course of employment,” notes a June 30, 2010 ruling by the Workers’ Compensation Appeal Tribunal (WCAT) in Richmond, British Columbia.

Overturning the earlier decisions, WCAT vice-chair Julie Mantini concluded the worker was injured in the course of employment. His actions “were those the employer would have expected in the worker’s role as a transit police officer, and [he] received remuneration from the employer.”

The officer was paid four hours of overtime after informing his direct supervisors of the incident, Mantini reports. In addition, he was reimbursed for the replacement costs of a jacket and jeans damaged during the confrontation.

To determine compensability, WorkSafeBC spokesperson Megan Johnston says a claims adjudicator must consider the Rehabilitation Services and Claims Manual, Volume II. Policy item #14.00 outlines a whole host of indicators that may offer guidance, including the following:

– if the injury occurred in the process of doing something for the benefit of the employer;

– if the injury occurred while the worker was performing activities that were part of the regular job duties; and,

– if the risk to which the employee was exposed was the same as would be the case in the normal course of production.

WorkSafeBC’s policy notes that all listed factors “can be considered in making a judgment, but no one of them can be used as an exclusive test.”

Oscar Allueva, SCBCTAPS’s senior labour relations advisor, suggests that “the vice-chair really had to go outside the policy of WorkSafeBC to find in favour of the officer.”

OFF AND ON

On the face of it, “on duty” and “off duty” may seem self-explanatory. But that is not necessarily so in all circumstances.

Michael Fitzgibbon, a partner with Watershed LLP in Oakville, Ontario, says that in his home province, consideration of “during the course of employment” would be based on the place, time and activity of a worker.

“For most of us, ‘in the course of employment’ is pretty easy,” Fitzgibbon suggests. “We show up at our workplace, we work and if it happens at work, it’s an injury that would be covered,” he says.

The issue may not be quite so clear for some, including these transit police officers, “because the course of employment, or the scope of the employment, goes beyond the four walls of the employer’s building,” Fitzgibbon notes.

Paul Ceyssens, a British Columbia-based lawyer and author of Legal Aspects of Policing, notes in his book that confusion exists around whether or not there is a clear distinction between “on duty” and “off duty” for police employment.

The “on duty at all times” view is supported by a June, 2000 Court of Appeal decision in Ontario which overturned an earlier ruling. Originally, the trial judge had determined that a police officer was not executing his duties because he was privately employed to direct traffic outside of the premises of the company that had hired him.

Elsewhere in the country, the Court of Queen’s Bench of Alberta has expressed the view that, because of their office and position, police officers are “in effect ‘on duty’ 24 hours a day, 7 days a week,” while the Supreme Court of Nova Scotia has held that it “goes without saying that a police officer can be called out at any time and essentially is never off duty.”

Nova Scotia does not have transit police officers. Theresa Rath, public relations manager for the Halifax Regional Police, says that “our officers are considered on duty 24/7 when they are in our jurisdiction and, as such, they have full powers of a police officer.”

A transit police officer in British Columbia has the same qualifications and equipment – such as handcuffs, pepper spray, a baton and a gun – as any municipal police officer, Mantini writes. The worker has the jurisdiction to enforce the Criminal Code of Canada in “exigent circumstances” outside of transit territory or property, she notes.

Jurisdiction for transit police is generally limited to transit vehicles or property. However, “designated constables can provide police services when the incident is not directly related to the safety or security needs of transit passengers, transit employees and general public,” as long as they are not policing routinely in these circumstances, Mantini adds.

“The worker had the jurisdiction to arrest a person suspected of impaired driving outside of transit property or territory if the circumstances were such that the worker’s immediate attention was necessary to protect the safety of others,” the ruling notes.

Once it was established the transit police officer was on duty and had exercised his jurisdiction appropriately, Mantini notes, some criteria in the policy were met, thus fulfilling eligibility requirements for compensation.

A provision exists for pursuing a judicial review if WCAT is believed to have made an error in law, says Johnston, but WorkSafeBC has no plans to do so. SCBCTAPS and the Canadian Office & Professional Employees Union (COPE) filed appeals supporting one another, which were combined and submitted to WCAT. Mantini accepted the joint submission that “police officers can put themselves ‘on duty’ while not technically on a scheduled shift.”

While a valid distinction exists between on and off duty for most workers, “police officers are subject to greater regulation than other workers with respect to off-duty conduct, by virtue of the duties and powers of the office of constable,” Ceyssens relays in his book.

In support of that view, Mantini’s decision cites a WorkSafeBC ruling from 1993. The claim involved a police officer who was granted compensation benefits for an injury he sustained late one evening while apprehending a suspect trying to remove a stereo from a car parked in his driveway.

WorkSafeBC reasoned that the off-duty, casually dressed officer “objectively had embarked on a criminal investigation at the point at which he saw the open car door.” Once the officer “saw objective evidence of a crime in progress, his police officer role was engaged,” the decision notes.

DUTY CALLS

Any time a police officer puts himself on duty, says Allueva of SCBCTAPS, he is “under the microscope to a certain extent.” The officer is liable under the Police Act if he does something that is considered misconduct, he says.

Steve Milne, workers’ compensation app
eals and oh&s coordinator for Local 378 of COPE in Burnaby, British Columbia, agrees that members can be disciplined for off-duty conduct. “For WorkSafeBC or anyone else to say, ‘Well, you shouldn’t be entitled to benefits as a result of something that happens in that situation,’ was just wrong,” Milne says of the incident involving the transit officer.

There are factors that must be assessed before opting to put oneself on duty, says Allueva. These include whether or not the officer informed the local municipal police service before responding, and whether or not he presented his badge and identified himself as a police officer.

During the Christmastime incident two years ago, the transit police officer did call 9-1-1 and did identify himself.

After the truck stopped at the side of the road, Mantini writes in her ruling, the officer approached the vehicle and, seeing the driver with his eyes closed and his mouth open, thought the motorist had passed out. When the officer opened the passenger door, a creaking noise alerted the driver.

The worker identified himself and showed his badge, placing his knee on the seat in a bid to extract the keys from the ignition. Yelling profanities, the motorist grabbed the officer’s collar and punched him, managing to push the worker from the vehicle and put the truck in gear.

The vehicle ran over the transit officer’s right arm and then dragged him for a distance after his boot became caught on the passenger-side door. The truck eventually came to a stop and the worker approached, again identifying himself as a police officer.

Police back-up later arrived on scene and officers apprehended the motorist, whose blood alcohol level registered more than three times the legal limit. He was also in possession of about 80 grams of marijuana.

DEFINED LIMITS

Allueva calls the WCAT ruling a “good decision” generally for both transit police and police officers, but cautions that its reach likely has limits. He expects that a police officer or a designated constable working for transit police in Vancouver would likely be “able to use this case.” However, “if you’re a transit officer of some kind across the country, you may not have that authority.”

Brad Ross, a spokesperson for the Toronto Transit Commission, concurs, pointing out that special constables “currently don’t have the authority to pull over a motorist,” but do have the power of arrest and detention. (In August, talks were under way between representatives for the transit service and the Toronto Police Service regarding the powers and authority of special constables).

Tony Brown, senior communications coordinator for Ontario’s Ministry of Community Safety and Correctional Services in Toronto, explains that individually appointed special constables are peace officers subject to the parameters of the “period, area and purpose” of their appointments.

“Special constables provide only a supporting police role,” Brown says, noting that these workers are not permitted to possess firearms and prohibited or restricted weapons unless possession can be justified.

From an Ontario perspective, says Fitzgibbon, while the transit officer ruling “is interesting, it’s not binding.”

The transit police service in British Columbia was established by the Ministry of Public Safety and Solicitor General in 2004 to provide policing services in and around Vancouver’s transit system.

Allueva says that SCBCTAPS secured a letter from the ministry’s assistant deputy minister. Submitted as a new piece of evidence before WCAT, the letter, dated July 23, 2008, confirmed that in exigent circumstances, officers could provide services when the incident is not directly related to the safety and security of transit passengers or employees, he reports.

That clarification filled a void, Allueva suggests. “The fact that [transit officers] are police means they serve a higher public service… in protecting the public.” As such, “they may have to respond to situations outside of that area,” he says.

“Nobody would question, for example, if an off-duty copresponds to a bank robbery and apprehends the suspect or does so in a way that protects life and property,” Allueva says.

“There’s no way a court in that case isn’t going to say he responded to that situation because of his sworn oath to serve and protect.”

An SCBCTAPS officer’s oath states “to the best of my power, cause the peace to be kept and prevent all offences against the persons and properties of Her Majesty’s subjects,” COPE reports in a statement.

BEYOND POLICE

The implications of the decision remain to be seen. “Every police force in the country will have their own procedures on this,” says Michael Gendron, a communications officer for the Canadian Police Association in Ottawa. Since no general standard exists, “it really depends on the legislation in each of the provinces and municipalities,” Gendron suggests.

In the transit officer case, an argument that the worker decided to intervene for personal reasons does not hold water. “Here, the officer phoned 9-1-1,” says David Bannon, a lawyer with Ogilvy Renault LLP in Toronto. “This eliminated any factual issue as to whether or not he was actually engaged in ‘keeping the peace,'” Bannon contends.

For David Eby, executive director of the BC Civil Liberties Association in Vancouver, it would be a shock if a police officer opted not to intervene. “And if we ask police officers to intervene when they are off duty, the very least we can do is cover them for any injuries they sustain when they are acting on our behalf,” Eby says.

In fact, he is of the view that “any public servant who has a role that may require them to intervene while off duty should be properly covered if they are injured.”

But what about the potential influence for other workers? Fitzgibbon points to salespeople, whose duties and employment may include travelling from one customer location to another, or workers who must stay overnight in hotels while attending work-related business.

Of course, there are limits. If that travelling salesperson decides to take in a hockey game, and is injured at the event, “you would have taken yourself out of the scope or extent of your employment by engaging in that personal activity,” Fitzgibbon says.

Consider, as well, visiting homemakers, the umbrella of which includes companions, home support workers, housekeepers, personal aides and respite workers. These workers provide ongoing or short-term home support services for individuals and families during periods of incapacitation, convalescence or family disruptions, notes Human Resources and Skills Development Canada in Ottawa.

Each home, hospital or nursing home in which homemakers work is a workplace, says Gail Acton, executive director of Creative Career Systems, a job skills and employment training agency in Owen Sound, Ontario. As such, employers must pay into workers’ compensation and self-employed homemakers must pay an assessment. Anyone who does not pay into the scheme “is unable to collect,” Acton notes.

“There is a huge gap in [employees’] skill levels that reflects on the health and safety in homes, institutions and hospitals,” she argues. “The real challenge is in the training and various programs from community colleges, boards of education and private schools,” Acton adds.

And what about tree planters? Serena Ilott, office manager for Dorsey Contracting Inc. in Kenora, Ontario, says that accidents occurring while staying at a hotel would likely not be compensable, as they would be after hours, but if the employee was staying in a “camp” setting, he could possibly receive compensation benefits.

If a worker received either a scratch or a cut on a day off, Ilott could not envision how that would be covered. “But if that scratch got infected in the next week while working and required treatment, the adjudicator may allow benefits due to the nature of tree planting and being exposed to more dirt and grime, prevent
ing the ‘normal’ hygiene,” she suggests.

For his part, Eby says that he believes the WCAT decision could apply to emergency responders, such as firefighters and paramedics. Bannon agrees that “this decision could be extended to other emergency responders, particularly given the right background facts.” Other situations could arise “where an ‘off-duty’ employee could be engaged in their employment, but these would be very fact specific,” he adds.

Fitzgibbon suggests any employee who “has certain statutory obligations or duties,” may be affected by the ruling. “There are certain professions that are analogous to police officers [where] this concept might apply,” he says.

However, “I don’t think it would apply to a regular, run-of-the-mill private sector employee.”

And what about the implications for citizens – who also have the power of arrest  should they become injured, say, while helping to apprehend a bank robber?

“I think that it’s a pretty discrete category of people responsible around public safety issues that are properly affected by this ruling,” Eby says. “Any other discussion about expanding to citizens or other job types would be one discussion that would be properly had in the legislature,” he adds.

“You cannot use this [decision] as a private, ordinary citizen,” Allueva argues. “You’re not working for anybody.”

For Milne, the successful appeal simply “lays the groundwork” for future cases involving transit officers. “What we’re doing is building on for the next person to go through,” he says. The particulars of a case would likely dictate its outcome.

One thing, however, is very clear. “Lives were placed in danger because of the impaired driver’s conduct,” Mantini writes. Without the actions taken by the transit officer, circumstances may have proven more costly, indeed.

Jason Contant is editor of CANADIAN OCCUPATIONAL HEALTH & SAFETY NEWS.