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Lunchtime car accident a matter for WSIB, not courts, WSIAT rules

The Ontario Workplace Safety and Insurance Appeals Tribunal has ruled that an employee who was injured at lunchtime in a car accident was barred from suing the other driver in court.  Instead, he must go through the WSIB for his injury benefits.

The employee, a sales manager for a food company, was taking his son and a daughter of a colleague to lunch in his company vehicle when the other driver ran a red light and collided with the vehicle.  The other driver was employed with a company that was registered with the WSIB as a “Schedule 1” employer.

The WSIAT ruled that even though it was lunchtime, the injured employee was “in the course of his employment” because on the same trip he planned to see a client and pick up a cheque for his employer, which was a regular task for him.  The car trip had a “dual purpose” and was not solely personal time.  As such he was entitled to claim WSIB benefits, and barred from suing the other driver in the courts because the other driver was employed with a “Schedule 1” employer.

The employee claimed that his employer had registered with the WSIB after the accident, and therefore that he was entitled to sue the other driver in the courts.  The WSIAT ruled that even if his employer has registered with the WSIB after the accident, the employer was a “Schedule 1” employer, and therefore the employee was not entitled to sue in the courts.

Decision No. 1572/16 (Ontario Workplace Safety and Insurance Appeals Tribunal)

Lunchtime car accident a matter for WSIB, not courts, WSIAT rules

OLRB confirms 30-day hard-stop deadline for appealing Ontario MOL inspectors’ compliance orders

A recent Ontario Labour Relations Board decision confirms that the 30-day deadline for appealing Ministry of Labour health and safety inspectors’ compliance orders under the Occupational Health and Safety Act cannot not be extended.

An MOL inspector visited a mortuary and issued five compliance orders including an order to seal certain flammable liquids in sealed containers of not more than 23 litres and in a special metal cabinet.

The employer filed its appeal of two orders with the OLRB 40 days after the MOL inspector issued those orders – that is, ten days after the deadline.

The OLRB stated:

There is no provision in the Act that permits the Board to extend the time period prescribed by subsection 61(1) of the Act within which an appeal must be made to the Board.  That is, the Board does not have the discretion to relieve against appeals that are filed beyond the statutory 30 day time frame . . .  Quite simply, the Board does not have the jurisdiction to extend the 30 day time period provided by the Act to appeal an inspector’s order.

As such, the OLRB dismissed the appeal in respect of the two orders that were appealed late.

The decision is a reminder to employers to ensure that if they intend to challenge MOL inspectors’ compliance orders, the appeal must be filed with the OLRB within 30 days.

Ottawa Mortuary Services v Egrmajer, 2017 CanLII 11813 (ON LRB)

OLRB confirms 30-day hard-stop deadline for appealing Ontario MOL inspectors’ compliance orders

Arbitrator disagrees that grievor’s interference with air quality test was a deliberate act of sabotage and replaces termination with a lengthy suspension

In this recent Alberta arbitration case, the employer had been dealing with safety issues involving excessive carbon monoxide levels. Carbon monoxide readings in the employer’s facility were often beyond the regulatory levels and the employer had taken several steps to try to reduce them. The City of Calgary ultimately issued an order requiring the employer to either reduce the levels or face a potential plant closure.  The employer hired a consultant to perform the necessary testing. A two day test was set up that involved setting up stationary air quality monitors in the facility, as well as having individuals carry personal air quality monitors while they went about their daily work routine.

On the first day of the test, the grievor was seen moving one of the stationary monitors. When confronted, he replied that he had switched his personal monitor for the stationary one so that the test would take into account his personal exposure. He acknowledged that he did this without authorization. The employer treated this as a serious safety risk as he tampered with the testing process. He had also previously interfered with an air quality test. The employer considered his conduct to be a violation of the company’s safety responsibilities and of its Vision, Mission, Values and Objectives policy. The employer took the position that the grievor had fundamentally breached the trust relationship between them and terminated his employment. The union grieved the termination.

The arbitrator found that the evidence established that the employer was committed to resolving the air quality issue. However, he did not accept that the grievor’s conduct was an act of  sabotage and noted that the grievor’s conduct did not create a safety violation or threat. Nevertheless, the arbitrator acknowledged that the grievor had interfered with a planned scientific test, potentially corrupting its results, and that his conduct warranted discipline. The question was whether termination was appropriate.

The arbitrator noted that the employer’s policies required employees to be vigilant in ensuring safety. The evidence also established that another employee had previously removed a monitor without authorization but was not disciplined. The arbitrator also considered that the grievor had not been made aware of the potential consequences of his actions before he moved the monitor and when he appreciated the implications of what he had done, he admitted his mistake and apologized. Ultimately, the arbitrator held that the employer had not established that the grievor had deliberately tried to sabotaged the tests. What the evidence did establish is that the grievor knew, or ought to have known, the significance of moving the monitor without authority. This conduct was serious and was deserving of appropriate discipline which took into account two previous disciplinary offences.

After reviewing all of the circumstances, the arbitrator  allowed the grievance as he was not persuaded that the employment relationship had been irretrievably severed. He substituted a lengthy, 90 day, suspension, without pay, for the termination.

Cement, Lime, Gypsum And Allied Workers (International Brotherhood Of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers And Helpers, Local Lodge D345) v Certainteed Gypsum Canada Inc., 2017 CanLII 10827 (AB GAA)

Arbitrator disagrees that grievor’s interference with air quality test was a deliberate act of sabotage and replaces termination with a lengthy suspension

Threats of violence, one day after “sensitivity training”, get worker fired for cause. He “may have a problem with women in the workplace, especially women managers”, says arbitrator

A worker who said, “If anything ever happened, like losing my job, I’d have no problem coming in here and shooting them”, a day after receiving sensitivity training relating to workplace violence, was dismissed for cause, an arbitrator has decided. The worker, a fare collector, had taken the training after giving the finger to an “obstreperous customer”.

He made the “shooting them” threat while speaking with a coworker about the materials from the training session, to which he remarked, ” Can you believe this?”  After the coworker tried to make light of the situation, the worker said that he would kill only managers, not union employees.

The coworker reported the threat to management, who then fired the worker, who filed a union grievance.

The arbitrator found that the worker had made the threat, despite the worker’s denial.
The coworker had no motive to make false allegations. The two employees had had a friendly relationship.

Despite the worker’s 25 years of service, the arbitrator decided that the employer had just cause for dismissal. The worker never admitted the threats nor apologized. He had a disciplinary history including discipline for an incident in which he was unable to control his anger. Significantly, he made the threats one day after taking sensitivity training designed to help him control his anger and understand the seriousness of workplace violence. He also had an unfounded view that female employees were conspiring to get him, showing that he “may have a problem with women in the workplace”.  All of these factors “did not bode well for the future” were he to be reinstated.

Toronto Transit Commission v Amalgamated Transit Union, Local 113, 2017 CanLII 11071 (ON LA)

Threats of violence, one day after “sensitivity training”, get worker fired for cause. He “may have a problem with women in the workplace, especially women managers”, says arbitrator

“Safety Engineering Letter of Opinion” dealing with OHSA obligations disallowed by court in civil lawsuit

A “Safety Engineering Letter of Opinion”, styled as an “expert report” and covering Occupational Health and Safety Act obligations, was struck and its author was prohibited from testifying at the trial of a civil lawsuit.

The lawsuit arose from an accident involving the towing of a disabled motor vehicle at a scrapyard. Some defendants sought to have the author of the Safety Engineering Letter of Opinion testify about obligations under the OHSA, apparently to show that a co-defendant (the operator of the scrapyard) breached its OHSA obligations and therefore was negligent.

The court stated that the Safety Engineering Letter of Opinion drew “legal conclusions” that were beyond its author’s expertise. There was no “specialized standard of care” for which expert evidence was required. To the extent that the OHSA was relevant in the lawsuit, the parties could direct the court to look at the OHSA’s provisions.

Interestingly, the court stated at paragraph 34:

“[The Safety Engineering Letter of Opinion] raises no other statutory or common law duties which the AIM defendants may have owed to Awada [the injured party]. The OHSA did not apply to Awada while he was on AIM’s weigh scale. He was a third-party. The OHSA applies only to workplace relationships between employers and workers. Any duties owed by the AIM defendants to Awada are governed by the Occupiers Liability Act, R.S.O. 1990, c. O.2 and the common law, not by the OHSA. Both Awada and Wehbe have pleaded the Occupiers Liability Act and the Negligence Act; they have not made any allegations with respect to the OHSA.”

The court noted that the scrapyard operator had produced materials relating to its Emergency Response Procedures, Occupational Health and Safety Policy, Safety Enforcement Policy, and Workplace Responsibilities. The court stated that if there was an allegation that the scrapyard operator was negligent in failing to provide one of its employees with appropriate safety training so as to ensure that he was a “competent person”, those documents can be referred to.  The parties could also ask the trial judge to direct the jurors to the relevant provisions of the OHSA and regulations without any need to consider the Safety Engineering Letter of Opinion.

In the result, the court struck the Safety Engineering Letter of Opinion and prohibited its author from testifying as a witness at trial.

Awada v Glaeser, 2017 ONSC 1094 (CanLII)

 

“Safety Engineering Letter of Opinion” dealing with OHSA obligations disallowed by court in civil lawsuit

MOL Clarifies its Interpretation of “Critical Injury”

The Ontario Occupational Health and Safety Act requires employers to report fatalities and “critical injuries” to the Ontario Ministry of Labour.

The Ministry of Labour has recently released clarification on its interpretation of “critical injury” – in particular, clauses 1(d) and (e) of the definition of “critical injury”.   It is important to note that this is not an amendment to the definition of “critical injury”; rather, it is an update to the Ministry of Labour’s internal interpretation, which interpretation courts do not have to accept.

Section 1 of Ontario Regulation 834 under the OHSA defines “Critical Injury” as an injury of a serious nature that,

(a) places life in jeopardy,
(b) produces unconsciousness,
(c) results in substantial loss of blood,
(d) involves the fracture of a leg or arm but not a finger or toe,
(e) involves the amputation of a leg, arm, hand or foot but not a finger or toe,
(f) consists of burns to a major portion of the body, or
(g) causes the loss of sight in an eye.

Clause 1(d) states that a “critical injury” includes the fracture of a leg or arm but not a finger or toe.  The Ministry of Labour has clarified that it interprets the fracture of a leg or an arm to include the fracture of a wrist, hand, ankle or foot.  In addition, while clause 1(d) excludes the fracture of a finger or a toe, the Ministry of Labour takes the position that the fracture of more than one finger or more than one toe does constitute a “critical injury” if it is an injury of a serious nature.

Clause 1(e) provides that a “critical injury” includes the amputation of a leg, arm, hand or foot but not a finger or toe.  While the amputation of a single finger or single toe does not constitute a critical injury, the Ministry of Labour interprets the amputation of more than one finger or more than one toe to constitute a “critical injury” if it is an injury of a serious nature.

Notwithstanding the fact that the Ministry of Labour’s interpretation of “critical injury” is just that – the Ministry’s interpretation, not the law – employers should be aware of the Ministry’s interpretation in order to avoid a failure-to-report charge under the OHSA.

The Ministry of Labour’s update can be found here.

MOL Clarifies its Interpretation of “Critical Injury”

Appeal Court Revives Class Action against the WSIB

The Ontario Court of Appeal has revived a proposed class action brought by the appellant, Pietro Castrillo, on behalf of a class of injured workers whom he alleges have been wrongfully denied the full extent of benefits to which they were entitled under the Workplace Safety and Insurance Act, 1997 (the “Act”), by the respondent the Workplace Safety and Insurance Board (“WSIB”).  The class action alleges misfeasance in public office, bad faith, and negligence on the part of the WSIB.

The class action claims that injured workers were “denied the full extent of benefits to which they were entitled” as a result of a “secret policy” implemented by the WSIB, which policy adopted a broader interpretation of the term “pre-existing impairment” to include asymptomatic pre-existing conditions, which had previously been excluded.   The appellant claims that this change in interpretation was illegally made in order to save WSIB money by reducing injured workers’ non-economic loss awards.  The class action seeks declarations that the WSIB “perpetrated a misfeasance in public office” in how it handled the non-economic loss claims of the class, “breached its duty to act in good faith” to the class, and, in the alternative, was negligent.  According to the Toronto Star, the alleged “secret policy” was in force between 2012 and 2014.

Two years ago, the WSIB successfully brought a motion to strike the statement of claim, asserting there was no cause of action, and that the court has no jurisdiction over the subject matter of the class action due to the privative clause in the Act, which gives the WSIB exclusive jurisdiction to examine, hear and decide all matters and questions arising under the Act. The motions judge granted the motion to strike the statement of claim, without leave to amend.  The motions judge held that the WSIB’s decisions to reduce the class members’ non-economic loss benefits were “legal decisions that fall within the four corners of the privative clause”, and were therefore beyond court challenge.

The appellant appealed the motion judge’s ruling to the Court of Appeal.  On appeal, the court considered two issues: 1) were the causes of action properly pleaded, and 2) does the privative clause in the Act prevent the appellant from pursuing the causes of action.  The Court of Appeal held that, except for the allegation of bad faith, the claim was properly pleaded, and the privative clause in the Act does not prevent the appellant from pursuing claims of misfeasance in public office and negligence against the WSIB.  As a result, the class action against the WSIB has been granted permission to proceed.

The decision of Court of Appeal may be accessed here.

Appeal Court Revives Class Action against the WSIB

“Repeated exposure to supervisor constituted a dangerous situation”, employee arguing

The Federal Court has breathed new life into a government employee’s claim that “repeated exposure to her supervisor constituted a dangerous situation” that justified her work refusal under the Canada Labour Code.  The case is a good example of how workplace harassment / violence complaints that appear trivial on their face can turn out to cause the employer significant headaches.

The employee was unhappy with the employer’s investigation.  The matter was then referred to a federal Labour Affairs Officer who concluded that the existing situation constituted a danger for the employee.  He recommended that the Labour Program’s Regional Director order the employer to take immediate action to correct the situation.

However, the Regional Director “refused to investigate” the work refusal, reasoning that the employee’s concerns would be more appropriately dealt with under the Public Service Labour Relations Act because of the grievances that the employee had already filed under that Act.  The Regional Director told the employee that she was no longer entitled to refuse to be in the direct or indirect presence of her supervisor.

The court decided that the Regional Director’s decision was unreasonable.  Given that the Labour Affairs Officer had already investigated the work refusal, the Regional Director had only three options under sections 129(4) and 128(13) of the Canada Labour Code: “1) agree that a danger exists; 2) agree that a danger exists but consider that the refusal puts the life, health or safety of another person directly in danger or that the danger is a normal condition of employment; and 3) determine that a danger does not exist.”  The court also stated that even if the Labour Affairs Officer had not already investigated the work refusal, the Regional Director’s decision “was not justified, transparent or intelligible as it lacked any explanation as to why” the grievance under the Public Service Labour Relations Act was a more appropriate process to deal with the employee’s allegations of danger.  It was also unclear as to why the Regional Director diverged from the Labour Affairs Officer’s decision.

As such, the court concluded that “the Regional Director’s decision lacks justification, transparency and intelligibility and as such, it is unreasonable and does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.

The court set aside the decision of the Regional Director and sent the matter back to the Minister of Labour or her delegate for reconsideration.  The court awarded the employee $4,500.00 in legal costs.

Karn v. Canada (Attorney General), 2017 FC 123 (CanLII)

“Repeated exposure to supervisor constituted a dangerous situation”, employee arguing

Is compliance with industry standards enough to establish due diligence? Alberta Court of Appeal set to consider this issue.

We recently wrote about the decision in R. v. Precision Drilling Canada Ltd., where the Appeal Judge set aside the trial verdicts and ordered a new trial in a workplace fatality case. The Crown sought leave to appeal that decision to the Alberta Court of Appeal.

In the leave to appeal decision, the Alberta Court of Appeal stated that workplace safety was of significant public importance to justify a further appeal. It granted leave to the Crown to advance its appeal on two questions that had not yet been settled by Alberta’s highest court. Those questions were:

  1. Did the Appeal Judge err in law by requiring the Crown, as part of the actus reus of the offence, to negate due diligence or prove negligence?
  2. Did the Appeal Judge err in law in her interpretation and application of the due diligence test?

On the first issue, the Crown argued that the Appeal Judge’s decision required the Crown to prove negligence, or negate due diligence in order to prove the elements of the offence under section 2 of the Occupational Health and Safety Act, being the general duty on an employer to ensure the health and safety of its workers. The Court of Appeal noted that as the law currently stands, it was arguable that in order to prove a breach under section 2, the Crown need only prove the fact of employment, the worker’s engagement in the employer’s work, and the worker’s injury or death. It would then be up to the employer to prove due diligence. In this case, the Appeal Judge appeared to require the Crown to prove that the employer committed a wrongful act. As such, the Court of Appeal found that the Crown’s position on this point had merit.

On the second issue, the Crown argued that the Appeal Judge erred in strictly comparing the employer’s practices to generally accepted standard practices in the industry, rather than taking a broader view of what the employer reasonably should have done. The Crown’s position was that while industry standards may set a minimum level of care, they did not determine due diligence. The Court of Appeal agreed that the Appeal Judge’s decision arguably used a due diligence test that required the Crown to disprove compliance with industry standards and government regulation and did not apply the proper foreseeability test or broader due diligence test.

As such, the Alberta Court of Appeal agreed that the appeal could proceed on those two issues. It will be interesting to see how the Court of Appeal ultimately decides these questions and brings clarity to these two important issues. Stay tuned.

R. v. Precision Diversified Oilfield Services Corp., 2017 ABCA 47 (CanLII)

Is compliance with industry standards enough to establish due diligence? Alberta Court of Appeal set to consider this issue.

Industrial safety specialist properly fired for lying on security application

An Ontario judge has decided that Atomic Energy of Canada Limited had just cause to dismiss an industrial safety specialist who misrepresented his employment history in a security application.

AECL operates nuclear research facilities.  It runs security checks that are mandated by the Government of Canada, including obtaining site security clearances for new employees.

AECL received harassment complaints against the employee.  During the investigation, it came out that the employee had been employed at the time AECL hired him. However, during the hiring process, he had indicated on a security questionnaire, and in an e-mail when specifically asked, that he was unemployed.  This was false. AECL fired him.

The employee sued for wrongful dismissal.  In the course of the lawsuit, he offered five different explanations for why he lied to AECL about his employment status.

The court decided that AECL had just cause to dismiss the employee.  AECL was not a “regular employer”, and the pre-employment security checks were “tied to the security of the nation”.  The court stated, “It is in this national security context that the plaintiff misled his employer”.  He had “engaged in a most serious form of dishonesty and, standing on its own, it was irreconcilable with sustaining his employment relationship with AECL.  It is dishonesty that went to the core of the employment relationship and he was terminated with cause.”

Aboagye v Atomic Energy, 2016 ONSC 8165 (CanLII)

 

Industrial safety specialist properly fired for lying on security application

Injured worker’s claim lacked the “something more” needed to establish personal liability against employer’s directors

The Alberta Court has confirmed that in order for a director of a corporate employer to be found personally liable for damages sustained by one of the corporation’s workers in a workplace accident, there must be “something more, sufficient to establish independent tortious liability.”

This case arose from a workplace accident. The plaintiff worked for an oil tank repair company. He was working on a tank with a co-worker when the tank exploded, killing the co-worker and injuring the plaintiff. The Workers’ Compensation Act prohibited the plaintiff from suing his corporate employer. However, the directors of the corporation, the wife and sister of the deceased co-worker, were not considered workers nor employers under the Workers’ Compensation Act and so were not protected from suit.

The plaintiff sued the two sole directors, alleging that the accident was caused by their negligence. The particulars of negligence pled included that they had failed to ensure that the company’s tanks were properly inspected and maintained, had failed to ensure adequate safety procedures were in place and being properly followed, including safety measures required under the Occupational Health and Safety Act, and had failed to ensure workers were properly trained. The directors applied to have the claim against them summarily dismissed.

The application was initially dismissed by a Master and the directors appealed. The Justice hearing the appeal noted that the Master relied heavily on the Alberta Court of Appeal’s 2006 decision in Nielsen (Estate of) v. Epton, where a director was found personally liable following a workplace fatality. However the Justice found that case was distinguishable on its facts because in Epton, the director was directly involved in the work that led to the accident. In this case, there was no evidence that the directors had any involvement with the work being undertaken on the tank. The deceased worker (the husband of one of the directors) and the husband of the other director, were primarily in charge of running the company. The wives (the directors) had no operational involvement in the work being done by the plaintiff and there was no evidence that the plaintiff had any need or expectation they would give him any instructions on how to do his work.

The Justice confirmed that Epton did not stand for the proposition that a director who fails to carry out the duties of a director, or does so negligently, is automatically personally liable. The Justice accepted that the directors may have been negligent in their corporate capacities, but that was not enough to create independent tortious liability. Further, the Justice agreed with the directors that there was no causal link between their alleged negligence as directors and the plaintiff’s injury. There was no evidence that they were acting in a personal capacity or that what they did or did not do in their personal capacities was a material cause of the plaintiff’s injuries. As such, it was appropriate to grant summary judgment dismissing the claim against the defendants.

While the directors fared well in this case, this decision serves as a reminder that with the proper facts, directors may be liable to a worker for a workplace accident, even where the corporate employer is protected by the Workers’ Compensation Act, unless the directors have personal workers’ compensation coverage.

Bower v. Evans, 2016 ABQB 717 (CanLII)

Injured worker’s claim lacked the “something more” needed to establish personal liability against employer’s directors

Church defeats lawsuit by volunteer after stepladder accident. Duelling OHS experts’ testimony considered

A volunteer has lost his lawsuit against a church after he fell off a stepladder he was using at the church.

The volunteer was a parishioner at the church who agreed to help with painting.  He claimed that the church’s negligence led to the accident.  He argued, in support of his negligence claim, that the church violated regulations under the Occupational Health and Safety Act.

The court heard expert testimony from two occupational health and safety experts.  The court rejected one expert’s testimony, which had been “denuded of efficacy” on cross-examination. The court accepted the other expert’s testimony. That expert’s opinion was that the volunteer was not a “worker” under the OHSA; that the regulations under the OHSA did not apply; that because of the precautions taken by the church, even if the regulations did apply, the church did not breach them; and that had the church been prosecuted under the OHSA, the charges would have been dismissed.

It was important to the court that the volunteer had not been asked to install trim but took it upon himself to do so, contrary to instructions. He took the “variation in risk” upon himself.  He fell off the stepladder when working on the trim, not while painting.

With respect to the OHS experts’ testimony, the court noted:

“The exercise [of hearing testimony from the OHS experts] was beneficial.  The standards articulated in the OHSA are for the most part an attempt to legislate common sense.  These standards do not apply to volunteers; however, the analysis applied by an inspector in assessing a set of circumstances for the purposes of statutory compliance has similarities to the analysis of compliance with the occupier’s atattory [sic] standard of care and the plaintiff’s assumption of risk.”

The court, in dismissing the volunteer’s lawsuit against the church, concluded:

“The defendant provided a stable ladder, a flat and stable working surface, appropriate ladder use instruction and maintained general compliance observations over many weeks and hours . . .

“Even if it could be said that the tableau presented an objectively unreasonable risk of harm, it was the plaintiff who undertook this task of his own volition contrary to instructions from Jarvis.  He assumed the variation in risk.  The defendant asked for paint volunteers.  The plaintiff was not asked to install trim. This work was beyond Jarvis’ purview . . .”

Baltadjian v The Roman Catholic Episcopal Corporation for the Diocese of Alexandria, 2017 ONSC 61 (CanLII)

Church defeats lawsuit by volunteer after stepladder accident. Duelling OHS experts’ testimony considered

Court refuses small-town mayor’s OHSA-based request for injunction prohibiting resident from harassing her

An Ontario judge has rebuffed a small-town mayor’s attempt to use the Occupational Health and Safety Act‘s violence and harassment provisions to obtain a court order stopping a town resident from harassing her.

The mayor claimed that the resident had engaged in workplace harassment and violence, contrary to the OHSA, by sending her numerous “increasingly abrasive” letters and emails in which he made pejorative statements about the mayor and made comments about the “unprofessional conduct” of the town. The resident was apparently “interested in horticulture and town beautification” and had concerns about the management of the town’s affairs.

The court decided that the evidence did not support a finding that workplace violence had occurred.  There was just one allegation that the resident had verbally harassed the mayor during an encounter at the town health unit, where the mayor held a full-time job, in 2014.  Also, the judge stated that it was doubtful that the harassment policy or the OHSA’s harassment provisions were ever intended to apply to persons who are not part of the “workplace”.  The judge decided that in this case, the resident was not a coworker, so the harassment policy did not apply to his actions.

The mayor and the town were therefore not entitled to an “injunction” order from the court prohibiting the resident from communicating with, harassing or publishing any information about the mayor or any other town councillor or employee.

Rainy River v Olsen, 2016 ONSC 8009 (CanLII)

Court refuses small-town mayor’s OHSA-based request for injunction prohibiting resident from harassing her

Psychological harassment arbitration adjourned because employee awarded worker’s compensation benefits

An employee who received worker’s compensation benefits for “psychological injury due to harassment” has had her union harassment grievance, against her employer and supervisor, adjourned.

The employee claimed that her supervisor had harassed her at work by “singling her out, questioning her abilities, criticizing her use of sick leave, threatening her job, refusing to provide her equivalent training provided to others, making serious allegations with respect to her work performance, and accusing her of killing patients, in circumstances in which the employer knew or reasonably ought to have known these events were occurring.”

In her union grievance, she asked the labour arbitrator to remove her supervisor from the workplace, and claimed damages totaling $100,000 from him and her employer.

The arbitrator noted that the Saskatchewan Workers’ Compensation Act provides that “No employer and no worker or worker’s dependant has a right of action against an employer or a worker with respect to an injury to a worker arising out of and in the course of the worker’s employment”.  The Act also provided that the Workers’ Compensation Board had exclusive authority to decide whether, in any particular case, an employee did not have the right to sue the employer in respect of the injury.

The arbitrator, relying on a previous court decision in another case, decided that the WCB, and not the arbitrator, had authority to decide whether the employee could advance the union grievance claiming damages for the psychological injury allegedly caused by harassment. The employer had already applied to the WCB for a decision on that issue. The  arbitrator urged the parties to seek a “timely decision” from the WCB.  The arbitrator adjourned the grievance arbitration until the WCB had decided whether the employee had the right to claim damages at arbitration for her workplace psychological injury.

Saskatoon Regional Health Authority v SEIU West (Erosa-lopez), 2016 CanLII 95946 (SK LA)

Psychological harassment arbitration adjourned because employee awarded worker’s compensation benefits

Work refusal due to second-hand smoke was not properly investigated: arbitrator

A correctional officer with sinusitis and sensitivity to second-hand smoke was entitled to have her work refusal investigated by prison management, an arbitrator has decided.

Although the prison was a non-smoking facility, prisoners would smuggle in contraband cigarettes. There was an “informal arrangement” in place under which the correctional officer could be moved to a different area of the prison if she detected second-hand smoke.

At the time of her work refusal, there was labour unrest at the prison including “mass work refusals”. She refused to work because she “believed that she would be exposed to second-hand smoke”.  She was directed to wait in the lunchroom, where she waited several hours and heard nothing from management.  She, however, made no concerted effort to contact management about the status of her work refusal.

The arbitrator stated:

” . . . I fail to see why the Employer could not have initiated and completed an investigation of CO Gough’s work refusal during the course of her 12-hour shift on September 7, 2014.  It is not clear to me for example why a stage 1 investigation could not have been conducted by the Employer later in the afternoon, rather than the information gathering meeting that was held by DS Large.  CO Gough’s single work refusal was not that complicated and I would have thought that an investigation of it would have been relatively brief and could have been completed before the end of her shift.  In considering all of the circumstances of that day, I find that the Employer’s failure to conduct an investigation of CO Gough’s work refusal on September 7, 2014, was not reasonable and that this failure amounts to a contravention of section 43 (3) of OHSA.”

The arbitrator, however, rejected the union’s argument that the way the employer handled the work refusal constituted harassment.  There was no evidence of bad faith on the part of the employer.

Lastly, the arbitrator decided that the proper remedy was simply “declaratory relief”: a declaration from the arbitrator that management failed to investigate the work refusal and thereby violated the Occupational Health and Safety Act.  However, the correctional officer did not experience any harm that would justify an award of monetary damages.

Ontario Public Service Employees Union (Gough) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

 

Work refusal due to second-hand smoke was not properly investigated: arbitrator

Christmas party incident of sexual harassment leads to dismissal, then reinstatement, of firefighter

A male firefighter who had been “drinking heavily” has won reinstatement to his job after being fired for sexually harassing a female coworker at the fire department’s Christmas party.

The Christmas party was held at a restaurant. The male firefighter, a Captain at a fire station, told the female colleague that he thought she would get pregnant if she transferred to his fire station.

The female colleague later alleged that he had said that she would get raped and become pregnant if she transferred to his fire station.  The arbitrator did not accept this allegation and concluded that the female firefighter had misheard or misunderstood the male firefighters.  The union, however, admitted that if the arbitrator found that the male firefighter had threatened the female firefighter with rape, the City would have just cause to fire him.

The arbitrator stated:

“I accept the Grievor’s evidence that he does not recall using the word [“rape”] and it would not be something that he would say. I acknowledge that the Grievor had a number of drinks that night and was being offensive. But the Grievor’s comments were more directed towards Firefighter A [the female firefighter] being involved socially or sexually with other firefighters, and not directed at Firefighter A being assaulted.

“While it is true that the Grievor clearly mentioned Firefighter A getting pregnant, he was also talking about rumour and gossip surrounding her relationship with other firefighters.”

According to the arbitrator, even if the male firefighter had used the word “rape”, there was clearly no intention of uttering a threat, and the female firefighter testified that she did not believe that the male firefighter was threatening to rape her.  The arbitrator stated, “I believe it is more probable than not that the Grievor only made some offensive comments about Firefighter A’s involvement with Firefighter Hefferman.”

In the end, the arbitrator reinstated the male firefighter with a three-month unpaid suspension, and demoted him to the rank of first class firefighter for a period of time to be agreed by the parties. The arbitrator also ordered that the male firefighter participate in “sensitivity and anti-harassment training”.

Corporation of the City of Brampton v Brampton Professional Firefighter’s Association, Local 1068, 2016 CanLII 87624 (ON LA)

 

Christmas party incident of sexual harassment leads to dismissal, then reinstatement, of firefighter

Subway operators fighting decision to staff trains with only one operator, claiming unsafe

Three Toronto subway operators engaged in a work refusal after the Toronto Transit Commission decided to staff subway trains with only one operator (instead of two).

Their union is now fighting a Ministry of Labour inspector’s decision that the staffing arrangements were “not likely to endanger” and therefore did not justify the work refusal under the Occupational Health and Safety Act.

The union appealed the MOL inspector’s decision to the Ontario Labour Relations Board, and also grieved the TTC’s one-operator decision under the collective agreement.

The union asked to adjourn the OLRB appeal pending the outcome of the grievance proceedings. The employer opposed the adjournment. The OLRB granted the adjournment due to the grievance proceedings.   Although it was unclear as to whether the issues before the OLRB and the grievance arbitrator were the same, the OLRB stated that if the arbitrator ultimately decided not to hear aspects of the grievance that overlap with the OLRB appeal, the OLRB would relist the OLRB appeal for hearing.

We will continue to monitor the reported decisions in this case and will provide updates on this blog.

Amalgamated Transit Union, Local 113 v Toronto Transit Commission, 2016 CanLII 90788 (ON LRB)

 

Subway operators fighting decision to staff trains with only one operator, claiming unsafe

The death of an employee due to the collapse of trench walls: Superior Court confirms the employer’s committal for trial for manslaughter

In the recent decision Fournier c R.[1], the Superior Court of Quebec confirmed that an employer’s violations of health and safety legislation can be the underlying unlawful act on which is based a criminal charge of manslaughter.

On April 3, 2012, Mr. Fournier, who is the owner of an excavation firm, was replacing a sewer line with one of his employees when the trench walls collapsed, killing the employee. As a result, Mr. Fournier was personally charged with criminal negligence causing death[2] and with manslaughter. For both offences, the maximum punishment is imprisonment for life.

Following the preliminary inquiry, the accused was committed to trial on both charges. While he did not contest the part of the decision relating to the offence of criminal negligence causing death, he challenged his committal to trial for the charge of manslaughter.

In this case, the charge of manslaughter is based on section 222(5)a) of the Criminal Code which provides that a person commits culpable homicide when he causes the death of a human being by means of an unlawful act. At the preliminary inquiry hearing, the prosecution led evidence to show that while he was in charge of the work to replace the sewer line, Mr. Fournier did not solidly shore the banks of the trench with quality material in accordance with the plans and specifications of an engineer as required by section 3.15.3 of the Safety Code for the construction industry (the “Safety Code”). According to section 236 of An Act respecting occupational health and safety (the “Act”), the failure to fulfill this obligation is a strict liability offence. The judge presiding at the preliminary inquiry accepted the Crown’s argument that this failure could constitute the underlying “unlawful act” referred to in section 222(5)a) of the Criminal Code.

Mr. Fournier challenged this decision by way of judicial review, arguing that a strict liability offence cannot constitute an “unlawful act” as per section 222(5)a) of the Criminal Code.

The Superior Court refused Mr. Fournier’s argument and rather concluded, following a thorough review of the relevant case law and doctrine, that the underlying unlawful act in a charge of manslaughter can be a strict liability offence, including one related to occupational health and safety.

It clarified, however, that in such circumstances, and unlike a typical prosecution under occupational health and safety legislation, it is not the accused who bears the burden to prove that he has taken all the reasonable steps in the circumstances to avoid or prevent the occurrence of the prohibited act. Rather, it is for the Crown to prove, beyond a reasonable doubt, that the conduct of the accused constitutes a marked departure from that of a reasonable person. More specifically, to satisfy its burden of proof, the prosecution must establish all of the following elements:

  1. The accused committed a strict liability offence which was objectively dangerous;
  2. The conduct of the accused constituted a marked departure from the standard of a reasonable person in the same circumstances; and
  3. Taking in consideration all the circumstances of the case, a reasonable person would have foreseen the risk of bodily harm.

In application of the above-mentioned principles, the Superior Court found that there was sufficient evidence in this case to confirm the committal to trial. According to the judgment, the Crown offered prima facie evidence for each of the three criteria: 1) the failure to solidly shore the banks of a trench is a strict liability offence according to the Act and the Safety Code and is also objectively dangerous conduct; 2) the breach of this obligation is a marked departure from the standard of a reasonable person in the same circumstances; and 3) a reasonable person would have foreseen the risk of not solidly shoring the banks of the trench.

In conclusion, this decision should bring to the employers’ minds the very serious consequences that failure to comply with occupational health and safety obligations can have on their employees, but also on their own life. From now on, employers must be aware that if an employee dies in such context, not only can they be charged with criminal negligence, but also with manslaughter.

[1] 2016 QCCS 5456

[2] The charge of criminal negligence causing death is based on section 219 of the Criminal Code on the alleged failure of Mr. Fournier to respect the obligation set out in article 217.1 of the Criminal Code, which provides that “everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.” This provision of the Criminal Code has been in force since 2004, but has not been invoked in many prosecutions so far.

The death of an employee due to the collapse of trench walls: Superior Court confirms the employer’s committal for trial for manslaughter

Trial judge’s misapprehension of the evidence results in new trial for workplace fatality

We previously posted about the trial decision in R. v. Precision Drilling Ltd., 2015 ABPC 115 (CanLII), where the court found the employer guilty of two charges arising from a workplace fatality at a drilling rig. The employer was convicted of failing to ensure the safety of the worker, and failing to eliminate an identified hazard. The employer appealed the convictions.

At trial, one of the issues was the question of industry standards, in particular, the use of an interlock/warning device. On appeal, the court noted that the trial judge had correctly stated that compliance with industry standards and legislation would not, of itself, be enough to establish due diligence. In this case, the appeal court found that the evidence was that the employer did follow industry standards. The trial judge however found that the interlock device was an engineered solution in place with other industry competitors, that could have been used to avoid the accident. The trial judge relied on this in concluding that the employer had not established the defence of due diligence.

The appeal court found that the trial judge’s conclusion about the competitor’s use of the interlock device was contrary to the evidence. In fact, the evidence at trial was that only one competitor had an interlock device on one rig, and that rig was a different type of rig from the rig in question. Further, the Occupational Health and Safety inspectors were not aware of the interlock device prior to the accident. Therefore, the appeal court determined that the trial judge’s misapprehension of the evidence was a palpable and overriding error.  It also found that the trial judge made a number of additional errors in the treatment of the evidence which undermined the verdict.

Further, while the appeal court did not find any error in the trial judge’s decision to admit evidence of the employer’s post-incident conduct at trial relating to its development and use of an interlock device after the accident, the trial judge’s use of that evidence was not supported by the evidence. The appeal court found that, in addition to the error about the industry’s use of the interlock device, there was no evidence that the competitor’s “small bit of common-sense engineering” had an effect on the drilling industry. The interlock device had not been adopted in the Occupational Health and Safety Code and government inspectors did not shut down rigs that did not have the interlock device.

The appeal court allowed the appeal on both counts, setting aside the trial verdicts. Because there was admissible evidence on each of the elements of the charges, rather than entering an acquittal, the appeal court ordered a new trial.

R. v. Precision Drilling Canada Ltd., 2016 ABQB 518 (CanLII)

 

Trial judge’s misapprehension of the evidence results in new trial for workplace fatality

Labour Board dismisses safety complaint filed 2.5 years after the fact

A worker who filed a safety-reprisal complaint 2.5 years after the events complained about has had his complaint dismissed for delay.

The worker’s complaint related to events that took place in June of 2013.   He admitted that he had not been disciplined in respect of those events but said that he still may be.

The Ontario Labour Relations Board dismissed his complaint due to delay, stating that 2.5 years was an unreasonable delay “by any measure”.  Further, since the employee had not yet been disciplined, his complaint was premature.  In addition, the employee had agreed to his reassignment to a new location so he could not now complain that the reassignment was punishment for raising safety issues.

There is no “limitation period” for filing a complaint with the OLRB claiming reprisal for raising safety issues, but this decision shows that the OLRB will nevertheless throw out complaints that are filed too late.

John Nahirny v Liquor Control Board of Ontario, 2016 CanLII 88256 (ON LRB)

 

Labour Board dismisses safety complaint filed 2.5 years after the fact