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GHS Update: Government of Canada introduces new regulations for protection for workers handling hazardous materials

The Government of Canada has announced that new Occupational Health and Safety regulations under the Canada Labour Code, which are intended to better protect federally regulated workers who use, handle and store hazardous products in the workplace, will be published in Part II of the Canada Gazette.

As we have written about in our previous blog posts, these amendments are part of a national and international initiative to implement the “Globally Harmonized System of Classification and Labeling of Chemicals”, known as “GHS”, which is a worldwide standard of communicating the hazards associated with workplace hazardous chemicals. The Government notes that, in addition to Canada, the United States, Australia, the European Union, and China, among others, are already in the process of implementing the GHS.  Applying an international standard for workplace hazardous chemicals will streamline hazard information among suppliers from many of Canada’s trading partners, which will, among other things, facilitate trade and reduce compliance costs associated with shipment of products across borders.

The Government also notes that the creation of an international standard for the classification and labelling of hazardous workplace chemicals will serve to increase the health and safety of workers in Canada while also improving their overall health and safety of workers by providing clear and consistent information on how to safely use hazardous materials in the workplace.

The amendments are contained in the following 5 Occupational Health and Safety regulations under Part II of the Canada Labour Code:

For the Government of Canada’s announcement, click here.

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GHS Update: Government of Canada introduces new regulations for protection for workers handling hazardous materials

Unauthorized supervisor decided to “solve the problem himself”, caused accident – OHSA charges against company dismissed

An employer has beat occupational health and safety charges laid after its supervisor caused an explosion when he defied instructions and took it upon himself to use a torch to thaw ice that had accumulated in a culvert.

In a production meeting, the supervisor raised the issue of the ice accumulation in a culvert under the plant service road. He said he was worried that water would flow over the road and prevent access to a cooling tower at a power generation plant operated by the employer. The acting production manager told him not to address the problem because it would be a waste of time as the ice would melt on its own, and the road had not washed out in the six years that the production manager had worked there.

The supervisor defied instructions and used a “tiger torch” to try to melt the ice, placing the torch in the culvert. The torch went out and gas accumulated in the culvert. When another worker, directed by the supervisor, went to check on the torch, and tried to light the torch again, there was an explosion. The worker sustained burns to his face, hand, fingers and arm.

The employer was charged with four offences under Saskatchewan’s The Occupational Health and Safety Act including inadequate training.

The court decided that the supervisor and the injured worker had the training necessary in order to avoid the accident. The supervisor had attended a four-day “supervisory essentials” course. The court was satisfied that the company provided the supervisor with “everything he needed to know to prevent the accident”. Also, he had been told not to address the culvert task. Had he been directed to address it, he would have required a work order that would have led to the preparation of a safety and risk hazard form and an application for a hot work permit.  Further, the employer could not reasonably have foreseen the supervisor’s use of the tiger torch or that he would enlist the other worker to assist him.

In conclusion, the court held that the company had taken reasonable care to ensure that the worker and supervisor were properly trained to avoid the accident.   The charges were dismissed.

R v Saskatchewan Power Corporation, 2016 SKPC 2 (CanLII)

Unauthorized supervisor decided to “solve the problem himself”, caused accident – OHSA charges against company dismissed

The Countdown is On: The New OHSA Amendments Come into Force in Less Than 60 Days

As we previously reported, the amendments to the Occupational Health and Safety Act introduced by Ontario’s Sexual Violence and Harassment Legislation, An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and related matters, come into force on September 8, 2016.

By way of reminder, the OHSA amendments expand the Act’s definition of “workplace harassment” to expressly include “workplace sexual harassment”. The amendments also impose additional obligations on employers with respect to their workplace harassment policies, programs and investigations.

With September 8th quickly approaching, the countdown to compliance is on and employers must take the following steps to ensure they meet the Act’s requirements:

  1. Review and revise existing workplace harassment policies and programs to ensure that they specifically contemplate “workplace sexual harassment”.
  2. Work in consultation with the joint health and safety committee or health and safety representative (if applicable) to develop and maintain a written workplace harassment program, which sets out:
  • reporting measures and procedures for workers to report incidents of workplace harassment to their employer or supervisor and, in the event that the employer or supervisor is the alleged harasser, to a person other than the employer or supervisor;
  • how incidents or complaints of workplace harassment will be investigated and dealt with;
  • how information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary for investigating, taking corrective action, or by law; and
  • how a worker who has allegedly experienced workplace harassment and the alleged harasser (if s/he is a worker of the employer) will be informed of the results of the investigation and of corrective action that has been, or will be, taken.
  1. Establish internal timelines and practices to ensure that the written workplace harassment program is reviewed as often as necessary, but at least annually.
  2. Ensure that internal processes are developed and implemented to:
  • conduct investigations into all incidents and complaints of workplace harassment; and
  • inform the workers involved in the incident and/or complaint of the results of the investigation and of any corrective action that has been, or will be, taken as a result.
  1. Develop and maintain resources that provide workers with information and instruction on the contents of the workplace harassment policy and program.

In addition to the OHSA’s existing enforcement mechanisms, the amended Act grants inspectors the power to order an employer to have an impartial third party conduct a workplace harassment investigation, at the employer’s expense. Notably, the OHSA amendments do not detail the circumstances in which an inspector can, or will, issue such an order.

The Ontario Government’s It’s Never Okay Action Plan, which led to the OHSA amendments, indicates that the Government intends to issue a new “Code of Practice” for employers, which will describe in more detail the steps that employers must take to comply with the OHSA amendments. The Code of Practice is expected to be released on or around the September 8th coming into force date and will hopefully provide more guidance on the implementation of the Act.  Stay tuned as we will provide a further update upon its release.

The Countdown is On: The New OHSA Amendments Come into Force in Less Than 60 Days

Fired employee’s Facebook post calling company “s—hole” showed dismissal for workplace outbursts, threat was indeed appropriate

An employee who yelled and swore at a manager about a written test for a maintenance position, and a few days later took a gun out of a box in the company parking lot and “pumped it”, was fired for cause, an arbitrator has decided.  The employee, who already had a lengthy discipline record, also told the human resources manager that he would “regret his actions” and that the employee’s brother” knows” the HR manager, which the arbitrator in the employee’s dismissal grievance found was a veiled threat.

The employee said that the gun, which resembled an assault rifle, was an “airsoft” gun, and that he simply opened the gun box to look at it. He admitted later that it was not a good idea to have done that.

The arbitrator said that the employee’s confrontations with the managers, taken alone, might not have justified dismissal, even though they were very serious in light of Ontario’s Bill 168 which introduced harassment and violence provisions to the Occupational Health and Safety Act in 2010.

However, the employee’s Facebook post after his dismissal showed that he was not willing to take any responsibility for his actions nor show a willingness to avoid outbursts in the future.  The Facebook post described the workplace as a “s—hole” and said that he felt sorry for employees who still had to work “in a place with so much negativity”. He also wrote that since he was “caned” [sic] he no longer had to “concentrate on all the bull[—-] I put up with at that place for 10 years”.

In conclusion, the arbitrator decided that given the employee’s already lengthy disciplinary record and his continuing negative feelings towards the human resources manager and company, as shown by his Facebook post, dismissal was appropriate.

Service Employees’ International Union, Local 1 Canada v Specialty Care Trillium Centre, 2016 CanLII 23212 (ON LA)

Fired employee’s Facebook post calling company “s—hole” showed dismissal for workplace outbursts, threat was indeed appropriate

Delay in OHSA prosecution was not unreasonable: charges not stayed

Even though the case took more than two years to get to trial, an Ontario court has refused to halt a prosecution of a company under the Occupational Health and Safety Act.

Charges were laid against a construction company in January, 2014 after a worker fell nine feet when a ladder slipped. The charges alleged that the company failed to ensure that the ladder was tied down or otherwise secured to prevent slipping.

There were nine court appearances, and a trial was scheduled for January, 2016.  The company, relying on the Canadian Charter of Rights and Freedoms, asked the court to order a stay (similar to a dismissal) of the OHSA charges due to the delay in getting to trial.

The court stated that the “defence was content with the pace of proceedings” and that the company had not provided any evidence that it had suffered “irremediable prejudice” because of the delay.  For instance, there was no evidence that any witness’s recollection had been significantly impaired.  Further, late disclosure of one document had not caused prejudice because the document (disclosed one month before trial) was “of marginal value” as it repeated the Ministry of Labour investigator’s conclusions.  Further, both the defence and the Crown had been responsible for some of the delay in getting to trial.

The court stated that, “A stay is a remedy of last resort. There is a societal interest in having the charges heard on the merits.”  The charges should proceed to trial.

The decision was handed down before the Supreme Court of Canada released its recent, ground-breaking decision on delay in R. v. Jordan, 2016 SCC 27 (CanLII).  It remains to be seen how the new Jordan framework for dealing with delay will be applied in OHSA cases involving corporate defendants.

R. v. Black and McDonald Limited, 2016 ONCJ 345 (CanLII)

Delay in OHSA prosecution was not unreasonable: charges not stayed

Court throws out MOL evidence due to late disclosure, notice in OHSA prosecution

An Ontario judge has thrown out laser scan evidence due to the Ontario Ministry of Labour’s late disclosure and late notice to defence counsel that the MOL intended to present that evidence in court.

A construction company was charged with three counts under the Ontario Occupational Health and Safety Act after a fatal accident involving the collapse of a drill rig that it operated.  The laser scan evidence purported to show the slope of ground where the rig collapsed.

The trial started in July 2014 and a number of witnesses were called by the prosecution.  Before the trial resumed a few months later, the prosecutor told defence counsel that he intended to call a police sergeant as a witness to present and testify about the laser scan. The defence demanded the “raw data” in relation to the laser scan but was told that the sergeant had overwritten it when the laser scanner consolidated the original raw data.

The defence brought an application asking that the charges be stayed (effectively dismissed).  The court held that the late disclosure and late notice to the defence meant that five days of evidence had been called at trial before the defence knew “the full case that it had to meet”.  This was not fair to the company.  Although the prosecution had not acted in bad faith, its decision to change its mind and call the laser scan evidence infringed the company’s right to make a full defence.

The court decided that the proper remedy was to prohibit the MOL from presenting the laser scan evidence.  Given that the MOL’s conduct had not been egregious, and the reliability of the laser scan evidence was not great in any event, it was not appropriate to stay the charges.

Ontario (Ministry of Labour) v. Advanced Construction Techniques Ltd., 2016 ONCJ 392 (CanLII)

Court throws out MOL evidence due to late disclosure, notice in OHSA prosecution

Federal employers not required to inspect workplaces that they don’t control: court

The Federal Court has decided that federally-regulated employers are not required to conduct inspections of places not under their control where their employees work.   The decision will be a relief to federal employers whose employees regularly work away from the employer’s office.

The court rejected letter carriers’ claim that Canada Post was required to ensure that inspections were conducted of public areas including the letter carriers’ routes.

The provision in issue was section section 125(1)(z.12) of the Canada Labour Code which provides:

125. (1) Without restricting the generality of section 124, every employer shall, in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls the activity,

. . .

(z.12) ensure that the work place committee or the health and safety representative inspects each month all or part of the work place, so that every part of the work place is inspected at least once each year;

The Court decided that that provision required inspections of only workplaces actually controlled by the employer – not workplaces, such as letter routes, that are not under the employer’s control.  The Court upheld a federal Appeals Officer’s decision stating that employers cannot be required to inspect workplaces over which they have no control and thus no opportunity to fix hazards identified in the inspection.

The Court concluded:

“The Appeals Officer recognized that Parliament intended to give the broadest possible protection to employees including to those performing work in a place which the employer may not control. In my view the Appeals Officer’s interpretation of subsection 125(1) and paragraph 125(1)(z.12) demonstrates sensitivity to preserving the broad nature of the employer’s obligations to ensure the health and safety of its employees without placing obligations upon the employer that the latter would be unable to fulfill.”

Canadian Union of Postal Workers v. Canada Post Corporation, 2016 FC 252 (CanLII)

Federal employers not required to inspect workplaces that they don’t control: court

Ontario man fined $6,000 for illegal use of “professional engineer” title when seeking job

An Ontario man has been found guilty of three counts of violating the Professional Engineers Act by using the protected title, “P.Eng.” in a resume and in communications with a construction firm at which he was seeking employment.

The construction firm had asked for confirmation of the man’s P.Eng. status on several occasions, and then called Professional Engineers Ontario which confirmed that he had never been a licenced professional engineer in Ontario.

The man was fined $2,000.00 on each of the three charges, for a total of $6,000.00.

Employers often retain professional engineers for safety-related advice, such as whether a machine is properly guarded.  Employers should take steps to confirm that the person holds a “P.Eng.” and a “Certificate of Authorization” that authorizes individuals and companies to carry on business offering and providing professional engineering services to the public.   The PEO maintains searchable online directories.

Professional Engineers Ontario’s press release can be found here.

Ontario man fined $6,000 for illegal use of “professional engineer” title when seeking job

Alberta Court of Appeal dismisses worker’s appeal in his 20+ year old case against a developer

The Alberta Court of Appeal has recently confirmed that an owner/developer of a condominium conversion project was not liable for damages in a civil action commenced by a worker.

The action arose from an incident in March 1994 when the worker was working on a rooftop of a condominium development worksite owned by the respondent. He slipped on an icy roof and fell through an unmarked piece of plywood that was covering a hole cut for a skylight. The worker sustained very serious injuries as a result and commenced an action against several parties including the developer.  The other defendants were found to fall within the protection of the Workers’ Compensation Act and so the action proceeded to trial solely against the developer. The trial decision was reviewed in our October 6, 2014 post.

On appeal, the Court confirmed the Trial Judge’s finding that the developer did not become liable in negligence by application of the requirements of the Occupational Health and Safety Act.  While the statute did inform the common law, it did not create civil liability.

The focus of the appeal was on whether the developer should be vicariously liable for the acts of the contractor it had retained to provide supervisory management services.  The contractor was protected from suit under the Workers’ Compensation Act.  The worker raised several different arguments to attempt to impose vicarious liability against the developer; however, the Court of Appeal rejected each of them.  One of the concerns expressed by the Court of Appeal in relation to the worker’s argument was that his reasoning would make the developer “liable almost to the level of an insurer” for all significant physical work being performed by a contractor or subcontractor on a construction site.  As such, this decision will be welcomed by developers in Alberta.

Heikkila v Apex Land Corporation, 2016 ABCA 126 (CanLII)

Alberta Court of Appeal dismisses worker’s appeal in his 20+ year old case against a developer

HRTO sets protocol for employers to use their own occupational health and claims management file to defend human rights complaint

The Human Rights Tribunal of Ontario has set out criteria that an employer must satisfy in order to use its own Occupational Health and Claims Management file to defend itself in a human rights complaint.

An employee filed an Application with the HRTO alleging that the employer, through its Occupational Health and Claims Management department, discriminated against him by requiring unnecessary medical information, improperly administering his sick benefit claims, and failing to properly accommodate his disability.

The employer asked the HRTO to order that the employer was authorized to access and use the employee’s personal health information contained in the Occupational Health and Claims Management file, for the purposes of responding to the employee’s human rights complaint.

The HRTO was satisfied that the employer required access to the documents in order to meaningfully respond to the employee’s human rights complaint.

It appears that the reason for the employer’s request for access to the Occupational Health and Claims Management file (instead of simply accessing its own file without seeking the HRTO’s permission) was subs. 63(2) of the Occupational Health and Safety Act, which provides:

No employer shall seek to gain access, except by an order of the court or other tribunal or in order to comply with another statute, to a health record concerning a worker without the worker’s written consent. 

The HRTO ordered that the employer was permitted to access its Occupational Health and Claims Management file on the employee, provided that:

  1. the employer provide a copy of the file to the employee;
  2. the employer ensure that its advisors, individuals giving instruction to counsel, and potential witnesses are the only persons permitted to access, review and use the documents; and
  3. counsel for the employer is required to state and confirm with all persons with whom the health information is “canvassed” that the persons are required to strictly maintain confidentiality of the health information.

Coutts v. Toronto Transit Commission, 2016 HRTO 7 (CanLII)

HRTO sets protocol for employers to use their own occupational health and claims management file to defend human rights complaint

Reverse burden of proof sinks no-show employer: OLRB awards more than $25,000 for safety-reprisal

An employer that failed to attend a safety-reprisal hearing has been ordered to pay two employees damages of more than $25,000.00.

The employees filed an application with the Ontario Labour Relations Board claiming that their dismissal was a reprisal under the Occupational Health and Safety Act. The employer failed to attend the hearing.

The OLRB noted that subs. 50(5) of the OHSA places the burden of proof on the employer, in safety-reprisal cases, to show that the employer had not retaliated against the employee for raising safety concerns.  Because the employer failed to attend the hearing, it had not discharged that burden of proof, and was deemed to have accepted all of the allegations in the employees’ reprisal complaints.

One of the employees had been unemployed, after her dismissal, for 30 weeks.  She was awarded 30 weeks’ wages as damages.  The other employee was pregnant when dismissed, and was entitled to back pay for the four weeks before her Employment Insurance maternity/parental benefits began.

The OLRB also awarded both employees damages in the amount of four weeks’ wages for the “loss of employment” plus $1,500.00 each for “mental distress”.  The damages totaled $25,848.00.

This case illustrates what already appears self-evident: employers faced with safety-reprisal complaints under the OHSA must respond and participate in the hearing, or else they will be deemed to have admitted the employee’s allegations – and will be liable for damages.

Sara Dias v 2142472 Ontario Limited, 2016 CanLII 14182 (ON LRB)

Reverse burden of proof sinks no-show employer: OLRB awards more than $25,000 for safety-reprisal

Medical marijuana-using welder must give employer treatment records: arbitrator

A worker who used medical marijuana has been ordered to give his employer any medical records touching on his treatment.

The worker was a long-service journeyman welder employed at the employer’s potash mine.  He claimed to suffer from an anxiety disorder and headaches.  He obtained a prescription for medical marijuana to treat his medical condition, and an authorization from the federal government for that prescription.  He claimed to use medical marijuana in the evenings, away from work – not in the workplace.  He disclosed this information to the employer’s workplace occupational health nurse.

The employer then suspended the employee and placed him on leave until he provided evidence that he is no longer being treated by a prohibited substance that exceeded the employer’s identified thresholds and caused impairment. The worker discontinued his marijuana use and filed a grievance alleging discrimination because of his “medical prescription”.

The employer demanded that the employee produce his application for medical marijuana authorization, and medical records pertaining the conditions treated by the medical marijuana and the treatment proposed or undertaken.  It argued that without that information, it could not assess whether marijuana is an appropriate treatment, whether a more appropriate treatment was available, and whether the worker was fit to work in a safety-sensitive position while under the influence of marijuana.

The arbitrator noted that because the employer had acknowledged, in a communication with the Saskatchewan Human Rights Commission, that the employee suffers from anxiety and cluster headaches, it could not resile from that admission in this case.  As such, the employer was not entitled to medical documentation about the worker’s “underlying disability”.

The employer was, however, entitled to medical documents relating to the employee’s current or proposed treatment.  The availability of alternative treatments was an issue in the arbitration. The employer could not argue its case if it was not permitted to have access to the medical records dealing with the worker’s proposed and undertaken treatment.  Further, the union was challenging whether the worker’s prescription and use of marijuana would cause impairment such that he would be unfit and/or unsafe for work.  This also made the treatment documentation relevant.  The arbitrator decided that the employer should be permitted to determine what information the employee’s doctor had about the worker’s “Fit for Duty workplace requirements” in terms of permitted treatment options, strain potency and frequency of marijuana use, and whether alternative treatments were available, appropriate and/or recommended.

United Steel Workers, Local 7656 v Mosaic Potash Colonsay ULC, 2016 CanLII 18320 (SK LA)

Medical marijuana-using welder must give employer treatment records: arbitrator

Australian employee wins workers compensation benefits after coworker takes covert photographs of her

An Australian employee has won her bid for workers’ compensation benefits for psychological injury after she learned that a coworker had taken covert photographs of her.

The coworker had taken covert photographs of a number of people, including the employee.  Some of the photographs concentrated on the employee’s chest area with her head and face out of the photo.  She was identifiable because other photos included her face.  The coworker had used electronic devices supplied by the employer (a state library) to take the photographs.  Over 2,500 photos were found on the electronic devices, a number of which focused on the chest area of female employees.

The court decided that there was a “necessary association between the injury and the employment”.  Had it not been for the employment, the employee’s psychological injury would probably not have occurred.  As such, the injury “arose out of, or in the course of, employment”. Further, the employment was a “significant contributing factor” to her injury, given the evidence of her psychiatrists.

The applicable workers compensation legislation provided that workers were not entitled to benefits for psychological injury if it arose out of “reasonable management action”. The court decided that, considered “in a global way”, the employer’s actions had not been reasonable.  In particular, the employer had delayed in telling the employee about the photographs and their nature; the employer did not say anything to her until she approached another employee about the matter; and the employer had not imposed any disciplinary action on the male employee who took the photographs, but instead had allowed him to resign at the end of his contract (with four months of notice).

As a result, the employee was entitled to workers’ compensation benefits for psychological injury.

Waugh v Simon Blackwood (Workers’ Compensation Regulator) & anor [2015] ICQ 28 (8 October 2015)

Australian employee wins workers compensation benefits after coworker takes covert photographs of her

Vague OHSA charges must be clarified: court orders prosecutor to provide particulars of charge

A judge has ordered a prosecutor to provide “particulars” of a vague charge under the Nova Scotia Occupational Health and Safety Act, so the constructor could understand the charge against it.

The constructor was charged with four OHSA offences following an accident in which an employee was severely injured on a construction site after he activated power to a swing stage (suspended platform) and a metal outrigger fell on him.  The constructor argued that two of the four charges were vague, so that it needed more particulars (details) of those charges in order to defend against them.

The judge referred to the two charges as “general duty” offenses.  The first charge alleged that the constructor had failed to “take every reasonable precaution to ensure the health and safety of a person at a workplace”.  The second charge alleged that the constructor failed “to ensure communication between employers and self-employed persons at a project of information necessary to the health and safety of persons at the project.”  The judge noted that the charges “track[ed] the language of the legislation”.

The judge concluded that the constructor did not risk “being broad-sided by an infinite range of allegations” on the first charge.  The disclosure from the prosecutor indicated that the prosecution would assert that the constructor should not have disassembled the swing stage in the first place, and that having done so, the constructor should have taken precautions to ensure that no employee was hurt as a result.  As such, the constructor knew what the charge was about, and was not entitled to particulars of the first charge.

With respect to the second charge, the judge decided that the disclosure did not provide a “specific enough characterization of the communications that the prosecutor is alleging” the constructor was responsible for making.  Particulars would clarify to whom the prosecutor says the constructor should have communicated and how and what it should have communicated.  As such, the prosecutor was ordered to provide particulars for the second charge.

R. v. McCarthy’s Roofing Limited, 2016 NSPC 21 (CanLII)

Vague OHSA charges must be clarified: court orders prosecutor to provide particulars of charge

OHS caselaw update at Dentons’ June 10th employment law seminar in Toronto

Adrian Miedema will be leading a presentation entitled “Recent OHS Cases of Interest” at Dentons’ complimentary half-day employment law seminar in Toronto on Friday, June 10th.  You are welcome to join us.

Other presentations at the seminar will be as follows:

  • “Workplace confidential: How to maintain privilege over workplace investigations”, presented by Andy Pushalik and Rahim Punjani
  • “Bill 132: Ontario’s new sexual violence and harassment legislation – what employers need to know”, presented by Sabrina Serino
  • “To compete or not to compete? Tips and traps when drafting restrictive covenants”, presented by Jeff Mitchell and Chelsea Rasmussen
  • “How to support transgender employees”, presented by Anneli LeGault
  • “You tweeted what?!: Tips on effectively managing social media in the workplace”, presented by Matthew Curtis and Saba Zia
  • “Covering your assets: Common employer liabilities and best practices for managing HR risk”, presented by Blair McCreadie and Carmen Francis
  • “Do you sponsor a Group RRSP or defined contribution pension plan? Beware of “estimates” that your provider wants to give your employees”, presented by Mary Picard and Aiwen Xu

Date & Time
Friday, June 10, 2016
Registration and breakfast:  8:30-9:00 a.m.
Welcome remarks and special guest speaker:  9:00-9:30 a.m.
Breakout sessions:  9:45-12:15 p.m.
Lunch and special guest speaker:  12:15 p.m.

Location
Dentons Canada LLP
77 King Street West
5th Floor
Toronto, ON

Click here to RSVP

Contact
Please contact toronto.events@dentons.com for any questions.

OHS caselaw update at Dentons’ June 10th employment law seminar in Toronto

Employer breached OHSA, collective agreement by sharing employee’s medical information with another employer

An arbitrator has decided that an operator of a long term care facility violated both the Occupational Health and Safety Act and the collective agreement by sharing an employee’s medical information with another employer, without the employee’s consent.

The employee was a part-time dietary aid at the long term care facility, St. Patrick’s Home of Ottawa Inc.  After the employee advised that she required an accommodation in her other position at a different long-term care facility due to medical reasons, St. Patrick’s asked her to provide a medical certificate indicating her fitness and ability to do her job.

The other long-term care facility began to question whether the medical restrictions that she was presenting to them were legitimate.  The other long-term care facility then requested certain information about the employee’s employment at St. Patrick’s, including whether she had worked her regularly-scheduled shifts, had requested any workplace accommodations or provided any work-related restrictions.   St. Patrick’s gave the other facility that information, including a medical note that the employee had provided.  St. Patrick’s later acknowledged that information should not have been disclosed without the employee’s consent.

The arbitrator held that St. Patrick’s had violated sections 63(1)(f) and 62(2) of the OHSA:

“Section 63(1)(f) of this Act specifies that no person shall disclose any information obtained in any medical examination except in a form that will prevent the information from being identified with a particular person or case.  The copy of the note that this Employer gave to West End Villa contained medical information from the Grievor’s doctor that clearly identified the Grievor.  Further, section 62(2) of the Act mandates that no employer shall seek to gain access to a health record concerning a worker without the worker’s written consent, except by an order of the court or other tribunal or in order to comply with another statute.  The Grievor gave no consent to the release of the information or note and West End Villa neither requested the note nor had any legal authorization to receive it.  Since West End Villa had no right to seek the Grievor’s health information, this Employer had no right to provide it.  Therefore, the Agreed Facts reveal a clear violation of the Occupational Health and Safety Act.”

The arbitrator also found that the disclosure of the information violated the collective agreement in that it constituted “harassment”, which was defined in the collective agreement as, “any behaviour which denies and or undermines individuals’ . . .  dignity and respect, and that is offensive, embarrassing and humiliating to said individual.”  Lastly, the arbitrator held that the disclosure constituted the tort of “intrusion upon seclusion”.

The arbitrator ordered St. Patrick’s to comply with its own confidentiality policy and to pay the employee $1,000.00 in damages.

This case illustrates the increasing importance of privacy – particularly of medical information – in the workplace, and that privacy obligations can come from unexpected places, including the OHSA.

St. Patrick’s Home of Ottawa Inc. v Canadian Union of Public Employees, Local 2437, 2016 CanLII 10432 (ON LA)

Employer breached OHSA, collective agreement by sharing employee’s medical information with another employer

Ontario MOL consulting on new mandatory construction hazard awareness training

The Ontario Ministry of Labour is proposing to require all construction employers to ensure that their workers complete a new “construction hazard awareness training” program.

This training program would be an add-on, for “construction” employers, to the mandatory basic health and safety training that all employers in Ontario are required to ensure that their workers receive.

Construction employers would have two ways to comply with the two training requirements: (1) ensure that their workers complete a training program approved as meeting the criteria of a training program and “provider standard” established by the MOL’s Chief Prevention Officer; or (2) complete a training program developed by the employer, in consultation with the joint health and safety committee, based on the learning outcomes to be set out in a regulation.

The MOL is seeking public feedback, including on a draft Construction Health and Safety Awareness Training Program Standard that would set out requirements that a training program must include in order to be approved by the Chief Prevention Officer.

For more information, click here.

 

 

Ontario MOL consulting on new mandatory construction hazard awareness training

City wins suspension of MOL inspector’s “constructor” order

A city has won a suspension of a Ministry of Labour inspector’s decision that the city was a “constructor” under the Ontario Occupational Health and Safety Act on a watermain-improvement project.

The city was the “owner” of the project.  It had retained, for the project, a construction company which had assumed the role of constructor under the OHSA and was carrying out the duties of constructor on the project.

The city asked the Ontario Labour Relations Board to suspend the operation of the inspector’s Order that the city was the constructor.  The MOL opposed the suspension request, alleging that the city had retained a great deal of control over the project, including the timing of some of the work, and had control over the construction company and the police service (which performed some traffic control functions in connection with the project).  The MOL argued that because the city had such “control”, the city should also have the duties of constructor under the OHSA.

The OLRB suspended the MOL inspector’s Order pending the outcome of the city’s appeal challenging the inspector’s decision. The OLRB decided that the safety of workers on the project would be maintained because the construction firm was an “experienced and responsible entity” which was carrying out the duties of constructor on the project.  While the city may have requested and paid for the traffic control services provided by the police, it was at the construction company’s request that the city contacted the police and arranged for traffic control.  The construction company “more closely resembled” the constructor on the project.  Compelling the city to carry out the obligations of the constructor would cause it prejudice that it ought not to bear if it was not in fact the constructor.

City of Greater Sudbury v A Director under the Occupational Health and Safety Act, 2015 CanLII 86601 (ON LRB)

 

City wins suspension of MOL inspector’s “constructor” order

Watch Out: Ontario Ministry of Labour Inspection Blitzes/Initiatives Are Coming

The Ontario Ministry of Labour recently announced its 2016 and 2017 enforcement blitz and initiative schedule. In an effort to emphasize the importance of protecting workers’ rights and ensuring employer compliance with both the Occupational Health and Safety Act and the Employment Standards Act, 2000, the Ministry has prepared a coordinated inspection blitz schedule under the Employment Standards Program and the Occupational Health and Safety Program. The blitzes are set to continue until March 2017.

The Employment Standards inspection blitzes will focus on high-risk sectors where there is a history of ESA violations and/or where young workers, vulnerable workers and/or an increasing number of Ontarians are employed. This will include the following sectors: Construction, Food Services, Retail Trade, Professional Services, Services to Buildings and Dwellings, Other Amusement and Recreation Industries, and Personal Care Services.

The OHSA inspection blitzes will focus on sector-specific hazards with the aim of raising awareness and increasing compliance with the OHSA. The provincial OHSA Blitzes will target the Construction, Industrial and Mining Sectors with a focus on: Falls, New and Young Workers, Mobile Cranes and Material Hoisting, and Safe Material Tramming Underground.

In addition to province-wide blitzes, the Ministry will conduct local blitzes in predetermined regions throughout the province targeting specific sectors. For the ESA blitzes this will include the Child Day-Care Services, Manufacturing, Fitness Centres, Tow Truck Companies, and Small Manufacturing sectors; for the OHSA blitzes this will include the Industrial and Construction sectors.

The Ministry will report the results of its inspections shortly after they are completed and will track its findings to ensure improvements in compliance and fewer workplace injuries. The Ministry reports that since 2005, it has recovered over $144 million in wages and other money owed to employees through its inspections, claims and collections and, since 2008, has issued more than one million compliance orders for safety issues across all sectors.

Even if you are not in a targeted sector, be aware that in addition to the 2016/2017 inspection blitzes, the Ministry’s officers will continue to conduct their ongoing enforcement efforts, so they may still show up at your door. As such, all employers, and particularly those in sectors targeted by the 2016/2017 blitzes, should take steps to ensure that their workplaces are compliant with both the ESA and OHSA. The Ministry of Labour’s Inspection Blitzes and Initiatives Announcement and 2016-2017 Schedules can be found here.

Watch Out: Ontario Ministry of Labour Inspection Blitzes/Initiatives Are Coming

$250,000 fine against school board may be largest-ever against not-for-profit organization in Ontario

A school board has been handed a $250,000 fine under the Ontario Occupational Health and Safety Act after the death of maintenance worker.

The maintenance worker had been assigned the task of replacing a safety cage on a ceiling light in a high school gymnasium.  He was working alone.  While he was rolling a portable aerial device (a type of lifting device) down a ramp off a trailer, the aerial device tipped over and struck the worker, fatally injuring him.

The angle of the ramp was about eight degrees, while the manual for the aerial device stated that it should not be rolled down an incline greater than five degrees.

The school board pleaded guilty to the OHSA charge of failing as an employer to take every precaution reasonable in the circumstances for the protection of a worker.  In particular, the school board failed to ensure that the angle of the ramp was five degrees or less; that the aerial device was rolled down the ramp with its mast on the upper or high end of the ramp to lessen the possibility of it tipping; and that there was another worker present to assist.

The court imposed the fine of $250,000 plus the 25% Victim Fine Surcharge, for a total of $312,250.  This appears to be the largest fine ever in Ontario under the OHSA against a not-for-profit or charitable organization.  The case shows that charities and not-for-profits are not immune from charges and fines under occupational health and safety legislation.

The Ontario Ministry of Labour’s Court Bulletin may be found here.

$250,000 fine against school board may be largest-ever against not-for-profit organization in Ontario