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Fact of accident, without more, is not enough to convict on OHSA charges, appeal court decides

A trial judge was wrong to find a City guilty of Occupational Health and Safety Act charges solely because an accident had occurred in which a worker died.  The trial court should have gone further and analyzed each charge.

The charges were filed against the City of St. John’s after a tragic accident on a road construction site that resulted in one worker dying after being hit by a car. There were seven charges against the City including failure to provide adequate training and failure to maintain adequate traffic control.

The trial judge had held that the mere fact of the car striking the employee was proof of the actus reus of the charges.  The appeal court decided that that was wrong: the trial judge should have analyzed each charge to determine whether the prosecutor had called evidence to prove each element of the offence.  The trial judge had wrongly focused on the consequences of the alleged breach of the OHSA (the accident and the worker’s death) rather than on “the identification and proof of the actual elements of each offence”.

This decision is a welcome reminder that occupational health and safety prosecutors cannot simply rely, in seeking to obtain a conviction on OHSA charges, on the fact that an accident took place. Instead, they must do the work of proving each charge.

R. v St. John’s (City), 2017 NLCA 71 (CanLII)

Fact of accident, without more, is not enough to convict on OHSA charges, appeal court decides

Canadian Law Blog Awards recognizes Dentons’ Occupational Health & Safety Law Blog as one of Canada’s top legal practice group blogs in 2017


We are delighted to tell you that the Canadian Law Blog Awards has named Dentons Canada’s Occupational Health and Safety Law blog as one of the best legal practice group blogs in Canada in 2017.

See the full list of winners here.

The Canadian Law Blog Awards states, “Each year we select three practice dedicated blogs from larger law firms that deliver helpful commentary on a select business industry or legal challenge. Here are the publications that stood out in 2017” – and ours was one of the three.

We pride ourselves on bringing you timely updates on health and safety caselaw and other developments in Canada, and we plan to continue doing so in 2018.

Thank you for your support of this blog, and please keep reading!  If you think we should cover any particular topics or cases in our blog posts in 2018, just let us know. We are always happy to hear from our readers.

Adrian Miedema and Cristina Wendel, Editors

Canadian Law Blog Awards recognizes Dentons’ Occupational Health & Safety Law Blog as one of Canada’s top legal practice group blogs in 2017

Court finds that “accident as prima facie breach” principle precludes an order for particulars on an OHSA “general duty” charge

The “accident as prima facie breach” principle has been before the court in several recent cases, often with some discrepancy in its application. The principle was again before an Alberta court recently in the context of an application for particulars.

The principle provides that in some cases, proof that an employee was injured in an accident while performing his or her employment duties proves the actus reus for an occupational health and safety (OHSA) “general duty” charge, as long as the necessary elements are proven beyond a reasonable doubt. The burden then shifts to the accused to establish a due diligence defence.

In this case, a worker was seriously injured in a workplace incident and the employer was charged with 8 counts. Count 1 of the Information was a “general duty” breach allegation stating that the employer had failed to ensure, as far as it was reasonably practicable to do so, the health and safety of the worker, contrary to section 2(1)(a)(i) of the Occupational Health and Safety Act (Alberta). After receiving the Crown’s disclosure, the employer applied for particulars of Count 1 on the basis that there was information contained in the Crown disclosure which left the employer uncertain about what act or omission the Crown intended to rely on to sustain Count 1.

At the application hearing, the first issue before the court was whether the “accident as prima facie breach” principle for an OHSA general duty charge would preclude an order for particulars. The court reviewed the principle, noting that the case law had established that the “accident as prima facie breach” principle requires that in order for the Crown to prove the essential elements of an OHSA “general duty” charge beyond a reasonable doubt, the Crown must prove that:

  1. there was an employee;
  2. the employee was injured in an accident; and
  3. the employee was performing his or her duties in the course of his or her employment when injured.

The court noted that the principle does not relieve the Crown of establishing beyond a reasonable doubt that the employer committed a wrongful act but rather, reflects that sometimes, proof of the consequence, that is, the accident, is sufficient to establish that a wrongful act was committed. However, the principle was not one that would apply in all cases as there may be some instances where the wrongful act by the employer cannot be inferred from the circumstances of the accident.

Requiring the Crown to provide particulars of the specific acts, omissions or breaches by the employer under Count 1 would transform those particulars into essential elements of the actus reus of the offence which the Crown would then need to prove beyond a reasonable doubt. The court found that this would generally be inconsistent with the principle applicable to an OHSA “general duty” charge and would place a far higher onus on the Crown.

In the case before it, it was known why the incident happened. A boom stick being held above the ground by a hook and sling held by a caterpillar tractor fell from the hook and sling, severely injuring the worker. As such, the court determined that it was appropriate to apply the “accident as prima facie breach” principle and thus the court was precluded from making an order for particulars of the acts, omissions or breaches by the employer for the Court 1 OHSA “general duty” charge.

The court then proceeded, in obiter, and in what results in a somewhat confusing decision, to find that if the court was wrong on the conclusion that the “accident as prima facie breach” principle precluded it from ordering particulars, then the court would have made an order for particulars as requested by the employer.

R. v. Midwest Pipelines Inc., 2017 ABPC 222

Court finds that “accident as prima facie breach” principle precludes an order for particulars on an OHSA “general duty” charge

Learn how OHSA changes in Alberta and Ontario will affect your business, January 22, 2018 – Webinar

OHSA legislation in Alberta and Ontario is changing. The Ontario amendments (including maximum fines and the limitation period for laying charges) are already in effect, and the Alberta amendments (including mandatory joint work site health and safety committees and new duties and obligations for various parties) will come into force soon.

Join us for a complimentary 1 hour webinar to find out what these changes mean for your business in both provinces.

Click here to register

Monday, January 22, 2018
10 a.m. MT
12 p.m. ET

Speakers

This session is available via webinar only

CPD accreditation
This program is eligible for 1 substantive hour required by the Law Society of Upper Canada.

Questions
Please contact Carla Vasquez, Marketing and Events Specialist, at carla.vasquez@dentons.com or +1 416 361 2377.

Learn how OHSA changes in Alberta and Ontario will affect your business, January 22, 2018 – Webinar

In important decision, Ontario appeal court says that general duty clause in OHSA can impose higher obligations than specific requirements in regulations

The Ministry of Labour can prosecute employers under the “general duty” clause of the Occupational Health and Safety Act even where the charges impose obligations that are greater than those set out in the regulations under the OHSA, the Ontario Court of Appeal has decided.

In this case, a trial and appeal justice had decided that the employer could not be found guilty of failing to provide guardrails around a temporary work platform.  They reasoned that the applicable regulation under the OHSA (“Industrial Establishments”), which dealt with the issue of guardrails, did not require guardrails in this particular situation (a temporary work platform at a height of six feet).  As such, the lower courts held that the MOL could not use the “general duty” requirement found in s. 25(2)(h) of the OHSA to impose obligations greater than those in the regulation.

The Ontario Court of Appeal disagreed, stating that regulations cannot be expected to anticipate the circumstances of all workplaces across Ontario. The key question in this case was whether the installation of guardrails was a reasonable precaution.  The Court of Appeal held that the trial justice failed to address that point.

The court concluded, at paragraph 45:

It may not be possible for all risk to be eliminated from a workplace, as this court noted in Sheehan Truck, at para. 30, but it does not follow that employers need do only as little as is specifically prescribed in the regulations. There may be cases in which more is required – in which additional safety precautions tailored to fit the distinctive nature of a workplace are reasonably required by s. 25(2)(h) in order to protect workers. The trial justice’s erroneous conception of the relationship between s. 25(2)(h) and the regulations resulted in his failure to adjudicate the s. 25(2)(h) charge as laid.

Practically, one expects that MOL inspectors will consider using this decision to issue compliance orders – or charges – under the “general duty clause” even where the regulations deal with the specific safety issue at hand – such as guardrails or fall arrest – but do not apply in the particular case.  For instance, MOL inspectors may issue compliance orders or charges for failing to provide guardrails around a temporary work platform that is only one foot high.

The appeal court allowed the appeal and ordered a new trial before a different justice.

Ontario (Labour) v. Quinton Steel (Wellington) Limited, 2017 ONCA 1006 (CanLII)

In important decision, Ontario appeal court says that general duty clause in OHSA can impose higher obligations than specific requirements in regulations

When is a Release effective to bar a safety-related complaint? Appeal court weighs in

A release, signed by a terminated employee, barred her complaint against her employer under occupational health and safety legislation, the Saskatchewan Court of Appeal has decided.

The employee was a nurse at a long-term care home.  The employer dismissed her during the probationary period on the basis that she was “not suitable”.  After getting legal advice, she signed a release in exchange for one month’s termination pay.

Less than a month after signing the release, she filed a complaint with the Occupational Health and Safety division of the Saskatchewan Ministry of Labour, alleging that prior to her termination, she had raised safety issues with management regarding bullying and unsafe staffing levels.

The court stated that OHS legislation is for the general benefit of employees, and that benefit should not be bargained away by a release or other agreement.  However, once a “triggering events” occurs which provides a worker with the right to make a complaint under OHS legislation, that right becomes “personal” to the worker.  Where a worker has given a release in respect of a personal right, the validity of the release must be reviewed.  Also, for the release to be effective to bar the personal OHS complaint, the timing of signing of the release (before or after the personal OHS issue arose) must be examined.

In this case, the release was valid, and the personal OHS issue occurred before the release was signed.  Therefore the employee was barred from advancing the OHS complaint.  Her OHS complaint was dismissed.

Wieler v Saskatoon Convalescent Home, 2017 SKCA 90 (CanLII)

 

When is a Release effective to bar a safety-related complaint? Appeal court weighs in

Other amendments to Ontario OHSA coming: accident reporting, unsafe buildings and written directives to MOL inspectors

Last week I wrote about the Ontario government’s plan to amend the Occupational Health and Safety Act to increase the maximum fine against corporations to $1.5 million per charge and against individuals – such as workers, supervisors and corporate directors –  to $100,000 per charge.

Schedule 30 to Bill 177 would also amend the OHSA to impose a requirement on employers who do not own the workplace (such as employers who rent or lease all or part of the building or facility in which the employees work), to notify the Ministry of Labour if the joint health and safety committee or a health and  safety representative has “identified potential structural inadequacies of a building, structure, or any part thereof, or any other part of a workplace, whether temporary or permanent, as a source of danger or hazard to workers”.   This provision appears to be in response to the tragic mall collapse in Elliot Lake, Ontario in 2012.

The Bill would also allow the government to make a regulation requiring employers other than constructors or mining companies to notify the MOL if certain events, described in the applicable regulations, take place.  In addition, the Bill would allow the government to make regulations that impose expanded accident reporting obligations on all employers under sections 51, 52 and 53 of the OHSA.

Lastly, the Bill gives the Deputy Minister of Labour authority to “establish written directives for use by inspectors respecting the interpretation, administration and enforcement of this Act and the regulations” which must be “consistent” with the OHSA and regulations and which MOL inspectors are required to follow.  Interestingly, the Bill would not require employers to comply with those written directives, which would seem to permit employers to legally challenge the correctness of any interpretation set out in a written directive.  We will have to wait to see what these written directives will look like.

Other amendments to Ontario OHSA coming: accident reporting, unsafe buildings and written directives to MOL inspectors

Ontario proposing to triple maximum OHSA fine to $1.5 million, change limitation period for laying charges

The Ontario government has introduced legislation to triple the maximum fine under the Occupational Health and Safety Act against corporations to $1.5 million per charge, and quadruple the maximum fine against individual persons – such as workers, supervisors or directors – to $100,000 per charge.

The proposed amendments are, one might say, buried in Schedule 30 to Bill 177 that would implement certain “budget measures”.  Perhaps for that reason, they have received very little attention.  The Bill is called, “Stronger, Fairer Ontario Act (Budget Measures), 2017”.

The Bill received second reading on November 30th and has now been referred to the Standing Committee on Finance and Economic Affairs.

The Bill would also change the limitation period for laying charges under the OHSA, which is currently one year. The new limitation period would be the later of one year or “the day upon which an inspector becomes aware of the alleged offence”. That seems to mean that for accidents that employers are not required to report to the Ministry of Labour, the limitation period would continue running until the MOL finds out about the accident – which could be years later when an inspector drops in for an inspection of the workplace.

There are other proposed amendments to the OHSA,  which we will write about next week.  Stay tuned.

Ontario proposing to triple maximum OHSA fine to $1.5 million, change limitation period for laying charges

The introduction of Bill 30 brings the potential for significant changes to Alberta’s workplace laws

On November 27, 2017, the Government of Alberta introduced numerous proposed changes to Alberta’s Occupational Health and Safety Act and Workers’ Compensation Act. The proposed changes are contained in Bill 30: An Act to Protect the Health and Well-being of Working Albertans.

A review of the key proposed changes in Bill 30 is found here. 

 

The introduction of Bill 30 brings the potential for significant changes to Alberta’s workplace laws

Court should be careful not to measure the practices of “smaller concerns” against those of large companies with far more resources, Justice of the Peace says in dismissing OHSA charge given due diligence

An Ontario Justice of the Peace has dismissed an Occupational Health and Safety Act charge in a fatality case, finding that the employer had established due diligence.

In a July blog post, we reported on an earlier decision in this case.  The OHSA charge against the company resulted from a fatality at a construction site after a “curb machine” overturned while being off-loaded from a “float” trailer, crushing a worker who later died. There were no witnesses to the accident.  The charge against the company alleged that the curb machine was moved in a manner that endangered a worker.

The Court decided that the worker deviated from the standard practice that he and other workers had followed on previous occasions.  There were no training courses available for the task in question, but the worker had in the past demonstrated his experience and ability to do that task. The employer was entitled to rely on the experience of a worker.

The court stated:

“(260)  Despite the fact that [a company witness] could have presented better while on the witness stand, and could have established a more formalized training protocol within his company, his approach is one that is shared by many small to medium sized companies.  These smaller concerns, in general typically have less resources to devote to formalized training (if any existed) but that does not necessarily mean that he was exposing his workers to foreseeable risks and dangers.  In fact the court must be careful not to measure the practices of smaller concerns against those of larger companies with far more resources as it might lead to potential prejudice and be antithetical to the very noble purposes that the court (and the MOL) would wish to uphold.”

In summary, with respect to due diligence: the company had held regular safety meetings; there were no formal education courses that one could take on the loading / unloading task; the worker knew or should have known that what he was doing was unsafe; the company encouraged workers to discuss any safety concerns and provided a forum for those discussions at regularly scheduled meetings; the worker had successfully moved the curb machine 27 times; and there was no evidence that this was an industry wide safety issue.

The employer had therefore established due diligence.  In the result, the charge was dismissed.

Ontario (Ministry of Labour) v. Cobra Float Service Inc., 2017 ONCJ 763 (CanLII)

Court should be careful not to measure the practices of “smaller concerns” against those of large companies with far more resources, Justice of the Peace says in dismissing OHSA charge given due diligence

Adjudicator refuses to anonymize employee’s name in medical accommodation case

Increasingly, in this “Internet age”, employees are asking employment tribunals to anonymize their names, given that almost all decisions are now posted on the Internet.

In a recent case, an adjudicator refused to anonymize a civil servant’s name in her medical-accommodation grievance against her employer.

The employee is a case officer with an Ontario government ministry.  Several years ago she injured her back, wrist and arm at work.  The employer accommodated.

A few years later she moved into a different role.  She complained that the employer did not accommodate her request to fix certain ergonomic issues at her workstation.  She also claimed to have a learning disability and to need a quieter work environment.  She said management was uncooperative.  She filed a grievance, and asked to have her name anonymized because the grievance involved presentation of medical information.

An adjudicator with the Grievance Settlement Board (GSB) refused the anonymization request.  She decided that the “open court principle” applied to the GSB.  Claimants should not be permitted to make serious accusations “from behind a veil of anonymity, assured that they will not be identified if they are found not to be credible, their allegations are rejected”.  Although in some cases that involve particularly sensitive medical information – such as certain information about a person’s mental health – anonymization might be warranted, medical information about the employee’s back, wrist and arm injury were not so sensitive.  As such, the presumption of an “open court” was not displaced and her name would not be anonymized.

Ontario Public Service Employees Union (Cull) v Ontario (Health and Long-Term Care), 2017 CanLII 71798 (ON GSB)

Adjudicator refuses to anonymize employee’s name in medical accommodation case

MOL inspectors have the power to Order employers to produce documents, even if no contravention of OHSA has been found, OLRB decides

The Ontario Labour Relations Board has stated that Ministry of Labour inspectors have the power to require employers to provide documents to the MOL, even where the inspector has not found any contraventions of the Occupational Health and Safety Act.  

In the case in issue, the OLRB decided that a municipal fire service must give the MOL certain documents that an MOL inspector Ordered the fire service to provide.

The MOL received an anonymous complaint naming the fire service and raising concerns about training programs available to firefighters.  An MOL inspector visited the fire service and issued a “requirement” Order to provide certain documents including training records for the last two years for firefighters; standard operating guidelines and procedures; a training program flow chart; the professional development program; a report showing what training firefighters get before and after they are hired; and the post-incident analysis and review for all incidents in the past six months.

The fire service provided the training records and standard operating guidelines and procedures but did not provide the other  documents.  It appealed the MOL inspector’s Order to the OLRB and asked the OLRB to suspend the Order pending the result of the appeal.  It made a number of arguments including that the documents already provided to the MOL contained sufficient information for the inspector to assess the training complaint, and that some of the documents related to labour relations and not safety.

The OLRB refused to suspend the inspector’s Order to produce the documents, stating that section  54(1)(c) of the OHSA provides inspectors with broad rights to require the production of any number of documents, even without the inspector having found that the employer contravened the OHSA or regulations.  Also, the OLRB could not at this point determine whether suspending the Order would put any workers at risk.  As such, the inspector’s Order was not suspended and remained in effect.

The Corporation of the Municipality of Chatham-Kent v A Director under the Occupational Health and Safety Act, 2017 CanLII 74130 (ON LRB)

 

MOL inspectors have the power to Order employers to produce documents, even if no contravention of OHSA has been found, OLRB decides

Lack of remorse results in 4 month jail sentence for supervisor in fatal trench incident

An Alberta judge cited a lack of remorse as a factor warranting a 4 month jail term for a supervisor of a work site. The supervisor, as well as his employer, had been charged with a variety of offences stemming from an incident that occurred in April 2015 where a trench at an infill housing construction site collapsed, fatally injuring a worker. The worker was a casual day labourer who had been working in the trench to install new water and sewer lines. The trench was not braced in any way, contrary to the legislation, and a wall collapsed, trapping the worker inside the trench where he died. The employer pleaded guilty to the charge of failing to ensure the health and safety of a worker and the supervisor pleaded guilty to the charge of failing to take reasonable care to protect the health and safety of another worker.

While a guilty plea will often be considered a mitigating factor, it did not have that effect in this case. The judge found that the employer and the supervisor had exploited a vulnerable worker for profit and put their own interests ahead of safety and the requirements in the regulations. Therefore, the judge found that jail time was appropriate as the supervisor’s culpability was very high.

The employer was sentenced to a fine of $425,000 plus the victim fine surcharge of $63,750. However, the judge noted that the employer was a company without assets and she acknowledged that it was unlikely to pay the fine. Nevertheless, the judge considered it appropriate to issue a large fine in order to have an impact on other corporations who may be motivated to conduct business in a similar manner.

The developer of the worksite had previously pleaded guilty as the prime contractor to the charge of failing to ensure the legislation was complied with on a work site. The developer had agreed to a fine of $111,250 and a $50,000 contribution in the worker’s name to an organization where he had previously accessed services to assist in providing safety training and equipment to day labourers.

This case is a clear example of an increasing trend across Canada where courts are willing to sentence supervisors to jail time for occupational health and safety offences. Jail time sentences are likely to continue to be imposed and, as this case demonstrates, the sentences are likely to become longer.

See here for a list of charges (charged is: Haya Homes Ltd., Sahib Contracting Inc., Sukhwinder Nagra).

Lack of remorse results in 4 month jail sentence for supervisor in fatal trench incident

City inspector who engaged in two separate physical attacks at work was fired for cause: “that risk must be removed from the workplace”

A labour arbitrator has upheld the dismissal of a city inspector after he physically attacked two people – a coworker and a contractor to the city – in two separate incidents at work.

The employee was an inspector with the Municipal Construction unit at the city’s Water Division.

The arbitrator found that in one incident, the employee engaged in a physical altercation in which he intentionally struck a coworker, causing him injury (a 1-2 cm cut under his left eyebrow). The incident arose from a dispute about the use of city laundry facilities used to wash employees’ work clothes.  The arbitrator also found that the employee was dishonest in his characterization of what occurred, and did not accept responsibility.

In the other incident, the employee engaged in a verbal altercation with a city contractor (a backhoe operator) while inspecting a new residential service connection at a private property.  Instead of walking away, the employee escalated the dispute into a physical altercation, following the contractor and striking him twice in the back of the head.  The dispute was over whether the backhoe operator was using the appropriate material for backfill.

The arbitrator stated:

“There is simply no basis on which to relieve against the grievor’s termination.  His inability to control his anger has resulted in conduct which is completely unacceptable.   Even prior to Bill 168, an employee who, on two separate occasions physically attacked persons in the workplace, particularly when at least one of those attacks resulted in an injury, could expect to have their employment terminated, and that termination upheld.” 

Here, rather than taking responsibility for his actions, the employee attempted to blame the victims. He had failed to take an anger management course when requested, and also had received a Letter of Direction, directing him not to engage in workplace violence.

The arbitrator concluded:

“Accordingly, I accept the City’s assessment that the grievor has anger management issues, is likely to reoffend by engaging in violence, and that that risk must be removed from the workplace.”

There were no mitigating factors in the case. The employee’s dismissal was upheld.

Canadian Union Of Public Employees, Local 79 v Toronto (City), 2017 CanLII 53965 (ON LA)

City inspector who engaged in two separate physical attacks at work was fired for cause: “that risk must be removed from the workplace”

A Truly Poisoned Work Environment – Arbitrator Upholds Discharge of Employee Who Spiked Office Water Cooler with Bleach

In what can only be described as a victory for common sense, an arbitrator recently upheld the discharge of a 27 year employee who was found responsible for spiking the office water cooler with chlorine bleach.

On September 12, 2011, an employee reported to his supervisor that the water from the office water cooler had a “strong chlorine smell” and a “very hard taste”. In reviewing the surveillance video on the day in question, the Grievor is seen exiting his office with an empty water cooler jug, entering the chemical storage room and then leaving the chemical storage room and walking back to his office with a chlorine bleach jug in his hand. As he re-enters his office, the Grievor is seen placing his hand on the cap of the chlorine bleach jug. The Grievor later exits his office with the chlorine bleach jug in his hand. He ultimately returns to his office with a full jug of water for the cooler.

When initially confronted about the situation, the Grievor denied that he had caused the contamination of the water cooler but volunteered no information about why he had obtained the bleach from the chemical storage room. However, in his subsequent meetings with investigators and through his testimony at the hearing, the Grievor’s story evolved to the point where he alleged that he had poured the bleach into two cups – one to be used later in the day to clean some shelves in his office and the other to pour into a dumpster located outside his office in order to kill its odour.

At the hearing, the Grievor’s supervisor rejected the Grievor’s explanation noting that it made no sense for the Grievor to clean the shelves since they were not dirty and they were being dismantled to be taken out of the building. He further testified that he never saw the Grievor use a cup to pour chlorine breach into the dumpster.

In his decision, the Arbitrator found that the Grievor’s testimony lacked credibility. In the Arbitrator’s view, “the Grievor’s many actions, as witnessed on the video and as described in his testimony, when taken together simply defy logic and do not make sense”. As a result, the Arbitrator ruled that it was more likely than not that he was the cause of the chlorine bleach contamination of the office drinking water cooler. With respect to penalty, the Arbitrator held that “…the level of mistruths and evasiveness displayed by the employee, as well as his failure to take responsibility for his actions, irreparably harmed the employee-employer relationship.” There was therefore no basis for the Arbitrator to interfere with the Employer’s decision to dismiss the Grievor for cause.

This case is a good reminder of the importance that credibility will play when an adjudicator is asked to determine which version of events is more likely to have occurred. In conducting investigations, employers should ensure that they take detailed statements from those involved so as to “nail down” the alleged offender’s story. Should the alleged offender later change his or her story, the employer will be in a good position to impeach the employee’s credibility.

Knox v. Treasury Board (Canadian Food Inspection Agency), 2017 PSLREB 40.

 

 

A Truly Poisoned Work Environment – Arbitrator Upholds Discharge of Employee Who Spiked Office Water Cooler with Bleach

Well-trained worker’s negligence, which was unforeseeable, caused his death: company not guilty of OHSA charge

An Ontario judge has decided that a worker’s negligence – not the company’s – caused the worker’s death, overturning a conviction and fine in a Ministry of Labour prosecution against the company under the Ontario Occupational Health and Safety Act.

The worker died when he cut a band holding steel coils together, without ensuring that the coils were stabilized.  The coils fell on him. There were no eyewitnesses to the incident.

The company was found guilty at trial on one OHSA charge of failing to provide suitable “information, instruction and supervision” to the worker. The company appealed.

The worker had worked for the company for 18 years. He had received 80 hours of hands-on training from a fellow employee and had received other extensive safety training from the company.  The company had safe operating procedures, some of which were not in writing, but that was not required by law.

The judge decided that the court may consider a worker’s negligence in determining whether the employer was guilty of failing to provide the worker with suitable “information, instruction and supervision”. Also, the trial Justice of the Peace erred when she failed to consider the defence expert’s evidence that the design and layout of the work area were appropriate as were the established work procedures.

The court concluded:

“There was ample evidence of thorough and extensive employee safety training, and the accident was not due to a lack of it.  It was the negligence of [the deceased worker] which caused it, something the company could not have foreseen.  It is a tragedy because [the deceased worker] was a husband and father and a long time, valued employee.”

In the result, the judge allowed the appeal, overturned the finding of guilt on the training charge, and therefore set aside the fine.

Ontario (Ministry of Labour) v. Samuel, Son & Co. Limited, 2017 ONCJ 611 (CanLII)

Well-trained worker’s negligence, which was unforeseeable, caused his death: company not guilty of OHSA charge

Appeal judge reduces $250,000 fine to $80,000, and sets aside jail terms against company directors in workplace fatality

An Ontario judge has decided that a $250,000 fine against a small company, and 25-day jail terms for two company directors, were too severe.

The defendant employer was a small business with a few employees at the time of the accident.  An employee died after he fell 12 feet while attempting to retrieve merchandise in the warehouse.   The employee had not received safety training and was not wearing any safety equipment.

The employer and its two directors were charged with offences under the Occupational Health and Safety Act relating to training and fall protection.  Each of them pleaded guilty to two charges.  The court imposed a total fine of $250,000 on the company and 25-day jail terms for the directors, reasoning that a fine against the directors personally “would only cause more financial hardship”.

The appeal judge decided that the $250,000 fine against the company, and the jail terms, were “significantly out of the range of sentences regularly imposed by the courts for these types of offences and for these types of offenders”.  The fine was “demonstrably unfit”. Similarly, the trial Justice of the Peace was wrong when she reasoned that jail terms were appropriate for the directors because a fine would cause more financial hardship.  The caselaw showed that jail terms were more appropriate for defendants with prior safety convictions for whom fines had not had a deterrent effect.

The appeal judge therefore imposed a total fine of $50,000 on the company and $15,000 on each of the two directors, for a total of $80,000.  The jail terms were set aside.

Ontario (Ministry of Labour) v. New Mex Canada Inc., 2017 ONCJ 626 (CanLII)

Appeal judge reduces $250,000 fine to $80,000, and sets aside jail terms against company directors in workplace fatality

Employer did not terminate worker’s employment because he had raised safety concerns

After only two months on the job, an equipment operator/driver was terminated by his employer. He believed he had been terminated because he had recently raised several health and safety concerns about a job site. He had been concerned that a waste disposal bin he was required to service was in close proximity to overhead power lines. He alleged that upon telling his employer about his concerns, his employer terminated his employment.

The worker made a complaint to the Occupational Health and Safety (OH&S) Division, claiming that the employer’s conduct constituted discriminatory action against him contrary to the occupational health and safety provisions of the Saskatchewan Employment Act (SEA). OH&S officials investigated the matter and determined that the worker’s complaint of discriminatory action was well-founded. The employer was directed to reinstate the worker and make him whole with respect to lost wages and benefits. The employer appealed. The OH&S Adjudicator allowed the appeal. The worker then appealed that decision to the Labour Relations Board. The Board dismissed the appeal, finding that the Adjudicator’s decision was reasonable.

The Board acknowledged that the worker was entitled to the protections in the SEA notwithstanding that he was still within his probationary period. The key issue before the Board was whether the worker’s termination constituted discriminatory action; in other words, whether or not there was a causal connection between the worker voicing concerns about workplace safety and his termination shortly thereafter. This issue depended on whether or not the worker had advised the employer of his workplace safety concerns prior to the termination meeting. The Adjudicator had considered the evidence and determined that he had not. While he had mentioned it to his route coordinator, she did not have a management role and she had made it clear to the worker that he needed to bring his concerns to the attention of the general manager. Despite numerous opportunities, the worker did not discuss his concerns with his general manager until he was informed that he was being terminated. While the section of the SEA did not explicitly require a worker to advise the employer of safety concerns, the only reasonable interpretation was that a worker did have to notify the employer before being able to lawfully refuse work. The Board determined that the Adjudicator’s conclusion that the worker had failed to notify the employer was reasonable and thus the Adjudicator’s decision that the employer had not violated the SEA was also reasonable.

The Board also found that the Adjudicator’s decision that the employer had good and sufficient other reason to terminate the worker’s employment was reasonable. This related to the Adjudicator’s determination that the employer had established that the worker had been insolent to the general manager, had made inappropriate statements to some of the employer’s customer’s employees, and had been the subject of a customer complaint. The Adjudicator had decided that the employer’s determination, based on these incidents, that the worker was not a fit for the organization was the reason for the termination, not the fact that he had raised safety concerns. The Board found this decision was reasonable. The Board rejected the employer’s request for costs.

Lund v. West Yellowhead Waste Resource Authority Inc. et al., 2017 CanLII 30151 (SK LRB)

Employer did not terminate worker’s employment because he had raised safety concerns

Second OHSA conviction gets construction employer jailed for 30 days

Another Ontario employer has been jailed for violating the Occupational Health and Safety Act. As in some previous OHSA jail-time cases, this one involved a worker falling off a roof.

For our blog posts on some previous OHSA jail-time cases, click here.

The worker was working on the roof of a construction project. He was wearing a fall-arrest harness that was attached to a lanyard, which was connected to a lifeline. The worker detached the lanyard from the lifeline and moved toward a different lifeline at the peak of the roof. He slipped and fell almost 30 feet to the ground and was seriously injured.

The employer, an individual, pleaded guilty to failing to ensure that the worker was attached to a travel restraint system at all times.  The court sentenced the employer to 30 days in jail.

Importantly, this was the employer’s second conviction under the OHSA.  In 2013, another worker employed by the employer died after he fell 26 feet to the ground. The employer was fined $15,000 in that case.

For years, jail terms were very rare in OHSA matters.  The courts appear to be getting more comfortable with imposing jail time for serious OHSA violations by repeat offenders.

The MOL press release for this case can be found here.

Second OHSA conviction gets construction employer jailed for 30 days

Changes on the horizon for Alberta’s Workers’ Compensation system?

In March 2016, the Government of Alberta launched a formal review of the workers’ compensation system and established an independent panel to examine the system and make recommendations. The panel received feedback from the public and held various consultation sessions with injured workers, safety associations and several other interested parties. The panel completed its review earlier this year and submitted its final report to the Ministry of Labour. That report was recently released and can be accessed on the Government of Alberta’s website here.

The panel’s report noted that while there are clearly many issues with the workers’ compensation system, overall, it continues to be valued by both workers and employers. Both sides generally continue to see it as a preferable alternative to litigation. However, the report pointed out that while most claims are dealt with relatively well, more complex claims often give rise to considerable issues, causing frustration to all parties. The most significant issue with the system is not the level of benefits, but rather, the overall decision making process which is often viewed as preferring the efficient management of claims at the expense of assisting injured workers.

Interestingly, the panel found that both employers and workers seem generally unhappy with the system – workers feel that the system is in the employer’s “pocket”, while employers feel that the system favours workers. Reestablishing trust in the system is seen as a key goal.

The panel’s report includes 60 different recommendations, some to the legislation, others to policy or operations. The focus of the changes is towards a “worker-centered” system. Some of the key proposed changes highlighted in the report are:

  • The establishment of a new Fair Practices Office, independent of the WCB, similar to an ombudsman;
  • Increased assistance for workers and employers with reviews and appeals through an Office of the Appeals Advisor that is relocated from the WCB to the Fair Practices Office;
  • The use of a new roster system for independent medical examinations (IMEs), with responsibility for the roster residing with the Medical Panel Office, which is independent from the WCB;
  • Greater choice for injured workers in selecting health professionals, in addition to the choice they already have in selecting their treating physicians;
  • The establishment of an obligation to return workers to work, and a corollary obligation to cooperate on the part of workers;
  • The use of case conference models throughout the system, along with a system-wide commitment to seek early and collaborative resolution of any disputes that arise;
  • The adjustments of certain benefits provided by the system, with the specific aim of addressing areas where there is hardship, fatalities, permanent injuries of young workers, retirement benefits or people who are affected in dramatic ways by the current application of WCB policies; and
  • Further study or review of particularly complex aspects of the system.

Some of these recommendations, such as establishing an obligation to return injured workers to work, are controversial and it will be interesting to see which of these recommendations will ultimately be implemented.

Changes on the horizon for Alberta’s Workers’ Compensation system?