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Firing after employee’s “generalized threat to get legal advice” was not retaliatory

An employee who was fired approximately one month after he told his employer that he “might get legal help” was not the victim of a reprisal, the Ontario Labour Relations Board has decided. Although the case was filed under the Employment Standards Act, the ruling is of interest to health and safety professionals.

The employee did not mention the Employment Standards Act when he said that he “might get legal help”   The OLRB decided that that assertion might describe a broad range of possible actions not limited to those under the Employment Standards Act.

The employee admitted that he did not know about the Employment Standards Act when he said that he might get legal help.  Shortly after his termination, he sent an e-mail to the company referring to wrongful dismissal and discrimination.

The OLRB concluded:

“There are no ‘magic words’ required for an employee to invoke the protection of s. 74 of the Act [the reprisal provision of the Employment Standards Act] so it is not necessary for an employee to refer specifically to the Act . . . However, where the background facts do not appear to raise issues of the enforcement of the Act and the employee makes only a generalized threat to seek legal assistance – as in this case – the protection of s. 74 of the Act cannot be engaged.”

This case confirms that generalized threats will not be enough to support an employee’s complaint that he or she has been retaliated against for asking the employer to comply with employment standards or health and safety legislation.  The employee must have sought to exercise his or her rights under the particular Act before he or she can claim retaliation for doing so.

Zongping (Peter) Luo v Economical Mutual Insurance Company, 2015 CanLII 79023 (ON LRB)

Firing after employee’s “generalized threat to get legal advice” was not retaliatory

Criminal negligence causing death charge against auto mechanic reinstated by appeal court

A charge of criminal negligence causing death against an auto mechanic may proceed, the Ontario Court of Appeal has decided, holding that it was possible that a reasonable jury could find that the mechanic was a “significant contributing cause” of a woman’s death.

The case illustrates that workers – perhaps particularly those who repair or operate vehicles or equipment – could face criminal charges if they are negligent and the negligence causes injury or death.

The mechanic issued a Safety Standards Certificate to the purchaser of a 17-year-old pickup truck.  The Safety Standards Certificate was required to complete the transfer of ownership.  There was evidence that the mechanic did not conduct the legally-required inspection of the truck.  A month later, the truck was involved in an accident in which the driver lost control and collided with an oncoming vehicle driven by the young woman, who died as a result of the accident.

There was evidence at a preliminary inquiry that the truck would not have passed a safety inspection and that there was a serious defect in the truck’s steering mechanism (“excessive free play” in the steering wheel).  The appeal court noted that an O.P.P. accident reconstructionist concluded that the steering defect pre-dated the collision and would cause the driver to over-correct in a panic situation, leading to a loss of control and further over-steering. Also, there was evidence that the truck “fishtailed” before the collision; the previous owner had testified that the steering wheel wandered” and had “a little bit of play”; there was testimony that the purchaser of the truck was planning on installing a new steering shaft; and there was testimony that both the driver and the purchaser thought to blame the accident on the steering shortly after the accident.

The Ontario Court of Appeal therefore concluded that a reasonable jury could find that the mechanic was a significant contributing factor to the death and that the mechanic was therefore guilty of criminal negligence causing death. Therefore, the charge of criminal negligence causing death should proceed to a trial.

R. v. Ramono, 2015 ONCA 685 (CanLII)

Criminal negligence causing death charge against auto mechanic reinstated by appeal court

A first for Alberta – Employer sentenced to corporate probation and community service for violating the Occupational Health and Safety Act

In a unique decision, an Alberta employer, Needoba Construction Ltd., which pleaded guilty to the general charge of failing to ensure, as far as it is reasonably practicable to do so, the health and safety of a worker, has received a sentence which includes 18 months of corporate probation and 200 hours of community service. The employer was also sentenced to a fine of $11,150 including the victim fine surcharge.

The decision stems from a 2012 incident where a worker fell over 6.5 metres through an uncovered stairwell opening at a residential construction site. The worker sustained paralytic injuries. The employer did not have a fall protection plan in place at the work site. The employer was initially charged with 4 counts under the Occupational Health and Safety Act (Alberta) but after it entered a guilty plea on the general charge, the remaining counts were dropped.

A corporate representative will be completing the community service time with a non-profit organization called Hearts and Hammers which renovates homes for people in need with mobility challenges.

While the Occupational Health and Safety Act (Alberta) gives the court fairly broad discretion and powers to make other orders in addition to, or as an alternative to, fines or imprisonment, this is the first time that community service has been ordered against an employer for an occupational health and safety violation.

The Alberta Government news release

A first for Alberta – Employer sentenced to corporate probation and community service for violating the Occupational Health and Safety Act

Join us on February 16th – Webinar on Key OHS Cases from 2015

Please join us on February 16th for a complimentary webinar on Key OHS Cases from 2015.

Adrian Miedema and Chelsea Rasmussen have selected, from the cases summarized on the Dentons’ OHS blog, occupationalhealthandsafetylaw.com, some key OHS cases from 2015.

Topics covered in those cases include privilege in accident investigations, Metron update, workplace violence, marijuana use, OHS experts, post-accident fixes, and more.

Webinar Details
February 16, 2016
12:00 – 1:00 p.m. EDT

Click here to RSVP

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

Join us on February 16th – Webinar on Key OHS Cases from 2015

$5.3 million fine in Sunrise Propane case after joint prosecution under OHSA and EPA

Some cases illustrate very well the principle that “the more dangerous your operation, the more careful you must be”.  This case, involving a joint prosecution by the Ministry of Labour and Ministry of Environment, is one of them.

Sunrise Propane Energy Group Inc. and its directors have been fined a total of $5.3 million under both the Occupational Health and Safety Act and the Environmental Protection Act, following high-profile explosions at a propane-filling plant in Toronto more than seven years ago.

A young worker with short service was killed by the explosions.  Propane was accidentally ignited during a prohibited truck-to-truck transfer.  The explosions also discharged contaminants from fuel tanks, resulting in an evacuation in the area. Some area residents suffered injuries and burns and local businesses lost business as they were forced to close.

Sunrise Propane was fined $280,000 plus a victim fine surcharge of $70,000 for failing to train and supervise workers on safe work practices and failing to take every reasonable precaution to protect workers, contrary to the Occupational Health and Safety Act.  OHSA charges are prosecuted by the Ministry of Labour.

In a previous post, we noted that the court, in its 2013 decision convicting the company and directors in 2013, held that the young worker had not been properly supervised.  The employer did not take the simple step of giving the employee a phone number to call if he had any questions.  Nor did any supervisors call him to check in on him.  The employee should not have been put in charge of the propane yard on the night in question, given his lack of experience.

Referring to the dangerous nature of this workplace, the court had stated in its 2013 decision:

“I am sure that the defendants were well meaning, to a degree, but in an inherently dangerous business such as this there must be a high degree of attention to detail and processes in place that address day-to-day issues, particularly instructing, training and supervision for people handling this very dangerous fuel.  People make mistakes and processes assist in mitigating any damage that arises when employees make those mistakes.”

Sunrise Propane was also fined $2,820,000 plus a victim fine surcharge of $705,000 for failing to comply with a cleanup order from the Ministry of the Environment and Climate Change after the explosions, and for discharging a contaminant that caused adverse effects.  Two company directors were fined $100,000 each plus a victim fine surcharge of $25,000 each for not complying with an order.  A related company was fined $2 million plus a victim fine surcharge of $500,000 for the discharge of the contaminant that caused adverse effects.  EPA charges are prosecuted by the Ministry of the Environment and Climate Change.

The press release from the Ministry of Labour may be found here, and the press release from the Ministry of the Environment and Climate Change may be found here.

$5.3 million fine in Sunrise Propane case after joint prosecution under OHSA and EPA

“Presumptive remedy” for retaliatory discharge under OHSA is reinstatement of employee, OLRB states

Where an employer fires an employee for raising safety concerns, the employee will generally be entitled to reinstatement, the Ontario Labour Relations Board has stated.

The case involved a restaurant employee who sent an e-mail to the owner complaining of workplace harassment and asking for a copy of the employer’s harassment policy.  In the owner’s e-mail response, he denied the harassment. He did not give her a copy of the policy.

A few days later, the owner sent the employee an e-mail advising that the Ministry of Labour had commenced an inspection under the Occupational Health and Safety Act and asking her to meet with the employer’s health and safety committee.  The employee responded that she was willing to do so, and again requested a copy of the harassment policy.  The owner never contacted her again, and did not schedule her for any more shifts despite the employee’s repeated requests to be returned to the schedule.

The employee filed a reprisal complaint under the OHSA with the Ontario Labour Relations Board. The employer did not attend the hearing.  In the absence of an explanation by the employer, the OLRB was satisfied that at least part of the employer’s reason for ceasing to schedule her was that she had raised health and safety issues.

The OLRB stated that, “The presumptive remedy for a reprisal in contravention of section 50 of the Act is to reinstate the discharged employee and to provide the employee with lost wages from the date of the discharge up until the date of the reinstatement subject to mitigation.”

However, in this case, the employee did not want to go back to work at the restaurant.  The OLRB decided that, “Given the manner in which her employment ended, I do not find that reinstatement would be a viable remedy in the circumstances.  I agree with counsel that, in the place of reinstatement, Ms. Thompson is entitled to damages for loss of employment.” The OLRB awarded her damages of $7,437.16 for “loss of employment and loss of wages”.

Thompson v 580062 Ontario Inc (Slainte Irish Gastropub), 2015 CanLII 76907 (ON LRB)

“Presumptive remedy” for retaliatory discharge under OHSA is reinstatement of employee, OLRB states

Ontario OHSA convictions, fines inch up in 2014/15, MOL field visits at 11-year low

While the number of field visits conducted by Ontario Ministry of Labour inspectors continued to decline in 2014/15, the number of convictions increased slightly, the Ontario Ministry of Labour’s “Occupational Health & Safety in Ontario 2014-15 Annual Report” shows.

An MOL inspector conducts a “field visit” when he or she visits a workplace and meets with the workplace parties in order to enforce the Occupational Health and Safety Act.

There were a total of 70,604 field visits by MOL inspectors in 2014/15, down from 73,204 in 2013/14 – and down 30% from the 101,275 field visits recorded for 2007/08, which appears to have been the highest number ever.

There were 817 convictions in 2014/15 for offences under the Ontario OHSA, up slightly from 780 in 2013/14.  Convictions result from successful prosecutions by the MOL – either after a trial or a guilty plea.  As we discussed in a previous blog post, the number of convictions has been declining in recent years and reached a six-year low in 2013/14.  We will need to wait to see whether the uptick is part of a new trend towards more convictions.

The number of “critical injuries” reported to the MOL in 2014 was 1,095, which is down slightly from the previous year, but has not declined significantly in the last few years.  There were 81 “traumatic fatalities” in 2014, down from 102 in 2013, but close to the ten-year average of 88.

The total amount of fines for OHSA convictions increased slightly in 2014/15.  The average fine per conviction in 2014/15 was $11,463.73, which is actually slightly down from $11,932.00 in 2013/14. The average fine has held relatively steady over the past few years.

Ontario OHSA convictions, fines inch up in 2014/15, MOL field visits at 11-year low

July 1, 2016: All Ontario employers must comply with new noise regulation

As of July 1, 2016, all Ontario employers will be required to comply with a new workplace noise Regulation under the Occupational Health and Safety Act.

The new Regulation (381/15) replaces noise protection requirements currently in the regulations for Industrial Establishments, Mines and Mining Plants, and Oil and Gas-Offshore.  Those regulations apply to many – but not all – Ontario employers.

The noise obligations will be new for employers with the following types of workplaces:

  • construction projects
  • health care facilities
  • schools
  • farming operations
  • fire services
  • police services
  • amusement parks

The new Regulation’s basic requirements are:

-Employers must take “all measures reasonably necessary in the circumstances to protect workers from exposure to hazardous sound levels”

-The noise-protection measures must “include the provision and use of engineering controls, work practices” and, where required (and permitted), hearing protection devices

-In general, every employer must ensure that “no worker is exposed to a sound level greater than an equivalent sound exposure level of 85 dBA, Lex,8” (as calculated according to the Regulation) without requiring workers to wear hearing protection devices

-Hearing-protection devices are a secondary (not primary) noise-protection solution and will be permitted in only certain listed circumstances

-Employers must, where practicable, post a warning sign at every approach to an area where the sound level regularly exceeds 85

-Employers who provide hearing-protection devices must provide appropriate hearing-protection training to workers who use those devices.

The Regulation may be found online here.

July 1, 2016: All Ontario employers must comply with new noise regulation

Contractor jailed for 30 days, fined $45,000 after serious asbestos violations

Every now and then a case comes along to remind us that violators of occupational health and safety legislation can be sent to jail.

Mind you, this case involved not only serious safety violations, but also deceit and illegal dumping.

An Ontario contractor has been jailed for 30 days and fined $45,000, after a successful prosecution by the Ontario Ministry of Labour, for violating the asbestos regulation under the Ontario Occupational Health and Safety Act.

According to the Ministry of Labour court bulletin, on two separate dates in 2014, the contractor, along with at least one of his workers, went to a residential home to remove asbestos-containing insulation from the attic.

The contractor did not separate and seal off the work area; did not have any decontamination facilities in place; did not identify the work area with any signs warning of an asbestos dust hazard; did not wear protective clothing; and he and his worker wore respirators that were not fit-tested and on which they were not trained. Further, the contractor did not notify the Ministry of Labour of the asbestos removal work as required by the asbestos regulation. The contractor had told the homeowner that the removal work was being done in accordance with the asbestos regulation, and that the contractor was certified to do the work, but neither was true. The homeowner and two other people were in the home while the work was being done.

The Ministry of Labour, Ministry of Environment and police got involved when someone reported that vacuum bags with asbestos-containing insulation had been illegally dumped on private property.

After a trial, the contractor was found guilty on nine charges under the Occupational Health and Safety Act and Regulation 278/05 (“Designated Substance – Asbestos on Construction Projects and in Buildings and Repair Operations”) under the OHSA.  The court stated that this was a case of clear deceit and misrepresentation by the contractor and total disregard for the health and safety of workers and the public.

The court then imposed the thirty-day jail sentence and $45,000 fine.

The Ministry of Labour’s court bulletin may be accessed here.

Contractor jailed for 30 days, fined $45,000 after serious asbestos violations

Summary of judge’s reasons for giving Kazenelson, “unquestionably a person of good character”, a 3 1/2 year jail sentence for criminal negligence

The judge’s reasons for sending Metron Construction’s project manager, Vadim Kazenelson, to jail for criminal negligence are now available here.

In our post of January 11th, we reported that the judge had sentenced Mr. Kazenelson to 3 1/2 years in prison.

Mr. Justice MacDonnell’s reasons for imposing the 3 1/2 jail term are as follows:

-Although Mr. Kazenelson was of “good character prior to the accident and has continued to be of good character in the six years since”, and he was remorseful and unlikely to commit further criminal offences of any kind, the offences and their consequences were very serious: four men lost their lives and a fifth suffered devastating and life-altering injuries.

-As the Crown and Mr. Kazenelson agreed, the principles of denunciation and general deterrence (sending a message to others, to prevent similar crimes in future) required a term of imprisonment.

-Mr. Kazenelson’s breach of duty was “more than a momentary lapse”.  He was aware that the workers were working 100 feet or more above the ground without lifelines.  “His duty to take steps to rectify this dangerous situation was fully engaged, and it remained engaged for some time” (he was with the workers for at least 30 minutes prior to the accident).

-He not only did nothing, he permitted all six workers to board the swing stage together with their tools.

-He did so in circumstances where he had no information with respect to the capacity of the swing stage to safely bear the weight of the workers and their tools.

-Mr. Kazenelson “adverted to the risk, weighed it against Metron’s interest in keeping the work going, and decided to take a chance.  That is a seriously aggravating circumstance in relation to the moral blameworthiness of his conduct.”  Mr. Kazenelson was aware that there was a deadline for completing the work and that his boss was intent on meeting it.

-“A consideration of all of the circumstances can lead only to the conclusion that a significant term of imprisonment is necessary to reflect the terrible consequences of the offences and to make it unequivocally clear that persons in positions of authority in potentially dangerous workplaces have a serious obligation to take all reasonable steps to ensure that those who arrive for work in the morning will make it safely back to their homes and families at the end of the day.”

In the end, Mr. Kazenelson, now a 40 year old father of three young sons, described as “honest, hardworking, conscientious and safety-minded”, “a good and devoted father to his children” and “unquestionably a person of good character” who was providing support to his mother who resides overseas, was sentenced to 3 1/2 years in prison.  Mr. Kazenelson has appealed his conviction for criminal negligence, so it would appear that the case is not over yet.

R. v Vadim Kazenelson, 2016 ONSC 25 (CanLII)

 

Summary of judge’s reasons for giving Kazenelson, “unquestionably a person of good character”, a 3 1/2 year jail sentence for criminal negligence

3 1/2 years in prison for Metron project manager, Kazenelson, after criminal negligence conviction

Vadim Kazenelson, the project manager for Metron Construction, was sentenced today to 3½ years in prison for criminal negligence.

This is the longest-ever jail sentence handed down for criminal negligence under the “Bill C-45” amendments to the Criminal Code in 2004 that made it easier to convict workplace supervisors for criminal negligence.

The charges relate to the tragic accident on Christmas Eve 2009 in which four workers – who were not wearing fall-arrest equipment – fell to their death after a construction swing stage, on which they were working, failed.

CBC News is reporting that “during sentencing, Justice Ian MacDonnell said Kazenelson was aware that fall protections were not in place, but still allowed his workers to board a swing stage that collapsed, causing five workers to plummet to the ground.”

Mr. Kazenelson has appealed his criminal negligence conviction and has been granted bail pending that appeal.

According to CBC News, the prosecutor was seeking a jail sentence of four or five years, whereas the defence was suggesting a one- or two-year jail sentence.

CBC News reports that Justice MacDonnell said that Mr. Kazenelson put the company’s interest — in particular getting the work finished ahead of a December 31 deadline — before the safety of workers when the decision was made to continue work without safety harnesses.

The June 26, 2015 decision in which Mr. Kazenelson was found guilty of criminal negligence, may be accessed here.

3 1/2 years in prison for Metron project manager, Kazenelson, after criminal negligence conviction

“Industry standard” is not always appropriate safety precaution, and MOL inspector’s “gut instinct” is not enough to ground compliance order: OLRB

A mining company has won a lengthy dispute with the Ontario Ministry of Labour after satisfying the Ontario Labour Relations Board that the applicable “industry standard” was not appropriate in the case at hand.

The issue in the case was whether the Ontario Occupational Health and Safety Act prohibited the employer from “skipping” (bringing mined ore or muck to the surface using a hoist – like an elevator system – after it has been mined) while shaft inspections were being performed.  A Ministry of Labour inspector had written compliance orders requiring the company to refrain from skipping while inspecting the shaft.

The Ministry argued that the industry standard is to refrain from skipping while inspecting the shaft.  The company showed, however, that this standard should not apply because, in particular, the loading pocket (where material is loaded for transportation to the surface) is at the base of the shaft, below the bottom point at which shaft inspectors would travel when on the inspection deck of the main cage.  Thus, even if the loading pocket malfunctioned, it would not present a hazard to the shaft inspectors because they would be above it. Also, the risk of a falling object injuring the shaft inspectors was very remote, given the precautions already in place.

Interestingly, the Ministry of Labour argued that if the OLRB allowed the appeal and set aside the inspector’s orders, the OLRB would be “playing Russian roulette with worker’s  lives”. The OLRB answered that assertion as follows:

“The Board takes the health and safety of the workers of this province, and the miners at NRS, extremely seriously. However, on the facts of this case the evidence establishes that skipping does not create any reasonably foreseeable increased risk of harm to the inspection crew. It is not enough for the Director to rely on gut instinct to establish the need for an order; the basis for an order must be grounded in evidence and law, and here those grounds are not made out.”

As such, the company’s appeals were allowed and the inspector’s orders were set aside.

Glencore Canada Corporation v. Sudbury Mine, 2015 CanLII 85298 (ON LRB)

“Industry standard” is not always appropriate safety precaution, and MOL inspector’s “gut instinct” is not enough to ground compliance order: OLRB

Does your safety policy require an accident investigation? Court suggests investigation file may not be litigation privileged

An Alberta judge has suggested that if a workplace safety policy or program requires that certain accidents be investigated, then the accident investigation reports may not be subject to litigation privilege – meaning that government safety investigators may be entitled to obtain the investigation file.

The comment was made in a case that involved an investigation by an in-house lawyer after a “whistleblower” complained about a potential conflict of interest by a former employee.  Because the company had not shown that the dominant purpose of the investigation was to assist in anticipated litigation, rather than to satisfy the requirements of the company’s whistleblower program, the investigation documents were not litigation privileged.

The court offered the following analogy, which is of interest to health and safety professionals:

“A useful analogy might be drawn to the many reported cases dealing with fire or explosions at industrial facilities. When such event occurs it is obviously a real possibility that an investigation will result in litigation against, for example, the manufacturer of faulty equipment. However, the owner of the facility likely has workplace safety programs. Defendants to litigation are entitled to explore through cross-examination the parameters of the workplace safety program in order to advance an argument that, while anticipated litigation was one of the reasons for the investigation, the requirements of the workplace safety program was an equal reason for the investigation. Likewise, the defendants in this case are entitled to explore through cross-examination, inter alia, the extent to which the investigation which occurred was required under Talisman’s whistleblower program.”

While, in the whistleblower case, the company was not able to rely on litigation privilege to avoid turning over the investigation documents to the other side in a civil lawsuit, the court decided that the company could rely on legal advice privilege (also called “solicitor-client privilege”).  The court held that one of the purposes of the investigation was to ascertain the facts in order to get legal advice from their in-house counsel and, if the matter proceeded further, their outside counsel.  As such, the investigation file was subject to legal advice privilege and the company was not required to give it to the opposing party.

Employers should ensure, when faced with a serious accident, that they consider retaining legal counsel promptly to provide advice and to attempt to attach “legal advice privilege” to the investigation file. Otherwise, the employer may – depending on what its safety program says about investigations – be required to turn over the entire investigation file to the government safety investigators.

Talisman Energy Inc v Flo-Dynamics Systems Inc, 2015 ABQB 561 (CanLII)

 

Does your safety policy require an accident investigation? Court suggests investigation file may not be litigation privileged

Criminal negligence conviction for landlord who disregarded Fire Code violations, deceived fire inspector

An appeal court has upheld the conviction of a landlord for criminal negligence causing death after numerous Fire Code violations led to a tenant’s death.  The case demonstrates that violations of duties under provincial safety laws can form the basis for a criminal negligence conviction.

The premises had been inspected a number of times before the fire and the landlord was told that specific upgrades, including a system of linked smoke alarms and pulls, with smoke alarms in every bedroom, were required to comply with the Fire Code.

A tenant, who had been drinking heavily, died when his blanket and mattress caught on fire after he left a hot plate on.  The tenant had stayed in his room to try to fight the fire. Another tenant suffered serious burns.  None of the tenants were alerted to the fire by the sound of a smoke alarm.

On appeal, the landlord argued that there was no evidence that his negligence was the legal cause of the tenant’s death.  The Ontario Court of Appeal disagreed, holding that from the trial judge’s findings, it was clear that:

“1. there were no smoke alarms in each upstairs bedroom;

2. the appellant knew that Mr. Dhaliwal [the tenant who died] cooked in his room but failed to take effective measures to prevent this;

3. the appellant knew that Mr. Dhaliwal was a serious alcoholic who was very often drunk, while in his room in the property;

4. the appellant knew that the smoke alarms that were in the house were not working;

5. when the appellant was advised that he was in breach of the Fire Code, he failed to complete the required upgrades, thereby risking the lives and safety of his individual tenants;

6. the appellant deliberately deceived the fire inspector into believing that a group of tenants, living as a family, occupied the second floor of the property and he did so to avoid the costs of bringing the premises into compliance;

7. had the required interconnected smoke alarms and pull system been installed, they would have been activated within seconds of the fire starting, even before there were flames; and,

8. the required smoke alarm system would have provided the occupants with the crucial time needed to avoid injury.”

The appeal court concluded that the trial judge did not err when she held that had the landlord made the upgrades required by the Fire Code, the tenants would have been alerted to the fire before it became too large to extinguish.

As such, the conviction for criminal negligence causing death was upheld.

R. v. Singh, 2015, ONCA 855 (CanLII)

Criminal negligence conviction for landlord who disregarded Fire Code violations, deceived fire inspector

Refusing to provide a written statement to an investigating officer did not constitute obstruction of a safety officer but grabbing him and pushing him out the door did.

This case serves as an example of what degree of conduct will or will not constitute obstruction of an officer in a workplace investigation.

The accused was charged under the Safety Act (NWT) with 2 counts of obstructing a safety officer arising from 2 meetings between the accused and the safety officer tasked with investigating a workplace accident. At trial, the accused and the officer had differing versions of what had occurred in the meetings. Ultimately, the Court found the accused to be an evasive witness and preferred the evidence of the officer.

The section of the Safety Act in question required the Crown to prove that the accused had (a) obstructed or hindered (b) a safety officer (c) engaged in carrying out his duties. The Court held that this required an obstruction or hindrance of the investigation itself – not just the safety officer; that the accused’s actions had to be deliberate, with knowledge that the officer was engaged in carrying out his duties; and that the accused intended to prevent the progress of the investigation.

In the end, the Court found the accused not guilty of the court relating to the first meeting. In that meeting, the accused had been loud and aggressive and “vented” but he had responded to the investigator’s questions. While he had refused to provide a written statement and drawing, his conduct did not impede or delay the progress of the investigation. However, the Court found the accused guilty of the count relating to the second meeting. In that meeting, the accused confronted the investigator, grabbed him by the arms, pushed him out the door, and slammed the door behind him, all before the officer had asked any questions. The accused knew the investor was there to ask him questions about the incident and the Court found that the accused’s conduct in that meeting did halt the progress of the investigation.

R. v. Prodromidis, 2015 NWTTC 18

Refusing to provide a written statement to an investigating officer did not constitute obstruction of a safety officer but grabbing him and pushing him out the door did.

New Training and Safety Requirements for Drill Rig Operators in Ontario

The Ontario government has passed amendments under the Occupational Health and Safety Act which provide new technical and operational safety measures and procedures for rotary foundation drill rigs, and require that drill rig operators be trained and certified.

The amendments containing the new drill rig requirements, which have been passed in regulation, will come into effect on July 1, 2016 to allow time for the construction industry to comply.

The Ministry of Labour states in its press release that rotary foundation drill rigs are used for boring holes in soil in order to install foundations or earth retention structures.

Ontario is the only jurisdiction in Canada to implement explicit training requirements for drill rig operators in its health and safety legislation. The Ministry states in its press release that these changes are intended to build on actions that the province is already taking to improve safety for construction workers, including the Working at Heights Training requirements (read our article about this training here). The Ministry says that Ontario’s construction industry has traditionally experienced higher rates of workplace injuries and fatalities than other workplace sectors, and that there were 200 critical injuries in construction last year and 21 fatalities.

The Ministry of Labour’s press release announcing the changes can be found here.

New Training and Safety Requirements for Drill Rig Operators in Ontario

“I guess I’d have to kill you” remark could not reasonably have been interpreted as a “viable threat”: fired worker entitled to ESA termination pay

A worker’s comment that “I guess I’d have to kill you” was clearly inappropriate but did not constitute wilful misconduct under the Ontario Employment Standards Act, the Ontario Labour Relations Board has held.  The case shows that not every comment that is, on its face, threatening will constitute just cause for dismissal. Context is important.

The worker, a machinist, got into an argument with a coworker whom he thought had taken one of his tools.   The coworker snapped at him and told him to “f— off, I don’t give a f—“.  Another worker stepped between them and told them to stop. The coworker said that if the worker hit him, he would be “put away for the rest of your life”.   The worker then chuckled and said,  ‎”I guess I’d have to kill you”. The confrontation lasted about five minutes.   The worker returned to work.

Apparently the company called the police. Two officers attended at the workplace and confronted the worker about his comment.   The company assured the worker that it would not press charges, but had the police escort him off the premises.   The next day, the company fired him, and returned his tool to him at the same time.

The worker filed a complaint with the Ontario Ministry of Labour claiming his eight weeks of ESA termination pay.   The company argued that he was disentitled because he was fired for wilful misconduct.  An Employment Standards Officer decided that the worker was dismissed for wilful misconduct and thus not entitled to ESA termination pay. The employee challenged that decision at the Ontario Labour Relations Board.

The OLRB held that the comment was very serious. However, it did not constitute wilful ‎misconduct.   Firstly, the worker was provoked by the coworker refusing to return his tool and then swearing at him. Secondly, in the context, it was not reasonable to interpret the comment as a viable threat. The worker had chuckled as he said it. He changed the subject of the conversation afterwards and then went back to work, putting an end to the confrontation.  The company had let him go back to work, suggesting that the company did not believe that he posed an ongoing threat. Thirdly, the worker had eight years of service and there was no evidence of any misconduct justifying any written or verbal warnings.

As such, the comment did not constitute wilful misconduct under the ESA, and the worker was entitled to his ESA termination pay.

Harriott v 1145365 Ontario Ltd., 2015 CanLII 79586 (ON LRB)

 

“I guess I’d have to kill you” remark could not reasonably have been interpreted as a “viable threat”: fired worker entitled to ESA termination pay

Judge chides employer that countersued against employee for making allegedly “false” safety complaint to Ministry of Labour

Courts should discourage employers from suing employees for making safety complaints to the Ministry of Labour, an Ontario Small Claims Court deputy judge has stated.

An employee, who worked for an electrical contractor that did work in schools, complained to the MOL that electrical panels in certain schools had been “wired incorrectly”‎.  He saw it as a safety concern.  An MOL inspector investigated and found no safety concerns.

The employee was eventually fired, and he sued in the Small Claims Court for wrongful dismissal.  The employer counterclaimed against him for allegedly filing a “false” safety complaint with the Ministry of Labour, costing the employer money to deal with the fallout from the MOL investigation.

In dismissing the employer’s counterclaim, the deputy judge stated:

“Moreover, I take judicial notice of the fact that the Ministry of Labour Health and Safety Contact Centre is set up by the province to permit reporting of, among other things, unsafe working conditions. It would be the worst kind of public policy to encourage people to report unsafe working conditions and then hold them liable in tort if it is determined that the conditions do not fall below the safety standards applied by the Ministry. Reporting to a government safety authority what is honestly believed by the reporter to be unsafe working conditions should enjoy a qualified immunity from tort liability except in cases of total fabrication or perhaps completely unreasonable opinions about safety. No such immunity is required in this case to defend against the Defendant’s Claim however, because all the grounds of liability pleaded by the Defendant require that the report be false.”

‎Further, the employer had not proven any damages.  The employer’s claim for damages for hours spent by its employees dealing with the MOL after the complaint was rejected, with the deputy judge calling one piece of the employer’s evidence regarding its damages, “exaggerated, fanciful, if not downright false”.

Leverton v Roberts Onsite Inc, 2015 CanLII 80170 (ON SCSM)

Judge chides employer that countersued against employee for making allegedly “false” safety complaint to Ministry of Labour

Fraud conviction for worker who collected workers’ compensation benefits after returning to job

A Saskatchewan labourer has pleaded guilty to fraud after having been caught collecting workers compensation benefits following his return to work.

He has also been ordered to reimburse the Saskatchewan Workers’ Compensation Board for more than $22,000.00 in workers compensation benefits that he received.

The man avoided jail time but was given a conditional sentence of two years less a day.

The Saskatchewan Workers’ Compensation Board press release can be read here.

 

Fraud conviction for worker who collected workers’ compensation benefits after returning to job

OHSA charges dismissed against tourist resort in boating fatality

An Ontario court has dismissed two charges under the Occupational Health and Safety Act against a tourist resort after the Ministry of Labour failed to prove its case.

The charges followed an incident in 2012 in which a boat operated by an employee of the resort suddenly veered to the right and crashed into a rocky shoreline. Two passengers in the boat, who were guests at the resort out on the lake for fishing, died as a result of the impact.

The MOL charged the resort with failing to maintain a “steering friction adjuster” ‎on the outboard motor (which limited the ability of the motor to swing to one side, causing the boat to turn sharply) and failing to ensure that an “engine shut-off lanyard” was “used as prescribed”.  The lanyard, if tethered to the operator of the boat, would shut off the engine if the operator moves to far away from the motor, such as being thrown from the boat.

On the first charge, the court held that other than the fact that there was no resistance on the steering friction adjuster, there was no evidence that this condition was the result of a failure to maintain the motor.  ‎In particular, a boat mechanic who examined the motor after the accident was unable to open and examine the steering friction adjuster because of the direction that he understood he had received from the police.  As such, the prosecutor has not proven that the lodge failed to maintain the steering friction adjuster.

With respect to the second charge, the court held that “prescribed” meant prescribed by a regulation under the OHSA. The MOL inspector admitted at trial, though, that there was no regulation dealing with the use of a tether strap as a protective device. “Prescribed” ‎did not refer to any requirement in the manual provided by the manufacturer. As such, the second charge was also dismissed.

This case demonstrates the importance of obtaining a careful legal assessment of OHSA charges before deciding whether to defend or plead guilty. Charges that appear, on their face, to be impossible to defend can sometimes be beaten because the evidence does not support a conviction on the strict wording of the charge.

R. v. Ash Rapids Camps Inc., 2015 ONCJ 648 (CanLII)

OHSA charges dismissed against tourist resort in boating fatality