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Armoured car employee’s work refusal due to Christmas crowds was not justified

A federal adjudicator has decided that an armoured car worker was not justified in refusing to do a “run” at a mall because of the crowds during the Christmas shopping season.

The employee claimed that due to crowds, he was unable to maintain a “21 foot perimeter” when he went into the mall, crowded with Christmas shoppers, and that that put him at increased risk of a robbery.  He therefore argued that under the Canada Labour Code, he was justified in refusing to work.

The adjudicator rejected the employee’s argument, finding that the evidence had not proven that there were serious crowds at the mall in the morning when he did the “run”. Further, there  had not been a robbery at the particular shopping centre in the last 10 years.  The adjudicator concluded that the employee was not exposed to an imminent or serious threat to his life or health.  Therefore his work refusal was not justified.

The adjudicator’s decision may be read here.

Armoured car employee’s work refusal due to Christmas crowds was not justified

Employer ordered to pay fine of $100,000 following a fatal workplace incident at a road building construction site after court accepts joint submission

The Territorial Court of the Northwest Territories considered and accepted a joint submission from the Crown and defence, sentencing the employer to a $100,000 fine. The matter arose following a workplace incident in June 2016 where a young worker was killed. The worker had been operating a vibrating roller packer used to compact a new access road in the Northwest Territories. The packer had rolled off the road and the worker either fell or attempted to jump out of the packer as it was rolling over. The packer rolled over on top of him, killing him.

The employer faced a number of charges and had pled guilty to a charge of failing to ensure that the worker was properly supervised. The court considered the significance of a joint submission, noting that it was normally the result of a negotiation process between lawyers. This process was important to the administration of justice and thus, the court must normally defer to the joint submission within the bounds established by the Supreme Court of Canada in an earlier case. The Supreme Court of Canada has stated that when considering a joint submission on sentence, the trial judge should accept it unless doing so would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. This would occur where the joint submission is such that it would be “markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a breakdown in the proper functioning of the criminal justice system” and that trial judges should “avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts.”

In order to apply this test, the court in this case reviewed established sentencing principles, noting that the ultimate goal of imposing a significant fine was behaviour modification, both specific deterrence (deterring this employer from similar offences in the future) and general deterrence (deterring other employers from committing similar offences). However, the sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender. The court applied the following factors and considerations when assessing the amount of the $100,000 fine proposed by the joint submission:

  • Nature of the offence – there was a recognized danger that the packer could roll over. It was equipped with a rollover protection structure and had several warning labels stating that seat belts must be worn. The evidence was clear that the worker had not been wearing a seat belt at the time of the incident. There was no evidence that anyone had ever told the worker that he should wear his seatbelt. The court found that the worker should have been instructed to wear a seatbelt and that his supervisor should have ensured he was wearing a seatbelt and not operating the packer on or near an inclined surface. The failure to do so was a serious omission.
  • Nature of the offender – the employer was a relatively small, privately-held corporation with revenue in 2017 slightly over $1,000,000.
  • Degree of blameworthiness – the court recognized this was not a situation where the employer was taking chances to make money. However, a young worker with no formal training had been put in charge of a piece of heavy equipment without proper instruction or supervision. Instruction and supervision with respect to the safe operation of the packer should have been integral to the company’s operations.
  • Capacity to pay a fine – given the employer’s revenue in past years, the court was satisfied that $100,000 was a significant amount and has a substantial deterrent effect.
  • Maximum fine under the legislation and range of fines – the maximum fine under the Northwest Territories Safety Act was $500,000. On a review of cases involving similar circumstances, the court was satisfied that $100,000 was within the range of fines normally imposed for this type of offence.
  • Previous convictions – the employer had no history of safety or other regulatory infractions.
  • Harm and potential harm – the worker died as a result of being crushed by the packer. Had he been wearing his seatbelt, he likely would have been held within the protective structure and protected.
  • Contributory negligence – the worker should have been wearing his seatbelt and the court assumed he would have seen the prominent warning labels. He chose not to wear his seatbelt. However, he was a young man and would have relied on those who supervised him and may have believed there was no real possibility of a rollover. While there were levels of THC found in his blood indicating that he had consumed hashish or marijuana in the hours before the accident, the evidence was not properly before the court and it did not establish that cannabis consumption had anything to do with his death. The court recognized however that this may have been one of the matters that was part of the negotiations for the joint submission.
  • Post offence conduct – the employer had spent over $37,000 to fly the worker’s family to the Northwest Territories on more than one occasion and had created a memorial to the worker. The employer had cooperated with the investigation. The guilty plea was a mitigating factor on sentence. The presence of one of the owners at the sentencing hearing was also significant.
  • Balancing of factors – the court noted that none of these factors can be considered in isolation, nor would one override the others.

The court considered all of these factors and accepted the joint submission, ordering the employer to pay a fine of $100,000. The court waived the 15% victim crime surcharge because it was satisfied that it would result in undue hardship to the employer.

R. v. Allen Services & Contracting Ltd., 2018 NWTTC 03 (CanLII)

Employer ordered to pay fine of $100,000 following a fatal workplace incident at a road building construction site after court accepts joint submission

Traffic control firm violated safety rules, could not avoid responsibility by blaming employee

A company that provided traffic control services has lost an appeal of two compliance orders issued against it under occupational health and safety legislation.

The compliance orders required the company to ensure that all traffic control signage was available and installed, and that a traffic control plan and checklist was completed prior to a traffic control setup.

The company appealed the compliance orders to the Nova Scotia Labour Board, arguing that the safety officer should have issued the orders to an employee, not to the company, as signage was readily available to the employee and he had failed to draw upon his knowledge, training and experience.

The Labour Board dismissed the appeal, deciding that there was inadequate supervision of employees and the workplace; there was inadequate signage for several hours; the company’s area supervisor had arrived at the site hours after the work had started, even though the employee in question had a history of similar infractions; and the area supervisor left the site before the situation was corrected.  As such, the company had not done all that it could do to comply with its safety obligations under the Occupational Health and Safety Act.  It could not avoid responsibility by blaming the employee. The company’s appeal of the compliance orders was dismissed.

The Labour Board’s decision may be read here.

 

Traffic control firm violated safety rules, could not avoid responsibility by blaming employee

Out-of-business company that did not defend OHSA charges, fined $1.3 million after two workers killed

A defunct mining company that went out of business in 2016 has been fined $1.3 million under the Ontario Occupational Health and Safety Act after being found guilty on six charges.  This is one of the largest OHSA fines in Ontario history.  However, it should be noted that the company, First Nickel Inc., did not defend this Ministry of Labour prosecution.

The fine included:

-$250,000 for failing to ensure that part of the underground mine was kept free of accumulations or flow of water

-$350,000 for failing develop a quality control program to ensure that ground support systems were properly installed and remained effective

-$300,000 for failing to ensure that a written record was made by the shift supervisor about the dangerous condition

-$100,000 for failing to ensure that a written report was provided to the Ministry of Labour where a fuse, a detonator or an explosive is found to be defective

-$150,000 for failing to develop a written program to provide for the timely communication of information between workers and supervisors in the mine respecting ground stability, ground movement, falls of ground, ground monitoring equipment and emergencies

-$150,000 for failing to examine the ground conditions of the workplace for dangers and hazards and, if required, made safe

The MOL notes, in its press release, that the mine closed in 2015, the company was not represented in court, and the company went out of business in 2016.

The MOL press release can be accessed here.

 

Out-of-business company that did not defend OHSA charges, fined $1.3 million after two workers killed

Nurse’s critical comments at union conference about workplace violence in hospitals were not just cause for dismissal

A mental health nurse whose critical comments, in a closed-door union meeting, about workplace violence in hospitals were later published online by a local newspaper and in a union press release without her knowledge or permission, has been reinstated by an arbitrator with back pay.

The comments in the union press release that were attributed to the nurse included:

“Staff at hospitals with forensic psychiatric units or those with medium security units where patients come direct from area prisons are “easy targets for violence” on understaffed wards. Many of these patients are strong and aggressive young offenders and nurses are told that “the violence is part of the work we do. Nurses are often blamed directly by the employer for the assaults that are directed at them. Or supervisors tell nurses ‘thanks for taking one for the team’. Often nurses face reprisals for reporting incidents of violence and when we demand increased security matters,’ says Sue McIntyre a North Bay psychiatric RPN.”

When her comments were published online by the local paper, the nurse intervened and had the comments taken down within three hours of being posted. The employer concluded that the comments were about the hospital and its staff and patients, not general comments about hospitals, and that the comments were false and had harmed the hospital’s reputation.  It dismissed her, claiming just cause.

The union grieved the dismissal. The arbitrator decided that dismissal was excessive.  A one-week suspension was more appropriate. The comments were made at a legitimate closed-door trade union meeting about workplace safety.  Workplace violence was an important issue in the hospital sector.  Media were not present or invited.  The nurse did not intend the comments to be public.  She was given very little time to think about and prepare her comments.  The union press release and newspaper article were published without her knowledge or consent.  She took prompt steps to have any comments attributed to her removed from those documents.

The arbitrator decided, however, that it was not entirely unforeseeable that the comments would become public, so she must bear some responsibility for the words that she spoke.  Also, the comments were not truthful to the extent that they were comments about the hospital at which she worked.  She had previous discipline on her record.  In the circumstances, a one-week suspension was appropriate, and the employer was ordered to reinstate the nurse with back-pay.

North Bay Regional Health Centre v Canadian Union of Public Employees, Local 139, 2018 CanLII 6645 (ON LA)

Nurse’s critical comments at union conference about workplace violence in hospitals were not just cause for dismissal

Employee’s “theory” that he was dismissed for questioning his employer’s safety systems was just a theory and was not evidence

A judge in a recent wrongful dismissal action dismissed the plaintiff’s allegation that he was dismissed after making suggestions about improvements to the employer’s safety systems. The employee was a relatively short term employee (25 months), working as a Control Systems Specialist. His duties included designing, implementing and monitoring various control systems for machines manufactured by the employer.

The plaintiff testified that the employer had been involved in a fatality in California, involving one of its machines. As a result, the plaintiff claimed that he became concerned about the employer’s future liability and took it upon himself to do some research regarding safety systems. He sent an email to his general manager making suggestions, including a redesign of the system and a rewrite of the safety manual. The general manager had replied to say that the employer was looking for an expert, would be reviewing training methods, and that he was open to further discussion. He also stated that the employer’s goal was not to escape liability but rather, to “build machines that do not hurt people.” The day after this email exchange, the plaintiff was called into a meeting and terminated without cause. He was not given a reason and when he asked, he was told that the employer’s counsel had instructed it not to give a reason. He was escorted out of the office in a civil manner. The plaintiff followed up a few days later, again asking for a reason for his dismissal but the employer did not respond.

At trial, the plaintiff’s theory was that he was dismissed because he was questioning the employer’s safety systems. Other employees had told him he “wasn’t a good fit.” The employer denied that the reason for the plaintiff’s dismissal was his concern with the safety system. The general manager testified that the employer had been experiencing some financial challenges that resulted in 12 employees being dismissed, managers taking a salary cut, overtime hours being lost, and several projects being in jeopardy. He claimed that the timing of the dismissal the day after the plaintiff’s emails about his perceived safety issues was a coincidence and that the plaintiff was dismissed because he was not a good fit.

In addition to damages for reasonable notice of termination, the plaintiff claimed he was entitled to aggravated and punitive damages as a result of the manner in which he was dismissed. His evidence was largely related to the employer’s refusal to give him a reason for the dismissal and the timing with relation to his emails about the safety concerns. The judge found that the plaintiff’s theories were not supported by the evidence and were insufficient to justify an award of aggravated or punitive damages. The judge held that the employer’s conduct was not malicious and high-handed so as to warrant additional damages and dismissed that aspect of the plaintiff’s claim.

Dragos v. Hunterwood Technologies Ltd., 2018 ABPC 40

 

Employee’s “theory” that he was dismissed for questioning his employer’s safety systems was just a theory and was not evidence

Possession of “small amount” of marijuana was just cause to fire employee who had “not carefully checked his pockets” before screening to board flight for offshore platform

An appeal court has upheld the firing of a unionized millwright who was caught with a small amount of marijuana in his jeans pocket during screening prior to boarding a helicopter that would transport him and other employees to an offshore platform. The employer had a policy prohibiting possession of an “illegal drug”, including marijuana, “while on company facility or while performing company business”.

The employee, who was employed on a “call-in” or casual basis, claimed that he was “in disbelief that it was there” and that he “did not know how it got in his pocket”.  The labour arbitrator found that the employee likely knew that he possessed marijuana (noting that he did not protest “loud and long” that the marijuana was not his or that he had no knowledge of his having possessed it) but had forgotten it and had not carefully checked his pockets.  The arbitrator had upheld the employer’s decision to dismiss the employee, but  a judge of the Newfoundland Supreme Court had set that decision aside.

The Newfoundland and Labrador Court of Appeal restored the arbitrator’s decision, stating:

“To avoid disciplinary action, the employee was required to establish that he had taken all reasonable care to ensure that he did not breach the Policy by having possession of marihuana.  The arbitrator reviewed the circumstances and the explanation provided by the grievor and concluded that he had not satisfied this onus.  Rather, the arbitrator found that the grievor more probably than not knew about the marihuana in his pocket, but had forgotten it was there and had not carefully checked his pockets before entering the screening area . . .  The employee’s actions did not establish that he had taken all reasonable care to ensure that he did not breach the Policy.  He did not meet the standard of the reasonable person in similar circumstances.”

The employer’s decision to dismiss the employee was therefore upheld.

Terra Nova Employers’ Organization v Communications, Energy and Paperworkers Union, Local 2121, 2018 NLCA 7 (CanLII)

Possession of “small amount” of marijuana was just cause to fire employee who had “not carefully checked his pockets” before screening to board flight for offshore platform

Banned from pool and fitness facility, man who requested “young, hot female trainer” was not discriminated against because of mental disability

A man who requested that a municipal pool and fitness facility provide him with a “young, hot female trainer like” (name redacted), and who earlier had swam up to three nine-year-old boys playing on a floating raft and engaged in conversation with them, was not discriminated against because of a physical or mental disability when the facility banned him.

The man filed a complaint with the British Columbia Human Rights Tribunal asserting that the facility had discriminated against him because of a disability (hypoglycemia, which he said affected his cognition in these instances, and depression).

The Tribunal dismissed his complaint. The Tribunal noted that the complainant had provided no medical evidence that hypoglycemia affected his conduct.  At the time of the events, the complainant gave no indication that he was experiencing symptoms of hypoglycemia.  Also, nothing in the complainant’s evidence suggested that his disabilities, either physical or mental, were known or readily observable, and therefore the facility had no “duty to inquire” into whether he had a mental disability that had influenced his actions.

The Tribunal stated that the complainant’s email setting out his request for a female trainer was “reflective of attitudes that found expression in a bygone era and that are inappropriate, particularly in the circumstances of this case. The Complainant’s email does not reflect an uncontrollable comment blurted out, but rather appears to reflect a deliberate train of thought.”

In the result, the Tribunal dismissed the complaint in its entirety.

Hammell v. Corporation of Delta and another, 2017 BCHRT 246 (CanLII)

Banned from pool and fitness facility, man who requested “young, hot female trainer” was not discriminated against because of mental disability

MOL consulting on changes to Industrial Regulations – new requirement of written risk assessment proposed

The Ontario Ministry of Labour is consulting on proposed changes to the safety regulation that applies to most businesses in Ontario: the Industrial Establishments regulation under the Occupational Health and Safety Act.  Offices, factories, shops and restaurants – and many other workplaces – are caught by this regulation.

One proposed change is particularly notable: it would require employers to assess the risks of hazards that arise from the workplace, at least annually, and provide the results in writing to the joint health and safety committee.  The risk assessment requirement would be an “if you do nothing, you will be in breach” obligation, which requires employers to take a positive step in order to comply.  That requirement would not apply to workplaces at which fewer than 20 workers are regularly employed.

The amendments would also require employers to develop and maintain written measures to control the risks identified in the risk assessment and, where practicable, eliminate the hazards.  There are relatively few requirements on industrial employers under the OHSA to put things in writing, but this will be one such requirement.

The risk assessment would open up a new liability risk for Ontario employers: employers who neglect to do the risk assessment may be charged and fined for failing to do it; employers who conduct the risk assessment may have the MOL argue that they did not adequately address the risks identified.  Mining employers already have similar risk assessment obligations.

The MOL, on its website, states that the government is proposing a number of other amendments to the Industrial Establishment regulations:

“• Update existing requirements regarding guardrails, fall protection, protection against drowning, signallers, eyewash fountains and deluge showers to reflect current workplace practices, processes and technologies; . . .
• Add new requirements for scaffolds and suspended access equipment, similar to existing requirements currently set out in O. Reg. 213/91 (Construction Projects);
• Add new, specific requirements for storage racks and for high visibility safety apparel for signallers to improve worker health and safety and to improve clarity and transparency regarding compliance expectations; and
• Make additional amendments for clarification and to increase alignment between OHSA regulations.”

The MOL is receiving comments on these proposed new requirements until April 6, 2018.  The comment link is at the bottom of the MOL’s web page on the proposed amendments.

MOL consulting on changes to Industrial Regulations – new requirement of written risk assessment proposed

3 1/2 year jail term upheld on appeal in criminal negligence case against Metron Project Manager

The Court of Appeal for Ontario has upheld the criminal negligence (“Bill C-45”) conviction and 3 1/2 year jail term imposed on Vadim Kazenelson, the Project Manager for Metron Construction.  The charges arose from an incident in which four workers fell to their death and a fifth had permanent injuries after a swing stage collapsed.  None of those workers was attached to a lifeline.

You can view our previous posts on this case here.

The trial judge had, in sentencing Mr. Kazenelson to 3 1/2 years in jail, stated that Mr. Kazenelson not only did nothing to rectify the dangerous situation, 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; and he “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.

The Court of Appeal for Ontario rejected Mr. Kazenelson’s arguments that he should not have been found guilty of criminal negligence.  Mr. Kazenelson’s argument that the “approach of the trial judge stretches penal negligence too far” given that this was the first conviction of an individual supervisor under section 217.1 of the Criminal Code (which section was added by Bill C-45 in 2004) was rejected.  The appeal court also rejected the argument that Mr. Kazenelson did not show “a wanton and reckless disregard for the workers”.

With respect to the jail sentence, the appeal court rejected the argument that Mr. Kazenelson’s jail term should be shortened because the other workers were “contributorily negligent”; the court agreed with the trial judge’s reasoning that such argument “would ignore the reality that a worker’s acceptance of dangerous working conditions is not always a truly voluntary choice.  It would also tend to undermine the purpose of the duty imposed by s. 217.1 of the Criminal Code, which is to impose a legal obligation in relation to workplace safety on management.”  The appeal court also rejected the argument that, because Mr. Kazenelson was a first-time offender, the trial judge placed too much emphasis on “general deterrence”.

This case has, and will continue to, send a message to employers and supervisors that criminal negligence charges – in addition to Occupational Health and Safety Act charges – are a real possibility after serious workplace accidents, particularly accidents involving fatalities or serious permanent injuries.

R. v. Kazenelson, 2018 ONCA 77 (CanLII)

 

3 1/2 year jail term upheld on appeal in criminal negligence case against Metron Project Manager

Webinar: Employment and Labour law trends to watch for in 2018

Start: February 14, 2018, 12:00 PM EST
End: February 14, 2018, 1:00 PM EST

This session is only available via webinar

2018 has arrived with a roar as workplaces across Canada grapple with significant changes to the country’s workplace laws.

Join us for a complimentary 1 hour webinar where we’ll highlight the changes you need to know about and identify the trends that we expect to impact your workplace in 2018.

Topics will include:

  • A roundup of the big changes to Canada’s workplace legislation
  • #MeToo – How to effectively deal with sexual harassment in today’s workplace
  • The coming legalization of marijuana and its impact on the workplace
  • Transgender in the workplace: a practical guide

Register now

CPD/CLE Accreditation

LSBC: This session will be registered for 1 hour of CPD credit with the Law Society of British Columbia.
LSO: This program is eligible for up to 1 Substantive Hour with the Law Society of Ontario.
Barreau du Québec: This program will allow participants to earn 1 CLE hour with the Barreau du Québec.

 

Questions

Please contact Carla Vasquez at carla.vasquez@dentons.com or +1 416 361 2377.

Dentons Canada LLP is committed to accessibility for persons with disabilities. Please contact us at toronto.events@dentons.com in advance of the event if you have any particular accommodation requirements. We will work with you to make appropriate arrangements.

 

Webinar: Employment and Labour law trends to watch for in 2018

“Absolute privilege” barred former employee’s complaint that employer’s confidential-information lawsuit against him was retaliatory under OHSA

The legal doctrine of “absolute privilege” prevented an employee from complaining that his former employer’s lawsuit against him was in retaliation (reprisal) for the employee filing a previous safety-retaliation complaint against the same employer.

Sometime after it terminated the employee’s employment, the employer started a lawsuit against the employee alleging that he had taken confidential information belonging to the employer.  The employee then brought a complaint to the Ontario Labour Relations Board (actually his second safety-reprisal complaint), alleging that the employer’s lawsuit was itself in retaliation for him bringing the previous safety-retaliation complaint and therefore that the employer’s lawsuit violated the Occupational Health and Safety Act and entitled him to damages.

The OLRB noted that the legal doctrine of “absolute privilege” is “rooted in the public policy concern for ensuring freedom of speech in the context of judicial and quasi-judicial proceedings”.  That is, lawyers and parties should be free to draft and serve legal pleadings, asserting their legal position, without fear that the words used in such pleadings, or the fact that they commenced the legal proceedings, could themselves form the basis for a lawsuit against them.

The OLRB decided that, in this case, the starting of the confidential-information lawsuit against the employee was protected by absolute privilege, and therefore could not be used as the basis of a safety-retaliation complaint against the employer at the OLRB.  As such, the employee’s OLRB complaint was dismissed.

Lawrence Hill v Deltro Electric Ltd., 2017 CanLII 87176 (ON LRB)

 

 

 

“Absolute privilege” barred former employee’s complaint that employer’s confidential-information lawsuit against him was retaliatory under OHSA

$5.3 million combined OHSA / EPA fine upheld on appeal in Sunrise Propane case: worker’s actions after explosions showed that he was not properly trained

The dramatic explosions at a propane facility in Toronto in 2008 resulted in the tragic death of one worker and damage to many nearby homes.  An Ontario judge has now upheld a combined fine of more than $5.3 million, plus the 25% “Victim Fine Surcharge”, against Sunshine Propane Energy Group and a related company, and two corporate directors.  We previously wrote about the trial decision and fines.

The appellants were found guilty, after a fourteen-day trial, of a total of seven charges under the Environmental Protection Act and Occupational Health and Safety Act.

With respect to the charge under the OHSA of failing to provide “information and instruction” to the worker, the court noted that the worker who died had only four to five months of experience at the company, and was effectively left in charge of the yard on the day of the explosions, which was “a position prohibited by his lack of education, experience and training”. The trial judge decided that the explosions were a foreseeable event given that an untrained employee had been left in charge, and the appeal court agreed. The appeal judge also agreed that the fact that the worker ran towards the explosions, instead of away from them, showed his lack of training.

The appeal judge also decided that the fines imposed were appropriate. The EPA fines of $5,020,000 (including $100,000 against each of the corporate directors) were unprecedented, but there were a number of “aggravating factors” including the “widespread damage and effects caused by the appellants’ reckless behaviour in conducting truck to truck transfers without licence and with full knowledge of the risk . . .”  Also, “the magnitude of the event was unprecedented in Ontario”.  The OHSA fines of $280,000 were also appropriate in the circumstances.

R. v. Sunrise Propane Energy Group Inc., 2017 ONSC 6954 (CanLII)

 

$5.3 million combined OHSA / EPA fine upheld on appeal in Sunrise Propane case: worker’s actions after explosions showed that he was not properly trained

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.

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.

Seminar materials
Download a copy of the presentation slides.

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