Even in no-injury accidents, fines under the Ontario Occupational Health and Safety Act can be significant, as demonstrated by a recent case in which there was potential for serious injury.

According to a Ministry of Labour news release, a company, Paramount Structures Ltd., a supervisor and a worker were fined a total of $55,000.00 after equipment fell from a condominium building under construction in Toronto.

Paramount Structures was contracted to perform the formwork required on the project.  A piece of equipment, a “fly table”, was being hoisted to an upper floor. It was not tied or secured, and it became unbalanced and slid to the ground. It landed on neighbouring railway property. It appears from the Ministry of Labour news release that no one was injured.

Paramount Structures, as an employer, pleaded guilty to failing to ensure that every part of a project must be constructed so it is supported and braced to prevent any movement that may cause its failure or collapse.  It was fined $50,000.00.  A supervisor and a worker pleaded guilty to the same charge and were fined $3,000.00 and $2,000.00 respectively.

Does a broken foot constitute a “critical injury” under the Occupational Health and Safety Act? Because the Ministry of Labour inspector had not yet considered that issue, a union was prohibited from raising the issue on appeal.

An employee was struck by a forklift and sustained multiple broken toes and ribs as well as a crushed toe and broken foot.

The employer and union disputed whether the injury was a “critical injury” under the OHSA. The employer and union called in a Ministry of Labour inspector to decide the issue. He decided that it was not a critical injury. However, he said that he had been told about only the toe injury and broken ribs, and not the multiple broken toes or broken foot.

The union appealed the inspector’s decision. The union attempted to argue that the broken foot was a critical injury.

The OLRB decided, based on previous decisions, that “an appeal from an Inspector’s Orders is restricted to the issues considered by the Inspector”. Because the inspector was aware of the injured toes but not the broken foot, the OLRB could decide only whether the toe injury constituted a critical injury. The OLRB could not decide the issue of whether the broken foot was a critical injury.

If the case proceeds to a hearing, we will obtain guidance as to whether a broken foot constitutes a critical injury under the OHSA, which would require the employer to report the injury to the MOL.

CAW Local 707 v. Ford Motor Company of Canada, 2013 CanLII22067 (OLRB) (April 19, 2013)

As tight as summer coveralls might be with winter clothing underneath, the Occupational Health and Safety Act does not require employers to provide winter coveralls to crane operators, a Newfoundland arbitrator has held.

The collective agreement required the employer to provide “coveralls”. The employer provided summer coveralls with reflective “visibility markings” and which also protected the employee’s clothing. The employer did not provide winter coveralls, which were lined on the inside and therefore warmer.

The crane operators complained that the summer coveralls were not warm enough in the winter and fit too tightly to wear enough clothes to keep warm. They said that although the crane cabs were heated, they were drafty and the door must be opened and closed frequently.

The arbitrator decided that the need to wear warmer clothing underneath the coveralls in winter “was not established as a health and safety regulation or a requirement of the Collective Agreement.” The safety issues – visibility and protection of clothing – was adequately addressed by the summer coveralls.

This case appears to be part of a trend of unions attempting to achieve certain job benefits – such as winter clothing – for employees on the basis of safety. Here, the union was unable to establish that the lining in winter coveralls was a safety requirement.

Resource Development Trades Council of Newfoundland and Labrador v. Long Harbour Employers Association Inc., 2013 CanLII 12447 (NL LA) (January 7, 2013)

Distracted driving, and in particular texting while driving, are important occupational safety issues, and employers need to act, the U.S. Occupational Safety and Health Administration says in a new brochure called “Distracted Driving: No Texting“.

The brochure quotes an official as saying, “It is well recognized that texting while driving dramatically increases the risk of a motor vehicle injury or fatality. We are asking employers to send a clear message to workers and supervisors that your company neither requires nor condones texting while driving.”

The brochure goes on to state that employers should “Prohibit texting while driving. OSHA encourages employers to declare their vehicles ‘text-free zones’ and to emphasize that commitment to their workers, customers, and communities.”

OSHA states that if it receives a “credible complaint that an employer requires texting while driving or organizes work so that texting is a practical necessity, we will investigate and will issue citations and penalties where necessary to end this practice.”

One expects that Canadian workplace safety inspectors would similarly take action, under occupational health and safety legislation, against employers who require or encourage employees to text while driving, or impose such great demands on employees that they are practically required to text while driving.

“Not every ailment amounts to a disability”, an adjudicator has held, in dismissing an employee’s grievance. Employers who often wonder what types of ailments or conditions amount to “disabilities” will find this decision interesting.

The employee had an erratic attendance record. The employer imposed reporting requirements on the employee as to when and how he must report to his supervisor if unable to arrive at work at all or on time. The employee breached those conditions and was disciplined. The employee then filed grievances challenging the discipline and alleging that the conditions were unfair, constituted harassment, and failed to take into account his sleep apnea and drinking problem.

The adjudicator held that the employer, faced with the employee’s poor attendance record, which was a departure from the norm, was entitled to impose the reporting requirements.

The adjudicator went on to state that the employee’s sleep apnea and drinking patterns did not amount to a disability. The adjudicator’s comments are interesting:

“130 The difficulty is that the grievor’s argument confuses an ailment with a disability. Depression and stress are commonly experienced by many people in the course of their working lives. Neither is, by that fact, disabling. The same can be said of sleep apnea. The fact that one experiences such conditions does not establish a prima facie case of disablement or, all the more so, a prima facie case of discrimination based on a disability. Needed in this case was evidence that the conditions were so bad that they disabled or at least limited the grievor’s ability to comply with the reporting conditions. But the grievor offered no such evidence other than the conditions themselves.

“131 The importance of managing attendance is not eliminated by the mere assertion that one has an illness. Not every physical or emotional ailment amounts to a disability requiring accommodation. Some ailments – such as depression, emotional stress or headaches or, in Mr. Riche’s case, sleep apnea – may impact a person’s life without necessarily making it impossible for them to comply with the usual expectations of working life. For example, depression may be mild, moderate or totally disabling. The severity of its impact will depend upon the severity of the cause, the person’s psychological makeup and the steps he or she takes to combat it. It is not a sufficient excuse on the part of an employee to justify his or her repeated tardiness or frequent absences by saying, “I’m depressed”, or, “I had a headache.” Something more is required to enable the employer to know that the ailment is truly disabling, that is, something beyond the control of the employee as opposed to simply an excuse. In part, that is the reason the jurisprudence emphasizes the obligation on the part of the employee seeking accommodation to explain the nature of the problem and to co-operate in its treatment. Without such an explanation, the employer has no way of knowing whether the ailment is severe enough to amount to a disability or what to do about it by way of an accommodation if so required.”

The adjudicator went on to state that employers are not required to accommodate “issues that an employee is able to control”. Here, the adjudicator held that the employee was able to control his problem with sleeping in – for instance, by putting his alarm clock on the other side of the room. Also, the grievor’s statements that he was a “heavy drinker” and a “happy drunk” were not enough to establish that he was an alcoholic, particularly when he stopped short of calling himself an alcoholic and did not call evidence from his family doctor.

As this case demonstrates, not every health condition will be a disability, and the mere assertion by an employee that he has a health issue may not be enough , in every case, to require the employer to accommodate.

Riche v. Treasury Board, 2013 PSLRB 35 (Public Sector Labour Relations Board, April 19, 2013)

An employer has been unsuccessful in its bid to keep a newly-created “capital safety planner” position out of a union bargaining unit.

The capital safety planner was to be involved from the outset in every project that the employer undertook.  He or she would impose requirements for health and safety on projects.

The arbitrator decided that the capital safety planner would not be performing functions of a manager or a superintendent, nor would he or she be employed in a confidential capacity in matters relating to labour relations or in a confidential planning or advisory position in the development of management policy.

Instead, the capital safety planner would implement policy that had already been developed by reviewing the work on each project, identifying the risks, and then determining the steps and resources necessary to address them.  Further, project safety was not a confidential matter that required the person to be excluded from the bargaining unit.

Lastly, the arbitrator noted that the union bargaining unit included other “professional and technical employees including a variety of planning positions”, so it would not appear inappropriate to include the capital safety planner in the bargaining unit.

B.C. Hydro and Power Authority v. Canadian Office and Professional Employees Union, Local 378 (B.C. Arbitrator, January 18, 2013)

In what appears to be a departure from a growing line of cases, the Ontario Labour Relations Board has permitted an employee to advance her claim that the employer violated the Occupational Health and Safety Act when it fired her after a manager allegedly confronted her in an angry manner.

The employee, Ashworth, alleged that the manager demanded that she close the door and then positioned herself in front of the closed door and started screaming and pointing her finger in the employee’s face.  The employee claimed that she became afraid and was asked to be allowed to leave, but the manager continued to be abusive.  The employer subsequently terminated her employment.

The employer appears to have argued that the employee’s complaint did not make out a safety-reprisal case because the incident did not raise workplace safety issues under the Occupational Health and Safety Act, and therefore there was no basis for the employee’s claim that she was fired for raising safety issues.

That argument flows from a line of cases, of which Conforti v Investia Financial Services Inc, 2011 CanLII 60897 (ON LRB) is most notable. In that case, the OLRB stated that “it appears the OHSA only requires an employer to put a workplace harassment policy and program in place and to provide a worker with information and instruction as appropriate”, but that the OHSA does not actually require the employer to prevent harassment.  As such, an employee’s claim that she was fired for asking the employer to prevent harassment does not engage the OHSA and cannot form the basis for a reprisal claim.

The OLRB, in Ms. Ashworth’s case, was not persuaded that the case should be dismissed at this stage for failure to disclose a prima facie reprisal case.  Although the decision does not say it, the OLRB may have felt that the manager’s conduct might constitute workplace violence – rather than harassment – in which case the employee’s complaint could possibly succeed.  The OHSA does require employers to take reasonable steps to avoid workplace violence – but not harassment.

Ashworth v Boston Pizza, 2013 CanLII 20917 (ON LRB)

A worker who refused to answer a Ministry of Labour inspector’s questions during an accident investigation has been found guilty of obstructing the inspector.

An employee of a trash-removal business consumed three beers before work, climbed up on a roof to retrieve loose shingles, and then fell off the roof and became paralyzed below the waist.  A corporation was charged as the injured worker’s “employer”.  A representative of the corporation was also charged as a supervisor, and another individual, one Haniff, was charged with obstructing the MOL inspector by not answering questions.

There was much debate in the case about who was the “employer”.  The company was ultimately found to be the employer and convicted of failing to ensure that the worker wore fall arrest equipment and was trained in fall arrest.

Haniff attended at the Ministry of Labour office, as requested by the inspector and handed the inspector an envelope that contained the telephone record for the corporate defendant. However, Haniff, who admitted that he had taken the initial call from the homeowner asking to have the trash removed, failed to answer the inspector’s other questions about what Haniff did after taking the call, and in particular whether he directed the workers to go to the job site.

Justice of the Peace Mary Ross Hendriks stated:

“Section 62(1) of the Act, which also falls under Part VIII – Enforcement,  states:

 Obstruction of inspector

 62(1) No person shall hinder, obstruct, molest or interfere with or attempt to hinder, obstruct, molest, or interfere with an inspector in the exercise of a power or the performance of a duty under this Act or the regulations or in the execution of a warrant issued under this Act or the Provincial Offences Act with respect to a matter under this Act or the regulations.

“Specifically, subsection 62(2)(a) of the Act creates a positive duty to assist, on “every person” to “furnish all necessary means in the person’s power to facilitate any entry, search, inspection, investigation, examination, testing or inquiry by an inspector,” in the exercise of his or her powers or the performance of his or her duties under the Act or regulations.

“Mr. Haniff’s refusal to answer any of his questions when they met hindered Inspector Lomer’s ability to conduct his investigation, and thwarted his ability to explore undisclosed events and workplace relationships which were relevant to his investigation.”

Haniff was therefore guilty of the Occupational Health and Safety Act offence of obstructing the inspector.

The case shows the importance of co-operating with lawful requests from Ministry of Labour inspectors in the course of an investigation.

Ontario (Ministry of Labour) v. J.R. Contracting Property Services et al., 2013 ONCJ 202 (CanLII)

The work refusal provisions of the Occupational Health and Safety Act should not be abused, an arbitrator has effectively held in overturning an employee’s dismissal but refusing reinstatement.

The employee’s work refusal complaint to the Ontario Ministry of Labour had been made in bad faith, according to the arbitrator.

The employee worked as a plumber at a hospital.  In January 2011, he engaged in a verbal exchange with another employee.  The employee alleged that the other employee threatened him.  The arbitrator decided that the employee’s “honest belief [that he had been threatened] graduated into an attitude of increasing certitude, elevated worry, and finally rectitude.  That certitude and eventual rectitude blinded [the employee] to any other possible view of the matter and led him to question the motives and conduct of almost everyone around him.”

The employee went on  “stress leave”. At some point, he insisted on an immediate return to work.  There was a delay in his return because his doctor took time to get back to the Hospital.  The employee then responded by filing a work refusal complaint with the Ministry of Labour under the Occupational Health and Safety Act and sent an emotional e-mail to the Hospital CEO the next day.

The arbitrator decided that the work refusal complaint was “highly questionable”.  The arbitrator held that it was not made in good faith in the sense that it was a “reckless claim– intended to place additional pressure on the Hospital.”  The Hospital had just cause to impose discipline for making the work refusal allegation.

However, because the employee had five years of service and no disciplinary record, the bad-faith work refusal was not enough to dismiss for cause.  But the arbitrator nevertheless decided that he should not be reinstated: the employee was convinced that numerous people had lied about him in the past and continued to lie about him at the arbitration. He had two years to re-evaluate but his position had only hardened.  If he were reinstated, he would “continue his quest for justice as he sees it”. Also, he had found permanent employment with another major public sector unionized employer, which he judged to be equivalent or superior to what he enjoyed at the hospital. 

“But this just can’t go on”, the arbitrator concluded, denying reinstatement that would only embolden the employee to persist in further investigation until he was satisfied with the result.  The employee was instead awarded approximately nine months’ wages in lieu of reinstatement.

 C.U.P.E. v. The Scarborough Hospital, 2013 CanLII 16383 (ONLA)

The City of Guelph acted reasonably when it relied on the stamped drawing of an architect and engineer as evidencing compliance with all legal requirements, an Ontario judge has held in dismissing an Occupational Health and Safety Act charge against the City of Guelph.

The charge resulted from the death of a fourteen year old girl when a concrete block privacy wall collapsed on her as she tried to boost herself up onto a change table which was affixed to the wall.

The City was charged under the Occupational Health and Safety Act with failing, as an employer, to ensure that the wall was capable of supporting all loads to which it may be subjected “without causing the materials therein to be stressed beyond the allowable unit stresses established under the Building Code Act“.  Mr. Justice Epstein of the Ontario Court of Justice found that the “allowable unit stresses” standard no longer existed in the Building Code at the time of the design and construction of the building.  Rather, the “limits states design philosophy” had replaced it.  The Ministry of Labour had, however, failed to update the language in the OHSA.  As such, “The wording in the charging section has no applicabliy to the circumstances of this case in that the concept of allowable unit stress had expired long before” the design and contruction of this building, which had been designed in accordance with the “limits states design discipline”.  As such, the prosecutor had not proven beyond a reasonable doubt that the City had committed the offence.

According to Justice Epstein, even if the City had committed the offence, it was reasonable for the City to rely on the stamped drawing of the architect and engineer.  It was not readily apparent that the drawing was defective, and in any event the “default position in the industry” is that if walls are joined as shown on the drawing, they need to be interlocked.  There was also an “outright failure” of the masonry subcontractor to properly construct the wall to be stable.  As such, the City had established due diligence by relying on the stamped drawing.

Occupational Health and Safety Act charges against the architect and engineer were previously dismissed for limitations reasons (see our previous post here) but that decision is under appeal.

The court’s acquittal of the City will be of some comfort to employers who rely on stamped documents of architects and engineers in constructing buildings – at least where it could not have been apparent from the drawing that it was deficient.

Her Majesty the Queen v. Corporation of the City of Guelph, Ontario Court of Justice, February 2, 2012 (Epstein J.)

An employee with a long history of substance abuse issues and absenteeism was properly dismissed after he attended at work while impaired, an Ontario arbitrator has decided.

The employee worked as a janitor in the subway system in Toronto.  He suffered from drug and alcohol addiction and had a criminal history.  His absenteeism record was described as “extreme” with more than 100 days of absence in one year.

The day after he “got smashed” at a wedding reception, the employee attended at work in an impaired state.  His eyes were  glassy and he was waving his arms around and making noises that sounded like a quacking duck.  He was dismissed for being unfit for duty at work. 

The collective agreement specifically provided that that the TTC may discharge an employee for “Being impaired while on duty by reason of consumption of an intoxicating beverage, or drug for other than medicinal purposes” and that “[i]f the factual basis is substantiated, the Arbitration Board shall not inquire into the propriety” of the discharge.  Based on that provision, the arbitrator held that because the employee was impaired at work, the arbitrator had no authority under the collective agreement to overturn the discharge or impose a lesser penalty.

The next question was whether the TTC had satisfied its duty to accommodate the employee’s disability – alcohol and drug dependancy – under the Human Rights Code.  The arbitrator decided that the TTC had already accommodated the employee to the point of undue hardship by: tolerating very high levels of absenteeism over several years; providing him with sick benefits to enable him to attend several rehabilitation programs; giving him extensions of time to comply with the grievance procedure; giving him a mandatory referral to an addictions counsellor; and retaining him in its employ even though he had violated a last chance agreement.  His absenteeism affected his department and his co-workers, who had to pick up the “safety critical type of activities” that the employee’s absence created.  His absences also imposed a significant burden on management (taking ten times the effort of managing other employees).

As such, despite the employee’s admirable efforts to overtime his alcohol and drug dependency, requiring the TTC to reinstate the employee would impose undue hardship on the TTC.  This case illustrates that “undue hardship” can indeed be proven based on excessive absenteeism and the resulting effect on the employer. 

Amalgamated Transit Union Local 113 v. Toronto Transit Commission, 2012 CanLII 51356 (ONLA)

Since January 1, 2012, Ontario employers have been obligated to provide “individualized workplace emergency response information to employees who have a disability, if the disability is such that the individualized information is necessary and the employer is aware of the need for accommodation due to the employee’s disability.”

The obligation is in section 27 of the Integrated Accessibility Standards regulation under the Accessibility for Ontarians with Disabilities Act, 2005 (often referred to as “AODA”).  Although other obligations under that regulation come into effect in 2014 and later, the emergency response information requirements in section 27 came into effect in 2012.

Section 27 also requires that if an employee who “receives individualized workplace emergency response information requires assistance”, then if the employee consents, the employer shall provide the workplace emergency response information to the person designated by the employer to provide assistance to the employee.”

The section goes on to require that employers provide the emergency response information as soon as practicable after the employer becomes aware of the need for accommodation due to the employee’s disability.

Lastly, section 27 requires that every employer review the individualized workplace emergency response information, “(a) when the employee moves to a different location in the organization; (b) when the employee’s overall accommodations needs or plans are reviewed; and (c) when the employer reviews its general emergency response policies.”

Employers – particularly those with workplaces which might be difficult to exit in the event of an emergency – should consider their obligations under section 27.

Worker safety orientation is expected to become mandatory in Ontario on January 1, 2014, as we have previously advised.  The Ontario Ministry of Labour is developing an e-learning module that workers and supervisors can take to complete the orientation, and has now made available printed copies of its worker safety orientation materials.

The worker materials are called “Worker Health and Safety Awareness in 4 Steps”, and an accompanying employer guide is available.  Printed copies can be ordered by going to www.publications.service ontario.ca and searching for “worker awareness”.

The MOL says that the supervisor materials, called “Supervisor Health and Safety Awareness in 5 Steps”, and the accompanying employer guide, will be available in printed form soon.

Also, the MOL says that the e-learning program will be available later this Spring.  According to the MOL, “learners will be able to access modules on the ministry’s website and print a certificate of completion once they complete the online awareness training.”  The e-learning module will, hopefully, make it relatively easier for employers to comply with their new obligation, as of January 1, 2014, to ensure that all workers and supervisors have received the mandatory safety orientation.  Workers and supervisors may simply go to the MOL website, take the orientation through the e-learning module, print the completion certificate, and give it to their employer.

For more information on the new mandatory training obligations, see our previous post here.

You will have noticed that the look of this occupational health and safety law blog has changed – a lot!  We are delighted to announce our new global law firm, Dentons.  And much more than our firm colours has changed.

On March 28, FMC combined with international firms Salans and SNR Denton. Each founding firm has built its solid reputation and valued clientele by responding to the local, regional and national needs of a broad spectrum of clients of all sizes—individuals; entrepreneurs; small businesses and start-ups; local, regional and national governments and government agencies; and mid-sized and larger private and public corporations, including international and global entities.

We are now working together with 2,500 talented lawyers and professionals -including many occupational health and safety lawyers - in 79 locations in 52 countries across Africa, Asia Pacific, Canada, Central Asia, Europe, the Middle East, Russia and the CIS, the UK and the US.  Please see Introducing Dentons for an overview of our new firm.

These are very exciting times — for our clients, for our work and for the insights we bring to this blog. To find out more about our new firm, about what makes Dentons different, please visit www.dentons.com.

We don’t often hear of 37-year employees being fired for just cause.  An arbitrator has recently upheld the dismissal of a long-service unionized employee for safety violations.

The employer was a recycler of lead, and thus had important safety rules which included the use of respirators.  The employer was required, by the Occupational Health and Safety Act, to monitor employee blood levels for lead.

The employee had 7 disciplines on record in the past year, including a recent 25-day suspension, some of which were for safety violations.  The arbitrator referred to the employee’s “year-long journey of disciplinary misadventure” that ended with two safety-breach “culminating incidents” that occurred on successive days.

In the first culminating incident, the employee failed to wear his hard hat, safety glasses and mask in the plant. In the second culminating incident, he failed to wear a respirator in the plant and be clean shaven for an effective mask seal.

The arbitrator concluded as follows:

“In the result, this case presents a 58-year old grievor with 37 years of service (at the point of discharge) who is guilty of two incidents of health and safety related misconduct on consecutive days, less than a month after receiving a written warning and what amounted to a counselling for related health and safety misconduct (on April 11, 2012), and a little over 4 months after serving a 25-day suspension for multiple misconducts during the 6-week period after he was disciplined on October 12, 2011. The grievor’s evidence and wholly inadequate “apology” demonstrate that that [sic] he still does not fully acknowledge or accept responsibility for his misconduct on either April 30 or May 1, 2012. The Company has reasonably concluded that its efforts to rehabilitate the grievor have been fruitless, and that it can no longer tolerate his presence in the workplace.”

The arbitrator noted that the cases “demonstrate that workplace health and safety is a serious matter. The jurisprudence (not limited to the cases cited) makes it clear that arbitrators take the mutual responsibility of employers, unions, and employees to ensure workplace health and safety is very seriously . . . [L]engthy service by itself has less mitigation currency in health and safety misconduct cases than it has in other kinds of cases.”

In the result, the employee’s discipline history, the seriousness of his safety violations, and the lack of a sufficient apology, along with the two culminating incidents, justified his termination – despite his unusually-long service.

Tonolli Canada Ltd. and USW, Local 9042 (Marsiglia), Re, 2013 CarswellOnt 3855 (Ontario Arbitration, 2013)

We don’t often hear of Occupational Health and Safety Act charges against suppliers alleging that their machines or equipment were unsafe for use in workplaces.

In a recent case, Occupational Health and Safety Act charges against a supplier, alleging that a machine that it supplied did not comply with the guarding requirements of that Act, were permitted to proceed to trial before a Saskatchewan court.

The Saskatchewan OHSA, in section 8(a)(ii), imposes a duty on every “supplier” to ensure, insofar as is reasonably practicable, that any “plant” supplied by the supplier for use at any place of employment complies with the regulations under the OHSA.  “Plant” is defined to include “equipment”.

A regulation under the Saskatchewan OHSA required that, “Where a worker is required to feed material into a material-forming press, punch, shear or similar machine, an employer or supplier shall” install safeguards to prevent the worker from contacting moving parts.

The supplier argued that the the grain extractor was not a material-forming press, punch, shear or similar machine, nor was a worker required to “feed material” into the grain extractor.  Rather, according to the supplier, the grain extractor was a moving shaft that attached to a grain bag.  The court, however, stated that “No evidence was presented on this point”, and that the issue was better left to the trial judge.

This decision illustrates that suppliers – and not only employers and constructors – can have duties under occupational health and safety legislation – duties that can lead to charges and significant fines if breached.

Subsection 31(1) of the Ontario Occupational Health and Safety Act also places duties on a supplier who “supplies any machine, device, tool or equipment under any rental, leasing or similar arrangement for use in or about a workplace”.

R v Flaman Sales Ltd, 2012 SKPC 170 (CanLII)

In November 2012, we posted a blog regarding Bill 6, The Protection and Compliance Statures Amendment Act, 2012, introduced to the Alberta legislature to amend three Acts, including the Occupational Health and Safety Act as part of an ongoing effort by the provincial government to hold employers (and those responsible for work sites) accountable for the health and safety of their business operations. Bill 6 received Royal Assent on December 10, 2012. As a result, one key amendment now in force is Section 3(1) of the Occupational Health and Safety Act, which deals with the prime contractor.

Prior to the amendment, the legislation was worded in a way which suggested that a prime contractor was only required if two or more employers were involved at the work site at the same time. Due to the wording, some site owners were able to bypass the prime contractor obligation by skillfully crafting a work schedule so that no more than one employer was present at a work site at the same time.

The amendment strikes out the words “at the same time” in an effort to clarify that a prime contractor is required for a work site whenever there are two or more employers whose work activities are interrelated and/or have a health or safety impact on each other, even though they may not be present at the work site together.

For more information see: http://humanservices.alberta.ca/documents/OHS-Act-Amended-LI031.pdf

Supervisors and safety professionals have often told me that they fear being personally charged under the Occupational Health and Safety Act.  Now, a human rights tribunal has decided that an employee’s generalized anxiety disorder was caused by such a fear.

The employee was a “Supervisor, Regulated Substances, Asbestos” with the Hamilton-Wentworth District School Board.  In the fall of 2001, she developed a generalized anxiety disorder as a reaction to the “highly stressful nature of her job, and her fear that, in making a mistake about asbestos removal, she could be held personally liable for a breach of the Occupational Health and Safety Act . . .”

According to the Human Rights Tribunal of Ontario, the employee testified that “the Ministry of Labour was critical of the [school board's] handling of its asbestos removal projects and that she, as the supervisor of these projects, was personally threatened with a substantial fine.”

She went off work due to the anxiety.  Medical evidence showed that she could not work in any position involving liability for health and safety issues.  She asked to return to work in a position that did not involve any risk of OHSA liability.

The Tribunal decided that there were other positions to which the school board could have returned the employee that did not involve potential OHSA liability.  Because the school board did not return her to such a position, it had breached its duty to accommodate.  See my colleague, Catherine Coulter’s article about the significant damages (almost 10 years’ income) awarded to the employee.

The case is an interesting read for safety professionals, and perhaps a reminder to employers to provide sufficient training to ensure that their supervisors and safety professionals can sleep well at night without being nagged by fears of personal charges or liability under the Occupational Health and Safety Act.

Fair v. Hamilton-Wentworth District School Board, 2012 HRTO 350 (CanLII) (decision that employer breached duty to accommodate) and 2013 HRTO 440 (CanLII) (decision awarding damages).

An alleged comment that “women don’t like to do that job”, and other discussions at an Ontario Labour Relations Board safety-reprisal mediation, were privileged and could not form the basis for a discrimination complaint, the Human Rights Tribunal of Ontario has decided.

An administrative employee with the Alcohol and Gaming Commission of Ontario filed a safety-reprisal complaint under section 50 of the Ontario Occupational Health and Safety Act.  The parties attended mediation at the Ontario Labour Relations Board in that safety-reprisal matter.

She alleged, in a separate discrimination Application to the Human Rights Tribunal of Ontario, that at the OLRB mediation, she was told that her former administrative position no longer existed and was offered a mail clerk position but told that “women don’t like to do that job.”  In her Tribunal Application, she made a number of other allegations about the OLRB mediation.

The Tribunal decided, based on various sections of the Ontario Labour Relations Act, that the discussions at the OLRB mediation were confidential and without prejudice settlement discussions and as such were privileged.  Further, the OLRB mediator could not be compelled to testify as a witness before the Tribunal.  As such, the employee could not use the OLRB mediation discussions as a basis for her discrimination complaint to the Tribunal.

The Tribunal stated that there was no reason to depart from the Tribunal’s usual approach of not relying upon confidential and without prejudice settlement discussions.  Confidentiality is important in mediation, and no exception to the application of settlement (“without prejudice”) privilege was warranted in this case.

 Johnson v. Alcohol and Gaming Commission of Ontario, 2013 HRTO 471 (CanLII)

An employee who claimed that he was dismissed after sharing his concerns about the well-being of himself and his children and the “lifestyle of their mother”, has been denied a remedy under the safety-reprisal provisions of the Canada Labour Code.

The employee, who was in the midst of a family-law dispute, alleged that his employer, the Canada Revenue Agency, did nothing to respond to those concerns including notifying proper authorities. He said that had an occupational health and safety investigation been held and a report properly issued following his complaint, the whole matter would have turned out differently and he would not have been dismissed.

The Public Service Labour Relations Board dismissed his reprisal complaint, holding that the employer’s decision to terminate his employment was an extension of its decision to place him on leave without pay after he exhausted his sick leave credits and did not return to work.

The Federal Court of Appeal upheld the PSLRB’s decision, holding that the employee was “unable to show the link between the asserted danger and his employer, but for the alleged duty of the CRA to get involved in his personal life and to protect him and his children.”

This case is an example of how occupational health and safety laws will not extend to alleged safety concerns in an employee’s personal life of a purely private nature that do not affect an employee’s workplace safety.

Gaskin v. Canada (National Revenue), 2013 FCA 36 (CanLII)