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Appeal Court Revives Class Action against the WSIB

The Ontario Court of Appeal has revived a proposed class action brought by the appellant, Pietro Castrillo, on behalf of a class of injured workers whom he alleges have been wrongfully denied the full extent of benefits to which they were entitled under the Workplace Safety and Insurance Act, 1997 (the “Act”), by the respondent the Workplace Safety and Insurance Board (“WSIB”).  The class action alleges misfeasance in public office, bad faith, and negligence on the part of the WSIB.

The class action claims that injured workers were “denied the full extent of benefits to which they were entitled” as a result of a “secret policy” implemented by the WSIB, which policy adopted a broader interpretation of the term “pre-existing impairment” to include asymptomatic pre-existing conditions, which had previously been excluded.   The appellant claims that this change in interpretation was illegally made in order to save WSIB money by reducing injured workers’ non-economic loss awards.  The class action seeks declarations that the WSIB “perpetrated a misfeasance in public office” in how it handled the non-economic loss claims of the class, “breached its duty to act in good faith” to the class, and, in the alternative, was negligent.  According to the Toronto Star, the alleged “secret policy” was in force between 2012 and 2014.

Two years ago, the WSIB successfully brought a motion to strike the statement of claim, asserting there was no cause of action, and that the court has no jurisdiction over the subject matter of the class action due to the privative clause in the Act, which gives the WSIB exclusive jurisdiction to examine, hear and decide all matters and questions arising under the Act. The motions judge granted the motion to strike the statement of claim, without leave to amend.  The motions judge held that the WSIB’s decisions to reduce the class members’ non-economic loss benefits were “legal decisions that fall within the four corners of the privative clause”, and were therefore beyond court challenge.

The appellant appealed the motion judge’s ruling to the Court of Appeal.  On appeal, the court considered two issues: 1) were the causes of action properly pleaded, and 2) does the privative clause in the Act prevent the appellant from pursuing the causes of action.  The Court of Appeal held that, except for the allegation of bad faith, the claim was properly pleaded, and the privative clause in the Act does not prevent the appellant from pursuing claims of misfeasance in public office and negligence against the WSIB.  As a result, the class action against the WSIB has been granted permission to proceed.

The decision of Court of Appeal may be accessed here.

Appeal Court Revives Class Action against the WSIB

“Repeated exposure to supervisor constituted a dangerous situation”, employee arguing

The Federal Court has breathed new life into a government employee’s claim that “repeated exposure to her supervisor constituted a dangerous situation” that justified her work refusal under the Canada Labour Code.  The case is a good example of how workplace harassment / violence complaints that appear trivial on their face can turn out to cause the employer significant headaches.

The employee was unhappy with the employer’s investigation.  The matter was then referred to a federal Labour Affairs Officer who concluded that the existing situation constituted a danger for the employee.  He recommended that the Labour Program’s Regional Director order the employer to take immediate action to correct the situation.

However, the Regional Director “refused to investigate” the work refusal, reasoning that the employee’s concerns would be more appropriately dealt with under the Public Service Labour Relations Act because of the grievances that the employee had already filed under that Act.  The Regional Director told the employee that she was no longer entitled to refuse to be in the direct or indirect presence of her supervisor.

The court decided that the Regional Director’s decision was unreasonable.  Given that the Labour Affairs Officer had already investigated the work refusal, the Regional Director had only three options under sections 129(4) and 128(13) of the Canada Labour Code: “1) agree that a danger exists; 2) agree that a danger exists but consider that the refusal puts the life, health or safety of another person directly in danger or that the danger is a normal condition of employment; and 3) determine that a danger does not exist.”  The court also stated that even if the Labour Affairs Officer had not already investigated the work refusal, the Regional Director’s decision “was not justified, transparent or intelligible as it lacked any explanation as to why” the grievance under the Public Service Labour Relations Act was a more appropriate process to deal with the employee’s allegations of danger.  It was also unclear as to why the Regional Director diverged from the Labour Affairs Officer’s decision.

As such, the court concluded that “the Regional Director’s decision lacks justification, transparency and intelligibility and as such, it is unreasonable and does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.

The court set aside the decision of the Regional Director and sent the matter back to the Minister of Labour or her delegate for reconsideration.  The court awarded the employee $4,500.00 in legal costs.

Karn v. Canada (Attorney General), 2017 FC 123 (CanLII)

“Repeated exposure to supervisor constituted a dangerous situation”, employee arguing

Is compliance with industry standards enough to establish due diligence? Alberta Court of Appeal set to consider this issue.

We recently wrote about the decision in R. v. Precision Drilling Canada Ltd., where the Appeal Judge set aside the trial verdicts and ordered a new trial in a workplace fatality case. The Crown sought leave to appeal that decision to the Alberta Court of Appeal.

In the leave to appeal decision, the Alberta Court of Appeal stated that workplace safety was of significant public importance to justify a further appeal. It granted leave to the Crown to advance its appeal on two questions that had not yet been settled by Alberta’s highest court. Those questions were:

  1. Did the Appeal Judge err in law by requiring the Crown, as part of the actus reus of the offence, to negate due diligence or prove negligence?
  2. Did the Appeal Judge err in law in her interpretation and application of the due diligence test?

On the first issue, the Crown argued that the Appeal Judge’s decision required the Crown to prove negligence, or negate due diligence in order to prove the elements of the offence under section 2 of the Occupational Health and Safety Act, being the general duty on an employer to ensure the health and safety of its workers. The Court of Appeal noted that as the law currently stands, it was arguable that in order to prove a breach under section 2, the Crown need only prove the fact of employment, the worker’s engagement in the employer’s work, and the worker’s injury or death. It would then be up to the employer to prove due diligence. In this case, the Appeal Judge appeared to require the Crown to prove that the employer committed a wrongful act. As such, the Court of Appeal found that the Crown’s position on this point had merit.

On the second issue, the Crown argued that the Appeal Judge erred in strictly comparing the employer’s practices to generally accepted standard practices in the industry, rather than taking a broader view of what the employer reasonably should have done. The Crown’s position was that while industry standards may set a minimum level of care, they did not determine due diligence. The Court of Appeal agreed that the Appeal Judge’s decision arguably used a due diligence test that required the Crown to disprove compliance with industry standards and government regulation and did not apply the proper foreseeability test or broader due diligence test.

As such, the Alberta Court of Appeal agreed that the appeal could proceed on those two issues. It will be interesting to see how the Court of Appeal ultimately decides these questions and brings clarity to these two important issues. Stay tuned.

R. v. Precision Diversified Oilfield Services Corp., 2017 ABCA 47 (CanLII)

Is compliance with industry standards enough to establish due diligence? Alberta Court of Appeal set to consider this issue.

Industrial safety specialist properly fired for lying on security application

An Ontario judge has decided that Atomic Energy of Canada Limited had just cause to dismiss an industrial safety specialist who misrepresented his employment history in a security application.

AECL operates nuclear research facilities.  It runs security checks that are mandated by the Government of Canada, including obtaining site security clearances for new employees.

AECL received harassment complaints against the employee.  During the investigation, it came out that the employee had been employed at the time AECL hired him. However, during the hiring process, he had indicated on a security questionnaire, and in an e-mail when specifically asked, that he was unemployed.  This was false. AECL fired him.

The employee sued for wrongful dismissal.  In the course of the lawsuit, he offered five different explanations for why he lied to AECL about his employment status.

The court decided that AECL had just cause to dismiss the employee.  AECL was not a “regular employer”, and the pre-employment security checks were “tied to the security of the nation”.  The court stated, “It is in this national security context that the plaintiff misled his employer”.  He had “engaged in a most serious form of dishonesty and, standing on its own, it was irreconcilable with sustaining his employment relationship with AECL.  It is dishonesty that went to the core of the employment relationship and he was terminated with cause.”

Aboagye v Atomic Energy, 2016 ONSC 8165 (CanLII)

 

Industrial safety specialist properly fired for lying on security application

Injured worker’s claim lacked the “something more” needed to establish personal liability against employer’s directors

The Alberta Court has confirmed that in order for a director of a corporate employer to be found personally liable for damages sustained by one of the corporation’s workers in a workplace accident, there must be “something more, sufficient to establish independent tortious liability.”

This case arose from a workplace accident. The plaintiff worked for an oil tank repair company. He was working on a tank with a co-worker when the tank exploded, killing the co-worker and injuring the plaintiff. The Workers’ Compensation Act prohibited the plaintiff from suing his corporate employer. However, the directors of the corporation, the wife and sister of the deceased co-worker, were not considered workers nor employers under the Workers’ Compensation Act and so were not protected from suit.

The plaintiff sued the two sole directors, alleging that the accident was caused by their negligence. The particulars of negligence pled included that they had failed to ensure that the company’s tanks were properly inspected and maintained, had failed to ensure adequate safety procedures were in place and being properly followed, including safety measures required under the Occupational Health and Safety Act, and had failed to ensure workers were properly trained. The directors applied to have the claim against them summarily dismissed.

The application was initially dismissed by a Master and the directors appealed. The Justice hearing the appeal noted that the Master relied heavily on the Alberta Court of Appeal’s 2006 decision in Nielsen (Estate of) v. Epton, where a director was found personally liable following a workplace fatality. However the Justice found that case was distinguishable on its facts because in Epton, the director was directly involved in the work that led to the accident. In this case, there was no evidence that the directors had any involvement with the work being undertaken on the tank. The deceased worker (the husband of one of the directors) and the husband of the other director, were primarily in charge of running the company. The wives (the directors) had no operational involvement in the work being done by the plaintiff and there was no evidence that the plaintiff had any need or expectation they would give him any instructions on how to do his work.

The Justice confirmed that Epton did not stand for the proposition that a director who fails to carry out the duties of a director, or does so negligently, is automatically personally liable. The Justice accepted that the directors may have been negligent in their corporate capacities, but that was not enough to create independent tortious liability. Further, the Justice agreed with the directors that there was no causal link between their alleged negligence as directors and the plaintiff’s injury. There was no evidence that they were acting in a personal capacity or that what they did or did not do in their personal capacities was a material cause of the plaintiff’s injuries. As such, it was appropriate to grant summary judgment dismissing the claim against the defendants.

While the directors fared well in this case, this decision serves as a reminder that with the proper facts, directors may be liable to a worker for a workplace accident, even where the corporate employer is protected by the Workers’ Compensation Act, unless the directors have personal workers’ compensation coverage.

Bower v. Evans, 2016 ABQB 717 (CanLII)

Injured worker’s claim lacked the “something more” needed to establish personal liability against employer’s directors

Church defeats lawsuit by volunteer after stepladder accident. Duelling OHS experts’ testimony considered

A volunteer has lost his lawsuit against a church after he fell off a stepladder he was using at the church.

The volunteer was a parishioner at the church who agreed to help with painting.  He claimed that the church’s negligence led to the accident.  He argued, in support of his negligence claim, that the church violated regulations under the Occupational Health and Safety Act.

The court heard expert testimony from two occupational health and safety experts.  The court rejected one expert’s testimony, which had been “denuded of efficacy” on cross-examination. The court accepted the other expert’s testimony. That expert’s opinion was that the volunteer was not a “worker” under the OHSA; that the regulations under the OHSA did not apply; that because of the precautions taken by the church, even if the regulations did apply, the church did not breach them; and that had the church been prosecuted under the OHSA, the charges would have been dismissed.

It was important to the court that the volunteer had not been asked to install trim but took it upon himself to do so, contrary to instructions. He took the “variation in risk” upon himself.  He fell off the stepladder when working on the trim, not while painting.

With respect to the OHS experts’ testimony, the court noted:

“The exercise [of hearing testimony from the OHS experts] was beneficial.  The standards articulated in the OHSA are for the most part an attempt to legislate common sense.  These standards do not apply to volunteers; however, the analysis applied by an inspector in assessing a set of circumstances for the purposes of statutory compliance has similarities to the analysis of compliance with the occupier’s atattory [sic] standard of care and the plaintiff’s assumption of risk.”

The court, in dismissing the volunteer’s lawsuit against the church, concluded:

“The defendant provided a stable ladder, a flat and stable working surface, appropriate ladder use instruction and maintained general compliance observations over many weeks and hours . . .

“Even if it could be said that the tableau presented an objectively unreasonable risk of harm, it was the plaintiff who undertook this task of his own volition contrary to instructions from Jarvis.  He assumed the variation in risk.  The defendant asked for paint volunteers.  The plaintiff was not asked to install trim. This work was beyond Jarvis’ purview . . .”

Baltadjian v The Roman Catholic Episcopal Corporation for the Diocese of Alexandria, 2017 ONSC 61 (CanLII)

Church defeats lawsuit by volunteer after stepladder accident. Duelling OHS experts’ testimony considered

Court refuses small-town mayor’s OHSA-based request for injunction prohibiting resident from harassing her

An Ontario judge has rebuffed a small-town mayor’s attempt to use the Occupational Health and Safety Act‘s violence and harassment provisions to obtain a court order stopping a town resident from harassing her.

The mayor claimed that the resident had engaged in workplace harassment and violence, contrary to the OHSA, by sending her numerous “increasingly abrasive” letters and emails in which he made pejorative statements about the mayor and made comments about the “unprofessional conduct” of the town. The resident was apparently “interested in horticulture and town beautification” and had concerns about the management of the town’s affairs.

The court decided that the evidence did not support a finding that workplace violence had occurred.  There was just one allegation that the resident had verbally harassed the mayor during an encounter at the town health unit, where the mayor held a full-time job, in 2014.  Also, the judge stated that it was doubtful that the harassment policy or the OHSA’s harassment provisions were ever intended to apply to persons who are not part of the “workplace”.  The judge decided that in this case, the resident was not a coworker, so the harassment policy did not apply to his actions.

The mayor and the town were therefore not entitled to an “injunction” order from the court prohibiting the resident from communicating with, harassing or publishing any information about the mayor or any other town councillor or employee.

Rainy River v Olsen, 2016 ONSC 8009 (CanLII)

Court refuses small-town mayor’s OHSA-based request for injunction prohibiting resident from harassing her

Psychological harassment arbitration adjourned because employee awarded worker’s compensation benefits

An employee who received worker’s compensation benefits for “psychological injury due to harassment” has had her union harassment grievance, against her employer and supervisor, adjourned.

The employee claimed that her supervisor had harassed her at work by “singling her out, questioning her abilities, criticizing her use of sick leave, threatening her job, refusing to provide her equivalent training provided to others, making serious allegations with respect to her work performance, and accusing her of killing patients, in circumstances in which the employer knew or reasonably ought to have known these events were occurring.”

In her union grievance, she asked the labour arbitrator to remove her supervisor from the workplace, and claimed damages totaling $100,000 from him and her employer.

The arbitrator noted that the Saskatchewan Workers’ Compensation Act provides that “No employer and no worker or worker’s dependant has a right of action against an employer or a worker with respect to an injury to a worker arising out of and in the course of the worker’s employment”.  The Act also provided that the Workers’ Compensation Board had exclusive authority to decide whether, in any particular case, an employee did not have the right to sue the employer in respect of the injury.

The arbitrator, relying on a previous court decision in another case, decided that the WCB, and not the arbitrator, had authority to decide whether the employee could advance the union grievance claiming damages for the psychological injury allegedly caused by harassment. The employer had already applied to the WCB for a decision on that issue. The  arbitrator urged the parties to seek a “timely decision” from the WCB.  The arbitrator adjourned the grievance arbitration until the WCB had decided whether the employee had the right to claim damages at arbitration for her workplace psychological injury.

Saskatoon Regional Health Authority v SEIU West (Erosa-lopez), 2016 CanLII 95946 (SK LA)

Psychological harassment arbitration adjourned because employee awarded worker’s compensation benefits

Work refusal due to second-hand smoke was not properly investigated: arbitrator

A correctional officer with sinusitis and sensitivity to second-hand smoke was entitled to have her work refusal investigated by prison management, an arbitrator has decided.

Although the prison was a non-smoking facility, prisoners would smuggle in contraband cigarettes. There was an “informal arrangement” in place under which the correctional officer could be moved to a different area of the prison if she detected second-hand smoke.

At the time of her work refusal, there was labour unrest at the prison including “mass work refusals”. She refused to work because she “believed that she would be exposed to second-hand smoke”.  She was directed to wait in the lunchroom, where she waited several hours and heard nothing from management.  She, however, made no concerted effort to contact management about the status of her work refusal.

The arbitrator stated:

” . . . I fail to see why the Employer could not have initiated and completed an investigation of CO Gough’s work refusal during the course of her 12-hour shift on September 7, 2014.  It is not clear to me for example why a stage 1 investigation could not have been conducted by the Employer later in the afternoon, rather than the information gathering meeting that was held by DS Large.  CO Gough’s single work refusal was not that complicated and I would have thought that an investigation of it would have been relatively brief and could have been completed before the end of her shift.  In considering all of the circumstances of that day, I find that the Employer’s failure to conduct an investigation of CO Gough’s work refusal on September 7, 2014, was not reasonable and that this failure amounts to a contravention of section 43 (3) of OHSA.”

The arbitrator, however, rejected the union’s argument that the way the employer handled the work refusal constituted harassment.  There was no evidence of bad faith on the part of the employer.

Lastly, the arbitrator decided that the proper remedy was simply “declaratory relief”: a declaration from the arbitrator that management failed to investigate the work refusal and thereby violated the Occupational Health and Safety Act.  However, the correctional officer did not experience any harm that would justify an award of monetary damages.

Ontario Public Service Employees Union (Gough) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

 

Work refusal due to second-hand smoke was not properly investigated: arbitrator

Christmas party incident of sexual harassment leads to dismissal, then reinstatement, of firefighter

A male firefighter who had been “drinking heavily” has won reinstatement to his job after being fired for sexually harassing a female coworker at the fire department’s Christmas party.

The Christmas party was held at a restaurant. The male firefighter, a Captain at a fire station, told the female colleague that he thought she would get pregnant if she transferred to his fire station.

The female colleague later alleged that he had said that she would get raped and become pregnant if she transferred to his fire station.  The arbitrator did not accept this allegation and concluded that the female firefighter had misheard or misunderstood the male firefighters.  The union, however, admitted that if the arbitrator found that the male firefighter had threatened the female firefighter with rape, the City would have just cause to fire him.

The arbitrator stated:

“I accept the Grievor’s evidence that he does not recall using the word [“rape”] and it would not be something that he would say. I acknowledge that the Grievor had a number of drinks that night and was being offensive. But the Grievor’s comments were more directed towards Firefighter A [the female firefighter] being involved socially or sexually with other firefighters, and not directed at Firefighter A being assaulted.

“While it is true that the Grievor clearly mentioned Firefighter A getting pregnant, he was also talking about rumour and gossip surrounding her relationship with other firefighters.”

According to the arbitrator, even if the male firefighter had used the word “rape”, there was clearly no intention of uttering a threat, and the female firefighter testified that she did not believe that the male firefighter was threatening to rape her.  The arbitrator stated, “I believe it is more probable than not that the Grievor only made some offensive comments about Firefighter A’s involvement with Firefighter Hefferman.”

In the end, the arbitrator reinstated the male firefighter with a three-month unpaid suspension, and demoted him to the rank of first class firefighter for a period of time to be agreed by the parties. The arbitrator also ordered that the male firefighter participate in “sensitivity and anti-harassment training”.

Corporation of the City of Brampton v Brampton Professional Firefighter’s Association, Local 1068, 2016 CanLII 87624 (ON LA)

 

Christmas party incident of sexual harassment leads to dismissal, then reinstatement, of firefighter

Subway operators fighting decision to staff trains with only one operator, claiming unsafe

Three Toronto subway operators engaged in a work refusal after the Toronto Transit Commission decided to staff subway trains with only one operator (instead of two).

Their union is now fighting a Ministry of Labour inspector’s decision that the staffing arrangements were “not likely to endanger” and therefore did not justify the work refusal under the Occupational Health and Safety Act.

The union appealed the MOL inspector’s decision to the Ontario Labour Relations Board, and also grieved the TTC’s one-operator decision under the collective agreement.

The union asked to adjourn the OLRB appeal pending the outcome of the grievance proceedings. The employer opposed the adjournment. The OLRB granted the adjournment due to the grievance proceedings.   Although it was unclear as to whether the issues before the OLRB and the grievance arbitrator were the same, the OLRB stated that if the arbitrator ultimately decided not to hear aspects of the grievance that overlap with the OLRB appeal, the OLRB would relist the OLRB appeal for hearing.

We will continue to monitor the reported decisions in this case and will provide updates on this blog.

Amalgamated Transit Union, Local 113 v Toronto Transit Commission, 2016 CanLII 90788 (ON LRB)

 

Subway operators fighting decision to staff trains with only one operator, claiming unsafe

The death of an employee due to the collapse of trench walls: Superior Court confirms the employer’s committal for trial for manslaughter

In the recent decision Fournier c R.[1], the Superior Court of Quebec confirmed that an employer’s violations of health and safety legislation can be the underlying unlawful act on which is based a criminal charge of manslaughter.

On April 3, 2012, Mr. Fournier, who is the owner of an excavation firm, was replacing a sewer line with one of his employees when the trench walls collapsed, killing the employee. As a result, Mr. Fournier was personally charged with criminal negligence causing death[2] and with manslaughter. For both offences, the maximum punishment is imprisonment for life.

Following the preliminary inquiry, the accused was committed to trial on both charges. While he did not contest the part of the decision relating to the offence of criminal negligence causing death, he challenged his committal to trial for the charge of manslaughter.

In this case, the charge of manslaughter is based on section 222(5)a) of the Criminal Code which provides that a person commits culpable homicide when he causes the death of a human being by means of an unlawful act. At the preliminary inquiry hearing, the prosecution led evidence to show that while he was in charge of the work to replace the sewer line, Mr. Fournier did not solidly shore the banks of the trench with quality material in accordance with the plans and specifications of an engineer as required by section 3.15.3 of the Safety Code for the construction industry (the “Safety Code”). According to section 236 of An Act respecting occupational health and safety (the “Act”), the failure to fulfill this obligation is a strict liability offence. The judge presiding at the preliminary inquiry accepted the Crown’s argument that this failure could constitute the underlying “unlawful act” referred to in section 222(5)a) of the Criminal Code.

Mr. Fournier challenged this decision by way of judicial review, arguing that a strict liability offence cannot constitute an “unlawful act” as per section 222(5)a) of the Criminal Code.

The Superior Court refused Mr. Fournier’s argument and rather concluded, following a thorough review of the relevant case law and doctrine, that the underlying unlawful act in a charge of manslaughter can be a strict liability offence, including one related to occupational health and safety.

It clarified, however, that in such circumstances, and unlike a typical prosecution under occupational health and safety legislation, it is not the accused who bears the burden to prove that he has taken all the reasonable steps in the circumstances to avoid or prevent the occurrence of the prohibited act. Rather, it is for the Crown to prove, beyond a reasonable doubt, that the conduct of the accused constitutes a marked departure from that of a reasonable person. More specifically, to satisfy its burden of proof, the prosecution must establish all of the following elements:

  1. The accused committed a strict liability offence which was objectively dangerous;
  2. The conduct of the accused constituted a marked departure from the standard of a reasonable person in the same circumstances; and
  3. Taking in consideration all the circumstances of the case, a reasonable person would have foreseen the risk of bodily harm.

In application of the above-mentioned principles, the Superior Court found that there was sufficient evidence in this case to confirm the committal to trial. According to the judgment, the Crown offered prima facie evidence for each of the three criteria: 1) the failure to solidly shore the banks of a trench is a strict liability offence according to the Act and the Safety Code and is also objectively dangerous conduct; 2) the breach of this obligation is a marked departure from the standard of a reasonable person in the same circumstances; and 3) a reasonable person would have foreseen the risk of not solidly shoring the banks of the trench.

In conclusion, this decision should bring to the employers’ minds the very serious consequences that failure to comply with occupational health and safety obligations can have on their employees, but also on their own life. From now on, employers must be aware that if an employee dies in such context, not only can they be charged with criminal negligence, but also with manslaughter.

[1] 2016 QCCS 5456

[2] The charge of criminal negligence causing death is based on section 219 of the Criminal Code on the alleged failure of Mr. Fournier to respect the obligation set out in article 217.1 of the Criminal Code, which provides that “everyone who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.” This provision of the Criminal Code has been in force since 2004, but has not been invoked in many prosecutions so far.

The death of an employee due to the collapse of trench walls: Superior Court confirms the employer’s committal for trial for manslaughter

Trial judge’s misapprehension of the evidence results in new trial for workplace fatality

We previously posted about the trial decision in R. v. Precision Drilling Ltd., 2015 ABPC 115 (CanLII), where the court found the employer guilty of two charges arising from a workplace fatality at a drilling rig. The employer was convicted of failing to ensure the safety of the worker, and failing to eliminate an identified hazard. The employer appealed the convictions.

At trial, one of the issues was the question of industry standards, in particular, the use of an interlock/warning device. On appeal, the court noted that the trial judge had correctly stated that compliance with industry standards and legislation would not, of itself, be enough to establish due diligence. In this case, the appeal court found that the evidence was that the employer did follow industry standards. The trial judge however found that the interlock device was an engineered solution in place with other industry competitors, that could have been used to avoid the accident. The trial judge relied on this in concluding that the employer had not established the defence of due diligence.

The appeal court found that the trial judge’s conclusion about the competitor’s use of the interlock device was contrary to the evidence. In fact, the evidence at trial was that only one competitor had an interlock device on one rig, and that rig was a different type of rig from the rig in question. Further, the Occupational Health and Safety inspectors were not aware of the interlock device prior to the accident. Therefore, the appeal court determined that the trial judge’s misapprehension of the evidence was a palpable and overriding error.  It also found that the trial judge made a number of additional errors in the treatment of the evidence which undermined the verdict.

Further, while the appeal court did not find any error in the trial judge’s decision to admit evidence of the employer’s post-incident conduct at trial relating to its development and use of an interlock device after the accident, the trial judge’s use of that evidence was not supported by the evidence. The appeal court found that, in addition to the error about the industry’s use of the interlock device, there was no evidence that the competitor’s “small bit of common-sense engineering” had an effect on the drilling industry. The interlock device had not been adopted in the Occupational Health and Safety Code and government inspectors did not shut down rigs that did not have the interlock device.

The appeal court allowed the appeal on both counts, setting aside the trial verdicts. Because there was admissible evidence on each of the elements of the charges, rather than entering an acquittal, the appeal court ordered a new trial.

R. v. Precision Drilling Canada Ltd., 2016 ABQB 518 (CanLII)

 

Trial judge’s misapprehension of the evidence results in new trial for workplace fatality

Labour Board dismisses safety complaint filed 2.5 years after the fact

A worker who filed a safety-reprisal complaint 2.5 years after the events complained about has had his complaint dismissed for delay.

The worker’s complaint related to events that took place in June of 2013.   He admitted that he had not been disciplined in respect of those events but said that he still may be.

The Ontario Labour Relations Board dismissed his complaint due to delay, stating that 2.5 years was an unreasonable delay “by any measure”.  Further, since the employee had not yet been disciplined, his complaint was premature.  In addition, the employee had agreed to his reassignment to a new location so he could not now complain that the reassignment was punishment for raising safety issues.

There is no “limitation period” for filing a complaint with the OLRB claiming reprisal for raising safety issues, but this decision shows that the OLRB will nevertheless throw out complaints that are filed too late.

John Nahirny v Liquor Control Board of Ontario, 2016 CanLII 88256 (ON LRB)

 

Labour Board dismisses safety complaint filed 2.5 years after the fact

Having failed to obtain and review proper operating manual for machine, employer and supervisor convicted under OHSA

An employer and supervisor who failed to obtain an operator’s manual for a rip saw, and therefore failed to follow it, have been found guilty of offences under the Ontario Occupational Health and Safety Act.

The charges resulted from an accident in which an 18 inch long shard or stake of wood was ejected from a rip saw and pierced the arm of a worker who was working nearby.

The employer argued that the machine had proper safety mechanisms to avoid such incidents, and therefore that the accident was not foreseeable.

The court found that the employer had failed to even obtain the applicable operator’s manual for the machine. There was no evidence that any worker or supervisor had read the manual. The manual noted that there was risk to the operator and “third persons” from “kicked back material”. By not reading the manual, the supervisor had not acquainted himself with the inherent risks associated with the rip saw, nor had he taken the necessary steps to address those risks. The employer could have, for instance, erected a barrier to protect workers from kicked back materials. Further, the employer did not have a program in place to check for broken “anti kickback teeth” or fingers, one of which was found to be broken.

The court stated:

“[T]aking all reasonable care also requires more than just arguing that the best equipment had been purchased and installed, to show what steps had been taken to prevent the event that had occurred . . . Moreover, the defendants would have had to respectively take proper care to acquire knowledge about the measures and requirements to properly operate the rip saw machines safely, to ensure that the machine’s protective elements were functioning properly, and to prevent any of the inherent risks outlined by the manufacturer in the 2007 Operating Manual from occurring, including the risks from splinters and material being kicked back by the machine’s saw blades. Being passive and simply relying on the machine’s internal shields and guards would not demonstrate that either defendant had taken all reasonable steps respectively to ensure the safety of the workers at the Alpa Lumber plant working in the vicinity of Rip Saw #1 while it was operating.”

This case demonstrates that employers cannot rely only on safety features built into machines; instead, employers must demonstrate that employees are familiar with potential hazards of machines and take steps to avoid those hazards.

Ontario (Ministry of Labour) v. Alpa Lumber Mills, 2016 ONCJ 675 (CanLII)

Having failed to obtain and review proper operating manual for machine, employer and supervisor convicted under OHSA

Ontario Bill Proposes to Create “Health and Safety Management System” under OHSA

The Ontario government has introduced legislation that seeks to, among other things, provide for the establishment of employer “health and safety management systems” under the Occupational Health and Safety Act.

If passed, Bill 70, Building Ontario Up for Everyone Act (Budget Measures), 2016, will, among other things, amend the Occupational Health and Safety Act to:

  • Define “health and safety management system” as “a coordinated system of procedures, processes and other measures that is designed to be implemented by employers in order to promote continuous improvement in occupational health and safety”;
  • Permit the Chief Prevention Officer (“CPO”) to accredit a health and safety management system;
  • Permit the CPO to establish, and amend, standards that a health and safety management system must meet in order to become an accredited health and safety management system;
  • Allow the CPO to give recognition to an employer in respect of one or more of its workplaces upon the employer’s application, if the employer satisfies the CPO that it is a certified user of an accredited health and safety management system in its workplace or workplaces and it meets any applicable criteria as established or amended by the CPO;
  • Authorize the CPO to require any person seeking an accreditation, or who is the subject of an accreditation or recognition, to provide the CPO with whatever information, records or accounts as he or she may require, and authorize the CPO to make such inquiries and examinations as he or she considers necessary;
  • Authorize the CPO to publish or otherwise make available to the public information relating to accredited health and safety management systems and employers given recognition, including the names of the systems and employers; and
  • Require the CPO to publish the standards for accreditation of health and safety management systems and the criteria for recognition of employers promptly after establishing or amending them.

Bill 70 received 2nd reading on December 1, 2016.  Stay tuned for further developments.

The bill, which also contains amendments to a number of other statutes, may be accessed here.

Ontario Bill Proposes to Create “Health and Safety Management System” under OHSA

Arbitrator finds employer violated OHSA workplace-violence obligations

A labour arbitrator has found that a mental health organization violated the Occupational Health and Safety Act when it failed to take certain workplace-violence precautions.

The organization provided services to persons with mental health issues, including securing housing.

A Case Manager with the organization became aware that a client had sent another client a text suggesting that he wanted to sexually assault the employee.  The organization decided to bar the client from contact with the employee and from attending drop-in sessions. Nevertheless the client attended drop-in sessions on at least two subsequent occasions.

The arbitrator found that the organization did not have any means of preventing a client from texting another client an offensive text that threatened an employee.  However, the organization, having barred the client, failed to ensure that the client “heeded the injunction” and stayed away. That was a violation of the OHSA.  There was no evidence that the employee encountered the client at any of the drop-ins after he was barred, so there was no basis for an award of damages.

In a second incident, the employee reported that she felt threatened by a client.  The employee’s notes included references to the client “‘leaning over writer’, ‘shouting about aliens’, invading her personal space ‘as he kept tapping her on the knee’, becoming ‘extremely agitated’, leaning over the Grievor, speaking about eating humans and making ‘a sudden strangling gesture towards [the Grievor]’, referring to having been on probation in connection with charges of sexual assault of a woman, ‘leaning over [the Grievor] in an aggressive manner and she had to push him back away from her’, being told by the Grievor that his behaviour was threatening and that he does not respect her personal space, ‘advancing towards [the Grievor] on a couple of occasions screaming about aliens, homosexuals and radiation, invading the Grievor’s personal space, and, finally, charging the Grievor, pushing her forcefully in the chest, and causing her to lose her balance.’

The organization directed the employee to stay out of that client’s residence based on her perception of a threat, but she ignored that direction.  The arbitrator decided that the organization had violated the OHSA by failing to ensure that the employee complied with the employer’s direction. Again, no damages were warranted, but the arbitrator granted a “declaration” that the employer had breached the OHSA.

Ontario Public Service Employees Union, Local 548 v Cota Health, 2016 CanLII 81970 (ON LA)

Arbitrator finds employer violated OHSA workplace-violence obligations

Employee who forged 16 sick notes, then tried to blame her manager, was fired for cause

A Canada Revenue Agency employee who forged signatures on 16 sick notes was fired for cause, a federal adjudicator has decided.

The employee had a problem with absenteeism and started missing work without calling in. The employer reminded her of the sick leave policy including the requirement that she provide medical notes.  The letter said that failure to comply could lead to discipline or termination.

Over the next ten months, the employee forged signatures on 16 medical notes.  When confronted, the employee said that her illness was alcoholism and she had been too drunk to go to a doctor when she called in sick.  The employee was unapologetic and attempted to deflect blame onto her manager for requiring her to produce medical notes, and said  “You would not want me to drive drunk”. She said she had numerous personal issues including her brother’s death and her mother’s declining health.

The employer said that the falsified sick notes had resulted in the employee getting 216 hours of paid leave and 218.5 hours of unpaid leave. The paid leave was valued at approximately $9,300.00.

The adjudicator stated that there was no expert evidence that alcohol dependency caused the employee to forge the notes or removed her inhibitions to do so. As such, the employee had not shown that her dismissal was discriminatory because of disability.

The adjudicator stated that “There is no question that her actions amounted not only to misconduct but also to serious misconduct.”  He held that the employee had been dishonest on a number of occasions.  Further, she had tried to blame others.  Although she had 25 years of service, she had not pursued rehabilitation in any meaningful way.  The adjudicator therefore held that the employer had just cause to dismiss her.

McNulty v. Canada Revenue Agency, 2016 PSLREB 105 (CanLII)

 

Employee who forged 16 sick notes, then tried to blame her manager, was fired for cause

GHS (WHMIS 2015) online courses now available

The Canadian Centre for Occupational Health and Safety has released two online courses on WHMIS 2015, which implements the Globally Harmonized System of Classification and Labelling of Chemicals (GHS).

One course is for managers and supervisors, and is intended to help them understand their duties under the WHMIS 2015 (GHS) legislation.  The other course explains the purpose of safety data sheets and the information contained in them.

The law provides for a transition period to GHS.  By December 1, 2018, the transition to GHS must be complete for all parties, including employers.  By that date, employers should have no hazardous products with old WHMIS labels and safety data sheets.

More information on the training courses may be found here.

GHS (WHMIS 2015) online courses now available

Regulation still required compliance with older ANSI standard, not updated version: Tribunal

Where the government had not updated a regulation to require compliance with a newer version of an ANSI (American National Standards Institute) standard, the law still required compliance with the old version, a federal tribunal has decided.

Section 2.9 of the Canada Occupational Health and Safety Regulations required that “A fixed ladder installed after the day of the coming into force of this section shall be designed, constructed and installed in accordance with the requirements of ANSI Standard A14.3-1984 entitled American National Standard for Ladders — Fixed — Safety Requirements, as amended from time to time, other than section 7 of that Standard.”

That 1984 ANSI standard was replaced by new versions in 1992 and 2008.

The Occupational Health and Safety Tribunal Canada decided that the 1984 ANSI continued to govern – not the 1992 and 2008 versions – because the 1984 standard was the one referred to in the regulation.  The 1992 and 2008 versions were “replacement” versions, not “amended” versions of the 1984 standard.  The 1984 ANSI standard did not require that “swing gates” be installed at the openings of rest platforms on fixed ladders, and therefore the Direction issued by a federal safety officer was rescinded.

Richardson Pioneer Limited, 2016 OHSTC 16 (CanLII)

 

Regulation still required compliance with older ANSI standard, not updated version: Tribunal