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Prison-time for a contractor for manslaughter: A first in Quebec legal history

Last year, we discussed on this blog, the case of an excavation contractor who was facing criminal negligence causing death and manslaughter charges in relation with the accidental death of one of his employees. Since then, that contractor has been found guilty on both charges[1], and on September 18, 2018, he was sentenced to 18 months in prison[2].

It is worth briefly reviewing the underlying facts of this case. On April 3, 2012, the contractor and an employee were replacing a sewer line when the walls of the trench collapsed killing the employee instantly. The evidence adduced at the preliminary inquiry tended to demonstrate that such accident took place because the contractor let his employee perform the work without taking the mandatory security measures required by the applicable health and safety regulations and, as a result, the contractor was personally charged with criminal negligence causing death and manslaughter.

The trial took place from November 27 to December 15, 2017. According to the contractor’s defense, the trench walls collapsed a first time while the employee was installing the shoring systems in the trench, burying the employee’s legs. A few minutes later, while the contractor was trying to free the employee, a second wall collapsed, burying the contractor up to the knees and fully submerging the employee’s body.

The court rejected this version of the events and rather accepted the Crown’s theory that the trench walls only collapsed once, while both the contractor and his employee were in the trench without any shoring systems being installed. Both the firefighters and the investigators from the Commission des normes, de l’équité, de la santé et de la sécurité du travail (the “CNESST” – Quebec’s workplace health and safety board) who were on scene shortly after the accident, stated that the workplace presented an enormous hazard for the trench walls to collapse. More specifically, the investigators of the CNESST, as well as the Crown’s experts, noted that there were numerous violations of health and safety regulations and dangerous conditions on the work site.

The judge found that the Crown had proven, beyond a reasonable doubt, all the essential elements of the offence of manslaughter:

  • The contractor’s conduct constituted an illegal act. As the employee’s employer, the contractor had the obligation to ensure that the trench walls were secured in accordance with the requirements of section 3.15.3 of the Safety Code for the Construction Industry before sending him into the trench, which he failed to do.
  • The contractor’s conduct caused the death of a human being. The employee’s death was the result of the contractor’s failure to comply with the requirements of the Safety Code for the Construction Industry.
  • The illegal act was objectively dangerous. The Superior Court already answered this question in the affirmative when it confirmed the contractor’s committal to trial for the charge of manslaughter.
  • The contractor’s conduct significantly departed from the conduct of a reasonable person placed in the same circumstances (criteria applicable when the illegal act is a strict liability offence). The Court also answered this question in the affirmative, underlining the fact that even the firefighters refused to go in the trench without a proper shoring system being installed and that both the inspectors and the Crown’s experts agreed that the workplace was extremely hazardous.
  • A reasonable person would have foreseen the risk of bodily harm. According to the court, it was very foreseeable given all the circumstances of the case.

The judge also found that the Crown had proven, beyond a reasonable doubt, all the essential elements of the offence of criminal negligence causing death:

  • The contractor had the legal obligation to do or not to do something. Pursuant to section 217.1 of the Criminal Code, the contractor was under a legal duty to take all reasonable steps to prevent bodily harm to the employee whose work he had the authority to direct.
  • This act or omission caused the death of a human being. As previously established, the court determined that the employee’s death was caused by the contractor’s conduct.
  • The contractor’s conduct displayed a wanton or reckless disregard for the lives or safety of other persons. The Court noted that the contractor’s conduct displayed a total lack of consideration for its foreseeable consequences concerning the employee’s safety.
  • The contractor’s conduct significantly departed from the conduct of a reasonable person placed in the same circumstances. As previously established, the Court determined that the question should be answered in the affirmative.

However, it should be noted that because of the rule against multiple convictions for the same offence, a conditional stay of proceedings was ordered with respect to this charge of criminal negligence causing death.

The parties were back in Court this September for sentencing. The Crown requested a 3-year jail sentence while the defense argued for a sentence of 90 days to be served intermittently along with a 3-year probation, including 240 hours of community services, and a $5,000.00 fine.

The court stated that the sentence shall not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In addition, it is possible and appropriate to consider the objectives of denunciation and general deterrence. The Court considered that the mere possibility of imprisonment would act as a much larger deterrent than the overall length of the sentence.

With these considerations in mind, and considering the aggravating factors (including that the contractor had previous convictions for health and safety violations) and mitigating factors of the file, the Court found it was appropriate to impose an 18-month jail sentence on the contractor.

One thing is certain, by imposing prison time on this contractor, which is a first in Quebec legal history, the Court of Quebec certainly wanted to send a clear message to all employers concerning the importance of complying with their occupational health and safety obligations. Employers, and supervisors, are at risk of both provincial health and safety charges and criminal negligence and manslaughter charges.  We invite you to consult with our team of legal experts for any question you might have concerning your health and safety obligations.

R. c. Fournier, 2018 QCCQ 6747

[1] The decision on the merits was rendered on March 1, 2018 (2018 QCCQ 1071).

[2] 2018 QCCQ 6747.

Prison-time for a contractor for manslaughter: A first in Quebec legal history

Ninety-day administrative driving suspension for impaired driving was not just cause to fire Assistant Fire Chief

An Assistant Fire Chief has won his wrongful dismissal suit after he was fired following a 90-day administrative driving prohibition for impaired driving while off-duty.

The Assistant Fire Chief was on the way home from a “date night” with his spouse when he was pulled over for suspected impaired driving.  He failed two roadside breathalyzer tests and received the administrative driving suspension. He immediately advised the Fire Department and was distraught and remorseful. 

Although the Fire Chief and human resources advisor advised against firing, and a number of firefighters signed a letter asking that the Assistant Fire Chief not be fired, the fire department’s Chief Administrative Officer was adamant and went ahead and dismissed him. 

The court held that the fire department did not have just cause for dismissal.  The Assistant Fire Chief was off-duty and he was not representing the fire department at the time.  While the truck he was driving belonged to the fire department, it was not marked as such.  There was no public knowledge of his administrative driving prohibition.  His conduct was not of the same “moral reprehensibility” as in other cases where employees’ off-duty conduct was just cause for dismissal.  The Assistant Fire Chief was not the public face of the fire department.  The other career firefighters in the fire department had not lost confidence in him.  There was no criminal charge, but rather he received a 90-day driving suspension.  In conclusion, the court decided that his off-duty conduct was not incompatible with the faithful discharge of his duties or otherwise prejudicial to the interests or reputation of the fire department. 

In the end, the court awarded the employee five months’ salary as provided for in his employment contract.

Klonteig v West Kelowna (District), 2018 BCSC 124 (CanLII)

Ninety-day administrative driving suspension for impaired driving was not just cause to fire Assistant Fire Chief

Alberta Court of Appeal clarifies what the Crown must prove in a general duty offence

The Alberta Court of Appeal recently provided clarity on what the Crown must prove in a prosecution under the general duty section in the Occupational Health and Safety Act (Alberta) (“OHSA”) of failing to ensure the health and safety of a worker. The general duty section was then section 2(1) of the OHSA, and is now section 3(1)(a).

The employer had been originally found guilty on two charges, including the general duty offence, following a workplace fatality. The employer successfully appealed the convictions and the summary conviction appeal judge ordered a new trial. The Crown was granted leave to appeal the decision, bringing the question before the Alberta Court of Appeal. Please see our previous posts discussing this case for more information on the background and history of the proceedings.

The key question before the Alberta Court of Appeal was whether the expression “as far as is reasonably practicable for the employer to do so” in the general duty section was part of the actus reus; in other words, whether it was part of the physical components of the offence that the Crown had to prove. The majority set out to provide an interpretation of the general duty section that would result in a more comprehensive framework for the actus reus requirement for the general offence provision.

The Crown argued that it could rely on the “accident as prima facie proof of breach” concept when proving the actus reus in order to satisfy its legal burden. In the majority decision, the court disagreed and determined that the expression “as far as it is reasonably practicable for the employer to do so” did form one element of the actus reus. Therefore, for an offence under the general duty of the OHSA, the Crown must establish beyond a reasonable doubt the following:

  1. The worker must have been engaged in the work of the employer;
  2. The worker’s health or safety must have been threatened or compromised (i.e. an unsafe condition); and
  3. It was reasonably practicable for the employer to address the unsafe condition through efforts that the employer failed to undertake.

The majority found that these elements were consistent with the language of the OHSA, its purpose and intent, the Supreme Court of Canada’s guidance in Sault Ste. Marie and the interpretation given to similar provisions in other jurisdictions. This did not constitute a codification of the due diligence defence and did not undermine the OHSA’s basic goals. The majority did acknowledge that the employer’s obligation to establish due diligence on the balance of probabilities would overlap with the Crown’s obligation to prove that it was reasonably practicable for the employer to address the unsafe condition. However, those remained distinct inquiries which were subject to different standards of proof. In addition, certain factors such as mistake and employee error could affect the due diligence defence in ways that would not affect the actus reus assessment.

The second ground of appeal was whether the appeal judge erred in law in her interpretation and application of the due diligence defence. The majority reviewed this issue and determined that the Crown had not identified any error in the appeal judge’s review of the application of the due diligence defence and thus this ground of appeal was dismissed.

In the minority decision (concurring in the result), the justice disagreed that the words “as far as it is reasonably practicable for the employer to do so” constituted part of the physical components that the Crown must prove. The minority decision stated that imposing that requirement on the Crown would require it to prove standard industry practices, what a reasonable company would have done, or that the measures taken by the employer were insufficient and unreasonable. Thus the Crown would have to prove negligence or negate due diligence. However, it would not always be possible for the Crown to prove exactly how a workplace incident actually occurred, which is why the general duty was set out in the OHSA. Therefore, to establish the physical components for the general duty offence, the minority held that the Crown need only prove beyond a reasonable doubt that something happened within the control of an employer that negatively affected the health or safety of its workers.

The minority agreed in the result that the appeal should be dismissed and the matter sent back for a new trial.

R. v. Precision Diversified Oilfield Services Corp., 2018 ABCA 273 (CanLII)

Alberta Court of Appeal clarifies what the Crown must prove in a general duty offence

“Communications and conduct” of employer’s lawyer regarding sexual harassment investigation were not privileged, could be referred to in Claim, court decides

Over the objections of a company’s employment lawyer, an Ontario court has permitted an employee to refer, in her Statement of Claim for constructive dismissal and bad faith, to the “communications and conduct” of the company’s lawyer in respect of a sexual harassment investigation.

The employee made sexual harassment and bullying allegations against a coworker. The employer investigated and concluded, without speaking with the employee, that the allegations were not substantiated.  During this period, the employee was placed on a Performance Improvement Plan.

The employee eventually retained counsel who requested a severance package.  The employer then also retained counsel.  For a few months, the lawyers communicated by phone and correspondence.  They discussed the investigation.   The employee’s counsel urged the company to conduct a new or more thorough investigation, which the employer did.  The employee then started her constructive dismissal lawsuit and included, in some paragraphs of her Statement of Claim, reference to some of counsel’s discussions and conduct.

The company moved to strike those paragraphs from the Statement of Claim on the basis that the discussions between counsel were “without prejudice” settlement discussions. The Master refused to strike the paragraphs.  She held that the discussions and conduct of the company’s lawyer with respect to the harassment investigation did not relate to a “litigious dispute” but rather to the company’s statutory obligation under the Occupational Health and Safety Act to investigate the sexual harassment allegations.  The sexual harassment investigation report itself was not privileged. Counsel’s conduct during the sexual harassment investigation was “highly relevant and both counsel must have understood its relevance should litigation ensue”.  Finally, although the outcome of negotiations between counsel may have led to a severance settlement, and the employer’s lawyer told the employee’s lawyer that she wished to engage in without prejudice settlement discussions prior to sharing any information with him, the communications in relation to the investigation and the PIP were directly relevant to the employee’s claim for constructive dismissal and bad faith.  

In the result, the communications between counsel regarding the sexual harassment investigation and the PIP were not “settlement privileged” and were not struck from the employee’s Statement of Claim.

Clayton v. SPS Commerce Canada Ltd., 2018 ONSC 5017 (CanLII)

“Communications and conduct” of employer’s lawyer regarding sexual harassment investigation were not privileged, could be referred to in Claim, court decides

Owner of electrical contractor, who transferred assets due to looming charges, held personally liable for company’s $430,000 regulatory fine

In what appears to be a novel decision in the regulatory context, a judge has held an owner of an electrical contracting firm personally liable for the company’s regulatory fines after he transferred assets out of the company following a fatal incident.

In 2014, an elderly man died from burns after being found lying on his bathroom floor, which had overheated.  It turned out that the overheating was caused by the negligence of one of the contractor’s employees four years earlier when he installed an underfloor heating mat in the bathroom.

The company pleaded guilty to three charges under the Electricity Act in respect of the installation.  The court fined the company $430,000.

The judge found that the owner had transferred assets, including property, out of the company after he learned that the company was going to be charged, in order to avoid having to pay a fine.   The judge also stated that the owner had been dishonest in his testimony, and misleading to the Electrical Safety Authority. The company was evidently left with no, or very few, assets to pay the fine.

The judge decided to “pierce the corporate veil” and require the owner and a related entity, to which he had transferred assets, to pay the fine.  In a rather scathing decision, the judge held that the owner, by blurring the lines between himself and the company, had put his own personal assets at risk.  The judge decided that although no statute gave him the power to “pierce the corporate veil” and make the owner personally liable, a judge should do so where it would be “too flagrantly opposed to justice” not to.  The judge stated:

If Mr. Merante had simply shuttered Pro-Teck and left its assets intact and gone on and opened up Master Electric, he could not have been faulted . . . But he did not simply do that.  Two roads diverged before him and Mr. Merante took the one marked self-interest and deceit rather than the one that was marked by his duty to respect his obligations as a shareholder and his duty to accept that the protections that came with Pro-Teck’s corporate status also created responsibilities.

In the result, the judge decided that the owner’s “acts deprive him and Master Electric, both beneficiaries in one way or another of the diversion of assets, of their legal separateness from Pro-Teck.  He in effect treated all three legal entities as one; as he sowed, so shall he reap.  The fines levied against Pro-Teck may be recovered from Mr. Merante personally and from Master Electrical Contracting Services Ltd., 2433302 Ontario Ltd.”

It is unknown at this time whether this decision has been appealed.  Although the owner’s behaviour was clearly troubling to the judge in this case, it is an open question as to whether an appeal court would decide that the judge had the legal authority to “pierce the corporate veil” and make the owner personally liable for the fine.

R. v. 1137749 Ontario Ltd. (operating as Pro-Teck Electric), 2018 ONCJ 502 (CanLII)

Owner of electrical contractor, who transferred assets due to looming charges, held personally liable for company’s $430,000 regulatory fine

Female police officers’ class action claiming gender harassment dismissed because arbitrator, not courts, had jurisdiction

A group of female police officers has lost its bid to bring a class action in the courts for gender discrimination and harassment.

The officers claimed systemic gender-based discrimination and harassment by male members of the police force.

The court decided that it had no jurisdiction over the class action because the claims should have been brought at arbitration. Under the Police Services Act, arbitration was mandatory – and binding – even though the arbitrator did not have the power to award punitive damages.  The officers therefore were barred from making the discrimination and harassment claim in the courts.

The fact that the police association (the police union that would have carriage of a harassment case at arbitration) was made up mostly of male members did not require the court to take jurisdiction.

The court also decided that a claim of workplace discrimination did not make out a viable “cause of action” at common law.  This meant that even if the court (not an arbitrator) had jurisdiction over the case, the claim was not the type of case that courts will hear.

The judge concluded:

The Defendants should not regard this result as a vindication of current practices. Like Sharpe J.A. in A.(K.), I have considerable sympathy for the Plaintiffs’ desire to have this litigated in court. Even on the limited and contradictory evidence before me, it is apparent that this case raises serious, triable issues relating to the workplace culture. The allegations are very troubling and will require close scrutiny should this matter proceed to another forum for adjudication.

The court action was therefore stayed, bringing it to an end.

The plaintiffs have appealed this decision to the Court of Appeal for Ontario.

Rivers v. Waterloo Regional Police Services Board, 2018 ONSC 4307 (CanLII)

Female police officers’ class action claiming gender harassment dismissed because arbitrator, not courts, had jurisdiction

Safety manager wins wrongful dismissal suit: he had not failed to complete assigned tasks, court decides

An Alberta safety manager has won $28,000 in damages after he was fired by his employer. The employer argued that the employee quit or, in the alternative, that the employer had just cause for dismissal.

The court rejected the employer’s argument that the employee had quit. The employer’s email stating, “Don’t bother coming in either I’ll look after all this k that your two weeks. Thanks for your services have good day” [sic], made it clear that the employer had dismissed the employee.

The court also rejected the employer’s argument that it had just cause for dismissal. Contrary to the employer’s assertion, the employee had not failed to complete an assigned task (addition of certain safety procedures to the employer’s safety manual) and even if he had failed to do so, there was no evidence that the company had suffered harm as a result.

Further, the employee’s outburst in which he told his manager to “f— off” on a telephone call was not just cause for dismissal. It was said on a private call and there was no “scene” in front of other employees or the public.  The employee had an unblemished work record. The manager admitted that he fired the employee in the heat of the moment.

The court therefore decided that the employee, who had 3.5 years of service and an annual salary of $82,000.00, was entitled to 4 months of pay in lieu of notice.  He was therefore entitled to approximately $28,000 in damages.

Bohnet v Rebel Energy Services Ltd., 2018 ABPC 131 (CanLII)

 

 

Safety manager wins wrongful dismissal suit: he had not failed to complete assigned tasks, court decides

Court declines to quash “bid ban” imposed by City on paving company for safety and other reasons

A recent Ontario court decision illustrates the serious business implications that Occupational Health and Safety Act compliance issues or disputes can have on a company.

The City of Sudbury banned a paving company, Interpaving, from bidding on City contracts for four years. The City gave three reasons for the ban.  According to the City: (1) Interpaving had sued the City in relation to five City projects or contracts; (2) Interpaving violated health and safety legislation, and (3) Interpaving had “a significant history of abusive behaviour and threatening conduct” toward City employees.

With respect to safety issues, the City noted an incident in 2015 in which a pedestrian was struck and killed by a construction vehicle as she entered a construction zone in which Interpaving was working.  The Ministry of Labour issued compliance orders against Interpaving and the City. Interpaving took the position, in appeals of those orders, that the City and not Interpaving was the constructor under the OHSA. The City claimed that Interpaving failed to understand its obligations under the OHSA including its role as constructor and failed to cooperate with the City on safety matters.

Interpaving asked the court to overturn the bid ban. It argued that the City had not followed a fair process in coming to the decision to impose the bid ban. The majority of the court disagreed. The majority decided that although the City had initially breached its obligation of procedural fairness (by not giving Interpaving notice of its intention to debar, the City’s grounds for debarring, a description of the potential penalties and an opportunity to respond), the City had “cured” that breach through its “reconsideration and process which gave Interpaving full opportunity to be heard.

The Court stated:

In the Debarment Letter, the City made reference to “numerous orders in relation to projects that Interpaving has been involved in for the City…including seven orders in relation to the City’s Elgin Street Project issued by the Ministry of Labour”. The reference to OHSA orders was also made under the heading “Poor Contract Performance”.  Contrary to the assertion made by Interpaving, there is nothing unreasonable in the consideration of OHSA orders in connection with the quality oflnterpaving’s contract performance. [emphasis added]

Interpaving stated that it employed 200 people in the city and an additional 200 in the summer.  This type of “debarment” decision by public entities can have a serious impact on businesses.  The Court decision indicates that Interpaving’s road paving business is primarily in the City of Greater Sudbury.

Interpaving Limited v. City of Greater Sudbury, 2018 ONSC 3005 (CanLII)

Court declines to quash “bid ban” imposed by City on paving company for safety and other reasons

OHSA charges in fatality case dismissed for delay. Crown did not have “concrete plan” to move case along

An Ontario appeal judge has upheld the dismissal of Occupational Health and Safety Act charges against employees due to delay.

The charges resulted from the death of a mining employee from cyanide intoxication by way of skin absorption.  The company itself had pleaded guilty to criminal negligence charges, after which all fifteen OHSA charges against the company were withdrawn. Criminal charges against one of the employees were withdrawn at the same time.

The total delay in this case, from the laying of the charges until the last day scheduled for trial, was 21 months, which exceeded the 18-month presumptive delay ceiling set out by the Supreme Court of Canada in the Jordan case. 

The trial judge found that the Ministry of Labour prosecutor had breached his duty to develop and follow a concrete plan to minimize the delay due to the complexity of the case. Also, it was not reasonable for the prosecutor to fail to seek trial dates until 5 1/2 months before the 18-month “presumptive ceiling” for delay. Further there was no effort by the prosecutor until late in the case, to seek to narrow the issues or shorten the trial by seeking admissions, attempting to negotiate an agreed statement of facts, or seeking agreement regarding documents, despite being invited by the defence to do so. The trial judge therefore concluded that the prosecutor’s trial management fell well below the standard set out in the Jordan, and the appeal judge upheld that finding.

In the result, the appeal judge upheld the trial judge’s decision to stay the charges against the employees for delay, bringing the prosecution to an end – despite the fact that the charges were particularly serious as they resulted from a fatality.

R. v. Nugent, Guillemette and Buckingham, 2018 ONSC 3546 (CanLII)

OHSA charges in fatality case dismissed for delay. Crown did not have “concrete plan” to move case along

“Distracted” by cell phones, forklift operators were guilty of OHSA offence

Two forklift operators at a bottling plant have been found guilty after they were served with tickets under the Occupational Health and Safety Act charge for using cell phones while sitting on their forklifts. The charge was operating equipment in a manner that may endanger a worker: one could say “distracted driving”, but on a forklift.

A coworker staged a work refusal after observing the forklift operators using cell phones while seated on their forklifts.  A Ministry of Labour inspector was called in.  The coworker, who was retired at the time of trial, testified that one operator was seen sitting on the forklift looking at the cell phone while the forklift was stationary and not moving, and the other operator was seen showing his cell phone to another employee.

The court did not accept the forklift operators’ version of events: one said that he had used his cell phone only to check the time, and the other said that he was off of his forklift and that it was actually another employee who had been using his cellphone.  The court found that they had their cell phones with them and were using them.

The court decided that “operating or using” a forklift included sitting on a forklift even when it was stopped and turned off; other workers and forklifts may be nearby and put at risk by the operator’s distraction and inattention to his surroundings while using the cell phone.  Further, the employer had a clear rule prohibiting use of cell phones in the warehouse, and even displayed a poster with a cell phone with a slash through it.  The operators were therefore guilty of the OHSA charge against them.

The court stated:

“Like motorists who unlawfully hold or use cellphones or other mobile communication devices while operating or driving motor vehicles on public highways in Ontario, workers that use cellphones or other mobile communication devices while operating equipment or machines in factories or warehouses, such as a forklift, would also pose the same danger to themselves or others, as a consequence of being distracted to what is going on around them while using those mobile communication devices.”

Ontario (Ministry of Labour) v. Nault, 2018 ONCJ 321 (CanLII)

 

 

 

“Distracted” by cell phones, forklift operators were guilty of OHSA offence

Vehicle Owner Not Liable for Accident Caused by Repair Shop Employee During a Test Drive

The Alberta Court of Appeal recently reviewed the provisions of the Workers’ Compensation Act (the “Act”) that enable the Workers Compensation Board (“WCB”) to be subrogated to a right of a claim against a party not covered by the Act when the WCB has paid out benefits to a party who is covered by the Act.

In the case in question, the defendant was the owner of a vehicle and had taken his vehicle in to a repair shop to have its brakes repaired. A mechanic employee of the repair shop took the defendant’s vehicle for a test drive with the shop’s authority and the defendant’s consent. During the test drive, the vehicle collided with the plaintiff’s vehicle and the plaintiff sustained injuries. There was no dispute that the mechanic’s negligence caused the accident. The plaintiff was also operating his vehicle in the course and scope of his employment at the time of the accident, and thus he claimed benefits from the WCB. Both the mechanic driver and the repair shop were immune from any lawsuit arising from the accident by operation of the Act. There was no question that but for the Act, the repair shop, as the mechanic’s employer, was vicariously liable for the plaintiff’s loss at common law.

The WCB accepted the plaintiff’s claim for WCB benefits and thus the Act vested the plaintiff’s action in the WCB. The WCB commenced an action in the plaintiff’s name, seeking to recover from the defendant owner the benefits it had paid to the plaintiff. As noted, an action against the repair shop and the mechanic was barred by operation of the Act. The defendant was the only involved party who was not protected by the Act. The plaintiff’s action against the owner was based on the provisions of the Traffic Safety Act that imposed vicarious liability on the owner of a vehicle. It was undisputed that the owner was vicariously liable for the plaintiff’s loss under the Traffic Safety Act.

In these circumstances, the Act limits liability to a non-WCB covered defendant to only “that portion of the damage or loss occasioned by the defendant’s own fault or negligence.” The trial judge held that she could only find the defendant liable for the portion of the plaintiff’s loss occasion by the defendant’s fault, not for any loss that was contributed to by the repair shop’s fault. The trial judge then found that the repair shop had the power to supervise the driver while the vehicle owner did not, and thus apportioned 100% of the plaintiff’s loss to the repair shop. The effect of this decision was that the plaintiff/WCB had no ability to recover from any of the parties because the only parties who were liable were immune from suit.

The plaintiff appealed. The Court of Appeal confirmed that pursuant to the Act, defendants who are not protected from suit should not be held liable for the portion of loss caused by an employer or worker who is protected from suit. The repair shop’s notional vicarious liability constituted fault under the Act and thus the court had to apportion the plaintiff’s loss between the repair shop and the owner. The Court of Appeal confirmed that the effect of the Act is that liability of the owner is several, not joint nor joint and several. The court affirmed the trial judge’s finding that the repair shop was 100% notionally liable for the plaintiff’s loss, confirming that this was consistent with both the purpose of the Act and the Traffic Safety Act.

Therefore, in the end, in what was essentially a contest between the WCB and the automobile insurer, the insurer came out ahead.

McIver v. McIntyre, 2018 ABCA 151 (CanLII)     

Vehicle Owner Not Liable for Accident Caused by Repair Shop Employee During a Test Drive

Alberta releases further amendments to its occupational health and safety legislation in relation to Bill 30

As we previously reported, the majority of the amendments to Alberta’s Occupational Health and Safety Act set out in Bill 30 will be coming into force on June 1, 2018. Earlier this month, additional amendments were released to Alberta’s Occupational Health and Safety Regulation and Occupational Health and Safety Code 2009. These amendments will also be in force June 1, 2018.

The changes introduced by these most recent amendments include:

  • additional requirements for joint work site health and safety committees (JWSHSC) including:
    • details on what is required in their terms of reference;
    • additional duties for the JWSHSC and for employers, contractors and prime contractors working with the JWSHSC;
    • requiring that employers/prime contractors must use an organization designated by the Minister to provide the required training to JWSHSC co-chairs and health and safety representatives (as of the date of this post, the list of approved providers had not yet been released);
  • additional requirements for employers relating to violence and harassment, including:
    • developing and implementing, in consultation with the JWSHSC/health and safety representative/affected workers, a violence prevention plan that includes a violence prevention policy and violence prevention procedures, and listing some minimum requirements for the violence prevention policy and procedures;
    • taking reasonable precautions where an employer is aware that a worker is or is likely to be exposed to domestic violence at a work site;
    • developing and implementing, in consultation with the JWSHSC/health and safety representative/affected workers, a harassment prevention plan that includes a harassment prevention policy and harassment prevention procedures, and listing some minimum requirements for the harassment prevention policy and procedures;
    • conducting a review of these plans every 3 years, when an incident occurs, or when the JWSHSC/health and safety representative recommends a review;
    • ensuring that workers are properly trained in relation to violence and harassment;
    • ensuring that workers who report an injury or adverse symptom resulting from an incident of harassment or violence are advised to consult a health professional of the worker’s choice and requiring that employees be paid while attending treatment sessions that occur during regular work hours;
  • additional provisions relating to workplace violence for employers in the retail fuel and convenience sectors; and
  • amendments to the WHMIS provisions.

The amendments can be found here.

Alberta releases further amendments to its occupational health and safety legislation in relation to Bill 30

MOL inspector’s compliance orders, claiming that employer’s harassment investigation was not “appropriate”, suspended on appeal

The Ontario Labour Relations Board has suspended a Ministry of Labour inspector’s compliance order relating to an employer’s harassment investigation after the employer appealed the orders and the complainant resigned.

The MOL inspector’s compliance order read as follows:

The employer shall ensure that an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances to protect a worker from workplace harassment.  At the time of this visit, additional information regarding an allegation of workplace harassment was reported to the employer by this Inspector and an investigation appropriate in the circumstances had not been conducted by the employer.

The OLRB noted that the person who filed the harassment complaint and reported it to the MOL had since resigned. Also, the employer said that it had investigated the complaint and reported the result to the parties.

The OLRB stated that there was nothing in the application (the appeal document) suggesting that there would be ongoing safety issues posed to any workers, including the worker who complained, if the compliance orders were not suspended.

Because the MOL had not opposed the employer’s request for suspension of the compliance order, the “low threshold for establishing a prima facie case” had been met.  There did not appear to be any reason to defer to the MOL inspector. The compliance order was therefore suspended pending the result of the appeal.

TSR Industrial Maintenance Inc. v Laszlo Brian Czako, 2018 CanLII 25434 (ON LRB)

MOL inspector’s compliance orders, claiming that employer’s harassment investigation was not “appropriate”, suspended on appeal

“Sham” investigation results in $75,000 aggravated damages award against employer

An employer that terminated an employee alleging just cause was ordered to pay damages for wrongful dismissal, including an award of aggravated damages of $75,000.

The plaintiff employee worked at the defendant’s waste treatment plant for almost 4 years. The circumstances leading to his dismissal began with an innocuous, routine safety meeting. The plaintiff had advised his supervisor that he was going to be doing preventative maintenance that day. He then proceeded to obtain a work permit, which was standard practice. Later that day, the plaintiff spoke to the safety supervisor who asked about a contract worker and whether he had a permit. The plaintiff replied that he did not know. Later that afternoon, the plaintiff was called into a meeting with the manager where he was “chewed out” and accused of putting a life in danger. This allegation related to the contract worker who was apparently working without a permit. The plaintiff was surprised and tried to respond, to clarify that it was his supervisor’s responsibility, not his, to assign work to the contract worker. The plaintiff was suspended and summarily escorted off the property.

Following his suspension, the plaintiff continued, unsuccessfully, trying to communicate his side of the story to the employer. He ultimately went on stress leave. Over 1 month after his initial suspension, the plaintiff received a letter from the employer advising that he had been terminated for cause. When the trial started approximately 5 years later, the employer withdrew the just cause argument.

The plaintiff was successful in his wrongful dismissal claim against the employer and was awarded 6 months’ pay in lieu of notice. The court considered the plaintiff’s claim for aggravated damages resulting from how he was treated before and during the termination. Among the reasons considered in support of the claim for aggravated damages was the employer’s investigation. The court held that the employer’s investigation clearly failed to give any serious consideration to the plaintiff’s side of the story, and that the plaintiff had not been given the proper opportunity to present his version of events. The evidence suggested that the employer had made up its mind to dismiss the plaintiff within days of his suspension, supporting the conclusion that the investigation was either incompetent and unfair or even a sham. The employer had also ignored or failed to give proper weight to information received from another employee who was present at the initial safety meeting and supported the plaintiff’s account of what happened.

Ultimately, the court was satisfied that the employer’s actions amounted to a breach of the obligation of good faith and fair dealing and supported an award of aggravated damages. The employer’s false reasons for dismissal and inadequate and unfair investigation resulted in the plaintiff failing to receive procedural fairness. The court determined that the appropriate amount for aggravated damages was $75,000.

Lalonde v Sena Solid Waste Holdings Inc., 2017 ABQB 374 (CanLII).

“Sham” investigation results in $75,000 aggravated damages award against employer

Harassment arbitration hearing should be open to the public, including the press, arbitrator rules

A police union’s harassment grievance arbitration hearing should be open to the public, including the press, despite the sensitive issues that it raised, a labour arbitrator has ruled. The case illustrates the publicity risk that employers face in many workplace disputes, and the need for employers to consider publicity when analyzing litigation risk.

The grievance alleged that the police services board failed to provide a harassment-free workplace to its civilian members. The issues had resulted in two workplace investigations that had not resolved the dispute.

The arbitrator noted the general requirement, under the Statutory Powers Procedure Act, that a hearing be open to the public. The police board argued that the press should be excluded.  Two officials with the police force, who were “interested parties” at the arbitration, argued that the hearing should be held in camera – that is, closed to the public and the media.

The arbitrator disagreed. There were a number of factors in favour of having an open-to-the-public  hearing.  This was not a case about a single employee; it raised broader issues about the workplace.  A number of members of the police service were already aware of the case.  The police service was a public body, which was a strong factor in favour of having the hearing be open to the public including the press. The particular reporter who wished to attend the hearing had said that he would not audio-record it, and the risk that media reports would influence witnesses who had not yet testified was low. Although some of the evidence at the hearing might reflect poorly on some of the participants, the arbitrator noted that there may be publicity about this matter regardless of whether media is present.

In the result, the arbitrator ruled that the hearing be open to the public.

Durham (Regional Police Association) v Durham (Regional Police Services Board), 2018 CanLII 28649 (ON LA)

Harassment arbitration hearing should be open to the public, including the press, arbitrator rules

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