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Ontario man fined $6,000 for illegal use of “professional engineer” title when seeking job

An Ontario man has been found guilty of three counts of violating the Professional Engineers Act by using the protected title, “P.Eng.” in a resume and in communications with a construction firm at which he was seeking employment.

The construction firm had asked for confirmation of the man’s P.Eng. status on several occasions, and then called Professional Engineers Ontario which confirmed that he had never been a licenced professional engineer in Ontario.

The man was fined $2,000.00 on each of the three charges, for a total of $6,000.00.

Employers often retain professional engineers for safety-related advice, such as whether a machine is properly guarded.  Employers should take steps to confirm that the person holds a “P.Eng.” and a “Certificate of Authorization” that authorizes individuals and companies to carry on business offering and providing professional engineering services to the public.   The PEO maintains searchable online directories.

Professional Engineers Ontario’s press release can be found here.

Ontario man fined $6,000 for illegal use of “professional engineer” title when seeking job

HRTO sets protocol for employers to use their own occupational health and claims management file to defend human rights complaint

The Human Rights Tribunal of Ontario has set out criteria that an employer must satisfy in order to use its own Occupational Health and Claims Management file to defend itself in a human rights complaint.

An employee filed an Application with the HRTO alleging that the employer, through its Occupational Health and Claims Management department, discriminated against him by requiring unnecessary medical information, improperly administering his sick benefit claims, and failing to properly accommodate his disability.

The employer asked the HRTO to order that the employer was authorized to access and use the employee’s personal health information contained in the Occupational Health and Claims Management file, for the purposes of responding to the employee’s human rights complaint.

The HRTO was satisfied that the employer required access to the documents in order to meaningfully respond to the employee’s human rights complaint.

It appears that the reason for the employer’s request for access to the Occupational Health and Claims Management file (instead of simply accessing its own file without seeking the HRTO’s permission) was subs. 63(2) of the Occupational Health and Safety Act, which provides:

No employer shall seek to gain access, except by an order of the court or other tribunal or in order to comply with another statute, to a health record concerning a worker without the worker’s written consent. 

The HRTO ordered that the employer was permitted to access its Occupational Health and Claims Management file on the employee, provided that:

  1. the employer provide a copy of the file to the employee;
  2. the employer ensure that its advisors, individuals giving instruction to counsel, and potential witnesses are the only persons permitted to access, review and use the documents; and
  3. counsel for the employer is required to state and confirm with all persons with whom the health information is “canvassed” that the persons are required to strictly maintain confidentiality of the health information.

Coutts v. Toronto Transit Commission, 2016 HRTO 7 (CanLII)

HRTO sets protocol for employers to use their own occupational health and claims management file to defend human rights complaint

Reverse burden of proof sinks no-show employer: OLRB awards more than $25,000 for safety-reprisal

An employer that failed to attend a safety-reprisal hearing has been ordered to pay two employees damages of more than $25,000.00.

The employees filed an application with the Ontario Labour Relations Board claiming that their dismissal was a reprisal under the Occupational Health and Safety Act. The employer failed to attend the hearing.

The OLRB noted that subs. 50(5) of the OHSA places the burden of proof on the employer, in safety-reprisal cases, to show that the employer had not retaliated against the employee for raising safety concerns.  Because the employer failed to attend the hearing, it had not discharged that burden of proof, and was deemed to have accepted all of the allegations in the employees’ reprisal complaints.

One of the employees had been unemployed, after her dismissal, for 30 weeks.  She was awarded 30 weeks’ wages as damages.  The other employee was pregnant when dismissed, and was entitled to back pay for the four weeks before her Employment Insurance maternity/parental benefits began.

The OLRB also awarded both employees damages in the amount of four weeks’ wages for the “loss of employment” plus $1,500.00 each for “mental distress”.  The damages totaled $25,848.00.

This case illustrates what already appears self-evident: employers faced with safety-reprisal complaints under the OHSA must respond and participate in the hearing, or else they will be deemed to have admitted the employee’s allegations – and will be liable for damages.

Sara Dias v 2142472 Ontario Limited, 2016 CanLII 14182 (ON LRB)

Reverse burden of proof sinks no-show employer: OLRB awards more than $25,000 for safety-reprisal

Medical marijuana-using welder must give employer treatment records: arbitrator

A worker who used medical marijuana has been ordered to give his employer any medical records touching on his treatment.

The worker was a long-service journeyman welder employed at the employer’s potash mine.  He claimed to suffer from an anxiety disorder and headaches.  He obtained a prescription for medical marijuana to treat his medical condition, and an authorization from the federal government for that prescription.  He claimed to use medical marijuana in the evenings, away from work – not in the workplace.  He disclosed this information to the employer’s workplace occupational health nurse.

The employer then suspended the employee and placed him on leave until he provided evidence that he is no longer being treated by a prohibited substance that exceeded the employer’s identified thresholds and caused impairment. The worker discontinued his marijuana use and filed a grievance alleging discrimination because of his “medical prescription”.

The employer demanded that the employee produce his application for medical marijuana authorization, and medical records pertaining the conditions treated by the medical marijuana and the treatment proposed or undertaken.  It argued that without that information, it could not assess whether marijuana is an appropriate treatment, whether a more appropriate treatment was available, and whether the worker was fit to work in a safety-sensitive position while under the influence of marijuana.

The arbitrator noted that because the employer had acknowledged, in a communication with the Saskatchewan Human Rights Commission, that the employee suffers from anxiety and cluster headaches, it could not resile from that admission in this case.  As such, the employer was not entitled to medical documentation about the worker’s “underlying disability”.

The employer was, however, entitled to medical documents relating to the employee’s current or proposed treatment.  The availability of alternative treatments was an issue in the arbitration. The employer could not argue its case if it was not permitted to have access to the medical records dealing with the worker’s proposed and undertaken treatment.  Further, the union was challenging whether the worker’s prescription and use of marijuana would cause impairment such that he would be unfit and/or unsafe for work.  This also made the treatment documentation relevant.  The arbitrator decided that the employer should be permitted to determine what information the employee’s doctor had about the worker’s “Fit for Duty workplace requirements” in terms of permitted treatment options, strain potency and frequency of marijuana use, and whether alternative treatments were available, appropriate and/or recommended.

United Steel Workers, Local 7656 v Mosaic Potash Colonsay ULC, 2016 CanLII 18320 (SK LA)

Medical marijuana-using welder must give employer treatment records: arbitrator

Australian employee wins workers compensation benefits after coworker takes covert photographs of her

An Australian employee has won her bid for workers’ compensation benefits for psychological injury after she learned that a coworker had taken covert photographs of her.

The coworker had taken covert photographs of a number of people, including the employee.  Some of the photographs concentrated on the employee’s chest area with her head and face out of the photo.  She was identifiable because other photos included her face.  The coworker had used electronic devices supplied by the employer (a state library) to take the photographs.  Over 2,500 photos were found on the electronic devices, a number of which focused on the chest area of female employees.

The court decided that there was a “necessary association between the injury and the employment”.  Had it not been for the employment, the employee’s psychological injury would probably not have occurred.  As such, the injury “arose out of, or in the course of, employment”. Further, the employment was a “significant contributing factor” to her injury, given the evidence of her psychiatrists.

The applicable workers compensation legislation provided that workers were not entitled to benefits for psychological injury if it arose out of “reasonable management action”. The court decided that, considered “in a global way”, the employer’s actions had not been reasonable.  In particular, the employer had delayed in telling the employee about the photographs and their nature; the employer did not say anything to her until she approached another employee about the matter; and the employer had not imposed any disciplinary action on the male employee who took the photographs, but instead had allowed him to resign at the end of his contract (with four months of notice).

As a result, the employee was entitled to workers’ compensation benefits for psychological injury.

Waugh v Simon Blackwood (Workers’ Compensation Regulator) & anor [2015] ICQ 28 (8 October 2015)

Australian employee wins workers compensation benefits after coworker takes covert photographs of her

Vague OHSA charges must be clarified: court orders prosecutor to provide particulars of charge

A judge has ordered a prosecutor to provide “particulars” of a vague charge under the Nova Scotia Occupational Health and Safety Act, so the constructor could understand the charge against it.

The constructor was charged with four OHSA offences following an accident in which an employee was severely injured on a construction site after he activated power to a swing stage (suspended platform) and a metal outrigger fell on him.  The constructor argued that two of the four charges were vague, so that it needed more particulars (details) of those charges in order to defend against them.

The judge referred to the two charges as “general duty” offenses.  The first charge alleged that the constructor had failed to “take every reasonable precaution to ensure the health and safety of a person at a workplace”.  The second charge alleged that the constructor failed “to ensure communication between employers and self-employed persons at a project of information necessary to the health and safety of persons at the project.”  The judge noted that the charges “track[ed] the language of the legislation”.

The judge concluded that the constructor did not risk “being broad-sided by an infinite range of allegations” on the first charge.  The disclosure from the prosecutor indicated that the prosecution would assert that the constructor should not have disassembled the swing stage in the first place, and that having done so, the constructor should have taken precautions to ensure that no employee was hurt as a result.  As such, the constructor knew what the charge was about, and was not entitled to particulars of the first charge.

With respect to the second charge, the judge decided that the disclosure did not provide a “specific enough characterization of the communications that the prosecutor is alleging” the constructor was responsible for making.  Particulars would clarify to whom the prosecutor says the constructor should have communicated and how and what it should have communicated.  As such, the prosecutor was ordered to provide particulars for the second charge.

R. v. McCarthy’s Roofing Limited, 2016 NSPC 21 (CanLII)

Vague OHSA charges must be clarified: court orders prosecutor to provide particulars of charge

OHS caselaw update at Dentons’ June 10th employment law seminar in Toronto

Adrian Miedema will be leading a presentation entitled “Recent OHS Cases of Interest” at Dentons’ complimentary half-day employment law seminar in Toronto on Friday, June 10th.  You are welcome to join us.

Other presentations at the seminar will be as follows:

  • “Workplace confidential: How to maintain privilege over workplace investigations”, presented by Andy Pushalik and Rahim Punjani
  • “Bill 132: Ontario’s new sexual violence and harassment legislation – what employers need to know”, presented by Sabrina Serino
  • “To compete or not to compete? Tips and traps when drafting restrictive covenants”, presented by Jeff Mitchell and Chelsea Rasmussen
  • “How to support transgender employees”, presented by Anneli LeGault
  • “You tweeted what?!: Tips on effectively managing social media in the workplace”, presented by Matthew Curtis and Saba Zia
  • “Covering your assets: Common employer liabilities and best practices for managing HR risk”, presented by Blair McCreadie and Carmen Francis
  • “Do you sponsor a Group RRSP or defined contribution pension plan? Beware of “estimates” that your provider wants to give your employees”, presented by Mary Picard and Aiwen Xu

Date & Time
Friday, June 10, 2016
Registration and breakfast:  8:30-9:00 a.m.
Welcome remarks and special guest speaker:  9:00-9:30 a.m.
Breakout sessions:  9:45-12:15 p.m.
Lunch and special guest speaker:  12:15 p.m.

Location
Dentons Canada LLP
77 King Street West
5th Floor
Toronto, ON

Click here to RSVP

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

OHS caselaw update at Dentons’ June 10th employment law seminar in Toronto

Employer breached OHSA, collective agreement by sharing employee’s medical information with another employer

An arbitrator has decided that an operator of a long term care facility violated both the Occupational Health and Safety Act and the collective agreement by sharing an employee’s medical information with another employer, without the employee’s consent.

The employee was a part-time dietary aid at the long term care facility, St. Patrick’s Home of Ottawa Inc.  After the employee advised that she required an accommodation in her other position at a different long-term care facility due to medical reasons, St. Patrick’s asked her to provide a medical certificate indicating her fitness and ability to do her job.

The other long-term care facility began to question whether the medical restrictions that she was presenting to them were legitimate.  The other long-term care facility then requested certain information about the employee’s employment at St. Patrick’s, including whether she had worked her regularly-scheduled shifts, had requested any workplace accommodations or provided any work-related restrictions.   St. Patrick’s gave the other facility that information, including a medical note that the employee had provided.  St. Patrick’s later acknowledged that information should not have been disclosed without the employee’s consent.

The arbitrator held that St. Patrick’s had violated sections 63(1)(f) and 62(2) of the OHSA:

“Section 63(1)(f) of this Act specifies that no person shall disclose any information obtained in any medical examination except in a form that will prevent the information from being identified with a particular person or case.  The copy of the note that this Employer gave to West End Villa contained medical information from the Grievor’s doctor that clearly identified the Grievor.  Further, section 62(2) of the Act mandates that no employer shall seek to gain access to a health record concerning a worker without the worker’s written consent, except by an order of the court or other tribunal or in order to comply with another statute.  The Grievor gave no consent to the release of the information or note and West End Villa neither requested the note nor had any legal authorization to receive it.  Since West End Villa had no right to seek the Grievor’s health information, this Employer had no right to provide it.  Therefore, the Agreed Facts reveal a clear violation of the Occupational Health and Safety Act.”

The arbitrator also found that the disclosure of the information violated the collective agreement in that it constituted “harassment”, which was defined in the collective agreement as, “any behaviour which denies and or undermines individuals’ . . .  dignity and respect, and that is offensive, embarrassing and humiliating to said individual.”  Lastly, the arbitrator held that the disclosure constituted the tort of “intrusion upon seclusion”.

The arbitrator ordered St. Patrick’s to comply with its own confidentiality policy and to pay the employee $1,000.00 in damages.

This case illustrates the increasing importance of privacy – particularly of medical information – in the workplace, and that privacy obligations can come from unexpected places, including the OHSA.

St. Patrick’s Home of Ottawa Inc. v Canadian Union of Public Employees, Local 2437, 2016 CanLII 10432 (ON LA)

Employer breached OHSA, collective agreement by sharing employee’s medical information with another employer

Ontario MOL consulting on new mandatory construction hazard awareness training

The Ontario Ministry of Labour is proposing to require all construction employers to ensure that their workers complete a new “construction hazard awareness training” program.

This training program would be an add-on, for “construction” employers, to the mandatory basic health and safety training that all employers in Ontario are required to ensure that their workers receive.

Construction employers would have two ways to comply with the two training requirements: (1) ensure that their workers complete a training program approved as meeting the criteria of a training program and “provider standard” established by the MOL’s Chief Prevention Officer; or (2) complete a training program developed by the employer, in consultation with the joint health and safety committee, based on the learning outcomes to be set out in a regulation.

The MOL is seeking public feedback, including on a draft Construction Health and Safety Awareness Training Program Standard that would set out requirements that a training program must include in order to be approved by the Chief Prevention Officer.

For more information, click here.

 

 

Ontario MOL consulting on new mandatory construction hazard awareness training

City wins suspension of MOL inspector’s “constructor” order

A city has won a suspension of a Ministry of Labour inspector’s decision that the city was a “constructor” under the Ontario Occupational Health and Safety Act on a watermain-improvement project.

The city was the “owner” of the project.  It had retained, for the project, a construction company which had assumed the role of constructor under the OHSA and was carrying out the duties of constructor on the project.

The city asked the Ontario Labour Relations Board to suspend the operation of the inspector’s Order that the city was the constructor.  The MOL opposed the suspension request, alleging that the city had retained a great deal of control over the project, including the timing of some of the work, and had control over the construction company and the police service (which performed some traffic control functions in connection with the project).  The MOL argued that because the city had such “control”, the city should also have the duties of constructor under the OHSA.

The OLRB suspended the MOL inspector’s Order pending the outcome of the city’s appeal challenging the inspector’s decision. The OLRB decided that the safety of workers on the project would be maintained because the construction firm was an “experienced and responsible entity” which was carrying out the duties of constructor on the project.  While the city may have requested and paid for the traffic control services provided by the police, it was at the construction company’s request that the city contacted the police and arranged for traffic control.  The construction company “more closely resembled” the constructor on the project.  Compelling the city to carry out the obligations of the constructor would cause it prejudice that it ought not to bear if it was not in fact the constructor.

City of Greater Sudbury v A Director under the Occupational Health and Safety Act, 2015 CanLII 86601 (ON LRB)

 

City wins suspension of MOL inspector’s “constructor” order

$250,000 fine against school board may be largest-ever against not-for-profit organization in Ontario

A school board has been handed a $250,000 fine under the Ontario Occupational Health and Safety Act after the death of maintenance worker.

The maintenance worker had been assigned the task of replacing a safety cage on a ceiling light in a high school gymnasium.  He was working alone.  While he was rolling a portable aerial device (a type of lifting device) down a ramp off a trailer, the aerial device tipped over and struck the worker, fatally injuring him.

The angle of the ramp was about eight degrees, while the manual for the aerial device stated that it should not be rolled down an incline greater than five degrees.

The school board pleaded guilty to the OHSA charge of failing as an employer to take every precaution reasonable in the circumstances for the protection of a worker.  In particular, the school board failed to ensure that the angle of the ramp was five degrees or less; that the aerial device was rolled down the ramp with its mast on the upper or high end of the ramp to lessen the possibility of it tipping; and that there was another worker present to assist.

The court imposed the fine of $250,000 plus the 25% Victim Fine Surcharge, for a total of $312,250.  This appears to be the largest fine ever in Ontario under the OHSA against a not-for-profit or charitable organization.  The case shows that charities and not-for-profits are not immune from charges and fines under occupational health and safety legislation.

The Ontario Ministry of Labour’s Court Bulletin may be found here.

$250,000 fine against school board may be largest-ever against not-for-profit organization in Ontario

Electrical contractor fined $537,500 after death of resident from faulty electrical work

An electrical contractor has been hit with a huge fine after its faulty electrical work led to a resident’s death.

The contractor had installed an in-floor heating system in the bathroom of a home.  The resident, an elderly man, fell on the floor in the bathroom and suffered second- and third-degree burns from the overheated floor.  He died in hospital.  The Electrical Safety Authority (Ontario) determined that the floor’s heat system sensor had not been installed, and the heating system was wired to an incorrect voltage level.

The electrical contractor pleaded guilty to three charges of violating the Ontario Electrical Safety Code: leaving an unsafe electrical condition; failure to procure connection authorization before use; and failure to apply for an electrical inspection.  According to the Electrical  Safety Authority, the fine was “the largest fine in the history of electrical contractor licencing in Ontario.”

The charges were not under the Occupational Health and Safety Act because they dealt with a hazard to the resident, not a worker.  The charges, and the fine, show that serious liability can result from multiple pieces of regulatory legislation when safety is neglected.

The Electrical Safety Authority’s press release may be found here.

Electrical contractor fined $537,500 after death of resident from faulty electrical work

Shot at in parking lot, employee awarded $5,000 in damages from employer despite WSIB coverage

A labour arbitrator has awarded a unionized employee $5,000.00 in damages from his employer – despite the fact that the employer was registered with the Workplace Safety and Insurance Board.

The employee worked at a municipal community centre.  On the night of the shooting, he and four other employees went outside at around 10:30 pm to warm up their vehicles before leaving.  They lingered near their vehicles for about five minutes.  A car that had been driving back and forth in front of the community centre stopped, and two men got out and started shooting at the five employees. One worker was shot in the leg and “extensively injured”, while the employee in question was not shot, though he suffered some injuries in his effort to escape.  He did not require any immediate medical attention and did not miss any work.  He did not file a claim with the WSIB.  He still worked at the community centre.

The arbitrator noted that subsection 26(2) of the Workplace Safety and Insurance Act provides that, “Entitlement to benefits under the insurance plan is in lieu of all rights of action” that a worker has against the employer because of an accident happening to the worker in the course of employment.

The arbitrator decided that if the employee made or could have made a claim to the WSIB for lost wages, pain and suffering and/or mental distress, then the Workplace Safety and Insurance Act would bar any claim – by grievance or otherwise – against the employer for damages.  However, the arbitrator held that the employee, who suffered no lasting workplace injury, permanent impairment or loss of work hours or income, could not have made a claim to the WSIB.  As such, the Workplace Safety and Insurance Act did not bar his grievance for damages.

The arbitrator was satisfied that there was a reasonable prospect that the shootings would not have taken place had the employer satisfied its obligations under the collective agreement and Occupational Health and Safety Act to provide a safe work environment for the workers.  As such, the arbitrator awarded the employee $5,000.00 for pain and suffering and mental distress.

While the facts of this case are unusual in that the employee was not entitled to WSIB benefits but did have pain and suffering and mental distress for which he was entitled to damages, the decision shows that in some rare cases, employees with WSIB coverage could still claim damages directly from the employer.

Re Toronto (City) and CUPE, Local 79 (Charles), 260 L.A.C. (4th) 304 (Ont. L.A.)

Shot at in parking lot, employee awarded $5,000 in damages from employer despite WSIB coverage

U.S. OSHA’s “severe injury” statistics broken out by industry

The U.S. Occupational Safety and Health Administration has produced a “year one” impact-evaluation report on its Severe Injury Reporting Program.

Effective January 1, 2015, U.S. employers have been required to report to OSHA within 24 hours of any work-related amputation, in-patient hospitalization or loss of eye.

OSHA reports that it received 7,636 “hospitalization reports” in 2015.  The manufacturing industry was responsible for 26% of the hospitalization reports, while 19% were from construction, 11% from transportation and warehousing, 8% from retail trade, 6% from “administrative and support and waste management and remediation services”, 6% from health care and social assistance, 5% from wholesale trade, 3% from oil and gas extraction and 16% from other industries.

Fully 57% of “amputation reports” came from manufacturing, with 10% from construction.

OSHA’s report can be accessed here.

U.S. OSHA’s “severe injury” statistics broken out by industry

Employee stopped production line “to be difficult”, not due to safety issue: work refusal not justified

An employee who shut down a production line allegedly because two other employees were fighting, was not exercising a proper work refusal under the Occupational Health and Safety Act, the Ontario Labour Relations Board has decided.  His poor workmanship was also deliberate.

The employee pushed an “E-stop” button, and said he did so because he saw two coworkers fighting. He said that he saw punches thrown and a headlock.  He said that he pushed the E-stop button out of concern for one of the two employees’ safety.   He did not show up at a meeting the next day to discuss the incident. The employer then dismissed him.

The OLRB noted that under the OHSA, an employee may refuse to work due to workplace violence only when his or her own safety is at risk due to the violence – not the safety of a coworker. Here, the employee said that he was concerned about his coworker’s safety, not his own.  Also, the OLRB held that the two employees were not, in fact, fighting, but rather they were engaged in horseplay.  The employee could not have believed that their safety was in jeopardy.

The OLRB stated, “In light of the foregoing, I find that Mr. McNerney was angry with Ms. Campbell and he decided to be difficult by producing defective products and unnecessarily pushing the E-stop button. Given how unusual it was for an employee to produce so many defective seats during a shift, I find it more likely than not that Mr. McNerney’s poor workmanship was deliberate.”  The employee had no honest and good faith believe that a health and safety issue had arisen requiring him to push the E-stop button.

As such, the OLRB held that the employee had not been dismissed for raising safety issues. There was no violation of the OHSA.

McNerney v Integram Windsor Seating, 2015 CanLII 67646 (ON LRB)

 

Employee stopped production line “to be difficult”, not due to safety issue: work refusal not justified

Contractor loses lawsuit against city for alleged breaches of OHSA’s asbestos-disclosure rules

A construction contractor has lost its bid for damages from a city, relying on a little-used section of the Ontario Occupational Health and Safety Act that permits contractors to sue a building owner for damages for failing to disclose the presence of designated substances such as asbestos. The contractor’s lawsuit and appeal were both dismissed.

The contractor alleged that the City of Ottawa had failed to notify it that asbestos was present on the construction project site, and that as a result, the contractor’s workers had been exposed to asbestos.  The contractor claimed damages for administrative expenses (it’s president’s time dealing with the issue) and legal costs resulting.

The contractor relied on subsection 30(5) of the Ontario Occupational Health and Safety Act, which reads:

30. (5) An owner who fails to comply with this section is liable to the constructor and every contractor and subcontractor who suffers any loss or damages as the result of the subsequent discovery on the project of a designated substance that the owner ought reasonably to have known of but that was not on the list prepared under subsection (1).

Subsections 30(1) and (3) of the OHSA together require the building owner to provide the contractor with a list of designated substances at the project site.

The trial and appeal court decided that the contractor had not proven any damages.  The list of hours spent and work done by the contractor’s president to deal with the asbestos issue, was vague and general and was not suitable proof.  There was no evidence that the legal bill was ever submitted to or paid by the contractor.  As such, the contractor’s lawsuit was dismissed.

Lastly, the trial and appeal court were not prepared to grant a “declaration” that the City caused the unprotected exposure of the workers to asbestos or that the City was liable for damages incurred by the contractor and workers as a result of the exposure.  The court noted that the request was speculative as it was not known whether any of the employees would ever become ill as a result of the asbestos exposure and if so, whether they would start legal proceedings.  Also, any declaration might have an impact on the rights of employees who were not a party to the lawsuit between the contractor and the City.

Curoc Construction Ltd. v. Ottawa (City), 2015 ONCA 693 (CanLII)

Contractor loses lawsuit against city for alleged breaches of OHSA’s asbestos-disclosure rules

Employer’s request for post-incident alcohol and drug test was not justified where no sign of impairment: arbitrator

An employee responsible for a minor, although unusual, accident in a company parking lot was justified in refusing to submit to an alcohol and drug test, a labour arbitrator has found.

The employee was an electrician. His position was safety-sensitive. When backing up to park a vehicle, he backed into the only other vehicle in the parking lot.

The employer demanded that he submit to a post-incident drug and alcohol test. The employee refused, citing advice that he had received from his union.

The arbitrator found that nobody had thought that the employee was impaired. There were no signs of impairment.  After the accident, the employee sat through a half-hour investigative meeting and “could not give anyone in the meeting the slightest suggestion of impairment”.  Two managers, who were in the meeting, did not think he was impaired.  The managers concluded that he could drive home safely.  The cause of the accident was obvious: the employee’s carelessness, which the employee admitted.  The managers were “reasonably able to exclude the possibility that drug or alcohol impairment” may have caused the accident.

As such, the demand that the employee submit to an alcohol and drug test was not justified.

Jacobs Industrial and International Brotherhood of Electrical Workers, Local 353, 2016 CanLII 198

Employer’s request for post-incident alcohol and drug test was not justified where no sign of impairment: arbitrator

Ontario MOL now posting “de-identified” information on fatalities online, even before OHSA charges laid

Ontario workplace fatalities could now result in a “de-identified” posting on the Ministry of Labour’s website, even before Occupational Health and Safety Act charges are laid.

The postings provide a brief description of the incident, and then list occupational health and safety “Resources” in relation to the incident.  Employers could view the “resources” as pointing to the types of OHSA charges that the Ministry might lay.  The Ministry, possibly having considered that point, states, “Please note that at the time this information is published on this page, the Ministry has not made any final determinations with respect to the fatality.  The postings are developed with the intention of safeguarding the privacy of individuals involved and the integrity of MOL investigation [sic] and any possible legal proceedings.” [bolding is the MOL’s]

An example of a recent posting is as follows:


 

Date of Incident: February 2016
Location: Central Ontario
Posted: February 24, 2016

Individual was struck by mobile equipment at industrial site. Individual later succumbed to injuries.

Resources:

Material Handling

Guideline for the Safe Operation and Maintenance of Powered Lift Trucks

Heavy Equipment

Struck-By Hazards


 

The Ministry of Labour’s “Workplace fatalities” page can be found here.

 

Ontario MOL now posting “de-identified” information on fatalities online, even before OHSA charges laid

Double (16-hour) shift was not prohibited by ESA or OHSA: arbitrator

A labour arbitrator has held that the practice of unionized long-term care home employees voluntarily working two 8-hour shifts in succession did not violate the Ontario Employment Standards Act or Occupational Health and Safety Act.

With respect to the ESA, the arbitrator held that the practice did not violate section 18(1) which required that employers “give an employee a period of at least 11 consecutive hours free from performing work in each day.” That was because, according to the arbitrator, s. 18(1) permitted an employee to voluntarily work more than 13 hours in a day; as such, the collective agreement provision permitting double shifts was a greater right or benefit and thus did not violate the ESA.

The issue under the OHSA was whether the employer, by permitting employees to work double shifts, was violating its “general duty” under s. 25(2)(h) of the OHSA to take all precautions reasonable in the circumstances for the protection of a worker, due to safety issues that could result from employee fatigue. The arbitrator noted that there was “no meaningful correlation” between workplace accidents or resident complaints and employees working double shifts. Also, the practice of double shifts was a reasonably-accepted industry standard. As such, the general duty under the OHSA did not require the employer to ban double-shifts.

The arbitrator stated, though, that employees should voluntarily assess, before they take on an added shift, whether they are too tired to work safely.

The Regional Municipality of Durham, 2016 CanLII 8803

Double (16-hour) shift was not prohibited by ESA or OHSA: arbitrator

Work refusal was motivated by employee’s dislike of work assignment, not by safety: when full disciplinary record considered, employee was fired for cause

An arbitrator has upheld the dismissal of an employee who tried to use the Occupational Health and Safety Act’s work refusal provisions to avoid undesired work assignments.

The employee worked for the City of Hamilton cutting grass, picking litter and doing road maintenance. He had a long history of illnesses and accidents and had certain work restrictions.  On one particular day, the employee refused to pick litter on the basis that his truck did not have an air-ride seat which he said was required by his work restrictions.  The employee then failed to attend for work for several weeks afterwards.  After another incident later in the year, the employer dismissed the employee.

The union grieved the dismissal. The arbitrator decided that the work refusal was motivated by the employee’s dislike of the work assignment rather than by any pain he was feeling or fear for his health and safety. There was no indication that the employee saw his physician or chiropractor due to the pain.   He did not call in sick, nor did he go off work and file a WSIB claim, a procedure “with which he was well familiar”.  He did not mention the OHSA on the date of his work refusal.  He did not contact the Ministry of Labour until two months later, after the WSIB had determined that the work that he refused was appropriate given his restrictions.  Also, he had frequently been assigned a vehicle without air-ride seats in the past and had not objected.

As such, the work refusal was not based on an honestly-held belief that his health or safety was in jeopardy, nor was it objectively reasonable. A one-day suspension was  justified for the work refusal alone.

Further, there was no good reason for the employee not to return to work the next day, and his failure to do so justified an additional five-day suspension.  After he received another suspension later in the same year, the employee’s overall discipline record justified his dismissal.

City of Hamilton, 2016 CanLII 9065

Work refusal was motivated by employee’s dislike of work assignment, not by safety: when full disciplinary record considered, employee was fired for cause