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Safety topic was emphasized, not “buried in hundreds of power point slides”: employer establishes due diligence, not guilty in workplace fatality

A Saskatchewan employer has been found not guilty of six occupational health and safety charges after a worker died of suffocation when he became engulfed in a grain receiving pit.  The employer’s extensive safety program had emphasized, not buried, the relevant training.

The charges alleged that the employer failed to properly train and instruct the employee regarding safety.

The employer showed that the employee had received computer based training on various topics including confined space safety. He had completed 12 such training modules, 4 of which dealt with the “dangers of engulfment”. At the end of each module, he took a test on which he received a grade of at least 80% which was the pass rate. He also took 5 hands-on training courses including one relating to safe-work permits.

The training materials were replete with references to the dangers of entering a confined space such as a receiving pit. The materials were extensive.  The court rejected the prosecutor’s argument that the confined space training was “buried in dozens of [computer based training modules] in hundreds of power point slides” and therefore would have been “lost” on the worker.  Instead, the court found that the “mass of material emphasized the dangers, and the importance of following safety procedures, rather than burying them.”

Also, there was not a “culture of paying lip service” to safety that would have “detracted” from his safety training.

In this case, the worker was not directed to do anything involving a receiving pit. Instead, he had been given an “innocuous” task which he had also done an hour earlier – to simply take a flashlight and look into the pit to see whether it was empty or there was grain in it.  There was no reason for the employer to think that he would enter the receiving pit. In any event, the employee was properly trained for the work that he was directed to do. The employer had successfully shown due diligence.  All six charges were dismissed.

R v Viterra Inc., 2016 SKQB 269 (CanLII)

Safety topic was emphasized, not “buried in hundreds of power point slides”: employer establishes due diligence, not guilty in workplace fatality

“Competent supervisor” obligation relates to competence in safety, not in performance management: OLRB dismisses OHSA retaliation complaint

A laid-off worker’s safety-retaliation complaint under the Occupational Health and Safety Act has been dismissed because it was really a complaint about management’s assessment of his performance – not about safety.

The worker complained that after management “split supervision” of his department between two supervisors, the supervisors were not “competent” as they did not understand the workplace and work requirements, leading to the worker receiving unfavorable performance reviews.  He claimed that this violated the employer’s duty under the OHSA to appoint a competent supervisor.  He also said, in his safety-reprisal complaint to the Ontario Labour Relations Board, that he had been laid off in retaliation for raising this issue.

The OLRB noted that under the OHSA, “competence” of a supervisor is to be considered in the context of the health and safety purposes of the OHSA.  It does not include concerns about the expertise or experience of supervisors to give directions or evaluate work.

Here, the worker’s complaints, which had continued for several years before he had been laid off, were about his frustration with management’s perception of his performance and their failure to change his job classification.  His complaints were not about safety.  Therefore, he had not been retaliated against under the OHSA and his OLRB proceeding was dismissed.  The worker later asked the OLRB to reconsider its decision, and that request was also dismissed.

Jean (John) Dionne v MacLean Engineering, 2016 CanLII 45959 (ON LRB)

“Competent supervisor” obligation relates to competence in safety, not in performance management: OLRB dismisses OHSA retaliation complaint

Persistent “sexual annoyance” of five female coworkers gets employee fired for cause, despite late reporting of incidents

A shelter support worker’s persistent pattern of sexual comments to five female coworkers justified his dismissal for cause, despite the coworkers’ failure to promptly report the incidents, a labour arbitrator has decided.

The coworkers complained that he had persistently commented about his sexual exploits, his body parts, the coworkers’ body parts, and how he wanted to have sex with certain coworkers and clients.  They also complained that he had made obscene sexual gestures.

The employee claimed that all of the allegations were false and that the five female coworkers had conspired to get him fired because they were upset about him winning a grievance that awarded him a certain job.  He noted that there had never been “hint” of him engaging in such conduct in his 25 years as a support worker and 7 years with this employer. He also noted that none of the coworkers reported the incidents at the time they allegedly happened.

The arbitrator stated that if there had been only one complainant, the case would have been different.  Here, however, there were five complainants.  Absent any evidence that the coworkers conspired to perjure themselves to get the employee fired, the arbitrator could not find that they had.

With respect to the coworkers’ failure to report the incidents promptly, the arbitrator stated:

“There were shortcomings in the evidence of the five female co-workers who testified against Mr. Elmi.  On the face, the most troubling was the failure of any of them to have reported Mr. Elmi’s alleged misconduct at the time.  However, given that it was sexual arrogance and not sexual coercion, given that none of these witnesses were aware at the time that the others were being subjected to the same abuse, given that there were no witnesses and given that there was no thought that Mr. Elmi would be terminated such that even if reported the female might again work unsupervised and alone with Mr. Elmi, I do not find it surprising that the alleged misconduct was not reported at the time.  In the final analysis I have been persuaded by the consistent and unshaken central assertion of these witnesses; that is, that Mr. Elmi engaged in persistent and particularly offensive sexual annoyance. When all the evidence is considered and weighed, I accept the central assertion of the five female bargaining unit co-workers who testified against Mr. Elmi. Accordingly, I reject Mr. Elmi’s denials and hereby find that Mr. Elmi engaged in persistent, pervasive, unwelcome and extremely offensive sexual annoyance in the workplace.”

As such, the arbitrator decided that the employer had just cause for dismissal. Since the employee was not remorseful, and had made a “blanket denial” of all of the allegations, it was not appropriate to reinstate him and give him another chance.

Ottawa (City) v Ottawa-Carleton Public Employees’ Union, Local 503, 2016 CanLII 59377 (ON LA)

Persistent “sexual annoyance” of five female coworkers gets employee fired for cause, despite late reporting of incidents

Supervisor’s OHSA conviction upheld on appeal: prosecutor not required to prove what “hazard” caused concrete worker’s death

A supervisor’s Occupational Health and Safety Act conviction of failing to sufficiently and competently supervise work has been upheld on appeal, after a concrete worker died.

The supervisor operated and managed a concrete business.  He was hired to pour a concrete floor in a newly constructed shop.  They used a gas heater to heat the area.  The supervisor became aware that the gas supply hose to the heater produced an electric shock when touched. He warned workers but did not fix the problem.

The worker, who had been trowelling concrete, was later found lying on the floor near the gas heater.  He was later pronounced dead.  The treating doctor observed two red areas on his skin, which were consistent with electrocution.

The prosecutor’s theory at trial was that the worker died from electrocution.  The supervisor suggested that the death was from carbon monoxide poisoning from the gas heater so that the charge, based on electrocution, should be dismissed. Both the trial judge and Court of Appeal disagreed, holding that the contention that the worker died from carbon monoxide poisoning was speculative and not supported by the evidence.

The Court of Appeal further noted that the charge did not specify what “hazard” caused the death, and accordingly the prosecutor did not need to prove the cause.  As such, the supervisor was properly convicted of the “failure to supervise” charge under the OHSA.

R v Farnham, 2016 SKCA 111 (CanLII)

Supervisor’s OHSA conviction upheld on appeal: prosecutor not required to prove what “hazard” caused concrete worker’s death

High school machine shop teacher loses work refusal case

A machine shop teacher’s work refusal was not justified, an appeals tribunal has decided, given that the teacher had the ability to manage the class environment to ensure safety.

The teacher refused to teach the class if there were more than 16 students present, stating that a larger class size would put his safety at risk.

The teacher argued that adolescents were prone to act in an unpredictable manner when working with machinery, risking creating “projectiles and other hazardous situations”.

In dismissing the teacher’s appeal from the decision of a health and safety officer, the tribunal noted that the collective agreement set the maximum class size at 29 and that the New Brunswick Department of Education recommended a class size of 18 to 22. As such, the teacher’s personal limit of 16 was not justified.

Most importantly, the teacher had the ability to provide less hands-on teaching and more class time, which would help manage safety in the classroom.

The tribunal stated:

“While it is obvious that the teaching experience will suffer, it was apparent from the appellant’s testimony that less hands-on experience and more classroom time will ensure the safety of the students. While students may not like less hands-on training, the issue before me concerns whether the January 8, 2016, decision should be overturned.”

As such, the teacher’s appeal was dismissed.  His work refusal was not justified under the New Brunswick Occupational Health and Safety Act.

20168017 (Re), 2016 CanLII 57012 (NB WCAT)

High school machine shop teacher loses work refusal case

OHSA conviction, $48,000 fine upheld on appeal: “blocking” of machine required physical block

An Ontario Appeal judge has upheld an employer’s conviction under the Occupational Health and Safety Act for failure to “block” a machine, after the trial justice held that “blocking” required a physical block, not simply shutting off the hydraulic power.

The Ontario Ministry of Labour had charged the company with failing to ensure that a “part of a machine, transmission machinery, device or thing shall be cleaned, oiled, adjusted, repaired or have maintenance work performed on it only when . . . any part that has been stopped and that may subsequently move and endanger a worker has been blocked to prevent its movement”, contrary to section 75(b) of the Industrial Establishments regulation under the OHSA.

A maintenance worker with the company, which operated a sawmill, suffered crushing injuries to his arm as he reached in between the “side heads” of a saw while performing maintenance.  Another employee, not knowing that the maintenance worker had gone into the area between the side heads, had used the control box for the machine to close the side heads.

The machine had been shut down for maintenance and its electrical system had been locked out.  However, the maintenance worker left the hydraulics on, which was required in order to move the side heads for maintenance.

The appeal court held that the trial justice had not erred in deciding that “blocking” required a physical block be used to restrain movement of the side heads.  It was reasonable to interpret “blocking” to require that a physical block, a “large solid piece of hard material” be used.

The conviction was therefore upheld. The appeal judge also held that the $48,000 fine was reasonable, despite the fact that the company had only 25 workers and no previous convictions under the OHSA.

Ontario (Ministry of Labour) v. McKenzie Lumber Inc., 2016 ONCJ 533 (CanLII)

 

OHSA conviction, $48,000 fine upheld on appeal: “blocking” of machine required physical block

“Reputable and responsible” owner / operator guilty of OHSA charge after drill rig collapse at York University

After a dramatic and tragic incident in which a large drill rig fell over at York University, fatally injuring a backhoe operator and badly injuring an excavator operator, the company that owned and operated the rig has been found guilty of an offense under the Occupational Health and Safety Act.

The court described the company as “reputable and responsible”, showing that even safety-oriented companies can be found guilty of OHSA offences if they do not have rigorous processes in place to ensure safety and avoid accidents.

The accident took place in October 2011 on the TTC subway extension project at the university.

The court held that the company had failed to ensure that the soil base under the drill rig was capable of safely supporting the weight of the large drill rig.

The Ministry of Labour called a “world-renowned” engineer, who was an expert in soil conditions, to testify.  He testified that the most likely reason that the drill rig fell over was that the pressure that the drill rig exerted on the ground exceeded the weight-bearing capacity of the ground.

The court further found that there was no evidence that the company took any steps to confirm that the platform on which the drill rig was operated could support the drill rig in accordance with its specifications for stability, and no record of the company confirming that the ground had been prepared sufficiently to support the rig.

The company has not yet been sentenced for the offence, so the fine is not yet known.

Ontario (Ministry of Labour) v. Advanced Construction Techniques Ltd., 2016 ONCJ 482 (CanLII)

“Reputable and responsible” owner / operator guilty of OHSA charge after drill rig collapse at York University

Post-dismissal doctor’s report was relevant: disabled employee reinstated for further consideration of possible accommodation, after evidence that medical condition improved

An employee whose medical condition had improved both before and after termination has been reinstated for further consideration of possible accommodations, after an arbitrator relied on a doctor’s assessment done after dismissal.

The employee was 67 years old and had been away from work for 14 months when dismissed after 18 years of employment.  He had undergone surgery, 14 months before his dismissal, for buildup of plaque in his arteries.  Cognitive deficits were noted during his recovery period.  About 11 months before his dismissal, a doctor who worked for the employer’s contracted health services provider, found that he had “slow speech, slow processing, slow thinking”.  Two months later another doctor found that, in contrast with the previous doctor’s assessment, the employee had “continued to improve both physically and cognitively”.  Two months later, a neuropsychological assessment concluded that it was “unlikely that [the employee] will be able to safely return to work” in his position.

Two weeks before the employee’s dismissal, the employee’s family doctor provided a report recommending that the employee be provided with “a gradual return to work” because he was not “totally disabled from all work duties”.  The doctor asked that the employee be accommodated in a sedentary position.

The arbitrator admitted, into evidence, another neuropsychological assessment, by a different specialist, conducted a few months after the employee’s termination, which found that the employee had recovered and did not have “Vascular Cognitive Impairment” which the previous neuropsychological assessment had presumed.  The new assessment, although conducted after termination, was relevant because it was consistent with pre-termination assessments which had shown some improvement.  The employee’s condition at the time of termination was unclear until the post-termination assessment report was received.

The arbitrator therefore determined that the employee’s condition had improved at the time of termination and it was not reasonable to conclude that there was no reasonable prospect of the employee being able to regularly attend work. The arbitrator reinstated the employee for the purposes of having his condition considered by a “Joint Medical Placement Committee” which was provided for in a letter of understanding between the employer and the union.

In a subsequent decision handed down after the Joint Medical Placement Committee considered the employee’s situation, the arbitrator decided that it would cause undue hardship to put the employee back into the workplace.  In particular, an Occupational Therapist had concluded that the employee:

“is not suited for safety sensitive work. In my opinion, Mr. Voykin should not be placed in any jobs that require attention to detail, correct and quick responses to information and/or dividing/alternating attention between two or more tasks.

Adaptations or accommodations would not allow him to compensate for these difficulties….”

Further, the union had not identified any jobs in which the employee could be appropriately accommodated.  As a result, the employer had satisfied its duty to accommodate. The employer was therefore justified in ending the employee’s employment.

Rio Tinto Alcan Inc. v Unifor, Local No. 2301, 2015 CanLII 100020 (BC LA)

Post-dismissal doctor’s report was relevant: disabled employee reinstated for further consideration of possible accommodation, after evidence that medical condition improved

Sidewalk rage? Employee convicted of dangerous driving under Criminal Code after “trying to scare” his boss by driving towards him

An employee has been convicted of dangerous operation of a motor vehicle after he drove towards his boss three times, “trying to scare him”.

The employee worked as a labourer in construction.  His relationship deteriorated with his boss, leading to a physical altercation between them.  After the altercation, the boss was standing on the sidewalk when the employee circled at least once, and perhaps two or three times, and attempted to strike or at least come very close to his boss with his car.  He was driving quickly at a speed that appeared dangerous to other witnesses who observed the incident.

The court found that although the employee was “operating under some stress and confusion”, he was not merely trying to escape his boss.  The employee’s assertion that he had no intention of hitting his boss was not a defence.  In his statement to the police, the employee admitted that when he drove towards his boss, he was trying to scare him.  That admission was enough to show mens rea, the “guilty mind” requirement for a criminal charge.

The court decided that driving on the sidewalk at some speed to try to scare someone was a “marked departure from the standard of care that a reasonable person would observe”.  A reasonable person would have been aware of the risk.  The employee actually admitted at trial that driving on the sidewalk “was a mistake”.

The employee was therefore guilty of the criminal offence of dangerous driving.

R. v. Draid, 2016 BCSC 423 (CanLII)

Sidewalk rage? Employee convicted of dangerous driving under Criminal Code after “trying to scare” his boss by driving towards him

Employer loses wrongful dismissal case after court finds safety rules unclear

An employer has lost a wrongful dismissal case after a court found that its safety rules, which it alleged the employee violated, were unclear and not clearly-communicated.

The employee worked at a solid waste facility in the Yukon.  The employer fired the employee and attempted to prove “just cause” on the basis of absenteeism, poor working relationships, use of company cell phone for personal calls, and safety violations.

With respect to safety, the employer claimed that the employee did not like to wear her safety vest and steel-toed boots, despite it being a job requirement, and that the employee was constantly reminded to wear her hard hat.  The employee acknowledged that she knew that if she did not comply with the safety rules, she would be fired; however, she said that the rules were unclear and she had asked that they be written down.

The court decided that the hard hat requirement was not clearly set out by the employer, and was not included in the employer’s “Employee Guidelines” document.  The court concluded:

“I find that the Society did not take the necessary steps to ensure that there was a clear and unequivocal set of rules, guidelines and/or policies that made it clear what equipment was to be worn at what locations and at what times.  I find that, to the extent that there was some verbal direction provided, this direction was not entirely clear and cannot be relied upon as establishing a standard that Ms. Goncharova can then be viewed as having breached.

The power to establish clear and unequivocal standards and requirements lay with the Society.  It simply was not done.”

The employer also failed to prove that the absenteeism, relationship issues and cell phone use justified the dismissal.

This case illustrates the importance of clear communication of safety rules where the employer wishes to discipline or dismiss the employee for a violation of those rules.

Goncharova v. Marsh Lake Waste Society, 2015 YKSM 4 (CanLII)

Employer loses wrongful dismissal case after court finds safety rules unclear

Despite employee’s concerns with speed, quality and outcome of harassment investigation, no reprisal under OHSA

Even though an employer’s harassment investigation was allegedly slow, inadequate and had a questionable outcome, the employee had not suffered a “reprisal” under the Ontario Occupational Health and Safety Act, the Ontario Labour Relations Board has held.

The Employee alleged that another employee had harassed her.  She filed a harassment complaint with the employer. The employer investigated and actually found that her complaint was substantiated.

The employee was still unhappy. She filed a reprisal complaint with the OLRB, alleging that the investigation took too long and was of poor quality, and that the outcome was not appropriate (she said that the employer has not done enough to protect her from the harasser – she had asked the employer to guarantee that she would never work with him again – and she wanted more serious discipline imposed on the harasser).

The OLRB decided that the employer’s actions, if true, did not meet the definition of reprisal under the OHSA.  The employee did not claim that she was disciplined, dismissed or threatened for claiming the protection of the OHSA.  Nor did she plead any facts that could lead the OLRB to conclude that the employer has penalized, intimidated or coerced her for seeking to enforce the OHSA.

The OLRB stated:

While Ms. Pouli is not happy with the conduct of the investigation and, to a certain extent, its outcome, her dissatisfaction with the process and the discipline (or lack thereof) ultimately imposed upon the Co-worker do not constitute reprisals under the Act . . . [T]he instant case can be summarized as follows: The Employer has a Policy pursuant to which Ms. Pouli filed a Complaint, which was investigated but Ms. Pouli is not happy with the investigatory process and certain aspects of the results.  This set of facts simply does not engage section 50 of the Act.”

This case illustrates the principle that under the OHSA, most harassment issues are to be dealt with and resolved internally within the employer’s organization.  Given the structure of the harassment provisions of the OHSA, in only exceptional cases will the OLRB or the Ontario Ministry of Labour get involved with the conduct or even the outcome of harassment investigations.

Camille Pouli v Ministry of Community Safety and Correctional Services, 2016 CanLII 48460 (ON LRB)

Despite employee’s concerns with speed, quality and outcome of harassment investigation, no reprisal under OHSA

Bartender, fired for smoking marijuana at work, loses human rights complaint

A B.C. bartender has lost his human rights complaint after he was dismissed for smoking marijuana on shift.

The bartender also served as assistant manager of the restaurant.  The employer had a policy that prohibited consumption of drugs or alcohol while on shift.  The policy was meant to ensure that employees – including bartenders, who monitored customers’ consumption of alcohol – did not themselves become intoxicated.

The bartender’s job was described, in the decision, as “serving alcohol to customers, monitoring their consumption of alcohol, their demeanor and their conduct to ensure that the employer abides by its legal obligations under the Liquor Control and Distribution Act, the Occupational Health and Safety Regulations, the Occupiers’ Liability Act, and its common law duty of care to ensure that its employees and customers do not create harm to themselves or others.”

After being caught smoking marijuana, the employee claimed that he used it for a a”chronic pain condition”.  He filed a complaint with the B.C. Human Rights Tribunal against his employer, the executive chef and general manager, and the restaurant owners, claiming that his dismissal was discriminatory because of his “disability”.

The B.C. Human Rights Tribunal concluded that there was no evidence that the employer was aware that the bartender’s marijuana use was related to physical disability.  Therefore, the employee had not proven that there was a connection between his disability and his termination.  As such, his human rights complaint was dismissed.

Burton v. Tugboat Annie’s Pub and others, 2016 BCHRT 78 (CanLII)

Bartender, fired for smoking marijuana at work, loses human rights complaint

Unauthorized supervisor decided to “solve the problem himself”, caused accident – OHSA charges against company dismissed

An employer has beat occupational health and safety charges laid after its supervisor caused an explosion when he defied instructions and took it upon himself to use a torch to thaw ice that had accumulated in a culvert.

In a production meeting, the supervisor raised the issue of the ice accumulation in a culvert under the plant service road. He said he was worried that water would flow over the road and prevent access to a cooling tower at a power generation plant operated by the employer. The acting production manager told him not to address the problem because it would be a waste of time as the ice would melt on its own, and the road had not washed out in the six years that the production manager had worked there.

The supervisor defied instructions and used a “tiger torch” to try to melt the ice, placing the torch in the culvert. The torch went out and gas accumulated in the culvert. When another worker, directed by the supervisor, went to check on the torch, and tried to light the torch again, there was an explosion. The worker sustained burns to his face, hand, fingers and arm.

The employer was charged with four offences under Saskatchewan’s The Occupational Health and Safety Act including inadequate training.

The court decided that the supervisor and the injured worker had the training necessary in order to avoid the accident. The supervisor had attended a four-day “supervisory essentials” course. The court was satisfied that the company provided the supervisor with “everything he needed to know to prevent the accident”. Also, he had been told not to address the culvert task. Had he been directed to address it, he would have required a work order that would have led to the preparation of a safety and risk hazard form and an application for a hot work permit.  Further, the employer could not reasonably have foreseen the supervisor’s use of the tiger torch or that he would enlist the other worker to assist him.

In conclusion, the court held that the company had taken reasonable care to ensure that the worker and supervisor were properly trained to avoid the accident.   The charges were dismissed.

R v Saskatchewan Power Corporation, 2016 SKPC 2 (CanLII)

Unauthorized supervisor decided to “solve the problem himself”, caused accident – OHSA charges against company dismissed

Fired employee’s Facebook post calling company “s—hole” showed dismissal for workplace outbursts, threat was indeed appropriate

An employee who yelled and swore at a manager about a written test for a maintenance position, and a few days later took a gun out of a box in the company parking lot and “pumped it”, was fired for cause, an arbitrator has decided.  The employee, who already had a lengthy discipline record, also told the human resources manager that he would “regret his actions” and that the employee’s brother” knows” the HR manager, which the arbitrator in the employee’s dismissal grievance found was a veiled threat.

The employee said that the gun, which resembled an assault rifle, was an “airsoft” gun, and that he simply opened the gun box to look at it. He admitted later that it was not a good idea to have done that.

The arbitrator said that the employee’s confrontations with the managers, taken alone, might not have justified dismissal, even though they were very serious in light of Ontario’s Bill 168 which introduced harassment and violence provisions to the Occupational Health and Safety Act in 2010.

However, the employee’s Facebook post after his dismissal showed that he was not willing to take any responsibility for his actions nor show a willingness to avoid outbursts in the future.  The Facebook post described the workplace as a “s—hole” and said that he felt sorry for employees who still had to work “in a place with so much negativity”. He also wrote that since he was “caned” [sic] he no longer had to “concentrate on all the bull[—-] I put up with at that place for 10 years”.

In conclusion, the arbitrator decided that given the employee’s already lengthy disciplinary record and his continuing negative feelings towards the human resources manager and company, as shown by his Facebook post, dismissal was appropriate.

Service Employees’ International Union, Local 1 Canada v Specialty Care Trillium Centre, 2016 CanLII 23212 (ON LA)

Fired employee’s Facebook post calling company “s—hole” showed dismissal for workplace outbursts, threat was indeed appropriate

Delay in OHSA prosecution was not unreasonable: charges not stayed

Even though the case took more than two years to get to trial, an Ontario court has refused to halt a prosecution of a company under the Occupational Health and Safety Act.

Charges were laid against a construction company in January, 2014 after a worker fell nine feet when a ladder slipped. The charges alleged that the company failed to ensure that the ladder was tied down or otherwise secured to prevent slipping.

There were nine court appearances, and a trial was scheduled for January, 2016.  The company, relying on the Canadian Charter of Rights and Freedoms, asked the court to order a stay (similar to a dismissal) of the OHSA charges due to the delay in getting to trial.

The court stated that the “defence was content with the pace of proceedings” and that the company had not provided any evidence that it had suffered “irremediable prejudice” because of the delay.  For instance, there was no evidence that any witness’s recollection had been significantly impaired.  Further, late disclosure of one document had not caused prejudice because the document (disclosed one month before trial) was “of marginal value” as it repeated the Ministry of Labour investigator’s conclusions.  Further, both the defence and the Crown had been responsible for some of the delay in getting to trial.

The court stated that, “A stay is a remedy of last resort. There is a societal interest in having the charges heard on the merits.”  The charges should proceed to trial.

The decision was handed down before the Supreme Court of Canada released its recent, ground-breaking decision on delay in R. v. Jordan, 2016 SCC 27 (CanLII).  It remains to be seen how the new Jordan framework for dealing with delay will be applied in OHSA cases involving corporate defendants.

R. v. Black and McDonald Limited, 2016 ONCJ 345 (CanLII)

Delay in OHSA prosecution was not unreasonable: charges not stayed

Court throws out MOL evidence due to late disclosure, notice in OHSA prosecution

An Ontario judge has thrown out laser scan evidence due to the Ontario Ministry of Labour’s late disclosure and late notice to defence counsel that the MOL intended to present that evidence in court.

A construction company was charged with three counts under the Ontario Occupational Health and Safety Act after a fatal accident involving the collapse of a drill rig that it operated.  The laser scan evidence purported to show the slope of ground where the rig collapsed.

The trial started in July 2014 and a number of witnesses were called by the prosecution.  Before the trial resumed a few months later, the prosecutor told defence counsel that he intended to call a police sergeant as a witness to present and testify about the laser scan. The defence demanded the “raw data” in relation to the laser scan but was told that the sergeant had overwritten it when the laser scanner consolidated the original raw data.

The defence brought an application asking that the charges be stayed (effectively dismissed).  The court held that the late disclosure and late notice to the defence meant that five days of evidence had been called at trial before the defence knew “the full case that it had to meet”.  This was not fair to the company.  Although the prosecution had not acted in bad faith, its decision to change its mind and call the laser scan evidence infringed the company’s right to make a full defence.

The court decided that the proper remedy was to prohibit the MOL from presenting the laser scan evidence.  Given that the MOL’s conduct had not been egregious, and the reliability of the laser scan evidence was not great in any event, it was not appropriate to stay the charges.

Ontario (Ministry of Labour) v. Advanced Construction Techniques Ltd., 2016 ONCJ 392 (CanLII)

Court throws out MOL evidence due to late disclosure, notice in OHSA prosecution

Federal employers not required to inspect workplaces that they don’t control: court

The Federal Court has decided that federally-regulated employers are not required to conduct inspections of places not under their control where their employees work.   The decision will be a relief to federal employers whose employees regularly work away from the employer’s office.

The court rejected letter carriers’ claim that Canada Post was required to ensure that inspections were conducted of public areas including the letter carriers’ routes.

The provision in issue was section section 125(1)(z.12) of the Canada Labour Code which provides:

125. (1) Without restricting the generality of section 124, every employer shall, in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls the activity,

. . .

(z.12) ensure that the work place committee or the health and safety representative inspects each month all or part of the work place, so that every part of the work place is inspected at least once each year;

The Court decided that that provision required inspections of only workplaces actually controlled by the employer – not workplaces, such as letter routes, that are not under the employer’s control.  The Court upheld a federal Appeals Officer’s decision stating that employers cannot be required to inspect workplaces over which they have no control and thus no opportunity to fix hazards identified in the inspection.

The Court concluded:

“The Appeals Officer recognized that Parliament intended to give the broadest possible protection to employees including to those performing work in a place which the employer may not control. In my view the Appeals Officer’s interpretation of subsection 125(1) and paragraph 125(1)(z.12) demonstrates sensitivity to preserving the broad nature of the employer’s obligations to ensure the health and safety of its employees without placing obligations upon the employer that the latter would be unable to fulfill.”

Canadian Union of Postal Workers v. Canada Post Corporation, 2016 FC 252 (CanLII)

Federal employers not required to inspect workplaces that they don’t control: court

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