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MOL Clarifies its Interpretation of “Critical Injury”

The Ontario Occupational Health and Safety Act requires employers to report fatalities and “critical injuries” to the Ontario Ministry of Labour.

The Ministry of Labour has recently released clarification on its interpretation of “critical injury” – in particular, clauses 1(d) and (e) of the definition of “critical injury”.   It is important to note that this is not an amendment to the definition of “critical injury”; rather, it is an update to the Ministry of Labour’s internal interpretation, which interpretation courts do not have to accept.

Section 1 of Ontario Regulation 834 under the OHSA defines “Critical Injury” as an injury of a serious nature that,

(a) places life in jeopardy,
(b) produces unconsciousness,
(c) results in substantial loss of blood,
(d) involves the fracture of a leg or arm but not a finger or toe,
(e) involves the amputation of a leg, arm, hand or foot but not a finger or toe,
(f) consists of burns to a major portion of the body, or
(g) causes the loss of sight in an eye.

Clause 1(d) states that a “critical injury” includes the fracture of a leg or arm but not a finger or toe.  The Ministry of Labour has clarified that it interprets the fracture of a leg or an arm to include the fracture of a wrist, hand, ankle or foot.  In addition, while clause 1(d) excludes the fracture of a finger or a toe, the Ministry of Labour takes the position that the fracture of more than one finger or more than one toe does constitute a “critical injury” if it is an injury of a serious nature.

Clause 1(e) provides that a “critical injury” includes the amputation of a leg, arm, hand or foot but not a finger or toe.  While the amputation of a single finger or single toe does not constitute a critical injury, the Ministry of Labour interprets the amputation of more than one finger or more than one toe to constitute a “critical injury” if it is an injury of a serious nature.

Notwithstanding the fact that the Ministry of Labour’s interpretation of “critical injury” is just that – the Ministry’s interpretation, not the law – employers should be aware of the Ministry’s interpretation in order to avoid a failure-to-report charge under the OHSA.

The Ministry of Labour’s update can be found here.

MOL Clarifies its Interpretation of “Critical Injury”

Appeal Court Revives Class Action against the WSIB

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

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

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

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

The decision of Court of Appeal may be accessed here.

Appeal Court Revives Class Action against the WSIB

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

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

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

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

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

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

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

GHS Update: Government of Canada introduces new regulations for protection for workers handling hazardous materials

The Government of Canada has announced that new Occupational Health and Safety regulations under the Canada Labour Code, which are intended to better protect federally regulated workers who use, handle and store hazardous products in the workplace, will be published in Part II of the Canada Gazette.

As we have written about in our previous blog posts, these amendments are part of a national and international initiative to implement the “Globally Harmonized System of Classification and Labeling of Chemicals”, known as “GHS”, which is a worldwide standard of communicating the hazards associated with workplace hazardous chemicals. The Government notes that, in addition to Canada, the United States, Australia, the European Union, and China, among others, are already in the process of implementing the GHS.  Applying an international standard for workplace hazardous chemicals will streamline hazard information among suppliers from many of Canada’s trading partners, which will, among other things, facilitate trade and reduce compliance costs associated with shipment of products across borders.

The Government also notes that the creation of an international standard for the classification and labelling of hazardous workplace chemicals will serve to increase the health and safety of workers in Canada while also improving their overall health and safety of workers by providing clear and consistent information on how to safely use hazardous materials in the workplace.

The amendments are contained in the following 5 Occupational Health and Safety regulations under Part II of the Canada Labour Code:

For the Government of Canada’s announcement, click here.

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GHS Update: Government of Canada introduces new regulations for protection for workers handling hazardous materials

After Co-Worker Washes Feet With Vinegar In Cubicle and Makes Threatening Statement, Employee Entitled to Transfer to Different Building

A Quality and Service Manager working for the Parole Board of Canada is entitled to work in an entirely different building from a co-worker – identified only as “Mr. X” – because she suffered from stress caused by Mr. X’s behaviour, a grievance adjudicator has held.

In 2009, Mr. X was moved to the cubicle next to the worker’s office. The worker alleged that Mr. X constantly distracted her during the workday by loudly unpacking his bag in the morning, eating strong smelling leftovers, walking barefoot in the office, making loud guttural noises, passing gas, swearing, and washing his feet with vinegar in his cubicle. The worker also testified that on one occasion when she was on the telephone, Mr. X was making so much noise that she stood up and hit their common wall to get him to stop. Mr. X then entered her office and said “What is your problem?… there is a line on the floor and do not cross that line because I do not know what will happen…”.

The worker testified that she complained to her supervisor, and asked that one of them be moved. The employer offered mediation as a method of resolving the conflict between the two workers, but the worker refused. The worker moved offices a few months later but she was still bothered by Mr. X’s behaviour when he passed by her new office location.

Despite the worker’s office move, 8 months later, Mr. X filed a harassment complaint against her, which included allegations that she called him a pig. To read the National Post’s article on Mr. X’s harassment complaint, click here.

Once the worker learned of the harassment complaint against her, she filed a harassment complaint against Mr. X and went on sick leave from September 2011 until March 2013. During that time, the employer offered the worker the accommodation of an office on a floor that Mr. X could not access. The worker refused, claiming there was a risk that Mr. X could access the floor by riding in an elevator with someone who did have access.

In or around April 2012, the worker filed a grievance against her employer, alleging that it did not comply with its duty to accommodate because she had medical notes stating she was fit for work, but not at the building in which Mr. X worked, and she did not receive an offer of accommodation that met her medical requirements.

The worker went on secondment in March 2013 for one year (in another building), at the end of which she was supposed to return to her position with her employer in the same building as Mr. X. The worker refused to return to work because, according to her, the corrective measures sought in her grievance (teleworking or working in a different building) had not been granted.

At the hearing, the worker tried to show that Mr. X’s abusive behaviour caused her emotional stress that affected her memory and her capacity to concentrate, and that she did not feel safe working in the same building as him. The Adjudicator considered whether the employer’s proposal to move her to another floor constituted a reasonable accommodation. The Adjudicator found that, in light of the testimony of the employee’s doctor that she had a real and genuine fear and that her medical condition would not improve if she returned to the workplace, even on a different floor, the employer’s proposed accommodation was not reasonable. Further, the Adjudicator found that the employer did not satisfy her that it was absolutely necessary for the worker return to that workplace.

The Adjudicator ordered the employer to move the worker to a different building, and to compensate her for the wages and benefits she lost during her sick leave.

Emond v. Treasury Board (Parole Board of Canada), 2016 PSLREB 4 (CanLII)

After Co-Worker Washes Feet With Vinegar In Cubicle and Makes Threatening Statement, Employee Entitled to Transfer to Different Building

New Training and Safety Requirements for Drill Rig Operators in Ontario

The Ontario government has passed amendments under the Occupational Health and Safety Act which provide new technical and operational safety measures and procedures for rotary foundation drill rigs, and require that drill rig operators be trained and certified.

The amendments containing the new drill rig requirements, which have been passed in regulation, will come into effect on July 1, 2016 to allow time for the construction industry to comply.

The Ministry of Labour states in its press release that rotary foundation drill rigs are used for boring holes in soil in order to install foundations or earth retention structures.

Ontario is the only jurisdiction in Canada to implement explicit training requirements for drill rig operators in its health and safety legislation. The Ministry states in its press release that these changes are intended to build on actions that the province is already taking to improve safety for construction workers, including the Working at Heights Training requirements (read our article about this training here). The Ministry says that Ontario’s construction industry has traditionally experienced higher rates of workplace injuries and fatalities than other workplace sectors, and that there were 200 critical injuries in construction last year and 21 fatalities.

The Ministry of Labour’s press release announcing the changes can be found here.

New Training and Safety Requirements for Drill Rig Operators in Ontario

Sexist Comments in Blog Post by Union President not Discrimination “With Respect to Employment”

In Taylor-Baptiste v. Ontario Public Service Employees Union, the Ontario Court of Appeal was faced with the question of whether sexist and offensive posts on a blog created by a union member to discuss workplace issues amounted to discrimination “with respect to employment” contrary to s. 5(1) of the Human Rights Code (the “Code”).

The appellant, Mariann Taylor-Baptiste and the individual respondent, Jeff Dvorak, both worked at the Toronto Jail. Ms. Taylor-Baptiste was Mr. Dvorak’s manager, and Mr. Dvorak was the president of the jail’s local branch of the respondent union, the Ontario Public Service Employees Union (“OPSEU”). Mr. Dvorak operated a blog about union matters. During a period of labour unrest in early 2009, Mr. Dvorak authored a blog post, and approved the posting of a comment written by another worker, that accused Ms. Taylor-Baptiste of, among other things, nepotism (suggesting she only obtained her position because of her relationship with her boyfriend) and incompetence. Ms. Taylor-Baptiste brought an application to the Human Rights Tribunal (the “Tribunal”), alleging discrimination “with respect to employment” contrary to s. 5(1) of the Code and harassment “in the workplace” contrary to s. 5(2) of the Code.

The Tribunal found that although postings on blogs can form part of or an extension of the workplace and the postings were sexist and offensive, these particular blog posts did not amount to harassment “in the workplace” contrary to s. 5(2) of the Code. This finding was not challenged on appeal to the Court of Appeal. With respect to the allegation of discrimination “with respect to employment”, the Tribunal considered that the comments were made by Mr. Dvorak “in the course of his duties as a … union president”, and therefore his comments enjoyed the protection of the rights of freedom of expression and freedom of association guaranteed by ss. 2(b) and (d) of the Canadian Charter of Rights and Freedom (the “Charter”). As a result, the Tribunal found that the blog posts did not contravene either section of the Code. At the request of Ms. Taylor-Baptiste, the Tribunal reconsidered its decision and upheld the initial decision.

The Divisional Court dismissed Ms. Taylor-Baptiste’s application for judicial review, holding that the Tribunal’s decision was reasonable.

Ms. Taylor-Baptiste appealed to the Court of Appeal. The Court of Appeal considered whether the Divisional Court properly applied the reasonableness standard to the Tribunal’s decision that the blog posts did not infringe her right to equal treatment “with respect to employment” without discrimination under s. 5(1) of the Code.

The Court of Appeal found that the Tribunal was entitled to take into account Charter values within its scope of expertise, and that interpreting the meaning of the words “with respect to employment” in s. 5(1) of the Code fell within the very core of the Tribunal’s expertise. The Court of Appeal also found that the Tribunal properly identified freedom of expression and freedom of association as relevant Charter rights in regard to the circumstances of this case. Section 2(b) of the Charter (freedom of expression) protects a broad range of expressive activity, including “distasteful” expression, so long as it does not reach the point of violent expression or is not, for example, hate speech. Freedom of association, on the other hand, was relevant because the blog posts dealt with union-management relations and were related to union issues, notwithstanding the sexist language. [In fact, the Supreme Court has held that expressive activity in the labour context is directly related to the Charter-protected right of workers to associate to further workplace goals under s. 2(d) of the Charter.]

The Court of Appeal then considered whether the Tribunal properly balanced the relevant Charter values with the objective of the Code. The Court of Appeal found that the Tribunal appropriately balanced the statutory objective of protecting of Ms. Taylor-Baptiste from a poisoned work environment against the Charter rights of freedom of expression and freedom of association. Based on the foregoing reasons, the Court of Appeal concluded that the Tribunal’s decision was reasonable, and upheld the dismissal of Ms. Taylor-Baptiste’s Application.

The implications of this decision remain to be seen, but it is important to note that the Court of Appeal was careful to state that its decision applied only to the facts at hand, and that it was not creating a “blanket exemption” protecting all forms of union speech from the requirements of s. 5 of the Code.

 

Human Rights Tribunal of Ontario: Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 HRTO 1393 (CanLII).

Human Rights Tribunal of Ontario (Reconsideration Decision): Taylor-Baptiste v. Ontario Public Service Employees Union, 2013 HRTO 180 (CanLII).

Divisional Court: Taylor-Baptiste v. O.P.S.E.U., 2014 ONSC 2169 (CanLII).

Court of Appeal: Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495 (CanLII).

 

This article originally appeared on the Dentons blog, employmentandlabour.com.

Sexist Comments in Blog Post by Union President not Discrimination “With Respect to Employment”

April 1, 2015: New Working at Heights Training Requirements on Construction Projects

Falls from heights are one of the leading causes of critical injuries and fatalities in Ontario workplaces according to the Ministry of Labour. As a result, beginning April 1, 2015, employers in Ontario must ensure that workers on construction projects who are required to use certain methods of fall protection complete an approved Working at Heights training program.

The Occupational Health and Safety Awareness and Training Regulation (O. Reg 297/13) (see our previous posts here) has been amended to provide for mandatory Working at Heights training. These amendments come into force April 1, 2015.

However, there is a two-year transition period for certain workers: the Working at Heights training requirements do not apply until April 1, 2017 in respect of a worker who has completed training that meets the requirements of the Construction Projects Regulation (section 26.2 of O. Reg. 213/91) before April 1, 2015. If a worker has not been adequately trained in the use of fall protection systems before April 1, 2015, then the training requirements apply as of April 1, 2015.

Who Must be Trained?

The Working at Heights training requirements apply to workers on construction projects who are required under the Construction Projects Regulation to use any of the following methods of fall protection:

  • A travel restraint system;
  • A fall restricting system;
  • A fall arrest system;
  • A safety net;
  • A work belt; or
  • A safety belt.

The Working at Heights training requirements apply in addition to the existing training requirements under the Construction Projects Regulation with respect to fall protection systems. The fall protection systems training under the Construction Projects Regulation requires, among other things, that a worker who may use a fall protection system is adequately trained in its use and given adequate oral and written instructions by a competent person.

Workers who work at heights and use fall protection systems at workplaces not covered by the Construction Projects Regulation do not have to complete the Working at Heights training at this time.

What Will the Training Cover?

The Chief Prevention Officer (CPO) has established Working at Heights training standards for training programs and for training providers.

The Working at Heights Training Program Standard contains the required information that must be included in a CPO-approved training program. Specifically, the Working at Heights training program will consist of two modules:

  • Module 1: Working at Heights Basic Theory – covers foundational elements on how to work safely at heights. It must be at least three hours long.
  • Module 2: Working at Heights Practical – provides more advanced information on fall protection systems and includes hands-on demonstration of equipment and procedures. It must be at least three and a half hours long.

The Working at Heights Training Provider Standard outlines the requirements for training providers seeking approval by the CPO to deliver an approved training program.

What are the Responsibilities of an Employer?

In respect of a worker who may use one of the methods of fall protection listed above, employers are required to ensure the following:

1. workers have successfully completed a Working at Heights training program that is approved by the CPO as meeting the Working at Heights Training Program Standard that applied at the time of the training

2. the training provider is approved by the CPO as meeting the Working at Heights Training Provider Standard that applied at the time of the training

3. the validity period of a worker’s training has not expired

4. a record of the Working at Heights training is maintained and includes the following information:

  • the name of the worker
  • the name of the approved training provider
  • the date on which the approved training was successfully completed
  • the name of the approved training program that was successfully completed

5. the record of training is available to a Ministry of Labour inspector on request

What is Required in a Record of Training and How do Workers Get It?

According to the Ministry of Labour, an approved training provider is required to provide a worker with proof of training upon successful completion of the training program.

The approved training provider must also notify the CPO of a worker’s successful completion of an approved Working at Heights training program. Upon receipt of such notification, the CPO will issue a wallet-sized proof of training card to the worker. A copy of a worker’s proof of training card issued by the CPO is considered a training record.

The Ministry of Labour will keep a secure, centralized database of all workers who successfully completed the training (collected by the CPO under the authority of the OHSA).  Workers and current or potential employers (with the worker’s consent) will be able to access information about a worker’s successful completion of a Working at Heights training program.

For How Long is the Training Valid?

The training is valid for three years from the date of successful completion of the training program. According to the Ministry of Labour’s “Frequently Asked Questions”, once a worker’s training is no longer valid, the worker can take an approved half-day “refresher” training program (which covers the contents of Module 2) to renew the validity of his or her training.

A worker does not need to retake the Working at Heights training if the worker changes employers during the three-year validity period. An employer should request that new employees provide proof of completion upon hiring.

How Can an Employer Find a CPO-Approved Provider?

The Ministry of Labour website lists CPO-approved Working at Heights training providers and programs, as well as the dates on which they were approved. At the time of writing, there are seven CPO-approved providers listed on the website.

If an employer wishes to deliver “in-house” training to its workers, it must seek CPO approval to become a training provider. More information on the provider application can be found here.

What are the Potential Consequences if an Employer does not Comply?

A Ministry of Labour inspector may request that an employer provide copies of records of Working at Heights training for its workers, or a worker provide a copy of his or her CPO-issued proof of training.  If an employer has not complied with the mandatory Working at Heights training requirements, an inspector may take enforcement action, including issuing orders requiring an employer to comply, issuing a stop work order where an imminent hazard exists, or prosecuting an employer under the Provincial Offences Act, where appropriate.

Keep checking www.occupationalhealthandsafetylaw.com for further updates on this topic.

April 1, 2015: New Working at Heights Training Requirements on Construction Projects

Ontario Ministry of Labour Inspector Charged with Extortion

According to a Toronto Police news release, on October 21, 2014, a Ministry of Labour Inspector was arrested and charged with breach of trust, accepting a benefit from a person having dealings with government, and extortion, after he allegedly requested money from the owner of a business after a safety audit revealed the business did not comply with certain provincial standards.

Toronto Police state that the investigation began on June 25, 2014 when they received a call for a Fraud in the Markham Road and McNicoll Avenue area. The owner of the business alleged that a Ministry of Labour inspector conducted a safety audit and found a number of items that were not in compliance with provincial standards. The inspector left the owners to fix the issues; however, it is alleged that he returned to the business and made an improper request for money from the owner.

Joseph Ah-Hone, 55, is scheduled to appear in court on December 4, 2014.

By way of the Toronto Police news release, the Ontario Ministry of Labour reminded the public that inspectors are trained in legislation, policy and procedures and technical requirements, and adhere to a code of professionalism. As public servants, inspectors are forbidden from accepting money or commissions for any of their services.  Police say there may be other victims.

Click here to read the Toronto Police news release.

Ontario Ministry of Labour Inspector Charged with Extortion

Ontario Government Responds to Early Results of Mine Safety Review

The Ontario government says that it is acting on the early results of the Mining Sector Health, Safety and Prevention Review.

In December 2013, the province asked Ontario’s Chief Prevention Officer to undertake a review of the occupational health and safety issues related to the mining sector, focusing first on underground mines.  The review involves consultation with labour, industry, academic, health and safety experts, as well as members of the public.

According to the Ministry of Labour Press release, Ontario’s response to the preliminary work of the advisory group includes the following:

  • Promoting high visibility apparel to increase the visibility of workers;
  • Developing a mining health database that will track incidents of illness, exposure to a number of carcinogenic substances;
  • Increasing the focus on hazards in the new training standards for joint health and safety committees; and
  • Funding a study to be completed by Laurentian University that will look for ways to reduce loss of feeling in the feet triggered by continuous use of vibrating machinery, which is said to put workers at greater risk for slip and fall injuries, especially on high work platforms.

The government says that it expects the review to conclude in early 2015 with a report and recommendations.

The Ministry of Labour’s press release can be found here.

Ontario Government Responds to Early Results of Mine Safety Review

No OHSA Charges Laid in Death of Alberta Youth Home Worker

A 19-year-old has pleaded guilty to second-degree murder after he stabbed to death a youth worker at a supported independent living facility in Alberta in 2012.  At the time of her death, the worker was working alone overnight.  The boy was a resident of the home, which taught life skills to teens.

The Canadian Press reports that although Alberta Occupational Health and Safety investigated the death and provided the results of its investigation to the Crown, the Crown did not pursue any charges under the Occupational Health and Safety Act (see Teen who stabbed Alberta youth home worker pleads guilty to second degree murder).

According to the Edmonton Journal, the worker’s family has launched a lawsuit against the Government of Alberta in which they allege that her employer “failed to meet the standards of the Occupational Health and Safety Act and ‘intentionally, recklessly and negligently’ failed to make sure” that the worker was safe at work (see Family of slain Camrose caregiver sues Alberta government).

No OHSA Charges Laid in Death of Alberta Youth Home Worker

Saskatchewan Introduces Ticketing System for Certain Workplace Safety Violations

As of July 1, 2014, Saskatchewan employers who violate certain occupational health and safety laws may be issued a Summary Offence Ticket, which carry fines ranging from $250 to $1,000, depending on the offence (plus victim surcharges).

According to the Saskatchewan Ministry of Labour Relations and Workplace Safety, these tickets are intended to avoid time-consuming and costly prosecutions, while serving as a deterrent to those who are non-compliant with occupational health and safety laws in Saskatchewan workplaces.

Two designated Occupational Health Officers will be issuing tickets for the 12 ticketable offences, which include failing to ensure that workers use personal protective equipment ($1,000); failing to ensure that workers use a fall protection system where a worker may fall three metres or more ($1,000); failing to submit a written progress report ($600); and failing to ensure that any opening or hole is covered and clearly marked or otherwise protected ($1,000).

It is likely that most tickets will be issued to employers, contractors, owners, self-employed persons and suppliers.  There is one offence that applies to workers: clear failure to use personal protective equipment that has been provided by the employer ($250). However, a worker will be ticketed only after the officer determines that the employer provided the worker with the correct PPE, adequately trained the worker on its use, and the worker disobeyed clear direction to use the PPE.

These safety tickets are like speeding tickets – they will typically be issued either on the spot or sent by mail after an officer has assessed the situation and facts on the ground.  Further, everyone who receives a ticket has the right to challenge it in court.

The government indicates that before issuing tickets, officers will assess the severity of the situation and will first try to use other tools, including Compliance Undertakings, Officer’s Reports, Notices of Contravention and Stop Work Orders.  Further, tickets will only be issued where all other avenues to ensure compliance with health and safety in the workplace have been exhausted or are ineffective.

The Saskatchewan Ministry of Labour Relations and Workplace Safety has prepared an overview of Summary Offence Ticketing.

Saskatchewan Introduces Ticketing System for Certain Workplace Safety Violations

Farm workers denied Coroner’s inquest: greater risk of fatality in mining and construction industries, HRTO decides

The Human Rights Tribunal of Ontario has decided that it was not discriminatory for the Coroner’s Act to require mandatory inquests in construction and mining deaths, but not in farm deaths.

Ned Peart, a migrant farm worker from Jamaica who came to Canada under the Seasonal Agricultural Workers Program (“SAWP”), was crushed to death by a 1,000-pound tobacco bin that fell from a steel bin lift. No inquest was held into Mr. Peart’s death, despite requests to the Office of the Chief Coroner by both migrant farm worker advocates and the labour movement that consideration be given to the plight of migrant farm workers.

In 2005, Mr. Peart’s brother filed a complaint with the Ontario Human Rights Commission, alleging that s. 10(5) of the Coroners Act discriminates against migrant farm workers in Ontario, and specifically those employed under SAWP, on the basis that it denies them the benefit of a mandatory inquest into workplace deaths, which currently is extended to workers in the mining and construction industries.  

The Human Rights Tribunal of Ontario found that SAWP workers are at a significantly lower risk of traumatic workplace fatality than those in the mining and construction industries.  In addition, the evidence revealed that there is much greater variance in the mechanisms and circumstances that result in accidental workplace deaths in the mining and construction industries than in the agriculture industry.  In fact, 41% of all fatalities in the agriculture industry result from tractor roll-overs and tractor run-overs.  The Tribunal concluded that the greater variance of accidental deaths in the mining and construction industries makes it more likely that useful inquest recommendations will result from these mandatory inquests than if inquests were required for all workplace deaths in agriculture.  

Therefore, the Tribunal held that the focus in s. 10(5) of the Coroners Act on persons employed in the mining and construction industries is a recognition of the greater degree of risk of traumatic workplace fatalities that these groups face.  Notwithstanding the vulnerabilities experienced by SAWP workers, the Tribunal ruled that their exclusion from the mandatory inquest requirement under s. 10(5) of the Coroners Act does not result in substantive inequality for this group when taking into account the purposes and context of this provision.

Peart v. Ontario (Community Safety and Correctional Services), 2014 HRTO 611 (CanLII)

Farm workers denied Coroner’s inquest: greater risk of fatality in mining and construction industries, HRTO decides

Canada Day deadline: Less than One Month to Complete Safety Awareness Training

Employers have less than one month to ensure that their workers and supervisors complete the mandatory “basic occupational health and safety awareness training” by July 1, 2014.

This training is mandatory for all workers and supervisors whose workplace is covered by the Occupational Health and Safety Act, regardless of industry.

For many employers, the simplest way to comply is to have your workers and supervisors complete the Ministry of Labour’s free e-learning module, print the certificate of completion, and provide the certificate to you before July 1st.

Employers can also offer in-person training programs that are tailored to the specific requirements of their workplace, as long as the training meets the minimum content requirements set out in the regulation.  If employers are providing in-person training, it may be wise to have the presenter, throughout the presentation, refer employees to the corresponding material in the Ministry of Labour workbooks, in order to ensure that all of the required material is covered.

As mentioned in our February 25, 2014 article, a Ministry of Labour inspector has advised us that, immediately after July 1st, inspectors will likely issue a reminder to employers who have not conducted the training by the deadline.  Employers who continue to be non-compliant with the regulation will likely receive a compliance order, and in cases of ongoing failure, could be charged and fined.

If you require additional information on how to comply with this new regulation, see:

  • our February 25, 2014 article, which sets out “what you need to do” to comply with this new requirement;
  • our April 3, 2014 article, which provides various strategies for employers as to how to provide this training; and
  • our May 1, 2014 article, which discusses who has to take this training and how employers can continue to ensure that they are compliant with the training requirements after July 1, 2014.

We are available to assist employers with complying with this new obligation – by the Canada Day deadline.

Keep checking www.occupationalhealthandsafetylaw.com for further updates on this topic, or contact Adrian Miedema or Chelsea Rasmussen.

Canada Day deadline: Less than One Month to Complete Safety Awareness Training

Two months until July 1 safety awareness training deadline: will you be compliant?

The July 1, 2014 deadline is quickly approaching.  Employers in Ontario have two months to ensure that their workers and supervisors complete “basic occupational health and safety awareness training” before the deadline.

Our February 25, 2014 article set out “what you need to do” to comply with this new requirement.  Our April 3, 2014 article set out various strategies for employers as to how to provide this training.

In this article, we will provide updates and address a number of questions that have recently arisen, including who has to take this training and how employers can continue to ensure that they are compliant with the requirements of this Regulation even after their current workforce is trained.

Ministry of Labour Guide to Requirements for Basic Awareness Training

The Ministry of Labour has now released “A Guide to OHSA Requirements for Basic Awareness Training”.  It is fairly brief and worth reading.

Are directors and officers of a company or charity required to take the supervisor training?

The issue of whether directors and officers of a company or charity are considered supervisors is dependent on the particular facts of the situation.  If a director or officer has the responsibilities of a supervisor under the Occupational Health and Safety Act in an Ontario workplace (i.e. the person has charge of a workplace or authority over a worker in Ontario), the Ministry of Labour will likely expect the director or officer to complete the supervisor safety awareness training.  “Authority over a worker” includes, among other things, the ability to promote and discipline workers, schedule work and grant leaves of absence.  If the director or officer is not a “supervisor” under the OHSA, he or she is not required to take the training.

Are volunteers with a charity or not-for-profit organization required to take the training?

Under the OHSA, a worker is defined in part as “a person who performs work or supplies services for monetary compensation”.  As a result, a volunteer is not considered a worker and does not have to take the safety awareness training.  We recommend, however, that if a volunteer is doing work that involves any safety risks, you require him or her to take the safety awareness training.

Must employers verify that temporary employees sent to them by temporary employment agencies have completed safety awareness training?

Yes.  Where a worker is employed by a temporary employment agency and sent to another company to perform temporary work assignments, the temporary employment agency and the company both have safety duties under the OHSA.  While the temporary employment agency is required to provide the training, the company at which the temporary employee is working is required to confirm that the employee has received the training.

Update your checklists and agreements now

Hiring checklists and offer letters:
Ontario employers should update their hiring checklists and offer letters now.  Hiring checklists should include a requirement that a new worker or supervisor provide to the employer proof of having received the safety awareness training.  Going forward, employment offer letters / employment contracts should include a condition that a worker or supervisor has completed or will complete the appropriate safety awareness training.

Contractor and temporary employment agency agreements:
Employers should also include, in their standard-form contractor or temporary employment agency agreements, a requirement that the contractor or temporary employment agency not send to the employer any workers who have not completed the training, and that the contractor or temporary employment agency provide proof that its workers have received the training.  Employers must ensure they have an up-to-date record of safety awareness training for all workers and supervisors who perform work for the employer (which includes workers and supervisors from contractors and temporary employment agencies) in order to demonstrate compliance in the event the Ministry of Labour inspects the workplace.

Keep in mind employees who may require accommodation

Some employees with disabilities, language or literacy issues may require accommodation in order to complete their safety awareness training.  These employees may need additional time, or for the material to be read aloud or clarified.  Some may benefit from the opportunity to ask questions in a one-on-one environment.

The Ministry of Labour currently offers the worker and supervisor workbooks, and accompanying employer guides, in English, French, Traditional Chinese, Simplified Chinese, Hindi, Punjabi, Portuguese, Spanish, and Urdu.  The Ministry of Labour’s e-learning modules are currently available in English and French; however, its website indicates that the e-learning modules will be available in the seven additional languages in Spring 2014.

Please let us know if you would like our assistance in complying with this Regulation, including with slides for face-to-face training and template “proof of completion” certificates for employers to use. 

Keep checking www.occupationalhealthandsafetylaw.com for further updates on this topic, or contact Adrian Miedema or Chelsea Rasmussen.

Two months until July 1 safety awareness training deadline: will you be compliant?