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Lack of remorse results in 4 month jail sentence for supervisor in fatal trench incident

An Alberta judge cited a lack of remorse as a factor warranting a 4 month jail term for a supervisor of a work site. The supervisor, as well as his employer, had been charged with a variety of offences stemming from an incident that occurred in April 2015 where a trench at an infill housing construction site collapsed, fatally injuring a worker. The worker was a casual day labourer who had been working in the trench to install new water and sewer lines. The trench was not braced in any way, contrary to the legislation, and a wall collapsed, trapping the worker inside the trench where he died. The employer pleaded guilty to the charge of failing to ensure the health and safety of a worker and the supervisor pleaded guilty to the charge of failing to take reasonable care to protect the health and safety of another worker.

While a guilty plea will often be considered a mitigating factor, it did not have that effect in this case. The judge found that the employer and the supervisor had exploited a vulnerable worker for profit and put their own interests ahead of safety and the requirements in the regulations. Therefore, the judge found that jail time was appropriate as the supervisor’s culpability was very high.

The employer was sentenced to a fine of $425,000 plus the victim fine surcharge of $63,750. However, the judge noted that the employer was a company without assets and she acknowledged that it was unlikely to pay the fine. Nevertheless, the judge considered it appropriate to issue a large fine in order to have an impact on other corporations who may be motivated to conduct business in a similar manner.

The developer of the worksite had previously pleaded guilty as the prime contractor to the charge of failing to ensure the legislation was complied with on a work site. The developer had agreed to a fine of $111,250 and a $50,000 contribution in the worker’s name to an organization where he had previously accessed services to assist in providing safety training and equipment to day labourers.

This case is a clear example of an increasing trend across Canada where courts are willing to sentence supervisors to jail time for occupational health and safety offences. Jail time sentences are likely to continue to be imposed and, as this case demonstrates, the sentences are likely to become longer.

See here for a list of charges (charged is: Haya Homes Ltd., Sahib Contracting Inc., Sukhwinder Nagra).

Lack of remorse results in 4 month jail sentence for supervisor in fatal trench incident

Employer did not terminate worker’s employment because he had raised safety concerns

After only two months on the job, an equipment operator/driver was terminated by his employer. He believed he had been terminated because he had recently raised several health and safety concerns about a job site. He had been concerned that a waste disposal bin he was required to service was in close proximity to overhead power lines. He alleged that upon telling his employer about his concerns, his employer terminated his employment.

The worker made a complaint to the Occupational Health and Safety (OH&S) Division, claiming that the employer’s conduct constituted discriminatory action against him contrary to the occupational health and safety provisions of the Saskatchewan Employment Act (SEA). OH&S officials investigated the matter and determined that the worker’s complaint of discriminatory action was well-founded. The employer was directed to reinstate the worker and make him whole with respect to lost wages and benefits. The employer appealed. The OH&S Adjudicator allowed the appeal. The worker then appealed that decision to the Labour Relations Board. The Board dismissed the appeal, finding that the Adjudicator’s decision was reasonable.

The Board acknowledged that the worker was entitled to the protections in the SEA notwithstanding that he was still within his probationary period. The key issue before the Board was whether the worker’s termination constituted discriminatory action; in other words, whether or not there was a causal connection between the worker voicing concerns about workplace safety and his termination shortly thereafter. This issue depended on whether or not the worker had advised the employer of his workplace safety concerns prior to the termination meeting. The Adjudicator had considered the evidence and determined that he had not. While he had mentioned it to his route coordinator, she did not have a management role and she had made it clear to the worker that he needed to bring his concerns to the attention of the general manager. Despite numerous opportunities, the worker did not discuss his concerns with his general manager until he was informed that he was being terminated. While the section of the SEA did not explicitly require a worker to advise the employer of safety concerns, the only reasonable interpretation was that a worker did have to notify the employer before being able to lawfully refuse work. The Board determined that the Adjudicator’s conclusion that the worker had failed to notify the employer was reasonable and thus the Adjudicator’s decision that the employer had not violated the SEA was also reasonable.

The Board also found that the Adjudicator’s decision that the employer had good and sufficient other reason to terminate the worker’s employment was reasonable. This related to the Adjudicator’s determination that the employer had established that the worker had been insolent to the general manager, had made inappropriate statements to some of the employer’s customer’s employees, and had been the subject of a customer complaint. The Adjudicator had decided that the employer’s determination, based on these incidents, that the worker was not a fit for the organization was the reason for the termination, not the fact that he had raised safety concerns. The Board found this decision was reasonable. The Board rejected the employer’s request for costs.

Lund v. West Yellowhead Waste Resource Authority Inc. et al., 2017 CanLII 30151 (SK LRB)

Employer did not terminate worker’s employment because he had raised safety concerns

Changes on the horizon for Alberta’s Workers’ Compensation system?

In March 2016, the Government of Alberta launched a formal review of the workers’ compensation system and established an independent panel to examine the system and make recommendations. The panel received feedback from the public and held various consultation sessions with injured workers, safety associations and several other interested parties. The panel completed its review earlier this year and submitted its final report to the Ministry of Labour. That report was recently released and can be accessed on the Government of Alberta’s website here.

The panel’s report noted that while there are clearly many issues with the workers’ compensation system, overall, it continues to be valued by both workers and employers. Both sides generally continue to see it as a preferable alternative to litigation. However, the report pointed out that while most claims are dealt with relatively well, more complex claims often give rise to considerable issues, causing frustration to all parties. The most significant issue with the system is not the level of benefits, but rather, the overall decision making process which is often viewed as preferring the efficient management of claims at the expense of assisting injured workers.

Interestingly, the panel found that both employers and workers seem generally unhappy with the system – workers feel that the system is in the employer’s “pocket”, while employers feel that the system favours workers. Reestablishing trust in the system is seen as a key goal.

The panel’s report includes 60 different recommendations, some to the legislation, others to policy or operations. The focus of the changes is towards a “worker-centered” system. Some of the key proposed changes highlighted in the report are:

  • The establishment of a new Fair Practices Office, independent of the WCB, similar to an ombudsman;
  • Increased assistance for workers and employers with reviews and appeals through an Office of the Appeals Advisor that is relocated from the WCB to the Fair Practices Office;
  • The use of a new roster system for independent medical examinations (IMEs), with responsibility for the roster residing with the Medical Panel Office, which is independent from the WCB;
  • Greater choice for injured workers in selecting health professionals, in addition to the choice they already have in selecting their treating physicians;
  • The establishment of an obligation to return workers to work, and a corollary obligation to cooperate on the part of workers;
  • The use of case conference models throughout the system, along with a system-wide commitment to seek early and collaborative resolution of any disputes that arise;
  • The adjustments of certain benefits provided by the system, with the specific aim of addressing areas where there is hardship, fatalities, permanent injuries of young workers, retirement benefits or people who are affected in dramatic ways by the current application of WCB policies; and
  • Further study or review of particularly complex aspects of the system.

Some of these recommendations, such as establishing an obligation to return injured workers to work, are controversial and it will be interesting to see which of these recommendations will ultimately be implemented.

Changes on the horizon for Alberta’s Workers’ Compensation system?

Saskatchewan Court of Appeal confirms acquittal following workplace fatality in grain terminal

We previously reported on the acquittal of a Saskatchewan employer after a worker died of suffocation in a grain terminal (see our previous post here). The Saskatchewan Court of Appeal recently dismissed the Crown’s appeal of the acquittal, confirming that the trial judge made no error in finding that the elements of the charges had not been proven beyond a reasonable doubt.

One of the Crown’s arguments was that a workplace injury or death was proof or evidence of a violation of the occupational health and safety legislation. The Court of Appeal noted that this issue did not appear to be settled by the courts and referenced a recent Alberta Court of Appeal case where leave to appeal was granted regarding that same issue (see our previous discussion of R. v. Precision Diversified Oilfield Services Corp., 2017 ABCA 47 here). 

The Court of Appeal reviewed the existing case law and found that where, as in the case before it, the Crown had particularized a charge, the elements of the alleged contravention under the legislation were not necessarily established by proof of the injury or death of an employee at the workplace. While proof of an accident may be enough to establish the elements of the general charge that an employer failed to ensure the health and safety of an employee, where the Crown has particularized a charge, the Crown must prove all of the necessary elements.

In this case, the Court of Appeal agreed with the trial judge’s finding that the Crown had failed to prove the elements of the charges. The Court found that that worker had learned through his training that he was not to enter a confined space, such as the receiving pit, until he had received the necessary training and safety procedures for doing so. In addition, the usual procedure to unplug a blockage was a simple process that did not require any specific training or supervision. The trial judge had also made a finding of fact that the deceased had never been told to enter the receiving pit or unplug the blockage. He had only been told to look in the pit and so the employer was not obliged to instruct him on how to perform those other tasks. Finally, while the Court acknowledged that employers have a positive duty to ensure employees are meaningfully aware of hazards, the trial judge’s findings about the training and workplace culture of safety did not lend themselves to a finding that the employer had failed in its duties to the employee.

R. v. Viterra Inc., 2017 SKCA 51 (CanLII)

Saskatchewan Court of Appeal confirms acquittal following workplace fatality in grain terminal

Alberta government signs Memorandum of Understanding with police services setting out new procedures for investigating serious workplace incidents

The government of Alberta and 10 police services recently signed the Westray Memorandum of Understanding. The announcement was made on the National Day of Mourning, which this year commemorates the 25th anniversary of the Westray Mine disaster that took the lives of 26 underground miners in Nova Scotia.

The MoU defines protocols for investigating serious workplace incidents, intended to help investigators determine if criminal charges are warranted in addition to occupational health and safety charges. Previously, police officers and occupational health and safety officers would typically coordinate their investigations; however, the MoU now provides formal procedures for police officers and occupational health and safety officers to assess the situation and determine whether an incident involves potential occupational health and safety violations, criminal activity, or both.

Following the Westray Mine disaster, the Criminal Code was amended to allow criminal charges to be laid for workplace incidents (Bill C-45 or the “Westray Bill”). These charges are generally reserved for very serious cases and to date, there have not been any prosecutions in Alberta under the Westray Bill.

The news release can be found here.

Alberta government signs Memorandum of Understanding with police services setting out new procedures for investigating serious workplace incidents

Bullied to death? PEI WCB awards benefits to widow after finding a link between workplace bullying and fatal heart attack

The Workers Compensation Board of Prince Edward Island recently awarded WCB benefits to the widow of a worker who died of a heart attack in November 2013. The worker had suffered a workplace back injury a few months earlier and had recently returned to work. According to the widow’s submissions to the WCB, the worker was bullied at work by his supervisor and did not feel he was receiving the proper support from his employer.

The worker’s family had initially approached the WCB about the availability of benefits, but were advised that because the death was not caused by a workplace injury, benefits were not available to them. The worker’s estate, widow and children subsequently commenced a court action against the employer and supervisor claiming damages. The claim alleged that the worker died from heart failure as a result of workplace bullying, and that the work conditions led to stress, anxiety and physical symptoms which ultimately caused his fatal heart attack.

The Supreme Court of PEI initially dismissed the action on the basis that it did not have jurisdiction as there was a collective agreement in place that governed, and so there were other remedies available to the plaintiffs including grievance arbitration and a WCB claim. On appeal, the PEI Court of Appeal reversed the decision, finding that the PEI Fatal Accidents Act did give the Court jurisdiction over the claim brought by the dependents. The Court of Appeal also considered whether a stay was appropriate on the basis that the claim was within the jurisdiction of the Workers Compensation Act. However, the Court was unable to decide that issue on the limited record, reminding the parties that the WCB can adjudicate and determine whether a right of action is removed by the Workers Compensation Act.

The plaintiffs returned to the WCB seeking a determination. The WCB confirmed that a workplace accident could include bullying and harassment. After receiving submissions from the parties, the WCB determined that the worker’s death was linked to workplace bullying and harassment, thus entitling the widow to benefits. The employer has filed an appeal with the WCB so this is likely not the last word.

While WCB policies may vary across the country, the basic premise behind WCB benefits is the same – the historic trade off whereby employers fund a no-fault insurance scheme to compensate injured workers for workplace injuries and in return, workers give up the right to sue the employer. In order for a claim to be compensable, there must have been a workplace accident.

In Alberta, the WCB’s cardiac policy states that in order for cardiac claims to be compensable:

  • there must be evidence of occupational exposure to factors or events known or presumed to be associated with heart problems; and
  • the time period between the occupational exposure and the onset of the cardiac condition is such that a relationship can be established.

The policy also list some examples of occupational exposures which can cause cardiac conditions, including psychological causes, involving exposure to significant and acute psychological stress.

Therefore, while the PEI decision appears to be a unique case, with the proper facts and medical evidence, and the relatively recent focus on issues of workplace bullying, we can expect to see more claims for benefits relating to workplace bullying and harassment. In the meantime, employers should ensure that they have (and follow!) appropriate policies and procedures in place to address workplace bullying and harassment.

The Court of Appeal decision can be found here.

 

Bullied to death? PEI WCB awards benefits to widow after finding a link between workplace bullying and fatal heart attack

Arbitrator disagrees that grievor’s interference with air quality test was a deliberate act of sabotage and replaces termination with a lengthy suspension

In this recent Alberta arbitration case, the employer had been dealing with safety issues involving excessive carbon monoxide levels. Carbon monoxide readings in the employer’s facility were often beyond the regulatory levels and the employer had taken several steps to try to reduce them. The City of Calgary ultimately issued an order requiring the employer to either reduce the levels or face a potential plant closure.  The employer hired a consultant to perform the necessary testing. A two day test was set up that involved setting up stationary air quality monitors in the facility, as well as having individuals carry personal air quality monitors while they went about their daily work routine.

On the first day of the test, the grievor was seen moving one of the stationary monitors. When confronted, he replied that he had switched his personal monitor for the stationary one so that the test would take into account his personal exposure. He acknowledged that he did this without authorization. The employer treated this as a serious safety risk as he tampered with the testing process. He had also previously interfered with an air quality test. The employer considered his conduct to be a violation of the company’s safety responsibilities and of its Vision, Mission, Values and Objectives policy. The employer took the position that the grievor had fundamentally breached the trust relationship between them and terminated his employment. The union grieved the termination.

The arbitrator found that the evidence established that the employer was committed to resolving the air quality issue. However, he did not accept that the grievor’s conduct was an act of  sabotage and noted that the grievor’s conduct did not create a safety violation or threat. Nevertheless, the arbitrator acknowledged that the grievor had interfered with a planned scientific test, potentially corrupting its results, and that his conduct warranted discipline. The question was whether termination was appropriate.

The arbitrator noted that the employer’s policies required employees to be vigilant in ensuring safety. The evidence also established that another employee had previously removed a monitor without authorization but was not disciplined. The arbitrator also considered that the grievor had not been made aware of the potential consequences of his actions before he moved the monitor and when he appreciated the implications of what he had done, he admitted his mistake and apologized. Ultimately, the arbitrator held that the employer had not established that the grievor had deliberately tried to sabotaged the tests. What the evidence did establish is that the grievor knew, or ought to have known, the significance of moving the monitor without authority. This conduct was serious and was deserving of appropriate discipline which took into account two previous disciplinary offences.

After reviewing all of the circumstances, the arbitrator  allowed the grievance as he was not persuaded that the employment relationship had been irretrievably severed. He substituted a lengthy, 90 day, suspension, without pay, for the termination.

Cement, Lime, Gypsum And Allied Workers (International Brotherhood Of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers And Helpers, Local Lodge D345) v Certainteed Gypsum Canada Inc., 2017 CanLII 10827 (AB GAA)

Arbitrator disagrees that grievor’s interference with air quality test was a deliberate act of sabotage and replaces termination with a lengthy suspension

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bower v. Evans, 2016 ABQB 717 (CanLII)

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

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

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

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

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

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

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

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

 

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

New Alberta Bill 208 seeks to provide protection against workplace bullying

On November 9, 2016, Calgary MLA Craig Coolahan introduced Bill 208, Occupational Health and Safety (Protection From Workplace Harassment) Amendment Act, 2016. This Bill seeks to address workplace bullying by introducing provisions dealing with harassment into Alberta’s Occupational Health and Safety Act.

Currently, Alberta’s occupational health and safety legislation contains requirements relating to workplace violence. However, since “violence” is defined in the legislation as conduct that caused or is likely to cause physical injury, the existing requirements do not apply to many cases of workplace harassment.

The proposed amendments include a definition of “harassment” that would require the conduct to constitute a threat to the health or safety of the worker. The amendments would add a specific obligation on employers to ensure, as far as it is reasonably practicable, that its workers are not exposed to harassment in their employment. It would also add an obligation on workers to refrain from causing or participating in the harassment of another worker. Employers would be required to establish and administer a workplace harassment policy and investigate complaints of workplace harassment. Workers who are not satisfied with the outcome of the employer’s investigation process would have the option to file a complaint with an officer.

Bill 208 can be found here.

New Alberta Bill 208 seeks to provide protection against workplace bullying

Employer’s Safety Concerns Were Not Sufficient to Avoid its Obligations Under its Collective Agreement

An Employer was required to revert to a previous shift schedule in accordance with its obligations under the collective agreement, notwithstanding its claim that the previous shift schedule was less safe.

Initially, the majority of the employees at the Employer’s mine worked a rotating 2X2 shift schedule whereby employees each worked 12 hour shifts. They worked 2 day shifts, had a 24 hour break, followed by 2 night shifts and then 4 days off.

In 2014, after more than a year of negotiations, the Employer and the Union entered into a Memorandum of Agreement which included 2 Letters of Understanding setting out a new shift schedule. The new shift schedule was a 4X4 rotating shift. Employees would continue working 12 hour shifts but would do so in 4 day shifts, followed by 4 days off, then work 4 night shifts, followed by 4 days off.  The agreement was for a 9 month trial period after which employees would vote on whether they wanted to continue permanently with the 4X4 schedule, or return to the previous 2X2 schedule.

At the end of the 9 month trial period, the employees voted against a permanent change to the 4X4 schedule. Pursuant to the agreement, the Employer was required to return to the previous schedule within 60 days. The Employer refused, citing safety issues. During the trial period, it had monitored safety and performance indicators which it believed demonstrated that the 4X4 configuration was safer and more productive than the 2X2 arrangement. For instance, the Employer claimed that the trial period had yielded the lowest number of total incidents, with a 23% overall reduction, in spite of the Employer encouraging greater incident reporting. Although this was an unintended consequence, the Employer concluded that it could not, in good conscience, return to a shift arrangement it considered to be less safe. The parties discussed numerous options but were unable to come to an agreement. Both the Union and the Employer filed grievances.

The arbitrator found that the Employer was required to return to the 2X2 schedule in accordance with the agreement and in light of the results of the employees’ vote. The arbitrator then considered whether the Employer’s safety concerns were sufficient to justify its refusal to return to the 2X2 shift as required. The arbitrator accepted that the safety improvements were real but was not persuaded that a return to the 2X2 shift could be categorized as unsafe or in violation of the Employer’s obligations under the occupational health and safety legislation. The arbitrator found it difficult to conclude the 2X2 shift was unsafe given that the Employer had operated this shift for decades and agreed with the Union’s point that improved safety was not a “trump card that can simply be pulled out to defeat collectively bargained consequences.” Overall, the evidence fell short of establishing that a return to the 2X2 shift would be unsafe. The arbitrator appeared to acknowledge that the Employer may have an overriding right to impose a new schedule based on safety issues, despite its collective agreement commitments; however, it compared that right to the employees’ right to refuse unsafe work as a right that had to be exercised seriously and sparingly. Having the right did not mean that employees could refuse work because there may be a somewhat safer way of doing the work.

The arbitrator ultimately upheld the Union’s grievance and directed the Employer to return to the previous 2X2 schedule as soon as possible. However, he urged the parties to work together to develop alternative schedules if the Employer considered it necessary. He also urged the Union and its members to give renewed attention to the safety considerations involved and not to let other issues direct attention away from proposals that offered a demonstrable improvement in safety.

SunHills Mining LP v. United Steelworkers Local 1595, 2016 CanLII 71922 (Alta. GAA)

 

Employer’s Safety Concerns Were Not Sufficient to Avoid its Obligations Under its Collective Agreement

Alberta’s Workers’ Compensation Appeals Commission frees purchaser of the poor WCB record of the company it acquired

In this case, a public company (Newco) had purchased the assets and undertaking of a business (Oldco) as part of a larger national transaction.  Newco then carried on the business under a new name and a new corporate structure.  The WCB had conducted a risk assessment and decided to combine Newco and Oldco’s experience records.  Oldco had a poorer than average experience record compared to its risk class; therefore, the result of the combination was that Newco was forced to assume Oldco’s poor risk assessment.  This resulted in higher WCB premium costs to Newco.

Newco requested a review of the WCB’s decision from the Dispute Resolution and Decision Review Body (DRDRB). The DRDRB upheld the decision and Newco then appealed that decision to the Appeals Commission for the Alberta Workers’ Compensation.

The Appeals Commission reviewed the WCB’s policies and governing legislation.  The WCB’s policy provides that when the ownership of a business changes, the WCB will typically review the situation to determine if a combination of experience records is warranted. Thus, Newco’s acquisition of Oldco triggered a review to assess whether there had been a change in the risk.

The Appeals Commission reviewed the criteria set out in the WCB policy that should be considered by the WCB when considering its risk assessment:  ownership, affiliation and control, business continuity, continuity of management personnel, change in financial and operational control, continuity of health and safety programs and disability management, intercompany transactions, and the transfer of workers between businesses.  The WCB policy does not weigh these criteria and thus the process is discretionary.

The Appeals Commission ultimately concluded that the changes implemented by Newco had resulted in a substantial improvement in the risk profile of Oldco. Therefore, it was not reasonable for the WCB to combine Oldco’s unfavourable experience record with Newco’s.  The Appeals Commission relied on the following factors:

  • Oldco was an “orphan division” that did not have a corporate structure focused on occupational health and safety matters;
  • There had been no overt efforts by Oldco’s directors or executives to manage or improve its occupational health and safety aspects;
  • Newco was a division of an international organization that intended to operate the business in accordance with the high standards expected of an international organization;
  • Newco had an explicit plan to revise the business’ safety culture and focus on preventative safety;
  • Newco revised the organizational structure of Oldco, with executives in place who were specifically tasked with the responsibility for workplace safety;
  • Newco rebranded Oldco, putting its own reputation in jeopardy if it failed to properly Oldco’s short comings;
  • Newco made several capital investments to enhance Oldco’s safety;
  • Newco brought in an appropriate corporate structure to support its safety initiatives; and
  • Newco introduced numerous safety protocols that were wholly absent in Oldco.

The Appeals Commission found that these factors suggested a significant improvement in Oldco’s risk profile and overwhelmed the other policy criteria in this case.  The Appeals Commission placed significant weight on the importance of having an effective corporate management structure in place to deal with occupational health and safety matters.  It described Oldco as “drifting without corporate oversight, direction or investment” and without an established safety program. Under Newco, the business had a sophisticated safety program in place and the appropriate structure to ensure that the safety program were adhered to.  Therefore, it was not appropriate to combine the experience records.

This decision highlights yet another consideration for potential purchasers of a business and notes the risks associated with taking over a business that has a poor WCB record.  It also highlights some of the steps that a purchaser can take to minimize the risk that it ends up being saddled with the vendor business’ WCB failings.

Decision No. 2016-0534, 2016 CanLII 66308 (AB WCAC) http://www.canlii.org/en/ab/abwcac/doc/2016/2016canlii66308/2016canlii66308.pdf

Alberta’s Workers’ Compensation Appeals Commission frees purchaser of the poor WCB record of the company it acquired

Alberta Court of Appeal dismisses worker’s appeal in his 20+ year old case against a developer

The Alberta Court of Appeal has recently confirmed that an owner/developer of a condominium conversion project was not liable for damages in a civil action commenced by a worker.

The action arose from an incident in March 1994 when the worker was working on a rooftop of a condominium development worksite owned by the respondent. He slipped on an icy roof and fell through an unmarked piece of plywood that was covering a hole cut for a skylight. The worker sustained very serious injuries as a result and commenced an action against several parties including the developer.  The other defendants were found to fall within the protection of the Workers’ Compensation Act and so the action proceeded to trial solely against the developer. The trial decision was reviewed in our October 6, 2014 post.

On appeal, the Court confirmed the Trial Judge’s finding that the developer did not become liable in negligence by application of the requirements of the Occupational Health and Safety Act.  While the statute did inform the common law, it did not create civil liability.

The focus of the appeal was on whether the developer should be vicariously liable for the acts of the contractor it had retained to provide supervisory management services.  The contractor was protected from suit under the Workers’ Compensation Act.  The worker raised several different arguments to attempt to impose vicarious liability against the developer; however, the Court of Appeal rejected each of them.  One of the concerns expressed by the Court of Appeal in relation to the worker’s argument was that his reasoning would make the developer “liable almost to the level of an insurer” for all significant physical work being performed by a contractor or subcontractor on a construction site.  As such, this decision will be welcomed by developers in Alberta.

Heikkila v Apex Land Corporation, 2016 ABCA 126 (CanLII)

Alberta Court of Appeal dismisses worker’s appeal in his 20+ year old case against a developer

“The larger the corporation, the larger the fine”: A corporate defendant’s financial circumstances is a relevant sentencing factor for breaches of a regulatory scheme

A small, family owned and operated custom cabinet business was fined $75,000 plus the Victim Fine Surcharge of $11,250 after pleading guilty to failing to ensure, as far as reasonably practicable, the health and safety of a worker. The charges stemmed from a workplace incident in which a worker had slipped and caught his hand on a piece of machinery. The machine’s pressure sensitive mat safeguard that would have shut down the machine had been bypassed. It had been damaged approximately 3 years earlier but the employer chose not to replace it.

The impact with the machine caused the worker’s flesh to be peeled back and he also sustained a broken wrist. The injured worker had been trained to operate the machine and was aware of its safety features, including the fact that the safety mat was not operational.

The Court noted that the primary function of sentencing for regulatory breaches was deterrence; however, sentencing was still an individualized process requiring that all factors be considered, not just deterrence. The relevant factors included the financial circumstances of the corporate defendant. In the Judge’s view, the larger the corporation, the larger the fine. Conversely, when sentencing smaller corporations with more restrictive financial viability, the Court should apply a sentence that reflects that situation while still deterring offenders in similar circumstances from committing similar offences.

The other factors considered by the Court in its sentencing decision were:

  • The employer had no previous safety related offences;
  • The employer properly trained its employees and had regular safety training sessions;
  • The employer pled guilty, was remorseful and cooperative;
  • The employer recognized that it was accountable and an officer had been present in court during the proceedings;
  • The injuries sustained were at the lower end of the severity continuum;
  • Although a fine of up to $100,000 (as suggested by the Crown) would not devastate the employer, it would certainly impose a severe sting on the employer; and
  • While the employer was negligent in not repairing the safety mat, its conduct did not constitute gross negligence.

In light of these factors, the Court considered the Crown’s suggested amount of $100,000 to be too high. The Court determined that a fine of $75,000 was appropriate as that was a substantial and significant amount that would not be viewed as a slap on the wrist. It would be clearly felt by the employer and would serve as a warning for other similar offenders in similar circumstances.

R. v. The Kitchen Centre Ltd., 2016 ABPC 12

“The larger the corporation, the larger the fine”: A corporate defendant’s financial circumstances is a relevant sentencing factor for breaches of a regulatory scheme

The Supreme Court of Canada grants leave to appeal in drug and alcohol policy matter

Drug and alcohol testing policies have long been of key importance for many employers, particularly those who have employees in safety sensitive positions. Now, the Supreme Court of Canada is set to consider drug and alcohol policy issues after it granted leave to appeal on a judgment released last summer. Read full article here.

The Supreme Court of Canada grants leave to appeal in drug and alcohol policy matter

A first for Alberta – Employer sentenced to corporate probation and community service for violating the Occupational Health and Safety Act

In a unique decision, an Alberta employer, Needoba Construction Ltd., which pleaded guilty to the general charge of failing to ensure, as far as it is reasonably practicable to do so, the health and safety of a worker, has received a sentence which includes 18 months of corporate probation and 200 hours of community service. The employer was also sentenced to a fine of $11,150 including the victim fine surcharge.

The decision stems from a 2012 incident where a worker fell over 6.5 metres through an uncovered stairwell opening at a residential construction site. The worker sustained paralytic injuries. The employer did not have a fall protection plan in place at the work site. The employer was initially charged with 4 counts under the Occupational Health and Safety Act (Alberta) but after it entered a guilty plea on the general charge, the remaining counts were dropped.

A corporate representative will be completing the community service time with a non-profit organization called Hearts and Hammers which renovates homes for people in need with mobility challenges.

While the Occupational Health and Safety Act (Alberta) gives the court fairly broad discretion and powers to make other orders in addition to, or as an alternative to, fines or imprisonment, this is the first time that community service has been ordered against an employer for an occupational health and safety violation.

The Alberta Government news release

A first for Alberta – Employer sentenced to corporate probation and community service for violating the Occupational Health and Safety Act

Refusing to provide a written statement to an investigating officer did not constitute obstruction of a safety officer but grabbing him and pushing him out the door did.

This case serves as an example of what degree of conduct will or will not constitute obstruction of an officer in a workplace investigation.

The accused was charged under the Safety Act (NWT) with 2 counts of obstructing a safety officer arising from 2 meetings between the accused and the safety officer tasked with investigating a workplace accident. At trial, the accused and the officer had differing versions of what had occurred in the meetings. Ultimately, the Court found the accused to be an evasive witness and preferred the evidence of the officer.

The section of the Safety Act in question required the Crown to prove that the accused had (a) obstructed or hindered (b) a safety officer (c) engaged in carrying out his duties. The Court held that this required an obstruction or hindrance of the investigation itself – not just the safety officer; that the accused’s actions had to be deliberate, with knowledge that the officer was engaged in carrying out his duties; and that the accused intended to prevent the progress of the investigation.

In the end, the Court found the accused not guilty of the count relating to the first meeting. In that meeting, the accused had been loud and aggressive and “vented” but he had responded to the investigator’s questions. While he had refused to provide a written statement and drawing, his conduct did not impede or delay the progress of the investigation. However, the Court found the accused guilty of the count relating to the second meeting. In that meeting, the accused confronted the investigator, grabbed him by the arms, pushed him out the door, and slammed the door behind him, all before the officer had asked any questions. The accused knew the investor was there to ask him questions about the incident and the Court found that the accused’s conduct in that meeting did halt the progress of the investigation.

R. v. Prodromidis, 2015 NWTTC 18

Refusing to provide a written statement to an investigating officer did not constitute obstruction of a safety officer but grabbing him and pushing him out the door did.

Misleading information about WHMIS training requirements

Work Safe Alberta has recently revised a Bulletin regarding some aggressive, high pressure sales tactics being used by some WHMIS training providers. The Bulletin serves as a reminder to Alberta employers that while WHMIS training is required for workers who work with WHMIS products, the training does not need to be completed by a commercial training provider. Employers should consider the specific training required depending on the particular work site and the employees job duties and tailor their training programs accordingly. The Bulletin can be found here.

Misleading information about WHMIS training requirements

Update on changes to WHMIS requirements and transition period

Work Safe Alberta has released an Occupational Health and Safety bulletin to assist Alberta employers and workers understand the impact of the recent amendments to the federal WHMIS legislation ( see my earlier blog post Federal government announces changes to WHMIS Legislation ) particularly during the transition period when suppliers have the option to comply with either the new WHMIS system (WHMIS 2015) or the old system (WHMIS 1988).

During the transition period, Alberta employers may receive hazardous products that follow either WHMIS 1988 or WHMIS 2015. Employers will need to be familiar with both systems and be able to educate and train workers on both systems. The Work Safe Alberta bulletin provides guidance to employers in meeting their WHMIS obligations during this transition period and until Alberta’s occupational health and safety legislation is amended to align with the federal WHMIS changes.

The Work Safe Alberta bulletin can be found here.

The federal transitional requirements can be found in the Canada Gazette Part II.

Update on changes to WHMIS requirements and transition period