1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

McIver v. McIntyre, 2018 ABCA 151 (CanLII)     

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

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

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

The changes introduced by these most recent amendments include:

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

The amendments can be found here.

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

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

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

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

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

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

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

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

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

Employer ordered to pay fine of $100,000 following a fatal workplace incident at a road building construction site after court accepts joint submission

The Territorial Court of the Northwest Territories considered and accepted a joint submission from the Crown and defence, sentencing the employer to a $100,000 fine. The matter arose following a workplace incident in June 2016 where a young worker was killed. The worker had been operating a vibrating roller packer used to compact a new access road in the Northwest Territories. The packer had rolled off the road and the worker either fell or attempted to jump out of the packer as it was rolling over. The packer rolled over on top of him, killing him.

The employer faced a number of charges and had pled guilty to a charge of failing to ensure that the worker was properly supervised. The court considered the significance of a joint submission, noting that it was normally the result of a negotiation process between lawyers. This process was important to the administration of justice and thus, the court must normally defer to the joint submission within the bounds established by the Supreme Court of Canada in an earlier case. The Supreme Court of Canada has stated that when considering a joint submission on sentence, the trial judge should accept it unless doing so would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. This would occur where the joint submission is such that it would be “markedly out of line with the expectations of reasonable persons aware of the circumstances of the case that they would view it as a breakdown in the proper functioning of the criminal justice system” and that trial judges should “avoid rendering a decision that causes an informed and reasonable public to lose confidence in the institution of the courts.”

In order to apply this test, the court in this case reviewed established sentencing principles, noting that the ultimate goal of imposing a significant fine was behaviour modification, both specific deterrence (deterring this employer from similar offences in the future) and general deterrence (deterring other employers from committing similar offences). However, the sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender. The court applied the following factors and considerations when assessing the amount of the $100,000 fine proposed by the joint submission:

  • Nature of the offence – there was a recognized danger that the packer could roll over. It was equipped with a rollover protection structure and had several warning labels stating that seat belts must be worn. The evidence was clear that the worker had not been wearing a seat belt at the time of the incident. There was no evidence that anyone had ever told the worker that he should wear his seatbelt. The court found that the worker should have been instructed to wear a seatbelt and that his supervisor should have ensured he was wearing a seatbelt and not operating the packer on or near an inclined surface. The failure to do so was a serious omission.
  • Nature of the offender – the employer was a relatively small, privately-held corporation with revenue in 2017 slightly over $1,000,000.
  • Degree of blameworthiness – the court recognized this was not a situation where the employer was taking chances to make money. However, a young worker with no formal training had been put in charge of a piece of heavy equipment without proper instruction or supervision. Instruction and supervision with respect to the safe operation of the packer should have been integral to the company’s operations.
  • Capacity to pay a fine – given the employer’s revenue in past years, the court was satisfied that $100,000 was a significant amount and has a substantial deterrent effect.
  • Maximum fine under the legislation and range of fines – the maximum fine under the Northwest Territories Safety Act was $500,000. On a review of cases involving similar circumstances, the court was satisfied that $100,000 was within the range of fines normally imposed for this type of offence.
  • Previous convictions – the employer had no history of safety or other regulatory infractions.
  • Harm and potential harm – the worker died as a result of being crushed by the packer. Had he been wearing his seatbelt, he likely would have been held within the protective structure and protected.
  • Contributory negligence – the worker should have been wearing his seatbelt and the court assumed he would have seen the prominent warning labels. He chose not to wear his seatbelt. However, he was a young man and would have relied on those who supervised him and may have believed there was no real possibility of a rollover. While there were levels of THC found in his blood indicating that he had consumed hashish or marijuana in the hours before the accident, the evidence was not properly before the court and it did not establish that cannabis consumption had anything to do with his death. The court recognized however that this may have been one of the matters that was part of the negotiations for the joint submission.
  • Post offence conduct – the employer had spent over $37,000 to fly the worker’s family to the Northwest Territories on more than one occasion and had created a memorial to the worker. The employer had cooperated with the investigation. The guilty plea was a mitigating factor on sentence. The presence of one of the owners at the sentencing hearing was also significant.
  • Balancing of factors – the court noted that none of these factors can be considered in isolation, nor would one override the others.

The court considered all of these factors and accepted the joint submission, ordering the employer to pay a fine of $100,000. The court waived the 15% victim crime surcharge because it was satisfied that it would result in undue hardship to the employer.

R. v. Allen Services & Contracting Ltd., 2018 NWTTC 03 (CanLII)

Employer ordered to pay fine of $100,000 following a fatal workplace incident at a road building construction site after court accepts joint submission

Employee’s “theory” that he was dismissed for questioning his employer’s safety systems was just a theory and was not evidence

A judge in a recent wrongful dismissal action dismissed the plaintiff’s allegation that he was dismissed after making suggestions about improvements to the employer’s safety systems. The employee was a relatively short term employee (25 months), working as a Control Systems Specialist. His duties included designing, implementing and monitoring various control systems for machines manufactured by the employer.

The plaintiff testified that the employer had been involved in a fatality in California, involving one of its machines. As a result, the plaintiff claimed that he became concerned about the employer’s future liability and took it upon himself to do some research regarding safety systems. He sent an email to his general manager making suggestions, including a redesign of the system and a rewrite of the safety manual. The general manager had replied to say that the employer was looking for an expert, would be reviewing training methods, and that he was open to further discussion. He also stated that the employer’s goal was not to escape liability but rather, to “build machines that do not hurt people.” The day after this email exchange, the plaintiff was called into a meeting and terminated without cause. He was not given a reason and when he asked, he was told that the employer’s counsel had instructed it not to give a reason. He was escorted out of the office in a civil manner. The plaintiff followed up a few days later, again asking for a reason for his dismissal but the employer did not respond.

At trial, the plaintiff’s theory was that he was dismissed because he was questioning the employer’s safety systems. Other employees had told him he “wasn’t a good fit.” The employer denied that the reason for the plaintiff’s dismissal was his concern with the safety system. The general manager testified that the employer had been experiencing some financial challenges that resulted in 12 employees being dismissed, managers taking a salary cut, overtime hours being lost, and several projects being in jeopardy. He claimed that the timing of the dismissal the day after the plaintiff’s emails about his perceived safety issues was a coincidence and that the plaintiff was dismissed because he was not a good fit.

In addition to damages for reasonable notice of termination, the plaintiff claimed he was entitled to aggravated and punitive damages as a result of the manner in which he was dismissed. His evidence was largely related to the employer’s refusal to give him a reason for the dismissal and the timing with relation to his emails about the safety concerns. The judge found that the plaintiff’s theories were not supported by the evidence and were insufficient to justify an award of aggravated or punitive damages. The judge held that the employer’s conduct was not malicious and high-handed so as to warrant additional damages and dismissed that aspect of the plaintiff’s claim.

Dragos v. Hunterwood Technologies Ltd., 2018 ABPC 40

 

Employee’s “theory” that he was dismissed for questioning his employer’s safety systems was just a theory and was not evidence

Court finds that “accident as prima facie breach” principle precludes an order for particulars on an OHSA “general duty” charge

The “accident as prima facie breach” principle has been before the court in several recent cases, often with some discrepancy in its application. The principle was again before an Alberta court recently in the context of an application for particulars.

The principle provides that in some cases, proof that an employee was injured in an accident while performing his or her employment duties proves the actus reus for an occupational health and safety (OHSA) “general duty” charge, as long as the necessary elements are proven beyond a reasonable doubt. The burden then shifts to the accused to establish a due diligence defence.

In this case, a worker was seriously injured in a workplace incident and the employer was charged with 8 counts. Count 1 of the Information was a “general duty” breach allegation stating that the employer had failed to ensure, as far as it was reasonably practicable to do so, the health and safety of the worker, contrary to section 2(1)(a)(i) of the Occupational Health and Safety Act (Alberta). After receiving the Crown’s disclosure, the employer applied for particulars of Count 1 on the basis that there was information contained in the Crown disclosure which left the employer uncertain about what act or omission the Crown intended to rely on to sustain Count 1.

At the application hearing, the first issue before the court was whether the “accident as prima facie breach” principle for an OHSA general duty charge would preclude an order for particulars. The court reviewed the principle, noting that the case law had established that the “accident as prima facie breach” principle requires that in order for the Crown to prove the essential elements of an OHSA “general duty” charge beyond a reasonable doubt, the Crown must prove that:

  1. there was an employee;
  2. the employee was injured in an accident; and
  3. the employee was performing his or her duties in the course of his or her employment when injured.

The court noted that the principle does not relieve the Crown of establishing beyond a reasonable doubt that the employer committed a wrongful act but rather, reflects that sometimes, proof of the consequence, that is, the accident, is sufficient to establish that a wrongful act was committed. However, the principle was not one that would apply in all cases as there may be some instances where the wrongful act by the employer cannot be inferred from the circumstances of the accident.

Requiring the Crown to provide particulars of the specific acts, omissions or breaches by the employer under Count 1 would transform those particulars into essential elements of the actus reus of the offence which the Crown would then need to prove beyond a reasonable doubt. The court found that this would generally be inconsistent with the principle applicable to an OHSA “general duty” charge and would place a far higher onus on the Crown.

In the case before it, it was known why the incident happened. A boom stick being held above the ground by a hook and sling held by a caterpillar tractor fell from the hook and sling, severely injuring the worker. As such, the court determined that it was appropriate to apply the “accident as prima facie breach” principle and thus the court was precluded from making an order for particulars of the acts, omissions or breaches by the employer for the Court 1 OHSA “general duty” charge.

The court then proceeded, in obiter, and in what results in a somewhat confusing decision, to find that if the court was wrong on the conclusion that the “accident as prima facie breach” principle precluded it from ordering particulars, then the court would have made an order for particulars as requested by the employer.

R. v. Midwest Pipelines Inc., 2017 ABPC 222

Court finds that “accident as prima facie breach” principle precludes an order for particulars on an OHSA “general duty” charge

Learn how OHSA changes in Alberta and Ontario will affect your business, January 22, 2018 – Webinar

OHSA legislation in Alberta and Ontario is changing. The Ontario amendments (including maximum fines and the limitation period for laying charges) are already in effect, and the Alberta amendments (including mandatory joint work site health and safety committees and new duties and obligations for various parties) will come into force soon.

Monday, January 22, 2018
10 a.m. MT
12 p.m. ET

Speakers

This session is available via webinar only

CPD accreditation
This program is eligible for 1 substantive hour required by the Law Society of Upper Canada.

Seminar materials
Download a copy of the presentation slides.

Questions
Please contact Carla Vasquez, Marketing and Events Specialist, at carla.vasquez@dentons.com or +1 416 361 2377.

Learn how OHSA changes in Alberta and Ontario will affect your business, January 22, 2018 – Webinar

The introduction of Bill 30 brings the potential for significant changes to Alberta’s workplace laws

On November 27, 2017, the Government of Alberta introduced numerous proposed changes to Alberta’s Occupational Health and Safety Act and Workers’ Compensation Act. The proposed changes are contained in Bill 30: An Act to Protect the Health and Well-being of Working Albertans.

A review of the key proposed changes in Bill 30 is found here. 

 

The introduction of Bill 30 brings the potential for significant changes to Alberta’s workplace laws

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