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“Disgruntled and aggressive clients” posed safety threat under OHSA

An employee who was fired after complaining to the Ministry of Labour that she felt threatened by “disgruntled and aggressive clients” was entitled to damages for the retaliatory discharge, the Ontario Labour Relations Board has decided.

The employee worked for an investment/marketing company.  She tried to speak with a company manager about her concerns with aggressive clients and about having the company develop procedures to deal with matters such as violence and harassment. The manager refused to entertain the suggestions.

The employee then contacted the Ministry of Labour and told the MOL that she felt threatened in the workplace and that her employer had no policies to deal with her concerns.  After a co-worker contacted the MOL with concerns, an MOL inspector came to the workplace and ordered the employer to prepare a violence and harassment policy.  The next day, the company dismissed the employee.

The OLRB accepted that the threat posed by “disgruntled and aggressive clients” was a workplace safety issue under the Occupational Health and Safety Act, and that the employee had characterized it as such when she had complained to management.  Also, in the absence of an explanation by the employer (the employer did not attend the OLRB hearing), the OLRB was satisfied that at least part of the company’s reason for dismissing her was her safety complaint.  As such, her termination was an illegal reprisal under the Occupational Health and Safety Act.  She found employment quickly, and was entitled to damages in the amount of four weeks’ wages.

Abigail C de los Santos Sands v Moneta Marketing Solutions Inc, 2014 CanLII 33527 (ON LRB)

 

“Disgruntled and aggressive clients” posed safety threat under OHSA

Worker, Caught by MOL Inspector, Given Significant Fine for Safety Violation

An Ontario construction worker has been fined $1,500.00 after jumping from a hoist tower to a nearby roof.  Unfortunately for the worker, a Ministry of Labour inspector saw him do it. 

The worker was wearing a fall protection harness and lanyard, but the lanyard was not tied off.  He was approximately 50 feet above the ground when he jumped.

The worker pleaded guilty to failing to be adequately protected by a method of fall protection while exposed to a fall of more than three metres (9.8 feet).

This case shows that workers can incur significant fines for safety violations under the Occupational Health and Safety Act particularly where, as in this case, death or serious injury could have resulted.

The Ministry of Labour’s press release may be accessed here.

Worker, Caught by MOL Inspector, Given Significant Fine for Safety Violation

MOL Inspector’s “Unclear” Order Required School Board to Revise its Workplace Violence Policy

A Ministry of Labour inspector has ordered an Ontario school board to revise its workplace violence policy, and the Ontario Labour Relations Board has suspended that Order, calling it “unclear”.

The inspector attended at a high school after a worker complained about two incidents at the school.  The inspector concluded that the school had failed to provide workers with “information and instruction concerning persons with a history of violent behaviour”, as required by section 32.0.5(3) of the Occupational Health and Safety Act which section was enacted by Bill 168.  The inspector issued an Order under the Occupational Health and Safety Act requiring the school board to “develop arrangements to provide information to workers” regarding the risk of workplace violence from a person with a history of violent behaviour.

The school board appealed the Order. It argued that the inspector had not specified the basic facts underlining the “two examples” that were mentioned in the Order.

The Ontario Labour Relations Board suspended the Order.  It held that the Order essentially required the school board to comply with the OHSA, which it was already obligated to do.  Also, the school board could be prejudiced if it were required to “comply with an order that is unclear on its face”.  Finally, the OLRB doubted that deference should be given to the Ministry of Labour inspector when the Order was unclear on its face.

This case demonstrates that where Ministry of Labour inspectors do not state the facts underlying their compliance Orders, the employer may have a viable challenge to the Order.  Also, the OLRB will be more likely to suspend an Order when it simply repeats obligations in the OHSA.

Dufferin-Peel Catholic District School Board v Ontario English Catholic Teachers’ Association, 2014 CanLII 13515 (ON LRB)

MOL Inspector’s “Unclear” Order Required School Board to Revise its Workplace Violence Policy

Corporate Director Fined under OHSA in Safety Belt Case

A corporate director of a stucco company has been fined $3,000.00 under the Ontario Occupational Health and Safety Act for failing to ensure that workers used safety belts on elevated work platforms.

An inspector caught workers not wearing safety belts attached to the elevated work platforms while using those platforms to perform stucco work on a five-storey office building.  The corporate director also owned the building.

The corporate director pleaded guilty to the charge.

This case is a reminder that corporate directors - not only workers and supervisors – may be charged under the Occupational Health and Safety Act.

The Ministry of Labour’s press release may be accessed here.

Corporate Director Fined under OHSA in Safety Belt Case

Filed Late, Appeal of Inspector’s Order Dismissed

A recent Ontario Labour Relations Board decision illustrates the importance of timely filing of appeals of Ministry of Labour inspectors’ orders.  The OLRB confirmed that that it had no authority to hear late-filed appeals.

A Ministry of Labour inspector wrote compliance orders against the employer under the Occupational Health and Safety Act on November 19, 2013.  The employer filed its appeal with the OLRB on December 31, 2013, which was more than 30 calendar days later. 

The employer stated that this was the first time that it has completed an appeal, and had mistakenly understood that faxing appeal documents to the Ministry of Labour inspector was sufficient to start the appeal. 

The OLRB noted that the appeal must be filed with the OLRB, not the Ministry of Labour, within 30 calendar days of the date of the inspector’s Order, and that the appeal form makes that quite clear.  The OLRB stated that “it is apparent that the [employer] simply did not review the appeal form and Information Bulletin No. 21″ carefully enough.  However, the Ministry of Labour and OLRB are different entities, and the OLRB has no authority to extend the time for filing the appeal of the inspector’s order.

The appeal was therefore dismissed.

LifeLabs v. A Director under the Occupational Health and Safety Act, 2014 CanLII 2302 (ON LRB)

Filed Late, Appeal of Inspector’s Order Dismissed

Company Director Fined $8,500 After Swearing at MOL Safety Inspector, Making Threatening Gestures and Telling Inspector to Leave Project

Corporate directors can be charged by the Ontario Ministry of Labour and fined under the Occupational Health and Safety Act. Threatening and swearing at a Ministry of Labour inspector certainly increases the odds of charges being laid.

A Ministry of Labour inspector visited a construction project where Starland Contracting Ltd. had been hired to build a self-service car wash.  The inspector saw a worker on the roof without fall protection or a hard hat.

A few months later, the inspector made a follow-up visit.  The company’s director was on site and was acting as supervisor.  According to the Ministry of Labour press release, the inspector went to speak with the director, who uttered profanities at the inspector, told the inspector to leave the project, and made threatening gestures and comments towards the inspector.  The director refused to show identification when asked.

The next day, another Ministry of Labour inspector went to the site.  Starland was unable to show a Notice of Project Form or a Form 1000, which lists all employers and subcontractors on site.  That inspector issued an order for those documents, but they were not provided by the deadline in the order.

Starland and the director were charged by the Ministry of Labour under the Occupational Health and Safety Act.  After an ex-parte trial (meaning that the company and the director did not attend at the trial), the company was convicted of three offences under the OHSA and fined $29,500.00, and the director was convicted of two offences (hindering, obstructing, molesting and interfering with an inspector; and refusing to provide information requested by an inspector) and fined $8,500.00.

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

Company Director Fined $8,500 After Swearing at MOL Safety Inspector, Making Threatening Gestures and Telling Inspector to Leave Project

$20,000 Fine After HR Staff, Supervisor Fail to Immediately Report Injury to MOL

An Ontario employer has been fined $20,000 for failing to report an injury to the Ministry of Labour, showing that employers need to educate their managers about the types of injuries that must be reported under the Occupational Health and Safety Act.

A worker was injured when a loaded skid tipped and his leg became trapped under parts.  He suffered a broken bone which is a “critical injury” under the OHSA.  The OHSA requires employers to immediately report critical injuries to the Ministry of Labour.  The employee told his supervisor and, later, human resources staff that he had broken his leg.

Four days after the accident, the Ministry of Labour contacted the company about the accident.  The human resources staff said that the company was in the process of reporting to the Ministry of Labour.

The company pleaded guilty to failing to immediately report this critical injury to the MOL, contrary to section 51(1) of the Occupational Health and Safety Act.  The court imposed a $20,000 fine plus the 25% “victim fine surcharge”, for a total of $25,000.

It is not always obvious what types of injuries are “critical injuries” under the OHSA.  Employers should educate their managers and, where there is any doubt, obtain legal advice.

The Ministry of Labour’s press release may be accessed here.

$20,000 Fine After HR Staff, Supervisor Fail to Immediately Report Injury to MOL

Supervisor Jailed 45 days for Occupational Health and Safety Act Violation

An Ontario supervisor has been jailed for 45 days after a worker fell off a roof and suffered permanent paralysis.  Are courts growing increasingly comfortable jailing supervisors for serious safety violations?

We wrote about this case in May 2013 after the court found the company, the supervisor and another company representative guilty of charges under the Occupational Health and Safety Act.  The court has now imposed its sentence.

According to the Ministry of Labour’s press release, the worker worked for a company engaged in “garbage removal and hauling”.  He was removing shingles from a roof, and fell off the roof after tossing loose shingles toward a bin.  The worker said that he had not been trained in the use of fall protection equipment, nor was any such equipment provided in the company-supplied truck used for transportation to and from the job site.  As well, the worker said that the company’s practice was to pay cash for their work, and that he worked on an on-call basis. The worker identified J.R. Contracting Property Services as the employer and one Teisha  Lootawan as the supervisor.

The court determined that J.R. Contracting Property Services was the “employer”. The court also determined that Lootawan was a supervisor under the OHSA.  Lootawan had failed as a supervisor to ensure that a worker wore protective devices as required by law, and failed as a supervisor to take the reasonable precaution of ensuring that an adequate form of fall protection was provided where a worker was exposed to a fall hazard of more than three metres. 

The court sent Lootawan to jail for 45 days, imposed a $75,000.00 fine on the company, and fined the other company representative $2,000.00 for obstructing a Ministry of Labour inspector by refusing to answer any of the inspector’s questions.

The Ministry of Labour’s press release may be accessed here.

Supervisor Jailed 45 days for Occupational Health and Safety Act Violation

Class Action Proceeds Against MOL for “Negligent Inspection”

In a case that will be closely watched, an Ontario judge has permitted a class action lawsuit against the Ministry of Labour for “negligent inspection” of a workplace.

The case arises from the collapse of the roof-top parking deck at the Algo Centre Mall in Elliot Lake, Ontario, in which two people were killed and many more injured.

The class action was brought by owners of one of the restaurants in the mall, which was one of the businesses affected by the collapse.  The “class” of claimants included people in the mall at the time of the collapse, business tenants and employees working at the mall. 

The plaintiffs argued that Ministry of Labour inspectors had performed more than 130 inspections at the Mall over approximately 30 years, and had received numerous complaints about the condition of the mall and the dangers of water leakage problems.  The plaintiffs claimed that Ministry of Labour inspectors should have followed up with reasonable investigations and in failing to do so, they were negligent.  

The court stated:

“A government body such as the Ministry of Labour that exercises statutory power to conduct safety inspections owes a duty of care to all who may be injured as a result of a negligent inspection. Thus, for example, once the decision to inspect has been made, the court may review the scheme of inspection to ensure it is reasonable and has been reasonably carried out in light of all the circumstances, including the availability of funds, to determine whether the government agency has met the requisite standard of care.”

Although the Occupational Health and Safety Act provides limited liability-protection to Ministry of Labour employees, including inspectors, it expressly provides in section 65(2) that the Ministry of Labour itself may be held liable for acts of inspectors.

The judge therefore decided that the class action for “negligent inspection” could proceed against the Ministry of Labour.  It should be noted that the court has not yet found the Ministry of Labour liable, but simply said that the class action may proceed.

There are numerous other defendants in the class action, a group described by the court as “everyone involved in the planning, construction, inspection, ownership and maintenance of the shopping centre over the years”. That group includes the mall, the owners of the mall, the City of Elliot Lake, and a number of architects and engineers,

 Quinte v. Eastwood Mall, 2014 ONSC 249

Class Action Proceeds Against MOL for “Negligent Inspection”

Engineer Now Facing Both Criminal Negligence, OHSA Charges in Mall Collapse

Police have laid criminal negligence charges against an engineer in relation to the Elliot Lake mall collapse in June 2012.

The charges against engineer Robert Wood are two counts of criminal negligence causing death and one count of criminal negligence causing bodily harm.

Police say that Mr. Wood was an engineer who was involved in the inspections of the building.

A well-publicized judicial inquiry into the collapse of the mall heard that the roof had leaked for many years and the steel support structure was severely rusted.

In April 2013, media reported that Mr. Wood was also charged with offences under Ontario’s Occupational Health and Safety Act relating to negligent advice.

The Occupational Health and Safety Act permits the Ontario Ministry of Labour to lay charges against a professional engineer or architect where, “as a result of his or her advice that is given or his or her certification required under this Act that is made negligently or incompetently, a worker is endangered.

Criminal negligence charges against engineers are rare, as are charges against engineers under the Occupational Health and Safety Act.  This will be an important case for engineers and safety professionals to watch.

CBC News’ report may be accessed here.

Engineer Now Facing Both Criminal Negligence, OHSA Charges in Mall Collapse

Employer Should have Fixed Safety Issue Before Accident, Not After: Safety Fix did not Merit Lower Fine

An employer’s corrective action taken after an accident did not entitle it to a reduced fine under the Occupational Health and Safety Act because the action should have been taken – and was legally-required – before the accident, the Ontario Court of Appeal has held.

The employer, Flex N-Gate Canada Company, an auto parts producer, was charged with offences under the Occupational Health and Safety Act after a worker broke several bones in her foot when a bundle of metal sheets slipped off a forklift and fell to the floor.

After a trial, the company was convicted of failing to ensure that material was moved in a safe manner and failing to properly train workers.  The presiding Justice of the Peace imposed a fine of $25,000.00 for each offence, for a total of $50,000.00.  A judge of the Ontario Court of Justice, on appeal, reduced the total fine to $25,000.00 because of the company’s corrective action after the accident.  The corrective action was in response to compliance orders made by a Ministry of Labour inspector against the company.  The appeal judge reduced the total fine by making the two fines “concurrent”.

The Ontario Court of Appeal restored the original fine of $50,000.00.  It decided that the post-accident corrective action simply brought the company into compliance with the Occupational Health and Safety Act – something that the company was already required to do before the accident.  The court stated, “Rewarding an employer for taking corrective action only in response to an inspector’s order reduces an employer’s incentive to take this action before an accident occurs” and also reduces the “deterrent effect” of fines in Occupational Health and Safety Act cases.

Fines may be reduced, the appeal court added, due to an employer’s corrective action beyond what the Occupational Health and Safety Act requires.  Also, an employer’s actions taken before the accident are relevant in setting the amount of the fine.

Lastly, the appeal court stated that “concurrent fines” are not permitted under the Occupational Health and Safety Act.  Because the $50,000.00 total fine imposed by the justice of the peace was “fit”, that fine was reinstated.

In summary, employers will not be rewarded for fixing safety problems after an accident, unless the fix is above-and-beyond what the Occupational Health and Safety Act already requires.

Ontario (Labour) v. Flex-N-Gate Canada Company, 2014 ONCA 53 (CanLII)

 

Employer Should have Fixed Safety Issue Before Accident, Not After: Safety Fix did not Merit Lower Fine

Supervisor Jailed under OHSA after Lying to MOL Inspector, Police

In what is still a relatively rare occurrence, an Ontario supervisor has been sent to jail for violating the Occupational Health and Safety Act after a worker died.  Lying to the police and Ministry of Labour inspector did not help.

Paul Markewycz was the owner and operator of a company called Roofing Medics Ltd.  In 2011, a worker who was installing roofing membrane from a ladder fell approximately 6 metres and struck a fence.  The worker was wearing fall protection equipment but it was not connected to anything when he fell. The worker was pronounced dead shortly afterwards.

Markewycz told the police that the worker fell at the Markewycz home while helping to install roof vents.  A coroner told a Ministry of Labour inspector about the incident.  The inspector attended at the Markewycz home for an investigation.  A week after the accident, Markewycz and his lawyer met with Ministry of Labour inspectors and said that the incident had taken place in Toronto and not at his home. He also told the inspectors that worker had been employed with Roofing Medics, which had not reported the accident to the Ministry of Labour as required by the Occupational Health and Safety Act.

Markewicz was charged with and pleaded guilty to failing as a supervisor to ensure that a worker works with the required protective devices, and to knowingly giving false information to an inspector. He was jailed for 15 days.  Roofing Medics was fined $50,000.00 for two violations including failing to notify an inspector of the accident immediately and in writing within 48 hours.

This case illustrates how the Ministry of Labour will seek severe penalties against those who lie to inspectors.  Honesty is, as our parents told us, the best policy.

The Ministry of Labour press release may be accessed here.

 

Supervisor Jailed under OHSA after Lying to MOL Inspector, Police

Employer did not discourage workers from reporting accidents to WSIB: WSIAT

A worker who delayed reporting an alleged workplace accident has claimed that his employer discouraged employees from reporting, but the Ontario Workplace Safety and Insurance Appeals Tribunal has rejected that claim. The decision illustrates the importance of maintaining a practice of promptly reporting accidents to the WSIB.

The worker worked with a roofing company.  He filed a claim with the Workplace Safety and Insurance Board on April 3, 2008 alleging that he was injured in a slip-and-fall accident at work three months earlier.  He claimed that he had told his supervisor who “made light” of the situation and laughed about it.

Interestingly, the worker claimed that reporting of accidents and filing of WSIB claims was  discouraged in the roofing industry, and that he feared losing his job if he filed a WSIB claim.  He said that the failure of his employer to acknowledge that his injuries were work-related was the result of its general practice of discouraging reporting of workplace accidents.

The WSIB had opened an investigation into the worker’s allegations that his employer discouraged accident reporting, but the investigation was closed with no action taken.

The WSIAT decided:

“. . . I cannot conclude on a balance of probabilities that the employer discouraged employees from reporting work-related accidents.  At best, the evidence provided by the witnesses established that roofing is a physically demanding line of work and workers frequently sustain a variety of bumps, bruises, cuts and burns.  I interpret the evidence of the witnesses to suggest that workers would normally just ‘shake these injuries off’ and would not report them as WSIB matters.  . . . The employer’s witnesses were consistent in their testimony that if there was a serious enough injury, they would report it to their foreman, who would report it to the supervisor, who would report it to the owner.  The evidence fails to satisfy me, on a balance of probabilities that workers were at risk of losing their jobs if they filed a WSIB claim.”

Given the evidence of the employer’s practice of reporting accidents, and in light of the fact that the worker had not sought medical attention on the day of the alleged accident and that it was not until two months later that his physicians became aware of the alleged accident, the worker’s claim for WSIB benefits was denied.

Decision No. 2286/11, 2013 ONWSIAT 1644 (CanLII)

Employer did not discourage workers from reporting accidents to WSIB: WSIAT

Entire vehicle was a “workplace” under OHSA even when only transporting employees, says OLRB

In a decision that affirms a broad definition of “workplace” under the Ontario Occupational Health and Safety Act, the Ontario Labour Relations Board has ruled that hydro trucks, including their aerial lift buckets, were “workplaces” under that Act even while they were simply being used to transport employees.

The trucks were on the way to work locations when they were required to enter a Ministry of Transportation inspection area beside a highway. Interestingly, a Ministry of Labour inspector was also present at the inspection site and laid certain orders under the Occupational Health and Safety Act in relation to the trucks. The orders required the employer to provide certain documentation, and also dealt with certain safety concerns relating to the operation of the step system used to access the aerial lift bucket.

Hydro One argued that in order for a Ministry of Labour inspector to have jurisdiction to issue an order under the Occupational Health and Safety Act, the order must be issued at the workplace where the equipment (here, the aerial lift bucket apparatus) is to be used.  Hydro One argued that aerial lift bucket apparatus was not a “workplace” when the truck was being used solely to tranport employees, although the rest of the truck would be a “workplace” during the transportation.

The OLRB stated:

“The equipment [aerial lift bucket apparatus] in question is physically incorporated into the vehicle; it is equipment that is and was en route to being used by the very same employee operating the vehicle in question . . . If the employer’s analysis is accepted, i.e. that an order (request) must issue at the workplace and if that did not happen in the instant case, the employer acknowledged that an inspector faced with an obvious safety deficit could follow the vehicle in question to the workplace where the derelict equipment was to be used and properly issue an order there.  I am unable to see how requiring an inspector having full knowledge of facts otherwise warranting the issuance of an order to follow the equipment in question to the workplace before issuing an order is a sensible policy result. It is difficult to see how the spectre of inspectors, whether by stealth or in ‘hot pursuit’, following derelict equipment along highways and thoroughfares and unable to intervene until the inspector, the equipment and the employee in question are all at the ‘proper’ workplace is consistent with the rational administration and effective enforcement of the legislated workplace safety scheme.

Hydro One Networks Inc v Thisdelle, 2013 CanLII 67867 (ON LRB)

Entire vehicle was a “workplace” under OHSA even when only transporting employees, says OLRB

Post-Accident Safety Fixes: An Admission of Liability?

We are often asked whether post-accident fixes or improvements by an employer will be held against it if occupational health and safety charges are laid. For example, if an employer puts a guard on a machine after an employee was injured on the machine, will the court see the installation of the guard as an admission that the machine was not properly guarded?

Employers sometimes feel that they are caught between implementing the fix and risking having it be seen as an admission of liability, or not implementing the fix and risking a higher fine if convicted or being charged with violating a government order to fix the machine. Of course, most employers will be motivated to do what is right and install a fix if needed for safety reasons, regardless of whether that increases the risk of charges or fines; however, the possible risks should be considered. In some cases, quick implementation of the safety fix could actually help avoid charges.

It appears from the caselaw that post-accident safety fixes will, generally, not be considered an admission that an employer violated a safety rule, but may be considered by a court in determining whether the employer exercised due diligence (took all reasonable steps to prevent the violation) or had knowledge of the hazard. For example, the installation of a guard after an accident will likely not be an admission that a guard should have been in place, but it will be relevant to whether the employer, before the accident, took all reasonable steps to ensure that the machine was properly guarded.

In the recent case of R. v. Reliable Wood Shavings Inc., 2013 ONCJ 518, the court stated, “I believe that I can look at post accident conduct in assessing what was reasonable in all of the circumstances . . . What I cannot do is treat them as an admission of liability.”

On the plus-side, post-accident fixes will often lead to lower fines if a company is convicted of a safety offence, as the court will see the employer’s proactive safety fix as a sign of the employer’s commitment to safety. The cost of the fix will often also be considered by the court in setting the amount of the fine.

In one case, the Ontario Food Terminal Board made changes and modifications to the roadways within its facility, including the installation of several stop signs, concrete barriers, and signs around the area where the accident had occurred, after a workplace accident that eventually led to the worker’s death. While the OFTB was convicted of safety offences and fined $65,000, the Justice of the Peace did not view the post-accident actions as admissions of guilt or negligence. The court held that subsequent improvements by a defendant are not a basis for a finding of liability for safety offences, but will be considered in determining whether the employer exercised due diligence or had prior knowledge of the hazard.

An employer should consider, when faced with an accident, how post-accident fixes or improvements could be viewed by the court if the employer is charged. The question is usually not whether to implement the fix, but how to do it in a way that maximizes safety while minimizing legal risk. Advice from an occupational health and safety lawyer should be obtained, and if possible the work should be documented in a manner that confirms that it is not an admission of liability.

Post-Accident Safety Fixes: An Admission of Liability?

Inspector’s Opinion Beat Engineer’s in Request to Suspend OHSA Compliance Order

The Ontario Labour Relations Board has deferred to the opinion of a Ministry of Labour inspector over that of an engineer in refusing to suspend a compliance order issued by the inspector under the Occupational Health and Safety Act.

The OLRB held that, where an employer seeks to have a compliance order suspended pending an appeal of that order, the OLRB “is reluctant to second-guess the judgement of an Inspector who has had the opportunity to attend at the site and observe the operation with a focus on safety.”

The employer was using a “fabricated attachment” on a Komatsu excavator to hoist pre-case concrete panels from a truck onto a bridge deck.  The Ministry of Labour inspector held that the excavator was not intended to hoist materials in this manner, and ordered that the practice stop.

The employer appealed the inspector’s order and asked to have it suspended pending the appeal.  The employer relied on the written opinion of a professional engineer who determined that there was an adequate factor of safety against tipping of the excavator.  The Ministry argued that a crane should be used instead of an excavator.

The OLRB stated that the Ministry had raised a number of issues regarding the professional engineer’s analysis and the methodology used to test the fabricated attachment, and that those issues were significant enough to raise questions about worker safety, particularly where the employer did not call any witnesses on its suspension request but simply made submissions.

Toronto Zenith Contracting Ltd. v. Health and Safety Act, 2013 CanLII 57229 (ON LRB)

Inspector’s Opinion Beat Engineer’s in Request to Suspend OHSA Compliance Order

Employers Should Prohibit Texting While Driving: U.S. OSHA

Distracted driving, and in particular texting while driving, are important occupational safety issues, and employers need to act, the U.S. Occupational Safety and Health Administration says in a new brochure called “Distracted Driving: No Texting“.

The brochure quotes an official as saying, “It is well recognized that texting while driving dramatically increases the risk of a motor vehicle injury or fatality. We are asking employers to send a clear message to workers and supervisors that your company neither requires nor condones texting while driving.”

The brochure goes on to state that employers should “Prohibit texting while driving. OSHA encourages employers to declare their vehicles ‘text-free zones’ and to emphasize that commitment to their workers, customers, and communities.”

OSHA states that if it receives a “credible complaint that an employer requires texting while driving or organizes work so that texting is a practical necessity, we will investigate and will issue citations and penalties where necessary to end this practice.”

One expects that Canadian workplace safety inspectors would similarly take action, under occupational health and safety legislation, against employers who require or encourage employees to text while driving, or impose such great demands on employees that they are practically required to text while driving.

Employers Should Prohibit Texting While Driving: U.S. OSHA

Despite Possible OHSA Charges, Employer’s Appeal of MOL Inspector’s Order May Proceed

An employer’s appeal of a Ministry of Labour inspector’s compliance orders may proceed, despite the inspector’s ongoing investigation into possible charges, the Ontario Labour Relations Board has ruled.

The inspector’s compliance orders dealt with the wearing of personal protective equipment and the training of workers regarding hazards associated with moving vehicles or equipment.  The employer appealed the orders to the OLRB.  At the same time, the inspector continued an investigation that could result in potential charges against the employer under the Occupational Health and Safety Act.

Interestingly, it was the Ministry of Labour – not the employer – that asked the OLRB to adjourn the employer’s appeal until the inspector’s investigation had been completed.  The Ministry argued that it would not be proper to address issues in the OLRB’s pre-hearing in the employer’s appeal, or in the course of the appeal itself, which may involve other workplace parties such as the union and a particular worker who were participating in the inspector’s investigation into possible charges.

The OLRB rejected the Ministry’s request, stating that the employer, which was represented by counsel, wished to proceed with the appeal and had not yet been charged with offences under the Occupational Health and Safety Act.  Further, at least at the pre-hearing stage of the employer’s OLRB appeal, the employer would not be required to provide any information to the Ministry against its will which could prejudice the employer if it were charged under the Occupational Health and Safety Act after the inspector completed the investigation.

Lastly, the OLRB stated that any concerns about prejudice would be more persuasively raised by an employer whose interests were potentially at risk, rather than by the Ministry.

In the result, the employer was permitted to proceed with its appeal of the Ministry inspector’s compliance orders.  The Ministry’s request for reconsideration of the OLRB’s decision was also dismissed.

This is a welcome decision that permits employers to challenge Ministry inspectors’ compliance orders without having to wait until the inspector has completed his or her investigation.

Trisan Construction Inc v Labourers International Union of North America, Local 183, 2012 CanLII 87260 (ON LRB), request for reconsideration denied.

Despite Possible OHSA Charges, Employer’s Appeal of MOL Inspector’s Order May Proceed

When is an MOL Notice of Workplace Accident Required? Ontario Court of Appeal Clarifies

Many Ontario employers will be relieved by an Ontario appeal decision that clarifies – and limits – the obligation to report workplace accidents to the Ontario Ministry of Labour.  “[I]t is not part of the purpose and objective of the Act to protect non-workers.”

A guest’s swimming pool death did not require an Ontario resort to file a Notice of Accident with the Ontario Ministry of Labour, the Ontario Court of Appeal ruled, overturning a lower court decision that risked dramatically expanding some employers’ accident reporting obligations.

Facts

In 2007, the guest had drowned in an indoor swimming pool at the resort.  No Blue Mountain employees were working at the pool at the time.  A Ministry of Labour inspector ordered Blue Mountain to report the accident to the MOL.  The inspector’s decision was upheld by the Ontario Labour Relations Board and the Ontario Divisional Court.

Section 51 Notice of Accident

The Occupational Health and Safety Act‘s accident-notification provision, subsection 51(1), states:

51(1) Where a person is killed or critically injured from any cause at a workplace, the constructor, if any, and the employer shall notify an inspector, and the committee, health and safety representative and trade union, if any, immediately of the occurrence by telephone or other direct means and the employer shall, within forty-eight hours after the occurrence, send to a Director a written report of the circumstances of the occurrence containing such information and particulars as the regulations prescribe. [underlining added]

The MOL argued that “person” means any person, not just employees, so that employers must report any death or critical injury of any person – including guests or visitors – in a workplace.

The Court of Appeal disagreed, noting that the MOL’s interpretation would have the absurd result that it would make “virtually every place in the province of Ontario (commercial, industrial, private or domestic) a ‘workplace’ because a worker may, at some time, be at that place.  This leads to the absurd conclusion that every death or critical injury to anyone, anywhere, whatever the cause, must be reported.”  For instance, there was evidence that there were approximately 7,000 accidents every year at Ontario ski resorts, many of which – on the MOL’s interpretation – would need to be reported to the MOL even if no employee was involved.

When to file MOL Notice of Accident: 3 Factors

The Court of Appeal decided that an employer must file with the MOL a Notice of Accident where the following three requirements are met:

a) a worker or non-worker (“any person”) is killed or critically injured;

b) the death or critical injury occurs at a place where (i) a worker is carrying out his or her employment duties at the time the incident occurs, or, (ii) a place where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work (“workplace”); and

c) there is some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at that workplace (“from any cause”).

The third factor – a reasonable nexus between the safety hazard that caused the accident and a risk to worker safety – is the key factor arising from this decision.  It means that an injury to a non-worker in a workplace will not require the filing of a Notice of Accident if it does not reveal a worker-safety risk.

Result: No Requirement to Report This Guest’s Death

The court said that here, there was no evidence that the guest’s death in the swimming pool was caused by any hazard that could affect the safety of a worker, whether present or passing through.  As such, the third factor was not satisfied, and the resort was not obligated to report the accident to the Ministry of Labour.

Implications for Workplace Violence Policies

The court’s clarification of the meaning of “workplace” is also relevant to employer’s workplace violence policies and programs.  Employers’ workplace violence obligations will extend to a place where “(i) a worker is carrying out his or her employment duties at the time the incident occurs, or, (ii) a place where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work”.

This is an important and readable decision that human resource and health and safety managers should read.

Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75 (CanLII)

 

When is an MOL Notice of Workplace Accident Required? Ontario Court of Appeal Clarifies

Work Refusal Process May not be Used to Challenge Employer’s Established Practices: OLRB

In a long-running and bitterly-fought case involving prison guards, the Ontario Labour Relations Board has held that the work refusal process under the Occupational Health and Safety Act may not be used to challenge existing and established practices of the employer.

The case involved a staged work refusal by Correctional Officers and other prison employees after an unidentified person called the institution and said that a “zip gun” – a crude, home-made prison weapon – was in the institution.

The Institution’s Operational Manager decided that under the institution’s weapon search policy, the situation called for a “Level 2(b)” search of the institution; the employees demanded a “Level 4″ search which would involve cell extractions of prisoners by specially trained teams.

A Ministry of Labour inspector was called in. He decided that the employees did not have the right to refuse to work.  The employees nevertheless continued the work refusal.

The employees appealed the MOL inspector’s decision to the OLRB.  The OLRB agreed with the inspector: the employees had no right to refuse to work. The OLRB decided that the threat posed by zip guns was a normal part of the employee’s employment and was inherent in their work; therefore, under certain exceptions in the Occupational Health and Safety Act that apply to prison workers and other listed workers such as police officers whose work is inherently dangerous, the work refusal was not valid.

The OLRB went on to state that the OHSA’s work refusal provisions may not be used to call into question existing and established practices of an employer. Here, the application of the weapons search policy and the process through which the institution’s management decided which level of search to conduct, was part of the existing and established practices of the institution.  Therefore, the management decision of which level of search to apply may not be challenged through a work refusal.

The OLRB’s decision effectively means that where the employer has an established practice, the employees may challenge the safety of that practice by asking a Ministry of Labour inspector to order that the practice is not safe, but employees may not refuse to work in the interim.

Dowling v. Hamilton-Wentworth Detention Centre, 2012 CanLII 81181 (ON LRB)

Work Refusal Process May not be Used to Challenge Employer’s Established Practices: OLRB