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Three days in jail for owner of roofing business after trying to deceive MOL inspector

The owner of a roofing business has landed in jail for three days after trying to trick a Ministry of Labour inspector following a workplace accident.

Three workers were working on a residential roofing project but the owner did not make fall protection equipment available to them.

According to the MOL press release, after one worker fell 18 feet and injured himself, the owner directed another worker to go up on the roof and set up lifelines and fall protection equipment in order to deceive the MOL inspector.

The owner pleaded guilty to two OHSA offences: attempting to obstruct and interfere with an inspector, and failing to ensure that a worker was protected by a method of fall protection.

The court jailed the owner for three days on the obstruction/interference charge and imposed a $5,000.00 fine on the other charge.

Although for many years there were very few jail terms imposed by courts for OHSA violations, the courts are increasingly willing to impose jail terms for serious violations including attempting to deceive MOL inspectors.

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

Three days in jail for owner of roofing business after trying to deceive MOL inspector

Watch Out: Ontario Ministry of Labour Inspection Blitzes/Initiatives Are Coming

The Ontario Ministry of Labour recently announced its 2016 and 2017 enforcement blitz and initiative schedule. In an effort to emphasize the importance of protecting workers’ rights and ensuring employer compliance with both the Occupational Health and Safety Act and the Employment Standards Act, 2000, the Ministry has prepared a coordinated inspection blitz schedule under the Employment Standards Program and the Occupational Health and Safety Program. The blitzes are set to continue until March 2017.

The Employment Standards inspection blitzes will focus on high-risk sectors where there is a history of ESA violations and/or where young workers, vulnerable workers and/or an increasing number of Ontarians are employed. This will include the following sectors: Construction, Food Services, Retail Trade, Professional Services, Services to Buildings and Dwellings, Other Amusement and Recreation Industries, and Personal Care Services.

The OHSA inspection blitzes will focus on sector-specific hazards with the aim of raising awareness and increasing compliance with the OHSA. The provincial OHSA Blitzes will target the Construction, Industrial and Mining Sectors with a focus on: Falls, New and Young Workers, Mobile Cranes and Material Hoisting, and Safe Material Tramming Underground.

In addition to province-wide blitzes, the Ministry will conduct local blitzes in predetermined regions throughout the province targeting specific sectors. For the ESA blitzes this will include the Child Day-Care Services, Manufacturing, Fitness Centres, Tow Truck Companies, and Small Manufacturing sectors; for the OHSA blitzes this will include the Industrial and Construction sectors.

The Ministry will report the results of its inspections shortly after they are completed and will track its findings to ensure improvements in compliance and fewer workplace injuries. The Ministry reports that since 2005, it has recovered over $144 million in wages and other money owed to employees through its inspections, claims and collections and, since 2008, has issued more than one million compliance orders for safety issues across all sectors.

Even if you are not in a targeted sector, be aware that in addition to the 2016/2017 inspection blitzes, the Ministry’s officers will continue to conduct their ongoing enforcement efforts, so they may still show up at your door. As such, all employers, and particularly those in sectors targeted by the 2016/2017 blitzes, should take steps to ensure that their workplaces are compliant with both the ESA and OHSA. The Ministry of Labour’s Inspection Blitzes and Initiatives Announcement and 2016-2017 Schedules can be found here.

Watch Out: Ontario Ministry of Labour Inspection Blitzes/Initiatives Are Coming

$250,000 fine against school board may be largest-ever against not-for-profit organization in Ontario

A school board has been handed a $250,000 fine under the Ontario Occupational Health and Safety Act after the death of maintenance worker.

The maintenance worker had been assigned the task of replacing a safety cage on a ceiling light in a high school gymnasium.  He was working alone.  While he was rolling a portable aerial device (a type of lifting device) down a ramp off a trailer, the aerial device tipped over and struck the worker, fatally injuring him.

The angle of the ramp was about eight degrees, while the manual for the aerial device stated that it should not be rolled down an incline greater than five degrees.

The school board pleaded guilty to the OHSA charge of failing as an employer to take every precaution reasonable in the circumstances for the protection of a worker.  In particular, the school board failed to ensure that the angle of the ramp was five degrees or less; that the aerial device was rolled down the ramp with its mast on the upper or high end of the ramp to lessen the possibility of it tipping; and that there was another worker present to assist.

The court imposed the fine of $250,000 plus the 25% Victim Fine Surcharge, for a total of $312,250.  This appears to be the largest fine ever in Ontario under the OHSA against a not-for-profit or charitable organization.  The case shows that charities and not-for-profits are not immune from charges and fines under occupational health and safety legislation.

The Ontario Ministry of Labour’s Court Bulletin may be found here.

$250,000 fine against school board may be largest-ever against not-for-profit organization in Ontario

Ontario OHSA convictions, fines inch up in 2014/15, MOL field visits at 11-year low

While the number of field visits conducted by Ontario Ministry of Labour inspectors continued to decline in 2014/15, the number of convictions increased slightly, the Ontario Ministry of Labour’s “Occupational Health & Safety in Ontario 2014-15 Annual Report” shows.

An MOL inspector conducts a “field visit” when he or she visits a workplace and meets with the workplace parties in order to enforce the Occupational Health and Safety Act.

There were a total of 70,604 field visits by MOL inspectors in 2014/15, down from 73,204 in 2013/14 – and down 30% from the 101,275 field visits recorded for 2007/08, which appears to have been the highest number ever.

There were 817 convictions in 2014/15 for offences under the Ontario OHSA, up slightly from 780 in 2013/14.  Convictions result from successful prosecutions by the MOL – either after a trial or a guilty plea.  As we discussed in a previous blog post, the number of convictions has been declining in recent years and reached a six-year low in 2013/14.  We will need to wait to see whether the uptick is part of a new trend towards more convictions.

The number of “critical injuries” reported to the MOL in 2014 was 1,095, which is down slightly from the previous year, but has not declined significantly in the last few years.  There were 81 “traumatic fatalities” in 2014, down from 102 in 2013, but close to the ten-year average of 88.

The total amount of fines for OHSA convictions increased slightly in 2014/15.  The average fine per conviction in 2014/15 was $11,463.73, which is actually slightly down from $11,932.00 in 2013/14. The average fine has held relatively steady over the past few years.

Ontario OHSA convictions, fines inch up in 2014/15, MOL field visits at 11-year low

“Industry standard” is not always appropriate safety precaution, and MOL inspector’s “gut instinct” is not enough to ground compliance order: OLRB

A mining company has won a lengthy dispute with the Ontario Ministry of Labour after satisfying the Ontario Labour Relations Board that the applicable “industry standard” was not appropriate in the case at hand.

The issue in the case was whether the Ontario Occupational Health and Safety Act prohibited the employer from “skipping” (bringing mined ore or muck to the surface using a hoist – like an elevator system – after it has been mined) while shaft inspections were being performed.  A Ministry of Labour inspector had written compliance orders requiring the company to refrain from skipping while inspecting the shaft.

The Ministry argued that the industry standard is to refrain from skipping while inspecting the shaft.  The company showed, however, that this standard should not apply because, in particular, the loading pocket (where material is loaded for transportation to the surface) is at the base of the shaft, below the bottom point at which shaft inspectors would travel when on the inspection deck of the main cage.  Thus, even if the loading pocket malfunctioned, it would not present a hazard to the shaft inspectors because they would be above it. Also, the risk of a falling object injuring the shaft inspectors was very remote, given the precautions already in place.

Interestingly, the Ministry of Labour argued that if the OLRB allowed the appeal and set aside the inspector’s orders, the OLRB would be “playing Russian roulette with worker’s  lives”. The OLRB answered that assertion as follows:

“The Board takes the health and safety of the workers of this province, and the miners at NRS, extremely seriously. However, on the facts of this case the evidence establishes that skipping does not create any reasonably foreseeable increased risk of harm to the inspection crew. It is not enough for the Director to rely on gut instinct to establish the need for an order; the basis for an order must be grounded in evidence and law, and here those grounds are not made out.”

As such, the company’s appeals were allowed and the inspector’s orders were set aside.

Glencore Canada Corporation v. Sudbury Mine, 2015 CanLII 85298 (ON LRB)

“Industry standard” is not always appropriate safety precaution, and MOL inspector’s “gut instinct” is not enough to ground compliance order: OLRB

Does your safety policy require an accident investigation? Court suggests investigation file may not be litigation privileged

An Alberta judge has suggested that if a workplace safety policy or program requires that certain accidents be investigated, then the accident investigation reports may not be subject to litigation privilege – meaning that government safety investigators may be entitled to obtain the investigation file.

The comment was made in a case that involved an investigation by an in-house lawyer after a “whistleblower” complained about a potential conflict of interest by a former employee.  Because the company had not shown that the dominant purpose of the investigation was to assist in anticipated litigation, rather than to satisfy the requirements of the company’s whistleblower program, the investigation documents were not litigation privileged.

The court offered the following analogy, which is of interest to health and safety professionals:

“A useful analogy might be drawn to the many reported cases dealing with fire or explosions at industrial facilities. When such event occurs it is obviously a real possibility that an investigation will result in litigation against, for example, the manufacturer of faulty equipment. However, the owner of the facility likely has workplace safety programs. Defendants to litigation are entitled to explore through cross-examination the parameters of the workplace safety program in order to advance an argument that, while anticipated litigation was one of the reasons for the investigation, the requirements of the workplace safety program was an equal reason for the investigation. Likewise, the defendants in this case are entitled to explore through cross-examination, inter alia, the extent to which the investigation which occurred was required under Talisman’s whistleblower program.”

While, in the whistleblower case, the company was not able to rely on litigation privilege to avoid turning over the investigation documents to the other side in a civil lawsuit, the court decided that the company could rely on legal advice privilege (also called “solicitor-client privilege”).  The court held that one of the purposes of the investigation was to ascertain the facts in order to get legal advice from their in-house counsel and, if the matter proceeded further, their outside counsel.  As such, the investigation file was subject to legal advice privilege and the company was not required to give it to the opposing party.

Employers should ensure, when faced with a serious accident, that they consider retaining legal counsel promptly to provide advice and to attempt to attach “legal advice privilege” to the investigation file. Otherwise, the employer may – depending on what its safety program says about investigations – be required to turn over the entire investigation file to the government safety investigators.

Talisman Energy Inc v Flo-Dynamics Systems Inc, 2015 ABQB 561 (CanLII)

 

Does your safety policy require an accident investigation? Court suggests investigation file may not be litigation privileged

Criminal negligence conviction for landlord who disregarded Fire Code violations, deceived fire inspector

An appeal court has upheld the conviction of a landlord for criminal negligence causing death after numerous Fire Code violations led to a tenant’s death.  The case demonstrates that violations of duties under provincial safety laws can form the basis for a criminal negligence conviction.

The premises had been inspected a number of times before the fire and the landlord was told that specific upgrades, including a system of linked smoke alarms and pulls, with smoke alarms in every bedroom, were required to comply with the Fire Code.

A tenant, who had been drinking heavily, died when his blanket and mattress caught on fire after he left a hot plate on.  The tenant had stayed in his room to try to fight the fire. Another tenant suffered serious burns.  None of the tenants were alerted to the fire by the sound of a smoke alarm.

On appeal, the landlord argued that there was no evidence that his negligence was the legal cause of the tenant’s death.  The Ontario Court of Appeal disagreed, holding that from the trial judge’s findings, it was clear that:

“1. there were no smoke alarms in each upstairs bedroom;

2. the appellant knew that Mr. Dhaliwal [the tenant who died] cooked in his room but failed to take effective measures to prevent this;

3. the appellant knew that Mr. Dhaliwal was a serious alcoholic who was very often drunk, while in his room in the property;

4. the appellant knew that the smoke alarms that were in the house were not working;

5. when the appellant was advised that he was in breach of the Fire Code, he failed to complete the required upgrades, thereby risking the lives and safety of his individual tenants;

6. the appellant deliberately deceived the fire inspector into believing that a group of tenants, living as a family, occupied the second floor of the property and he did so to avoid the costs of bringing the premises into compliance;

7. had the required interconnected smoke alarms and pull system been installed, they would have been activated within seconds of the fire starting, even before there were flames; and,

8. the required smoke alarm system would have provided the occupants with the crucial time needed to avoid injury.”

The appeal court concluded that the trial judge did not err when she held that had the landlord made the upgrades required by the Fire Code, the tenants would have been alerted to the fire before it became too large to extinguish.

As such, the conviction for criminal negligence causing death was upheld.

R. v. Singh, 2015, ONCA 855 (CanLII)

Criminal negligence conviction for landlord who disregarded Fire Code violations, deceived fire inspector

Judge chides employer that countersued against employee for making allegedly “false” safety complaint to Ministry of Labour

Courts should discourage employers from suing employees for making safety complaints to the Ministry of Labour, an Ontario Small Claims Court deputy judge has stated.

An employee, who worked for an electrical contractor that did work in schools, complained to the MOL that electrical panels in certain schools had been “wired incorrectly”‎.  He saw it as a safety concern.  An MOL inspector investigated and found no safety concerns.

The employee was eventually fired, and he sued in the Small Claims Court for wrongful dismissal.  The employer counterclaimed against him for allegedly filing a “false” safety complaint with the Ministry of Labour, costing the employer money to deal with the fallout from the MOL investigation.

In dismissing the employer’s counterclaim, the deputy judge stated:

“Moreover, I take judicial notice of the fact that the Ministry of Labour Health and Safety Contact Centre is set up by the province to permit reporting of, among other things, unsafe working conditions. It would be the worst kind of public policy to encourage people to report unsafe working conditions and then hold them liable in tort if it is determined that the conditions do not fall below the safety standards applied by the Ministry. Reporting to a government safety authority what is honestly believed by the reporter to be unsafe working conditions should enjoy a qualified immunity from tort liability except in cases of total fabrication or perhaps completely unreasonable opinions about safety. No such immunity is required in this case to defend against the Defendant’s Claim however, because all the grounds of liability pleaded by the Defendant require that the report be false.”

‎Further, the employer had not proven any damages.  The employer’s claim for damages for hours spent by its employees dealing with the MOL after the complaint was rejected, with the deputy judge calling one piece of the employer’s evidence regarding its damages, “exaggerated, fanciful, if not downright false”.

Leverton v Roberts Onsite Inc, 2015 CanLII 80170 (ON SCSM)

Judge chides employer that countersued against employee for making allegedly “false” safety complaint to Ministry of Labour

B.C. introduces more legislation to improve workplace safety after mill fires

British Columbia recently introduced legislation to promote workplace safety in sawmills.  Bill 35 will require more extensive involvement from members of the joint health and safety committee during workplace accident investigations, and the immediate reporting of fires or explosions that could cause serious injury to a worker.

Bill 35 is the government’s response to two tragic mill accidents, the subsequent coroners’ reports, as well as specific proposals in the 2014 WorkSafeBC Review and Action Plan. In 2012, two mill explosions, one in Prince George, and one in Burns Lake, killed four men and injured dozens of other workers. Following those accidents, a coroners’ inquest was undertaken which resulted in specific recommendations relating to workplace safety and the standards required for building and refitting mills.  In addition, WorkSafeBC published its 2014 Review and Action Plan that included recommendations to make sawmills a safer place to work and to improve British Columbia’s investigation and inspection regime.

The government accepted all of the recommendations made in the WorkSafeBC Review and Action Plan Report. Bill 35 proposes amendments to the Workers Compensation Act as part of the broader undertaking to improve safety at sawmills.

The proposed legislative changes include the following:

  • Employers must immediately report to WorkSafeBC all fires or explosions that have the potential to cause serious injury to a worker.
  • There must be meaningful participation by workers and employer representatives in employer accident investigations and mandates a specific role for workplace health and safety committees to provide advice to the employer on proposed equipment or machinery changes that may affect worker health or safety.
  • Employer investigation reports must be provided to the workplace health and safety committee or worker health and safety representative, or be posted at the work site.
  • WorkSafeBC will be involved in proactively assisting workplace health and safety committees in resolving disagreements regarding health and safety matters.

Bill 35 also builds on legislative changes made under Bill 9 earlier this year, which increased WorkSafeBC’s ability to promote and enforce occupational health and safety regulations and addresses administrative issues relating to WorkSafeBC’s annual report and service plan and to the WorkSafeBC Superannuation Plan.

If you have any questions about this proposed legislation, please contact Jillian Frank in our Vancouver office at jillian.frank@dentons.com.

 

 

B.C. introduces more legislation to improve workplace safety after mill fires

Moving company fined under smoke-free workplace legislation

As one employer learned recently, smoke-free workplace legislation has teeth.

According to a Nunavut government press release, a government safety officer, in a workplace inspection, “observed evidence of smoking in the workplace.”

The moving company was charged under the Nunavut Environmental Tobacco Smoke Work Site Regulations, made under that Territory’s Safety Act, with failing to control the exposure of workers to environmental tobacco smoke at an enclosed work site.  The company was sentenced to a fine of $2,000, plus a 15% Victim of Crime Surcharge.

The government’s press release states, “It is important that all employers provide safe work environments by prohibiting smoking in an enclosed work site, and outside the enclosed work site within a three metre radius of any entrance to or exit from the site.”

Moving company fined under smoke-free workplace legislation

MOL engineer not qualified to give expert evidence: he was too involved in the investigation, too closely identified with prosecution at trial

An Ontario judge has refused to permit a professional engineer employed with the Ontario Ministry of Labour to testify as an expert in a health and safety prosecution.

A company was charged under the Occupational Health and Safety Act after a drill rig tipped over on a construction site, causing one death and one serious injury.  The cause of the accident was key to the case.

The MOL engineer had prepared a report in which he explored all of the possible causes from an engineering perspective.  He concluded the report with his own opinion as to the root cause of the accident.

The judge held that the MOL engineer was “inextricably bound up with the investigation of this case”.  He was the first person on the scene of the accident along with the MOL’s lead investigator.  He had been closely involved in the MOL’s investigation throughout.  At each point in the MOL’s investigation, the engineer had been performing at least two roles: (1) he was himself investigating directly by his observations, and (2) he was assisting the investigators by being the contact person with the technical knowledge beyond the expertise of the lead MOL investigator.

The judge noted that being an MOL employee did not disqualify the engineer from offering an expert opinion.

However, his extensive involvement in the investigation that led to the MOL laying the Occupational Health and Safety Act charges, and his enthusiastic identification with the prosecution during the trial, led the judge to conclude that the engineer could not give an unbiased opinion on the root cause of the collapse of the drilling rig.  As such, the court refused to qualify the MOL engineer to give expert evidence at trial.

The Ministry of Labour in Right of the Province of Ontario v. Advanced Construction Techniques Ltd. (Justice B. Knazan, April 21, 2015)

MOL engineer not qualified to give expert evidence: he was too involved in the investigation, too closely identified with prosecution at trial

Cost of compliance with safety officer’s order could cause serious economic harm to company: Appeals Tribunal

A safety officer’s compliance order has been suspended where the cost of compliance would be so high that it could cause serious economic harm to the company.

The company performed stevedoring and terminal handling of containers at the Port of Montreal.  It employed “checkers” who used Toyota Echo and Yaris cars to move about the Port coordinating work.  A federal health and safety officer decided that the lighting levels of two terminals at the Port were below the prescribed standards.  She issued a direction requiring the employer to end the violation and increase lighting levels.
The company appealed and applied for a suspension of the direction.  The company presented evidence that in order to comply with the direction, it would need to install 10 new “lighting towers” at a total cost of at least $2 million.  The company also noted that it was impossible to install new lampposts by the compliance deadline because it was winter and the ground was frozen.

The federal Occupational Health and Safety Tribunal Canada decided that the direction should be suspended pending the outcome of the appeal. Firstly, there was a serious legal issue as to whether the direction was legally correct. Secondly, the company would suffer serious harm if the direction was not suspended.  First, it appeared impossible to comply with the direction, by the deadline, given the weather conditions and engineering work involved.  The company could suffer serious economic harm that could threaten the company’s viability, given the cost of compliance.  Further, the inspector took 9 months, after her inspection, to issue the direction, suggesting that the lighting levels did not pose a serious hazard.  Thirdly, the company was willing to put additional safety measures in place – including painting the cars a different colour, installing an LED light at the tip of the flag on the car, and adding lights to the checkers’ safety vests – that adequately protected the checkers.

The Tribunal agreed to suspend the direction on the condition that the company takes action, immediately, to put into place the additional safety measures.

Termont Montréal Inc. v. Syndicat des Débardeurs, ILA Local 375 and Syndicat des Vérificateurs, ILA Local 1657, 2015 OHSTC 7 (CanLII)

Cost of compliance with safety officer’s order could cause serious economic harm to company: Appeals Tribunal

Ontario MOL Releases 2015-16 Safety Inspection Blitz Schedule

The Ontario Ministry of Labour has released its schedule of workplace inspection blitzes for the period from May 2015 to March 2016. The schedule gives employers advance notice of what MOL inspectors will look for when they visit workplaces.

The “province-wide” occupational health and safety blitz schedule is as follows (the MOL has also released a schedule for its “Provincial Initiatives” and “Regional Initiatives”, which can be found on the MOL’s website):

Focus

Sector/Business Type

Date

Struck By Hazards  Construction May – June 2015
New and Young Workers  Industrial May – August 2015
Trenching Hazards  Construction July – August 2015
Mobile Equipment Traffic Control Measures  Mining July – August 2015
Material Handling  Industrial September 14 –
October 23, 2015
Heavy Equipment Operation  Construction October –
November 2015
Modular Training  Mining October –
November 2015
Safe Operation of Machinery  Industrial January 18 –
February 26, 2016
Occupational Disease

 

Mining February –
March 2016

 

 
Ontario MOL Releases 2015-16 Safety Inspection Blitz Schedule

Manager was not a “competent person” to conduct harassment / violence investigation under Canada Labour Code: Court

The Federal Court has held that a manager was not a “competent person” to conduct a workplace harassment investigation under the Canada Labour Code because the employee who filed the complaint had not agreed that the manager was an “impartial party”.

In December 2011, an employee of the Canadian Food Inspection Agency filed a written complaint alleging “miscommunication, favouritism, humiliation, unfair treatment and a lack of respect” on the part of his supervisor.

The CFIA assigned a manager to undertake a “fact-finding” review of the concerns raised in the complaint.  The manager conducted internal investigations and concluded that there were communication issues and unresolved tension, but no evidence of harassment.

The employee contacted a federal Health and Safety Officer, alleging that the manager was not sufficiently impartial to conduct an investigation. The HSO issued a Direction requiring the CFIA to appoint an impartial person to investigate the complaint pursuant to the Canada Labour Code.  The CFIA appealed that direction to an Appeals Officer of the Occupational Health and Safety Tribunal of Canada (who sided with the CFIA), and the employee then appealed to the Federal Court.

The court noted that section 20.9 of Part XX to the Canada Occupational Health and Safety Regulations under the Canada Labour Code sets out procedural obligations of an employer if it receives a complaint of “workplace violence”.  The court held that “harassment may constitute workplace violence, depending on the circumstances”.  The court stated that the alleged harassment in this case could constitute “workplace violence” if after a proper investigation by a competent person it is determined that the harassment could reasonably be expected to cause harm or illness to the employee.  (Workplace Violence is defined in that Regulation as, “any action, conduct, threat or gesture of a person towards an employee in their work place that can reasonably be expected to cause harm, injury or illness to that employee.”

The court noted that under the workplace violence provisions of the Regulation, a person is a “competent person” to conduct a workplace violence investigation if he or she is “impartial and is seen by the parties to be impartial” and has the necessary knowledge, training and experience.

In this case, the employee who filed the complaint did not agree that the manager was impartial.  The court stated:

“What the employer did here was have the Regional Director, Mr. Schmidt, not only institute a pre-screening and fact finding exercise to determine the nature of the complaint and attempt to facilitate mediation, but also conduct a full investigation of the complaint, acting as a competent person under section 20.9(3). In his report, Mr. Schmidt mentions ‘investigation’ eight times and refers to his review of the evidence before him. He was not competent to do so, given there was no agreement that he was an impartial party by the employee and therefore had no authority to conduct any investigation, once the allegation of work place violence was unresolved at the pre-screening stage and still a live issue between the parties.”

As such, the manager’s investigation was essentially unusable, and the court referred the matter back to the Appeals Officer for re-determination of the issues in accordance with the court’s decision.

This decision shows the importance of employers – at least federally-regulated employers who are subject to the Canada Labour Code – of strictly complying with the workplace violence and harassment procedures set out in legislation or regulations.

Public Service Alliance of Canada v. Canada (Attorney General), 2014 FC 1066 (CanLII)

Manager was not a “competent person” to conduct harassment / violence investigation under Canada Labour Code: Court

Mere posting of standard operating procedure was not enough: OLRB refuses to suspend MOL inspector’s training order

Employers often post new procedures in the workplace without providing formal training.  A recent decision of the Ontario Labour Relations Board suggests that for some work procedures, posting is not enough; rather, training is required.

After a concern was expressed, a transit company updated its Standard Operating Procedure on how to handle a complete brake system pressure loss.  A Ministry of Labour inspector asked whether all affected employees have been trained on the updated procedure, which had been posted on information boards and video screens.  The employer’s response was that affected employees should read the information boards and video screens.

The inspector was apparently concerned that the employer could not prove that all affected employees were aware of the new procedure or how it was to be applied.  The inspector ordered the employer to “provide instruction and training” on “the hazards of vehicular traffic in the event of a complete brake system pressure loss in a bus”.

The employer appealed the order and argued that there was no suggestion that the employees did not understand the updated procedure or that they were not aware of it. As such, said the employer, the inspector’s order should be suspended pending the appeal.

The Ontario Labour Relations Board held that the failure to train or instruct on the updated procedure could endanger the safety of employees.  Further, the training did not put an onerous burden on the employee.  As such, the mere posting of the procedure was not enough, and the MOL inspector’s training order was not suspended.

London Transit Commission v Amalgamated Transit Union, 2014 CanLII 68423 (ON LRB)

Mere posting of standard operating procedure was not enough: OLRB refuses to suspend MOL inspector’s training order

“Not the right fit”? Fired hours after MOL inspector’s visit, employee awarded $19,000 in damages

Employers who have bona fide reasons for dismissing an employee should avoid using “not the right fit”. They should also show up at Ontario Labour Relations Board hearings.

An employee who was dismissed hours after a Ministry of Labour inspector’s visit, was fired in retaliation for raising safety issues and was awarded $19,000.00 in damages.

The employee was a maintenance manager at a hotel.  In May 2014, an anonymous telephone call was made to a MOL health and safety inspector regarding floor drains backing up at the hotel as well as a “precariously hanging partition wall hanging in the ballroom”.  Around the same time, the employee had informed the hotel’s General Manager that the employee required a fall protection harness in order to work on a 25 foot high scaffold. The General Manager refused his request and ordered him to do the work without a safety harness.

The MOL inspector met with the employee and General Manager, and issued an order that required the hotel to use a suitable company to repair the partition wall as it was too dangerous for the maintenance department to repair.  Despite that, the General Manager continued to pressure the employee to climb the scaffold.

A few hours after the inspector left, the General Manager dismissed the employee. The termination letter stated that the employee was “not the right fit to our hotel property”, while the hotel’s response to the employee’s reprisal complaint at the OLRB claimed that he was “not skilled enough for the position” and that he had not been terminated “because he refused dangerous work”.

The Ontario Labour Relations Board found that the hotel’s “attempted explanation” for the employee’s dismissal was questionable, “to express it mildly”.  If the employee had not been the right fit, or was not skilled enough, then there would have been written or verbal evidence to that effect.  However, there was no evidence that the employee had any shortcomings, and in fact the General Manager had responded “Awesome” to an e-mail from the employee in which he had described some “things which I would like to accomplish in the maintenance department”.  No one had attended the OLRB hearing for the hotel.

The OLRB decided that the employee had suffered a reprisal under the Occupational Health and Safety Act: he was fired for raising safety issues.  That was a violation of the OHSA.  There was no other possible conclusion.  The OLRB awarded the employee six months’ wages, amounting to $19,000.00, and ordered the hotel to post a copy of the OLRB’s decision in the hotel’s premises so it could be read by maintenance staff.

Sean Rapke v Sylvanacre Properties Limited o/a Four Points Sheraton, 2014 CanLII 75962 (ON LRB)

“Not the right fit”? Fired hours after MOL inspector’s visit, employee awarded $19,000 in damages

Employer Who Voluntarily Complied with MOL Inspector’s Orders Was Not Entitled to Suspension of Orders Pending Appeal

The Ontario Labour Relations Board has held that where an employer had complied with a Ministry of Labour inspector’s compliance orders under the Occupational Health and Safety Act, to the satisfaction of the MOL, the operation of the orders should not be suspended while the employer appeals the orders.

Employers sometimes appeal MOL inspectors’ orders after an accident, in the hopes of obtaining a decision from the OLRB that the employer did not commit any violation of the OHSA that would justify the orders.  Such a decision can be useful in avoiding charges under the OHSA.

In those cases, employers will often seek a suspension of the inspector’s orders until the appeal is decided.

The OLRB decided, however, that where the employer has already complied with an order, the suspension request is moot and should not be granted. In particular, there was no prejudice to the employer if the operation of the order was not suspended.

This decision shows that an employer wishing to obtain such a suspension cannot voluntarily comply with the orders. Instead, the employer must quickly appeal the order and apply for a suspension, before the deadline set by the MOL inspector for compliance with the order.  The employer may, however, proceed with the appeal of the (unsuspended) order.

Horizon Utilities Corporation v A, 2014 CanLII 75404 (ON LRB)

Employer Who Voluntarily Complied with MOL Inspector’s Orders Was Not Entitled to Suspension of Orders Pending Appeal

Where MOL Inspector Withdraws OHSA Compliance Order, OLRB Cannot Reinstate While Appeal Argued

Although an employer may appeal a Ministry of Labour inspector’s rescission (withdrawal) of a compliance order that he or she wrote to an employer under the Occupational Health and Safety Act, the Ontario Labour Relations Board cannot suspend that rescission – effectively reinstating the order – until the appeal is decided, the OLRB has held.

In July 2014, an MOL inspector issued 4 orders against the Ontario Ministry of Children and Youth Services.   In August, the inspector rescinded 3 of those orders.

The union, Ontario Public Service Employees Union, appealed the rescission of the 3 orders and asked the OLRB to suspend the inspector’s rescission of those 3 orders pending the result of the appeal.  Effectively, the union was asking for the orders to be reinstated while the appeal was being argued.

The OLRB refused to suspend the rescission of the 3 orders. It stated that the OLRB has authority to suspend the operation of an order, but not of a non-order.  The MOL inspector’s rescission of the order was equivalent to not issuing an order.   There was nothing to suspend.

This means that where an MOL inspector withdraws a compliance order under the OHSA, the order will remain withdrawn unless and until the OLRB, after hearing the full appeal, reinstates the order.

Ontario Public Service Employees Union v Ontario (Ministry of Youth and Children Services), 2014 CanLII 75073 (ON LRB)

Where MOL Inspector Withdraws OHSA Compliance Order, OLRB Cannot Reinstate While Appeal Argued

Total fines now $1.24 million in Christmas Eve fatalities after swing stage company and director fined

The total of safety fines paid for the December 24, 2009 swing stage collapse fatalities is now $1,240,000 after Swing N Scaff Inc., the company that supplied the swing stage platform (a suspended work platform), was fined $350,000.00 and a director of Swing N Scaff was fined $50,000.00 under the Ontario Occupational Health and Safety Act.

Four parties have now been convicted and fined as a result of this tragic accident: Metron Construction Corporation, a director of Metron, Swing N Scaff and a director of Swing N Scaff.

The Ministry of Labour states, in its press release, that at least six workers were on the swing stage suspended 13 floors above the ground when it broke apart in the middle and collapsed.  Ministry of Labour investigators found that the welds on the platform were inadequate.  Tragically, four workers died.

Swing N Scaff pleaded guilty to the Occupational Health and Safety Act offence of failing to ensure that a suspended platform and/or a component supplied to Metron Construction was in good condition.

The director of Swing N Scaff pleaded guilty to failing to take all reasonable care to ensure a suspended platform was in good condition and that a platform weighing more than 525 kilograms was designed by a professional engineer in accordance with good engineering practice.

Previously, Metron Construction was fined $750,000.00 for criminal negligence under the “Bill C-45” amendments to the Criminal Code; that amount was increased on appeal from the $200,000.00 fine set by the trial justice.  Metron’s Criminal Code liability resulted from the actions of its site supervisor, who Metron admitted was a “senior officer” of Metron, so that his actions were taken to be the actions of Metron.  The site supervisor had directed and/or permitted six workers to work on the swing stage when he knew or should have known that it was unsafe to do so; directed and/or permitted the six workers to board the swing stage knowing that only two lifelines were available; and permitted persons under the influence of drugs to work on the project.

A director of Metron Construction was previously fined $90,000.00 under the Occupational Health and Safety Act for failing to ensure that non-English speaking workers received written material in their native languages and failing to ensure that training records were maintained; failing to ensure that the swing stage was not defective or hazardous (by allowing it to be used without having received any of the required information with respect to its capacity and use); and failing to ensure that the swing stage was not loaded in excess of the load that the platform was designed and constructed to bear.

The Ministry of Labour’s press release on the Swing N Scaff fine may be read here.

Total fines now $1.24 million in Christmas Eve fatalities after swing stage company and director fined

Failing to correct hazards, pay OSHA fines gets U.S. business owner taken into custody

An Illinois business owner has been taken into custody after his business failed to correct serious trenching hazards and pay Occupational Safety and Health Administration penalties.  The case illustrates the personal risk to business owners and executives who neglect occupational health and safety legislation.

An April 2013 statement from OSHA said that the business owner had been cited for “seven safety violations, including three willful, for failing to protect workers from cave-ins and moving soil and chunks of asphalt during trenching operations.”

A U.S. judge granted a motion filed by the U.S. Secretary of Labor against the owner, a sewer and water contractor.  OSHA states the business owner had a “long history of failing to comply with OSHA standards and orders of the independent Occupational Safety and Health Review Commission”.

OSHA reports that the court had previously issued an enforcement order against the owner and when he failed to comply, the court held him in contempt.  Then, after receiving no response from the owner, the court granted the Secretary of Labor’s motion to take “coercive actions”, ordering him placed into the custody of the Attorney General.

OSHA says that the owner will remain in custody until he has either fully complied with the court’s enforcement order or demonstrated that he is unable to comply.

OHSA’s statement on this matter may be read here.

Failing to correct hazards, pay OSHA fines gets U.S. business owner taken into custody