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Ontario man fined $6,000 for illegal use of “professional engineer” title when seeking job

An Ontario man has been found guilty of three counts of violating the Professional Engineers Act by using the protected title, “P.Eng.” in a resume and in communications with a construction firm at which he was seeking employment.

The construction firm had asked for confirmation of the man’s P.Eng. status on several occasions, and then called Professional Engineers Ontario which confirmed that he had never been a licenced professional engineer in Ontario.

The man was fined $2,000.00 on each of the three charges, for a total of $6,000.00.

Employers often retain professional engineers for safety-related advice, such as whether a machine is properly guarded.  Employers should take steps to confirm that the person holds a “P.Eng.” and a “Certificate of Authorization” that authorizes individuals and companies to carry on business offering and providing professional engineering services to the public.   The PEO maintains searchable online directories.

Professional Engineers Ontario’s press release can be found here.

Ontario man fined $6,000 for illegal use of “professional engineer” title when seeking job

Vague OHSA charges must be clarified: court orders prosecutor to provide particulars of charge

A judge has ordered a prosecutor to provide “particulars” of a vague charge under the Nova Scotia Occupational Health and Safety Act, so the constructor could understand the charge against it.

The constructor was charged with four OHSA offences following an accident in which an employee was severely injured on a construction site after he activated power to a swing stage (suspended platform) and a metal outrigger fell on him.  The constructor argued that two of the four charges were vague, so that it needed more particulars (details) of those charges in order to defend against them.

The judge referred to the two charges as “general duty” offenses.  The first charge alleged that the constructor had failed to “take every reasonable precaution to ensure the health and safety of a person at a workplace”.  The second charge alleged that the constructor failed “to ensure communication between employers and self-employed persons at a project of information necessary to the health and safety of persons at the project.”  The judge noted that the charges “track[ed] the language of the legislation”.

The judge concluded that the constructor did not risk “being broad-sided by an infinite range of allegations” on the first charge.  The disclosure from the prosecutor indicated that the prosecution would assert that the constructor should not have disassembled the swing stage in the first place, and that having done so, the constructor should have taken precautions to ensure that no employee was hurt as a result.  As such, the constructor knew what the charge was about, and was not entitled to particulars of the first charge.

With respect to the second charge, the judge decided that the disclosure did not provide a “specific enough characterization of the communications that the prosecutor is alleging” the constructor was responsible for making.  Particulars would clarify to whom the prosecutor says the constructor should have communicated and how and what it should have communicated.  As such, the prosecutor was ordered to provide particulars for the second charge.

R. v. McCarthy’s Roofing Limited, 2016 NSPC 21 (CanLII)

Vague OHSA charges must be clarified: court orders prosecutor to provide particulars of charge

$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

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

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

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

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

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

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

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

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

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

Electrical contractor fined $537,500 after death of resident from faulty electrical work

An electrical contractor has been hit with a huge fine after its faulty electrical work led to a resident’s death.

The contractor had installed an in-floor heating system in the bathroom of a home.  The resident, an elderly man, fell on the floor in the bathroom and suffered second- and third-degree burns from the overheated floor.  He died in hospital.  The Electrical Safety Authority (Ontario) determined that the floor’s heat system sensor had not been installed, and the heating system was wired to an incorrect voltage level.

The electrical contractor pleaded guilty to three charges of violating the Ontario Electrical Safety Code: leaving an unsafe electrical condition; failure to procure connection authorization before use; and failure to apply for an electrical inspection.  According to the Electrical  Safety Authority, the fine was “the largest fine in the history of electrical contractor licencing in Ontario.”

The charges were not under the Occupational Health and Safety Act because they dealt with a hazard to the resident, not a worker.  The charges, and the fine, show that serious liability can result from multiple pieces of regulatory legislation when safety is neglected.

The Electrical Safety Authority’s press release may be found here.

Electrical contractor fined $537,500 after death of resident from faulty electrical work

Ontario MOL now posting “de-identified” information on fatalities online, even before OHSA charges laid

Ontario workplace fatalities could now result in a “de-identified” posting on the Ministry of Labour’s website, even before Occupational Health and Safety Act charges are laid.

The postings provide a brief description of the incident, and then list occupational health and safety “Resources” in relation to the incident.  Employers could view the “resources” as pointing to the types of OHSA charges that the Ministry might lay.  The Ministry, possibly having considered that point, states, “Please note that at the time this information is published on this page, the Ministry has not made any final determinations with respect to the fatality.  The postings are developed with the intention of safeguarding the privacy of individuals involved and the integrity of MOL investigation [sic] and any possible legal proceedings.” [bolding is the MOL’s]

An example of a recent posting is as follows:


 

Date of Incident: February 2016
Location: Central Ontario
Posted: February 24, 2016

Individual was struck by mobile equipment at industrial site. Individual later succumbed to injuries.

Resources:

Material Handling

Guideline for the Safe Operation and Maintenance of Powered Lift Trucks

Heavy Equipment

Struck-By Hazards


 

The Ministry of Labour’s “Workplace fatalities” page can be found here.

 

Ontario MOL now posting “de-identified” information on fatalities online, even before OHSA charges laid

No contempt in the face of the “voluminous” British Columbia Occupational Health and Safety Regulation

In the wake of some recent high-profile workplace accidents, 2015 legislative amendments to the Workers Compensation Act were designed to give WorkSafeBC more tools to enforce its mandate.  Among other things, WorkSafeBC can now apply to the Court for an injunction restraining an employer from operating in an industry where it has contravened the Occupational Health and Safety Regulation and where it is likely to continue doing so.  This, and other orders, are generally enforced by way of contempt proceedings.

However, a recent decision of the British Columbia Supreme Court demonstrates that where WorkSafeBC seeks the assistance of the courts, a finding  that parties are in contempt will not necessarily follow.  In late February 2016, the British Columbia Supreme Court declined to find two principals of organizations engaged in asbestos abatement, which had been the subject of as many as 244 orders by WorkSafeBC, in contempt of a 2012 order that they comply with the entire Act and Regulation.

Although written reasons for the decision have not yet been provided, Mr. Justice Macintosh’s decision appears to turn on an assessment that the 2012 order to comply with the entire legislation and associated regulations was too broad, and, in particular, that the Regulation was too “voluminous”.  This decision has many stakeholders in the province wondering about its broader implications, and WorkSafeBC has already indicated that it will appeal once written reasons are released.  According to WorkSafeBC, the basis for its appeal will be that it requires clarity from the Court of Appeal as to whether the size and complexity of a regulation can be a defence to a contempt application.

The history to this case is lengthy, and WorkSafeBC has alleged that the employer has repeatedly violated the Act and Regulations, putting individuals at risk of asbestos exposure.  By 2012, WorkSafeBC sought the assistance of the B.C. Supreme Court and sought an order that the organizations and their principals comply with the entire Act and Regulations.  The order was granted, and in the months following, the principals and some of their companies claimed against WorkSafeBC and others in Provincial Court, Superior Court, and at the British Columbia Human Rights Tribunal, alleging, among other things, that WorkSafeBC and certain employees unfairly targeted the principals because of their race, colour, ancestry and place of origin.  And further, that WorkSafeBC and others unduly interfered with the business due to the imposition of a mentoring program, and engaged in malfeasance in public office, discrimination contrary to the Civil Rights Protection Act, slander and defamation, and intentional interference with contractual relations.  The complaint under the Human Rights Code has since been dismissed by the British Columbia Human Rights Tribunal.

By late 2013, WorkSafeBC was back at Supreme Court seeking an order that the principals were in contempt of the 2012 order, which was granted in part.  However, further attempts to address alleged non-compliance with the Act and Regulations appear to have been stymied by the February 2016 decision, and the reasons for this most recent decision in the ongoing dispute, and WorkSafeBC’ s expected appeal, are therefore highly anticipated.

WorkSafeBC’ s comments on the decision can be found here: http://www.worksafebc.com/news_room/news_releases/2016/new_16_03_16.asp?_ga=1.237658628.562962873.1448414730 and here: http://www.worksafebc.com/news_room/news_releases/2016/new_16_03_02.asp

The author thanks Amelie Boultbee, articling student with Dentons in Vancouver, for her assistance with this article.

No contempt in the face of the “voluminous” British Columbia Occupational Health and Safety Regulation

Death of visitor leads to employer’s conviction, $100,000 fine under OHSA

This case is a reminder that injuries to non-employees can lead to Occupational Health and Safety Act convictions and fines against employers.

A visitor to a self-storage facility in North Bay fell through an open hole in the floor of a storage unit, after he came to the facility to examine a truck that was being stored there.  He fell about 6 feet to the concrete floor below and died.

The company that operated the self-storage facility pleaded guilty to the OHSA offence of failing as an employer to take every precaution reasonable in the circumstances for the protection of a worker (failing to ensure that an open hole in the floor of a storage unit was protected by a guardrail or floor covering).

The Ministry of Labour notes, in its Court Bulletin, that the OHSA applies “because there were workers at the site who were exposed to the same hazard and the company is an ’employer'” under the OHSA.  That is, even where the injured employee is not a worker / employee, if the injury resulted from a hazard to which workers were also exposed, the OHSA applies and the employer may be charged and fined.

Death of visitor leads to employer’s conviction, $100,000 fine under OHSA

Criminal negligence causing death charge against auto mechanic reinstated by appeal court

A charge of criminal negligence causing death against an auto mechanic may proceed, the Ontario Court of Appeal has decided, holding that it was possible that a reasonable jury could find that the mechanic was a “significant contributing cause” of a woman’s death.

The case illustrates that workers – perhaps particularly those who repair or operate vehicles or equipment – could face criminal charges if they are negligent and the negligence causes injury or death.

The mechanic issued a Safety Standards Certificate to the purchaser of a 17-year-old pickup truck.  The Safety Standards Certificate was required to complete the transfer of ownership.  There was evidence that the mechanic did not conduct the legally-required inspection of the truck.  A month later, the truck was involved in an accident in which the driver lost control and collided with an oncoming vehicle driven by the young woman, who died as a result of the accident.

There was evidence at a preliminary inquiry that the truck would not have passed a safety inspection and that there was a serious defect in the truck’s steering mechanism (“excessive free play” in the steering wheel).  The appeal court noted that an O.P.P. accident reconstructionist concluded that the steering defect pre-dated the collision and would cause the driver to over-correct in a panic situation, leading to a loss of control and further over-steering. Also, there was evidence that the truck “fishtailed” before the collision; the previous owner had testified that the steering wheel wandered” and had “a little bit of play”; there was testimony that the purchaser of the truck was planning on installing a new steering shaft; and there was testimony that both the driver and the purchaser thought to blame the accident on the steering shortly after the accident.

The Ontario Court of Appeal therefore concluded that a reasonable jury could find that the mechanic was a significant contributing factor to the death and that the mechanic was therefore guilty of criminal negligence causing death. Therefore, the charge of criminal negligence causing death should proceed to a trial.

R. v. Ramono, 2015 ONCA 685 (CanLII)

Criminal negligence causing death charge against auto mechanic reinstated by appeal court

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

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

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

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

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

The Alberta Government news release

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

$5.3 million fine in Sunrise Propane case after joint prosecution under OHSA and EPA

Some cases illustrate very well the principle that “the more dangerous your operation, the more careful you must be”.  This case, involving a joint prosecution by the Ministry of Labour and Ministry of Environment, is one of them.

Sunrise Propane Energy Group Inc. and its directors have been fined a total of $5.3 million under both the Occupational Health and Safety Act and the Environmental Protection Act, following high-profile explosions at a propane-filling plant in Toronto more than seven years ago.

A young worker with short service was killed by the explosions.  Propane was accidentally ignited during a prohibited truck-to-truck transfer.  The explosions also discharged contaminants from fuel tanks, resulting in an evacuation in the area. Some area residents suffered injuries and burns and local businesses lost business as they were forced to close.

Sunrise Propane was fined $280,000 plus a victim fine surcharge of $70,000 for failing to train and supervise workers on safe work practices and failing to take every reasonable precaution to protect workers, contrary to the Occupational Health and Safety Act.  OHSA charges are prosecuted by the Ministry of Labour.

In a previous post, we noted that the court, in its 2013 decision convicting the company and directors in 2013, held that the young worker had not been properly supervised.  The employer did not take the simple step of giving the employee a phone number to call if he had any questions.  Nor did any supervisors call him to check in on him.  The employee should not have been put in charge of the propane yard on the night in question, given his lack of experience.

Referring to the dangerous nature of this workplace, the court had stated in its 2013 decision:

“I am sure that the defendants were well meaning, to a degree, but in an inherently dangerous business such as this there must be a high degree of attention to detail and processes in place that address day-to-day issues, particularly instructing, training and supervision for people handling this very dangerous fuel.  People make mistakes and processes assist in mitigating any damage that arises when employees make those mistakes.”

Sunrise Propane was also fined $2,820,000 plus a victim fine surcharge of $705,000 for failing to comply with a cleanup order from the Ministry of the Environment and Climate Change after the explosions, and for discharging a contaminant that caused adverse effects.  Two company directors were fined $100,000 each plus a victim fine surcharge of $25,000 each for not complying with an order.  A related company was fined $2 million plus a victim fine surcharge of $500,000 for the discharge of the contaminant that caused adverse effects.  EPA charges are prosecuted by the Ministry of the Environment and Climate Change.

The press release from the Ministry of Labour may be found here, and the press release from the Ministry of the Environment and Climate Change may be found here.

$5.3 million fine in Sunrise Propane case after joint prosecution under OHSA and EPA

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

Contractor jailed for 30 days, fined $45,000 after serious asbestos violations

Every now and then a case comes along to remind us that violators of occupational health and safety legislation can be sent to jail.

Mind you, this case involved not only serious safety violations, but also deceit and illegal dumping.

An Ontario contractor has been jailed for 30 days and fined $45,000, after a successful prosecution by the Ontario Ministry of Labour, for violating the asbestos regulation under the Ontario Occupational Health and Safety Act.

According to the Ministry of Labour court bulletin, on two separate dates in 2014, the contractor, along with at least one of his workers, went to a residential home to remove asbestos-containing insulation from the attic.

The contractor did not separate and seal off the work area; did not have any decontamination facilities in place; did not identify the work area with any signs warning of an asbestos dust hazard; did not wear protective clothing; and he and his worker wore respirators that were not fit-tested and on which they were not trained. Further, the contractor did not notify the Ministry of Labour of the asbestos removal work as required by the asbestos regulation. The contractor had told the homeowner that the removal work was being done in accordance with the asbestos regulation, and that the contractor was certified to do the work, but neither was true. The homeowner and two other people were in the home while the work was being done.

The Ministry of Labour, Ministry of Environment and police got involved when someone reported that vacuum bags with asbestos-containing insulation had been illegally dumped on private property.

After a trial, the contractor was found guilty on nine charges under the Occupational Health and Safety Act and Regulation 278/05 (“Designated Substance – Asbestos on Construction Projects and in Buildings and Repair Operations”) under the OHSA.  The court stated that this was a case of clear deceit and misrepresentation by the contractor and total disregard for the health and safety of workers and the public.

The court then imposed the thirty-day jail sentence and $45,000 fine.

The Ministry of Labour’s court bulletin may be accessed here.

Contractor jailed for 30 days, fined $45,000 after serious asbestos violations

Summary of judge’s reasons for giving Kazenelson, “unquestionably a person of good character”, a 3 1/2 year jail sentence for criminal negligence

The judge’s reasons for sending Metron Construction’s project manager, Vadim Kazenelson, to jail for criminal negligence are now available here.

In our post of January 11th, we reported that the judge had sentenced Mr. Kazenelson to 3 1/2 years in prison.

Mr. Justice MacDonnell’s reasons for imposing the 3 1/2 jail term are as follows:

-Although Mr. Kazenelson was of “good character prior to the accident and has continued to be of good character in the six years since”, and he was remorseful and unlikely to commit further criminal offences of any kind, the offences and their consequences were very serious: four men lost their lives and a fifth suffered devastating and life-altering injuries.

-As the Crown and Mr. Kazenelson agreed, the principles of denunciation and general deterrence (sending a message to others, to prevent similar crimes in future) required a term of imprisonment.

-Mr. Kazenelson’s breach of duty was “more than a momentary lapse”.  He was aware that the workers were working 100 feet or more above the ground without lifelines.  “His duty to take steps to rectify this dangerous situation was fully engaged, and it remained engaged for some time” (he was with the workers for at least 30 minutes prior to the accident).

-He not only did nothing, he permitted all six workers to board the swing stage together with their tools.

-He did so in circumstances where he had no information with respect to the capacity of the swing stage to safely bear the weight of the workers and their tools.

-Mr. Kazenelson “adverted to the risk, weighed it against Metron’s interest in keeping the work going, and decided to take a chance.  That is a seriously aggravating circumstance in relation to the moral blameworthiness of his conduct.”  Mr. Kazenelson was aware that there was a deadline for completing the work and that his boss was intent on meeting it.

-“A consideration of all of the circumstances can lead only to the conclusion that a significant term of imprisonment is necessary to reflect the terrible consequences of the offences and to make it unequivocally clear that persons in positions of authority in potentially dangerous workplaces have a serious obligation to take all reasonable steps to ensure that those who arrive for work in the morning will make it safely back to their homes and families at the end of the day.”

In the end, Mr. Kazenelson, now a 40 year old father of three young sons, described as “honest, hardworking, conscientious and safety-minded”, “a good and devoted father to his children” and “unquestionably a person of good character” who was providing support to his mother who resides overseas, was sentenced to 3 1/2 years in prison.  Mr. Kazenelson has appealed his conviction for criminal negligence, so it would appear that the case is not over yet.

R. v Vadim Kazenelson, 2016 ONSC 25 (CanLII)

 

Summary of judge’s reasons for giving Kazenelson, “unquestionably a person of good character”, a 3 1/2 year jail sentence for criminal negligence

3 1/2 years in prison for Metron project manager, Kazenelson, after criminal negligence conviction

Vadim Kazenelson, the project manager for Metron Construction, was sentenced today to 3½ years in prison for criminal negligence.

This is the longest-ever jail sentence handed down for criminal negligence under the “Bill C-45” amendments to the Criminal Code in 2004 that made it easier to convict workplace supervisors for criminal negligence.

The charges relate to the tragic accident on Christmas Eve 2009 in which four workers – who were not wearing fall-arrest equipment – fell to their death after a construction swing stage, on which they were working, failed.

CBC News is reporting that “during sentencing, Justice Ian MacDonnell said Kazenelson was aware that fall protections were not in place, but still allowed his workers to board a swing stage that collapsed, causing five workers to plummet to the ground.”

Mr. Kazenelson has appealed his criminal negligence conviction and has been granted bail pending that appeal.

According to CBC News, the prosecutor was seeking a jail sentence of four or five years, whereas the defence was suggesting a one- or two-year jail sentence.

CBC News reports that Justice MacDonnell said that Mr. Kazenelson put the company’s interest — in particular getting the work finished ahead of a December 31 deadline — before the safety of workers when the decision was made to continue work without safety harnesses.

The June 26, 2015 decision in which Mr. Kazenelson was found guilty of criminal negligence, may be accessed here.

3 1/2 years in prison for Metron project manager, Kazenelson, after criminal negligence conviction

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

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

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

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

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

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

R. v. Prodromidis, 2015 NWTTC 18

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

Fraud conviction for worker who collected workers’ compensation benefits after returning to job

A Saskatchewan labourer has pleaded guilty to fraud after having been caught collecting workers compensation benefits following his return to work.

He has also been ordered to reimburse the Saskatchewan Workers’ Compensation Board for more than $22,000.00 in workers compensation benefits that he received.

The man avoided jail time but was given a conditional sentence of two years less a day.

The Saskatchewan Workers’ Compensation Board press release can be read here.

 

Fraud conviction for worker who collected workers’ compensation benefits after returning to job

OHSA charges dismissed against tourist resort in boating fatality

An Ontario court has dismissed two charges under the Occupational Health and Safety Act against a tourist resort after the Ministry of Labour failed to prove its case.

The charges followed an incident in 2012 in which a boat operated by an employee of the resort suddenly veered to the right and crashed into a rocky shoreline. Two passengers in the boat, who were guests at the resort out on the lake for fishing, died as a result of the impact.

The MOL charged the resort with failing to maintain a “steering friction adjuster” ‎on the outboard motor (which limited the ability of the motor to swing to one side, causing the boat to turn sharply) and failing to ensure that an “engine shut-off lanyard” was “used as prescribed”.  The lanyard, if tethered to the operator of the boat, would shut off the engine if the operator moves to far away from the motor, such as being thrown from the boat.

On the first charge, the court held that other than the fact that there was no resistance on the steering friction adjuster, there was no evidence that this condition was the result of a failure to maintain the motor.  ‎In particular, a boat mechanic who examined the motor after the accident was unable to open and examine the steering friction adjuster because of the direction that he understood he had received from the police.  As such, the prosecutor has not proven that the lodge failed to maintain the steering friction adjuster.

With respect to the second charge, the court held that “prescribed” meant prescribed by a regulation under the OHSA. The MOL inspector admitted at trial, though, that there was no regulation dealing with the use of a tether strap as a protective device. “Prescribed” ‎did not refer to any requirement in the manual provided by the manufacturer. As such, the second charge was also dismissed.

This case demonstrates the importance of obtaining a careful legal assessment of OHSA charges before deciding whether to defend or plead guilty. Charges that appear, on their face, to be impossible to defend can sometimes be beaten because the evidence does not support a conviction on the strict wording of the charge.

R. v. Ash Rapids Camps Inc., 2015 ONCJ 648 (CanLII)

OHSA charges dismissed against tourist resort in boating fatality