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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 court 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

Post-accident remedial measures were a “small bit of common-sense engineering”, relevant evidence in finding company guilty of OHSA offences

An employer’s post-accident efforts to fix a safety issue were relevant to the issue of whether it had violated the Occupational Health and Safety Act at the time of the accident, an Alberta judge has held.

An employee died after sustaining a blunt force blow to his head while working as a “floorhand” on the floor of a drilling rig. The company was charged with two offences under the Alberta Occupational Health and Safety Act: failing to ensure the safety of the worker, and failing to eliminate an identified hazard.

Over the company’s objections, the judge permitted the prosecutor to call evidence about an interlock/warning device that the company had designed and installed after the accident that would prevent, or at least reduce the risk of, similar accidents.  The judge stated:

“The Defence also argued that public policy favoured not admitting such evidence.  In my view, at least for a strict liability regulatory offence the public policy arguments favour admission.  The whole tone of the Act is to encourage proactive safe practices designed to prevent rather than react.  This requires employers to provide wide efforts at compliance.”

The court rejected the company’s argument that post-accident evidence should not be admitted because it would discourage “innovation and repair” – that is, discourage companies from fixing safety hazards after accidents for fear that the prosecutor could argue that that fix should have been implemented before the accident.

Interestingly, the court also stated,  “In not having heard of, let alone used this safety interlock the Defendant may have fallen victim to their own size and expertise in assuming that they defined industry standards . . . It is nothing more than applying a small bit of common-sense engineering to a known problem.”  The court noted that there were “other even simpler technical solutions which would have helped avoid this situation.”  The company had led no credible evidence that the engineering solution was an “unproven innovation” or an “incomplete engineering solution” that they could not reasonably have identified before the accident.

The court considered the evidence about the post-accident fix to be relevant, admissible and important. The court found the company guilty on both charges.

R. v. Precision Drilling Canada Limited, 2015 ABPC 115 (CanLII)

Post-accident remedial measures were a “small bit of common-sense engineering”, relevant evidence in finding company guilty of OHSA offences

Misled by official, company proves “officially induced error”, beats charges

The defence of “officially induced error” is rarely used successfully, but in a recent Highway Traffic Act case, it won the day.

A company in the business of construction and snowplowing was charged under the Highway Traffic Act with driving a snowplow on a highway without a permit, after the out-of-service snowplow was driven to a garage to have some engine/exhaust problems fixed.

The company proved that it had visited an Ontario Ministry of Transportation (MTO) office counter and was told that the snowplow was exempt from the permit requirement.   The company then made inquiries of an MTO official who confirmed in an e-mail that, as the company understood it, there was a snowplow “registration exemption” under the Highway Traffic Act. The official was wrong: the exemption applied to weight requirements, not to registration (permits).

The court decided that the company had established the “officially induced error” defence that applies to regulatory charges (including occupational health and safety charges).  The company had committed an “error of law”; it had thought about the legal consequence of its actions; it had received advice from an appropriate official; the advice was reasonable; the advice was erroneous; and the company reasonably relied on the advice.

The company was thus not guilty of the offence of failing to obtain a permit for the snowplow.  This decision is a reminder that the little-used defence of “officially induced error” is alive and well. Employers charged under occupational health and safety legislation after being misled by government safety officials, should consider arguing this defence.

Durham (Regional Municipality) v. D. Crupi & Sons Ltd., 2015 ONCJ 488 (CanLII)

 

Misled by official, company proves “officially induced error”, beats charges

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

Safety contractor wins appeal of $1,000 administrative penalty under OHSA

Don’t be seen to cause a traffic jam that inconveniences a government health and safety officer.  Perhaps that is the real moral of this story.

A safety contractor was providing traffic control services on the Trans-Canada Highway in Nova Scotia where a bridge was under repair.  An Occupational Health and Safety Officer with the Nova Scotia government became caught in the resulting traffic jam.  While stuck in traffic, she tried by phone to put a stop to the bridge work so the traffic could clear.

Her main stated concern was that there was inadequate warning that traffic might be slowing down.  She wrote a compliance order against the safety contractor. Three months later she issued a $1,000.00 administrative penalty for allegedly failing to ensure that traffic control staff were provided with appropriate training, facilities and equipment.

The Nova Scotia Labour Board held that “these are very vague allegations”. It decided that the mere fact that the situation occurred did not prove that the traffic control staff lacked training and resources. The health and safety officer did not appear to have a clear understanding of what training or direction the safety contractor had provided on that day.  She drew her conclusions from limited information and not from a measured review. She did not contact the company in the days after the incident to give them the opportunity to address her concerns.

The Labour Board stated:

“The submissions of the Appellant impress me that the company is expert in its field and could have addressed many of the concerns of the officer, had she made the additional effort to contact company officials in the days following the incident.”

In the end, there was not a proper factual basis to support the Administrative Penalty, which was set aside.

Safety First Contracting (1995) Limited (Re), 2015 NSLB 148 (CanLII)

Safety contractor wins appeal of $1,000 administrative penalty under OHSA

Business owner facing criminal and provincial charges in workplace death

Both the RCMP and provincial health and safety officials have laid charges against an owner of a body shop in Dartmouth, Nova Scotia after a worker died.

The worker was killed when the vehicle he was working on caught fire.  The RCMP report that police collaborated with investigators from the Nova Scotia Department of Labour and Advanced Education and the Nova Scotia Public Prosecution Service.

Elie Phillip Hoyeck, the body shop owner, is charged with one count of Criminal Negligence Causing Death under the “Bill C-45” provisions of the Criminal Code.

He is also facing 12 charges under the Nova Scotia Occupational Health and Safety Act including failure to comply with the requirements of the Canadian Standards Association (CSA) standard, “Safety in Welding, Cutting and Allied Processes”; failure to ensure that a welding or allied process is performed by a designated competent person; failure to ensure that the person operating the equipment has inspected the surrounding area to ensure adequate precautions have been taken to remove all hazardous material or processes that produce combustible, flammable or explosive material, dust, gas or vapour, and to prevent fire or explosion; and failure to ensure that no person performs a welding or allied process on a container, pipe, valve or fitting that holds or may have held an explosive, flammable or otherwise hazardous material, and that it is performed in accordance with a written work procedure.

The case is a reminder that serious workplace accidents – particularly fatalities – can lead to both criminal and provincial charges against persons in authority over workers or workplaces.

The RCMP’s press release can be found here.

 

Business owner facing criminal and provincial charges in workplace death

U.S. construction companies and manager face fines of nearly $2 million for exposing workers to asbestos

The U.S. Occupational Safety and Health Administration (OHSA) has cited a construction company and its manager for asbestos-related violations and imposed fines of almost $2 million.  Safety regulators are increasingly taking asbestos violations very seriously.

OSHA inspectors determined that the company and some of its supervisors told employees to remove asbestos-containing materials during renovation of a school. Many of the employees were temporary foreign workers whose first language was not English. OSHA’s investigation also found that management threatened some workers with termination if they spoke with OSHA inspectors.

Further, OSHA inspectors found that the manager and the companies failed to warn employees of the danger, even though they were aware of the asbestos hazard.  Further, they did not ensure that the workers used appropriate work methods and respirators, and did not train them on the hazards of working around asbestos.

The company and manager had 15 days to appeal to the independent Occupational Safety and Health Review Commission.

OSHA’s News Release can be accessed here.

 

U.S. construction companies and manager face fines of nearly $2 million for exposing workers to asbestos

Two superintendents fined for OHSA violations in scissor lift fatality

Two superintendents have been found guilty of offences under Ontario’s Occupational Health and Safety Act and fined $4,000 each after a worker died when a scissor lift was knocked over by a garage door.

The accident happened when a mechanic pushed a cart through an open garage door, triggering an electric eye mechanism that caused the door to open and strike the scissor lift, knocking it over, as the door moved along its track.  The workers had been insulating an overhead water pipe and were tied-off to the scissor lift platform.  Both workers on the scissor lift fell 20 feet to the floor below. One of those workers died and the other suffered broken bones.

The superintendents were on the jobsite at the time of the accident and supervising the task of insulating the overhead water pipe.  They had not ensured that the lockout procedure of the Toronto Transit Commission (where the work was being done) had been followed, contrary to their employer’s contract with the TTC.

The court found the two superintendents guilty of failing to take every precaution reasonable in the circumstances for the protection of a worker, contrary to section 27(2)(c) of the Occupational Health and Safety Act.  Specifically, they failed to take the reasonable precaution of ensuring that an overhead garage door could not contact an elevated work platform upon which two workers were working.

The superintendents’ employer was also convicted of OHSA offences and fined $125,000.

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

Two superintendents fined for OHSA violations in scissor lift fatality

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

FOI adjudicator denies access to MOL inspector’s reasons for recommending no OHSA charges against employer

An adjudicator with the office of Ontario’s Information and Privacy Commissioner has denied access to a Ministry of Labour inspector’s reasons for recommending that Occupational Health and Safety Act charges not be laid against an employer after a fatal motor vehicle accident involving the death of eleven people including migrant workers.

The requester wanted a copy of the Ministry of Labour’s “employment safety investigation report”.  The MOL granted “partial access”, apparently handing over some parts of the investigation report but not the factors and considerations that went into the inspector’s recommendation that OHSA charges not be laid.

The requester argued that the public interest in safety, and the need to subject MOL enforcement and decisions to public scrutiny, required that the factors and considerations be made public.

The adjudicator refused to grant access to the factors and considerations that went into the inspector’s decision not to recommend OHSA charges.  Instead, the information fell squarely within the exemption in section 13(1) of the Freedom of Information and Protection of Privacy Act which provides that advice or recommendations of a public servant need not be disclosed.  The public interest did not require disclosure.  In fact, the public interest suggested that the information not be disclosed, because otherwise Ministry of Labour inspectors may feel constrained in providing full, free and frank advice.

Ontario (Labour) (Re), 2015 CanLII 31652 (ON IPC)

 

 

FOI adjudicator denies access to MOL inspector’s reasons for recommending no OHSA charges against employer