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

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

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

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

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

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

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

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

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

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

Union asks Court to Initiate Safety Prosecution Against Employer

A union has taken the unusual step of asking the Federal Court to order the federal Minister of Labour to prosecute a company for alleged safety violations.

In 2010, the Canadian Union of Public Employees and two other unions, the Air Canada Pilots Association and the CAW, filed a complaint with Human Resources and Skills Development Canada, alleging that Air Canada was in violation of certain sections of Part II (Occupational Health and Safety) of the Canada Labour Code.

The alleged violations related to workplace violence concerns, including failing to co-operate with the health and safety policy committee and failing to choose an appropriate, impartial person to investigate workplace violence.  The complaint asked that a Health and Safety Officer with HRSDC intervene.  A Health and Safety Officer investigated and found no violation.

CUPE then applied to the court for an Order compelling an HRSDC Health and Safety Officer to issue a direction to Air Canada to end the alleged violations, and requiring the Minister of Labour to prosecute Air Canada, or to permit CUPE to prosecute Air Canada.

Madam Justice Kane decided that generally speaking, courts will not determine whether a Health and Safety Officer should issue a safety direction or what the direction should be.  She also stated that courts will not order the Minister of Labour to prosecute for an alleged violation of the Canada Labour Code.  Lastly, she stated that courts will rarely interfere with the Minister’s discretion as to whether or not to lay charges.

This case is part of a trend of unions seeking safety charges against companies.  As we have previously mentioned on this blog, the Ontario Federation of Labour has a campaign seeking more criminal prosecutions against companies and supervisors alleged to have committed serious safety breaches.

Cupe, Air Canada Component v. Canada (Minister of Labour), 2012 FC 1484 (CanLII)

Union asks Court to Initiate Safety Prosecution Against Employer

Employer Fined $85,000 for Failing to Maintain Vehicle’s Brakes

There may be many good reasons for employers to maintain their vehicles, but one reason not often considered is avoidance of occupational health and safety charges and fines.

A mining company has been convicted in the Yukon of occupational health and safety charges and fined $85,000.00 for failing to maintain a special driveshaft brake on a vehicle.

An apprentice mechanic was asked to transport a piece of mining equipment into the underground shaft at the mine.  He drove a Toyota Land Cruiser into the mine shaft, which had a steep 15 degree slope.  A tractor parked in the shaft blocked his way.  He stopped the Land Cruiser and pressed a dashboard button to engage a special driveshaft “park brake” that was added to the Land Cruiser.  He did not engage the regular park brake.  After he got out and walked ahead of the Land Cruiser, it rolled down the slope and struck him; he was seriously injured and later died.

The employer pleaded guilty to failing to maintain the Land Cruiser and failing to ensure that the employee was competent to drive the Land Cruiser. 

The court noted that one of the brake linings on the driveshaft brake was worn and made insufficient contact to stop the vehicle on a 15 percent slope.  That problem had not been detected by the company, and the vehicle was overdue for a mechanical inspection.  Even though the mechanical inspection, which was based on the vehicle’s operating hours, was required by a company policy but was not specifically required by the manufacturer or by government regulation, there was a clear failure to ensure that the vehicle was maintained in a safe operating condition.

The court also decided that the employee was insufficiently familiar with the vehicle and the hazards associated with operating it on a steep slope in an underground mine environment.

This tragic case is another example of the far-reaching nature of occupational health and safety laws, which extend to the maintenance of the employer’s vehicle fleet.

R. v. Procon Mining & Tunnelling Ltd., 2012 YKTC 100 (CanLII), http://canlii.ca/t/fvbtb

 

Employer Fined $85,000 for Failing to Maintain Vehicle’s Brakes

Criminal Negligence Trial Against Ship’s Navigation Officer Begins

The CBC is reporting that the criminal negligence trial of Karl Lilgert, Navigation Officer of the ferry, Queen of the North, has commenced in Vancouver.

On March 22, 2006, the ferry crashed into an island and sank off the B.C. coast.  Two passengers went missing and are presumed to have died.  A Transportation Safety Board investigation found that Mr. Lilgert was the navigation officer and on the bridge.  He has pleaded not guilty to the charges.

This is another case of criminal charges arising out of an alleged failure to perform workplace duties safely.

Stay tuned for further updates.

Criminal Negligence Trial Against Ship’s Navigation Officer Begins

Supervisor’s Criminal Safety Charges Going to Trial

An Ontario judge has decided that criminal charges against a Project Manager should go to trial.

The charges against Vadim Kazenelson, Project Manager for Metron Construction, arise from the tragic Christmas Eve 2009 incident in which four workers on a suspended scaffold fell 14 stories to their deaths.

In July 2012, Metron Construction pleaded guilty to charges, arising out of the same incident, of criminal negligence causing death and was fined $200,000.00 plus a $30,000.00 Victim Fine Surcharge.  Metron’s owner, Joel Swartz, pleaded guilty to four charges under the Ontario Occupational Health and Safety Act and was personally fined $90,000.00 plus a Victim Fine Surcharge of $22,500.00.  Our July 17, 2012 post on the fines against Metron and Swartz can be found here.

Labour groups have increasingly been calling for criminal enforcement, under the so-called Bill C-45, against companies and supervisors who commit serious safety breaches. The Ontario Federation of Labour, for instance, has what it calls its “Kill a Worker, Go to Jail” campaign.

Stay tuned for further updates.

Supervisor’s Criminal Safety Charges Going to Trial

No Automatic OHSA Liability After Equipment-Failure Accident: Charge Dismissed where Use of Equipment not “Likely”

Employers are not required to anticipate all safety hazards, however unforeseeable. A recent case illustrates this point.

In a tragic accident, a worker died when a brace (which formed part of a makeshift winch used to pull concrete pipes into place) failed, striking the worker.

The employer was charged under the Occupational Health and Safety Act with failing to design the brace ”to support or resist all loads and forces to which it is likely to be subjected”.

Mr. Justice David Paciocco of the Ontario Court of Justice decided that the workers understood that only alignment of the pipe – and not force – could accomplish the task of moving the pipe into place, and that the winch system and brace were not designed to overcome resistance from a misaligned pipe through increased force from the winch.  That use of the brace and winch system was not “likely”, so the charge was dismissed.

Interestingly, Justice Paciocco rejected the Ministry of Labour prosecutor’s argument that the mere failure of the wooden brace proved that it was not properly designed.  Rather, the employer would only be guilty if it failed to design the brace to withstand “likely” forces.  Here, because the employees’ use of the brace at the time of the accident was not “likely”, the charge was dismissed.

R. v. Thomas Fuller and Sons Ltd., 2012 ONCJ 731 (CanLII)

No Automatic OHSA Liability After Equipment-Failure Accident: Charge Dismissed where Use of Equipment not “Likely”

Even Careless, Reckless Workers Protected by OHSA: Ontario Court

A Justice of the Peace has reaffirmed that Ontario’s safety laws are intended to protect not only safe workers, but also workers who make mistakes, are careless or are reckless.

A steel beam that was temporarily welded to a pile broke free and fell on a worker while another pile was being vibrated into place.

The company argued that the welder had used the wrong type of weld, and that the company reasonably believed that the welder would use the correct weld – a “full” weld.

Justice of the Peace Mackey stated:

“What Deep Foundations, and all other employers must remember on a daily basis is, and the Spanway Buildings decision says it well, that ‘workplace safety regulations . . . are intended to prevent workplace accidents that arise when workers make mistakes, are careless, or are even reckless.’ No one is expected to be perfect, but an employer has a responsibility to be on top of the safety of their employees, and not just by going through the motions of manuals and training.”

The court found that the employer failed to take the reasonable precaution of having a professional engineer provide the requirements for welding where one and/or more pile was tack welded while another pile was being driven.

Ministry of Labour v. Deep Foundations Contractors Inc., 2012 ONCJ 701 (CanLII)

Even Careless, Reckless Workers Protected by OHSA: Ontario Court

Constant Supervision not Required by OHSA: Ontario Court

The Occupational Health and Safety Act does not require that workers be “contemporaneously supervised at all times”, an Ontario appeal judge has held, dismissing two charges.

In a bizarre accident, an 18-year-old worker at a company that washed cars prior to their sale at an auction, drove a vehicle into a wash bay setting off a chain of collisions between two other cars and resulting in another employee, further up the line, being injured.

The worker had been told twice by a manager not to drive, initially when he was hired and again on the day of the incident.  He admitted that he was aware of the safety policy of the appellant that in order “To drive a vehicle on the property you must have a valid driver’s licence.”  He did not have a driver’s licence.

He also admitted that he moved the car “in the heat of the moment”.  At the time of the incident, there were no supervisors in the wash bay; all of the workers had gone on a break. 

At trial, the presiding justice of the peace stated that the worker should not have been unsupervised for any period of time.  She said that the supervision was inadequate because the worker was able to “circumvent this observation and supervision and drive the motor vehicle” because everyone had gone on break and therefore the system failed. 

The appeal judge disagreed, holding that the Occupational Health and Safety Act did not require that a supervisor always be present.  Because it was not the worker’s job to drive, nor was there any reason for the company to suspect that he would drive, the employer was not required to provide him with “information, instruction or supervision” in safe operation or parking of vehicle.

The appeal was allowed, and the Occupational Health and Safety Act charges of failing to instruct and supervise, and failing to ensure that the worker had a valid driver’s license, were therefore dismissed.

R. v. 679052 Ontario Limited (c.o.b. Auction Reconditioning Centre), 2012 ONCJ 747 (CanLII)

Constant Supervision not Required by OHSA: Ontario Court

Employer not Liable where Safety Hazard Unforeseeable: Ontario Court

An Ontario appeal court has overturned a conviction under the Occupational Health and Safety Act because there was no basis for concluding that the collapse of an overhead duct was a foreseeable risk.  The accident could not have been expected.

Employees were removing ducts and other equipment from a non-operational foundry in Woodstock, Ontario, in order to transport it to the United States.  A large section of the duct work collapsed and seriously injured a worker.

What had happened, the court concluded, was that sand had built up in the ducts and caused them to collapse.  The evidence was that the build up should not have occurred and could not have been expected.  Witnesses gave uncontradicted evidence that it was not practical or reasonable to inspect all welds in the ducts as it would have taken years to do so.  But for a poor weld and the sand build up, the collapse would not have happened.

The appeal court held that the “foreseeability of the effect” was one of the factors to be considered in determining whether the employer had exercised due diligence.  Here, the sand build up and collapse were not foreseeable, and the charges were dismissed.

The decision is a reminder that not all workplace accidents justify charges under the Occupational Health and Safety Act.  As our recent prosecutions study indicated, only 6% of corporations take their OHSA charges all the way to trial, so there is minimal caselaw. This decision will assist employers in understanding the scope of the due diligence defence.

R. v. Rassaun Steel & MFG. Co. Ltd., 2012 ONCJ 705 (CanLII)

 

Employer not Liable where Safety Hazard Unforeseeable: Ontario Court

Construction Contract Clear: Government was Owner but not Constructor

Where a 143-page contract made clear that a contractor was the “constructor” under health and safety legislation, the Yukon government, as owner of the project, was not the constructor, the Supreme Court of Yukon has decided.

The government, the contractor and the contractor’s supervisor were all charged with offences under Yukon’s Occupational Health and Safety Act after a blaster set off a charge that resulted in rocks falling on nearby homes, one of which punctured a roof.

The court noted that the contract between the Yukon government and the contractor, Sidhu Trucking, stipulated that Sidhu Trucking was the constructor.  The contract was not an evasion of government responsibility for safety, but rather an agreement that Sidhu Trucking would assume the obligations of constructor under the OHSA.

The court stated that it was preferable in principle that there should be one constructor on a project and that the constructor’s identity be made clear at the outset so there was no confusion.

Here, the contract was clear.  The court held:

“Where an owner and contractor agree that the contractor shall assume the statutory obligations of ‘constructor’, it makes little sense to challenge that arrangement, unless it can be established that the reality was quite different or the owner was attempting to evade its statutory duty. That is not the case in this Project. In my view, the evidence and the contractual provisions lead to the conclusion that the Yukon Government did not act as constructor on the Hamilton Boulevard Extension Project, but rather exercised its rights under the Contract to ensure compliance with quality and safety. These rights are consistent with an owner’s rights.”

This case demonstrates the importance of project owners clearly assigning “constructor” safety obligations to the general contractor in construction contracts – if the owner does not intend to be the constructor.  If the factual reality is consistent with the contract, the owner will likely not be the constructor.

Director of Occupational Health and Safety v. Government of Yukon, William R. Cratty and P.S. Sidhu Trucking Ltd., 2012 YKSC 47 (CanLII)

Construction Contract Clear: Government was Owner but not Constructor

Criminal Guilty Plea from Supervisor Not Present, Not Aware of Hazardous Activity

A supervisor at a Quebec automobile dealership has pleaded guilty to a criminal charge arising out of a workplace accident at which he was not present. He was not even aware of the employees’ hazardous practice that caused the accident.  Although the court granted him an absolute discharge, this case should concern employers and supervisors.

Three employees transferred gasoline from a gas tank to a container using ”an old home-made method which was described as a liquid pump connected to a car battery with clips”.   The court stated that a safer method involved using specialized equipment – a Gaz Guzler device – which the supervisor knew had not been in working order for some time at the garage. Because of problems transferring the gas, one employee added compressed air into the gas tank. which caused splashes, sparks and a fire.  All three employees were injured; one received severe second and third degree burns to 35% of his body.

The supervisor was not present but was in his office at the time of the incident. He mistakenly thought that a siphoning method was used for repairs of this nature. 

Despite this, the supervisor pleaded guilty to a charge of unlawfully causing bodily harm under section 269 of the Criminal Code.  He was originally charged with criminal negligence causing bodily harm, under the “Bill C-45″ amendments in 2004 to the Criminal Code.

The court stated, in accepting the guilty plead, that “In his position as manager, he must accept responsibility for his personal fault in not preventing bodily harm and not prohibiting a potentially dangerous procedure. He should have followed and implemented safety measures prescribed for the transfer of gasoline from gasoline tanks requiring repairs” and that “It is not contested that the accused did not intend to injure the victim and he certainly did not want the incident to take place.”

The court nevertheless granted the supervisor an absolute discharge, meaning that he came away with no criminal record.  The supervisor was 54 years old, was of good character, and did not have a criminal record, and it was not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him.  Further, he had gone through difficult circumstances including the death of his wife.

 Although this case involved a plea bargain, it is concerning that the court accepted that “not preventing bodily harm and not prohibiting a potentially dangerous procedure” were enough to support a criminal conviction arising from a workplace accident; one would think that something akin to intentional or reckless disregard of safety would be necessary to support a criminal conviction.  It will be interesting to see how courts apply the criminal code in future criminal safety charges against supervisors.

R. c. Hritchuk, 2012 QCCS 4525 (CanLII)

 

Criminal Guilty Plea from Supervisor Not Present, Not Aware of Hazardous Activity

Driver Charged Criminally in Death of Highway Flag Person

The CBC is reporting that criminal negligence charges have been laid in the highway death in August of a flag person working on a road crew in Saskatchewan.  The flag person was struck by a passing vehicle in an “orange zone”.

The CBC reports that the driver was arrested at the scene and later released.

The case, said the CBC, “sparked a public outcry and led to police stepping up patrols and ticketing in orange zones.”

This case is another example of how high-profile worksite fatalities pose a hightened risk of criminal charges against workers – and against members of the public who case serious injuries or death to workers.

The CBC article may be accessed here.

 

Driver Charged Criminally in Death of Highway Flag Person

Leave to Appeal to Alberta’s Highest Court Sought in “Calf Roping Machine” Fatality Case

Recently we posted an update of this case describing the appeal decision in R. v. XI Technologies Inc., 2012 ABQB 549. The appeal court overturned the two “not guilty” verdicts of the trial judge in relation to the fatal incident involving a “calf roping machine” at a Stampede Week party event, held at a hotel. A young software developer who was helping to operate the machine was struck in the head by a steel lever and later died from the injuries.

The employer was charged with two offences under the Alberta Occupational Health and Safety Act for failing to ensure, as far as it was reasonably practicable to do so, the health and safety of the worker and for failing to ensure that all equipment used at the work site would safely perform the function for which it was intended or designed.

On the evidence, the trial judge found that the employer had raised a successful due diligence defence and found the employer “not guilty” of the charges. The Crown appealed and the verdicts were overturned. The appeal court disagreed and found that on the evidence, due diligence on the part of the employer could not be established.

The employer is now asking that Alberta’s highest court consider this case and clarify the law as to the defence of due diligence. The application for leave to appeal is scheduled to be heard by the Alberta Court of Appeal on November 22nd.

Stay tuned.

Leave to Appeal to Alberta’s Highest Court Sought in “Calf Roping Machine” Fatality Case

Employer May Not Delegate Authority over Safety to Joint Health and Safety Committee: Arbitrator

An Ontario arbitrator has held, in dismissing a union grievance, that it would be illegal for an employer to delegate authority over safety to the joint health and safety committee.

The employer had introduced a rule requiring employees to wear a chin strap attached to safety headgear.  It is clear that employees did not like the chin strap. The union challenged the rule under the collective agreement, which stated:

“The Company must take all reasonable precautions for the safety and health of its employees during their hours of work.  All protective equipment prescribed by the Joint Health and Safety Committee, and first aid kits, must be provided by the Company.”

The union argued that that clause prohibited the employer from requiring the use of any protective equipment that had not been approved by the committee.

The arbitrator stated

“Having found that s. 25 of OSHA empowers, and indeed requires, the employer to consider, and where reasonably necessary, mandate the use of personal protective equipment above and beyond that prescribed, can the employer delegate that responsibility to another body (in this case the JHSC)?  In my mind, it clearly cannot . . . I do not believe that the employer can avoid its legal obligation, even when acting in good faith, to take every precaution reasonable in the circumstances for the protection of a worker.  Accordingly, even if I were to find (as the union argues) that the employer gave up the right to unilaterally prescribe PPE in the 1997 negotiations, I am of the view that its actions in that regard would be of no force and effect in the face of a statute which imposes the obligation set out in s. 25(2)(h) of OSHA.”

The arbitrator noted that if the union’s argument succeeded, the employer could be prosecuted for a violation of the Occupational Health and Safety Act over which it had no control.

Employers with policies or agreements that could be read to delegate some of the employer’s responsibility for safety to employees or a union, should review those policies or agreements in light of this decision.

Gerdau Ameristeel (Whitby Plant) v United Steelworkers, Local 6571, 2012 CanLII 41114 (ON LA)

Employer May Not Delegate Authority over Safety to Joint Health and Safety Committee: Arbitrator

“Calf Roping Machine” Fatality Case: Appeal Court Overturns “Not Guilty” Verdict, Finds that Potential Source of Danger was Foreseeable

This post follows a previous post of November, 2011, discussing the trial decision in R. v. XI Technologies Inc., 2011 ABPC 313.  That case involved a tragic incident at a company’s off-site Customer Appreciation Party during Stampede Week in 2007. The event, held at a hotel, included a “calf roping machine” activity that was suggested by the party planner retained for the event. A young software developer who was helping to operate the machine was struck in the head by a steel lever and later died from the injuries.

The employer faced two charges under the Alberta Occupational Health and Safety Act for failing to ensure, as far as it was reasonably practicable to do so, the health and safety of the worker and for failing to ensure that all equipment used at the work site would safely perform the function for which it was intended or designed.

The trial judge found the employer “not guilty” of the charges because it had raised a successful due diligence defence. The Crown appealed.

In his Reasons for Judgment on the appeal, the Alberta Court of Queen’s Bench judge held that while the trial judge correctly articulated the test for due diligence, including the fact that the analysis required an examination of foreseeability, in applying the evidence to the applicable tests, the trial judge made palpable and overriding errors in relation to her verdicts on both charges. The appeal judge allowed the appeal on both counts and entered convictions against the employer.

As to the ”general duty” charge, the appeal judge disagreed with the trial judge who concluded that the accident was not foreseeable. He instead found that the evidence “clearly shows that the potential danger of being struck by the lever upon premature release while reaching into the machine was a ‘reasonable prospect’”. He stated that the question is not whether the employer could foresee the accident happening in the way that it did happen, but whether a reasonable person would have foreseen the potential source of danger. He concluded that it was not the fact that the calf roping machine was operating improperly which attracted liability but, rather, it was the decision of the employer to allow its use to continue at the party once the potential danger associated with the method of loading the calf was known. The appeal judge concluded that a reasonable employer would have placed the calf roping machine off to the side and hung an “out of order” sign on it.

As to the second count regarding the alleged failure of the employer to ensure that the calf roping machine would safely perform the function for which it was intended or designed, the appeal judge disagreed with the trial judge’s conclusion that the company did all that it could do to ensure that the equipment would safely perform its function, having made clear its expectation that the professional event planner would arrange for only safe activities and the company depended on the planner’s expertise to provide only safe entertainment activities for its customers. The appeal judge did not have sympathy for the trial judge’s distinction between the circumstances of the employer in this case - a small family owned Technology Company – as compared to “the larger industrial enterprises typically before the courts as a result of industrial accidents.” Instead, the appeal judge stated that any reliance that the employer had placed upon the party planners became unrealistic once the issues with the lever were noted. As well, he held that a reasonable employer would have ensured that instructions and a demonstration on how to properly use the equipment were received to ensure that the employees were using the calf roping machine in a correct manner rather than handing an unfamiliar machine over to its untrained employees to operate.

This decision following appeal reinforces the high onus placed on employers by occupational health and safety legislation to reasonably ensure a safe and healthy working environment, including the requirement for proactive conduct on the part of the employer when hosting parties or client events, even at locations away from the employer’s workplace, which involve activities outside of the course and scope of the employer’s usual operations.

Alberta v. XI Technologies Inc., 2012 ABQB 549 (CanLII)

“Calf Roping Machine” Fatality Case: Appeal Court Overturns “Not Guilty” Verdict, Finds that Potential Source of Danger was Foreseeable

Should Appeals of Safety Compliance Orders be Stayed While Charges are Outstanding?

A recent Ontario Labour Relations Board decision suggests that employers’ appeals of Ministry of Labour compliance orders should not proceed while Occupational Health and Safety Act charges are outstanding.

The case arises from the Christmas Eve, 2009 scaffold collapse which resulted in the death of four workers. We recently reported on the fines against Metron Construction, the employer, and its director.  The Ministry of Labour has also charged Swing N’ Scaff Inc., the supplier of the scaffold that failed, under the Occupational Health and Safety Act.  The charges are outstanding.

Swing N’ Scaff appealed Ministry of Labour compliance orders against it after the accident.  The Ministry of Labour’s counsel advised the OLRB that the compliance order appeal raised issues that were also raised in the prosecution.

The Ministry of Labour argued that the compliance order appeal at the OLRB should be stayed while the charges remained outstanding, in order:

“(a) to ensure that the appeal process does not hinder or delay the prosecutions; (b) to ensure that the applicant and the director are not put into a position in which they provide prejudicial information to the Ministry during the appeal process that may impact upon their right to make full answer and defence at their trial; (c) to ensure that potential trial witnesses are not examined or cross-examined on material issues at the appeal hearing before the trial takes place; (d) to allow the Vice-Chair the potential benefit of court rulings concerning issues about suspended scaffolds, and to prevent the possibility of rulings from a Vice-Chair on matters that may arise before the court in the trial; (e) because the applicant is not represented by counsel in these appeals but is represented at trial; and (f) to ensure that inconsistent judgments on the issues in dispute are not rendered.”

The OLRB gave Swing N’ Staff time to file submissions on the issue. In a decision dated September 5, 2012, the OLRB decided:

“For the reasons identified by counsel for the Ministry that are described at paragraph six [quoted above] of my previous decision, I am of the view that it is appropriate to adjourn these proceedings.  The reasons underlying the adjournment request are compelling, and the applicant has not written to oppose the request.”

Employers faced with workplace accidents and Ministry compliance orders that could result in charges, should take note of this decision.  Although a failure to appeal compliance orders could be argued to be an admission of a safety violation, proceeding with the appeal could jeopardize the employer’s position in the related Occupational Health and Safety Act charges.  Advice from a health and safety lawyer is recommended in these complex situations.

Swing N Scaff Inc. v. James, 2012 CanLII 51106 (ON LRB) (September 5, 2012, and Swing N Scaff Inc v James, 2012 CanLII 47333 (ON LRB) (August 10, 2012)

Should Appeals of Safety Compliance Orders be Stayed While Charges are Outstanding?

Fire Department Not Guilty of Remaining OHSA Charge: Caution Required When Scrutinizing Emergency Responders under OHSA, Decision Suggests

In a decision which suggests that fire departments faced with emergencies ought not to be judged too severely with hindsight under occupational health and safety laws, an Ontario fire department has been found not guilty of failing to activate an “accountability system” to track firefighters entering a burning structure.

The charges arose when one firefighter’s self-contained breathing apparatus failed while he was in the building.  He substantially recovered after the incident.

In a previous post in March 2012, we reported on how two of the three charges against The Meaford and District Fire Department had been dismissed on a motion for a directed verdict of acquittal, similar to a non-suit.

The particulars – the specific factual allegations – of the remaining charge alleged that the fire department “failed to take the reasonable precaution of activating an accountability system to track firefighters entering a burning structure”.  An accountability system tracks – often by physically displaying information on an “accountability board” – exactly which firefighters are on scene and what they are doing.

Although the court found that some of the fire department’s own ”Standard Operating Guidelines” were not fully followed, the particulars of the charge did not allege that the SOGs were not followed.  Further, the particulars did not allege that the accountability system used was not appropriate.  Rather, the particulars alleged only that an accountability system was not “activated”.  The court stated that the Crown must prove the particulars alleged, not some other alleged violation.

The court found that an accountability system had, in fact, been “activated” in that, among other things, two firefighters told the Deputy Chief that they intended to enter the buidling; another firefighter made a request for a thermal imaging camera; and another firefighter (who was in the second vehicle to arrive on site) acted as an accountability officer and retrieved the accountability board.

This case demonstrates that when the Ministry of Labour lays charges under the Occupational Health and Safety Act, it must prove not only a violation of the named section of the OHSA or regulations, but it also must prove the specific particulars alleged.  Here, the Crown had not approved a failure to “activate” an accountability system.  The charge was, therefore, dismissed.

R. v. The Meaford and District Fire Department, 2012 ONCJ 573 (CanLII)

Fire Department Not Guilty of Remaining OHSA Charge: Caution Required When Scrutinizing Emergency Responders under OHSA, Decision Suggests

Misled by Authorities, Defendant Beats Charge: Doctrine of “Officially Induced Error” Applies

Although “officially induced error” – being misled by authorities – is a defence to many types of charges including those under the Occupational Health and Safety Act, it is rarely used successfully like it was in a recent case.

While not an occupational health and safety case, the decision will be of interest to safety professionals and employers.

The defendant was under a Prohibition Order barring him from driving any “motor vehicle” in Canada for a period of 12 months.  While operating an “E-bike”, an electric bicycle, he was stopped by police.  He was charged with breaching his Prohibition Order. The court accepted his testimony that he had contacted various police forces to ask whether operating the E-bike would violate his Prohibition Order and was told by a Toronto police officer that it would not.  The court found that the police officer’s advice was in error: in fact, the operation of the E-bike did violate the Prohibition Order.

The court stated that in order to establish the defence of officially induced error, a defendant must prove that:

-the error was one of law or mixed fact and law – not of fact only

-the defendant actually considered the legal consequences of his actions (he did not simply assume that his conduct was legal)

-the defendant obtained advice from an appropriate public official

-the public official’s advice was reasonable

-the advice was erroneous

-the defendant relied on the advice

Here, the defendant had satisfied all of these factors.  The error was one of law (whether operating the E-bike would violate his Prohibition Order); the defendant had thought about whether it was legal for him to operate the E-bike while under the Prohibition Order; he obtained advice from a police officer, an appropriate public official; the police officer’s advice was reasonable, given that E-bikes are a relatively new phenomenon; the advice was erroneous; and the defendant relied on the advice when he set out for his bike ride.

Although the officially induced error doctrine is rarely applied, employers should keep it in mind when seeking advice from Ministry of Labour inspectors.  If an employer seeks advice from an inspector regarding the Occupational Health and Safety Act or regulations, reasonably relies on that advice, and the advice turns out to be incorrect, the employer – if charged – may be able to raise the defence of officially induced error.  For that reason, employers should carefully document all such advice received from government safety inspectors.

R. v. Kulbacki, 2012 ONCJ 532 (CanLII)

 

Misled by Authorities, Defendant Beats Charge: Doctrine of “Officially Induced Error” Applies

Directors’ Liability for Safety: Not just Small-Company Directors are at Risk in Ontario

In an unusual development, a director of a medium-sized company has been personally found guilty and fined under the Occupational Health and Safety Act.  The company’s Internet site states that its field personnel include a dozen full time project superintendents, suggesting a medium-sized company.  Most directors fined in the past have been in a hands on role with a small company.

In 2008, a worker fell from a cement pier while dismantling a guardrail system in Field, Ont. The worker suffered head and leg injuries, and was sent to hospital.

Bélanger Construction (1981) Inc. and R.M. Bélanger Limited were found guilty of a total of four charges under the Occupational Health and Safety Act relating to fall protection, and were fined $290,000 in total plus the 25% Victim Fine Surcharge.

The companies’ director, Ronald Bélanger, was fined $10,000 in relation to the same incident plus the Victim Fine Surcharge. He was found to have failed as a director to ensure that both companies complied with the provisions of the Occupational Health and Safety Act and its regulations.

The Ministry of Labour’s press release states that the court found that the worker was not protected by fall protection of any kind, and that three other workers at the construction project were similarly unprotected.  The press release says that there was a lack of equipment for each worker on the job, as well as a lack of proper care and inspection of existing safety equipment. The court also found that the supervisor on site was unqualified.

Directors’ Liability for Safety: Not just Small-Company Directors are at Risk in Ontario

Bar Owners Facing Wrongful Act Manslaughter Charges after Employee’s Wrong-Way Accident on Highway 401

Companies and their owners are increasingly considering the risk of criminal safety-related charges and fines.

We have recently reported on the criminal fine against Metron Construction under the Bill C-45 amendments to the Criminal Code.

The Ottawa Citizen and other media have reported that two co-owners of a Belleville bar have been charged with the criminal offence of wrongful act manslaughter.

The charges result from an incident in which an employee drove away from the bar, allegedly intoxicated.

The Citizen reported that the employee left the Angry Beaver Bar and Grill and was driving the wrong way in the eastbound lane of Highway 401 near Trenton when she collided with an oncoming vehicle on February 6, 2012.  The employee and the other driver were both pronounced dead at the scene.

The co-owners of the Angry Beaver bar were both charged with two counts of manslaughter and six liquor licence violations, including encouraging immoderate consumption, permitting drunkenness and serving liquor to an apparently intoxicated person.

Media reports say that the bar’s liquor licence was permanently revoked by the Alcohol and Gaming Commission of Ontario and the premises are now shuttered.

Apart from the obvious safety considerations raised by the incident, and the sad consequences, this case shows that a failure to comply with regulatory requirements can, in a worst-case scenario, put a company out of business.

Employers should review their regulatory compliance processes – in particular, in relation to safety – and ensure that the risk of violations is minimized.  A regulatory breach can, as in this case, have tragic consequences that can, in some cases, lead to criminal charges.

Bar Owners Facing Wrongful Act Manslaughter Charges after Employee’s Wrong-Way Accident on Highway 401