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Record $1.050 Million Fine under Ontario OHSA

An Ontario judge has imposed a $1,050,000 fine against Vale Canada Limited, the highest fine ever imposed under the Ontario Occupational Health and Safety Act.  It appears that the previous record fine, handed down in 2010, had been $850,000.

Vale is also required to pay a Victim Fine Surcharge of 25%, bringing the total to $1,312,500.

The fine resulted from a double-fatality after an uncontrolled release of broken rock and ore buried one worker and hit the other in a Sudbury mine.

Vale pleaded guilty to three counts under the Occupational Health and Safety Act including failing to prevent the movement of material through an ore pass while hazardous conditions (a hang-up of broken rock and ore).

Mr. Justice Randall Lalande of the Ontario Court of Justice sentenced Vale to a fine of $350,000 on each count.  The Ministry of Labour, in its press release, notes that “This is the highest ever total fine levied by a Court in Ontario for contraventions of the Occupational Health and Safety Act.”

According to the Sudbury Star, Vale and the Ministry of Labour presented a joint-submission to the court, that the fine be $350,000 per count. The court accepted the joint submission.

The maximum fine under the Occupational Health and Safety Act for a corporation is $500,000 per count.

What were the factors that led the court to impose this historic fine?  It appears that Vale’s size, the fact that two workers died, and the OHSA record of Vale were signficant factors.

In particular, Inco, the operations of which Vale purchased, was convicted in 2001 of two charges under the OHSA and fined $650,000 ($325,000.00 per count) after a worker died.  It was noted at the time that Inco had 11 prior convictions.

Earlier this month, the Ontario Court of Appeal imposed a fine of $750,000 for criminal negligence causing death, on Metron Construction – up from the $200,000 fine imposed by the trial judge.  In that case, the Court of Appeal stated that the cases under the OHSA “revealed a range of fines between $115,000 and $425,000 for cases involving fatalities.”

The Vale (OHSA) and Metron Construction (Criminal Code) fines seem to suggest that fines, particularly in fatality cases, are rising in Ontario.  Employers should take note.

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

Record $1.050 Million Fine under Ontario OHSA

OHSA Charges may Proceed against Insolvent Company in CCAA Proceedings: Court

Occupational Health and Safety Act charges could proceed against an insolvent company even though it had obtained protection from its creditors under the Companies’ Creditors Arrangement Act (“CCAA”), an Ontario judge has decided.

Terrace Bay Pulp Inc. was charged with offences under the Ontario Occupational Health and Safety Act in relation to two separate incidents, one in which a worker was injured in the company’s wood-handling department, and one in which a worker died after an explosion blew part of the roof off of a mill.

Relying on certain sections of the CCAA, the court decided that the Ministry of Labour prosecution under the Occupational Health and Safety Act was “regulatory or prosecutorial in nature”, and the Ministry was not “acting as a creditor” with respect to the prosecution, even though the company could be fined if it were ultimately found guilty of the charges.  As such, the prosecution could proceed.

In response to the company’s argument that it would be costly to defend the charges, the judge noted that it was Terrace Bay’s decision as to whether it would incur the cost of defending the charges or not.

Terrace Bay Pulp Inc. (Re), 2013 ONSC 5111 (CanLII)

OHSA Charges may Proceed against Insolvent Company in CCAA Proceedings: Court

$750K Fine for “Extreme” Criminal Negligence: “More Serious” than OHSA Offences, says Appeal Court in Metron Construction Fatality Case

A $200,000.00 fine was “manifestly unfit”, the Ontario Court of Appeal has ruled, in raising Metron Construction’s fine to $750,000 for criminal negligence after four workers died on Christmas Eve, 2009.  The $200,000 fine imposed by the sentencing judge failed “to convey the need to deliver a message on the importance of workplace safety.”

The workers died when a swing stage – a suspended scaffold – collapsed fourteen floors up a building when six workers boarded, whereas the usual practice was only two workers.  Three of the four workers who died had marijuana in their system at a level consistent with having recently ingested the drug.   The court noted that all of the workers were of limited financial means.

Metron pled guilty to criminal negligence charges, under provisions added to the Criminal Code in 2004 by Bill C-45.  The only issue on the appeal was the amount of the fine.  Metron’s owner had pled guilty to four charges under the Occupational Health and Safety Act and was personally sentenced to pay a fine totaling $90,000.  All criminal charges against the owner were withdrawn.

The appeal court noted that criminal negligence was “a different and more serious offence than those found under” the Occupational Health and Safety Act, for which the “cases revealed a range of fines between $115,000 and $425.000 for cases involving fatalities.”

The sentencing judge had made two main errors in imposing a $200,000 fine, the appeal court said. First, although the sentencing judge was entitled to consider the range of fines imposed under the Occupational Health and Safety Act, he failed to appreciate the “higher degree or moral blameworthiness and gravity associated” with Metron’s conviction for criminal negligence causing death.  Second, the sentencing judge was wrong to consider Metron’s “ability to pay”, which was a factor that courts could consider in setting the fine for individual persons but not corporations in criminal negligence cases.

The sentencing judge was, however, entitled to consider the “economic viability of the organization and the continued employment of its employees.” Interestingly, the appeal court held that in appropriate cases, it was permissible for criminal negligence fines to bankrupt a corporation.  In this case, the financial statements submitted by Metron were “heavily qualified and incomplete” and suggested that there were no employees being paid anymore.  As such, “[a]ny public interest in the continued viability of [Metron] was not manifest.”

Finally, the appeal court noted that the criminal negligence of the site supervisor, for which Metron was responsible, was “extreme”.  Three times as many workers were on the swing stage than there were lifelines available, and only one of the lifelines was properly engaged.

R. v. Metron Construction Corporation, 2013 ONCA 541 (CanLII)

$750K Fine for “Extreme” Criminal Negligence: “More Serious” than OHSA Offences, says Appeal Court in Metron Construction Fatality Case

Alberta’s Highest Court Dismisses Employer’s Appeal in Calf-Roping Case: Agrees that Trial Judge’s Verdict was Unreasonable

Alberta’s Highest Court Dismisses Employer’s Appeal in Calf-Roping Case: Agrees that Trial Judge’s Verdict was Unreasonable

The Alberta Court of Appeal recently released its decision in R v XI Technologies Inc., 2013 ABCA 282 and held that the employer had not met its obligations under Alberta’s occupational health and safety laws when it failed to identify and eliminate the safety risk to its employees in the operation of a faulty calf-roping machine at a client appreciation event.  

Facts

A fatal accident took place during a western-themed client appreciation event hosted by the employer when one of its employees (N.S.) was struck in the head by a lever attached to a calf-roping machine.  The calf-roping machine was rented by the company as part of the day’s entertainment.  However, the supplier had delivered the machine late and without an operator or appropriate instructions.  The employees were left with the task of figuring out how the ride was to be operated and they soon realized that the machine was not functioning properly.  The hinge hook which released the “calf” for party-goers to “lasso” failed to automatically detach.  As a result, the employees determined that the hinge hook would have to be released manually.  N.S. went to unlatch the hinge hook to release the calf when the calf prematurely launched and caused a steel level to strike the employee in the head.  This injury ultimately led to N.S.’s death. 

Prior Rulings

The employer was charged with two counts under the Occupational Health and Safety Act, RSA 2000, c. 0-2, for failing to ensure (1) the health and safety of its employees and (2) that all equipment used at the worksite would safely perform the function for which it was intended or designed.

Following trial, the employer was acquitted on both counts.  Of note, the supplier of the calf-roping machine was also charged with violating the OHS Act, however, the charge was quashed and a new prosecution could not be commenced due to the expiry of the statutory limitation period.  

The Crown appealed the trial judge’s not guilty verdict to a summary conviction appeal judge, who allowed the appeal and entered convictions on both counts.

In response, the employer successfully applied to the Alberta Court of Appeal for leave to appeal the summary conviction judge’s reversal of the verdicts. 

The issues before the Albert Court of Appeal were whether the summary conviction appeal judged erred in finding that the trial judge’s verdict was unreasonable based on a proper view of the facts and whether he misapplied the foreseeability test. 

The Alberta Court of Appeal’s Decision

As to the question of unreasonable verdict, the Alberta Court of Appeal concluded the employer had not been duly diligent. It upheld the summary conviction appeal judge’s ruling that the risk of harm was evident in that the calf-roping machine had been malfunctioning throughout the day, there were visible marks on the machine to indicate that the lever would be propelled with considerable force and that the malfunctioning of the ride created additional hazards, such as requiring the employee to manually reach into the machine which put the employee’s head in close proximity to the lever. 

With respect to foreseeability, the panel held that it was apparent to a reasonable person that there was danger in having to manually reach into the machine to remove the hinge hook.  The employer failed, however, to identify the hazard and failed to take the necessary corrective action to eliminate it.   As such, the employer had not made out a due diligence defence.  The verdict to acquit was therefore unreasonable.

Under Alberta OHS laws, employers are required to assess the workplace to identify hazards and then, once identified, either take steps to eliminate the hazard or if not possible due to legitimate business needs, take steps to minimize and reduce those hazards.  The Alberta Court of Appeal held that the employer failed to both identify the hazard and take the necessary corrective action to eliminate it.  As the calf-roping machine was not in any way necessary to the employer’s business, this meant the hazard was to be eliminated by not using the calf-roping machine at the party at all.  In fact, the Alberta Court of Appeal admonished the employer for even considering to use a machine that no one knew how to operate, without its own operator or a set of instructions and commented that this spoke “volumes as to the lack of its due diligence in this matter”. 

R v XI Technologies Inc., 2013 ABCA 282

Written by Lindsay Mullen  and Jennifer Shepherd

 

 

 

 

 

 

Alberta’s Highest Court Dismisses Employer’s Appeal in Calf-Roping Case: Agrees that Trial Judge’s Verdict was Unreasonable

$410,000 in Fines in Non-Fatal Accident at Plastics Company

An Ontario court has handed down near-the-top-of-the-range fines in an industrial accident that resulted in non-fatal injuries.  Fines of that magnitude have typically been reserved for fatality cases.

Unitec Inc. and 629728 Ontario Limited were in partnership carrying on business as Entropex Limited, a Sarnia plastics company.  They were fined $210,000 and $200,000 respectively under the Occupational Health and Safety Act.

A worker was pinned against a forklift after walking in front of a baling machine, which compacted and strapped plastic, as the machine ejected compacted plastic.

According to the Ministry of Labour press release, the court decided that the baler was not properly guarded, had not been maintained in good condition, and that a worker had performed maintenance on it while the baler was in motion. The court also found that Entropex had failed to provide information, instruction, and supervision to protect workers around the baler.

The Ministry of Labour press release may be read here.

$410,000 in Fines in Non-Fatal Accident at Plastics Company

“Inherently dangerous business” requires “high degree of attention to detail” in safety training and supervision: Court

Dangerous workplaces require particularly careful training and supervision, a judge has stated in convicting a propane company.  The judge found that a worker’s reaction to the sound of an explosion showed that he was not properly trained.

A series of massive explosions at a propane facility in Toronto in 2008 killed a worker and damaged a number of nearby buildings.

Sunrise Propane Energy Group Inc., the operator of the propane facility, was charged with failing to provide information, instruction and supervision to the worker, and with failing to take every reasonable precaution for the protection of the worker.

The court rejected Sunrise’s submissions that, because there had been no complaints against the employee, the court could infer that the employee had been adequately trained. The court also found that because the worker ran in the direction of the explosion rather than away from it, the only rational inference was that he had not been properly trained.

Further, the court held that the employee 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.

Sunrise also argued that it had proved due diligence because the accident was not foreseeable. The court rejected that argument and noted that the question was not whether the accident was foreseeable, but whether a reasonable person would have foreseen that having this worker working alone at night was dangerous.

Referring to the dangerous nature of this workplace, the court stated:

“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.”

The company was also found guilty, after the same trial, of charges under the Environmental Protection Act.

This case demonstrates that courts will hold employers that operate safety-sensitive businesses to high safety standards, and training and supervision practices will be carefully scrutinized.

R. v.  Sunrise Propane Energy Group Inc., 2013 ONCJ 358 (CanLII)

“Inherently dangerous business” requires “high degree of attention to detail” in safety training and supervision: Court

Company Convicted of OHSA Charges After Criminal Negligence Charges Withdrawn in Fatality

A crane rental company has been convicted of charges under the Occupational Health and Safety Act and fined, after criminal negligence charges against it were withdrawn.

In 2009, a worker was killed after a crane owned by Millenium Crane Rentals Ltd. rolled into an excavation and pinned the worker to the wall.

The Ministry of Labour’s news release states that Millenium Crane was found guilty of failing to maintain the crane in a condition that would not endanger a worker.  A Ministry of Labour inspection had found that the crane was in a state of disrepair.  In particular, parts of the braking system were found to be broken and deteriorated, including seized calipers and worn out brake pads and drums.  The crane had only 25% brake function in its four rear wheels and only 31.25% in its four front wheels.

Interestingly, the Ministry of Labour’s press release states that, “The Crown, however, could not prove that the lack of maintenance on the crane caused the crane to roll into the excavation and fatally injure the worker.”  It was likely for that reason that the criminal prosecutors dropped the criminal negligence charges – often referred to as “Bill C-45” charges – against the worker.

This case is a reminder that the OHSA and criminal charges are not the same and involve different requirements.  The fact that criminal prosecutors drop charges does not mean that the company will be able to successfully defend against OHSA charges.

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

 

Company Convicted of OHSA Charges After Criminal Negligence Charges Withdrawn in Fatality

Part-Owner of Company Convicted, Fined Personally under OHSA

Company owners are not immune from potential convictions and fines under workplace safety laws.

A part-owner of a company has been personally convicted and fined $12,000.00 under the Ontario Occupational Health and Safety Act after a worker became entangled in a machine and died.

According to the Ontario Ministry of Labour’s press release, a worker fell into a hopper that kneads and cuts pasta dough, after he had been standing on a platform ladder to access the hopper portion of a machine.  The machine was in operation.

The Ministry of Labour found that an interlock switch designed to shut off the machine when a cover to the hopper is opened was not functioning.

The company part-owner, who was also a supervisor, pleaded guilty to failing, as a supervisor, to take every precaution reasonable in the circumstances for the protection of a worker.

The company was also convicted under the OHSA for failing, as an employer, to ensure that the equipment, materials and protective devices provided by the employer were maintained in good condition.  The company was fined $120,000.00.

Part-Owner of Company Convicted, Fined Personally under OHSA

Ship’s Navigator Sentenced to Four Years for Criminal Negligence

A B.C. ship’s navigator has been sentenced to four years after he was convicted of criminal negligence causing death for dereliction of duty leading to his ship colliding with an island.

According to The Globe and Mail, B.C. Supreme Court Justice Sunni Stromberg-Stein, in sentencing Karl Lilgert after a jury found him guilty, said that Mr. Lilgert’s relationship with a female crew member of the ship, Queen of the North, led to the collision.

The judge called Mr. Lilgert’s failure to make a course correction “an extreme and catastrophic dereliction of his duty”.  She stated that the collision occurred while Mr. Lilgert was working alone on the bridge with his former lover, who worked on the ship, for the first time since they had ended a relationship.  The judge said that Mr. Lilgert had been distracted by personal issues relating to their relationship.

Two passengers on board – a couple – have not been seen since the ship went down, and were presumed to have died.

The case is another example of a worker being convicted criminally for workplace negligence – not for intentionally doing something unsafe, but rather for not doing something that he should have done.  Mr. Lilgert has appealed.

 

Ship’s Navigator Sentenced to Four Years for Criminal Negligence

Man Criminally Guilty of Dangerous Operation of Farm Tractor

This case is of the “you thought you had heard everything” variety.  An Ontario man has been found guilty under the Criminal Code of dangerous operation of a farm tractor, and his appeal has been dismissed.

The Ontario Court of Appeal summarized the facts as follows:

“•                     the appellant was driving the tractor at 30-35 kilometers per hour along a rutted gravel and dirt road, causing the tractor to bounce along the road;

•                     the appellant was driving in a deliberate manner, and appeared determined to return to his property, heedless of those who were in his path or were attempting to stop him;

•                     without slowing, the appellant drove the tractor through a narrow opening between two trailers, one of which was moving, barely missing both;

•                     the appellant drove toward Constable Diemert, ignored his motions and shouts to stop, and drove within a few of meters of his vehicle before making an evasive manoeuvre to avoid it;

•                     he continued along the road at top speed toward Constable Lalonde, who feared for his own safety, to the extent that he nearly drew his own service revolver, before the appellant abruptly veered away at the last minute to avoid striking him;

•                     he drove up onto the narrow berm, adjacent to and above Constable Keller in his cruiser, putting the officer in fear for his own safety, before the tractor did in fact roll off the berm; and

•                     the evidence of several witnesses, including the officers, who testified that the appellant’s driving caused them to fear for their own safety.”

The appeal court stated that the trial judge found that the appellant’s driving was a “marked departure from what would be expected from a prudent driver in similar circumstances.”  The appellant’s disregard of the officers who were trying to stop him, driving toward the police vehicles in a way that required the officers to get out of the way, and leaving the road and mounting a berm, proved that the appellant had intended to drive dangerously.

One assumes that the appellant was operating the farm tractor for work-related purposes, not for recreation.  If that assumption is correct, the case is another example of the potentially “long arm” of the criminal law reaching into the workplace.  Dangerous operation of farm or construction equipment – particularly on a roadway – can lead to criminal charges.

R. v. Clare, 2013 ONCA 377 (CanLII)

 

 

Man Criminally Guilty of Dangerous Operation of Farm Tractor

Supervisor, Worker, Company fined Total of $55,000.00 In No-Injury Equipment-Drop Case

Even in no-injury accidents, fines under the Ontario Occupational Health and Safety Act can be significant, as demonstrated by a recent case in which there was potential for serious injury.

According to a Ministry of Labour news release, a company, Paramount Structures Ltd., a supervisor and a worker were fined a total of $55,000.00 after equipment fell from a condominium building under construction in Toronto.

Paramount Structures was contracted to perform the formwork required on the project.  A piece of equipment, a “fly table”, was being hoisted to an upper floor. It was not tied or secured, and it became unbalanced and slid to the ground. It landed on neighbouring railway property. It appears from the Ministry of Labour news release that no one was injured.

Paramount Structures, as an employer, pleaded guilty to failing to ensure that every part of a project must be constructed so it is supported and braced to prevent any movement that may cause its failure or collapse.  It was fined $50,000.00.  A supervisor and a worker pleaded guilty to the same charge and were fined $3,000.00 and $2,000.00 respectively.

Supervisor, Worker, Company fined Total of $55,000.00 In No-Injury Equipment-Drop Case

Worker Guilty of Obstructing MOL Inspector by Refusing to Answer Questions

A worker who refused to answer a Ministry of Labour inspector’s questions during an accident investigation has been found guilty of obstructing the inspector.

An employee of a trash-removal business consumed three beers before work, climbed up on a roof to retrieve loose shingles, and then fell off the roof and became paralyzed below the waist.  A corporation was charged as the injured worker’s “employer”.  A representative of the corporation was also charged as a supervisor, and another individual, one Haniff, was charged with obstructing the MOL inspector by not answering questions.

There was much debate in the case about who was the “employer”.  The company was ultimately found to be the employer and convicted of failing to ensure that the worker wore fall arrest equipment and was trained in fall arrest.

Haniff attended at the Ministry of Labour office, as requested by the inspector and handed the inspector an envelope that contained the telephone record for the corporate defendant. However, Haniff, who admitted that he had taken the initial call from the homeowner asking to have the trash removed, failed to answer the inspector’s other questions about what Haniff did after taking the call, and in particular whether he directed the workers to go to the job site.

Justice of the Peace Mary Ross Hendriks stated:

“Section 62(1) of the Act, which also falls under Part VIII – Enforcement,  states:

 Obstruction of inspector

 62(1) No person shall hinder, obstruct, molest or interfere with or attempt to hinder, obstruct, molest, or interfere with an inspector in the exercise of a power or the performance of a duty under this Act or the regulations or in the execution of a warrant issued under this Act or the Provincial Offences Act with respect to a matter under this Act or the regulations.

“Specifically, subsection 62(2)(a) of the Act creates a positive duty to assist, on “every person” to “furnish all necessary means in the person’s power to facilitate any entry, search, inspection, investigation, examination, testing or inquiry by an inspector,” in the exercise of his or her powers or the performance of his or her duties under the Act or regulations.

“Mr. Haniff’s refusal to answer any of his questions when they met hindered Inspector Lomer’s ability to conduct his investigation, and thwarted his ability to explore undisclosed events and workplace relationships which were relevant to his investigation.”

Haniff was therefore guilty of the Occupational Health and Safety Act offence of obstructing the inspector.

The case shows the importance of co-operating with lawful requests from Ministry of Labour inspectors in the course of an investigation.

Ontario (Ministry of Labour) v. J.R. Contracting Property Services et al., 2013 ONCJ 202 (CanLII)

 

Worker Guilty of Obstructing MOL Inspector by Refusing to Answer Questions

City Reasonably Relied on Engineer’s, Architect’s Stamp: OHSA Charge Dismissed in Wall Collapse Case

The City of Guelph acted reasonably when it relied on the stamped drawing of an architect and engineer as evidencing compliance with all legal requirements, an Ontario judge has held in dismissing an Occupational Health and Safety Act charge against the City of Guelph.

The charge resulted from the death of a fourteen year old girl when a concrete block privacy wall collapsed on her as she tried to boost herself up onto a change table which was affixed to the wall.

The City was charged under the Occupational Health and Safety Act with failing, as an employer, to ensure that the wall was capable of supporting all loads to which it may be subjected “without causing the materials therein to be stressed beyond the allowable unit stresses established under the Building Code Act“.  Mr. Justice Epstein of the Ontario Court of Justice found that the “allowable unit stresses” standard no longer existed in the Building Code at the time of the design and construction of the building.  Rather, the “limits states design philosophy” had replaced it.  The Ministry of Labour had, however, failed to update the language in the OHSA.  As such, “The wording in the charging section has no applicabliy to the circumstances of this case in that the concept of allowable unit stress had expired long before” the design and contruction of this building, which had been designed in accordance with the “limits states design discipline”.  As such, the prosecutor had not proven beyond a reasonable doubt that the City had committed the offence.

According to Justice Epstein, even if the City had committed the offence, it was reasonable for the City to rely on the stamped drawing of the architect and engineer.  It was not readily apparent that the drawing was defective, and in any event the “default position in the industry” is that if walls are joined as shown on the drawing, they need to be interlocked.  There was also an “outright failure” of the masonry subcontractor to properly construct the wall to be stable.  As such, the City had established due diligence by relying on the stamped drawing.

Occupational Health and Safety Act charges against the architect and engineer were previously dismissed for limitations reasons (see our previous post here) but that decision is under appeal.

The court’s acquittal of the City will be of some comfort to employers who rely on stamped documents of architects and engineers in constructing buildings – at least where it could not have been apparent from the drawing that it was deficient.

Her Majesty the Queen v. Corporation of the City of Guelph, Ontario Court of Justice, February 2, 2012 (Epstein J.)

City Reasonably Relied on Engineer’s, Architect’s Stamp: OHSA Charge Dismissed in Wall Collapse Case

Supplier Facing OHSA Charges Alleging that Machine Unsafe

We don’t often hear of Occupational Health and Safety Act charges against suppliers alleging that their machines or equipment were unsafe for use in workplaces.

In a recent case, Occupational Health and Safety Act charges against a supplier, alleging that a machine that it supplied did not comply with the guarding requirements of that Act, were permitted to proceed to trial before a Saskatchewan court.

The Saskatchewan OHSA, in section 8(a)(ii), imposes a duty on every “supplier” to ensure, insofar as is reasonably practicable, that any “plant” supplied by the supplier for use at any place of employment complies with the regulations under the OHSA.  “Plant” is defined to include “equipment”.

A regulation under the Saskatchewan OHSA required that, “Where a worker is required to feed material into a material-forming press, punch, shear or similar machine, an employer or supplier shall” install safeguards to prevent the worker from contacting moving parts.

The supplier argued that the the grain extractor was not a material-forming press, punch, shear or similar machine, nor was a worker required to “feed material” into the grain extractor.  Rather, according to the supplier, the grain extractor was a moving shaft that attached to a grain bag.  The court, however, stated that “No evidence was presented on this point”, and that the issue was better left to the trial judge.

This decision illustrates that suppliers – and not only employers and constructors – can have duties under occupational health and safety legislation – duties that can lead to charges and significant fines if breached.

Subsection 31(1) of the Ontario Occupational Health and Safety Act also places duties on a supplier who “supplies any machine, device, tool or equipment under any rental, leasing or similar arrangement for use in or about a workplace”.

R v Flaman Sales Ltd, 2012 SKPC 170 (CanLII)

Supplier Facing OHSA Charges Alleging that Machine Unsafe

Fear of Personal OHSA Liability Caused Employee’s Anxiety Disorder: Human Rights Tribunal

Supervisors and safety professionals have often told me that they fear being personally charged under the Occupational Health and Safety Act.  Now, a human rights tribunal has decided that an employee’s generalized anxiety disorder was caused by such a fear.

The employee was a “Supervisor, Regulated Substances, Asbestos” with the Hamilton-Wentworth District School Board.  In the fall of 2001, she developed a generalized anxiety disorder as a reaction to the “highly stressful nature of her job, and her fear that, in making a mistake about asbestos removal, she could be held personally liable for a breach of the Occupational Health and Safety Act . . .”

According to the Human Rights Tribunal of Ontario, the employee testified that “the Ministry of Labour was critical of the [school board's] handling of its asbestos removal projects and that she, as the supervisor of these projects, was personally threatened with a substantial fine.”

She went off work due to the anxiety.  Medical evidence showed that she could not work in any position involving liability for health and safety issues.  She asked to return to work in a position that did not involve any risk of OHSA liability.

The Tribunal decided that there were other positions to which the school board could have returned the employee that did not involve potential OHSA liability.  Because the school board did not return her to such a position, it had breached its duty to accommodate.  See my colleague, Catherine Coulter’s article about the significant damages (almost 10 years’ income) awarded to the employee.

The case is an interesting read for safety professionals, and perhaps a reminder to employers to provide sufficient training to ensure that their supervisors and safety professionals can sleep well at night without being nagged by fears of personal charges or liability under the Occupational Health and Safety Act.

Fair v. Hamilton-Wentworth District School Board, 2012 HRTO 350 (CanLII) (decision that employer breached duty to accommodate) and 2013 HRTO 440 (CanLII) (decision awarding damages).

 

 

Fear of Personal OHSA Liability Caused Employee’s Anxiety Disorder: Human Rights Tribunal

Safety and HR Consultants Beware: Unlicensed Private Investigator Convicted

Health and safety and human resource consultants who conduct investigations or retain outside experts to do so, should pay attention to a court decision in which an Ontario man was convicted of acting as a private investigator without a license.

Ontario’s Private Security and Investigative Services Act, 2005 defines a private investigator very broadly as “a person who performs work, for remuneration, that consists primarily of conducting investigations in order to provide information.”

That Act states that “no person shall act as a private investigator or security guard or hold himself or herself out as one unless the person holds an appropriate licence under this act.”

The defendant had attended “tax sales” (forced sales of homes in order to pay back-taxes owing to a municipality) in the past and had purchased homes in this manner.

The defendant undertook several investigations, including checking to determine whether a particular property had fallen into tax arrears and was in jeopardy of being sold, and determining if the property was free and clear of any liens.  Having been unsuccessful in his attempt to purchase the home, he realized that there would be a “surplus” from the sale, so he located and approached the owner of the home who was apparently unaware of the surplus.   The owner agreed to split any “surplus” from the sale 50-50.

The court decided that the defendant was able through investigative techniques to deduce where the property was located and who owned it, and that he had profited from his investigation.  As such, he had acted as a private investigator without a license.  He was therefore guilty of an offence.

The case indicates how broad the term “private investigation” can be interpreted.  Safety professionals and human resources managers who hire private investigators for a fee, should satisfy themselves that the private investigator is licensed.

Although the Act includes several exemptions, including “persons who perform work, for remuneration, that consists primarily of searching for and providing information on . . . the qualifications and suitability of persons as employees or prospective employees”, there are many types of workplace investigations that could fall outside of that exemption.

The bottom line is that safety professionals or human resources managers who undertake “private investigations” themselves for a fee, should check whether their activities require a license.

R. v. Harvey, 2012 ONCJ 702 (CanLII)

Safety and HR Consultants Beware: Unlicensed Private Investigator Convicted

Supervisor’s OHSA Violation Grounds Criminal Negligence Charge

A supervisor’s violation of the Occupational Health and Safety Act can ground a criminal negligence charge against him, an Ontario preliminary inquiry judge has decided, sending the criminal charges to trial.  We reported on this case in January; the court’s reasons for decision were recently made available.

The criminal negligence charge was laid against the Project Supervisor of Metron Construction after five workers fell 13 stories to their deaths when a suspended scaffold collapsed on Christmas Eve, 2009.

The Crown and the defence agreed that in order for the Project Supervisor to be guilty of criminal negligence, the Crown must prove that, by act or omission, he failed to perform a duty, and that if the failure was an omission, the failure was “wanton or reckless”.

The court decided that evidence of the Project Supervisor’s failure to ensure that all workers were tied to lifelines was sufficient proof of criminal negligence causing death that the charges should proceed to trial.  The court found that the duty to ensure that workers were connected to lifelines was set out in the Occupational Health and Safety Act and in the rules of the Construction Safety Association of Ontario.

The Project Supervisor’s consent, tacit or otherwise, to at least 5 workers using the swing stage with their equipment to ascend or descend 14 or more stories without the protection of lifelines was a marked and substantial departure from reasonable prudence.

The judge stated that safety regulations “do not establish criminal standards”, meaning a violation of a safety regulation will not automatically ground a criminal negligence charge; that will be of some comfort to employers and supervisors.  However, in this case, there was evidence of a “substantial departure from the norm” and “wanton disregard”, factors that effectively could turn the breach of the Occupational Health and Safety Act  duty into criminal negligence.

We will provide further updates on this important and high-profile case as they become available.

R. v. Kazenelson, 2013 CarswellOnt 1765 (Ontario Court of Justice)

Supervisor’s OHSA Violation Grounds Criminal Negligence Charge

Escalating Penalties: Alberta OHS Convictions For 2012 – What Can Employers Expect For The Year Ahead?

A person who contravenes Alberta’s Occupational Health and Safety Act, Regulations or Code is liable, for a first offence, to a fine of not more than $500,000 or imprisonment for a term not exceeding 6 months and, for a second or subsequent offence, to a fine of not more than $1 million or imprisonment for a term not exceeding 12 months.

In 2012, Alberta Courts imposed penalties for Occupational Health and Safety legislation violations in nine cases. Of the four cases involving fatalities, penalties against companies (including fines, alternative penalties and victim surcharges) ranged from $250,000 to nearly $1.5 million. Three of the four cases had penalties at the lower end of this range. The penalties for the five cases involving serious injuries ranged between $70,000 and $85,000, displaying an upward trend from prior years for fines in non-fatal cases.

The year 2012 represented the first time that a case achieved fines reaching the $1 million mark, and demonstrating a willingness by the court to render penalties dramatically increased from historical amounts for penalties in cases involving fatalities. The case of R. v. Perera Development Corp., Action No. 100171909P1, June 4, 2012, involved a dump truck driver who was fatally injured after removing debris from an excavation site when a 15 metre high wall of dirt and rock collapsed on him, crushing him inside of the cab of the truck. The prosecution charged two related companies as employer and/or prime contractor with numerous OHS violations, arguing that they cut corners to complete the construction project, despite having identified (but ignoring) a serious hazard associated with an improperly shored up wall of the pit. A Judge of the Alberta Provincial Court convicted the employer and prime contractor of multiple violations, deciding that they failed to exercised due diligence. The court expressed astonishment that two experienced construction companies would leave a steep 50 foot wall without any shoring whatsoever. Describing their conduct as “egregious and outrageous,” the court noted that reasonable steps could have been taken to properly shore up the wall for relatively small amount of money compared to the overall cost of the project. The court concluded that although the companies had some safety procedures in place at the site, their systems were inadequate. The court fined Perera Development Corporation a total of $1.25 million plus a 15% victim surcharge. The court also fined Perera Shawnee Ltd. a total of $900,000 plus a 15% victim surcharge, for a total of $2,472,500 in penalties arising from the incident.

The trend continues. On January 24, 2013, SSEC Canada Ltd. was sentenced to a $1.5 million penalty, which was comprised of a $200,000 fine and a $1.3 million payment to the Alberta Law Foundation to be used to support an outreach and education program. The conviction arose as a result of a guilty plea by SSEC Canada Ltd. to three charges under Alberta’s Occupational Health and Safety Act relating to the failure of the employer to ensure, as far as reasonably practicable, the health and safety of workers. The circumstances giving rise to the incident related to the work being performed on large metal storage tanks, which work had fallen behind schedule. In order to expedite progress, SSEC Canada proposed revised construction whereby the tanks’ walls and roofs would be built at the same time. The prime contractor agreed to the revisions, but said the work should be done under its own construction management team which would supervise quality control and safety. Despite this direction, SSEC Canada began work using the new method before the prime contractor’s team arrived on site, and even though the procedures had not yet been certified by a professional engineer. On April 24, 2007, about three weeks after SSEC Canada began using the new method, a roof collapsed when the wire cables holding it up snapped after being kinked and torqued in high winds. Two workers were crushed by falling steel and five other workers were injured.

It is noteworthy that in both the Perera and SSEC Canada cases, the circumstances involved fatal incidents where the hazards were specifically identified, but the implementation and following of proper safety measures were deliberately bypassed.

For more information see: http://humanservices.alberta.ca/working-in-alberta/6752.html

Escalating Penalties: Alberta OHS Convictions For 2012 – What Can Employers Expect For The Year Ahead?

Safety Manual “Lacking in Efficiency” – Employer Convicted under OHSA

An Ontario justice of the peace has held that an employer’s safety manual was defective, and has convicted the employer of four charges under the Occupational Health and Safety Act.

The employer was charged after a worker was seriously injured when he was hit by the bucket of an excavator while working in a trench removing old pipes and replacing them with new ones.

The charges alleged a failure to adequately train the worker, and failure to provide a competent, dedicated signaller who was clear of the intended path of travel of the equipment.

The court stated that:

“[T]his court views the contents of the corporate Safety Manual and the smaller Employee Safety and Environmental Handbook to be lacking in efficiency.  There was no reference to mandated signals to be a standard use of communication between all construction workers.  The Safety Manual had a very short description about the use of a ladder [to exit the trench].  There was conflicting information about the use of a ‘top man’ at the work site.  There was no specific testimony which established that the employees were aware of the content of every safety and health instruction in the Safety Manual.”

The justice of the peace also stated that, “The employee handbook has no written instruction regarding the role of a signaller.”  Although there was evidence that the employer had issued oral instructions at a “tailgate meeting”, those instructions were not sufficient.

This decision illustrates the importance of employers ensuring that their safety manuals cover, with the appropriate level of detail, the key safety issues for that employer’s workplace.  In this case, signalling was obviously key in the employer’s business, but it was covered inadequately in the safety manual. An inadequate safety manual can actually be used against the employer at trial, rather than assist in establishing a due diligence defence.

Ontario (Ministry of Labour) v. Eastway Contracting Inc., 2012 CarswellOnt 17161 (Ontario Court of Justice)

Safety Manual “Lacking in Efficiency” – Employer Convicted under OHSA

Farm Employer Guilty: “Accident Waiting to Happen” in Case of Sinking Trailer that Rose Again

A farm employer has been convicted of a charge under the Occupational Health and Safety Act where portable steps being used by the employer were “not even barely adequate”.

The employer was charged with failing to take the reasonable precaution of ensuring that adequate access and/or egress was provided for a transport storage trailer.  A 59-year-old worker fell and broke her leg while climbing down from the trailer. The evidence showed that the top step of the portable steps used to access the trailer was 24 inches lower than the floor of the trailer, so that the employee had to climb down from the trailer backwards, lying on her stomach on the floor of the trailer, because of the distance to the top step. 

Interestingly, it appears that the steps had been adequate when the trailer was in its previous location. There, the trailer’s tires had been flat and the wheels sunk into the ground, shortening the distance between the top step and the floor of the trailer. The problem was that the trailer had been moved and the tires inflated.

The trial justice had found the employer guilty of the charge, calling the situation an “accident waiting to happen”.  The appeal judge agreed that the conviction should stand.  The distance of 24 inches between the top step and the floor of the trailer created a self-evidently unsafe situation.  The obligation under the OHSA to take “every reasonable precaution” includes the obligation to provide equipment that is adequate to the task for which it is required.   In the circumstances, it was not a defence that no one foresaw the danger and that no worker complained.

Ontario (Ministry of Labour) v. Stratford Chick Hatchery Ltd., 2013 ONCJ 47 (CanLII)

Farm Employer Guilty: “Accident Waiting to Happen” in Case of Sinking Trailer that Rose Again