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Saskatchewan Court of Appeal confirms acquittal following workplace fatality in grain terminal

We previously reported on the acquittal of a Saskatchewan employer after a worker died of suffocation in a grain terminal (see our previous post here). The Saskatchewan Court of Appeal recently dismissed the Crown’s appeal of the acquittal, confirming that the trial judge made no error in finding that the elements of the charges had not been proven beyond a reasonable doubt.

One of the Crown’s arguments was that a workplace injury or death was proof or evidence of a violation of the occupational health and safety legislation. The Court of Appeal noted that this issue did not appear to be settled by the courts and referenced a recent Alberta Court of Appeal case where leave to appeal was granted regarding that same issue (see our previous discussion of R. v. Precision Diversified Oilfield Services Corp., 2017 ABCA 47 here). 

The Court of Appeal reviewed the existing case law and found that where, as in the case before it, the Crown had particularized a charge, the elements of the alleged contravention under the legislation were not necessarily established by proof of the injury or death of an employee at the workplace. While proof of an accident may be enough to establish the elements of the general charge that an employer failed to ensure the health and safety of an employee, where the Crown has particularized a charge, the Crown must prove all of the necessary elements.

In this case, the Court of Appeal agreed with the trial judge’s finding that the Crown had failed to prove the elements of the charges. The Court found that that worker had learned through his training that he was not to enter a confined space, such as the receiving pit, until he had received the necessary training and safety procedures for doing so. In addition, the usual procedure to unplug a blockage was a simple process that did not require any specific training or supervision. The trial judge had also made a finding of fact that the deceased had never been told to enter the receiving pit or unplug the blockage. He had only been told to look in the pit and so the employer was not obliged to instruct him on how to perform those other tasks. Finally, while the Court acknowledged that employers have a positive duty to ensure employees are meaningfully aware of hazards, the trial judge’s findings about the training and workplace culture of safety did not lend themselves to a finding that the employer had failed in its duties to the employee.

R. v. Viterra Inc., 2017 SKCA 51 (CanLII)

Saskatchewan Court of Appeal confirms acquittal following workplace fatality in grain terminal

Citing unfairness, court throws out criminal negligence charge against boom truck operator that was laid after his guilty plea to related OHSA charge

A boom truck operator who pleaded guilty to an Occupational Health and Safety Act charge after a workplace fatality, has had a criminal negligence charge against him stayed by the court. The boom truck toppled over, pinning a worker who died as a result.  The operator’s failure to extend the outriggers and stabilizers resulted in the boom truck toppling over.

The police and Ministry of Labour investigated.  The MOL charged the operator with offences under the OHSA.  Almost two years after the incident, the operator pleaded guilty to one OHSA charge and was fined $3,500.00.  Apparently he thought that that would be the end of the matter.

He was wrong.  Five months after the operator’s guilty plea on the OHSA charge (now more than two years after the incident), the police laid a criminal negligence charge against the operator arising from the same incident.

The court stated, at paragraph 40 of its decision:

“The evidence is clear that both the Ministry of Labour and the OPP had concluded within three days of the incident that they had reasonable and probable grounds to lay charges. The Ministry proceeded to lay charges on May 6, 2013, approximately 11 months following the incident. On April 17, 2014, approximately 11 months following the laying of the charges, the applicant pled guilty to one of the charges under the Occupational Health and Safety Act. Then on September 12, 2014, five months after the plea of guilt, the charge of criminal negligence was laid. In total, 26 months and 23 days expired from the date of the incident to the laying of the criminal negligence charge.”

The court stated that there was no reason why the police and MOL investigations could not have proceeded in tandem. The sequence in which the charges were laid was unfair to the operator. At the very least, the Crown should have given an emphatic notice to the operator that he would likely be charged criminally.  An accused person should be able to have a sense of security, when he makes a decision on a set of charges, that the decision resolves the case in its entirety.  According to the court, to have further charges laid after such a lengthy period of time and after the operator had pleaded guilty to the OHSA charge was unfair.

There was the potential for serious prejudice since the fact that he had pleaded guilty to the OHSA charge could possibly be put before the court in his criminal negligence case. Also, a witness had died in the interim.

The police’s act of laying criminal charges after the operator pleaded guilty to the OHSA charges constituted a breach of the sense of fair play, an act which offends the community. The court therefore stayed the criminal negligence charge, citing a breach of sections 7 (right to life, liberty and the security of the person) and 11(d) (right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal) of the Canadian Charter of Rights and Freedoms.

R. v Campbell, 2017 ONSC 3442 (CanLII)

Citing unfairness, court throws out criminal negligence charge against boom truck operator that was laid after his guilty plea to related OHSA charge

Company loses “non suit” application in OHSA prosecution

An Ontario company has lost its argument that an Occupational Health and Safety Act prosecution should be ended before the company called any evidence at trial.

The OHSA charge against the company resulted from a fatality at a construction site after a “curb machine” overturned while being off-loaded from a “float” trailer, crushing a worker who later died. There were no witnesses to the accident.

The charge against the company alleged that the curb machine was moved in a manner that endangered a worker.

The company argued, after the Ministry of Labour prosecutor had finished calling the prosecution witnesses, that the MOL had not proven the cause of the accident, and that as a result, the charge should be dismissed.

The Ministry of Labour argued that the prosecution need not prove the cause of the accident in order to obtain a conviction. The MOL argued that the fact that a worker died was positive evidence that a worker was “endangered”.

The court agreed with the prosecutor and decided not to dismiss the charges for a “non suit” (also called a “motion for a directed verdict of acquittal”). The court decided that there was some evidence in support of each of the elements of the charge. The worker was the driver of the flatbed trailer; the curb machine was found on top of the worker; and the curb machine was located next to the flatbed trailer. As such, the court refused to declare a “non suit”.  Instead, the court asked the company whether it would be calling any evidence or proceeding to final argument.

Ontario (Ministry of Labour) v. Cobra Float Services Inc., 2017 ONCJ 388 (CanLII)

 

 

 

Company loses “non suit” application in OHSA prosecution

Student’s violent outbursts justified teacher’s work refusal: OLRB

A student’s history of violent outbursts justified a teacher’s work refusal, the Ontario Labour Relations Board has decided.

The teacher actually engaged in two work refusals: one when the student became violent (which was resolved by removing the student from the teacher’s class), and the second the next day when the teacher realized that the student was back in her class and that the removal had been only for the remainder of the previous day.

The student was in senior kindergarten. He had engaged in violent behavior at the school in the previous school year, including poking another student in the eye with a stick. In senior kindergarten, the student had more violent outbursts including throwing a stool at the teacher; punching another student; trying to bite and scratch the teacher; and kicking the teacher and scratching her face and eye, for which she was required to go to the hospital. The teacher said that it was impossible to predict when the student’s outbursts would occur.

On the day of the teacher’s first work refusal, the student began to push another student. Anticipating an incident, the teacher had the other students removed from the classroom. The student was left with the Educational Assistant, whom the student began to kick and hit. The student also threw toys at the door. The EA was able to calm the student down. While the student was in the classroom with the EA, the teacher went to the principal’s office and said that she (the teacher) was exercising her right to refuse unsafe work. The principal, after consulting with the teacher, removed the student from the class and spent the rest of the day in the principal’s office.

The next day, the teacher came to school and found the student back in her class. She again refused to work, saying she was concerned that the student would have another violent outburst. A Ministry of Labour inspector attended and determined that there was no reason for the teacher to refuse work under the Occupational Health and Safety Act. The teacher’s union appealed that decision to the OLRB.

The OLRB decided that the teacher’s first work refusal was not justified under the OHSA because at the time, the student’s health and safety was in imminent jeopardy in that the student was a danger to himself if left alone.   Regulation 857 prohibited teachers from refusing to work where the circumstances were such that the life, health or safety of a student was in imminent jeopardy. However, the second work refusal was justified as the teacher had a genuine and honest concern about her safety as a result of the student’s violent behavior. Given the student’s history, that concern was reasonable. The school had put the teacher in a difficult position: not only was the student returned to class, but no one in administration spoke with the teacher in advance. No new measures had been considered in order to deal with the student’s outbursts.

Toronto Elementary Catholic Teachers / Ontario English Catholic Teachers Association v. Toronto Catholic District School Board, 2017 CanLII 37597 (ON LRB)

 

Student’s violent outbursts justified teacher’s work refusal: OLRB

SCC upholds employer’s “no free accident” alcohol and drug policy: Stewart v Elk Valley

On June 15, 2017, the Supreme Court of Canada released its decision in Stewart v Elk Valley Coal Corp. (2017 SCC 30). This is a landmark decision, reinforcing the right of employers to take proactive risk mitigation and management measures through alcohol and drug policies to ensure workplace safety.

In this case, Ian Stewart (“Stewart”) worked in a safety-sensitive mine operated by the Elk Valley Coal Corporation, Cardinal River Operations (“Elk Valley”). The employer implemented an alcohol and drug policy, which among other things, required employees to disclose addiction issues before any alcohol or drug-related incident occurred (“Policy”). Employees who self-disclosed would be offered treatment. Employees who failed to self-disclose in advance of an incident and subsequently tested positive for alcohol or drugs, could be terminated.

Read the full article

SCC upholds employer’s “no free accident” alcohol and drug policy: Stewart v Elk Valley

Nova Scotia roofer jailed for 4 months after tenth OHSA conviction

Our blog post of May 29th reported that an Ontario roofer has been sent to jail for one day for an OHSA violation. CBC news has reported that a Nova Scotia judge has sent a roofer in that province to jail for four months after being found guilty for the tenth time of Occupational Health and Safety Act violations – nine of them for failing to ensure that workers used proper fall protection.

According to the CBC, this latest violation occurred only three months after the roofer was sentenced to serve 15 days in jail for previous violations of the OHSA.

This is one of the longest jail terms in Canadian history for violating workplace safety legislation.

CBC reports that the roofer is also required to report all jobs to the Nova Scotia Department of Labour and Education for two years.

The CBC article may be found here.

Nova Scotia roofer jailed for 4 months after tenth OHSA conviction

Corporate director jailed for one day, fined $10,000 for OHSA violation; he had been fined twice before

A director of a roofing company who had two previous convictions for violating the Ontario Occupational Health and Safety Act has been sent to jail for one day after he was convicted for the third time.  He was also fined $10,000 for the same offence.  Jail terms, while still rare, are becoming more common in Ontario for OHSA violations.

The director was charged personally as an employer for failing to ensure that a worker was adequately protected from falling, by use of a travel restraint system, a fall arrest system or a safety net.  A Ministry of Labour inspector had caught the worker working at a height of about 26 feet without fall protection.

The director had been convicted two years earlier for the same offence and fined $4,500, and had also been convicted four years earlier for the same offence and fined $2,000.

The MOL’s press release can be read here.

 

Corporate director jailed for one day, fined $10,000 for OHSA violation; he had been fined twice before

Loader operator entitled to remain in job despite accidents: insufficient warnings and training, decides arbitrator

A labour arbitrator has ordered an employer to return an employee to his loader operator  position despite the employer’s objection that the employee had caused accidents.

The employee, who had almost 40 years of service including 15 as a loader operator, had been involved in eight incidents in which damage to the employer’s property occurred.  His incident rate of 1.2% was the highest amongst all of its yard loader operators.  After the eighth incident, the employer told him that he was disqualified from the loader operator position and was being transferred to the debarker position. The union grieved.

The arbitrator overturned the transfer. She noted that the employer’s evidence was that the employee had been “involved” in the eight incidents.  The most recent warning was five years before the incident, and only warned him to be more aware of the “whereabouts” of other vehicles, and two years earlier that damage to the employer’s property was not “acceptable”.  At no time was he warned or put on notice that he was viewed as a safety risk and that his employment as a loader operator was in jeopardy.

The arbitrator also noted the absence of evidence that employer provided the employee with training of any sort in an attempt to address performance concerns or assess ability to work safely. The evidence did not support the employer’s conclusion, drawn from the record of incidents, that the employee was no longer able to work safely in the yard loader operator position.

The arbitrator stated that she did not minimize the employer’s “very significant obligations to ensure that the workplace is safe, and to respond to safety issues”.  Based on the absence of warnings or training to address the safety concerns, however, she ordered the employer to reinstate the employee to the yard loader operator position.

Columbia Forest Products v United Steelworkers, Local 1-2010, 2017 CanLII 21145 (ON LA)

Loader operator entitled to remain in job despite accidents: insufficient warnings and training, decides arbitrator

Court orders condo owner who harassed building management staff to cease and desist. OHSA harassment provisions applied

A condominium owner who called building management staff offensive and degrading names has been ordered by a judge to cease and desist from harassing them. The decision shows that the Ontario Occupational Health and Safety Act’s harassment provisions can require an employer to take steps to end harassment by third-parties.

The condo owner frequently and persistently emailed staff.  She also called them degrading names such as “obscenely obese”, “massive hulk” and “tubbo”. She suggested that she was deeply concerned about the management of the building.

The condominium corporation sought a cease-and-desist order from the court. The judge noted that the owner’s “verbal barrage has made work life intolerable” for the staff. The judge described her communications as “antisocial, degrading and harassing”.  Her conduct was workplace harassment under the OHSA. It was clearly unwelcome, and the employer had a legal duty under the OHSA to investigate it.

The judge ordered the condo owner to “cease and desist from uncivil or illegal conduct that violates the Condominium Act or the Rules” of the condo corporation. The judge also ordered her to pay the condo corporation $15,000 for its legal costs in the court proceeding.

York Condominium Corp No 163 v Robinson, 2017 ONSC 2419 (CanLII)

Court orders condo owner who harassed building management staff to cease and desist. OHSA harassment provisions applied

Safety officer, fired after company loses COR certification, wins wrongful dismissal lawsuit

A safety officer whose duties included maintaining his employer’s Certificate of Recognition (COR) certification was not fired for just cause, a court has decided. The company claimed that it lost its COR certification due to his failure to complete certain COR requirements by an end-of-year deadline.

The judge noted that the COR certification “recognizes a high standard of industrial/commercial safety and thereby creates several associated benefits for companies that maintain certification”, and “A COR designation gives a company significant credibility as a leader in high safety standards. Further, it is a prerequisite to serving certain clientele, such as the municipalities of Edmonton and Calgary, and creates significant reductions in WCB premiums.”

The company lost its COR certification when the safety officer failed to meet certain COR requirements including the requirement that an external auditor receive an application for an audit by the December 31 deadline.  The company viewed this as “‘potentially disastrous’ to the company, as it jeopardized several contracts with both the City of Edmonton and the City of Calgary.”

The court found that the safety officer naively believed that, despite the lack of assistance available to him, he could complete necessary internal safety audits in time or get an extension. The court stated, “Naiveté is not dishonesty.  I find he honestly believed that he would obtain this extension of time.”  The application for an extension of time was rejected, the company lost its COR certification, and the employee was fired.

The court noted that the safety officer had become very ill with an autoimmune disease. Also, his supervisor left the company and his new supervisor worked in another city, which meant that they would no longer have daily interactions. The court decided that the employer had repudiated the employment relationship by eliminating the assistance that the safety officer required from other employees to carry out his duties, and eliminating the supervision and support that he required.  The safety officer had pleaded for help and “this plea fell on deaf ears”.

As such, the termination was without just cause. The safety officer, who had four years of service and earned $82,400 per year, was entitled to six months’ notice of termination.  His damages, after deducting his mitigation income from new employment, were $28,709.00.

We understand that this decision has been appealed.

Tipon v. Fleet Brake Parts & Service Limited, 2017 ABPC 29 (CanLII)

Safety officer, fired after company loses COR certification, wins wrongful dismissal lawsuit

Worker entitled to sue coworker for failure to report absence of or defect in protective equipment: court

An Ontario judge has allowed an injured worker to proceed with his lawsuit against a coworker for failing to report the absence of or defect in fall arrest equipment.

The injured worker was hired by a friend to assist in roofing a customer’s house.  He fell from the roof and was badly injured.  He was not wearing appropriate fall arrest equipment.

The injured worker sued his friend and the homeowner.  He sought to later add a coworker and his company (who apparently were there on the day of the accident, and also completed the roofing work after the accident) as defendants to the lawsuit.  The coworker sought to have the claim against him and his company struck out, arguing that there was no legal cause of action against him. The judge disagreed.  He stated that the injured worker had an “arguable cause of action” against the coworker and his company for negligence, “informed by their failure to report . . . the absence of or defect in any safety equipment [the injured worker] used or any unsafe conditions or contravention of the OSHA [sic] or regulations thereunder, pursuant to s. 28(1)(c) or (d)” of the OHSA.

Those sections of the OHSA impose a legal duty on each worker to “report to his or her employer or supervisor the absence of or defect in any equipment or protective device of which the worker is aware and which may endanger himself, herself or another worker” and “report to his or her employer or supervisor any contravention of this Act or the regulations or the existence of any hazard of which he or she knows.”

Interestingly, the parties appear not to have argued whether the injured worker’s lawsuit was barred by the Workplace Safety and Insurance Act because the injury arose out of and in the course of employment.

MacPherson v Samuel, 2017 ONSC 2024 (CanLII)

Worker entitled to sue coworker for failure to report absence of or defect in protective equipment: court

Bullied to death? PEI WCB awards benefits to widow after finding a link between workplace bullying and fatal heart attack

The Workers Compensation Board of Prince Edward Island recently awarded WCB benefits to the widow of a worker who died of a heart attack in November 2013. The worker had suffered a workplace back injury a few months earlier and had recently returned to work. According to the widow’s submissions to the WCB, the worker was bullied at work by his supervisor and did not feel he was receiving the proper support from his employer.

The worker’s family had initially approached the WCB about the availability of benefits, but were advised that because the death was not caused by a workplace injury, benefits were not available to them. The worker’s estate, widow and children subsequently commenced a court action against the employer and supervisor claiming damages. The claim alleged that the worker died from heart failure as a result of workplace bullying, and that the work conditions led to stress, anxiety and physical symptoms which ultimately caused his fatal heart attack.

The Supreme Court of PEI initially dismissed the action on the basis that it did not have jurisdiction as there was a collective agreement in place that governed, and so there were other remedies available to the plaintiffs including grievance arbitration and a WCB claim. On appeal, the PEI Court of Appeal reversed the decision, finding that the PEI Fatal Accidents Act did give the Court jurisdiction over the claim brought by the dependents. The Court of Appeal also considered whether a stay was appropriate on the basis that the claim was within the jurisdiction of the Workers Compensation Act. However, the Court was unable to decide that issue on the limited record, reminding the parties that the WCB can adjudicate and determine whether a right of action is removed by the Workers Compensation Act.

The plaintiffs returned to the WCB seeking a determination. The WCB confirmed that a workplace accident could include bullying and harassment. After receiving submissions from the parties, the WCB determined that the worker’s death was linked to workplace bullying and harassment, thus entitling the widow to benefits. The employer has filed an appeal with the WCB so this is likely not the last word.

While WCB policies may vary across the country, the basic premise behind WCB benefits is the same – the historic trade off whereby employers fund a no-fault insurance scheme to compensate injured workers for workplace injuries and in return, workers give up the right to sue the employer. In order for a claim to be compensable, there must have been a workplace accident.

In Alberta, the WCB’s cardiac policy states that in order for cardiac claims to be compensable:

  • there must be evidence of occupational exposure to factors or events known or presumed to be associated with heart problems; and
  • the time period between the occupational exposure and the onset of the cardiac condition is such that a relationship can be established.

The policy also list some examples of occupational exposures which can cause cardiac conditions, including psychological causes, involving exposure to significant and acute psychological stress.

Therefore, while the PEI decision appears to be a unique case, with the proper facts and medical evidence, and the relatively recent focus on issues of workplace bullying, we can expect to see more claims for benefits relating to workplace bullying and harassment. In the meantime, employers should ensure that they have (and follow!) appropriate policies and procedures in place to address workplace bullying and harassment.

The Court of Appeal decision can be found here.

 

Bullied to death? PEI WCB awards benefits to widow after finding a link between workplace bullying and fatal heart attack

“Your ugly face”: employer’s condescending, aggressive, hostile and profane behaviour in one meeting resulted in constructive dismissal. Nurse awarded 24 months in damages

The Ontario Court of Appeal has upheld a 24-month damage award to a long-service nurse in a doctor’s office who believed that she had been fired during a hostile meeting with her employer.

The doctor for whom she worked wanted her to look into electronic medical records (EMR).  She was overwhelmed with a heavy workload and did not get to it.  The doctor angrily confronted her in a meeting, at which the doctor’s wife was also present.  The court found that the doctor, in his anger, said, “Go! Get out! I am so sick of coming into this office every day and looking at your ugly face.”  He also pointed at her, shouted at her, accused her of being resistant to change, and used profanity during that meeting.  The employee, distraught, left the meeting and never returned to work. The employer treated her as having quit. The employee sued for wrongful dismissal.

The trial judge decided that although the doctor did not intend to dismiss the nurse, he did in fact fire her when he told her to “Go! Get out!”

Even if the doctor had not fired the employee, he had constructively dismissed her, the trial judge stated.  Although the meeting was only one incident, it was sufficient to constitute a constructive dismissal.  The trial judge wrote:

“An employer owes a duty to its employees to treat them fairly, with civility, decency, respect and dignity.  An employer who subjects employees to treatment that renders competent performance of their work impossible, or continued employment intolerable, exposes itself to an action for constructive dismissal.  Where the employer’s treatment of the employee is of sufficient severity and effect, it will be characterized as an unjustified repudiation of the employment contract.”

The trial judge found that the doctor’s behaviour was condescending, aggressive, hostile and profane.  His conduct diminished the nurse’s stature and dignity in the office.  When the doctor saw the emotional impact that his comments had on her at the meeting, he did nothing.  He had made her continued employment intolerable, and effectively destroyed the employment relationship.

The trial judge awarded this 22-year employee 24 months’ salary in damages for wrongful dismissal.  The appeal court upheld this award.

The trial judge’s decision can be read here, and the appeal court’s decision here.

 

“Your ugly face”: employer’s condescending, aggressive, hostile and profane behaviour in one meeting resulted in constructive dismissal. Nurse awarded 24 months in damages

Lunchtime car accident a matter for WSIB, not courts, WSIAT rules

The Ontario Workplace Safety and Insurance Appeals Tribunal has ruled that an employee who was injured at lunchtime in a car accident was barred from suing the other driver in court.  Instead, he must go through the WSIB for his injury benefits.

The employee, a sales manager for a food company, was taking his son and a daughter of a colleague to lunch in his company vehicle when the other driver ran a red light and collided with the vehicle.  The other driver was employed with a company that was registered with the WSIB as a “Schedule 1” employer.

The WSIAT ruled that even though it was lunchtime, the injured employee was “in the course of his employment” because on the same trip he planned to see a client and pick up a cheque for his employer, which was a regular task for him.  The car trip had a “dual purpose” and was not solely personal time.  As such he was entitled to claim WSIB benefits, and barred from suing the other driver in the courts because the other driver was employed with a “Schedule 1” employer.

The employee claimed that his employer had registered with the WSIB after the accident, and therefore that he was entitled to sue the other driver in the courts.  The WSIAT ruled that even if his employer has registered with the WSIB after the accident, the employer was a “Schedule 1” employer, and therefore the employee was not entitled to sue in the courts.

Decision No. 1572/16 (Ontario Workplace Safety and Insurance Appeals Tribunal)

Lunchtime car accident a matter for WSIB, not courts, WSIAT rules

OLRB confirms 30-day hard-stop deadline for appealing Ontario MOL inspectors’ compliance orders

A recent Ontario Labour Relations Board decision confirms that the 30-day deadline for appealing Ministry of Labour health and safety inspectors’ compliance orders under the Occupational Health and Safety Act cannot not be extended.

An MOL inspector visited a mortuary and issued five compliance orders including an order to seal certain flammable liquids in sealed containers of not more than 23 litres and in a special metal cabinet.

The employer filed its appeal of two orders with the OLRB 40 days after the MOL inspector issued those orders – that is, ten days after the deadline.

The OLRB stated:

There is no provision in the Act that permits the Board to extend the time period prescribed by subsection 61(1) of the Act within which an appeal must be made to the Board.  That is, the Board does not have the discretion to relieve against appeals that are filed beyond the statutory 30 day time frame . . .  Quite simply, the Board does not have the jurisdiction to extend the 30 day time period provided by the Act to appeal an inspector’s order.

As such, the OLRB dismissed the appeal in respect of the two orders that were appealed late.

The decision is a reminder to employers to ensure that if they intend to challenge MOL inspectors’ compliance orders, the appeal must be filed with the OLRB within 30 days.

Ottawa Mortuary Services v Egrmajer, 2017 CanLII 11813 (ON LRB)

OLRB confirms 30-day hard-stop deadline for appealing Ontario MOL inspectors’ compliance orders

Arbitrator disagrees that grievor’s interference with air quality test was a deliberate act of sabotage and replaces termination with a lengthy suspension

In this recent Alberta arbitration case, the employer had been dealing with safety issues involving excessive carbon monoxide levels. Carbon monoxide readings in the employer’s facility were often beyond the regulatory levels and the employer had taken several steps to try to reduce them. The City of Calgary ultimately issued an order requiring the employer to either reduce the levels or face a potential plant closure.  The employer hired a consultant to perform the necessary testing. A two day test was set up that involved setting up stationary air quality monitors in the facility, as well as having individuals carry personal air quality monitors while they went about their daily work routine.

On the first day of the test, the grievor was seen moving one of the stationary monitors. When confronted, he replied that he had switched his personal monitor for the stationary one so that the test would take into account his personal exposure. He acknowledged that he did this without authorization. The employer treated this as a serious safety risk as he tampered with the testing process. He had also previously interfered with an air quality test. The employer considered his conduct to be a violation of the company’s safety responsibilities and of its Vision, Mission, Values and Objectives policy. The employer took the position that the grievor had fundamentally breached the trust relationship between them and terminated his employment. The union grieved the termination.

The arbitrator found that the evidence established that the employer was committed to resolving the air quality issue. However, he did not accept that the grievor’s conduct was an act of  sabotage and noted that the grievor’s conduct did not create a safety violation or threat. Nevertheless, the arbitrator acknowledged that the grievor had interfered with a planned scientific test, potentially corrupting its results, and that his conduct warranted discipline. The question was whether termination was appropriate.

The arbitrator noted that the employer’s policies required employees to be vigilant in ensuring safety. The evidence also established that another employee had previously removed a monitor without authorization but was not disciplined. The arbitrator also considered that the grievor had not been made aware of the potential consequences of his actions before he moved the monitor and when he appreciated the implications of what he had done, he admitted his mistake and apologized. Ultimately, the arbitrator held that the employer had not established that the grievor had deliberately tried to sabotaged the tests. What the evidence did establish is that the grievor knew, or ought to have known, the significance of moving the monitor without authority. This conduct was serious and was deserving of appropriate discipline which took into account two previous disciplinary offences.

After reviewing all of the circumstances, the arbitrator  allowed the grievance as he was not persuaded that the employment relationship had been irretrievably severed. He substituted a lengthy, 90 day, suspension, without pay, for the termination.

Cement, Lime, Gypsum And Allied Workers (International Brotherhood Of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers And Helpers, Local Lodge D345) v Certainteed Gypsum Canada Inc., 2017 CanLII 10827 (AB GAA)

Arbitrator disagrees that grievor’s interference with air quality test was a deliberate act of sabotage and replaces termination with a lengthy suspension

Threats of violence, one day after “sensitivity training”, get worker fired for cause. He “may have a problem with women in the workplace, especially women managers”, says arbitrator

A worker who said, “If anything ever happened, like losing my job, I’d have no problem coming in here and shooting them”, a day after receiving sensitivity training relating to workplace violence, was dismissed for cause, an arbitrator has decided. The worker, a fare collector, had taken the training after giving the finger to an “obstreperous customer”.

He made the “shooting them” threat while speaking with a coworker about the materials from the training session, to which he remarked, ” Can you believe this?”  After the coworker tried to make light of the situation, the worker said that he would kill only managers, not union employees.

The coworker reported the threat to management, who then fired the worker, who filed a union grievance.

The arbitrator found that the worker had made the threat, despite the worker’s denial.
The coworker had no motive to make false allegations. The two employees had had a friendly relationship.

Despite the worker’s 25 years of service, the arbitrator decided that the employer had just cause for dismissal. The worker never admitted the threats nor apologized. He had a disciplinary history including discipline for an incident in which he was unable to control his anger. Significantly, he made the threats one day after taking sensitivity training designed to help him control his anger and understand the seriousness of workplace violence. He also had an unfounded view that female employees were conspiring to get him, showing that he “may have a problem with women in the workplace”.  All of these factors “did not bode well for the future” were he to be reinstated.

Toronto Transit Commission v Amalgamated Transit Union, Local 113, 2017 CanLII 11071 (ON LA)

Threats of violence, one day after “sensitivity training”, get worker fired for cause. He “may have a problem with women in the workplace, especially women managers”, says arbitrator

“Safety Engineering Letter of Opinion” dealing with OHSA obligations disallowed by court in civil lawsuit

A “Safety Engineering Letter of Opinion”, styled as an “expert report” and covering Occupational Health and Safety Act obligations, was struck and its author was prohibited from testifying at the trial of a civil lawsuit.

The lawsuit arose from an accident involving the towing of a disabled motor vehicle at a scrapyard. Some defendants sought to have the author of the Safety Engineering Letter of Opinion testify about obligations under the OHSA, apparently to show that a co-defendant (the operator of the scrapyard) breached its OHSA obligations and therefore was negligent.

The court stated that the Safety Engineering Letter of Opinion drew “legal conclusions” that were beyond its author’s expertise. There was no “specialized standard of care” for which expert evidence was required. To the extent that the OHSA was relevant in the lawsuit, the parties could direct the court to look at the OHSA’s provisions.

Interestingly, the court stated at paragraph 34:

“[The Safety Engineering Letter of Opinion] raises no other statutory or common law duties which the AIM defendants may have owed to Awada [the injured party]. The OHSA did not apply to Awada while he was on AIM’s weigh scale. He was a third-party. The OHSA applies only to workplace relationships between employers and workers. Any duties owed by the AIM defendants to Awada are governed by the Occupiers Liability Act, R.S.O. 1990, c. O.2 and the common law, not by the OHSA. Both Awada and Wehbe have pleaded the Occupiers Liability Act and the Negligence Act; they have not made any allegations with respect to the OHSA.”

The court noted that the scrapyard operator had produced materials relating to its Emergency Response Procedures, Occupational Health and Safety Policy, Safety Enforcement Policy, and Workplace Responsibilities. The court stated that if there was an allegation that the scrapyard operator was negligent in failing to provide one of its employees with appropriate safety training so as to ensure that he was a “competent person”, those documents can be referred to.  The parties could also ask the trial judge to direct the jurors to the relevant provisions of the OHSA and regulations without any need to consider the Safety Engineering Letter of Opinion.

In the result, the court struck the Safety Engineering Letter of Opinion and prohibited its author from testifying as a witness at trial.

Awada v Glaeser, 2017 ONSC 1094 (CanLII)

 

“Safety Engineering Letter of Opinion” dealing with OHSA obligations disallowed by court in civil lawsuit

Appeal Court Revives Class Action against the WSIB

The Ontario Court of Appeal has revived a proposed class action brought by the appellant, Pietro Castrillo, on behalf of a class of injured workers whom he alleges have been wrongfully denied the full extent of benefits to which they were entitled under the Workplace Safety and Insurance Act, 1997 (the “Act”), by the respondent the Workplace Safety and Insurance Board (“WSIB”).  The class action alleges misfeasance in public office, bad faith, and negligence on the part of the WSIB.

The class action claims that injured workers were “denied the full extent of benefits to which they were entitled” as a result of a “secret policy” implemented by the WSIB, which policy adopted a broader interpretation of the term “pre-existing impairment” to include asymptomatic pre-existing conditions, which had previously been excluded.   The appellant claims that this change in interpretation was illegally made in order to save WSIB money by reducing injured workers’ non-economic loss awards.  The class action seeks declarations that the WSIB “perpetrated a misfeasance in public office” in how it handled the non-economic loss claims of the class, “breached its duty to act in good faith” to the class, and, in the alternative, was negligent.  According to the Toronto Star, the alleged “secret policy” was in force between 2012 and 2014.

Two years ago, the WSIB successfully brought a motion to strike the statement of claim, asserting there was no cause of action, and that the court has no jurisdiction over the subject matter of the class action due to the privative clause in the Act, which gives the WSIB exclusive jurisdiction to examine, hear and decide all matters and questions arising under the Act. The motions judge granted the motion to strike the statement of claim, without leave to amend.  The motions judge held that the WSIB’s decisions to reduce the class members’ non-economic loss benefits were “legal decisions that fall within the four corners of the privative clause”, and were therefore beyond court challenge.

The appellant appealed the motion judge’s ruling to the Court of Appeal.  On appeal, the court considered two issues: 1) were the causes of action properly pleaded, and 2) does the privative clause in the Act prevent the appellant from pursuing the causes of action.  The Court of Appeal held that, except for the allegation of bad faith, the claim was properly pleaded, and the privative clause in the Act does not prevent the appellant from pursuing claims of misfeasance in public office and negligence against the WSIB.  As a result, the class action against the WSIB has been granted permission to proceed.

The decision of Court of Appeal may be accessed here.

Appeal Court Revives Class Action against the WSIB

“Repeated exposure to supervisor constituted a dangerous situation”, employee arguing

The Federal Court has breathed new life into a government employee’s claim that “repeated exposure to her supervisor constituted a dangerous situation” that justified her work refusal under the Canada Labour Code.  The case is a good example of how workplace harassment / violence complaints that appear trivial on their face can turn out to cause the employer significant headaches.

The employee was unhappy with the employer’s investigation.  The matter was then referred to a federal Labour Affairs Officer who concluded that the existing situation constituted a danger for the employee.  He recommended that the Labour Program’s Regional Director order the employer to take immediate action to correct the situation.

However, the Regional Director “refused to investigate” the work refusal, reasoning that the employee’s concerns would be more appropriately dealt with under the Public Service Labour Relations Act because of the grievances that the employee had already filed under that Act.  The Regional Director told the employee that she was no longer entitled to refuse to be in the direct or indirect presence of her supervisor.

The court decided that the Regional Director’s decision was unreasonable.  Given that the Labour Affairs Officer had already investigated the work refusal, the Regional Director had only three options under sections 129(4) and 128(13) of the Canada Labour Code: “1) agree that a danger exists; 2) agree that a danger exists but consider that the refusal puts the life, health or safety of another person directly in danger or that the danger is a normal condition of employment; and 3) determine that a danger does not exist.”  The court also stated that even if the Labour Affairs Officer had not already investigated the work refusal, the Regional Director’s decision “was not justified, transparent or intelligible as it lacked any explanation as to why” the grievance under the Public Service Labour Relations Act was a more appropriate process to deal with the employee’s allegations of danger.  It was also unclear as to why the Regional Director diverged from the Labour Affairs Officer’s decision.

As such, the court concluded that “the Regional Director’s decision lacks justification, transparency and intelligibility and as such, it is unreasonable and does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”.

The court set aside the decision of the Regional Director and sent the matter back to the Minister of Labour or her delegate for reconsideration.  The court awarded the employee $4,500.00 in legal costs.

Karn v. Canada (Attorney General), 2017 FC 123 (CanLII)

“Repeated exposure to supervisor constituted a dangerous situation”, employee arguing