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Two superintendents fined for OHSA violations in scissor lift fatality

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

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

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

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

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

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

Two superintendents fined for OHSA violations in scissor lift fatality

Employee guilty of “reckless” speeding in mine trolley: dismissal upheld

Unsafe operation of equipment is an easy way to get dismissed or charged with Occupational Health and Safety Act – or sometimes even criminal – offences.  A labour arbitrator has upheld the dismissal of a mining employee for driving a trolley at excessive speeds in a mine, causing a derailment and significant damage, costing the company more than $100,000.00.

The trolley was used underground to transport ore cars loaded with “muck” ore or waste to “dumps”.  The trolley weighed 20 tonnes.  The arbitrator found that the speed of the trolley was under the employee’s control.  The evidence was that the track was in good condition.  The arbitrator found that the train was traveling “well in excess” of the maximum allowable speed of 12 km/hr when the derailment occurred, and probably at least 19 km/hr.  The 12 km/hr maximum was set by the Mines and Mining Plants regulation under the Ontario Occupational Health and Safety Act. 

The employee was therefore guilty of operating the train at excessive speed, which constituted reckless conduct.  The employee had short service. He had other safety-related discipline on his record.  His reckless operation of the train could have caused serious personal injury or death.  He refused to accept responsibility, offer an apology or display remorse.

The arbitrator noted that the “underground mine environment is a dangerous and extremely safety-sensitive one”.  It was appropriate, in the circumstances, to discharge the employee.

Sudbury Integrated Nickel Operations v Sudbury Mine, Mill & Smelter Workers’ Union Unifor, Local 598, 2015 CanLII 32018 (ON LA)

Employee guilty of “reckless” speeding in mine trolley: dismissal upheld

“Zero tolerance” policy on drugs in workplace upheld by human rights tribunal where employee did not have “marijuana card”

An employee who smoked marijuana on the job without legal and medical authorization was not discriminated against when dismissed under his employer’s “zero tolerance” policy, the British Columbia Human Rights Tribunal has held.

The employer was a logging contractor.  The employee operated a “button top” machine, which resembled an excavator, used for gripping logs. He had been diagnosed with cancer some years ago and smoked marijuana to, he claimed, manage pain.  He and a coworker shared six to eight joints a day.  They smoked at work only when the foreman was not present.

The employer had a policy of “zero tolerance for drugs on the work site”.  The employer gave the employee a letter stating that “if you can’t stop taking drugs on the work site” and don’t attend at work, then the employee would be considered to have quit.  The Human Rights Tribunal decided that this was effectively a dismissal.

The employer noted Regulation 4.20 of the B.C. Occupational Health and Safety Regulation which provides:

“(1) A person must not enter or remain at any workplace while the person’s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else.

(2) The employer must not knowingly permit a person to remain at any workplace while the person’s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else.”

The Human Rights Tribunal stated, “Safety is the purpose of the zero tolerance policy, and this is clearly rationally connected to the performance of the job, namely operating heaving equipment in the logging industry.”  The Tribunal noted, however, that strict application of a zero-tolerance rule, without consideration of accommodation of the employee’s disability (addiction), may offend the Human Rights Code where the employee has a “marijuana card” (Health Canada authorization to possess marijuana) and is legitimately using marijuana for medical purposes.

Here, the employee did not have a prescription, medical document or marijuana card and did not inform the employer that he was using an impairing or potentially impairing substance in the workplace.  It was incumbent upon him to have already obtained legal and medical authorization and to inform his employer that he would be legitimately using marijuana, and only as medically allowed.  He did not do so.

In summary, the Human Rights Code did not require the employer to accommodate the employee by permitting him to smoke marijuana in the workplace without legal and medical authorization.  “It transgressed the bounds of reasonable accommodation and would have amounted to an undue hardship.” The employee’s human rights complaint was therefore dismissed.

French v. Selkin Logging, 2015 BCHRT 101 (CanLII)

“Zero tolerance” policy on drugs in workplace upheld by human rights tribunal where employee did not have “marijuana card”

MOL engineer not qualified to give expert evidence: he was too involved in the investigation, too closely identified with prosecution at trial

An Ontario judge has refused to permit a professional engineer employed with the Ontario Ministry of Labour to testify as an expert in a health and safety prosecution.

A company was charged under the Occupational Health and Safety Act after a drill rig tipped over on a construction site, causing one death and one serious injury.  The cause of the accident was key to the case.

The MOL engineer had prepared a report in which he explored all of the possible causes from an engineering perspective.  He concluded the report with his own opinion as to the root cause of the accident.

The judge held that the MOL engineer was “inextricably bound up with the investigation of this case”.  He was the first person on the scene of the accident along with the MOL’s lead investigator.  He had been closely involved in the MOL’s investigation throughout.  At each point in the MOL’s investigation, the engineer had been performing at least two roles: (1) he was himself investigating directly by his observations, and (2) he was assisting the investigators by being the contact person with the technical knowledge beyond the expertise of the lead MOL investigator.

The judge noted that being an MOL employee did not disqualify the engineer from offering an expert opinion.

However, his extensive involvement in the investigation that led to the MOL laying the Occupational Health and Safety Act charges, and his enthusiastic identification with the prosecution during the trial, led the judge to conclude that the engineer could not give an unbiased opinion on the root cause of the collapse of the drilling rig.  As such, the court refused to qualify the MOL engineer to give expert evidence at trial.

The Ministry of Labour in Right of the Province of Ontario v. Advanced Construction Techniques Ltd. (Justice B. Knazan, April 21, 2015)

MOL engineer not qualified to give expert evidence: he was too involved in the investigation, too closely identified with prosecution at trial

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

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

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

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

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

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

 

 

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

“Ill-conceived, poorly-executed” job search, “Alberta sojourn” breached Ontario employee’s duty to mitigate damages in OHSA-retaliation case

Even though an employee “won” his safety-retaliation case under the Occupational Health and Safety Act after his employer failed to file a Response, the employee’s damages were reduced because his job search was shoddy.

After initially trying to find a job around his father’s Ontario home, where he could live rent-free, he “decided to abandon Ontario for an unspecified and illusory opportunity in Calgary” which, evidently, did not come through.

The Ontario Labour Relations Board stated:

“In the result, I am of the view that Stringer did not demonstrate that he acted reasonably in his job search by leaving Ontario for Alberta and after his arrival there.  While the responding party bears the onus of establishing a want of mitigation, the Board cannot ignore the approach taken and effort expended by the applicant in determining the period for which he might be compensated in a proceeding such as this.  To put the matter starkly, if a person such as the applicant did nothing at all to attempt to find work and simply argued that the employer was required to prove that by doing nothing the individual had passed up specific opportunities, the Board would, in my view, be justified in concluding that the onus on the employer did not arise and the individual would be restricted to a nominal level of compensation.  So too, where there is evidence of the person’s making some attempt to obtain other employment, but the approach taken was ill‑conceived, poorly executed, or unsupported by a logical factual basis, the Board should hesitate to conclude that the applicant has made reasonable efforts to mitigate and should reflect that concern in its decision with regard to lost wages.  The applicant is not to be held to a standard of perfection, but, as the Board held in Adams v. W.E. Hall & Sons Company, supra, the applicant’s entitlement to compensation is dependent upon his satisfying the Board that he made “reasonable efforts to mitigate [his] damages”.

Although the employee requested 30 weeks’ pay as damages, the OLRB decided that that would compensate him for the period of his “Alberta sojourn”, which would not be appropriate.  In the end, the OLRB decided that he was entitled to 17 weeks’ lost wages.

Stringer v Grand Tappattoo Resort, 2015 CanLII 26124 (ON LRB)

“Ill-conceived, poorly-executed” job search, “Alberta sojourn” breached Ontario employee’s duty to mitigate damages in OHSA-retaliation case

Labour arbitrator agrees to hear harassment-retaliation grievance under OHSA

Although a temporary employee had no termination protection under the collective agreement, he did have the right to advance a reprisal / retaliation claim under the Occupational Health and Safety Act, a labour arbitrator has ruled.

Two months after starting, the employee filed a harassment / bullying complaint.  His employment was terminated three months later for having made threats of violence.

The arbitrator held that temporary employees had no protection, under the collective agreement, from termination of employment or harassment.  In fact, the union could not rely on any of the provisions of the collective agreement to advance the employee’s claim.

The arbitrator decided, however, that he had authority to decide whether the employer had violated section 50 (retaliation for raising safety issues) of the Occupational Health and Safety Act.  Although the arbitrator stated that, “Apart from section 50, nothing in the OHSA makes employers answerable for workplace harassment”, here the arbitrator had authority to determine whether the employee had been fired in retaliation for him raising issues that qualified as safety issues under the OHSA. The grievance could therefore continue but only on the harassment-retaliation complaint under the OHSA.

Cambrian College of Applied Arts and Technology v Ontario Public Service Employees Union, 2015 CanLII 32501 (ON LA)

Labour arbitrator agrees to hear harassment-retaliation grievance under OHSA

Employer permitted to use “cumbersome” two-page sick leave medical form implemented after STD costs increase, arbitrator rules

An employer’s introduction of a new two-page sick leave medical form did not violate the collective agreement, a labour arbitrator has held.

The employer introduced the form in response to the increasing costs of short-term disability claims and absences.  The new policy required that for absences greater than two days, the employee must ask his or her physician to fill out a two-page medical form.  The form did not seek information regarding a diagnosis but did ask the physician to indicate the date of the injury, whether it was work-related or not, whether it had been reported to the Workplace Safety and Insurance Board, and if the injury was work-related, whether it was recurring.  It also asked the physician to indicate any physical or cognitive limitations as well as the expected duration of those limitations and the expected return-to-work date.

The union argued that the medical form was simply too cumbersome and bureaucratic.  The employer noted that in simple cases, the physician did not need to fill out the entire form, and there were no repercussions to employees where the physician refsed to fill out all or part of the form.

The arbitrator decided that the employer did have the right to the information in the form.  Also, given the increasing cost of STD claims, it was reasonable for the employer to seek additional information that could encourage earlier returns to work.  Although the form may be cumbersome, particularly for simple illnesses such as the flu, there was no information in the form to which the employer was not entitled.  The employer was within its rights to implement the new medical form.

United Steelworkers Local 7175 v Veyance Technologies Canada Inc, 2015 CanLII 30713 (ON LA)

Employer permitted to use “cumbersome” two-page sick leave medical form implemented after STD costs increase, arbitrator rules

Arbitrator strikes down employer’s total ban on smoking during shift

An employer went too far when it banned smoking by employees during their shift, including during breaks and off the employer’s premises, a labour arbitrator has ruled.

Starting in January 2015, the employer – which manufactured wire and cable products – banned smoking anywhere on company property, including outside of the plant.  Employees were also prohibited from leaving company property during their breaks, so that effectively employees could not smoke during their shift.

The union filed a grievance against the ban.  The arbitrator agreed that the employer had the right to prohibit smoking on its property.  He acknowledged that smoking is harmful to smokers, their colleagues, and the employer generally.  However, smoking is still a legal activity in Ontario and the employer could not, according to the arbitrator, prohibit employees from smoking off company property during their break, even though employees were paid during their break.

Given that it took only a minute or two to leave the plant and exit company property, it was an unreasonable exercise of management rights – and therefore a violation of the collective agreement – for the employer to prohibit employees from smoking off property during break time.

It is important to note that this decision is based on labour relations law.  The same result would not necessarily apply in a non-unionized setting.  In those workplaces, employees would need to assert that the smoking ban was discriminatory under human rights legislation based on a disability (addiction).

United Steelworkers Local 7175 v Veyance Technoligies Canada Inc, 2015 CanLII 30713 (ON LA)

 

 

Arbitrator strikes down employer’s total ban on smoking during shift

Project Manager for Metron Construction convicted of criminal negligence in Christmas Eve fatalities. Three individuals and two companies now convicted

The project manager who supervised the four workers who died after a swing stage scaffold collapsed on Christmas Eve, 2009, has been found guilty on four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm.  Vadim Kazenelson received the verdict today.

The court has not yet imposed his sentence.

Five parties have now been found guilty of safety-related offences as a result of this tragic accident: Metron Construction Corporation, a director of Metron, Swing N Scaff Inc., a director of Swing N Scaff Inc. (all of which received fines), and Mr. Kazenelson.

As we previously reported, the total of safety fines imposed for the December 24, 2009 swing stage collapse fatalities is $1,240,000.

According to the Ministry of Labour, at least six workers were on the swing stage suspended 13 floors above the ground when it broke apart in the middle and collapsed. Ministry of Labour investigators found that the welds on the platform were inadequate. Tragically, four workers died.

Swing N Scaff Inc., the company that supplied the swing stage platform (a suspended work platform), had previously pleaded guilty to the Occupational Health and Safety Act offence of failing to ensure that a suspended platform and/or a component supplied to Metron Construction Corporation was in good condition.  It was fined $350,000.00.

The director of Swing N Scaff Inc. had previously pleaded guilty to failing to take all reasonable care to ensure a suspended platform was in good condition and that a platform weighing more than 525 kilograms was designed by a professional engineer in accordance with good engineering practice.  He was fined $50,000.00 under the Ontario Occupational Health and Safety Act.

Previously, Metron Construction Corporation was fined $750,000.00 for criminal negligence under the “Bill C-45″ amendments to the Criminal Code; that amount was increased on appeal from the $200,000.00 fine set by the trial justice.

A director of Metron Construction Corporation was previously fined $90,000.00 under the Ontario Occupational Health and Safety Act for failing to ensure that non-English speaking workers received written material in their native languages and failing to ensure that training records were maintained; failing to ensure that the swing stage was not defective or hazardous (by allowing it to be used without having received any of the required information with respect to its capacity and use); and failing to ensure that the swing stage was not loaded in excess of the load that the platform was designed and constructed to bear.

Project Manager for Metron Construction convicted of criminal negligence in Christmas Eve fatalities. Three individuals and two companies now convicted

“Creative sentence” imposed for OHSA violation: company must give 150 hours of safety presentations on case, plus pay fine

A Nova Scotia court has imposed a “creative sentence” for a violation of the Occupational Health and Safety Act, requiring the company to make safety presentations in addition to paying a fine.

A journeyman electrician employed by the company was electrocuted when he made a “tragic, fatal miscalculation”, deciding to work on an energized system.  The company was found guilty of failing to institute any policies or practices that addressed workplace safety, but instead relying exclusively on the employee being an experienced and safety-conscious electrician.  Further, the company did nothing to ensure compliance with the Canadian Electrical Code.

The Nova Scotia Occupational Health and Safety Act allows for fines and “creative sentencing options” for violations.  The court imposed a fine of $35,000.00 on the company, acknowledging that the company was very small and was now insolvent and no longer operating.

In imposing a “creative sentence option”, the court noted that the electrician’s death and the lack of formal safety policies at the company “constitute a sobering message for other small businesses in the construction trades.”  The court decided to impose a “community service order” requiring the company to make a series of presentations on the facts of the case as indicated in the trial decision, the applicable regulatory requirements, the workplace safety issues involved, and the required due diligence. The presentations must total 150 hours and be completed in 18 months.

While Nova Scotia’s Occupational Health and Safety Act permits such “creative sentencing options”, other provinces such as Ontario do not.  While at the same time recognizing the obvious tragedy of the death, one can see that the reputational damage associated with a conviction in such a case, and 150 hours of presentations that recite the sad facts, is obvious.  In Ontario and a number of other provinces, the government prosecutors often issue press releases that identify the company, the violation and the amount of the fine.

R. v. R.D. Longard Services Limited, 2015 NSPC 35 (CanLII)

 

“Creative sentence” imposed for OHSA violation: company must give 150 hours of safety presentations on case, plus pay fine

Another lesson about clarity in settlements: employer may file WSIB appeal after mediated settlement, despite union’s objection

An employer’s appeal challenging a departed employee’s workers’ compensation entitlements may proceed, despite being filed after the employer, union and employee reached a settlement at mediation.

The union had filed earlier grievances relating to the employee’s health and safety and her dismissal.  The union, employer and employee settled the grievances  at mediation and signed Minutes of Settlement under which the employee resigned.

After the Minutes of Settlement were signed, the employer filed an appeal challenging the worker’s entitlement to Workplace Safety and Insurance Board loss of earnings benefits relating to an earlier workplace injury.  The union claimed that that appeal breached the Minutes of Settlement.   The dispute went in front of an adjudicator with the Grievance Settlement Board.

The adjudicator noted that the Minutes of Settlement settled all issues relating to the employee’s employment and the termination of her employment.  However, the employer had not released any of its rights whatsoever.  Importantly, paragraph 9 of the Minutes of Settlement prohibited the employee from pursuing reinstatement and reemployment but went on to state, “this paragraph is without prejudice to the parties’ position with respect to any other matter under the” Workplace Safety and Insurance Act.

The adjudicator decided that although when the Minutes of Settlement were signed, the employee was receiving loss of earnings benefits under the Workplace Safety and Insurance Act, there was no guarantee in the Minutes of Settlement that she would continue to do so.  As such, the employer’s WSIB appeal did not breach the Minutes of Settlement.

Ontario Public Service Employees Union (Robbescheuten) v Ontario (Community Safety and Correctional Services), 2015 CanLII 32419 (ON GSB)

Another lesson about clarity in settlements: employer may file WSIB appeal after mediated settlement, despite union’s objection

Cost of compliance with safety officer’s order could cause serious economic harm to company: Appeals Tribunal

A safety officer’s compliance order has been suspended where the cost of compliance would be so high that it could cause serious economic harm to the company.

The company performed stevedoring and terminal handling of containers at the Port of Montreal.  It employed “checkers” who used Toyota Echo and Yaris cars to move about the Port coordinating work.  A federal health and safety officer decided that the lighting levels of two terminals at the Port were below the prescribed standards.  She issued a direction requiring the employer to end the violation and increase lighting levels.
The company appealed and applied for a suspension of the direction.  The company presented evidence that in order to comply with the direction, it would need to install 10 new “lighting towers” at a total cost of at least $2 million.  The company also noted that it was impossible to install new lampposts by the compliance deadline because it was winter and the ground was frozen.

The federal Occupational Health and Safety Tribunal Canada decided that the direction should be suspended pending the outcome of the appeal. Firstly, there was a serious legal issue as to whether the direction was legally correct. Secondly, the company would suffer serious harm if the direction was not suspended.  First, it appeared impossible to comply with the direction, by the deadline, given the weather conditions and engineering work involved.  The company could suffer serious economic harm that could threaten the company’s viability, given the cost of compliance.  Further, the inspector took 9 months, after her inspection, to issue the direction, suggesting that the lighting levels did not pose a serious hazard.  Thirdly, the company was willing to put additional safety measures in place – including painting the cars a different colour, installing an LED light at the tip of the flag on the car, and adding lights to the checkers’ safety vests – that adequately protected the checkers.

The Tribunal agreed to suspend the direction on the condition that the company takes action, immediately, to put into place the additional safety measures.

Termont Montréal Inc. v. Syndicat des Débardeurs, ILA Local 375 and Syndicat des Vérificateurs, ILA Local 1657, 2015 OHSTC 7 (CanLII)

Cost of compliance with safety officer’s order could cause serious economic harm to company: Appeals Tribunal

Worker awarded WSIB benefits after health and safety officer “grabbed him and threw him to the ground”

In an unusual case, a construction site superintendent has won entitlement to workers compensation benefits after persuading an appeals tribunal that he was assaulted by his employer’s health and safety officer and was not an active participant in the altercation.

The worker testified that on the day in question, as he entered a construction site office he was asked by the health and safety officer why he had stopped trades people from throwing garbage from the third floor.  He replied that he had been asked by the employer to move the garbage container to another location, at which time the health and safety officer said he had no authority to do that and got so upset that he grabbed him and threw him to the ground. The worker sought treatment and was diagnosed with ligament strain.  The health and safety officer was dismissed shortly thereafter.

The worker applied for WSIB benefits, but the employer opposed the request. The WSIB assigned an investigator who found that the worker was an active participant in the altercation.  The WSIB case manager denied him entitlement to WSIB benefits.

The employer did not participate in the worker’s appeal to the Workplace Safety and Insurance Appeals Tribunal. The WSIAT looked at earlier statements given by the worker, the health and safety officer and the employer.  The WSIAT determined that the worker was not the aggressor, and that the health and safety officer’s statement was “less than credible” because he did not even acknowledge that he had grabbed the worker and thrown him to the ground.  The fact that the worker pushed the health and safety officer away did not make him a participant in a fight; instead, it was a normal act of self-defence.

Interestingly, the WSIAT noted that there was no evidence that the worker had a history of being physically violent, while there was evidence that the health and safety officer was involved in at least one prior physical altercation.

WSIAT Decision No. 2140/14 (2014 ONWSIAT 2760)

Worker awarded WSIB benefits after health and safety officer “grabbed him and threw him to the ground”

Injured Worker’s Act was Not Foreseeable: OHSA Charges Against Employer Dismissed

Recently, an Ontario court dismissed Occupational Health and Safety Act charges against an employer where the injured worker’s unexpected and unauthorized act led to his injury.

The worker used an overhead crane to rotate a large spindle that weighed about 10,000 pounds.  He threaded a piece of rebar through one of the holes on the spindle and attached hooks for the overhead crane to each end of the rebar.  Tragically, the spindle fell off its stand and onto his foot, which had to be amputated.

The Ministry of Labour charged the employer with failing to ensure that the spindle was moved safely and failing to properly train the injured worker.

The court concluded that the injured worker’s supervisor had not instructed him to rotate the spindle.  The court also concluded that a reasonable employer could not have foreseen that the injured worker would rotate the spindle on his own and do it in the manner that he did, because: there was no evidence that a junior employee had ever previously tried to move a large piece of equipment like the spindle before; there was an unwritten protocol in place which the injured worker acknowledged that he understood; the way in which the worker rotated the spindle was contrary to his training; and he attempted to rotate the spindle on his own even though that work had always been done by material handlers or supervisors.  The injured worker conceded that he had failed to follow his training.

Further, the employer had provided an orientation session and overhead crane training to the injured worker.

Interestingly, the court also noted that the Ministry of Labour had not issued a stop work order requiring the employer to stop rotating spindles, suggesting that the inspector must have concluded that the employer’s procedure was adequate for the protection of workers.

In conclusion, the court held that the employer had established due diligence: it took every reasonable precaution in the circumstances, and could not have anticipated that the injured worker would rotate the spindle.  The OHSA charges were dismissed.

R. v. ABS Machining Inc., 2015 ONCJ 213 (CanLII)

Injured Worker’s Act was Not Foreseeable: OHSA Charges Against Employer Dismissed

Company owner convicted, fined under OHSA for failing to co-operate with MOL inspector

A widely-reported fire at a Kingston construction site that required the evacuation of a crane operator by helicopter, has resulted in fines against the owner of the company that supplied the crane operator.

To avoid the heat from the fire, the crane operator was forced to crawl out on the boom of the crane, which was about 100 metres in the air. A military helicopter rescued him.

Shortly after the incident, a Ministry of Labour inspector contacted the company owner to request crane records.  The owner provided some but not all of the information. The MOL inspector attempted to interview the owner but was unable to reach him by telephone or at his residence.

The Ontario Occupational Health and Safety Act provides, in section 62, that no person shall hinder or obstruct an inspector; every person shall co-operate in respect of an inspector’s investigation; and no person shall provide false information to an inspector or refuse to provide information required by an inspector.

The company owner was charged with and convicted of the Occupational Health and Safety Act offences of (1) knowingly furnishing an inspector with false information or neglecting or refusing to furnish information required by an inspector, and (2) failing to furnish all necessary means in the person’s power to facilitate any entry, search, inspection, investigation, examination, testing or inquiry by an inspector. He was personally fined $19,000.00.  His company was also found guilty of failing to comply with a requirement of an inspector, and was fined $8,000.00.

This case illustrates the broad powers of Ministry of Labour inspectors and the consequences of interfering with an inspector’s investigation.

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

Company owner convicted, fined under OHSA for failing to co-operate with MOL inspector

“Classic bullying” in company washroom, “which is the traditional hang out of bullies”, lands employee three-day suspension

A 6’2′, 300-lb employee’s hostile, intimidating comment to a smaller co-worker in the company washroom was just cause for a three-day suspension, an arbitrator has decided.

The evidence was that the suspended employee said, “I am your worst nightmare” to the co-worker as he stood over him in a threatening way.  The co-worker was 5’8″ tall and did not have the use of his left arm.

Although the union argued that the comment was said “in a joking manner”, the arbitrator disagreed. She held that the line, “I am your worst nightmare” meant “I am someone you should be afraid of”.  It was “classic bullying” which took place in the washroom “which is the traditional hang out of bullies”.  The arbitrator found that the employee had perceived that his co-worker was anxious and tried to intimidate him.

The arbitrator stated:

“The grievor’s comment was not specifically a threat of physical harm but it was a violation of the company’s Workplace Violence Policy because it was inappropriate behaviour that could insinuate violence and because it was hostile language that would be intimidating to a reasonable person. The conduct was just cause for some discipline. It was not a first offence because the grievor received a one day suspension a few months before for making a threatening comment. The three day suspension he received was, therefore, in accordance with the principles of progressive discipline.”

The decision is part of a growing line of post-Bill 168 cases in which arbitrators have shown decreasing tolerance for workplace violence and harassment.  Even one threatening comment can result in discipline.

Workers United Canada Council v Winners Merchants International, 2015 CanLII 21612 (ON LA)

“Classic bullying” in company washroom, “which is the traditional hang out of bullies”, lands employee three-day suspension

Even “inspecting” equipment is “working on it”: employer guilty of OHSA charge where employees had not even started maintenance work

A maintenance electrician had “worked on” a stuck shipping door when he simply “inspected” it, even though he had not actually performed maintenance on it, a court has ruled.  He was injured when the door fell on him.  The employer was found guilty of failing to ensure that the door was “blocked” before employees worked on it.

The maintenance employee testified that he “took a look at the controller [for the door] just to make sure, looked in to make sure that the P-L-C was powered up”.  He agreed that he was “merely inspecting, trying to determine what the problem was.”

The trial justice found that “some level of work” took place, and therefore that the employer was guilty of the offence of failing to ensure that the shipping door was blocked before it was “adjusted, repaired, or [had] work performed on it”, contrary to the Industrial Establishments regulation under the Occupational Health and Safety Act. 

The appeal judge agreed and upheld the conviction.  He stated that the OHSA did not require that a “minimum or threshold amount of work be performed” before the requirements of the OHSA are triggered.  The maintenance employee’s checks of the electrical system for the door amounted to “some work” and therefore the obligation to “block” the door had been triggered.

Ontario (Ministry of Labour) v. Maple Lodge Farms, 2015 ONCJ 172 (CanLII)

 

Even “inspecting” equipment is “working on it”: employer guilty of OHSA charge where employees had not even started maintenance work

Company that “met or exceeded many industry standards in its operations” still found guilty of OHSA charges

Exceeding industry standards does not, on its own, protect employers from health and safety convictions or fines, a recent court decision shows.

A roofing company was charged with two offences under the Ontario Occupational Health and Safety Act. The charges alleged a failure to ensure that roofing workers were adequately protected by a guardrail system that met the requirements of the Construction Projects regulation under the OHSA.  A worker fell off a roof after he had removed both the middle and upper parts of a guardrail system to dump garbage, without tying-off. His sleeve caught on a motorized buggy he was using to transport waste on the roof; both he and the buggy went over the edge.

The court found that the guardrail system was routinely opened up by removing the middle rail and possibly also the top rail.  The original wooden middle rail had been replaced with an iron bar that was not securely fastened, at the time of the accident, to the guardrail system.  The presence of the removable iron bar violated the regulation.  Also, there was no clear process in place for the garbage disposal at the time of the accident.

The court noted that the company had “generally met or exceeded many industry standards in its operations”, and had clear internal policies, weekly production meetings to discuss safety topics, and “Toolbox Talks”.  It also hired outside consultants to teach various health and safety courses and to perform spot audits of safety.  There was evidence that workers who failed to use safety equipment were sent home without pay and given retraining.  The company had even fired long-term employees who repeatedly violated safety rules.

However, none of that was enough to establish the “due diligence” defence, because the company had not taken “all reasonable steps to prevent this accident”.

This case shows that an excellent safety program may not be enough to defeat OHSA charges if the employer failed to properly address even one particular hazard.

Ontario (Ministry of Labour) v. Semple Gooder Roofing Corporation, 2015 ONCJ 183 (CanLII)

Company that “met or exceeded many industry standards in its operations” still found guilty of OHSA charges

Manager was not a “competent person” to conduct harassment / violence investigation under Canada Labour Code: Court

The Federal Court has held that a manager was not a “competent person” to conduct a workplace harassment investigation under the Canada Labour Code because the employee who filed the complaint had not agreed that the manager was an “impartial party”.

In December 2011, an employee of the Canadian Food Inspection Agency filed a written complaint alleging “miscommunication, favouritism, humiliation, unfair treatment and a lack of respect” on the part of his supervisor.

The CFIA assigned a manager to undertake a “fact-finding” review of the concerns raised in the complaint.  The manager conducted internal investigations and concluded that there were communication issues and unresolved tension, but no evidence of harassment.

The employee contacted a federal Health and Safety Officer, alleging that the manager was not sufficiently impartial to conduct an investigation. The HSO issued a Direction requiring the CFIA to appoint an impartial person to investigate the complaint pursuant to the Canada Labour Code.  The CFIA appealed that direction to an Appeals Officer of the Occupational Health and Safety Tribunal of Canada (who sided with the CFIA), and the employee then appealed to the Federal Court.

The court noted that section 20.9 of Part XX to the Canada Occupational Health and Safety Regulations under the Canada Labour Code sets out procedural obligations of an employer if it receives a complaint of “workplace violence”.  The court held that “harassment may constitute workplace violence, depending on the circumstances”.  The court stated that the alleged harassment in this case could constitute “workplace violence” if after a proper investigation by a competent person it is determined that the harassment could reasonably be expected to cause harm or illness to the employee.  (Workplace Violence is defined in that Regulation as, “any action, conduct, threat or gesture of a person towards an employee in their work place that can reasonably be expected to cause harm, injury or illness to that employee.”

The court noted that under the workplace violence provisions of the Regulation, a person is a “competent person” to conduct a workplace violence investigation if he or she is “impartial and is seen by the parties to be impartial” and has the necessary knowledge, training and experience.

In this case, the employee who filed the complaint did not agree that the manager was impartial.  The court stated:

“What the employer did here was have the Regional Director, Mr. Schmidt, not only institute a pre-screening and fact finding exercise to determine the nature of the complaint and attempt to facilitate mediation, but also conduct a full investigation of the complaint, acting as a competent person under section 20.9(3). In his report, Mr. Schmidt mentions ‘investigation’ eight times and refers to his review of the evidence before him. He was not competent to do so, given there was no agreement that he was an impartial party by the employee and therefore had no authority to conduct any investigation, once the allegation of work place violence was unresolved at the pre-screening stage and still a live issue between the parties.”

As such, the manager’s investigation was essentially unusable, and the court referred the matter back to the Appeals Officer for re-determination of the issues in accordance with the court’s decision.

This decision shows the importance of employers – at least federally-regulated employers who are subject to the Canada Labour Code – of strictly complying with the workplace violence and harassment procedures set out in legislation or regulations.

Public Service Alliance of Canada v. Canada (Attorney General), 2014 FC 1066 (CanLII)

Manager was not a “competent person” to conduct harassment / violence investigation under Canada Labour Code: Court