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Not Harassment to Remind Nurses of Professional Obligations, Arbitrator Says

It was not “harassment” for a manager to mention the College of Nurses of Ontario and remind nurses of their professional obligations, an arbitrator has held.

The nurses worked at the Central East Correctional Centre.  In a meeting, the manager reminded nurses that they should not be sleeping or watching movies during the night shift, and discussed changes to the “break routine”.  Some nurses appeared to be resisting the manager’s message regarding sleeping and watching movies.  One nurse asked a “question” about whether nurses should respond to emergencies during unpaid breaks, which the arbitrator took as a threat of retribution in response to changes to the breaks.  The manager reminded them of their professional obligations as nurses and referred to the College of Nurses of Ontario.

The nurses complained that the mention of professional obligations, and of the College of Nurses of Ontario, was threatening and amounted to harassment.  They argued that it carried the implication that the nurses could face professional penalties for resisting changes to break times.

The arbitrator disagreed, and was critical of the nurses:

“The union asserted that the employer’s references to the [College of Nurses of Ontario] were wholly unnecessary, and that the grievors were fully aware of, and did not need to be reminded of their professional responsibilities.  Given the comments made in response to both issues, this was apparently not the case.  If they had been aware, or if that awareness had been in their minds during the meeting, it is unlikely that they would have reacted by defending the right to sleep while on duty or raising the issue of not responding to emergencies because they did not find favour the employer’s position with respect to breaks.  To my mind, the employer’s reminder of the professional obligations was justified and apt.”

In conclusion, the arbitrator held that the nurses had not been “threatened, intimidated or harassed”. Instead, the “employer was engaged in an attempt to manage improper workplace behaviour”.  The reference to the College of Nurses of Ontario was an appropriate answer to the inappropriate “question” that carried the implication that nurses might not respond to emergencies on unpaid breaks.  The nurses’ reaction was “irrational and cannot be explained on the basis of the employer’s approach to the meeting.”

This decision is another reminder that an employer’s legitimate management of the workplace is not harassment.

Ontario Public Service Employees Union (Marsh et al) v Ontario (Community Safety and Correctional Services), 2014 CanLII 13355 (ON GSB)

Not Harassment to Remind Nurses of Professional Obligations, Arbitrator Says

Not Quite an Eye for an Eye – Judge rules that Employee’s “Kick in the Butt” Excuses Co-Worker’s Punch in the Mouth

Does a “kick in the butt” excuse a punch in the mouth? That was the question facing the Court in the recent case of Li v Furguson, 2013 CanLII 91746 (Ont. Sm. Cl. Ct.).

Peng Li and Winston Furguson worked in the shipping and receiving department of a furniture company. Li and Furguson’s coexistence was initially uneventful; however, their relationship had begun to disintegrate following allegations by Li that Furguson was stealing from the company.

On April 19, 2011, things between Li and Furguson reached a boiling point. After searching for Furguson throughout the warehouse, Li finally found his target and confronted him. What happened next was a source of disagreement between the parties, although the judge adopted the following facts. Li began speaking very closely to Furguson; so close that spit was transferred to Furguson’s face, albeit unintentionally. As Furguson tried to break free, Li kicked Furguson in the “butt” with his steel-toe boots. Furguson then wheeled and punched Li twice – one blow was inconsequential, the other was not as it resulted in Li incurring over $7,000.00 in costs for restorative dental services.

At trial, Li argued that he was entitled to damages from Furguson for the tort of battery. However, in the judge’s view, Li’s actions amounted to implied consent to the battery:

Having insulted, berated and confined a person at close quarters, then scuffled with them and kicked them I cannot see how a reasonable person could maintain that a punch or two in return was beyond their reasonable contemplation as being with the scope of what they had implicitly consented to.

 
In addition, the judge held that Li had provoked Furguson by kicking him. Although provocation was not a complete answer to Li’s claim of battery, it nonetheless operated to mitigate the damages that Li had in turn claimed.

In light of these facts, the judge dismissed Li’s claim in its entirety.

It is important to note that while Li had originally brought an action against his employer in which he made a number of claims, including one for “wrongful dismissal”, this action was discontinued before trial. Regardless, apart from the civil liability above, the altercation between Li and Furguson would certainly attract the attention of any employer’s workplace violence policy and potentially lead to discipline.

Li v Furguson, 2013 CanLII 91746 (Ont. Sm. Cl. Ct.)

Not Quite an Eye for an Eye – Judge rules that Employee’s “Kick in the Butt” Excuses Co-Worker’s Punch in the Mouth

MOL Inspector’s “Unclear” Order Required School Board to Revise its Workplace Violence Policy

A Ministry of Labour inspector has ordered an Ontario school board to revise its workplace violence policy, and the Ontario Labour Relations Board has suspended that Order, calling it “unclear”.

The inspector attended at a high school after a worker complained about two incidents at the school.  The inspector concluded that the school had failed to provide workers with “information and instruction concerning persons with a history of violent behaviour”, as required by section 32.0.5(3) of the Occupational Health and Safety Act which section was enacted by Bill 168.  The inspector issued an Order under the Occupational Health and Safety Act requiring the school board to “develop arrangements to provide information to workers” regarding the risk of workplace violence from a person with a history of violent behaviour.

The school board appealed the Order. It argued that the inspector had not specified the basic facts underlining the “two examples” that were mentioned in the Order.

The Ontario Labour Relations Board suspended the Order.  It held that the Order essentially required the school board to comply with the OHSA, which it was already obligated to do.  Also, the school board could be prejudiced if it were required to “comply with an order that is unclear on its face”.  Finally, the OLRB doubted that deference should be given to the Ministry of Labour inspector when the Order was unclear on its face.

This case demonstrates that where Ministry of Labour inspectors do not state the facts underlying their compliance Orders, the employer may have a viable challenge to the Order.  Also, the OLRB will be more likely to suspend an Order when it simply repeats obligations in the OHSA.

Dufferin-Peel Catholic District School Board v Ontario English Catholic Teachers’ Association, 2014 CanLII 13515 (ON LRB)

MOL Inspector’s “Unclear” Order Required School Board to Revise its Workplace Violence Policy

Corporate Director Fined under OHSA in Safety Belt Case

A corporate director of a stucco company has been fined $3,000.00 under the Ontario Occupational Health and Safety Act for failing to ensure that workers used safety belts on elevated work platforms.

An inspector caught workers not wearing safety belts attached to the elevated work platforms while using those platforms to perform stucco work on a five-storey office building.  The corporate director also owned the building.

The corporate director pleaded guilty to the charge.

This case is a reminder that corporate directors - not only workers and supervisors – may be charged under the Occupational Health and Safety Act.

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

Corporate Director Fined under OHSA in Safety Belt Case

Majority of OHSA Fines in $100,000 to $150,000 Range in Fatality Cases, Court Notes

In sentencing an employer to a $115,000.00 fine in the case of a tragic workplace death, an Ontario Justice of the Peace has discussed the range of fines against employers convicted of charges under the Occupational Health and Safety Act in regards to a workplace death.

The court stated:

“Reviewing the cases, where there is death, there is a general (and very large) range of sentence from $70,000.00 to $175,000.00, with extreme lows of under $50,000.00 and highs of over $200,000.00. The majority of the cases appear to be within a range of  $100,000.00 to 150,000.00.  It is my opinion that the appropriate sentence in this matter falls within this range. It is within that range that I can take into account the financial and other factors which I have referred to above.  I also consider the impact of the victim fine surcharge which ultimately increases by 25 per cent any fine that I impose.”

In setting the fine in the case at hand, the court noted that the defendant sincerely believed that the work procedure (for loading wood shavings from mills into a truck) was safe, the owner was sincere in his remorse and had reached out to the family of the deceased worker, and the employer had had some safety procedures in place.  The employee died when he fell into the truck after attempting to dislodge wood shavings, and the material engulfed him and he suffocated.

Our firm’s statistical analysis of fines under the Ontario OHSA showed that fines vary widely depending on whether the employer agrees with the Ministry of Labour’s proposed fine or lets the court set the fine.

The decision may be read here: R. v. Reliable Wood Shavings Inc., 2013 ONCJ 712 (CanLII)

Majority of OHSA Fines in $100,000 to $150,000 Range in Fatality Cases, Court Notes

Filed Late, Appeal of Inspector’s Order Dismissed

A recent Ontario Labour Relations Board decision illustrates the importance of timely filing of appeals of Ministry of Labour inspectors’ orders.  The OLRB confirmed that that it had no authority to hear late-filed appeals.

A Ministry of Labour inspector wrote compliance orders against the employer under the Occupational Health and Safety Act on November 19, 2013.  The employer filed its appeal with the OLRB on December 31, 2013, which was more than 30 calendar days later. 

The employer stated that this was the first time that it has completed an appeal, and had mistakenly understood that faxing appeal documents to the Ministry of Labour inspector was sufficient to start the appeal. 

The OLRB noted that the appeal must be filed with the OLRB, not the Ministry of Labour, within 30 calendar days of the date of the inspector’s Order, and that the appeal form makes that quite clear.  The OLRB stated that “it is apparent that the [employer] simply did not review the appeal form and Information Bulletin No. 21″ carefully enough.  However, the Ministry of Labour and OLRB are different entities, and the OLRB has no authority to extend the time for filing the appeal of the inspector’s order.

The appeal was therefore dismissed.

LifeLabs v. A Director under the Occupational Health and Safety Act, 2014 CanLII 2302 (ON LRB)

Filed Late, Appeal of Inspector’s Order Dismissed

Federal Health and Safety Officer’s File not Absolutely Privileged: Arbitrator

A federal Health and Safety Officer’s file was not absolutely privileged, and a labour arbitrator may order parts of it produced to parties in an arbitration, an arbitrator has decided.

A safety issue arose between the employer and two unionized employees. A federal Health and Safety Officer got involved and issued a Direction to the employer.  The union alleged that the employer had retaliated against the employees, contrary to the collective agreement. 

The employer subpoenad the federal Health and Safety Officer to testify at the arbitration hearing.  Human Resources and Skills Development Canada got involved, and the Health and Safety Officer was instructed not to produce his file.

HRSDC argued, before the arbitrator, that the Health and Safety Officer’s file was “absolutely privileged” because of sections 144(5) and 144(5.1) of the Canada Labour Code.  Those sections provide:

Information not to be published

144. (5) No person shall, except for the purposes of this Part or for the purposes of a prosecution under this Part, publish or disclose the results of an analysis, examination, testing, inquiry, investigation or sampling made or taken by or at the request of an appeals officer or a health and safety officer under section 141.

Personal  information

(5.1) If the results referred to in subsection (5) contain information within the meaning of Part 4 of the Department of Human Resources and Skills Development Act, the disclosure of that information is governed by Part 4 of that Act.

The arbitrator concluded that the intent of section 144(5) was to “safeguard the integrity of HSO investigations”, but that section does not refer to “privilege”. Instead, that section placed ”limited prohibition on publication and disclosure”.  Section 144(5) was a confidentiality provision, not a privilege provision. Unlike privileged information, confidential information may be subject to production in litigation.  Also, in the arbitrator’s opinion, the confidentiality created by that provision expires once the Health and Safety Officer has provided the “results” to the parties.

As such, the arbitrator denied HRSDC’s objection to the production of the Health and Safety Officer’s file.  The arbitrator ordered that the hearing resume in camera for the purpose of considering “ways and means of dealing with any privileged personal information contained in the HRSDC file.”

The decision may be accessed here.

Federal Health and Safety Officer’s File not Absolutely Privileged: Arbitrator

Zero-tolerance “Safety Absolute” Upheld: One Tie-Off Violation Gets Employee Fired for Cause

Zero-tolerance safety rules, often called “Life Saving Rules”, “Cardinal Safety Rules” or ”Safety Absolutes”, are becoming more common in industry.  An arbitrator has now upheld the firing of a unionized employee for one violation of a tie-off rule found in “Safety Absolutes”, even though the violation was for a brief period of time.

We have previously posted on other cases involving such zero-tolerance safety rules.  In some cases, courts and arbitrators have held that the violation of the safety rule is just cause for dismissal, and in other cases not.

The employee, a scaffolder for a construction firm in Newfoundland, was found standing on a steel deck of a scaffold at a height of about 7′ 2″, and was reaching up to a height of about 12 feet and leaning out over the unguarded end of the deck.

The “Vale Newfoundland and Labrador Long Harbour Processing Plant Project”, at which the employee was working, had Safety Absolutes that read, in part:

“Given safety is our first priority on the Long Harbour Project, it is important that everybody understand our safety expectations, especially those that can have serious consequences.  There are certain behaviours and actions that can adversely affect safety and the environment that we simply cannot permit to exist or happen and we must have zero tolerance. 

These safety absolutes must be strictly enforced on our Long Harbour Project.  Violations of the following will result in site access being revoked unless there are exceptional mitigating circumstances.

 1.         Not tied off above 6 feet (1.82 m) where fall protection is required.

. . .

Failure to comply with a Project Safety Absolute will result in the individual being removed from the site indefinitely.  The individual will have to reapply through Labour Relations to come back on site and provide a suitable reason as to why he/she should be allowed to work on site, and their commitment to adhere to all HSE requirements.  Further failure to adhere to the site requirements will result in the individual being permanently removed from site.”

There was evidence that the safety absolutes were “preached” to employees at daily safety meetings; the employee signed an acknowledgment form that he received a copy of the employee handbook; the handbook stated that violation of the safety absolutes would result in “immediate termination and revocation of site access”; and that the safety absolutes, and consequences of violating them, were brought to the attention of the employee at orientation.

The arbitrator upheld the employee’s dismissal.  In the arbitrator’s opinion, the six foot tie-off rule was reasonable, “having regard to the risk to health and safety from falling from the height of six feet or higher, and the fact that a six foot rule tie-off is in effect at other construction sites in Newfoundland and Labrador and in other Provinces”.  The employee’s safety violation was not trivial or insignificant.  He knew that he was in violation of the rule.  He had no explanation for the violation.

Resource Development Trades Council of Newfoundland and Labrador v Long Harbour Employers Association Inc, 2013 CanLII 88826 (NL LA)

 

Zero-tolerance “Safety Absolute” Upheld: One Tie-Off Violation Gets Employee Fired for Cause

Company Director Fined $8,500 After Swearing at MOL Safety Inspector, Making Threatening Gestures and Telling Inspector to Leave Project

Corporate directors can be charged by the Ontario Ministry of Labour and fined under the Occupational Health and Safety Act. Threatening and swearing at a Ministry of Labour inspector certainly increases the odds of charges being laid.

A Ministry of Labour inspector visited a construction project where Starland Contracting Ltd. had been hired to build a self-service car wash.  The inspector saw a worker on the roof without fall protection or a hard hat.

A few months later, the inspector made a follow-up visit.  The company’s director was on site and was acting as supervisor.  According to the Ministry of Labour press release, the inspector went to speak with the director, who uttered profanities at the inspector, told the inspector to leave the project, and made threatening gestures and comments towards the inspector.  The director refused to show identification when asked.

The next day, another Ministry of Labour inspector went to the site.  Starland was unable to show a Notice of Project Form or a Form 1000, which lists all employers and subcontractors on site.  That inspector issued an order for those documents, but they were not provided by the deadline in the order.

Starland and the director were charged by the Ministry of Labour under the Occupational Health and Safety Act.  After an ex-parte trial (meaning that the company and the director did not attend at the trial), the company was convicted of three offences under the OHSA and fined $29,500.00, and the director was convicted of two offences (hindering, obstructing, molesting and interfering with an inspector; and refusing to provide information requested by an inspector) and fined $8,500.00.

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

Company Director Fined $8,500 After Swearing at MOL Safety Inspector, Making Threatening Gestures and Telling Inspector to Leave Project

Marijuana Possession and Use at Work Justified Dismissal, Despite Employee’s “Drug Problem”

A mining company employee was properly dismissed for possessing and using marijuana at work, a labour arbitrator has held.  And the employee had not proven that he had a drug problem that required the employer to accommodate.

The employee worked as a Plating Tankman at Vale’s refinery in Thompson, Manitoba.  The company had alcohol and drug policies aimed at safety in the workplace.  The policies prohibited use and possession of illicit drugs at work. The arbitrator decided that the evidence was clear that despite the company’s efforts, there was a drug problem in the workplace.

The employee admitted that he had worked under the influence.  He argued, though, that under human rights legislation, the employer was required to accommodate his “drug problem”.  According to the arbitrator, the employee “described a pattern of marijuana use and abuse that was certainly consistent with an addiction illness.”  The employee claimed that he had been a heavy marijuana user since about age fifteen.  He also claimed that the Addictions Foundation of Manitoba, where he had taken treatment, confirmed that he had an addiction diagnosis.

However, the arbitrator decided that the employee’s failure to produce, at arbitration, a formal written diagnosis of addiction from the Addictions Foundation of Manitoba led to an “adverse inference” that the report would not support the employee’s claim that he was addicted.  Further, the employee’s testimony about his pattern of marijuana use was questionable due to the problems with the employee’s credibility; he had been dishonest with the company when he was initially confronted about his marijuana use at work.

As a result, the arbitrator decided that the employee “had a problem with marijuana use but a dependency or addiction was not established on the evidence.” As such, he was not entitled to accommodation under human rights legislation.

The arbitrator decided that the drug use in this case was “especially egregious in that there was ongoing and frequent use with a hidden drug cache on the premises.”  The company had just cause to dismiss the employee.

Vale (Manitoba Operations) v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 6166 (Arne Peltz, Labour Arbitrator, August 2, 2013)

Marijuana Possession and Use at Work Justified Dismissal, Despite Employee’s “Drug Problem”

Previous Environmental Convictions Considered in Jailing of Supervisor for OHSA Offences: Court’s Reasons now Available

A supervisor’s previous violations of the Environmental Protection Act, and failure to pay more than $50,000 in fines for those violations, were a factor in the court’s decision to send her to jail for Occupational Health and Safety Act violations, the court’s reasons show.

In our post on March 11th, we wrote that the court jailed a supervisor for 45 days for violations of the Occupational Health and Safety Act. 

The Ministry of Labour prosecutor, in the supervisor’s sentencing hearing for the OHSA violations, provided proof that the supervisor had previously been convicted of 6 offences under the Environmental Protection Act, including submitting false or misleading information to the Ministry of Environment.  She had previously been jailed for EPA offences, and had more than $50,000 in unpaid fines.

A rather obscure but important Ontario statute, the Regulatory Modernization Act, 2007, permits the court to consider previous convictions under another Act when deciding what fine, or length of prison term, a person should receive for violation of a regulatory statute such as the Occupational Health and Safety Act.

The court stated:

“Given her troubling history with lack of compliance with prior court prior orders, the evidence before me that her convictions stem from her ongoing work in the trash removal business where she continues to flout various regulatory standards, and her lack of expression of any remorse for an accident that left a young man permanently paralyzed and fraught with pain, I accept the Crown’s submission that only a term of imprisonment would fulfill the sentencing goal of deterrence, both general and specific.  It would also further the sentencing goal of denunciation, given her pattern of behaviour. Regrettably, I do not foresee any hope of rehabilitation of Ms. Lootawan, given her antecedents.”

This case demonstrates that a supervisor’s entire regulatory conviction history – including convictions under statutes other than the Occupational Health and Safety Act - can be given significant weight when a court decides the supervisor’s sentence for OHSA violations.  A history of violations of the law can, in extreme cases such as this one, land a supervisor in jail.

The court’s reasons are available here.

Previous Environmental Convictions Considered in Jailing of Supervisor for OHSA Offences: Court’s Reasons now Available

$20,000 Fine After HR Staff, Supervisor Fail to Immediately Report Injury to MOL

An Ontario employer has been fined $20,000 for failing to report an injury to the Ministry of Labour, showing that employers need to educate their managers about the types of injuries that must be reported under the Occupational Health and Safety Act.

A worker was injured when a loaded skid tipped and his leg became trapped under parts.  He suffered a broken bone which is a “critical injury” under the OHSA.  The OHSA requires employers to immediately report critical injuries to the Ministry of Labour.  The employee told his supervisor and, later, human resources staff that he had broken his leg.

Four days after the accident, the Ministry of Labour contacted the company about the accident.  The human resources staff said that the company was in the process of reporting to the Ministry of Labour.

The company pleaded guilty to failing to immediately report this critical injury to the MOL, contrary to section 51(1) of the Occupational Health and Safety Act.  The court imposed a $20,000 fine plus the 25% “victim fine surcharge”, for a total of $25,000.

It is not always obvious what types of injuries are “critical injuries” under the OHSA.  Employers should educate their managers and, where there is any doubt, obtain legal advice.

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

$20,000 Fine After HR Staff, Supervisor Fail to Immediately Report Injury to MOL

Supervisor Jailed 45 days for Occupational Health and Safety Act Violation

An Ontario supervisor has been jailed for 45 days after a worker fell off a roof and suffered permanent paralysis.  Are courts growing increasingly comfortable jailing supervisors for serious safety violations?

We wrote about this case in May 2013 after the court found the company, the supervisor and another company representative guilty of charges under the Occupational Health and Safety Act.  The court has now imposed its sentence.

According to the Ministry of Labour’s press release, the worker worked for a company engaged in “garbage removal and hauling”.  He was removing shingles from a roof, and fell off the roof after tossing loose shingles toward a bin.  The worker said that he had not been trained in the use of fall protection equipment, nor was any such equipment provided in the company-supplied truck used for transportation to and from the job site.  As well, the worker said that the company’s practice was to pay cash for their work, and that he worked on an on-call basis. The worker identified J.R. Contracting Property Services as the employer and one Teisha  Lootawan as the supervisor.

The court determined that J.R. Contracting Property Services was the “employer”. The court also determined that Lootawan was a supervisor under the OHSA.  Lootawan had failed as a supervisor to ensure that a worker wore protective devices as required by law, and failed as a supervisor to take the reasonable precaution of ensuring that an adequate form of fall protection was provided where a worker was exposed to a fall hazard of more than three metres. 

The court sent Lootawan to jail for 45 days, imposed a $75,000.00 fine on the company, and fined the other company representative $2,000.00 for obstructing a Ministry of Labour inspector by refusing to answer any of the inspector’s questions.

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

Supervisor Jailed 45 days for Occupational Health and Safety Act Violation

Safety Committee Co-Chair Disciplined for Insubordination, Must Raise Matters in “Appropriate Forum”

A long-time co-chair of a plant safety committee has been disciplined after he confronted the employer in a “crew talk” meeting for failing to consult with the safety committee before implementing a new drug and alcohol policy.

The employer scheduled crew talk meetings to introduce employees to the policy and permit them to ask questions.  The co-chair, a welder, attended the crew talk meeting with the maintenance employees.  At the end of the meeting, the co-chair asked why the company had not involved the safety committee in the rolling out of the policy.  He became agitated and continued asking questions after management told him to stop.

The arbitrator decided that the co-chair’s “emotional impulse” about the safety committee not being consulted, caused him to engage in insubordinate behaviour at the crew talk meeting.  The co-chair’s long service of 29 years, and virtually clean disciplinary record, did not support the employer’s contention that this was a “premeditated offence”. Instead, it was “spur of the moment”.

The one-day suspension imposed by the company was set aside, and a written warning was substituted, which the arbitrator believed “will bring home to the grievor that insubordinate behaviour to management officials is inappropriate and wrong and that if he wants to raise such matters again in the future, he must do so in the appropriate forum.”

Tolko Industries Ltd v United Steelworkers, Local 1-417, 2013 CanLII 39125 (BC LA)

Safety Committee Co-Chair Disciplined for Insubordination, Must Raise Matters in “Appropriate Forum”

$75,000 Fine for Failing to Report Occupational Disease Claim

The Occupational Health and Safety Act obligation to notify the Ontario Ministry of Labour of accidents and occupational illness claims is not a mere technicality, as one employer has learned when it was hit with a $75,000.00 fine.

Three workers were assigned to dismantle equipment.  A worker was cutting the equipment when he saw a liquid substance emerge along with white smoke.  It was later learned that the equipment contained lead and that the worker had melted lead when doing the cutting.  Neither the worker nor his supervisor were aware that the equipment contained lead.

Later, two of the workers filed “occupational illness” claims with the Workplace Safety and Insurance Board for illnesses that had possibly resulted from the exposure to lead.  The employer was advised of these WSIB claims.  Although section 52(2) of the Occupational Health and Safety Act required that the employer report to the Ministry of Labour within four days of learning that a “worker has an occupational illness or that a claim in respect of an occupational illness has been filed with the Workplace Safety and Insurance Board by or on behalf of the worker . . .”, the employer did not notify the Ministry of Labour.

The employer was charged with and pleaded guilty to failing to notify the Ministry of Labour of the occupational disease claim.  The court imposed the fine of $75,000.00, merely for failing to report to the Ministry of Labour.

The Ministry of Labour’s press release on this case may be accessed here.

 

 

$75,000 Fine for Failing to Report Occupational Disease Claim

Class Action Proceeds Against MOL for “Negligent Inspection”

In a case that will be closely watched, an Ontario judge has permitted a class action lawsuit against the Ministry of Labour for “negligent inspection” of a workplace.

The case arises from the collapse of the roof-top parking deck at the Algo Centre Mall in Elliot Lake, Ontario, in which two people were killed and many more injured.

The class action was brought by owners of one of the restaurants in the mall, which was one of the businesses affected by the collapse.  The “class” of claimants included people in the mall at the time of the collapse, business tenants and employees working at the mall. 

The plaintiffs argued that Ministry of Labour inspectors had performed more than 130 inspections at the Mall over approximately 30 years, and had received numerous complaints about the condition of the mall and the dangers of water leakage problems.  The plaintiffs claimed that Ministry of Labour inspectors should have followed up with reasonable investigations and in failing to do so, they were negligent.  

The court stated:

“A government body such as the Ministry of Labour that exercises statutory power to conduct safety inspections owes a duty of care to all who may be injured as a result of a negligent inspection. Thus, for example, once the decision to inspect has been made, the court may review the scheme of inspection to ensure it is reasonable and has been reasonably carried out in light of all the circumstances, including the availability of funds, to determine whether the government agency has met the requisite standard of care.”

Although the Occupational Health and Safety Act provides limited liability-protection to Ministry of Labour employees, including inspectors, it expressly provides in section 65(2) that the Ministry of Labour itself may be held liable for acts of inspectors.

The judge therefore decided that the class action for “negligent inspection” could proceed against the Ministry of Labour.  It should be noted that the court has not yet found the Ministry of Labour liable, but simply said that the class action may proceed.

There are numerous other defendants in the class action, a group described by the court as “everyone involved in the planning, construction, inspection, ownership and maintenance of the shopping centre over the years”. That group includes the mall, the owners of the mall, the City of Elliot Lake, and a number of architects and engineers,

 Quinte v. Eastwood Mall, 2014 ONSC 249

Class Action Proceeds Against MOL for “Negligent Inspection”

OHS Consultant Loses OHS Reprisal Case

A health and safety consultant has lost his case against his employer, a health and safety association, in which he alleged that he had been retaliated against for raising safety issues.

The consultant alleged that his employer, the Public Services Health and Safety Association, took a number of actions against him including terminating his employment after he raised a number of concerns including excessive hours of work and extensive travel; harassment; the need for a policy on tracking, recording and granting time off; and the fact that he had requested time off to compensation for unpaid overtime that he said he had worked.

The consultant worked out of his residence and traveled around the province.

The Ontario Labour Relations Board stated that “there is no reliable evidence that the Applicant was in fact engaged in attempting to exercise his rights under the Occupational Health and Safety Act.  In particular, there was no evidence that he had raised any specific examples of employees working so many hours that a specific dangerous situation was created in which health and safety was compromised.

As a result, the OLRB dismissed the consultant’s safety-reprisal application.

 Joe Watkins, Applicant v. The Health and Safety Association for Government Services, c.o.b. as the Public Services Health and Safety Association, Responding Party v. Workplace Safety and Insurance Board, Intervenor, 2014 CanLII 2275 (ON LRB)

 

 

OHS Consultant Loses OHS Reprisal Case

Real Estate Project Management Firm Fined $100,000 in Workplace Fatality

The death of one of its subcontractor’s employees has resulted in a $100,000 fine to a real estate project management firm.

Four workers of the subcontractor were demolishing an interior concrete block wall which was 26 feet high.  The wall collapsed on two workers.  The collapse was captured on video.  One of the workers died, and the other suffered severe injuries.

A Ministry of Labour investigation found that an inadequate demolition procedure was used.  The project management firm pleaded guilty, as a constructor, to two counts of failing to ensure that the health and safety of workers was protected.  The total fine was $100,000.

This case demonstrates how project management firms can be the “constructor” under the Occupational Health and Safety Act, thereby taking on responsibility for all workers on the project – not only the project management firm’s own employees.

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

 

Real Estate Project Management Firm Fined $100,000 in Workplace Fatality

MOL Inpector had not “Pounced” after Putting Employer at Ease about Possible OHSA Charges: Court

An inspector’s alleged statement that, “our branch is different up here.  I know in southern Ontario they fine, fine, fine. But we don’t do that here” was not a promise that he wouldn’t lay charges under the Occupational Health and Safety Act, a justice of the peace has decided.

The employer was charged with two offences under the Occupational Health and Safety Act.  It asked the court to throw out the charges for “abuse of process” because the Ministry of Labour inspector had not kept his promise that he wouldn’t lay charges.

The justice of the peace decided that the inspector “might just as easily have been saying, ‘We don’t jump to conclusions the first day, before we do a complete investigation.’”  Given that there had been a serious injury, it was virtually predetermined that there would be an investigation, and the employer should not have expected otherwise.  The inspector had not intended to put the employer at ease and then “pounce” on him.  There was no abuse of process.  The charges could proceed.

Ontario (Ministry of Labour) v. 1467344 Ontario Limited, 2013 ONCJ 588 (CanLII)

MOL Inpector had not “Pounced” after Putting Employer at Ease about Possible OHSA Charges: Court

Illegal for Harassment Program to Allow for “Preliminary Assessment”, Early Dismissal, Employee Arguing at OLRB

A provision in a harassment program allowing for a preliminary assessment of complaints, rather than an investigation,  and for early dismissal, violates the Occupational Health and Safety Act, an employee is arguing before the Ontario Labour Relations Board.

The employee is relying on section 32.0.6(2) of the OHSA which requires that a harassment program “set out how the employer will investigate and deal with incidents and complaints of workplace harassment”.

The employee appealed a Ministry of Labour inspector’s refusal to Order the employer to revise its harassment program to correct what the employee argued were inconsistencies with the requirements set out in Bill 168. That Bill amended the Occupational Health and Safety Act to add provisions on workplace violence and harassment.

The OLRB decided that the employee’s appeal could proceed as it addressed whether the program’s language was sufficient to comply with the Occupational Health and Safety Act.

One expects that a “preliminary assessment” of a harassment complaint will, in appropriate simple cases, constitute an “investigation” under the OHSA.  The OHSA does not specify what the investigation must look like or how long it must take.

Nevertheless, this case is a reminder to employers that a workplace harassment program must have all of the contents required by the OHSA, including setting out “how the employer will investigate and deal with” harassment complaints.

Abick v Ministry of Government Services (Ontario Government), 2013 CanLII 76546 (ON LRB)

Illegal for Harassment Program to Allow for “Preliminary Assessment”, Early Dismissal, Employee Arguing at OLRB