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When is a Release effective to bar a safety-related complaint? Appeal court weighs in

A release, signed by a terminated employee, barred her complaint against her employer under occupational health and safety legislation, the Saskatchewan Court of Appeal has decided.

The employee was a nurse at a long-term care home.  The employer dismissed her during the probationary period on the basis that she was “not suitable”.  After getting legal advice, she signed a release in exchange for one month’s termination pay.

Less than a month after signing the release, she filed a complaint with the Occupational Health and Safety division of the Saskatchewan Ministry of Labour, alleging that prior to her termination, she had raised safety issues with management regarding bullying and unsafe staffing levels.

The court stated that OHS legislation is for the general benefit of employees, and that benefit should not be bargained away by a release or other agreement.  However, once a “triggering events” occurs which provides a worker with the right to make a complaint under OHS legislation, that right becomes “personal” to the worker.  Where a worker has given a release in respect of a personal right, the validity of the release must be reviewed.  Also, for the release to be effective to bar the personal OHS complaint, the timing of signing of the release (before or after the personal OHS issue arose) must be examined.

In this case, the release was valid, and the personal OHS issue occurred before the release was signed.  Therefore the employee was barred from advancing the OHS complaint.  Her OHS complaint was dismissed.

Wieler v Saskatoon Convalescent Home, 2017 SKCA 90 (CanLII)

 

When is a Release effective to bar a safety-related complaint? Appeal court weighs in

Court should be careful not to measure the practices of “smaller concerns” against those of large companies with far more resources, Justice of the Peace says in dismissing OHSA charge given due diligence

An Ontario Justice of the Peace has dismissed an Occupational Health and Safety Act charge in a fatality case, finding that the employer had established due diligence.

In a July blog post, we reported on an earlier decision in this case.  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 Court decided that the worker deviated from the standard practice that he and other workers had followed on previous occasions.  There were no training courses available for the task in question, but the worker had in the past demonstrated his experience and ability to do that task. The employer was entitled to rely on the experience of a worker.

The court stated:

“(260)  Despite the fact that [a company witness] could have presented better while on the witness stand, and could have established a more formalized training protocol within his company, his approach is one that is shared by many small to medium sized companies.  These smaller concerns, in general typically have less resources to devote to formalized training (if any existed) but that does not necessarily mean that he was exposing his workers to foreseeable risks and dangers.  In fact the court must be careful not to measure the practices of smaller concerns against those of larger companies with far more resources as it might lead to potential prejudice and be antithetical to the very noble purposes that the court (and the MOL) would wish to uphold.”

In summary, with respect to due diligence: the company had held regular safety meetings; there were no formal education courses that one could take on the loading / unloading task; the worker knew or should have known that what he was doing was unsafe; the company encouraged workers to discuss any safety concerns and provided a forum for those discussions at regularly scheduled meetings; the worker had successfully moved the curb machine 27 times; and there was no evidence that this was an industry wide safety issue.

The employer had therefore established due diligence.  In the result, the charge was dismissed.

Ontario (Ministry of Labour) v. Cobra Float Service Inc., 2017 ONCJ 763 (CanLII)

Court should be careful not to measure the practices of “smaller concerns” against those of large companies with far more resources, Justice of the Peace says in dismissing OHSA charge given due diligence

Adjudicator refuses to anonymize employee’s name in medical accommodation case

Increasingly, in this “Internet age”, employees are asking employment tribunals to anonymize their names, given that almost all decisions are now posted on the Internet.

In a recent case, an adjudicator refused to anonymize a civil servant’s name in her medical-accommodation grievance against her employer.

The employee is a case officer with an Ontario government ministry.  Several years ago she injured her back, wrist and arm at work.  The employer accommodated.

A few years later she moved into a different role.  She complained that the employer did not accommodate her request to fix certain ergonomic issues at her workstation.  She also claimed to have a learning disability and to need a quieter work environment.  She said management was uncooperative.  She filed a grievance, and asked to have her name anonymized because the grievance involved presentation of medical information.

An adjudicator with the Grievance Settlement Board (GSB) refused the anonymization request.  She decided that the “open court principle” applied to the GSB.  Claimants should not be permitted to make serious accusations “from behind a veil of anonymity, assured that they will not be identified if they are found not to be credible, their allegations are rejected”.  Although in some cases that involve particularly sensitive medical information – such as certain information about a person’s mental health – anonymization might be warranted, medical information about the employee’s back, wrist and arm injury were not so sensitive.  As such, the presumption of an “open court” was not displaced and her name would not be anonymized.

Ontario Public Service Employees Union (Cull) v Ontario (Health and Long-Term Care), 2017 CanLII 71798 (ON GSB)

Adjudicator refuses to anonymize employee’s name in medical accommodation case

MOL inspectors have the power to Order employers to produce documents, even if no contravention of OHSA has been found, OLRB decides

The Ontario Labour Relations Board has stated that Ministry of Labour inspectors have the power to require employers to provide documents to the MOL, even where the inspector has not found any contraventions of the Occupational Health and Safety Act.  

In the case in issue, the OLRB decided that a municipal fire service must give the MOL certain documents that an MOL inspector Ordered the fire service to provide.

The MOL received an anonymous complaint naming the fire service and raising concerns about training programs available to firefighters.  An MOL inspector visited the fire service and issued a “requirement” Order to provide certain documents including training records for the last two years for firefighters; standard operating guidelines and procedures; a training program flow chart; the professional development program; a report showing what training firefighters get before and after they are hired; and the post-incident analysis and review for all incidents in the past six months.

The fire service provided the training records and standard operating guidelines and procedures but did not provide the other  documents.  It appealed the MOL inspector’s Order to the OLRB and asked the OLRB to suspend the Order pending the result of the appeal.  It made a number of arguments including that the documents already provided to the MOL contained sufficient information for the inspector to assess the training complaint, and that some of the documents related to labour relations and not safety.

The OLRB refused to suspend the inspector’s Order to produce the documents, stating that section  54(1)(c) of the OHSA provides inspectors with broad rights to require the production of any number of documents, even without the inspector having found that the employer contravened the OHSA or regulations.  Also, the OLRB could not at this point determine whether suspending the Order would put any workers at risk.  As such, the inspector’s Order was not suspended and remained in effect.

The Corporation of the Municipality of Chatham-Kent v A Director under the Occupational Health and Safety Act, 2017 CanLII 74130 (ON LRB)

 

MOL inspectors have the power to Order employers to produce documents, even if no contravention of OHSA has been found, OLRB decides

Lack of remorse results in 4 month jail sentence for supervisor in fatal trench incident

An Alberta judge cited a lack of remorse as a factor warranting a 4 month jail term for a supervisor of a work site. The supervisor, as well as his employer, had been charged with a variety of offences stemming from an incident that occurred in April 2015 where a trench at an infill housing construction site collapsed, fatally injuring a worker. The worker was a casual day labourer who had been working in the trench to install new water and sewer lines. The trench was not braced in any way, contrary to the legislation, and a wall collapsed, trapping the worker inside the trench where he died. The employer pleaded guilty to the charge of failing to ensure the health and safety of a worker and the supervisor pleaded guilty to the charge of failing to take reasonable care to protect the health and safety of another worker.

While a guilty plea will often be considered a mitigating factor, it did not have that effect in this case. The judge found that the employer and the supervisor had exploited a vulnerable worker for profit and put their own interests ahead of safety and the requirements in the regulations. Therefore, the judge found that jail time was appropriate as the supervisor’s culpability was very high.

The employer was sentenced to a fine of $425,000 plus the victim fine surcharge of $63,750. However, the judge noted that the employer was a company without assets and she acknowledged that it was unlikely to pay the fine. Nevertheless, the judge considered it appropriate to issue a large fine in order to have an impact on other corporations who may be motivated to conduct business in a similar manner.

The developer of the worksite had previously pleaded guilty as the prime contractor to the charge of failing to ensure the legislation was complied with on a work site. The developer had agreed to a fine of $111,250 and a $50,000 contribution in the worker’s name to an organization where he had previously accessed services to assist in providing safety training and equipment to day labourers.

This case is a clear example of an increasing trend across Canada where courts are willing to sentence supervisors to jail time for occupational health and safety offences. Jail time sentences are likely to continue to be imposed and, as this case demonstrates, the sentences are likely to become longer.

See here for a list of charges (charged is: Haya Homes Ltd., Sahib Contracting Inc., Sukhwinder Nagra).

Lack of remorse results in 4 month jail sentence for supervisor in fatal trench incident

City inspector who engaged in two separate physical attacks at work was fired for cause: “that risk must be removed from the workplace”

A labour arbitrator has upheld the dismissal of a city inspector after he physically attacked two people – a coworker and a contractor to the city – in two separate incidents at work.

The employee was an inspector with the Municipal Construction unit at the city’s Water Division.

The arbitrator found that in one incident, the employee engaged in a physical altercation in which he intentionally struck a coworker, causing him injury (a 1-2 cm cut under his left eyebrow). The incident arose from a dispute about the use of city laundry facilities used to wash employees’ work clothes.  The arbitrator also found that the employee was dishonest in his characterization of what occurred, and did not accept responsibility.

In the other incident, the employee engaged in a verbal altercation with a city contractor (a backhoe operator) while inspecting a new residential service connection at a private property.  Instead of walking away, the employee escalated the dispute into a physical altercation, following the contractor and striking him twice in the back of the head.  The dispute was over whether the backhoe operator was using the appropriate material for backfill.

The arbitrator stated:

“There is simply no basis on which to relieve against the grievor’s termination.  His inability to control his anger has resulted in conduct which is completely unacceptable.   Even prior to Bill 168, an employee who, on two separate occasions physically attacked persons in the workplace, particularly when at least one of those attacks resulted in an injury, could expect to have their employment terminated, and that termination upheld.” 

Here, rather than taking responsibility for his actions, the employee attempted to blame the victims. He had failed to take an anger management course when requested, and also had received a Letter of Direction, directing him not to engage in workplace violence.

The arbitrator concluded:

“Accordingly, I accept the City’s assessment that the grievor has anger management issues, is likely to reoffend by engaging in violence, and that that risk must be removed from the workplace.”

There were no mitigating factors in the case. The employee’s dismissal was upheld.

Canadian Union Of Public Employees, Local 79 v Toronto (City), 2017 CanLII 53965 (ON LA)

City inspector who engaged in two separate physical attacks at work was fired for cause: “that risk must be removed from the workplace”

Well-trained worker’s negligence, which was unforeseeable, caused his death: company not guilty of OHSA charge

An Ontario judge has decided that a worker’s negligence – not the company’s – caused the worker’s death, overturning a conviction and fine in a Ministry of Labour prosecution against the company under the Ontario Occupational Health and Safety Act.

The worker died when he cut a band holding steel coils together, without ensuring that the coils were stabilized.  The coils fell on him. There were no eyewitnesses to the incident.

The company was found guilty at trial on one OHSA charge of failing to provide suitable “information, instruction and supervision” to the worker. The company appealed.

The worker had worked for the company for 18 years. He had received 80 hours of hands-on training from a fellow employee and had received other extensive safety training from the company.  The company had safe operating procedures, some of which were not in writing, but that was not required by law.

The judge decided that the court may consider a worker’s negligence in determining whether the employer was guilty of failing to provide the worker with suitable “information, instruction and supervision”. Also, the trial Justice of the Peace erred when she failed to consider the defence expert’s evidence that the design and layout of the work area were appropriate as were the established work procedures.

The court concluded:

“There was ample evidence of thorough and extensive employee safety training, and the accident was not due to a lack of it.  It was the negligence of [the deceased worker] which caused it, something the company could not have foreseen.  It is a tragedy because [the deceased worker] was a husband and father and a long time, valued employee.”

In the result, the judge allowed the appeal, overturned the finding of guilt on the training charge, and therefore set aside the fine.

Ontario (Ministry of Labour) v. Samuel, Son & Co. Limited, 2017 ONCJ 611 (CanLII)

Well-trained worker’s negligence, which was unforeseeable, caused his death: company not guilty of OHSA charge

Appeal judge reduces $250,000 fine to $80,000, and sets aside jail terms against company directors in workplace fatality

An Ontario judge has decided that a $250,000 fine against a small company, and 25-day jail terms for two company directors, were too severe.

The defendant employer was a small business with a few employees at the time of the accident.  An employee died after he fell 12 feet while attempting to retrieve merchandise in the warehouse.   The employee had not received safety training and was not wearing any safety equipment.

The employer and its two directors were charged with offences under the Occupational Health and Safety Act relating to training and fall protection.  Each of them pleaded guilty to two charges.  The court imposed a total fine of $250,000 on the company and 25-day jail terms for the directors, reasoning that a fine against the directors personally “would only cause more financial hardship”.

The appeal judge decided that the $250,000 fine against the company, and the jail terms, were “significantly out of the range of sentences regularly imposed by the courts for these types of offences and for these types of offenders”.  The fine was “demonstrably unfit”. Similarly, the trial Justice of the Peace was wrong when she reasoned that jail terms were appropriate for the directors because a fine would cause more financial hardship.  The caselaw showed that jail terms were more appropriate for defendants with prior safety convictions for whom fines had not had a deterrent effect.

The appeal judge therefore imposed a total fine of $50,000 on the company and $15,000 on each of the two directors, for a total of $80,000.  The jail terms were set aside.

Ontario (Ministry of Labour) v. New Mex Canada Inc., 2017 ONCJ 626 (CanLII)

Appeal judge reduces $250,000 fine to $80,000, and sets aside jail terms against company directors in workplace fatality

Employer did not terminate worker’s employment because he had raised safety concerns

After only two months on the job, an equipment operator/driver was terminated by his employer. He believed he had been terminated because he had recently raised several health and safety concerns about a job site. He had been concerned that a waste disposal bin he was required to service was in close proximity to overhead power lines. He alleged that upon telling his employer about his concerns, his employer terminated his employment.

The worker made a complaint to the Occupational Health and Safety (OH&S) Division, claiming that the employer’s conduct constituted discriminatory action against him contrary to the occupational health and safety provisions of the Saskatchewan Employment Act (SEA). OH&S officials investigated the matter and determined that the worker’s complaint of discriminatory action was well-founded. The employer was directed to reinstate the worker and make him whole with respect to lost wages and benefits. The employer appealed. The OH&S Adjudicator allowed the appeal. The worker then appealed that decision to the Labour Relations Board. The Board dismissed the appeal, finding that the Adjudicator’s decision was reasonable.

The Board acknowledged that the worker was entitled to the protections in the SEA notwithstanding that he was still within his probationary period. The key issue before the Board was whether the worker’s termination constituted discriminatory action; in other words, whether or not there was a causal connection between the worker voicing concerns about workplace safety and his termination shortly thereafter. This issue depended on whether or not the worker had advised the employer of his workplace safety concerns prior to the termination meeting. The Adjudicator had considered the evidence and determined that he had not. While he had mentioned it to his route coordinator, she did not have a management role and she had made it clear to the worker that he needed to bring his concerns to the attention of the general manager. Despite numerous opportunities, the worker did not discuss his concerns with his general manager until he was informed that he was being terminated. While the section of the SEA did not explicitly require a worker to advise the employer of safety concerns, the only reasonable interpretation was that a worker did have to notify the employer before being able to lawfully refuse work. The Board determined that the Adjudicator’s conclusion that the worker had failed to notify the employer was reasonable and thus the Adjudicator’s decision that the employer had not violated the SEA was also reasonable.

The Board also found that the Adjudicator’s decision that the employer had good and sufficient other reason to terminate the worker’s employment was reasonable. This related to the Adjudicator’s determination that the employer had established that the worker had been insolent to the general manager, had made inappropriate statements to some of the employer’s customer’s employees, and had been the subject of a customer complaint. The Adjudicator had decided that the employer’s determination, based on these incidents, that the worker was not a fit for the organization was the reason for the termination, not the fact that he had raised safety concerns. The Board found this decision was reasonable. The Board rejected the employer’s request for costs.

Lund v. West Yellowhead Waste Resource Authority Inc. et al., 2017 CanLII 30151 (SK LRB)

Employer did not terminate worker’s employment because he had raised safety concerns

Town employees did not have a reasonable basis to fear violence from protester: “violence is not the mere absence of civility”, appeal court states

“The Town employees, both junior and senior, were alarmed, but they were alarmed too easily”, the Ontario Court of Appeal has stated, in deciding that a protester outside of a town council meeting did not engage in “violence”.  The decision shows that employees’ subjective fear of bullying or violence are not always legally justified.

The man was protesting the town council’s intention to permit a medical marijuana facility to be built across the street from his home. Several town staff members “expressed fear for their safety”. The town’s interim Chief Administrative Officer, whose duties included the obligation under the Ontario Occupational Health and Safety Act to maintain a workplace free from harassment or violence, issued a trespass notice and the police arrested the protester and placed him in handcuffs when he refused to leave.  The trespass notice stated that the protester was not to enter three town properties for a year.  The protester brought a court application challenging the validity of the trespass notice.  He lost at the lower court, but won at the Court of Appeal.

The appeal court decided that the protester had not engaged in violence.  Although town employees were frightened and felt that the protester was “bullying them”, the evidence did not disclose any reasonable basis for their fear.  The court stated, “A protest does not cease to be peaceful simply because protesters are loud and angry”.  Here, there was no evidence that the protester physically obstructed anyone, or otherwise impaired anyone’s ability to use public space.  He paced back and forth with a megaphone.  Those were not “erratic” actions. The court stated, “Violence is not the mere absence of civility.”

The court noted the insufficient basis for the town employees’ fear of violence:

“The basis for [the town employees’] fear appears to be (1) one prior interaction in which Mr. Bracken was loud and “intimidating”, but in which he was never violent or threatening; (2) Mr. Bracken’s videotaping of a Council meeting; (3) Mr. Bracken’s videos posted to Youtube, in which he is said to chase people down and question them; (4) his actions on the day of his protest. If anyone felt intimidated by him, other than Town employees who had never before witnessed a protest and doubted that protests in front of Town Hall were lawful, it was not because he was threatening anyone.”

The court held that the town’s Workplace Violence Prevention Policy did not give the town authority to issue the trespass notice to the protester.  The court stated, “Although the OHSA imposes a duty on the Town to take reasonable precautions to protect workers, it does not confer any powers on the Town regarding the activities of someone who is not a co-worker . . .”  Further, the town staff could have talked to the protester and cautioned him about his activities, but they did not do so.  The trespass notice violated the protester’s right, under the Canadian Charter of Rights and Freedoms, to freedom of expression.

According to the appeal court, “The statutory obligation to promote workplace safety, and the ‘safe space’ policies enacted pursuant to them, cannot be used to swallow whole Charter rights.”

In the end, the appeal court set aside the trespass notice and awarded the protester $4,000.00 for his costs of the appeal, and additional costs for the lower court proceeding.

Bracken v. Fort Erie (Town), 2017 ONCA 668 (CanLII)

Town employees did not have a reasonable basis to fear violence from protester: “violence is not the mere absence of civility”, appeal court states

Attendance management program was not discriminatory, appeal court decides

A National Attendance Management Policy implemented by Correctional Services Canada was not discriminatory, even though it “counted” absences due to illness, a federal appeals court has decided. The decision is a welcome reminder that attendance management programs, if properly drafted, can be legal and permissible.

Correctional Services Canada implemented the attendance management policy in response to concerns about its employees’ use of sick time.  The policy was intended to be non-disciplinary, and to be used as a tool to assist employees in maintaining attendance and to help identify employees who might require accommodation from the employer.

Supervisors were required to flag situations in which employees’ absenteeism exceeded the 12-month rolling average for their peer group.  If absences were caused by situations requiring accommodation, no further action under the program was needed.

The employees’ union challenged the policy at arbitration, claiming that it discriminated against employees because of disability and family status by counting, in the number of days of absence, absences due to disability or for family-related leave.

The arbitration board agreed with the union, but the Federal Court of Appeal disagreed, finding that employees did not experience any “adverse treatment” as a result of those absences being included in the group average or the individual employee’s count. Therefore, the court concluded, the policy was not discriminatory because of disability or family status.

The appeal court stated:

“Likewise, nothing adverse flowed under the NAMP from including absences due to disability or for family-related leave in the total number of days an employee was absent for purposes of simply determining if the employee exceeded the relevant peer group threshold. Under the NAMP (at least as it was written), all that was to transpire, once the threshold was exceeded, was that the supervisor was required to be satisfied as to the legitimacy of the absences and to identify, where possible, situations where an accommodation was required, as would be the case if the absences were occasioned by a disability or if the employee were entitled to leave to address family-related responsibilities accorded protection under the CHRA. If accommodations were required, the employee was to be removed from the NAMP. Once again, at least at this initial stage of discussion with the supervisor, nothing adverse occurred. The mere identification of employees who exceed a group average threshold and initial discussions with them have been found to be permissible in other cases . . .”

The appeal court concluded that the attendance management program was not discriminatory.

Canada (Attorney General) v. Bodnar, 2017 FCA 171 (CanLII)

 

 

Attendance management program was not discriminatory, appeal court decides

WSIB violated Human Rights Code in dealings with injured worker who had psychological conditions, human rights tribunal decides

The Ontario Workplace Safety and Insurance Board failed to accommodate the needs of an injured worker with psychological conditions, the Human Rights Tribunal of Ontario has decided.  The HRTO found that the WSIB failed to consider the impact of its administrative processes and poor communication of decisions on the worker, in light of his special needs due to his psychological condition.

The worker was injured at work in 2002.  He was receiving full “Loss of Earnings” benefits from the WSIB.   He had a number of psychological conditions including anxiety, depression marked by suicidal ideation, a pain disorder with psychiatric features, personality disorder and Attention Deficit Disorder.

The HRTO, in its decision, noted that the worker had a “bitter and tumultuous” relationship with a WSIB adjudicator.  At one point, the worker asked for accommodation, claiming that his “psychological disability . . . is exacerbated to dangerous and harmful levels by dealing with the WSIB . . .”

The HRTO held that the WSIB provides a “service” and that, therefore, the Human Rights Code requires it to do so in a non-discriminatory manner.

The HRTO found that the worker’s experience dealing with the WSIB would have been frustrating for most people. His experience “included contradictory requests for information, contradictory information about what was allowed and what was not, very extensive delays, lack of explanation for various decisions that were made, and seemingly arbitrary and excessive demands for information that was not necessary.”

The HRTO stated:

The processes and systems become discriminatory because of the failure to appreciate their effect on this particular injured worker because of his multiple disabilities and special needs.

“In coming to this conclusion, I am quite aware that the applicant’s sometimes extreme reactions to stress can make it very difficult to deal with him. On the occasions when the applicant was self-represented in this proceeding, it was often very difficult to proceed with the adjudication of the issues.”

In conclusion, the HRTO decided:

“In conclusion, I accept the evidence of the applicant and Dr. Cobrin that the applicant experiences a significantly heightened level of stress and frustration because of his various disabilities. I accept Dr. Cobrin’s evidence that the applicant has a very limited capacity to deal with stress and that his dealings with the WSIB in particular result in acute exacerbation of his disability, including suicidal ideation. I accept that these symptoms eventually caused the applicant to not seek entitlement to health care benefits, including entitlement for treatment for acute psychological crisis.

“I find that the respondent failed to consider the impact of its administrative processes and poor communication of decisions on the applicant in light of the special needs he has as a result of his disabilities.”

“I conclude that these circumstances mean that the respondent infringed the applicant’s rights under the Code.”

The HRTO stated that it would schedule a one-day hearing to hear submissions about possible remedies to which the worker would be entitled under the Human Rights Code, given the WSIB’s violation of the Human Rights Code in its dealings with him.

Lawson v. Workplace Safety and Insurance Board, 2017 HRTO 851 (CanLII)

WSIB violated Human Rights Code in dealings with injured worker who had psychological conditions, human rights tribunal decides

Appeal court upholds $270,000 fine in OHSA matter – when MOL and company agreed on $180,000

A recent Ontario appeal decision is a reminder that courts in Occupational Health and Safety Act prosecutions can award fines higher than even the Ministry of Labour prosecutor requests.

In this unusual case, both a trial Justice of the Peace and appeal judge imposed a fine that was substantially higher than what the MOL prosecutor wanted.

After a six-day trial, the defendant, an auto parts manufacturer, was found guilty on three charges under the OHSA.   The trial Justice of the Peace fined the company a total of $270,000, even though the MOL prosecutor at trial had requested a fine in the range of only $175,000 to $225,000.

The company appealed the amount of the fine, but did not appeal the convictions.  On the appeal, the company argued that the fine was not proportionate, that the trial justice placed undue emphasis on a prior conviction against the company under the OHSA, and that the fine was outside of the acceptable range.  The appeal judge rejected all of those arguments because the employer was a “substantial corporation” (two facilities with a total of 770 people) that was “within a broader group of companies”; the employer had been found guilty on three charges under the OHSA; it was proper to consider the prior conviction (which was in 2004); and the harm to the injured worker was “devastating”: he was rendered a paraplegic when a robot on which he was doing a “quick fix” pressed against him on his back.  The company’s practice was not to lock out / tag out robots when doing a “quick fix”.

Interestingly, on the appeal, the MOL prosecutor and the defence counsel actually agreed that $180,000 would be an appropriate amount for the fine.   The appeal judge effectively rejected that agreement, finding that the $270,000 fine was not “unfit”.

The appeal judge decided that a fine of $270,000 “fell within the appropriate range”. The appeal was dismissed.  The case illustrates the point that, particularly in cases of serious injury to a worker that “offends” the court, there is always a risk that the court will impose a fine that is greater than the amount that the MOL prosecutor wanted.

R. v. Matcor Automotive Inc., 2017 ONCJ 560 (CanLII)

Appeal court upholds $270,000 fine in OHSA matter – when MOL and company agreed on $180,000

Experienced tanker truck driver had right to refuse to drive refrigeration truck without additional training, OHS appeals tribunal rules

A trucking company should have offered a tanker truck driver fresh training before asking him to pull a 53′ refrigerated trailer (referred to as a “reefer” load) which was longer and taller, a health and safety appeals tribunal has ruled.

The driver had four years of experience with the employer driving tanker trucks, as well as experience at a prior employer.  He refused to pull the refrigerated trailer when asked, saying he required training as it was a new assignment.  The employer argued that the driver did not need more training, since his overall training and his experience on the tanker truck were sufficient.

The Tribunal held that driving a refrigeration truck would have been a “new task” for the driver.  The Tribunal stated:

“While I may be prepared to accept that the existence and knowledge of an employee’s past experience may alleviate the extent of the education that would be needed to satisfy the employer’s obligation, this does not exempt the employer from the obligation as such and of the obligation to ascertain the extent to which the past experience may affect the coverage of said education. Furthermore, I do not share the opinion expressed by the appellant that, in regards to the said needed education, Mr. Wilkins had been hired primarily to ‘drive’. An undertaking such as the one operated by the appellant is not solely a driving undertaking but rather a transportation, a road transport, undertaking which, in the course of its activities, as demonstrated by the appellant in the course of the hearing, requires its employees, drivers, to drive/pull various loads using a variety of trailers, each presenting their own characteristics. As such, given the history of Mr. Wilkins’ service with the appellant, being asked to drive/pull a reefer constituted a new task or, to use the wording of the Regulations, his being ‘assigned a new activity’.”

The Tribunal concluded that the employer therefore violated the Canada Labour Code when it failed to give the driver the necessary health and safety education shortly before assigning a new activity – driving the  refrigeration truck – to him.

Further, the Tribunal held that driving the refrigeration truck without having received the appropriate training presented inherent risks and was therefore a “hazardous activity” that posed a danger and a serious threat to the driver’s life or health due to the risk of an accident.  Driving / pulling conditions were affected by the size of a trailer, its shape, the load balance and the axle positioning.  The driver was therefore justified in refusing to drive the refrigeration truck without more training.

Keith Hall & Sons Transport Limited v. Robin Wilkins, 2017 OHSTC 1 (CanLII)

Experienced tanker truck driver had right to refuse to drive refrigeration truck without additional training, OHS appeals tribunal rules

Ontario employers are not, as a general rule, answerable under the OHSA to employees for workplace harassment by fellow employees or managers: arbitrator

An arbitrator has stated that the Ontario Occupational Health and Safety Act does not make employers “answerable to their employees for harassment to which they have been subjected by fellow employees or managers”.

The case involved a unionized Systems Analyst who claimed that she had been “harassed and bullied” by her former manager.  The employee alleged that the manager’s conduct included spreading rumours about the employee, denying her permission to attend professional conferences, unfairly evaluating her performance, looking to find fault in her work, and failing to include her in pertinent email correspondence.  The employee admitted that she had not brought all of the incidents to management’s attention.

The arbitrator stated that the main purpose of the harassment provisions in the collective agreement between the employer and  the union was to “express the parties’ shared commitment to eliminating workplace harassment, and to provide for the investigation of complaints by employees who claim to have suffered harassment or bullying at the workplace”.  The collective agreement did not, however, include a provision that made the employer liable for workplace harassment.

Turning to the OHSA’s workplace harassment provisions, the arbitrator stated:

“Of particular inter­est to this grievance is that the OHSA requires employers to develop policies on workplace harassment, the central plank of which is the investi­gation of harassment complaints. The OHSA provides for the possibility of fines for employers who fail to comply with their obligations under the legislation. It also provides for complaints to the Ontario Labour Relations Board or for the arbitration of grievances where it is alleged that an employer has penalized an employee as a reprisal for seeking to enforce his or her rights under the OHSA. Absent from the OHSA, however, is any suggestion that employers are answerable to their employ­ees for harassment to which they have been subjected by fellow employees or by managers. In short, the OHSA does nothing to bolster the union’s claim in the present case.” [underlining added]

This decision suggests that the harassment provisions in the Ontario OHSA do not actually impose a duty on employers to ensure that employees are free from workplace harassment (rather, the OHSA requires employers to develop and post a harassment policy, provide employees with “information and instruction” on that policy, and ensure that complaints of harassment are appropriately investigated).

George Brown College of Applied Arts and Technology v Ontario Public Service Employees Union, 2017 CanLII 40984 (ON LA)

Ontario employers are not, as a general rule, answerable under the OHSA to employees for workplace harassment by fellow employees or managers: arbitrator

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