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Are supervisors able to assess impairment? Drug driving decision suggests so

A recent Ontario decision suggests that laypersons - such as supervisors – may assess whether a person is impaired from drugs or alcohol, and their assessment will be considered in legal proceedings.

In a “drug driving” case, a driver was found guilty of driving while impaired by marijuana.   A police officer approached his vehicle and observed him as having bloodshot, glassy eyes and the smell of marijuana was coming from the vehicle.  The driver’s pupils were dilated. The driver admitted to having smoked a “J” approximately 2 1/2 hours earlier.  He was taken to a police station where another officer, a “drug recognition evaluator”, observed him and performed certain physical and other tests, and concluded that he was impaired.

The driver argued, on appeal, that the drug recognition evaluator should not have been accepted by the trial judge as an “expert” witness on drug recognition.  The appeal court disagreed, going on to state that the courts have had a long-accepted practice of admitting evidence of non-expert witnesses about whether a person was intoxicated or impaired.

Interestingly, a urine test came back negative for THC, the active ingredient in marijuana that causes physical impairment, but the court still decided that based on the police officers’ observations and assessments, the driver was impaired when he was driving (even if he was no longer impaired when the urine sample was taken).

The appeal court referenced the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, which are used by police officers who are “certified drug recognition experts” to evaluate whether a driver is impaired by drugs or alcohol. Those Regulations set out a number of tests that those officers can perform to assess whether the person is impaired.

Supervisors often question whether they have the expertise to assess whether an employee is impaired. This decision suggests that supervisors’ observations are important and will be relevant evidence in legal proceedings, such as a wrongful dismissal action by an employee who was dismissed for being impaired at work.  Supervisors tasked with identifying impairment should, preferably, be given training and materials (such as a checklist) to help them in the task.

R. v. Henry, 2014 ONSC 4115 (CanLII)

Are supervisors able to assess impairment? Drug driving decision suggests so

Reprimands for “violation of basic safety protocols” were not discriminatory

After failing in a harassment grievance that was based on the Occupational Health and Safety Act, an employee has failed in his bid to persuade the Human Rights Tribunal of Ontario that safety-related discipline against him was discriminatory under the Human Rights Code.

The employee’s union grievance had alleged bullying and harassment against the supervisor under the Occupational Health and Safety Act; the grievance had been denied.

In his Human Rights Tribunal application, the employee alleged that, in one incident, his supervisor yelled at him about wearing proper safety equipment because he did not have his safety boots on. The employee felt that the safety boots were not necessary.  After another incident, the supervisor gave him a letter about the need to wear appropriate safety equipment.  The employee claimed that, in yet another incident, the supervisor had berated him, called him stupid, and threatened him with being fired.

The Human Rights Tribunal stated that it does not have a general power to deal with allegations of unfairness.  The Tribunal found no link between the alleged actions of the supervisor and any prohibited ground of discrimination under the Human Rights Code (such as sex, race or disability).  It was clear that the relationship between the employee and his supervisor was fraught with tension, and that he had been reprimanded for violation of basic safety protocols, but there was no cogent evidence to prove discrimination.

With increasing workplace attention on harassment, some employees are looking to tribunals such as the Ontario Labour Relations Board and Human Rights Tribunal of Ontario for assistance.  In the case of the Tribunal, the complaint will fail unless the employee can prove that he or she suffered discrimination or harassment because of sex, race, disability or another prohibited ground of discrimination under the Human Rights Code.

Sfara v. Toronto (City), 2014 HRTO 178 (CanLII)

 

Reprimands for “violation of basic safety protocols” were not discriminatory

“Disgruntled and aggressive clients” posed safety threat under OHSA

An employee who was fired after complaining to the Ministry of Labour that she felt threatened by “disgruntled and aggressive clients” was entitled to damages for the retaliatory discharge, the Ontario Labour Relations Board has decided.

The employee worked for an investment/marketing company.  She tried to speak with a company manager about her concerns with aggressive clients and about having the company develop procedures to deal with matters such as violence and harassment. The manager refused to entertain the suggestions.

The employee then contacted the Ministry of Labour and told the MOL that she felt threatened in the workplace and that her employer had no policies to deal with her concerns.  After a co-worker contacted the MOL with concerns, an MOL inspector came to the workplace and ordered the employer to prepare a violence and harassment policy.  The next day, the company dismissed the employee.

The OLRB accepted that the threat posed by “disgruntled and aggressive clients” was a workplace safety issue under the Occupational Health and Safety Act, and that the employee had characterized it as such when she had complained to management.  Also, in the absence of an explanation by the employer (the employer did not attend the OLRB hearing), the OLRB was satisfied that at least part of the company’s reason for dismissing her was her safety complaint.  As such, her termination was an illegal reprisal under the Occupational Health and Safety Act.  She found employment quickly, and was entitled to damages in the amount of four weeks’ wages.

Abigail C de los Santos Sands v Moneta Marketing Solutions Inc, 2014 CanLII 33527 (ON LRB)

 

“Disgruntled and aggressive clients” posed safety threat under OHSA

Arbitrator may order change to hours, location of doctor who sexually-harassed hospital nurse

Where a doctor has sexually harassed a nurse, a labour arbitrator has authority to decide how close the doctor should be able to work with the nurse, and under what conditions, an Ontario arbitrator has decided.

The nurse claimed that she was sexually harassed by the doctor. The hospital stripped the doctor of his privileges so that he could not, at present, practise at the hospital. The union brought a grievance on behalf of the nurse, claiming relief including an assurance from the hospital “that Dr. G. will not be allowed to return to the workplace.”  The hospital and the doctor claimed that the arbitrator had no authority to order that relief.

The arbitrator decided that he had jurisdiction to determine the essential question: how close Dr. G. should be able to work with the nurse, and under what conditions.  That was a labour relations question arising directly from the collective agreement which guaranteed a safe workplace free from harassment.

The arbitrator held that although the Health Professionals Appeal and Review Board had exclusive jurisdiction over the doctor’s privileges at public hospitals, the arbitrator had authority to determine how close the doctor should be able to work with the nurse, and under what conditions.  This may involve a decision on whether the nurse and doctor should work at different sites or in different locations, and whether the doctor should work at the hospital at all when the nurse is working there.

William Osler Health System v Ontario Nurses’ Association, 2013 CanLII 72709 (ON LA)

 

Arbitrator may order change to hours, location of doctor who sexually-harassed hospital nurse

Safety committee members lose claims that employer retaliated against them

Disciplinary letters issued to three members of a safety “Policy Committee” were not retaliatory under the Canada Labour Code, the Canada Industrial Relations Board has decided.

Air Canada issued letters to three members of the Policy Committee, which is required by the Canada Labour Code, alleging that they had refused to go through with a Policy Committee meeting despite being on full time paid leave from Air Canada to perform Policy Committee duties.

The employees’ union, CUPE, filed a complaint arguing that the letters were prohibited reprisals under the Canada Labour Code.

Air Canada and CUPE had entered into a Memorandum of Agreement dealing with a number of issues including releasing of cabin personnel to perform safety representative duties. The Memorandum of Understanding lead to CUPE and Air Canada taking contradictory positions about the number of employee members on the Policy Committee. The aborted Policy Committee meeting resulted from that dispute.

The Canada Industrial Relations Board held that the dispute between the employees and Air Canada, and Air Canada’s disciplinary actions, therefore resulted from the Memorandum of Agreement, not from the employees’ participation in a safety process under Part II of the Canada Labour Code. As such, there was no safety-reprisal issue under the Canada Labour Code. The Canada Industrial Relations Board was not the forum for adjudication issues under the Memorandum of Agreement.

Paquet v Air Canada, 2013 CIRB 691 (CanLII)

Safety committee members lose claims that employer retaliated against them

Supreme Court denies chronic stress WCB claim after employee reacted to disciplinary letter

The Supreme Court of Canada has denied an employee’s claim for workers’ compensation benefits for “chronic stress” which he said resulted from a disciplinary letter that followed years of conflict over another workplace issue.

The employee, a park warden with Parks Canada, had for years argued that park wardens should be armed when carrying out law enforcement duties. He filed a health and safety complaint which generated internal complaint processes and a number of court cases and appeals.

Parks Canada received a request under access to information legislation and instructed the employee to disclose certain data on his work computer so that it could comply with the request. Parks Canada was not satisfied that he responded properly, so it gave him a letter notifying him that he would be disciplined if he did not provide an adequate response to the access to information request.

The employee already had a written reprimand on his file and feared that the next discipline would be dismissal. He claimed that the letter triggered a psychological condition that followed years of conflict over the health and safety issue. He filed a claim with the Alberta Workers’ Compensation Board. The relevant Alberta Workers’ Compensation Board policy stated:

11. When does WCB accept claims for chronic onset stress?

As with any other claim, WCB investigates the causation to determine whether the claim is acceptable. Claims for this type of injury are eligible for compensation only when all of the following criteria are met:

• there is a confirmed psychological or psychiatric diagnosis . . .

• the work-related events or stressors are the predominant cause of the injury; . . .

• the work-related events are excessive or unusual in comparison to the normal pressures and tensions experienced by the average worker in a similar occupation, and

• there is objective confirmation of the events.

In addition to the duties reasonably expected by the nature of the worker’s occupation, normal pressures and tensions include, for example, interpersonal relations and conflicts, health and safety concerns, union issues, and routine labour relations actions taken by the employer, including workload and deadlines, work evaluation, performance management (discipline), transfers, changes in job duties, lay-offs, demotions, terminations, and reorganizations, to which all workers may be subject from time to time. [pp. 5-6]“

There was no dispute that the employee had met the first two criteria under the policy to receive WCB benefits for chronic stress: that there was a confirmed psychological or psychiatric diagnosis, and that the work-related events or stressors were the predominant cause of the injury. However, the employer disputed that (1) the work-related events were excessive or unusual in comparison to the normal pressures and tensions experienced by the average worker in a similar occupation, and (2) there was objective confirmation of the events.

The Supreme Court of Canada decided that it was open to the Alberta Workers’ Compensation Board to find that the “predominant cause” of the employee’s psychological injury was his reaction to the letter, and that such request was not unusual in terms of normal pressures and tensions in a similar occupation. Therefore, the WCB’s decision to deny workers’ compensation benefits to the employee was reasonable.

Martin v. Alberta (Workers’ Compensation Board), 2014 SCC 25 (CanLII)

Supreme Court denies chronic stress WCB claim after employee reacted to disciplinary letter

Company fined $25,000 for operating electrical contracting business without license under Electricity Act after apprentice injured

An electrical contractor has been convicted and fined for carrying on an electrical contracting business without being licensed under the Ontario Electricity Act.

A young apprentice with the company was seriously injured after an electrical explosion.

The apprentice was disassembling and reassembling “conduit runs” under the supervision of “others who were his masters or supervisors”. He was “pulling a disconnect of a busbar” when it exploded.  There was a fire and molten metal fell on him.  He suffered lasting injuries.

The court found that the company operated an electrical contracting business without being the holder of an electrical contracting license pursuant to Regulation 570/05 (“Licensing of Electrical Contractors and Master Electricians”) under the Electricity Act.

The court accepted the prosecutor’s request for a $25,000 fine for failing to hold the contracting license.

This case shows that the mere failure to obtain an appropriate license can cost employers many thousands of dollars in fines where the employer carries out safety-sensitive work.

R. v. JF Industrial Systems (Windsor) Inc., 2013 ONCJ 766 (CanLII)

Company fined $25,000 for operating electrical contracting business without license under Electricity Act after apprentice injured

$50,000 fine after trip-over-cord accident shows employers must listen to safety committee recommendations

A nurse’s trip over a cord has landed a hospital a $50,000 fine, where the joint health and safety committee had previously documented cord trips as a known hazard.

The nurse was administering medication to a patient.  When leaving the bedside, the nurse’s foot became entangled in a cable attached to the “bed check” equipment.  She fell and fractured her arm.

According to the Ministry of Labour press release, dangling cords were a known hazard in the workplace and the joint health and safety committee inspection records showed that.  The cord in question had not been secured, although hooks, clips or Velcro had been previously identified as methods of securing the cords.

The hospital pleaded guilty to a charge under the Occupational Health and Safety Act of failing to train the employee on trip hazards and was fined $50,000 plus the 25% Victim Fine Surcharge.

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

$50,000 fine after trip-over-cord accident shows employers must listen to safety committee recommendations

Farm workers denied Coroner’s inquest: greater risk of fatality in mining and construction industries, HRTO decides

The Human Rights Tribunal of Ontario has decided that it was not discriminatory for the Coroner’s Act to require mandatory inquests in construction and mining deaths, but not in farm deaths.

Ned Peart, a migrant farm worker from Jamaica who came to Canada under the Seasonal Agricultural Workers Program (“SAWP”), was crushed to death by a 1,000-pound tobacco bin that fell from a steel bin lift. No inquest was held into Mr. Peart’s death, despite requests to the Office of the Chief Coroner by both migrant farm worker advocates and the labour movement that consideration be given to the plight of migrant farm workers.

In 2005, Mr. Peart’s brother filed a complaint with the Ontario Human Rights Commission, alleging that s. 10(5) of the Coroners Act discriminates against migrant farm workers in Ontario, and specifically those employed under SAWP, on the basis that it denies them the benefit of a mandatory inquest into workplace deaths, which currently is extended to workers in the mining and construction industries.  

The Human Rights Tribunal of Ontario found that SAWP workers are at a significantly lower risk of traumatic workplace fatality than those in the mining and construction industries.  In addition, the evidence revealed that there is much greater variance in the mechanisms and circumstances that result in accidental workplace deaths in the mining and construction industries than in the agriculture industry.  In fact, 41% of all fatalities in the agriculture industry result from tractor roll-overs and tractor run-overs.  The Tribunal concluded that the greater variance of accidental deaths in the mining and construction industries makes it more likely that useful inquest recommendations will result from these mandatory inquests than if inquests were required for all workplace deaths in agriculture.  

Therefore, the Tribunal held that the focus in s. 10(5) of the Coroners Act on persons employed in the mining and construction industries is a recognition of the greater degree of risk of traumatic workplace fatalities that these groups face.  Notwithstanding the vulnerabilities experienced by SAWP workers, the Tribunal ruled that their exclusion from the mandatory inquest requirement under s. 10(5) of the Coroners Act does not result in substantive inequality for this group when taking into account the purposes and context of this provision.

Peart v. Ontario (Community Safety and Correctional Services), 2014 HRTO 611 (CanLII)

Farm workers denied Coroner’s inquest: greater risk of fatality in mining and construction industries, HRTO decides

Threat, assault on supervisor were just cause for dismissal at isolated mine in NWT with “zero tolerance” violence policy

An employee at an isolated camp in the Northwest Territories who assaulted and threatened his supervisor was dismissed for just cause, an adjudicator has decided.

The employee was an equipment operator at a mine site.

The evidence was that the employee and supervisor got into an altercation “not directly related to work issues”.  All witnesses said that the employee pushed the supervisor three times.  Two witnesses said that the employee also threw a cup or bottle of water at the supervisor. Several coworkers were required to restrain the employee.

The day after the incident, the employee gave a statement in which he said, “.  .  . I didn’t make threats but I did make a promise.  I know where the prick lives and we will see each other.” The employer fired him and claimed just cause.

The employee filed a claim for termination pay under the NWT Employment Standards Act.  An Employment Standards Officer decided that he was dismissed for just cause and thus was not entitled to termination pay. The employee appealed, and an adjudicator agreed that he had been dismissed for just cause.

The adjudicator stated that the employee had agreed to the zero-tolerance violence policy and had disregarded that policy.  The workplace was an isolated camp setting and the assault and further threats of violence were in clear violation of that policy.  Although the employee claimed that his supervisor had not been treating him properly, there were other alternatives to violence.

Therefore, the adjudicator decided that the single incident of the assault and threats was just cause for dismissal.

I & D Management Services Ltd v Mercredi, 2013 CanLII 89793 (NWT LSB)

 

Threat, assault on supervisor were just cause for dismissal at isolated mine in NWT with “zero tolerance” violence policy

Supervisor who solicited and procured drugs from employee was fired for cause

The B.C. Court of Appeal has upheld the for-cause termination of a supervisor who used text messages to solicit and obtain drugs from an employee under his supervision.  Safety was one of the supervisor’s responsibilities in an industry described as “high risk” and “safety-sensitive”.

The supervisor was a project manager of a pile driving company.  The company fired the supervisor, alleging that he had misused a company gas credit card and a B.C. Ferries card, as well as failed to pay for a hotel bill.   After the termination, when the supervisor returned his company cell phone, the company found text messages from him soliciting drugs from an employee under his supervision.  The primary drugs were Dexedrine and clonazepam, both prescription medications which are “listed substances” under the federal Controlled Drugs and Substances Act. The company relied on the text messages as “after-acquired cause” for dismissal.

The supervisor sued in court for wrongful dismissal. In written argument, he agreed that he had a senior and important role, that safety was a very important function at the company, and that he supervised safety.  He agreed that it was his role to set an example.  He admitted the possibility that he consumed illegal drugs with the employee.

The trial judge stated that it did not matter whether the supervisor’s solicitation happened at work or offsite.  Also, it did not matter that, as the supervisor alleged, others in the company smoked marijuana at a company party.  The trial judge decided that the company had just cause to fire the supervisor.

The B.C. Court of Appeal agreed, stating:

“Vancouver Pile Driving defended Mr. Van den Boogaard’s dismissal, alleging after-acquired cause. Mr. Van den Boogaard admitted he engaged in criminal conduct with a person over whom he had direct supervisory authority, including the ability to hire or fire. He had a high level of responsibility as a project manager on a worksite in one of the highest accident risk industries. He was responsible for site safety and effective execution of all projects under his control. He worked without supervision. He was responsible for the implementation of drug policies. He was expected to supervise his drug dealer in a safety sensitive workplace. He exhibited lack of judgment. As the trial judge found, ‘asking an employee under his supervision to procure illegal drugs is misconduct that goes to the root of the employment relation’. The employment relationship could not be restored in the circumstances.”

As this case illustrates, employers – particularly those in safety-sensitive industries – are entitled to hold their supervisors to high standards of safety. 

Van den Boogaard v. Vancouver Pile Driving Ltd., 2014 BCCA 168 (CanLII); trial decision available here.

Supervisor who solicited and procured drugs from employee was fired for cause

“Everyone just knew” was not a defence to OHSA charges: court

An employer’s assertion that “everyone just knew” the safety rules, was not a defence to charges under the Occupational Health and Safety Act, an Ontario court has held. The employer’s “casual, oral practice” – without a written policy – was not enough.

Anray Ltd., an excavating contractor, engaged one Marr to transport an excavator.  Marr stopped an employee, Kaczynski, who was in the middle of loading the excavator onto Marr’s truck so Marr could clean the excavator’s treads.  The employee left Marr to do the cleaning, after which Marr hopped in the excavator and tried to load it onto the trailer.  The excavator slid off the side of the trailer.  Marr was injured.

The Ministry of Labour charged Anray under the Occupational Health and Safety Act with failing to ensure that the excavator was moved in a safe manner.

Anray argued that “everyone just knew” that only Kaczynski would operate the excavator.  However, Justice of the Peace Conacher held that it was “well within the realm of predictability” that Marr might take it upon himself to load the excavator on the truck.

JP Conacher stated,

“As mentioned, the Defence relies heavily in its due diligence submissions on the contention that, with respect to the 14 ton excavator, ‘everyone just knew’ who was to operate the machine.  The ‘everyone just knew’ assertion was an element in a due diligence defence in another trial matter before this Court which illustrates the limitations of relying on such a practice.”

Instead, Anray’s “casual, oral practice” was insufficient for ensuring the safe movement of machinery or equipment. Anray was found guilty of the charge.

This decision seems surprising.  One would think that it is self-evident that only trained and authorized persons could load a 14-ton excavator on a trailer, and that no policy is needed on that point.  Employers cannot be expected to have written policies on every possible hazard, however unlikely.

Ontario (Ministry of Labour) v. Anray Limited, 2014 ONCJ 203 (CanLII)

 

“Everyone just knew” was not a defence to OHSA charges: court

Government OHSA advisors must be licenced paralegals, court decides

Employees of Ontario’s Office of the Worker Advisor and Officer of the Employer Advisor who provide legal services relating to the Occupational Health and Safety Act must be licensed paralegals, an Ontario judge has decided.

Since 2007, paralegals have been regulated by the Ontario Law Society Act.  A paralegal must not provide legal services unless licensed by the Law Society of Upper Canada, which regulates lawyers and paralegals in Ontario.

The Law Society went to court asking for a declaration that government employees who provide legal services relating to the OHSA must be licensed paralegals.  The issue arose when the Office of the Worker Advisor (which provides certain legal services to non-unionized workers) and Office of the Employer Advisor (which provides legal services to smaller employers) started advising on safety-related reprisals after 2011 amendments to the Occupational Health and Safety Act.  The amendments permitted the OWA to educate, advise and provide representation before the Ontario Labour Relations Board to union-unionized workers who experienced reprisals from employers under the OHSA.  The Law Society had granted an exemption to the OWA and OEA to provide legal services in relation to the Workplace Safety and Insurance Act but not the OHSA.

The OWA had posted two “Worker Representative” positions which required that the successful candidates hold a paralegal license from the Law Society.  The union, OPSEU, objected to that requirement and argued that the Worker Representatives need not be licensed paralegals, although they admitted that the OHSA services being provided by the Worker Representatives were “legal services” under the Law Society Act.  OPSEU, however, argued that the Law Society Act did not apply to the government and that the Workplace Safety and Insurance Act exemption applied.

The court disagreed, holding that the Law Society Act applied to the government, and that the Workplace Safety and Insurance Act exemption did not apply to OHSA advice.  That meant that the OWA and OEA employees who provided legal services on OHSA matters were required to be registered with the Law Society as paralegals.

In an age of increasing regulation of professional advisors, health and safety consultants who are not licensed paralegals should consider whether they are providing “legal services” and therefore need to obtain a paralegal license from the Law Society.

LSUC v. OPSEU et al., 2014 ONSC 270 (CanLII)

Government OHSA advisors must be licenced paralegals, court decides

Disabled employee who lied about ability to work was fired for cause

An employee who lied to and misled her employer about her ability to perform her work as a reporter, was fired for just cause, an arbitrator has held.

The employee severely injured her ankle while skydiving “on assignment for a travel piece involving extreme sports”. The arbitrator found that there was no doubt that the ankle injury resulted in a disability.

The employee told the employer that she could not drive and that going out on assignment by taxi “wiped her out”.  She also presented herself as unable to get around the workplace without the use of two canes.  Further, she presented medical evidence stating that she could not take public transit or drive to work due to the pain control medication she had been prescribed.  The employer obtained video footage of the employee in which her actions were inconsistent with the abilities that she represented to the employer.  The arbitrator stated that:

“Watching the video, there is a stark difference between how the Grievor walks (more labored) when she is closer to the workplace versus how she walks when away from the workplace (more mobile).  Even more startling is the fact that it appears that when the Grievor is not taking her pain medication she appears more mobile, driving her automobile to conduct errands for herself and her family, including shopping in Niagara Falls and Buffalo, New York on one of the busiest shopping days of the year.

“One would expect that the Grievor would experience more pain, which would be visible, when not taking her pain medication. The Grievor said as much in her own evidence. However, the video shows her as having more mobility and less apparent pain when not taking her medications so she can drive. This was never explained to my satisfaction. The best the Grievor could state was that she has learned to cope with the pain.”

In particular, the arbitrator stated that the employee had tried to “cover up” her ability to drive for work.  She had been deceptive: she did not want the employer to know that she was able to drive.

The arbitrator held that the employee had an obligation to provide the employer with accurate information to assist the employer to fulfill its duty to accommodate.  The employee was not honest or forthright. Instead, her dishonesty undermined the duty to accommodate as well as the employment relationship. She was dismissed for just cause – despite the fact that she was clearly disabled.

Toronto Sun v Unifor Local 87-M, 2014 CanLII 22359 (ON LA)

 

Disabled employee who lied about ability to work was fired for cause

Adjudicator’s award was shaming of union officials for “ongoing campaign”, harassment of member which breached duty of fair representation

A union member has won a legal battle against local union officials after they engaged in a “campaign” against him that attacked his credibility and resulted in him being subjected to a harassment complaint. 

The employee, Benoit, worked in a correctional institution. He sent an e-mail to an Assistant Warden expressing concern that “CXJ”, a female correctional officer, was not wearing proper safety equipment.  The Assistant Warden copied Trimble, a correctional officer at the institution and an executive on the union local, on her response.

Trimble forwarded the e-mail chain to two other local union officials, Smith and Clarke, with disparaging commentary about Benoit.  Unfortunately for Benoit, Smith was in an intimate relationship with CXJ.  Trimble forwarded the entire e-mail string to CXJ, who evidently became upset and filed a harassment complaint against Benoit, which was eventually dismissed.

Benoit confronted Trimble, but Trimble denied forwarding the e-mail to CXJ.  Subsequently Trimble sent a disparaging e-mail to Benoit which Trimble printed to all printers in the institution, apparently so that all bargaining unit members could read it.

Benoit later filed a harassment complaint against Trimble, which the employer determined was founded.

The adjudicator, a member of the Public Service Labour Relations Board, found that the union officials engaged in an “ongoing campaign” to discredit and demean Benoit.  Trimble’s conduct was the most egregious.  Smith, the intimate partner of CXJ, had been in a conflict of interest, and Clarke had the ability to stop the campaign but did not.  As a result, Benoit ceased seeking assistance from the union.  The union officials chose sides against Benoit, were biased against him, and were not acting in good faith as representatives of the union. They each breached their duty of fair representation to him.

The adjudicator ordered that the union pay $2,000.00 in damages to Benoit; that the adjudicator’s decision be posted on all bulletin boards in the institution for 12 months; that the decision be posted on the union’s website for 3 months; and that the decision be sent to each member of the institution accompanied by a letter advising that the adjudicator determined that the union breached its duty of fair representation. This was a significant “shaming” of the local union and the three officials.

This decision illustrates that it is not only employers that can be liable for harassment; union officials must avoid harassing conduct and must represent members fairly.

Benoit v. Trimble et al., 2014 PSLRB 46 (CanLII)

 

 

 

Adjudicator’s award was shaming of union officials for “ongoing campaign”, harassment of member which breached duty of fair representation

Professional engineer with “significant safety background” who sent “abhorrent e-mails”, loses safety-retaliation case

A professional engineer who engaged in an “over the top, aggressive” argument with an established member of management, has lost his safety-retaliation case at the Ontario Labour Relations Board. Although employees who raise safety issues are entitled to protection, they must do so respectfully, the OLRB stated.

The employee was hired as the company’s Business Operations Manager. He had a strong health and safety background. One month after he started working, he joined the joint Health and Safety Committee. He got into a significant conflict with the company’s “National Manager, Occupational Health and Safety”, which included a heated e-mail exchange. In one e-mail, he wrote:

“I have been beaten up, insulted and ripped apart over safety. Never in my 16 year Manufacturing Engineering career have I encountered such resistance on safety from any manager never mind from a Safety Manager himself.”

In another e-mail, he wrote, “Do not threaten me again. Ok. One more time and it’s considered harassment!”

The Ontario Labour Relations Board held that “the applicant was mostly (although not entirely) to blame for the inappropriate tone of the email exchange. Despite being on the job for barely a month, he seemed intent on creating a confrontation with the company’s Health and Safety Manager. He was engaged in an over the top, aggressive argument with an established member of management.”

The OLRB held that the applicant had also made false allegations, yelled and swore at another company manager, and “exasperated” the company’s management.

According to the OLRB, “the normal workplace rules regarding decorum and respectfulness apply” when employees raise safety issues, and the employee had “crossed lines in this case”. The OLRB decided that the company had terminated his employment “because he acted in a disrespectful and threatening manner to other members of management and for no other reason”.

Lastly, the employee was still in his probation period when fired; was not truthful at the OLRB hearing; and had sent “abhorrent” e-mails – under an alias – to management shortly after he was fired, in which he invited one manager to a “street fight” with him and said it was “payback time”. Therefore, the OLRB did not “exercise any discretion” to substitute a lesser penalty than dismissal.

Kalac v Corrosion Service Ltd, 2014 CanLII 15044 (ON LRB)

Professional engineer with “significant safety background” who sent “abhorrent e-mails”, loses safety-retaliation case

Seat Belt Offence not “Absolute Liability”, Appeal Court Decides

A driver’s failure to wear a seat belt, which is an offence under the Ontario Highway Traffic Act, is not an “absolute liability” offence. Rather, “due diligence” is an available defence, the Ontario Court of Appeal has decided.

A police officer saw a driver, one Wilson, stop his vehicle at a stop sign. The officer noticed Wilson’s seatbelt hanging by his shoulder, and charged Wilson with failing to wear a seat belt, contrary to the Highway Traffic Act.  Wilson argued that he had removed his seat belt after stopping at the stop sign, because he noticed that his coffee in a cup holder in the backseat was spilling on his laptop.

“Absolute liability” offences involve automatic liability if the defendant did the prohibited act (here, failed to wear a seat belt), without any consideration of the person’s state of mind or degree of fault.  “Strict liability” offences, on the other hand, are a “half-way house” in which the person can avoid conviction by proving that he or she exercised “due diligence” (took reasonable care to avoid the prohibited act).  For example, a driver may have taken reasonable steps but the seatbelt did not close properly or had come undone.

The court quoted a previous decision which suggested that the default is that an offence is strict liability, so that the defendant may argue due diligence: “If the legislature wanted to impose the serious consequences that flow from the creation of an absolute liability offence, the means for so doing would have been known and available.” Clear wording was required to create an absolute liability offence.

Most Occupational Health and Safety Act offences are strict liability offences.  This decision, although not an OHSA case, shows that courts will default to an offence being strict liability – meaning the due diligence defence is available – unless the legislation clearly shows that absolute liability applies.

R. v. Wilson, 2014 ONCA 212 (CanLII)

Seat Belt Offence not “Absolute Liability”, Appeal Court Decides

Worker, Caught by MOL Inspector, Given Significant Fine for Safety Violation

An Ontario construction worker has been fined $1,500.00 after jumping from a hoist tower to a nearby roof.  Unfortunately for the worker, a Ministry of Labour inspector saw him do it. 

The worker was wearing a fall protection harness and lanyard, but the lanyard was not tied off.  He was approximately 50 feet above the ground when he jumped.

The worker pleaded guilty to failing to be adequately protected by a method of fall protection while exposed to a fall of more than three metres (9.8 feet).

This case shows that workers can incur significant fines for safety violations under the Occupational Health and Safety Act particularly where, as in this case, death or serious injury could have resulted.

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

Worker, Caught by MOL Inspector, Given Significant Fine for Safety Violation

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