As tight as summer coveralls might be with winter clothing underneath, the Occupational Health and Safety Act does not require employers to provide winter coveralls to crane operators, a Newfoundland arbitrator has held.

The collective agreement required the employer to provide “coveralls”. The employer provided summer coveralls with reflective “visibility markings” and which also protected the employee’s clothing. The employer did not provide winter coveralls, which were lined on the inside and therefore warmer.

The crane operators complained that the summer coveralls were not warm enough in the winter and fit too tightly to wear enough clothes to keep warm. They said that although the crane cabs were heated, they were drafty and the door must be opened and closed frequently.

The arbitrator decided that the need to wear warmer clothing underneath the coveralls in winter “was not established as a health and safety regulation or a requirement of the Collective Agreement.” The safety issues – visibility and protection of clothing – was adequately addressed by the summer coveralls.

This case appears to be part of a trend of unions attempting to achieve certain job benefits – such as winter clothing – for employees on the basis of safety. Here, the union was unable to establish that the lining in winter coveralls was a safety requirement.

Resource Development Trades Council of Newfoundland and Labrador v. Long Harbour Employers Association Inc., 2013 CanLII 12447 (NL LA) (January 7, 2013)

“Not every ailment amounts to a disability”, an adjudicator has held, in dismissing an employee’s grievance. Employers who often wonder what types of ailments or conditions amount to “disabilities” will find this decision interesting.

The employee had an erratic attendance record. The employer imposed reporting requirements on the employee as to when and how he must report to his supervisor if unable to arrive at work at all or on time. The employee breached those conditions and was disciplined. The employee then filed grievances challenging the discipline and alleging that the conditions were unfair, constituted harassment, and failed to take into account his sleep apnea and drinking problem.

The adjudicator held that the employer, faced with the employee’s poor attendance record, which was a departure from the norm, was entitled to impose the reporting requirements.

The adjudicator went on to state that the employee’s sleep apnea and drinking patterns did not amount to a disability. The adjudicator’s comments are interesting:

“130 The difficulty is that the grievor’s argument confuses an ailment with a disability. Depression and stress are commonly experienced by many people in the course of their working lives. Neither is, by that fact, disabling. The same can be said of sleep apnea. The fact that one experiences such conditions does not establish a prima facie case of disablement or, all the more so, a prima facie case of discrimination based on a disability. Needed in this case was evidence that the conditions were so bad that they disabled or at least limited the grievor’s ability to comply with the reporting conditions. But the grievor offered no such evidence other than the conditions themselves.

“131 The importance of managing attendance is not eliminated by the mere assertion that one has an illness. Not every physical or emotional ailment amounts to a disability requiring accommodation. Some ailments – such as depression, emotional stress or headaches or, in Mr. Riche’s case, sleep apnea – may impact a person’s life without necessarily making it impossible for them to comply with the usual expectations of working life. For example, depression may be mild, moderate or totally disabling. The severity of its impact will depend upon the severity of the cause, the person’s psychological makeup and the steps he or she takes to combat it. It is not a sufficient excuse on the part of an employee to justify his or her repeated tardiness or frequent absences by saying, “I’m depressed”, or, “I had a headache.” Something more is required to enable the employer to know that the ailment is truly disabling, that is, something beyond the control of the employee as opposed to simply an excuse. In part, that is the reason the jurisprudence emphasizes the obligation on the part of the employee seeking accommodation to explain the nature of the problem and to co-operate in its treatment. Without such an explanation, the employer has no way of knowing whether the ailment is severe enough to amount to a disability or what to do about it by way of an accommodation if so required.”

The adjudicator went on to state that employers are not required to accommodate “issues that an employee is able to control”. Here, the adjudicator held that the employee was able to control his problem with sleeping in – for instance, by putting his alarm clock on the other side of the room. Also, the grievor’s statements that he was a “heavy drinker” and a “happy drunk” were not enough to establish that he was an alcoholic, particularly when he stopped short of calling himself an alcoholic and did not call evidence from his family doctor.

As this case demonstrates, not every health condition will be a disability, and the mere assertion by an employee that he has a health issue may not be enough , in every case, to require the employer to accommodate.

Riche v. Treasury Board, 2013 PSLRB 35 (Public Sector Labour Relations Board, April 19, 2013)

An employer has been unsuccessful in its bid to keep a newly-created “capital safety planner” position out of a union bargaining unit.

The capital safety planner was to be involved from the outset in every project that the employer undertook.  He or she would impose requirements for health and safety on projects.

The arbitrator decided that the capital safety planner would not be performing functions of a manager or a superintendent, nor would he or she be employed in a confidential capacity in matters relating to labour relations or in a confidential planning or advisory position in the development of management policy.

Instead, the capital safety planner would implement policy that had already been developed by reviewing the work on each project, identifying the risks, and then determining the steps and resources necessary to address them.  Further, project safety was not a confidential matter that required the person to be excluded from the bargaining unit.

Lastly, the arbitrator noted that the union bargaining unit included other “professional and technical employees including a variety of planning positions”, so it would not appear inappropriate to include the capital safety planner in the bargaining unit.

B.C. Hydro and Power Authority v. Canadian Office and Professional Employees Union, Local 378 (B.C. Arbitrator, January 18, 2013)

In what appears to be a departure from a growing line of cases, the Ontario Labour Relations Board has permitted an employee to advance her claim that the employer violated the Occupational Health and Safety Act when it fired her after a manager allegedly confronted her in an angry manner.

The employee, Ashworth, alleged that the manager demanded that she close the door and then positioned herself in front of the closed door and started screaming and pointing her finger in the employee’s face.  The employee claimed that she became afraid and was asked to be allowed to leave, but the manager continued to be abusive.  The employer subsequently terminated her employment.

The employer appears to have argued that the employee’s complaint did not make out a safety-reprisal case because the incident did not raise workplace safety issues under the Occupational Health and Safety Act, and therefore there was no basis for the employee’s claim that she was fired for raising safety issues.

That argument flows from a line of cases, of which Conforti v Investia Financial Services Inc, 2011 CanLII 60897 (ON LRB) is most notable. In that case, the OLRB stated that “it appears the OHSA only requires an employer to put a workplace harassment policy and program in place and to provide a worker with information and instruction as appropriate”, but that the OHSA does not actually require the employer to prevent harassment.  As such, an employee’s claim that she was fired for asking the employer to prevent harassment does not engage the OHSA and cannot form the basis for a reprisal claim.

The OLRB, in Ms. Ashworth’s case, was not persuaded that the case should be dismissed at this stage for failure to disclose a prima facie reprisal case.  Although the decision does not say it, the OLRB may have felt that the manager’s conduct might constitute workplace violence – rather than harassment – in which case the employee’s complaint could possibly succeed.  The OHSA does require employers to take reasonable steps to avoid workplace violence – but not harassment.

Ashworth v Boston Pizza, 2013 CanLII 20917 (ON LRB)

A worker who refused to answer a Ministry of Labour inspector’s questions during an accident investigation has been found guilty of obstructing the inspector.

An employee of a trash-removal business consumed three beers before work, climbed up on a roof to retrieve loose shingles, and then fell off the roof and became paralyzed below the waist.  A corporation was charged as the injured worker’s “employer”.  A representative of the corporation was also charged as a supervisor, and another individual, one Haniff, was charged with obstructing the MOL inspector by not answering questions.

There was much debate in the case about who was the “employer”.  The company was ultimately found to be the employer and convicted of failing to ensure that the worker wore fall arrest equipment and was trained in fall arrest.

Haniff attended at the Ministry of Labour office, as requested by the inspector and handed the inspector an envelope that contained the telephone record for the corporate defendant. However, Haniff, who admitted that he had taken the initial call from the homeowner asking to have the trash removed, failed to answer the inspector’s other questions about what Haniff did after taking the call, and in particular whether he directed the workers to go to the job site.

Justice of the Peace Mary Ross Hendriks stated:

“Section 62(1) of the Act, which also falls under Part VIII – Enforcement,  states:

 Obstruction of inspector

 62(1) No person shall hinder, obstruct, molest or interfere with or attempt to hinder, obstruct, molest, or interfere with an inspector in the exercise of a power or the performance of a duty under this Act or the regulations or in the execution of a warrant issued under this Act or the Provincial Offences Act with respect to a matter under this Act or the regulations.

“Specifically, subsection 62(2)(a) of the Act creates a positive duty to assist, on “every person” to “furnish all necessary means in the person’s power to facilitate any entry, search, inspection, investigation, examination, testing or inquiry by an inspector,” in the exercise of his or her powers or the performance of his or her duties under the Act or regulations.

“Mr. Haniff’s refusal to answer any of his questions when they met hindered Inspector Lomer’s ability to conduct his investigation, and thwarted his ability to explore undisclosed events and workplace relationships which were relevant to his investigation.”

Haniff was therefore guilty of the Occupational Health and Safety Act offence of obstructing the inspector.

The case shows the importance of co-operating with lawful requests from Ministry of Labour inspectors in the course of an investigation.

Ontario (Ministry of Labour) v. J.R. Contracting Property Services et al., 2013 ONCJ 202 (CanLII)

The work refusal provisions of the Occupational Health and Safety Act should not be abused, an arbitrator has effectively held in overturning an employee’s dismissal but refusing reinstatement.

The employee’s work refusal complaint to the Ontario Ministry of Labour had been made in bad faith, according to the arbitrator.

The employee worked as a plumber at a hospital.  In January 2011, he engaged in a verbal exchange with another employee.  The employee alleged that the other employee threatened him.  The arbitrator decided that the employee’s “honest belief [that he had been threatened] graduated into an attitude of increasing certitude, elevated worry, and finally rectitude.  That certitude and eventual rectitude blinded [the employee] to any other possible view of the matter and led him to question the motives and conduct of almost everyone around him.”

The employee went on  “stress leave”. At some point, he insisted on an immediate return to work.  There was a delay in his return because his doctor took time to get back to the Hospital.  The employee then responded by filing a work refusal complaint with the Ministry of Labour under the Occupational Health and Safety Act and sent an emotional e-mail to the Hospital CEO the next day.

The arbitrator decided that the work refusal complaint was “highly questionable”.  The arbitrator held that it was not made in good faith in the sense that it was a “reckless claim– intended to place additional pressure on the Hospital.”  The Hospital had just cause to impose discipline for making the work refusal allegation.

However, because the employee had five years of service and no disciplinary record, the bad-faith work refusal was not enough to dismiss for cause.  But the arbitrator nevertheless decided that he should not be reinstated: the employee was convinced that numerous people had lied about him in the past and continued to lie about him at the arbitration. He had two years to re-evaluate but his position had only hardened.  If he were reinstated, he would “continue his quest for justice as he sees it”. Also, he had found permanent employment with another major public sector unionized employer, which he judged to be equivalent or superior to what he enjoyed at the hospital. 

“But this just can’t go on”, the arbitrator concluded, denying reinstatement that would only embolden the employee to persist in further investigation until he was satisfied with the result.  The employee was instead awarded approximately nine months’ wages in lieu of reinstatement.

 C.U.P.E. v. The Scarborough Hospital, 2013 CanLII 16383 (ONLA)

The City of Guelph acted reasonably when it relied on the stamped drawing of an architect and engineer as evidencing compliance with all legal requirements, an Ontario judge has held in dismissing an Occupational Health and Safety Act charge against the City of Guelph.

The charge resulted from the death of a fourteen year old girl when a concrete block privacy wall collapsed on her as she tried to boost herself up onto a change table which was affixed to the wall.

The City was charged under the Occupational Health and Safety Act with failing, as an employer, to ensure that the wall was capable of supporting all loads to which it may be subjected “without causing the materials therein to be stressed beyond the allowable unit stresses established under the Building Code Act“.  Mr. Justice Epstein of the Ontario Court of Justice found that the “allowable unit stresses” standard no longer existed in the Building Code at the time of the design and construction of the building.  Rather, the “limits states design philosophy” had replaced it.  The Ministry of Labour had, however, failed to update the language in the OHSA.  As such, “The wording in the charging section has no applicabliy to the circumstances of this case in that the concept of allowable unit stress had expired long before” the design and contruction of this building, which had been designed in accordance with the “limits states design discipline”.  As such, the prosecutor had not proven beyond a reasonable doubt that the City had committed the offence.

According to Justice Epstein, even if the City had committed the offence, it was reasonable for the City to rely on the stamped drawing of the architect and engineer.  It was not readily apparent that the drawing was defective, and in any event the “default position in the industry” is that if walls are joined as shown on the drawing, they need to be interlocked.  There was also an “outright failure” of the masonry subcontractor to properly construct the wall to be stable.  As such, the City had established due diligence by relying on the stamped drawing.

Occupational Health and Safety Act charges against the architect and engineer were previously dismissed for limitations reasons (see our previous post here) but that decision is under appeal.

The court’s acquittal of the City will be of some comfort to employers who rely on stamped documents of architects and engineers in constructing buildings – at least where it could not have been apparent from the drawing that it was deficient.

Her Majesty the Queen v. Corporation of the City of Guelph, Ontario Court of Justice, February 2, 2012 (Epstein J.)

An employee with a long history of substance abuse issues and absenteeism was properly dismissed after he attended at work while impaired, an Ontario arbitrator has decided.

The employee worked as a janitor in the subway system in Toronto.  He suffered from drug and alcohol addiction and had a criminal history.  His absenteeism record was described as “extreme” with more than 100 days of absence in one year.

The day after he “got smashed” at a wedding reception, the employee attended at work in an impaired state.  His eyes were  glassy and he was waving his arms around and making noises that sounded like a quacking duck.  He was dismissed for being unfit for duty at work. 

The collective agreement specifically provided that that the TTC may discharge an employee for “Being impaired while on duty by reason of consumption of an intoxicating beverage, or drug for other than medicinal purposes” and that “[i]f the factual basis is substantiated, the Arbitration Board shall not inquire into the propriety” of the discharge.  Based on that provision, the arbitrator held that because the employee was impaired at work, the arbitrator had no authority under the collective agreement to overturn the discharge or impose a lesser penalty.

The next question was whether the TTC had satisfied its duty to accommodate the employee’s disability – alcohol and drug dependancy – under the Human Rights Code.  The arbitrator decided that the TTC had already accommodated the employee to the point of undue hardship by: tolerating very high levels of absenteeism over several years; providing him with sick benefits to enable him to attend several rehabilitation programs; giving him extensions of time to comply with the grievance procedure; giving him a mandatory referral to an addictions counsellor; and retaining him in its employ even though he had violated a last chance agreement.  His absenteeism affected his department and his co-workers, who had to pick up the “safety critical type of activities” that the employee’s absence created.  His absences also imposed a significant burden on management (taking ten times the effort of managing other employees).

As such, despite the employee’s admirable efforts to overtime his alcohol and drug dependency, requiring the TTC to reinstate the employee would impose undue hardship on the TTC.  This case illustrates that “undue hardship” can indeed be proven based on excessive absenteeism and the resulting effect on the employer. 

Amalgamated Transit Union Local 113 v. Toronto Transit Commission, 2012 CanLII 51356 (ONLA)

We don’t often hear of 37-year employees being fired for just cause.  An arbitrator has recently upheld the dismissal of a long-service unionized employee for safety violations.

The employer was a recycler of lead, and thus had important safety rules which included the use of respirators.  The employer was required, by the Occupational Health and Safety Act, to monitor employee blood levels for lead.

The employee had 7 disciplines on record in the past year, including a recent 25-day suspension, some of which were for safety violations.  The arbitrator referred to the employee’s “year-long journey of disciplinary misadventure” that ended with two safety-breach “culminating incidents” that occurred on successive days.

In the first culminating incident, the employee failed to wear his hard hat, safety glasses and mask in the plant. In the second culminating incident, he failed to wear a respirator in the plant and be clean shaven for an effective mask seal.

The arbitrator concluded as follows:

“In the result, this case presents a 58-year old grievor with 37 years of service (at the point of discharge) who is guilty of two incidents of health and safety related misconduct on consecutive days, less than a month after receiving a written warning and what amounted to a counselling for related health and safety misconduct (on April 11, 2012), and a little over 4 months after serving a 25-day suspension for multiple misconducts during the 6-week period after he was disciplined on October 12, 2011. The grievor’s evidence and wholly inadequate “apology” demonstrate that that [sic] he still does not fully acknowledge or accept responsibility for his misconduct on either April 30 or May 1, 2012. The Company has reasonably concluded that its efforts to rehabilitate the grievor have been fruitless, and that it can no longer tolerate his presence in the workplace.”

The arbitrator noted that the cases “demonstrate that workplace health and safety is a serious matter. The jurisprudence (not limited to the cases cited) makes it clear that arbitrators take the mutual responsibility of employers, unions, and employees to ensure workplace health and safety is very seriously . . . [L]engthy service by itself has less mitigation currency in health and safety misconduct cases than it has in other kinds of cases.”

In the result, the employee’s discipline history, the seriousness of his safety violations, and the lack of a sufficient apology, along with the two culminating incidents, justified his termination – despite his unusually-long service.

Tonolli Canada Ltd. and USW, Local 9042 (Marsiglia), Re, 2013 CarswellOnt 3855 (Ontario Arbitration, 2013)

Supervisors and safety professionals have often told me that they fear being personally charged under the Occupational Health and Safety Act.  Now, a human rights tribunal has decided that an employee’s generalized anxiety disorder was caused by such a fear.

The employee was a “Supervisor, Regulated Substances, Asbestos” with the Hamilton-Wentworth District School Board.  In the fall of 2001, she developed a generalized anxiety disorder as a reaction to the “highly stressful nature of her job, and her fear that, in making a mistake about asbestos removal, she could be held personally liable for a breach of the Occupational Health and Safety Act . . .”

According to the Human Rights Tribunal of Ontario, the employee testified that “the Ministry of Labour was critical of the [school board's] handling of its asbestos removal projects and that she, as the supervisor of these projects, was personally threatened with a substantial fine.”

She went off work due to the anxiety.  Medical evidence showed that she could not work in any position involving liability for health and safety issues.  She asked to return to work in a position that did not involve any risk of OHSA liability.

The Tribunal decided that there were other positions to which the school board could have returned the employee that did not involve potential OHSA liability.  Because the school board did not return her to such a position, it had breached its duty to accommodate.  See my colleague, Catherine Coulter’s article about the significant damages (almost 10 years’ income) awarded to the employee.

The case is an interesting read for safety professionals, and perhaps a reminder to employers to provide sufficient training to ensure that their supervisors and safety professionals can sleep well at night without being nagged by fears of personal charges or liability under the Occupational Health and Safety Act.

Fair v. Hamilton-Wentworth District School Board, 2012 HRTO 350 (CanLII) (decision that employer breached duty to accommodate) and 2013 HRTO 440 (CanLII) (decision awarding damages).

An alleged comment that “women don’t like to do that job”, and other discussions at an Ontario Labour Relations Board safety-reprisal mediation, were privileged and could not form the basis for a discrimination complaint, the Human Rights Tribunal of Ontario has decided.

An administrative employee with the Alcohol and Gaming Commission of Ontario filed a safety-reprisal complaint under section 50 of the Ontario Occupational Health and Safety Act.  The parties attended mediation at the Ontario Labour Relations Board in that safety-reprisal matter.

She alleged, in a separate discrimination Application to the Human Rights Tribunal of Ontario, that at the OLRB mediation, she was told that her former administrative position no longer existed and was offered a mail clerk position but told that “women don’t like to do that job.”  In her Tribunal Application, she made a number of other allegations about the OLRB mediation.

The Tribunal decided, based on various sections of the Ontario Labour Relations Act, that the discussions at the OLRB mediation were confidential and without prejudice settlement discussions and as such were privileged.  Further, the OLRB mediator could not be compelled to testify as a witness before the Tribunal.  As such, the employee could not use the OLRB mediation discussions as a basis for her discrimination complaint to the Tribunal.

The Tribunal stated that there was no reason to depart from the Tribunal’s usual approach of not relying upon confidential and without prejudice settlement discussions.  Confidentiality is important in mediation, and no exception to the application of settlement (“without prejudice”) privilege was warranted in this case.

 Johnson v. Alcohol and Gaming Commission of Ontario, 2013 HRTO 471 (CanLII)

An employee who claimed that he was dismissed after sharing his concerns about the well-being of himself and his children and the “lifestyle of their mother”, has been denied a remedy under the safety-reprisal provisions of the Canada Labour Code.

The employee, who was in the midst of a family-law dispute, alleged that his employer, the Canada Revenue Agency, did nothing to respond to those concerns including notifying proper authorities. He said that had an occupational health and safety investigation been held and a report properly issued following his complaint, the whole matter would have turned out differently and he would not have been dismissed.

The Public Service Labour Relations Board dismissed his reprisal complaint, holding that the employer’s decision to terminate his employment was an extension of its decision to place him on leave without pay after he exhausted his sick leave credits and did not return to work.

The Federal Court of Appeal upheld the PSLRB’s decision, holding that the employee was “unable to show the link between the asserted danger and his employer, but for the alleged duty of the CRA to get involved in his personal life and to protect him and his children.”

This case is an example of how occupational health and safety laws will not extend to alleged safety concerns in an employee’s personal life of a purely private nature that do not affect an employee’s workplace safety.

Gaskin v. Canada (National Revenue), 2013 FCA 36 (CanLII)

Health and safety and human resource consultants who conduct investigations or retain outside experts to do so, should pay attention to a court decision in which an Ontario man was convicted of acting as a private investigator without a license.

Ontario’s Private Security and Investigative Services Act, 2005 defines a private investigator very broadly as “a person who performs work, for remuneration, that consists primarily of conducting investigations in order to provide information.”

That Act states that “no person shall act as a private investigator or security guard or hold himself or herself out as one unless the person holds an appropriate licence under this act.”

The defendant had attended “tax sales” (forced sales of homes in order to pay back-taxes owing to a municipality) in the past and had purchased homes in this manner.

The defendant undertook several investigations, including checking to determine whether a particular property had fallen into tax arrears and was in jeopardy of being sold, and determining if the property was free and clear of any liens.  Having been unsuccessful in his attempt to purchase the home, he realized that there would be a “surplus” from the sale, so he located and approached the owner of the home who was apparently unaware of the surplus.   The owner agreed to split any “surplus” from the sale 50-50.

The court decided that the defendant was able through investigative techniques to deduce where the property was located and who owned it, and that he had profited from his investigation.  As such, he had acted as a private investigator without a license.  He was therefore guilty of an offence.

The case indicates how broad the term “private investigation” can be interpreted.  Safety professionals and human resources managers who hire private investigators for a fee, should satisfy themselves that the private investigator is licensed.

Although the Act includes several exemptions, including “persons who perform work, for remuneration, that consists primarily of searching for and providing information on . . . the qualifications and suitability of persons as employees or prospective employees”, there are many types of workplace investigations that could fall outside of that exemption.

The bottom line is that safety professionals or human resources managers who undertake “private investigations” themselves for a fee, should check whether their activities require a license.

R. v. Harvey, 2012 ONCJ 702 (CanLII)

Usually employees complain about their managers, not the other way around.

In an interesting case, a group of managers, who complained that their workplace had been poisoned by the employer’s inaction in the face of offensive blog postings by their employees, has been denied a remedy.

The managers were Operational Managers at the Middlesex Detention Centre.  They complained about a blog associated with a local of the Ontario Public Service Employees Union.  Some of the blog posts alleged managerial corruption or negligence, such as having “screwed up” an attendance management program.  The blog posts used words such as “useless”, “pathetic”, “vindictive”, “morons” and “misfits”.  Cartoons and comments referred to “kangaroo courts” imposing discipline on the employees.  The blogs characterized the managers’ “pay for performance” as being bonuses for “screwing up”.

The blog was initially not password-protected but at some point password-protection was added.

The managers argued that the blog comments were “harassment” and violated the employer’s harassment policy and that by not acting on those violations, the employer breached the terms and conditions of the managers’ employment contracts.

The Public Service Grievance Board held that senior management – who managed the complaining managers – had not violated the complaining managers’ terms and conditions of employment in the way that the blog issue was handled.  In particular, senior management did not violate the employers’ policies in the way they handled the issue.  Senior management made clear to all employees that the disrespectful portions of the blog were not to be tolerated, and was instrumental in getting the blog removed from the public domain.   That senior management did not pursue the matter further after password-protection was added to the blog was an exercise in discretion that did not breach the managers’ employment contracts.  As such, the complaints of the managers were dismissed.

Although senior management’s handling of the blog issue was considered reasonable, had the facts been different – and the offensive blog posts continued to be accessible to the public – the Public Service Grievance Board may have granted a remedy.

Lee et al and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 4672 (Ontario Public Service Grievance Board)

A supervisor’s violation of the Occupational Health and Safety Act can ground a criminal negligence charge against him, an Ontario preliminary inquiry judge has decided, sending the criminal charges to trial.  We reported on this case in January; the court’s reasons for decision were recently made available.

The criminal negligence charge was laid against the Project Supervisor of Metron Construction after five workers fell 13 stories to their deaths when a suspended scaffold collapsed on Christmas Eve, 2009.

The Crown and the defence agreed that in order for the Project Supervisor to be guilty of criminal negligence, the Crown must prove that, by act or omission, he failed to perform a duty, and that if the failure was an omission, the failure was “wanton or reckless”.

The court decided that evidence of the Project Supervisor’s failure to ensure that all workers were tied to lifelines was sufficient proof of criminal negligence causing death that the charges should proceed to trial.  The court found that the duty to ensure that workers were connected to lifelines was set out in the Occupational Health and Safety Act and in the rules of the Construction Safety Association of Ontario.

The Project Supervisor’s consent, tacit or otherwise, to at least 5 workers using the swing stage with their equipment to ascend or descend 14 or more stories without the protection of lifelines was a marked and substantial departure from reasonable prudence.

The judge stated that safety regulations “do not establish criminal standards”, meaning a violation of a safety regulation will not automatically ground a criminal negligence charge; that will be of some comfort to employers and supervisors.  However, in this case, there was evidence of a “substantial departure from the norm” and “wanton disregard”, factors that effectively could turn the breach of the Occupational Health and Safety Act  duty into criminal negligence.

We will provide further updates on this important and high-profile case as they become available.

R. v. Kazenelson, 2013 CarswellOnt 1765 (Ontario Court of Justice)

A person who contravenes Alberta’s Occupational Health and Safety Act, Regulations or Code is liable, for a first offence, to a fine of not more than $500,000 or imprisonment for a term not exceeding 6 months and, for a second or subsequent offence, to a fine of not more than $1 million or imprisonment for a term not exceeding 12 months.

In 2012, Alberta Courts imposed penalties for Occupational Health and Safety legislation violations in nine cases. Of the four cases involving fatalities, penalties against companies (including fines, alternative penalties and victim surcharges) ranged from $250,000 to nearly $1.5 million. Three of the four cases had penalties at the lower end of this range. The penalties for the five cases involving serious injuries ranged between $70,000 and $85,000, displaying an upward trend from prior years for fines in non-fatal cases.

The year 2012 represented the first time that a case achieved fines reaching the $1 million mark, and demonstrating a willingness by the court to render penalties dramatically increased from historical amounts for penalties in cases involving fatalities. The case of R. v. Perera Development Corp., Action No. 100171909P1, June 4, 2012, involved a dump truck driver who was fatally injured after removing debris from an excavation site when a 15 metre high wall of dirt and rock collapsed on him, crushing him inside of the cab of the truck. The prosecution charged two related companies as employer and/or prime contractor with numerous OHS violations, arguing that they cut corners to complete the construction project, despite having identified (but ignoring) a serious hazard associated with an improperly shored up wall of the pit. A Judge of the Alberta Provincial Court convicted the employer and prime contractor of multiple violations, deciding that they failed to exercised due diligence. The court expressed astonishment that two experienced construction companies would leave a steep 50 foot wall without any shoring whatsoever. Describing their conduct as “egregious and outrageous,” the court noted that reasonable steps could have been taken to properly shore up the wall for relatively small amount of money compared to the overall cost of the project. The court concluded that although the companies had some safety procedures in place at the site, their systems were inadequate. The court fined Perera Development Corporation a total of $1.25 million plus a 15% victim surcharge. The court also fined Perera Shawnee Ltd. a total of $900,000 plus a 15% victim surcharge, for a total of $2,472,500 in penalties arising from the incident.

The trend continues. On January 24, 2013, SSEC Canada Ltd. was sentenced to a $1.5 million penalty, which was comprised of a $200,000 fine and a $1.3 million payment to the Alberta Law Foundation to be used to support an outreach and education program. The conviction arose as a result of a guilty plea by SSEC Canada Ltd. to three charges under Alberta’s Occupational Health and Safety Act relating to the failure of the employer to ensure, as far as reasonably practicable, the health and safety of workers. The circumstances giving rise to the incident related to the work being performed on large metal storage tanks, which work had fallen behind schedule. In order to expedite progress, SSEC Canada proposed revised construction whereby the tanks’ walls and roofs would be built at the same time. The prime contractor agreed to the revisions, but said the work should be done under its own construction management team which would supervise quality control and safety. Despite this direction, SSEC Canada began work using the new method before the prime contractor’s team arrived on site, and even though the procedures had not yet been certified by a professional engineer. On April 24, 2007, about three weeks after SSEC Canada began using the new method, a roof collapsed when the wire cables holding it up snapped after being kinked and torqued in high winds. Two workers were crushed by falling steel and five other workers were injured.

It is noteworthy that in both the Perera and SSEC Canada cases, the circumstances involved fatal incidents where the hazards were specifically identified, but the implementation and following of proper safety measures were deliberately bypassed.

For more information see: http://humanservices.alberta.ca/working-in-alberta/6752.html

An Ontario justice of the peace has held that an employer’s safety manual was defective, and has convicted the employer of four charges under the Occupational Health and Safety Act.

The employer was charged after a worker was seriously injured when he was hit by the bucket of an excavator while working in a trench removing old pipes and replacing them with new ones.

The charges alleged a failure to adequately train the worker, and failure to provide a competent, dedicated signaller who was clear of the intended path of travel of the equipment.

The court stated that:

“[T]his court views the contents of the corporate Safety Manual and the smaller Employee Safety and Environmental Handbook to be lacking in efficiency.  There was no reference to mandated signals to be a standard use of communication between all construction workers.  The Safety Manual had a very short description about the use of a ladder [to exit the trench].  There was conflicting information about the use of a ‘top man’ at the work site.  There was no specific testimony which established that the employees were aware of the content of every safety and health instruction in the Safety Manual.”

The justice of the peace also stated that, “The employee handbook has no written instruction regarding the role of a signaller.”  Although there was evidence that the employer had issued oral instructions at a “tailgate meeting”, those instructions were not sufficient.

This decision illustrates the importance of employers ensuring that their safety manuals cover, with the appropriate level of detail, the key safety issues for that employer’s workplace.  In this case, signalling was obviously key in the employer’s business, but it was covered inadequately in the safety manual. An inadequate safety manual can actually be used against the employer at trial, rather than assist in establishing a due diligence defence.

Ontario (Ministry of Labour) v. Eastway Contracting Inc., 2012 CarswellOnt 17161 (Ontario Court of Justice)

An Ontario employer has been ordered to pay 24 weeks’ wages to a 12-week probationary employee who was fired after complaining about numerous safety issues with a company truck he was driving which hauled steel.

The employee had complained that the truck was “kicking” and “slipping” in third and seventh gear; that the steering was loose; that the mirrors were cracked and off-angle; that there was no engine brake (“Jake Brake”); that a portion of the dashboard had been removed and that there were exposed wires; and that fuel was leaking.  He decided that the truck was unsafe to drive, and he told the employer so.

The employee said that when he refused to work, the company’s general manager became upset and started swearing, and told him that he was fired and should leave the keys in the truck.

The employee filed a safety-reprisal complaint under section 50 of the Occupational Health and Safety Act.  The Ontario Labour Relations Board decided that the employee had reasonably believed that the truck was unsafe, and had good reason to believe that it was unsafe.  The employee had taken photographs to prove it!

The OLRB also decided that the firing was motivated, at least in part, by the employee’s work refusal, particularly given that the termination took place almost immediately after the employee refused to drive the truck.

The OLRB refused to order the employer to reinstate the employee, because he had been employed there for only 12 weeks and the trust between the parties was clearly broken. Instead, the OLRB ordered the employer to pay 20 weeks’ back pay (for the period of time between the date of the termination and the date of the OLRB’s decision) plus an additional 4 weeks’ pay. This means that the 12-week employee received twice his length of service in damages.

Barber v. LP Services, 2013 CanLII 9952 (ON LRB)

A farm employer has been convicted of a charge under the Occupational Health and Safety Act where portable steps being used by the employer were “not even barely adequate”.

The employer was charged with failing to take the reasonable precaution of ensuring that adequate access and/or egress was provided for a transport storage trailer.  A 59-year-old worker fell and broke her leg while climbing down from the trailer. The evidence showed that the top step of the portable steps used to access the trailer was 24 inches lower than the floor of the trailer, so that the employee had to climb down from the trailer backwards, lying on her stomach on the floor of the trailer, because of the distance to the top step. 

Interestingly, it appears that the steps had been adequate when the trailer was in its previous location. There, the trailer’s tires had been flat and the wheels sunk into the ground, shortening the distance between the top step and the floor of the trailer. The problem was that the trailer had been moved and the tires inflated.

The trial justice had found the employer guilty of the charge, calling the situation an “accident waiting to happen”.  The appeal judge agreed that the conviction should stand.  The distance of 24 inches between the top step and the floor of the trailer created a self-evidently unsafe situation.  The obligation under the OHSA to take “every reasonable precaution” includes the obligation to provide equipment that is adequate to the task for which it is required.   In the circumstances, it was not a defence that no one foresaw the danger and that no worker complained.

Ontario (Ministry of Labour) v. Stratford Chick Hatchery Ltd., 2013 ONCJ 47 (CanLII)

An Ontario supervisor has been convicted and fined under the Occupational Health and Safety Act for disturbing an accident scene.

According to a Ministry of Labour press release, a worker at a residential construction site sustained fractures and a back injury when he fell through an open deck that had been framed but not yet completed.   According to the press release, the supervisor “directed workers to install guardrails and the deck floor before the Ministry of Labour attended the scene. This was done without the permission of a ministry inspector.”

The supervisor was fined $2,500.00.

The company pleaded guilty and was fined $50,000.00 for failing to ensure that a guardrail system was in place.

This case demonstrates the importance of employers ensuring that employees do not disturb the scene of an accident – other than to attend to an injured worker – until the Ministry of Labour inspector has arrived.  Inspectors and prosecutors will show little mercy to those who disturb the scene and potentially make it difficult for the inspector to carry out his or her investigation, particularly if the inspectors suspect an attempt to cover up the facts.

The Ministry of Labour press release may be accessed here.

The Ontario Court of Appeal has upheld a trial judge’s decision that an employee’s violation of a lockout rule was not just cause for dismissal.

The employer, a manufacturing company, had a strong culture of workplace safety. Its “Cardinal Rules” of safety included the requirement that employees lock out any machinery being worked on, and that employees immediately report any violations of the company’s safety policy.

Plester, a line-supervisor, attempted to fix a machine without locking it out.  He did not immediately report his violation. The next morning, he tried to dissuade subordinate employees from reporting his mistake.  However, they had already reported the violation. The company promptly fired the supervisor.

The Ontario Court of Appeal stated:

“We appreciate that an employer’s ability to respond strongly and swiftly to violations of rules designed to ensure workplace safety reinforces the importance of such rules, and promotes a culture of workplace safety. We also appreciate that a line-supervisor, such as the respondent, is generally subject to a higher standard than a line worker. And, given PolyOne’s fully warranted concerns about workplace safety, we agree with the trial judge that the respondent made a serious mistake. However, the respondent’s mistake did not appear to have put any other persons at risk, and he was a long-standing, good, hard-working employee with only minor incidents of past discipline as a line-worker, pre-dating his promotion to line-supervisor some six years before.

“Moreover, the trial judge accepted that the respondent planned to report his violation; what occurred was an intended short delay in reporting, as opposed to a suppression of a violation. We are not persuaded by PolyOne’s argument that that the respondent’s conduct was such a violation of trust that a continuing relationship was impossible.”

This decision shows that not every safety violation will be just cause for dismissal, even where the employer has a strong safety culture.  Instead, depending on the severity of the safety violation, progressive discipline may be necessary before an employer dismisses an employee for just cause.

Plester v. PolyOne Canada Inc., 2013 ONCA 47 (CanLII)

An Ontario arbitrator has found that an employer violated Bill 168 which introduced workplace violence provisions into Ontario’s Occupational Health and Safety Act.

The Labourers’ International Union of North America, Local 506, referred a workplace violence grievance to the Ontario Labour Relations Board. For some reason, the employer did not file the necessary response form with the OLRB. As such, the OLRB proceeded to hear the grievance without the employer having filed any materials.

On the basis of the facts stated by the union, the OLRB found that a principal of the employer had assaulted, on a job site, a labourer employed by the employer, and that the principal later threatened another worker with physical violence and death.

The OLRB also found that the employer had failed to prepare, review and post workplace violence and harassment policies or programs, or to provide information and instruction to workers regarding workplace harassment, in violation of sections of the Occupational Health and Safety Act that were introduced in Bill 168.

The OLRB therefore directed the employer to “cease and desist from violating . . . the provisions of the Occupational Health and Safety Act.”

While the union also asked the OLRB to award damages – including for mental distress – to the employees who were the victims of workplace violence, the OLRB said that it did not have sufficient evidence to do so, but the OLRB scheduled a date to deal with the assessment of damages.

Although the employer did not participate in this grievance hearing, the decision is a warning to employers that non-compliance with the Bill 168 workplace violence and harassment provisions is not just a technical breach, but may result in legal orders and damages.

Labourers’ International Union of North America, Local 506 v Pro-Cut Concrete Cutting Ltd, 2013 CanLII 1240 (ON LRB)

An employer’s appeal of a Ministry of Labour inspector’s compliance orders may proceed, despite the inspector’s ongoing investigation into possible charges, the Ontario Labour Relations Board has ruled.

The inspector’s compliance orders dealt with the wearing of personal protective equipment and the training of workers regarding hazards associated with moving vehicles or equipment.  The employer appealed the orders to the OLRB.  At the same time, the inspector continued an investigation that could result in potential charges against the employer under the Occupational Health and Safety Act.

Interestingly, it was the Ministry of Labour – not the employer – that asked the OLRB to adjourn the employer’s appeal until the inspector’s investigation had been completed.  The Ministry argued that it would not be proper to address issues in the OLRB’s pre-hearing in the employer’s appeal, or in the course of the appeal itself, which may involve other workplace parties such as the union and a particular worker who were participating in the inspector’s investigation into possible charges.

The OLRB rejected the Ministry’s request, stating that the employer, which was represented by counsel, wished to proceed with the appeal and had not yet been charged with offences under the Occupational Health and Safety Act.  Further, at least at the pre-hearing stage of the employer’s OLRB appeal, the employer would not be required to provide any information to the Ministry against its will which could prejudice the employer if it were charged under the Occupational Health and Safety Act after the inspector completed the investigation.

Lastly, the OLRB stated that any concerns about prejudice would be more persuasively raised by an employer whose interests were potentially at risk, rather than by the Ministry.

In the result, the employer was permitted to proceed with its appeal of the Ministry inspector’s compliance orders.  The Ministry’s request for reconsideration of the OLRB’s decision was also dismissed.

This is a welcome decision that permits employers to challenge Ministry inspectors’ compliance orders without having to wait until the inspector has completed his or her investigation.

Trisan Construction Inc v Labourers International Union of North America, Local 183, 2012 CanLII 87260 (ON LRB), request for reconsideration denied.

Many Ontario employers will be relieved by an Ontario appeal decision that clarifies – and limits – the obligation to report workplace accidents to the Ontario Ministry of Labour.  “[I]t is not part of the purpose and objective of the Act to protect non-workers.”

A guest’s swimming pool death did not require an Ontario resort to file a Notice of Accident with the Ontario Ministry of Labour, the Ontario Court of Appeal ruled, overturning a lower court decision that risked dramatically expanding some employers’ accident reporting obligations.

Facts

In 2007, the guest had drowned in an indoor swimming pool at the resort.  No Blue Mountain employees were working at the pool at the time.  A Ministry of Labour inspector ordered Blue Mountain to report the accident to the MOL.  The inspector’s decision was upheld by the Ontario Labour Relations Board and the Ontario Divisional Court.

Section 51 Notice of Accident

The Occupational Health and Safety Act‘s accident-notification provision, subsection 51(1), states:

51(1) Where a person is killed or critically injured from any cause at a workplace, the constructor, if any, and the employer shall notify an inspector, and the committee, health and safety representative and trade union, if any, immediately of the occurrence by telephone or other direct means and the employer shall, within forty-eight hours after the occurrence, send to a Director a written report of the circumstances of the occurrence containing such information and particulars as the regulations prescribe. [underlining added]

The MOL argued that “person” means any person, not just employees, so that employers must report any death or critical injury of any person – including guests or visitors – in a workplace.

The Court of Appeal disagreed, noting that the MOL’s interpretation would have the absurd result that it would make “virtually every place in the province of Ontario (commercial, industrial, private or domestic) a ‘workplace’ because a worker may, at some time, be at that place.  This leads to the absurd conclusion that every death or critical injury to anyone, anywhere, whatever the cause, must be reported.”  For instance, there was evidence that there were approximately 7,000 accidents every year at Ontario ski resorts, many of which – on the MOL’s interpretation – would need to be reported to the MOL even if no employee was involved.

When to file MOL Notice of Accident: 3 Factors

The Court of Appeal decided that an employer must file with the MOL a Notice of Accident where the following three requirements are met:

“a) a worker or non-worker (“any person”) is killed or critically injured;

b) the death or critical injury occurs at a place where (i) a worker is carrying out his or her employment duties at the time the incident occurs, or, (ii) a place where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work (“workplace”); and

c) there is some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at that workplace (“from any cause”).”

The third factor – a reasonable nexus between the safety hazard that caused the accident and a risk to worker safety – is the key factor arising from this decision.  It means that an injury to a non-worker in a workplace will not require the filing of a Notice of Accident if it does not reveal a worker-safety risk.

Result: No Requirement to Report This Guest’s Death

The court said that here, there was no evidence that the guest’s death in the swimming pool was caused by any hazard that could affect the safety of a worker, whether present or passing through.  As such, the third factor was not satisfied, and the resort was not obligated to report the accident to the Ministry of Labour.

Implications for Workplace Violence Policies

The court’s clarification of the meaning of “workplace” is also relevant to employer’s workplace violence policies and programs.  Employers’ workplace violence obligations will extend to a place where “(i) a worker is carrying out his or her employment duties at the time the incident occurs, or, (ii) a place where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work”.

This is an important and readable decision that human resource and health and safety managers should read.

Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75 (CanLII)

The Workplace Safety and Insurance Board has won a court order requiring an employee to pay back a $112,792.70 “overpayment” to the WSIB.

The WSIB had advised the employee that it was reversing his entitlement to benefits – for a number of years – and that it was claiming back the overpayment.

Criminal charges followed, and the employee was convicted and ordered to pay restitution of $4,330.  The WSIB then launched a court action claiming the remaining overpayment of $112,792.70.

At the same time, the employee launched an appeal to a WSIB Appeals Resolution Officer, and then the Workplace Safety and Insurance Appeals Tribunal, seeking to overturn the WSIB’s decision that there had been an overpayment of benefits to him.  Both the ARO and the WSIAT dismissed his appeals.  The WSIB agreed to hold the court action in abeyance until those appeals were resolved.

The court then granted the WSIB’s request for summary judgment, and ordered the employee to pay $112,792.70 to the WSIB.

The WSIB then moved to dismiss the employee’s counterclaim in which he alleged that the WSIB and the WSIAT mistakenly, negligently, or unfairly dealt with the medical evidence that was the basis for the WSIB’s claim for repayment.  The court dismissed that counterclaim because the proper way to raise those issues was by an application for judicial review of the ARO’s and the WSIAT’s decision, not by a claim in the courts.

Workplace Safety and Insurance Board v. Daykin, 2012 ONSC 7020 (CanLII)

In a long-running and bitterly-fought case involving prison guards, the Ontario Labour Relations Board has held that the work refusal process under the Occupational Health and Safety Act may not be used to challenge existing and established practices of the employer.

The case involved a staged work refusal by Correctional Officers and other prison employees after an unidentified person called the institution and said that a “zip gun” – a crude, home-made prison weapon – was in the institution.

The Institution’s Operational Manager decided that under the institution’s weapon search policy, the situation called for a “Level 2(b)” search of the institution; the employees demanded a “Level 4″ search which would involve cell extractions of prisoners by specially trained teams.

A Ministry of Labour inspector was called in. He decided that the employees did not have the right to refuse to work.  The employees nevertheless continued the work refusal.

The employees appealed the MOL inspector’s decision to the OLRB.  The OLRB agreed with the inspector: the employees had no right to refuse to work. The OLRB decided that the threat posed by zip guns was a normal part of the employee’s employment and was inherent in their work; therefore, under certain exceptions in the Occupational Health and Safety Act that apply to prison workers and other listed workers such as police officers whose work is inherently dangerous, the work refusal was not valid.

The OLRB went on to state that the OHSA’s work refusal provisions may not be used to call into question existing and established practices of an employer. Here, the application of the weapons search policy and the process through which the institution’s management decided which level of search to conduct, was part of the existing and established practices of the institution.  Therefore, the management decision of which level of search to apply may not be challenged through a work refusal.

The OLRB’s decision effectively means that where the employer has an established practice, the employees may challenge the safety of that practice by asking a Ministry of Labour inspector to order that the practice is not safe, but employees may not refuse to work in the interim.

Dowling v. Hamilton-Wentworth Detention Centre, 2012 CanLII 81181 (ON LRB)

A union has taken the unusual step of asking the Federal Court to order the federal Minister of Labour to prosecute a company for alleged safety violations.

In 2010, the Canadian Union of Public Employees and two other unions, the Air Canada Pilots Association and the CAW, filed a complaint with Human Resources and Skills Development Canada, alleging that Air Canada was in violation of certain sections of Part II (Occupational Health and Safety) of the Canada Labour Code.

The alleged violations related to workplace violence concerns, including failing to co-operate with the health and safety policy committee and failing to choose an appropriate, impartial person to investigate workplace violence.  The complaint asked that a Health and Safety Officer with HRSDC intervene.  A Health and Safety Officer investigated and found no violation.

CUPE then applied to the court for an Order compelling an HRSDC Health and Safety Officer to issue a direction to Air Canada to end the alleged violations, and requiring the Minister of Labour to prosecute Air Canada, or to permit CUPE to prosecute Air Canada.

Madam Justice Kane decided that generally speaking, courts will not determine whether a Health and Safety Officer should issue a safety direction or what the direction should be.  She also stated that courts will not order the Minister of Labour to prosecute for an alleged violation of the Canada Labour Code.  Lastly, she stated that courts will rarely interfere with the Minister’s discretion as to whether or not to lay charges.

This case is part of a trend of unions seeking safety charges against companies.  As we have previously mentioned on this blog, the Ontario Federation of Labour has a campaign seeking more criminal prosecutions against companies and supervisors alleged to have committed serious safety breaches.

Cupe, Air Canada Component v. Canada (Minister of Labour), 2012 FC 1484 (CanLII)

There may be many good reasons for employers to maintain their vehicles, but one reason not often considered is avoidance of occupational health and safety charges and fines.

A mining company has been convicted in the Yukon of occupational health and safety charges and fined $85,000.00 for failing to maintain a special driveshaft brake on a vehicle.

An apprentice mechanic was asked to transport a piece of mining equipment into the underground shaft at the mine.  He drove a Toyota Land Cruiser into the mine shaft, which had a steep 15 degree slope.  A tractor parked in the shaft blocked his way.  He stopped the Land Cruiser and pressed a dashboard button to engage a special driveshaft “park brake” that was added to the Land Cruiser.  He did not engage the regular park brake.  After he got out and walked ahead of the Land Cruiser, it rolled down the slope and struck him; he was seriously injured and later died.

The employer pleaded guilty to failing to maintain the Land Cruiser and failing to ensure that the employee was competent to drive the Land Cruiser. 

The court noted that one of the brake linings on the driveshaft brake was worn and made insufficient contact to stop the vehicle on a 15 percent slope.  That problem had not been detected by the company, and the vehicle was overdue for a mechanical inspection.  Even though the mechanical inspection, which was based on the vehicle’s operating hours, was required by a company policy but was not specifically required by the manufacturer or by government regulation, there was a clear failure to ensure that the vehicle was maintained in a safe operating condition.

The court also decided that the employee was insufficiently familiar with the vehicle and the hazards associated with operating it on a steep slope in an underground mine environment.

This tragic case is another example of the far-reaching nature of occupational health and safety laws, which extend to the maintenance of the employer’s vehicle fleet.

R. v. Procon Mining & Tunnelling Ltd., 2012 YKTC 100 (CanLII), http://canlii.ca/t/fvbtb

An Ontario judge has decided that criminal charges against a Project Manager should go to trial.

The charges against Vadim Kazenelson, Project Manager for Metron Construction, arise from the tragic Christmas Eve 2009 incident in which four workers on a suspended scaffold fell 14 stories to their deaths.

In July 2012, Metron Construction pleaded guilty to charges, arising out of the same incident, of criminal negligence causing death and was fined $200,000.00 plus a $30,000.00 Victim Fine Surcharge.  Metron’s owner, Joel Swartz, pleaded guilty to four charges under the Ontario Occupational Health and Safety Act and was personally fined $90,000.00 plus a Victim Fine Surcharge of $22,500.00.  Our July 17, 2012 post on the fines against Metron and Swartz can be found here.

Labour groups have increasingly been calling for criminal enforcement, under the so-called Bill C-45, against companies and supervisors who commit serious safety breaches. The Ontario Federation of Labour, for instance, has what it calls its “Kill a Worker, Go to Jail” campaign.

Stay tuned for further updates.

Employers are not required to anticipate all safety hazards, however unforeseeable. A recent case illustrates this point.

In a tragic accident, a worker died when a brace (which formed part of a makeshift winch used to pull concrete pipes into place) failed, striking the worker.

The employer was charged under the Occupational Health and Safety Act with failing to design the brace ”to support or resist all loads and forces to which it is likely to be subjected”.

Mr. Justice David Paciocco of the Ontario Court of Justice decided that the workers understood that only alignment of the pipe – and not force – could accomplish the task of moving the pipe into place, and that the winch system and brace were not designed to overcome resistance from a misaligned pipe through increased force from the winch.  That use of the brace and winch system was not “likely”, so the charge was dismissed.

Interestingly, Justice Paciocco rejected the Ministry of Labour prosecutor’s argument that the mere failure of the wooden brace proved that it was not properly designed.  Rather, the employer would only be guilty if it failed to design the brace to withstand “likely” forces.  Here, because the employees’ use of the brace at the time of the accident was not “likely”, the charge was dismissed.

R. v. Thomas Fuller and Sons Ltd., 2012 ONCJ 731 (CanLII)

Employers sometimes despair over employees who file multiple claims over the same issue.  The Ontario Labour Relations Board has decided that, at least with respect to safety-reprisal complaints under the Occupational Health and Safety Act, employees get only one kick at the can, so to speak.

The employee had been dismissed for insubordination after he, in an insolent manner, refused to do certain work because of the physical effort involved.  The union grieved the dismissal.

The labour arbitrator dismissed the grievance.  In the course of his decision, the arbitrator found that the employee had not, at the time of his refusal, identified clearly that there was a safety issue underlying his concerns.

The employee complained to the Ontario Labour Relations Board, arguing that his dismissal was a reprisal under the Occupational Health and Safety Act for raising a safety issue.  The OLRB dismissed the reprisal complaint, stating that the employee could have – and apparently did – raise the reprisal issue before the arbitrator.  The arbitrator’s decision settled that issue, and the employee could not attempt to reargue the issue before the OLRB. The OLRB therefore held that it had no jurisdiction over the reprisal complaint.

Koscik v. Lakeridge Health Corporation, 2012 CanLII 81626 (ON LRB)

In a surprising decision, an Ontario arbitrator has decided that a picketing employee’s comment to his fellow picketers that “I should have brought a gun to shoot” a company security officer, who was nearby and overheard the comment, did not justify his dismissal.

One suspects that many employers would take the opposite position: that any workplace comment about shooting another worker would be workplace violence.

After the picketing employee made the comment, the company called in the police who laid charges against the employee that were eventually dropped.  The company fired the employee.

The arbitrator noted that the employee, when he made the comment, did not use the security guard’s name and did not speak in a threatening tone.  He was “trying to be funny”.  Also, he addressed his comment to the group of picketers, not to the security guard.  Further, the arbitrator decided that the security guard’s actions showed that he had not perceived the comments to be threatening; she thought that it could have been a case of a “really bad sense of humour”.  Lastly, the arbitrator decided that the employee had not intended to threaten the security guard, although he was unhappy that she was “hanging around” the picketers.

As a result, the arbitrator found that the employee’s conduct did not constitute workplace violence. Nevertheless, his comments were “completely and totally inappropriate”, particularly given the heightened awareness about workplace violence after Ontario’s Bill 168 which added workplace violence and harassment provisions to the Occupational Health and Safety Act.

The arbitrator reinstated the employee and directed that a 30-day suspension be placed on his file.  The arbitrator also awarded him 19 months of back pay due to delays, that the arbitrator said were caused by the employer, in starting the arbitration hearing.

This decision, while based on its unique facts, appears to conflict with some other arbitration decisions in which arbitrators took a hard line against workplace violence.  Click here for our blog posts on some of those cases.

Vale Canada Ltd v United Steelworkers of America, Local 6500, 2012 CanLII 81310 (ON LA)

A Justice of the Peace has reaffirmed that Ontario’s safety laws are intended to protect not only safe workers, but also workers who make mistakes, are careless or are reckless.

A steel beam that was temporarily welded to a pile broke free and fell on a worker while another pile was being vibrated into place.

The company argued that the welder had used the wrong type of weld, and that the company reasonably believed that the welder would use the correct weld – a “full” weld.

Justice of the Peace Mackey stated:

“What Deep Foundations, and all other employers must remember on a daily basis is, and the Spanway Buildings decision says it well, that ‘workplace safety regulations . . . are intended to prevent workplace accidents that arise when workers make mistakes, are careless, or are even reckless.’ No one is expected to be perfect, but an employer has a responsibility to be on top of the safety of their employees, and not just by going through the motions of manuals and training.”

The court found that the employer failed to take the reasonable precaution of having a professional engineer provide the requirements for welding where one and/or more pile was tack welded while another pile was being driven.

Ministry of Labour v. Deep Foundations Contractors Inc., 2012 ONCJ 701 (CanLII)

The Alberta Court of Appeal has agreed to hear an employer’s appeal of a judgment of the Court of Queen’s Bench which overturned acquittals, by a Provincial Court judge, of two charges under the Alberta Occupational Health and Safety Act.

A fatal incident occurred involving a “calf roping machine” at a Stampede Week party event hosted by the employer in 2007. A young software developer who was helping to operate the machine was struck in the head by a steel lever and later died from the injuries. Following an investigation into the incident, the employer was charged with failing to ensure, as far as it was reasonably practicable to do so, the health and safety of its worker and failing to ensure that all equipment used at the work site would safely perform the function for which it was intended or designed.

We recently posted an update of this case describing the appeal decision in R. v. XI Technologies Inc., 2012 ABQB 549. The Court of Queen’s Bench overturned the two “not guilty” verdicts of the trial judge. On the evidence, the trial judge found that the employer had raise a successful due diligence defence and found the employer “not guilty” of the charges. The trial judge concluded that while the employer had identified certain hazards arising out of the operation of the calf roping machine, which was not functioning properly at the time, the employer had put in place operating procedures which diminished the risk to the point that a reasonable person would conclude that it was safe to continue with operating the machine in accordance with the adopted procedures. The Crown appealed and the verdicts were overturned. The appeal court disagreed, found the verdict of the trial judge to be unreasonable, and found that on the evidence due diligence on the part of the employer could not be established. The appeal court judge found that the preventative measures adopted by the employer to respond to the hazard were not adequate to address the risk and, as such, the machine ought to have been placed out of service.

In late November, the employer applied to certify that an appeal lies to the Alberta Court of Appeal on the basis that the case involves a question of law of sufficient importance to justify a further appeal. In granting leave to appeal, Justice O’Brien confirmed that the two-part test was met by the employer, which required that the appeal would involve a question of law as well as and a matter that was of sufficient public importance to warrant an appeal.

Justice O’Brien agreed that an issue of law is raised where there is an issue of whether a verdict is reasonable and can be supported by the evidence. Most notably, Justice O’Brien confirmed that an issue of law arises with respect to an employer’s legal obligations regarding hazard identification and preventative steps; in particular, clarification in the law is required as to where the employer may draw a line in the risk versus hazard analysis in determining what preventative steps are reasonable in circumstances where the harm may be likely but minor versus where the harm is extremely unlikely but may result in serious consequences. This question involves the proper interpretation and application of the concepts of “risk” versus “hazard” and how they relate to foreseeability. In this regard, reference was made to the appeal court judge’s interpretation and application of the Ontario Court of Appeal’s decision in R. v. Rio Algom (1988), 66 OR (2d) 674 with respect to the test of whether a reasonable person would have foreseen the potential danger. From this, Justice O’Brien granted leave to appeal because he considered that the extent to which an employer may rely upon operating procedures to mitigate an identified risk was a matter of general public importance.

The decision of the Alberta Court of Appeal in this matter is expected to be of significant importance to employers as we expect the law will be clarified in relation to specifying the degree of hazard analysis and identification that must be taken and the corresponding level of precautions or preventative steps that must be implemented.

The Reasons for Decision regarding the application to certify that an appeal lies to the Court of Appeal is found at R. v. XI Technologies Inc., 2012 ABCA 368.

Stay tuned.

The Occupational Health and Safety Act does not require that workers be “contemporaneously supervised at all times”, an Ontario appeal judge has held, dismissing two charges.

In a bizarre accident, an 18-year-old worker at a company that washed cars prior to their sale at an auction, drove a vehicle into a wash bay setting off a chain of collisions between two other cars and resulting in another employee, further up the line, being injured.

The worker had been told twice by a manager not to drive, initially when he was hired and again on the day of the incident.  He admitted that he was aware of the safety policy of the appellant that in order “To drive a vehicle on the property you must have a valid driver’s licence.”  He did not have a driver’s licence.

He also admitted that he moved the car “in the heat of the moment”.  At the time of the incident, there were no supervisors in the wash bay; all of the workers had gone on a break. 

At trial, the presiding justice of the peace stated that the worker should not have been unsupervised for any period of time.  She said that the supervision was inadequate because the worker was able to “circumvent this observation and supervision and drive the motor vehicle” because everyone had gone on break and therefore the system failed. 

The appeal judge disagreed, holding that the Occupational Health and Safety Act did not require that a supervisor always be present.  Because it was not the worker’s job to drive, nor was there any reason for the company to suspect that he would drive, the employer was not required to provide him with “information, instruction or supervision” in safe operation or parking of vehicle.

The appeal was allowed, and the Occupational Health and Safety Act charges of failing to instruct and supervise, and failing to ensure that the worker had a valid driver’s license, were therefore dismissed.

R. v. 679052 Ontario Limited (c.o.b. Auction Reconditioning Centre), 2012 ONCJ 747 (CanLII)

The Ontario Labour Relations Board has reinstated an employee who was fired shortly after he engaged in a work refusal under the Occupational Health and Safety Act. The decision shows that the reprisal provisions of the OHSA do indeed have teeth.

The employee worked for an auto parts company. He had refused to lift nine bins, claiming that the bins were overloaded and that lifting them would endanger his health and safety.  A manager was angry about the work refusal.

Approximately one week later, the company suspended the employee, allegedly because of his failure, approximately 3 weeks earlier, to advise the employer that a company vehicle he had been driving had bald tires.  When he returned to work after the suspension, he was sent home and asked to see a doctor due to a workplace injury before the suspension.  A few days later, the employer reduced his hours without explanation, and shortly afterwards he was told that his employment was terminated “by head office”.

The OLRB held that the timing of the suspension and termination – shortly after the work refusal – suggested a connection between the work refusal and the suspension and termination.  The reasons offered, before termination and at the hearing, for the suspension and termination did not add up.  Also, the employer failed to provide any explanation as to how, when or why the decision to suspend and dismiss the employee was made.  Finally, the suspension and termination were severe and disproportionate to the alleged misconduct, which were ”minor transgressions”.

As such, the OLRB found that the suspension and termination were a reprisal for the work refusal.

The OLRB ordered the employer to reinstate the employee with payment of all lost wages from the date of the suspension to the date of reinstatement.

While employees lose most reprisal cases under the OHSA that make it all the way to a hearing, this decision confirms that where the circumstances of the discipline or termination look suspicious – especially if they are soon after the employee refused work or raised a safety issue – the employee may be reinstated with a costly back-pay order.

Wilken v. 1377041 Ontario Inc. (Hotspot Auto Parts), 2012 CanLII 72730 (ON LRB)

An Ontario appeal court has overturned a conviction under the Occupational Health and Safety Act because there was no basis for concluding that the collapse of an overhead duct was a foreseeable risk.  The accident could not have been expected.

Employees were removing ducts and other equipment from a non-operational foundry in Woodstock, Ontario, in order to transport it to the United States.  A large section of the duct work collapsed and seriously injured a worker.

What had happened, the court concluded, was that sand had built up in the ducts and caused them to collapse.  The evidence was that the build up should not have occurred and could not have been expected.  Witnesses gave uncontradicted evidence that it was not practical or reasonable to inspect all welds in the ducts as it would have taken years to do so.  But for a poor weld and the sand build up, the collapse would not have happened.

The appeal court held that the “foreseeability of the effect” was one of the factors to be considered in determining whether the employer had exercised due diligence.  Here, the sand build up and collapse were not foreseeable, and the charges were dismissed.

The decision is a reminder that not all workplace accidents justify charges under the Occupational Health and Safety Act.  As our recent prosecutions study indicated, only 6% of corporations take their OHSA charges all the way to trial, so there is minimal caselaw. This decision will assist employers in understanding the scope of the due diligence defence.

R. v. Rassaun Steel & MFG. Co. Ltd., 2012 ONCJ 705 (CanLII)

An engineer’s inspection report must use the specific language “not likely to endanger a worker” in order to comply with the Occupational Health and Safety Act, an Ontario Labour Relations Board decision suggests.

Following receipt of Ministry of Labour compliance orders, a construction company retained an engineering firm to examine a tower crane.  The engineering firm reported to the inspector that there were no defects in the structure of the crane and that it can be put back into service.  The Ministry of Labour inspector essentially refused to accept the engineer’s report as it did not use the “not likely to endanger a worker” language.  The inspector ordered the construction company to have a professional engineer inspect the tower crane and provide a report that it was “not likely to endanger a worker”, wording found in s. 54(1)(k) of the OHSA.  The construction company appealed those orders.

The construction company then moved to suspend the operation of the orders.  The OLRB, relying on a 2011 decision called Hardwall Construction, held that because the engineer’s report did not specifically state that the tower crane is not likely to endanger a worker, the OLRB could not be satisfied that workers would not be endangered if the compliance orders were suspended.

In the Hardwall Construction case, the OLRB had stated,

“Specific reference to the precise words used in the statutory provision facilitates consistency of assessment and minimizes the opportunity for confusion or debate by an Inspector as to what conclusion should be reached based on the content of a report.  Having a certain level of consistency in the content of reports, by requiring all professional engineers to use the precise words envisioned by the Legislature, helps create a common benchmark of evaluation, which enhances and, in all likelihood, may even expedite the Inspector’s ultimate determination as to the safety of the workplace.”

While some professional engineers may be uncomfortable, for professional liability reasons, with certifying that machinery or equipment is “not likely to endanger a worker”, the OLRB has confirmed that those words are required in any engineering report under section 54(1)(k) of the OHSA.

Drewlo Construction Limited v. A Director under the Occupational Health and Safety Act, 2012 CanLII 66865 (ON LRB)

Where a 143-page contract made clear that a contractor was the “constructor” under health and safety legislation, the Yukon government, as owner of the project, was not the constructor, the Supreme Court of Yukon has decided.

The government, the contractor and the contractor’s supervisor were all charged with offences under Yukon’s Occupational Health and Safety Act after a blaster set off a charge that resulted in rocks falling on nearby homes, one of which punctured a roof.

The court noted that the contract between the Yukon government and the contractor, Sidhu Trucking, stipulated that Sidhu Trucking was the constructor.  The contract was not an evasion of government responsibility for safety, but rather an agreement that Sidhu Trucking would assume the obligations of constructor under the OHSA.

The court stated that it was preferable in principle that there should be one constructor on a project and that the constructor’s identity be made clear at the outset so there was no confusion.

Here, the contract was clear.  The court held:

“Where an owner and contractor agree that the contractor shall assume the statutory obligations of ‘constructor’, it makes little sense to challenge that arrangement, unless it can be established that the reality was quite different or the owner was attempting to evade its statutory duty. That is not the case in this Project. In my view, the evidence and the contractual provisions lead to the conclusion that the Yukon Government did not act as constructor on the Hamilton Boulevard Extension Project, but rather exercised its rights under the Contract to ensure compliance with quality and safety. These rights are consistent with an owner’s rights.”

This case demonstrates the importance of project owners clearly assigning “constructor” safety obligations to the general contractor in construction contracts – if the owner does not intend to be the constructor.  If the factual reality is consistent with the contract, the owner will likely not be the constructor.

Director of Occupational Health and Safety v. Government of Yukon, William R. Cratty and P.S. Sidhu Trucking Ltd., 2012 YKSC 47 (CanLII)

A supervisor at a Quebec automobile dealership has pleaded guilty to a criminal charge arising out of a workplace accident at which he was not present. He was not even aware of the employees’ hazardous practice that caused the accident.  Although the court granted him an absolute discharge, this case should concern employers and supervisors.

Three employees transferred gasoline from a gas tank to a container using ”an old home-made method which was described as a liquid pump connected to a car battery with clips”.   The court stated that a safer method involved using specialized equipment – a Gaz Guzler device – which the supervisor knew had not been in working order for some time at the garage. Because of problems transferring the gas, one employee added compressed air into the gas tank. which caused splashes, sparks and a fire.  All three employees were injured; one received severe second and third degree burns to 35% of his body.

The supervisor was not present but was in his office at the time of the incident. He mistakenly thought that a siphoning method was used for repairs of this nature. 

Despite this, the supervisor pleaded guilty to a charge of unlawfully causing bodily harm under section 269 of the Criminal Code.  He was originally charged with criminal negligence causing bodily harm, under the “Bill C-45″ amendments in 2004 to the Criminal Code.

The court stated, in accepting the guilty plead, that “In his position as manager, he must accept responsibility for his personal fault in not preventing bodily harm and not prohibiting a potentially dangerous procedure. He should have followed and implemented safety measures prescribed for the transfer of gasoline from gasoline tanks requiring repairs” and that “It is not contested that the accused did not intend to injure the victim and he certainly did not want the incident to take place.”

The court nevertheless granted the supervisor an absolute discharge, meaning that he came away with no criminal record.  The supervisor was 54 years old, was of good character, and did not have a criminal record, and it was not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him.  Further, he had gone through difficult circumstances including the death of his wife.

 Although this case involved a plea bargain, it is concerning that the court accepted that “not preventing bodily harm and not prohibiting a potentially dangerous procedure” were enough to support a criminal conviction arising from a workplace accident; one would think that something akin to intentional or reckless disregard of safety would be necessary to support a criminal conviction.  It will be interesting to see how courts apply the criminal code in future criminal safety charges against supervisors.

R. c. Hritchuk, 2012 QCCS 4525 (CanLII)

An employer struggling with how to comply with a Ministry of Labour inspector’s safety compliance order cannot expect the MOL to identify ways for it to comply, the Ontario Labour Relations Board has held.

The inspector issued an ergonomic compliance order requiring the employer to ensure that wheeled book cases used for book fairs were moved in a way that did not endanger the employees. The inspector decided that the “push forces” required to move the book case up the ramp were greater than permitted in ergonomic data known as “Snook Tables”.

The employer argued that the inspector had “refused to identify ways or means” for the employer to comply with the order. The OLRB decided that the inspector “was under no obligation to do so”. The inspector identified the problem, and it was for the employer to “derive a compliance plan that is most sensible for its operations”.

The employer also argued that there were no ergonomic thresholds set out in the regulations under the Occupational Health and Safety Act, and that the inspector had simply relied on “her professional judgement, as an ergonomist”. The OLRB disagreed, holding that the inspector had based her compliance order on a violation of section 45(a) of the Industrial Establishments regulation under the Occupational Health and Safety Act which requires that materials be moved in a way that does not endanger the worker. There was a legal basis for the compliance order.

The OLRB therefore rejected the employer’s request to suspend the operation of the compliance order pending a full hearing of the employer’s appeal.

There appears to be a trend towards Ministry of Labour inspectors issuing more ergonomic compliance orders, which can often be difficult to comply with. This case demonstrates that the employer, not the Ministry, will be tasked with finding a way to comply with the order.

Scholastic Book Fairs Canada Inc. v. Aguilar, 2012 CanLII 49789 (OLRB)

A journeyman electrician employed by Hydro One Inc. was properly dismissed because, during an altercation, he pushed another employee causing him to lose his footing and fall down metal stairs outside a trailer, the Ontario Labour Relations Board has held.

The OLRB decided that the employee’s push of his coworker was unplanned and “strictly a reaction to a scenario instigated by” the coworker. Both employees were “strong-willed individuals who enjoyed their combative relationship and have managed to control it” until the date of the incident.

It was critical here, according to the OLRB, that the employee had not apologized to his coworker. The lack of an apology “prompts consideration of whether there has been any therapeutic reflection upon the unacceptability of violence, even violence . . . that was precipitated by the perception of a need to ward off unexpected raised arm(s).”

The OLRB expressed concern that the lack of an apology and of any evidence showing that the two employees were likely to reconcile, meant that reinstatement would impose upon the employer “an unacceptable burden of ensuring that these two are kept apart until such time as there can be assurance of no further hostilities.” That was beyond what the employer could be “burdened with since the employee and his coworker were unable to “control their personal interactions”.

The termination was thus upheld. However, the OLRB struck down Hydro One’s prohibition in perpetuity of the employee doing any work at Hydro, because if he returned to Hydro One as an employee or contractor, the employee would likely not be in the same working relationship with his coworker-nemesis.

Canadian Union of Skilled Workers v. Hydro One Inc., 2012 CanLII 23317 (OLRB)

Recently we posted an update of this case describing the appeal decision in R. v. XI Technologies Inc., 2012 ABQB 549. The appeal court overturned the two “not guilty” verdicts of the trial judge in relation to the fatal incident involving a “calf roping machine” at a Stampede Week party event, held at a hotel. A young software developer who was helping to operate the machine was struck in the head by a steel lever and later died from the injuries.

The employer was charged with two offences under the Alberta Occupational Health and Safety Act for failing to ensure, as far as it was reasonably practicable to do so, the health and safety of the worker and for failing to ensure that all equipment used at the work site would safely perform the function for which it was intended or designed.

On the evidence, the trial judge found that the employer had raised a successful due diligence defence and found the employer “not guilty” of the charges. The Crown appealed and the verdicts were overturned. The appeal court disagreed and found that on the evidence, due diligence on the part of the employer could not be established.

The employer is now asking that Alberta’s highest court consider this case and clarify the law as to the defence of due diligence. The application for leave to appeal is scheduled to be heard by the Alberta Court of Appeal on November 22nd.

Stay tuned.

An employee who drove a loaded forklift in the forward direction with his view obstructed was properly issued a five-day suspension, an Ontario arbitrator has decided.

The employee was bringing a load of ten 30” wooden reels into the plant. Instead of turning around and driving the forklift backwards, so his view would not be obstructed by the load, he drove forward. A coworker pulled into the aisle with a hand-operated lift truck known as a “walkie”. The employee braked suddenly to miss the coworker, causing the forklift load to shift and strike the coworker. She was injured in the back, shoulder and abdomen and was off work through WSIB for seven weeks.

The employee agreed that it was standard operating procedure to travel in reverse when carrying a vision-obstructing load. Also the plant rules prohibited operation of a forklift with an obstructed view. Further, the employer had recently issued a memorandum telling employees to travel in reverse or have a spotter if the load blocked their view.

Arbitrator Kristin Eliot decided that the employee had breached plant safety rules and legislated safety standards. This was a very serious incident and the harm to the coworker could have been much worse. The employee should have turned around, when he was able, and operated the forklift in reverse.

The arbitrator therefore upheld the five-day suspension.

This case is another in a line of cases demonstrating that courts and labour arbitrators take safety violations very seriously and are prepared to uphold strong discipline against employees who breach safety rules.

Belden (CDT) Canada Inc. and USWA, 2011 CarswellOnt 15970.

A mining employee who consumed alcohol and uttered threats on a picket line was not properly dismissed, as his threats were “little more than the frustrations of a troubled man who was under a great deal of personal, emotional and financial stress”, an Ontario arbitrator has held.

The employee had begun to drink alcohol upon his arrival at the picket line at 1:00 am. He made a comment to a plant security officer to the effect that he was losing his house and could not find a job and that “someone will be hurt when the smelter shows signs of smoke”. Another security officer heard the employee say that he was losing his wife, daughter and house and that he should come back and shoot everyone. The employee was given a taxi chit and sent home. Shortly afterwards, the employer dismissed him.

The arbitrator heard evidence that the grievor’s personal circumstances were very difficult: he had suffered a serous head injury a few months earlier that could have been fatal; he was having trouble sleeping and was taking medication for it; he had been drinking regularly since the incident; he was under financial stress; he and his wife were having marital problems; and shortly after his dismissal, he tried to commit suicide and was hospitalized for five days. He was under the care of a psychiatrist and treated for depression, anxiety and suicidal inclinations. At the time of the hearing, he was separated from his wife.

Arbitrator Wes Rayner noted that the “trend is now to treat threats of physical violence more seriously”. However, the employee’s picket line threats were “unfocussed” and not directed at any particular person. His statement about “shooting everyone” was the most troublesome but was said in the context of his concern about losing his wife, daughter and home and when he was most likely intoxicated from drugs and alcohol. Dismissal was therefore an excessive response.

The arbitrator therefore reinstated the employee, but on condition that he first be assessed by a medical practitioner, mutually acceptable to the employee and the company, as to whether he was fit to return to work. He must also provide a clear drug and alcohol test.

This decision could be read as a departure from a number of other recent post-Bill 168 decisions, a number of which have been discussed on occupationalhealthandsafety.com, in which courts and arbitrators upheld the dismissal of employees who made threats of violence. In this case, the employee’s difficult personal circumstances clearly made an impact on the arbitrator and appear to have convinced him that the employee was unlikely to reoffend.

Vale Canada Limited v. USWA, 2012 CanLII 51445 (Ontario Arbitrator)

An Ontario arbitrator has held, in dismissing a union grievance, that it would be illegal for an employer to delegate authority over safety to the joint health and safety committee.

The employer had introduced a rule requiring employees to wear a chin strap attached to safety headgear.  It is clear that employees did not like the chin strap. The union challenged the rule under the collective agreement, which stated:

“The Company must take all reasonable precautions for the safety and health of its employees during their hours of work.  All protective equipment prescribed by the Joint Health and Safety Committee, and first aid kits, must be provided by the Company.”

The union argued that that clause prohibited the employer from requiring the use of any protective equipment that had not been approved by the committee.

The arbitrator stated

“Having found that s. 25 of OSHA empowers, and indeed requires, the employer to consider, and where reasonably necessary, mandate the use of personal protective equipment above and beyond that prescribed, can the employer delegate that responsibility to another body (in this case the JHSC)?  In my mind, it clearly cannot . . . I do not believe that the employer can avoid its legal obligation, even when acting in good faith, to take every precaution reasonable in the circumstances for the protection of a worker.  Accordingly, even if I were to find (as the union argues) that the employer gave up the right to unilaterally prescribe PPE in the 1997 negotiations, I am of the view that its actions in that regard would be of no force and effect in the face of a statute which imposes the obligation set out in s. 25(2)(h) of OSHA.”

The arbitrator noted that if the union’s argument succeeded, the employer could be prosecuted for a violation of the Occupational Health and Safety Act over which it had no control.

Employers with policies or agreements that could be read to delegate some of the employer’s responsibility for safety to employees or a union, should review those policies or agreements in light of this decision.

Gerdau Ameristeel (Whitby Plant) v United Steelworkers, Local 6571, 2012 CanLII 41114 (ON LA)

This post follows a previous post of November, 2011, discussing the trial decision in R. v. XI Technologies Inc., 2011 ABPC 313.  That case involved a tragic incident at a company’s off-site Customer Appreciation Party during Stampede Week in 2007. The event, held at a hotel, included a “calf roping machine” activity that was suggested by the party planner retained for the event. A young software developer who was helping to operate the machine was struck in the head by a steel lever and later died from the injuries.

The employer faced two charges under the Alberta Occupational Health and Safety Act for failing to ensure, as far as it was reasonably practicable to do so, the health and safety of the worker and for failing to ensure that all equipment used at the work site would safely perform the function for which it was intended or designed.

The trial judge found the employer “not guilty” of the charges because it had raised a successful due diligence defence. The Crown appealed.

In his Reasons for Judgment on the appeal, the Alberta Court of Queen’s Bench judge held that while the trial judge correctly articulated the test for due diligence, including the fact that the analysis required an examination of foreseeability, in applying the evidence to the applicable tests, the trial judge made palpable and overriding errors in relation to her verdicts on both charges. The appeal judge allowed the appeal on both counts and entered convictions against the employer.

As to the ”general duty” charge, the appeal judge disagreed with the trial judge who concluded that the accident was not foreseeable. He instead found that the evidence “clearly shows that the potential danger of being struck by the lever upon premature release while reaching into the machine was a ‘reasonable prospect’”. He stated that the question is not whether the employer could foresee the accident happening in the way that it did happen, but whether a reasonable person would have foreseen the potential source of danger. He concluded that it was not the fact that the calf roping machine was operating improperly which attracted liability but, rather, it was the decision of the employer to allow its use to continue at the party once the potential danger associated with the method of loading the calf was known. The appeal judge concluded that a reasonable employer would have placed the calf roping machine off to the side and hung an “out of order” sign on it.

As to the second count regarding the alleged failure of the employer to ensure that the calf roping machine would safely perform the function for which it was intended or designed, the appeal judge disagreed with the trial judge’s conclusion that the company did all that it could do to ensure that the equipment would safely perform its function, having made clear its expectation that the professional event planner would arrange for only safe activities and the company depended on the planner’s expertise to provide only safe entertainment activities for its customers. The appeal judge did not have sympathy for the trial judge’s distinction between the circumstances of the employer in this case - a small family owned Technology Company – as compared to “the larger industrial enterprises typically before the courts as a result of industrial accidents.” Instead, the appeal judge stated that any reliance that the employer had placed upon the party planners became unrealistic once the issues with the lever were noted. As well, he held that a reasonable employer would have ensured that instructions and a demonstration on how to properly use the equipment were received to ensure that the employees were using the calf roping machine in a correct manner rather than handing an unfamiliar machine over to its untrained employees to operate.

This decision following appeal reinforces the high onus placed on employers by occupational health and safety legislation to reasonably ensure a safe and healthy working environment, including the requirement for proactive conduct on the part of the employer when hosting parties or client events, even at locations away from the employer’s workplace, which involve activities outside of the course and scope of the employer’s usual operations.

Alberta v. XI Technologies Inc., 2012 ABQB 549 (CanLII)

A British Columbia arbitrator has held that an employer violated its collective agreement by banning the wearing of “Toning Footwear” in its workplace.

An employee had bought a pair of “Skechers Shape-ups”, which the arbitrator described as having a “rounded or wedged sole . . . designed to change the way a person walks . . . The claim is the result will be toned muscles in the legs, thighs, buttocks and abdomen, weight loss and improved posture . . .”

The employer, which operates a resort, had issued a policy prohibiting the wearing of shoes with a curved platform sole at work because they are unsafe, stating a concern that the sole can cause instability and a potential rollover of the ankle, and noting that there had been several lawsuits in the United States involving toning shoes.

The union challenged the policy under an article in the collective agreement which provided that “Comfortable shoes will be worn which will also complement the attire worn.”

The arbitrator decided that the employer was limiting employees’ personal footwear choices and had not undertaken a thorough risk assessment.  The employer did not have a reasonable basis to conclude that this type of shoe was inappropriate for use at work by all employees in all departments.

The arbitrator ordered that the policy was inoperative, but gave the employer more than four months to undertake a thorough look at toning shoes and determine if that type of shoe was a hazard for any groups of employees or area of the workplace.

While this decision is based on the specific wording of the collective agreement in question, it demonstrates how unionized employers’ safety rules can be challenged when they limit employee freedom but are not clearly supported by evidence.

UNITE HERE, Local 40 v Harrison Hot Springs Resort & Spa, 2012 CanLII 51820 (BC LA)

The Ontario Divisional Court has upheld an arbitrator’s decision that a collective agreement provision requiring the employer – two Ontario government ministries – to take reasonable safety precautions could not be used to award damages for occupational diseases.

The collective agreement provision stated:

“The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees.”

The union filed approximately 235 grievances between 1991 and 2008 against the Ministry of Community and Correctional Services and the Ministry of Children and Youth Services  alleging that exposure to second-hand smoke, particularly in correctional facilities, violated the collective agreement provision and entitled the employees to damages.

The arbitrator decided, and the court agreed, that subsection 26(2) of the Ontario Workplace Safety and Insurance Act, which provides that entitlement to benefits from the Workplace Safety and Insurance Board “is in lieu of all rights of action . . . against the worker’s employer . . . for or by reason of an accident happening to the worker or an occupational disease contracted by the worker while in the employment of the employer”, barred a claim for damages under the collective agreement for an occupational disease – here, health issues from exposure to second-hand smoke.

The end result was that the collective agreement safety provision required the employer to take reasonable safety precautions, but employees could not get damages under the collective agreement for a breach of that clause that resulted in an occupational disease.  As such, the union’s claim for damages was dismissed.

This case demonstrates that employees whose employer is registered with the Workplace Safety and Insurance Board and who claim to have suffered an occupational disease, must claim damages from the WSIB and not from the employer under a collective agreement.

OPSEU v. Ontario et al, 2012 ONSC 2348 (CanLII)

A recent Ontario Labour Relations Board decision suggests that employers’ appeals of Ministry of Labour compliance orders should not proceed while Occupational Health and Safety Act charges are outstanding.

The case arises from the Christmas Eve, 2009 scaffold collapse which resulted in the death of four workers. We recently reported on the fines against Metron Construction, the employer, and its director.  The Ministry of Labour has also charged Swing N’ Scaff Inc., the supplier of the scaffold that failed, under the Occupational Health and Safety Act.  The charges are outstanding.

Swing N’ Scaff appealed Ministry of Labour compliance orders against it after the accident.  The Ministry of Labour’s counsel advised the OLRB that the compliance order appeal raised issues that were also raised in the prosecution.

The Ministry of Labour argued that the compliance order appeal at the OLRB should be stayed while the charges remained outstanding, in order:

“(a) to ensure that the appeal process does not hinder or delay the prosecutions; (b) to ensure that the applicant and the director are not put into a position in which they provide prejudicial information to the Ministry during the appeal process that may impact upon their right to make full answer and defence at their trial; (c) to ensure that potential trial witnesses are not examined or cross-examined on material issues at the appeal hearing before the trial takes place; (d) to allow the Vice-Chair the potential benefit of court rulings concerning issues about suspended scaffolds, and to prevent the possibility of rulings from a Vice-Chair on matters that may arise before the court in the trial; (e) because the applicant is not represented by counsel in these appeals but is represented at trial; and (f) to ensure that inconsistent judgments on the issues in dispute are not rendered.”

The OLRB gave Swing N’ Staff time to file submissions on the issue. In a decision dated September 5, 2012, the OLRB decided:

“For the reasons identified by counsel for the Ministry that are described at paragraph six [quoted above] of my previous decision, I am of the view that it is appropriate to adjourn these proceedings.  The reasons underlying the adjournment request are compelling, and the applicant has not written to oppose the request.”

Employers faced with workplace accidents and Ministry compliance orders that could result in charges, should take note of this decision.  Although a failure to appeal compliance orders could be argued to be an admission of a safety violation, proceeding with the appeal could jeopardize the employer’s position in the related Occupational Health and Safety Act charges.  Advice from a health and safety lawyer is recommended in these complex situations.

Swing N Scaff Inc. v. James, 2012 CanLII 51106 (ON LRB) (September 5, 2012, and Swing N Scaff Inc v James, 2012 CanLII 47333 (ON LRB) (August 10, 2012)

Employers faced with costly Ministry of Labour compliance orders, that have not been issued to competitors, are often concerned that the orders would put them at competitive disadvantage.

In a recent decision, the Ontario Labour Relations Board has rejected an employer’s argument that a Ministry ergonomist’s order should be suspended because of competitive disadvantage.

The Ministry ergonomist accompanied a Steam Whistle Brewing driver on a delivery route and observed him unloading product, including lowering a 50 kg keg down a flight of stairs, walking backwards and partially supporting the key with his thighs.

The ergonomist issued a number of compliance orders to the employer that it appears to have believed would hamper its ability to deliver product efficiently.

Steam Whistle argued that the compliance orders would put it at competitive disadvantage compared with other craft breweries who were not subject to similar compliance orders. 

The OLRB stated,

“To my mind, the question of competitive disadvantage ought not to be a factor in assessing prejudice for the purpose of a suspension request.  In almost every situation in which an Inspector makes an Order under the Act, the recipient of that Order will be in the position to assert that one of its competitors is now more advantaged than it, and therefore has the benefit of a competitive advantage.  Accordingly, if competitive disadvantage were to be a significant factor in a suspension request application, every Order made by an Inspector would be subject to suspension as a matter of course.  In any event, it has not been asserted by Steam Whistle that the cost of complying with the Orders is so significant that it would make a meaningful difference in its ability to compete with its competitors.”

The moral of this case is likely that employers should take proactive steps to avoid issues arising that could lead to costly Ministry compliance orders. The “competitive disadvantage” argument, without more, will not succeed.

Johnson v Steam Whistle Brewing, 2012 CanLII 47332 (ON LRB)

A recent decision of the Ontario Court of Justice indicates that courts are clamping down on drivers accused of using mobile devices while driving.

Justice of the Peace Dechert noted that other drivers – who have apparently opted not to testify but simply to argue that the prosecutor has not proven the charge – have argued that they could have been holding a toy, a flashlight or garage door opener that looks like a cell phone but is not.

J.P. Dechert quoted Madam Justice Ready’s statement, in the case of R. v. Gill, [2012] O.J. No. 2511 (Ont. C.J.) that, “Mere suggestions as they were put to the justice of the peace, without something more concrete, with an air of reality [to] them, cannot lead to reasonable doubt.”

In the case before J.P. Dechert, a police officer testified that he saw the driver holding what appeared to be a cell phone to his left ear as the driver’s lips were moving, and there was a black cord running from the device down to the dash area.

The driver argued that because the police officer made no notation that he had confirmed that the device was a cell phone and had no recollection of seeing the device up close, the prosecutor had not proven that the device was indeed a cell phone, so the charge should be dismissed. 

Justice of the Peace Dechert decided that he could draw a “reasonable inference” that the device was a cell phone, given that the officer saw a black device being held to the driver’s left ear and observed the driver’s lips moving, that there was a black cable running from the device to the dash, and that there was no other person in the vehicle to whom the driver could have been speaking.

Employers should take note of the court’s rejection of drivers’ arguments in these mobile device cases, and should consider, as part of their occupational health and safety program, including a clear requirement that employees not use handheld mobile devices while driving on company business.

R. v. Petrovic, 2012 ONCJ 562 (CanLII)

In a decision which suggests that fire departments faced with emergencies ought not to be judged too severely with hindsight under occupational health and safety laws, an Ontario fire department has been found not guilty of failing to activate an “accountability system” to track firefighters entering a burning structure.

The charges arose when one firefighter’s self-contained breathing apparatus failed while he was in the building.  He substantially recovered after the incident.

In a previous post in March 2012, we reported on how two of the three charges against The Meaford and District Fire Department had been dismissed on a motion for a directed verdict of acquittal, similar to a non-suit.

The particulars – the specific factual allegations – of the remaining charge alleged that the fire department “failed to take the reasonable precaution of activating an accountability system to track firefighters entering a burning structure”.  An accountability system tracks – often by physically displaying information on an “accountability board” – exactly which firefighters are on scene and what they are doing.

Although the court found that some of the fire department’s own ”Standard Operating Guidelines” were not fully followed, the particulars of the charge did not allege that the SOGs were not followed.  Further, the particulars did not allege that the accountability system used was not appropriate.  Rather, the particulars alleged only that an accountability system was not “activated”.  The court stated that the Crown must prove the particulars alleged, not some other alleged violation.

The court found that an accountability system had, in fact, been “activated” in that, among other things, two firefighters told the Deputy Chief that they intended to enter the buidling; another firefighter made a request for a thermal imaging camera; and another firefighter (who was in the second vehicle to arrive on site) acted as an accountability officer and retrieved the accountability board.

This case demonstrates that when the Ministry of Labour lays charges under the Occupational Health and Safety Act, it must prove not only a violation of the named section of the OHSA or regulations, but it also must prove the specific particulars alleged.  Here, the Crown had not approved a failure to “activate” an accountability system.  The charge was, therefore, dismissed.

R. v. The Meaford and District Fire Department, 2012 ONCJ 573 (CanLII)

In an unusual case, a psychiatrist has decided to disclose, to an employee’s employer and the police, a threat made by the employee against the employer in a confidential psychiatric treatment session.  And an arbitrator has held that the employer was entitled to rely on that disclosure in deciding to dismiss the employee.

The employee was a “residential counsellor” for an organization that operated group homes for persons with “intellectual disabilities or mental health issues.”

A psychiatrist treating the employee decided that she was obligated to breach confidentiality and report to the police that, during a session with the employee, he had made statements that she interpreted as a threat that he might do something serious to harm some members of senior management of his employer.

The arbitrator hearing the employee’s dismissal grievance decided that it made no difference that the employee made the threat “in the context of a therapeutic relationship with someone he thought was bound by strict rules of confidentiality”.  This was not a criminal case involving the Canadian Charter of Rights and Freedoms. The employee “said what he said”, and it continued to have an impact on the feelings and emotions of some of the employee’s immediate supervisors.  The employer was entitled to rely on the threat in disciplining the employee.

However, the arbitrator held that the employer did not have just cause to dismiss the employee. His threat was not made directly to the employer, but rather was made in a therapeutic session, as a “cry for help”.  Further, an assessment of the employee found that he was not a current threat and he was able to return to work.  However, the arbitrator imposed strict reinstatement terms on the employee, including that he continue taking certain medications, attend certain treatment sessions, and that the employee authorize his therapist to report whether the employee is attending treatment sessions and making good faith efforts to participate in the therapy.

Canadian Union of Public Employees, Local 2330 v Highland Community Residential Services, 2012 CanLII 51837

Although “officially induced error” – being misled by authorities – is a defence to many types of charges including those under the Occupational Health and Safety Act, it is rarely used successfully like it was in a recent case.

While not an occupational health and safety case, the decision will be of interest to safety professionals and employers.

The defendant was under a Prohibition Order barring him from driving any “motor vehicle” in Canada for a period of 12 months.  While operating an “E-bike”, an electric bicycle, he was stopped by police.  He was charged with breaching his Prohibition Order. The court accepted his testimony that he had contacted various police forces to ask whether operating the E-bike would violate his Prohibition Order and was told by a Toronto police officer that it would not.  The court found that the police officer’s advice was in error: in fact, the operation of the E-bike did violate the Prohibition Order.

The court stated that in order to establish the defence of officially induced error, a defendant must prove that:

-the error was one of law or mixed fact and law – not of fact only

-the defendant actually considered the legal consequences of his actions (he did not simply assume that his conduct was legal)

-the defendant obtained advice from an appropriate public official

-the public official’s advice was reasonable

-the advice was erroneous

-the defendant relied on the advice

Here, the defendant had satisfied all of these factors.  The error was one of law (whether operating the E-bike would violate his Prohibition Order); the defendant had thought about whether it was legal for him to operate the E-bike while under the Prohibition Order; he obtained advice from a police officer, an appropriate public official; the police officer’s advice was reasonable, given that E-bikes are a relatively new phenomenon; the advice was erroneous; and the defendant relied on the advice when he set out for his bike ride.

Although the officially induced error doctrine is rarely applied, employers should keep it in mind when seeking advice from Ministry of Labour inspectors.  If an employer seeks advice from an inspector regarding the Occupational Health and Safety Act or regulations, reasonably relies on that advice, and the advice turns out to be incorrect, the employer – if charged – may be able to raise the defence of officially induced error.  For that reason, employers should carefully document all such advice received from government safety inspectors.

R. v. Kulbacki, 2012 ONCJ 532 (CanLII)

In an unusual development, a director of a medium-sized company has been personally found guilty and fined under the Occupational Health and Safety Act.  The company’s Internet site states that its field personnel include a dozen full time project superintendents, suggesting a medium-sized company.  Most directors fined in the past have been in a hands on role with a small company.

In 2008, a worker fell from a cement pier while dismantling a guardrail system in Field, Ont. The worker suffered head and leg injuries, and was sent to hospital.

Bélanger Construction (1981) Inc. and R.M. Bélanger Limited were found guilty of a total of four charges under the Occupational Health and Safety Act relating to fall protection, and were fined $290,000 in total plus the 25% Victim Fine Surcharge.

The companies’ director, Ronald Bélanger, was fined $10,000 in relation to the same incident plus the Victim Fine Surcharge. He was found to have failed as a director to ensure that both companies complied with the provisions of the Occupational Health and Safety Act and its regulations.

The Ministry of Labour’s press release states that the court found that the worker was not protected by fall protection of any kind, and that three other workers at the construction project were similarly unprotected.  The press release says that there was a lack of equipment for each worker on the job, as well as a lack of proper care and inspection of existing safety equipment. The court also found that the supervisor on site was unqualified.

Company presidents are at risk of charges and fines under the Occupational Health and Safety Act.  This is another example.

A company president, who was also the worker’s supervisor, has been personally fined $10,000.00 in relation to the worker’s death.

According to the Ontario Ministry of Labour’s press release, the worker was replacing a tire on an excavator at a customer’s workplace in Erin. The worker used two jacks to lift the rear of the excavator, with at least one jack on a wooden block. There were no other stands supporting the vehicle. While the worker was under the excavator, it tipped off the jacks, fatally crushing the worker.

Holmes Tire Inc., a commercial tire supplier and the worker’s employer, was also fined $75,000.

Both the employer and the president/supervisor pleaded guilty to failing to ensure that the excavator was securely and solidly blocked to prevent it from moving or falling on the worker.

An Ontario appeal court has decided that any “holding” of a cell phone is illegal under Ontario’s relatively new cell phone driving law – even when the driver is not using the phone, and even when the phone is not operable.

A police officer observed a driver glancing down and back up while stopped in her vehicle at a traffic light.  It appeared to the officer that the driver was punching numbers on her cell phone but he did not actually observe that.  He knocked on the window and pulled her over.  The driver testified in court that her cell phone had fallen from the seat to the floor, and she had picked it up when stopped at the light.  She said that she did not use the cell phone or intend to use it; she claimed that she did not even know how to send text messages from the phone.

Section 78 of the Ontario Highway Traffic Act, Ontario’s relatively-new cell phone driving law, states:

“78.1  (1)  No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages.”

The appeal judge, Justice Nakatsuru of the Ontario Court of Justice, decided that any “holding” of the cell phone was illegal while driving, even if the person was not using the phone.  However, the mere “touching” of the phone – for instance, to pass it to a passenger – was not “holding” . “There must be some sustained physical holding of the device in order to meet the definition found within” the section.  A momentary handling is not enough.

In this case, because the trial justice had accepted the driver’s testimony that she had simply picked up the cell phone when it fell to the floor, the driver was found not guilty of the charge.

Lastly, the appeal judge decided that in order for a driver to be found guilty, the cell phone need not be operable.  Even if the device was inoperable or turned off, any “holding” of the device is illegal.  To decide otherwise would make it very difficult for the police to ever charge a driver under the section.

Employers should review their mobile devices policies in light of this decision.  Given the decision, employers may consider taking a strict “no holding a cell phone while driving” approach.

R. v. Kazemi, 2012 ONCJ 383 (CanLII)

This post follows a previous post of June 22, 2012, discussing the case of an independent contractor who had been working amongst a group of other parties on the demolition of a few buildings in downtown Nipawin, Saskatchewan when he snagged a gas riser with his backhoe. This led to the line being pulled from the main which in turn caused gas to seep into through the ground and pool in the basement of a nearby butcher shop. Shortly thereafter the gas was ignited by a piece of machinery in the basement and an explosion occurred killing two people and seriously injuring five others. The contractor was found guilty of two Occupational Health and Safety Act violations. Following a sentencing hearing, the Saskatchewan Provincial Court fined the contractor $28,000 total in fines and surcharges.

The Court held that the “Kienapple” principle, which prohibits multiple convictions for the same act, did not apply because there was more than one wrongful act in this instance. Had the “Kienapple” principle applied the Court would have stayed one of the counts. In coming to its conclusion the Court found that there was an additional element in one offence that was not contained in the other. The Court characterized the offence under count 1 as involving a “lack of a physical act of hand digging to expose a riser,” whereas count 2 dealt with “doing the complete undertaking, including the digging of the gas line, in an inappropriate fashion” (emphasis added).

In this instance counsel disagreed over which sentencing provisions in the Act applied. Specifically at issue was whether the Court had made a causal link between the actions of the contractor and the death and serious injury that occurred. If it had, the maximum penalty under the Act was $300,000. In the absence of a causal link the maximum penalty under the Act was $10,000 for a first offence. The Court found that it was “abundantly clear” that there was a causal link between each count and the corresponding loss of life and serious injury that occurred; therefore the maximum penalty that the contractor was facing was $300,000.

In assessing the appropriate sentence for the contractor in this case, the Court affirmed that the primary objective of these types of offences is to protect employees and the general public. Following previous jurisprudence, the Court opined that such objectives are best achieved by focusing on general deterrence as the main sentencing principle. The Court also acknowledged other sentencing factors that it would apply. Notably, of these factors, the size and sophistication of the contractor’s business was taken into consideration by the Court. The Court noted that the contractor’s only direct “employee” was the contractor himself; he occasionally brought other individuals in for a job, as he did in this case. The Court described the business as a “mom and pop” operation, noting that the contractor’s primary occupation was farming. The Court was concerned that a “significant fine would essentially wipe out the business”.

The Court also found the fact that the contract resulted in little profit to the contractor had no relevance in sentencing. Aggravating factors weighing against the contractor included the inherent risk and danger involved in the operation, as well as the contractor’s high degree of fault. In the Court’s view, there was a “distinct lack of care in conducting the entire operation” and a “general lack of supervision”.

The Crown sought a fine in the range of $35,000 and the contractor’s position was that a fine of $1,000 or $2,000 would be appropriate. After considering the factors outlined above, among others, the Court found that a global fine of $20,000 plus a surcharge of forty percent was appropriate in the circumstances. The Court was presented with prior jurisprudence that outlined a range of fines from $6,000 to $35,000, which places this case in the average to higher end of the spectrum.

R. v Riemer, 2012 SKPC 119 (CanLII)

Can an employer be convicted and fined under the Occupational Health and Safety Act for an accident that resulted in the death of a non-employee?  A recent case suggests that the answer is “yes”.

The Ottawa Catholic District School Board has been fined $275,000 under the Ontario Occupational Health and Safety Act after a student died from an explosion in a school classroom.

Students were making barbeques out of steel barrels. A student was cutting a barrel with a hand grinder, and the barrel exploded. Tragically, the student was killed.  The Ministry of Labour investigation found that the barrel had been washed out with a flammable cleaner that produced vapours which were ignited by a spark from the grinder.

The school board pleaded guilty to failing, as an employer, to provide information, instruction and supervision to the teacher – note, not the student – concerning safe work practices and recognition of the hazards associated with the class project.

Although this case involved a guilty plea, and thus did not result in detailed reasons from the court, the case shows that employers can be liable even where a non-employee was injured or killed, if the Occupational Health and Safety Act is otherwise breached.  Here, the employer’s breach was a failure to properly train the teacher – an employee of the school board – on the hazards associated with the barbecue project.  It did not matter that a non-employee was killed; the school still violated the Act, and the amount of the fine was clearly related to the severity of the harm to the non-employee – the tragic death of a student.

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

An arbitrator has upheld the dismissal of a unionized employee where the risk of him committing another violent act outweighed his hopes of being rehabilitated.

A fellow employee had asked the grievor to switch machines at the plant, which produced exhaust systems.  The grievor refused.  The work refusal was reported.  While the fellow employee had a discussion with another machine operator about 20 feet away from the grievor, the grievor picked up a metal pipe and threw it in the direction of those employees.  The pipe hit the concrete in front of the employees.  The grievor was called to the office of a supervisor where he continued to be aggressive.  Later that same day, another employee told the company that the grievor had assaulted him the previous day; the grievor admitted to striking that employee with an open hand in the ribs but said he did not do so in anger.  Also on that date, the company learned that the grievor had failed to complete an anger management counselling program, which he agreed to attend after a previous workplace incident.

Arbitrator Owen Gray stated that “the central question will be whether ‘the insubordinate or violent conduct of the employee was such as to make it improbable that he would be able to function effectively in the plant again.’”  He referred to Bill 168 which added workplace violence provisions to the Ontario Occupational Health and Safety Act.

The arbitrator stated that although the risk of injury from the pipe-throwing incident was not great, no injuries ensued; however, the grievor’s conduct, which was intended to intimidate rather than injure, was of a sort that creates a fear that angering him could lead to further and perhaps greater violence.  “The implied threat of violence is the most concerning feature of this aspect of the grievor’s conduct.”

The grievor was not a long-service employee, having just over two years’ service.  He had made no effort to apologize or express remorse, even at the hearing.  He could not explain his aggressive approaches to his supervisor, and did not provide any evidence that he understood that his conduct was wrong.

The arbitrator concluded that hope of reform was not enough.  The arbitrator was not persuaded that the risk of a similar or more serious incident was sufficiently low that the grievor’s co-workers, supervisors and employers should be exposed to that risk.  The grievance was therefore dismissed.

This is another decision in a line of arbitral decisions taking a hard line – a risk-averse approach – against workplace violence.  The interesting aspect of this decision is that the arbitrator looked to the grievor to prove, as a condition of being reinstated, that there was no risk of a similar violent behaviour in the future.  Where the grievor could not do so, his dismissal was upheld.

Walker Exhausts v. USW (Local 2894), 2012 CanLII 42290 (Ontario Labour Arbitrator)

A nurse who refused a work assignment, then claimed that her supervisor had suspended her and was “picking” on and excessively monitoring her was not the victim of a reprisal under the Ontario Occupational Health and Safety Act, the Ontario Labour Relations Board has decided.

The nurse, who regularly worked in a Neurology Unit at a hospital, was assigned for one shift in the Respirology Unit.  She stated that she had never received orientation for that unit, nor had she ever worked there.  She refused the assignment, stating that her lack of familiarity would put the lives of patients, and her nursing license, at risk. The employer suspended her for her refusal.  She then filed a complaint with the OLRB alleging that her suspension was a safety-reprisal.

The OLRB decided that the nurse had not made any allegations that her suspension was a safety reprisal; she had not even alleged that the hospital’s actions resulted from her compliance with or seeking enforcement of the Occupational Health and Safety Act.  Her safety-reprisal complaint was therefore dismissed.

This decision is another in a line of OLRB decisions that the safety-reprisal provisions of the Occupational Health and Safety Act are intended to deal only with safety reprisals, not other workplace disputes.

Brown v. William Osler Health Centre, 2012 CanLII 38163 (OLRB)

The Ontario Workplace Safety and Insurance Appeals Tribunal has awarded workers’ compensation benefits to a bus driver who was assaulted by a stranger in a parking lot on a paid break.

The worker  was returning to his bus from his car during his shift when the stranger asked for his car keys and subsequently assaulted him.

The Workplace Safety and Insurance Board had denied benefits to the worker.

The employer argued that the worker had participated in a fight, and WSIB policy denies benefits to workers injured as a result of participating in a fight as they have taken themselves out of the course of employment.  The WSIAT disagreed, finding that the worker did not participate in a fight: the worker and the stranger did not exchange blows, but rather the worker was unilaterally assaulted and made efforts to get away.

Finally, the WSIAT decided that the injury had been sustained in the course of employment.  The accident occurred during fixed working hours and while engaging in an activity  – retrieving his driver’s license and his lunch from his car during paid recovery time – reasonably incidental to employment.

Decision No. 1830/11, 2011 ONWSIAT 2353 (CanLII)

An Ontario arbitrator has upheld the discharge of a “modern day prophet” who stated, “the first element to attack is water – the next is fire” after being told that she was suspended for five days.

The employer had issued the five-day suspension to the employee for carelessly packing defective product.  The employee asked to speak with the plant manager, and then made the water-fire statement.  Her statement had particular poignancy because of a serious flood at the facility approximately one year earlier.

The employer discharged the employee.  The union grieved.  At the arbitration hearing, the employee testified that “there was too much wickedness in the plant” and that the manager’s disciplinary decisions had been wicked and unreasonable.  She stated that she was a religious person and that she believed that bad things happen to wicked people.  She also said that she had no intention of starting any fires and did not intend any threat.  She refused to apologize.

Arbitrator Norman Jesin referred to Bill 168 which added workplace violence provisions to the Ontario Occupational Health and Safety Act.  He decided that the employer had just cause to discharge the employee.  Even if the water-fire statement was not a threat, it was made in a loud and aggressive manner and was an attempt to intimidate the plant manager into reconsidering the five-day suspension.  The arbitrator stated that, “The grievor would have me believe that she is a modern day prophet simply issuing a warning for the benefit” of the plant manager. “But I have no doubt that the comments were designed to scare [the manager] into rescinding the suspension.”

In light of the employee’s disciplinary record (a previous one-day and three-day suspension), and particularly in light of the employee’s failure to show any remorse, the arbitrator upheld the termination.

This decision is part of what appears to be a trend towards arbitrators taking a hard line on threats of violence (see a previous blog post on this issue here).

U.S.W. v. Plastipak Industries Inc., 2012 CarswellOnt 7659 (Ontario Arbitrator)

An Ontario Ministry of Labour inspector has ordered a sleep laboratory to provide personal protective equipment to employees because of the safety risk posed by patients who may be resistant to antibiotics.  And the Ontario Labour Relations Board has rejected the employer’s request to suspend the order.

The MOL inspector issued the order under the “general duty” clause of the Occupational Health and Safety Act after a worker complained about working with patients who were resistant to antibiotics and may have a contagious form of “Methicillin-Resistant Staphyloccoccus Aureus” or MRSA.  The inspector’s order required the employer to ensure that “workers have measures and procedures for the wearing of Personal Protective Equipment . . .”

The employer asked the OLRB to suspend the order pending the employer’s appeal of the order.  It argued that it already had adequate policies in place  – which had been approved by the Ministry of Health – and had provided appropriate training.  The OLRB, in refusing to suspend the order, noted that the employer admitted that MRSA posed a hazard, and the suspension of the order could endanger a worker.

This case demonstrates the broad powers of MOL inspectors to order employers to take positive steps to ensure the safety of workers, and how workers’ safety concerns that are not addressed internally can lead to MOL visits and orders.

Accqcorp v. Matthie, 2012 CanLII 38160 (OLRB)

A construction supervisor was fined $30,000 after pleading guilty to charges under the Occupational Health and Safety Act.

The supervisor admitted to failing to ensure that workers wore fall protection and followed a work procedure for safely cutting and removing concrete from a bridge deck.

The Ministry of Labour, in its press release, states that, “While workers were removing concrete panels from the bridge a section of the deck began to collapse. A worker fell and a collapsing concrete panel fell on top of the worker. The worker was killed.”

The Ministry also notes that the supervisor had been provided with a copy of an engineered procedure for safely cutting and removing concrete from the bridge deck in order to maintain its structural integrity and prevent collapse. However, this procedure had been violated. Furthermore, the workers exposed to a fall hazard while dismantling the bridge had not been wearing fall protection.

This is a significant fine against a supervisor personally.  Our recent statistical study of Ontario safety prosecutions found that more than 50% of Occupational Health and Safety Act charges against individuals were withdrawn by the Ministry of Labour.  However, the Ministry is less likely to withdraw charges where, as here, the supervisor had been given the proper procedure and failed to follow it.

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

An Ontario court has held that an employer had no duty to provide safety training to a medical manager on a function – the use of ladders – that was outside of the manager’s job duties.

The case involved the Emergency Medical Services Manager with the Parry Sound Health Centre.  The manager took an extension ladder, leaned the ladder against the outside of a building, then climbed the ladder to check a heating and air conditioning roof unit that was not working properly.  When the manager was 15 or 20 feet up, the ladder gave way and he fell to the ground and was seriously injured.

The Ministry of Labour laid an Occupational Health and Safety Act charge against the employer, alleging a failure to properly train the medical manager on ladder use.

Justice of the Peace Tenant, in the Ontario Court of Justice, held that the employer was not guilty.  He found that ladder use “had nothing to do with” the medical manager’s job; that the manager should not have been using a ladder; that it was not foreseeable that he would use the ladder; that he was not asked by the employer to use the ladder or to repair the roof unit; and that he was aware that the proper procedure was to call a maintenance worker.

The court asked, rhetorically, whether it would be “reasonable and necessary to provide information, instruction and supervision to a maintenance worker on the proper use of a hypodermic syringe?” and whether, if a nurse was injured hanging a piece of art, would the employer be required to train all nurses in the use of hammers?

In closing, the court stated that it does not require “super-human efforts” to raise a due diligence defence to Occupational Health and Safety Act charges, and the Act and regulations do not “mandate or seek to achieve the impossible entirely risk-free work environment”.

R. v. West Parry Sound Health Centre, 2012 CarswellOnt 7703 (Ont. C.J.)

An Ontario labour arbitrator has reinstated a dismissed employee after the employer improperly relied on previous discipline and also failed to prove that the employee had threatened a manager with a shovel.

The employer had violated a previous settlement  by failing to remove previous discipline from the employee’s record and then relying on that discipline in its dismissal of the employee after the shovel incident.  For that reason alone, the termination was “null and void”.

Commenting on the employer’s obligations under the Occupational Health and Safety Act in relation to workplace violence, the arbitrator stated:

“In making this decision, I am cognizant of the company’s obligations under the OHSA. However, even if I had determined the merits of the company’s other reasons for discharge, I would not have found that the company met the onus of demonstrating that the grievor had threatened Mr. A. Bombini with the shovel. There is, therefore, no potential conflict with the company’s obligations under the OHSA in returning the grievor to the workplace.”

Although in this case the arbitrator found that the employee had not threatened with the shovel, this decision demonstrates the importance of following appropriate process and showing care in preparation of the termination letter.  Even a strong dismissal case can be lost where, as here, the employer violated the collective agreement by attempting to rely on outdated or “sunsetted” discipline to bolster its workplace-violence dismissal case.

Labourers’ International Union of North America, Local 506 v Tri-Krete Limited, 2012 CanLII 34143 (ON LA)

An Ontario court has dismissed a charge against an employer of failing to acquaint a worker with a hazard, because the worker’s supervisor knew of the hazard.

The charge was laid against Transgear Manufacturing under section 25(2)(d) of the Ontario Occupational Health and Safety Act, which requires employers to “acquaint a worker or a person in authority over a worker with a hazard  . . .”

Justice of the Peace Ziegler, of the Ontario Court of Justice in Guelph, found that the injured worker’s supervisor, the Maintenance Supervisor, was “in authority” over the injured worker and “not only does [the Maintenance Supervisor] have his ability to repair, maintain, lockout and partially lockout machines under his purview but he is also acquainted  with any hazard in the work . . .”

The court noted that “There is no offence under the Occupational Health and Safety Act which limits acquainting the named hazards to the worker only, it requires that the acquainting of the named hazards be either the worker ‘or a person in authority over the worker’. Therefore I must read in the words ‘or a person in authority over the worker’ after the words ‘acquaint a worker’ in Count 3.”

Interestingly, the court went on to convict Transgear of failing to provide sufficient “information, instruction and supervision” to the worker under section 25(2)(a) of the Occupational Health and Safety Act, apparently because that section dealt only with the awareness of the worker himself, not also of his supervisor.

Ontario (Ministry of Labour) v. Linamar Holdings Inc., 2012 ONCJ 295 (CanLII)

Employees won only 2 of 17 reported Occupational Health and Safety Act reprisal cases decided by the Ontario Labour Relations Board in 2011. Employers won the other 15.

The results appear surprising given that when employers think about safety-reprisal cases, they often think about the reverse onus: to win, the employer must prove that any safety issue raised by the employee had nothing to do with any discipline imposed on the employee.

An additional 27 reprisal complaints were reported settled and withdrawn, for a settlement rate of 61%.

In one of the cases in which the employee succeeded, the employee’s hours were crossed off of a work schedule posted the day after she expressed concern about working in front of a recently installed microwave, saying it was dangerous.  In the other successful case, the employee refused to paint because his mask had deteriorated and the replacement mask had not yet arrived; the employer then gave him a 10-day suspension.

In a number of the 15 reprisal complaints that were dismissed, the complaint had nothing to do with the Occupational Health and Safety Act, and the employee had not even alleged that he or she had made a complaint related to a protected safety right under that Act.

The results suggest that many employees are using the safety-reprisal complaint process to try to deal with workplace issues that are unrelated to safety.  That is, many employees may not understand that in order to advance a safety-reprisal complaint, the employee must have raised a safety issue for which he or she claims to have suffered reprisal.  Employees’ poor success rate on these cases gives employers more leverage to resolve unsubstantiated complaints in a favourable manner, or at least have the complaints transferred to a more appropriate forum.

A Ministry of Labour inspector’s compliance order under the Ontario Occupational Health and Safety Act should not be suspended even though the order only restated the employer’s obligations under the Act, the Ontario Labour Relations Board has ruled. However, the employer may have “lost the battle but won the war” if it can later prove that the inspector’s order was based on an incorrect factual assumption.

The Ministry of Labour inspector had ordered the employer, which operated a restaurant, to provide “permanent platforms . . . with access by a fixed, (a) stair; or (b) access ladder” where frequent access was required to “equipment elevated above or located below floor level”.  The equipment in question was a mezzanine above a freezer.  That order simply restated the language of Regulation 851 under the Occupational Health and Safety Act.

The Ontario Labour Relations Board noted that the inspector had not indicated in writing that frequent access was required to the mezzanine.  In fact, the inspector had not “made a determination” that employees accessed the mezzanine frequently, which determination was required for the employer to be obligated to install the ladder or stairs.

Nevertheless, the OLRB did not suspend the operation of the compliance order, because, “This Board cannot suspend the operation of the Act or its regulations.”  The OLRB essentially left it up to the employer, stating that if the employees were indeed having “frequent access” to the mezzanine, then the employer must provide a stair or access ladder.  The employer, which appealed the compliance order, would have the opportunity to later argue to the OLRB that its employees did not have “frequent access” so that neither a ladder nor stairs were required.

This is Pyrrhic victory for the Ministry of Labour, as it effectively permits the employer to not install a fixed ladder or stair if the employer maintains that, factually, employees do not have “frequent access”.

The lesson for employers is that if you receive a “bald” Ministry of Labour compliance order that only restates the Act or regulations but is based on an incorrect factual assumption by the MOL inspector, the employer may elect to decide that it is already in compliance with the order and does not need to make any costly changes.  Such decisions should be made carefully, though, because if the facts don’t support the employer’s position, the inspector may reattend and write a more specific order or, worse, lay charges for violation of the earlier order.

Moxie’s Grill and Bar v. Thompson

Companies and individuals charged under the Ontario Occupational Health and Safety Act may ask the prosecutor to provide the Ministry of Labour inspector’s criminal record, an Ontario court has ruled.

And the prosecutor, when faced with such a request, must carefully consider it.

The case arose out of a grievance filed by the Ontario Public Service Employees’ Union after a Ministry of Labour prosecutor provided an inspector’s criminal record to a defendant facing Occupational Health and Safety Act charges.  (The Supreme Court of Canada held in 2009 that criminal prosecutors were required to disclose criminal records of police investigators if the record could reasonably impact on the criminal proceedings).  The Ministry of Labour inspector had previously been convicted of assault.  The union filed a policy grievance against the practice of providing inspectors’ criminal records to defence counsel, and argued that defence counsel should be required to bring a special motion to the court for an order requiring the police to produce the criminal record.

The Ontario Divisional Court, on appeal from the Grievance Settlement Board, disagreed with the union.  The court stated that a Ministry of Labour inspector, like a police officer, has the role of “investigator, accuser and witness” and that “there is no reason to think an inspector’s criminal record will have less bearing on the right to make full answer and defence in a regulatory proceeding [such as OHSA charges] than a police officer’s record in a criminal prosecution”.  As such, defence counsel was entitled to request the inspector’s criminal record, and the prosecutor was required to consider the request.  However, the court ordered prosecutors to follow a process including notice to the inspector whose criminal record has been requested.

Ontario v. O.P.S.E.U., 2012 CarswellOnt 6293 (Div. Ct.)

The Ontario Labour Relations Board has held that an employee who was fired two months after injuring her knee at work, was not dismissed for asserting her safety rights under the Ontario Occupational Health and Safety Act.

The employee claimed, in her application to the Ontario Labour Relations Board, that she injured her knee at work in April 2011 and was told by a manager to “walk it off and take it easy over the next few weeks”.   She did not lose any work time.

She asserted in her application that in May 2011 her knee injury worsened and she sought medical assistance, and that during June 2011 her employer starting putting together the paperwork to report the injury to the Workplace Safety and Insurance Board.

The Ontario Labour Relations Board stated:

“There is nothing pleaded by the applicant to even remotely suggest that her loss of employment was the direct result of acting in compliance with, or seeking the enforcement of, the Act or its regulations, or of giving evidence in a proceeding in respect of the enforcement of the Act or its regulations.  As noted by the responding party in its response, the applicant’s only complaint relates to the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, legislation that is separate and distinct from the Act.”

The OLRB thus dismissed the employee’s application without a full hearing.

This decision shows that the fact that an employee had a recent injury will not, on its own, provide the basis for a reprisal complaint under the Occupational Health and Safety Act where the employee is later dismissed.

Shier v Ice River Springs Water Co, 2012 CanLII 22546 (ON LRB)

A labour arbitrator has refused to reinstate a discharged Registered Nurse because of her “subtle” and “insidious” bullying and harassment of Registered Practical Nurses.

In 2010, the Peterborough Regional Health Centre decided to reduce costs by replacing 20% of RNs on the dialysis unit with RPNs who have a narrower scope of practice and earn less money.

The grievor, an RN, then engaged in intimidation and bullying of RPNs in the dialysis unit over a six-week period.  Witnesses testified, for instance, that the grievor would walk by RPNs making shoulder contact with them and say “excuse me”.  She would roll her eyes at RPNs, and stare and flap her hands as RPNs passed her work area.  She would avoid eye contact with RPNs.  The employer terminated her employment.  The union grieved the termination.

The arbitrator stated that:

“The grievor engaged in intimidating and bullying conduct in the workplace during the period September to November, 2010. This conduct consisted of an attitude conveyed to the RPNs that they were not wanted in the Dialysis Unit and could not expect support from the RNs and was conveyed to the RPNs through the grievor’s uncommunicativeness, the rolling of her eyes, and staring . . .

“In this matter the grievor’s actions were extremely subtle, and in that sense were extremely insidious. Bullying and harassment can consist of a single incident, or a series of repeated incidents both of which can have great impact upon the victim of the behaviour. Single discreet incidents however are more easily dealt with in the arbitral context than allegations of subtle behaviours over a period of time because the former gives an arbitrator the ability to evaluate each incident, and to apply the principle of progressive discipline in determining the appropriate penalty, whereas a series of subtle behaviours does not afford the same opportunity.”

Although the arbitrator held that the employer did not have just cause to discharge the grievor, the arbitrator decided not to order that the grievor be reinstated.  Instead, he directed the hospital and union to work out an agreement regarding the grievor’s damages for losing her job.  The primary reason for not reinstating the grievor was that her actions were persistent over a period of time and that she did not accept any responsibility for her actions.  Her actions had at least contributed to the destabilization of an entire department and contributed to the resignation of at least two RPNs.  The arbitrator had no confidence that she would not continue her bullying and harassment if reinstated.

This decision is some comfort to employers who are frustrated by the inability to “prove” bullying and harassment that is done subtly and insidiously.  Where the evidence shows a number of single incidents which, on their own, seem mild, but together add up to an insidious pattern, discharge may be justified.

Peterborough Regional Health Centre v. O.N.A., 2012 CarswellOnt 6388

The Ontario Labour Relations Board has refused to permit a teachers’ union to expand a safety appeal to several schools where the Ministry of Labour inspector had dealt with the issue at only one school.

The inspector had issued an order at one school, requiring the school board to re-inspect the premises for asbestos.  The teachers’ union asserted that the order was “inadequate”.

The teachers’ union appealed the inspector’s order and asked the Ontario Labour Relations Board to require the school board to assess its asbestos-management program at all schools in the board.

The OLRB effectively held that an appeal of an inspector’s order may deal with only the issues already put to the inspector.  The inspector must actually turn his or her mind to the issue and have the opportunity to conduct an inspection, before the union can advance an appeal in respect of that issue. Here, the inspector was involved at only one school, so it was not appropriate to expand the appeal to deal with other schools.

The case is interesting because it indicates that employers can insist that where employees or a union appeal an inspector’s order or refusal to issue an order, the appeal should deal only with issues actually put to the inspector and locations visited by the inspector.

Elementary Teachers’ Federation of Ontario v. Kawartha Pine Ridge District School Board, 2012 CanLII 31549 (O.L.R.B.)

An employee who had been previously disciplined for threatening to bring “ammo” into work, was properly dismissed where shortly afterwards he committed an unsafe act and was repeatedly dishonest.

The “ammo” violence threat had resulted in a previous arbitration award in which the arbitrator reinstated the employee with a 128-day suspension and strict last-chance conditions.  That arbitrator, who found that the employee had lied to the employer in its “ammo” threat investigation, had stated that “it is sensible to make any reinstatement conditional on future good behaviour”.

Five days after being reinstated, the employee committed an unsafe act at work in relation to the use of a “spreader bar”.  He had also walked out of a meeting with company management, and was again dishonest to his employer in the course of its investigation.  The employer fired the employee and the union again grieved the firing.

Ruling on the second dismissal, Arbitrator Peter Chauvin held that the grievor, who did not testify at the hearing, “has not done anything to cause me to believe that he accepts that he did anything wrong in connection with his use of the spreader bar, his dishonest statements to Mr. Hastings, or his insubordination in walking out of the meeting with Mr. Lepine, Mr. White and Mr. Black. The Grievor has clearly not in any way acknowledged this misconduct, and has not shown any remorse or offered any apology for it. Again, and quite to the contrary, the Grievor denied that he engaged in any such misconduct to Mr. Hastings, and chose to not testify at the arbitration hearing. In doing so, he certainly did not acknowledge his misconduct, or show remorse for it, at the arbitration hearing.”

Arbitrator Chauvin also held that it was a “very serious aggravating factor that the Grievor was not open and honest with the Employer at the time of the investigation”, particularly as the previous arbitrator had held that the employee had been dishonest in the employer’s “ammo” investigation.

This decision demonstrates that employers are entitled to demand honesty of employees during workplace investigations, and that repeated dishonesty, whether or not combined with other disciplinary offences, can justify dismissal.

National Steel Car Limited v United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 7135, 2012 CanLII 25292 (ON LA)

An engineer and architect were not guilty of Occupational Health and Safety Act charges where the wall collapsed more than one year after their work was completed.  The Ontario Occupational Health and Safety Act states that “No prosecution under this Act shall be instituted more than one year after the last act or default upon which the prosecution is based.”

In 2003, the City of Guelph erected buildings, in one of its parks, containing washrooms and other facilities.  An engineer and architect were retained.  The project was substantially completed in June 2004 and in November 2005, the engineer sent a letter to the architect’s firm confirming that the structural work was “complete” and “satisfactory”.  In October 2007 the architect sent a letter to the City confirming that the buildings were “suitable for the intended use and occupancy”.

Tragically, in June 2009, a fourteen-year-old student was killed when a concrete block privacy wall in the women’s washroom in the park collapsed on her.

The engineer and architect were charged under section 31(2) of the Ontario Occupational Health and Safety Act which makes it an offence for an architect or professional engineer to provide negligent advice or certification that endangers a worker.

Justice Epstein of the Ontario Court of Justice in Guelph held that, “The last day on which advice which allegedly endangered a worker was provided was years prior to the collapse of the wall.  The fact that the danger may have continued does not serve to extend the limitation period in my view . . . Neither [the architect or engineer] provided any negligent or incompetent advice for years prior to the collapse of the wall. ”

This decision will be of some comfort to engineers and architects who might otherwise be left to worry that years after their work was completed on a project, an accident could lead to charges against them.

The court decided not to dismiss the charges against the City itself because the City had an ongoing duty to ensure that the wall was safe for workers.

R. v. Corporation (City of Guelph), 2012 ONCJ 251 (CanLII)

A worker who carelessly moved a heavy toolbox with a forklift causing it to fall and break was correct to immediately report the incident; however, he refused to submit to a drug and alcohol testing. According to the company’s Drug and Alcohol Policy, a worker may be asked, based on reasonable grounds, to submit to drug and alcohol testing following an incident.

The worker underwent drug and alcohol testing the following day. His test results were diluted and inconclusive. Two days of testing followed. At the lab, the worker’s behaviour was abusive, obnoxious, aggressive and offensive.

The worker acknowledged that he set out to sabotage the test results. The arbitrator had no difficulty in finding that no company should have to tolerate the type of conduct displayed by the worker. The worker destroyed the trust and respect which is essential in an employment relationship. Not only was some discipline warranted for the worker’s carelessness in moving the toolbox, but his insolent and insubordinate behaviour following the incident by refusing immediate testing in addition to his behaviour at the lab justified the termination of his employment. 

Finning (Canada) v International Association of Machinists and Aerospace Workers, Local Lodge 99, 2012 CanLII 12066 (AB GAA), http://canlii.org/en/ab/abgaa/doc/2012/2012canlii12066/2012canlii12066.html

Radar’s Rentals owned a mechanical calf-roping ride and supplied it to XI Technologies Inc. for a company event during the Calgary Stampede. An employee of XI Technologies Inc. was fatally injured while operating the ride and the owners of the equipment and supplies was charged for violating section 2(4) of the Occupational Health and Safety Act.

Section 2(4) of the OH&S Act is a general provision which requires suppliers to comply with the provisions of the OH&S Act, Regulations and Code. The offence alleged was that Radar’s Rentals failed, pursuant to section 12(1)(b) of the Regulations to ensure that equipment they supplied would safely perform the function for which it was intended or designed.

However, section 12(1) of the Regulations specifically imposes duties upon an employer in relation to the equipment. The charge, incorporating as it does the particulars which refer to duties upon employers, does not disclose an offence known to the law against a supplier. The obligation to provide equipment in a safe operating condition is placed upon the supplier under section 2(3) of the OH&S Act. Radar’s Rentals was not, however, charged with violating that provision.

Because the charge was incorrect, the court quashed the charge filed and could not substitute the correct charge. The Crown Prosecutor’s office was out of time to recharge the supplier with violating section 2(3) of the OH&S Act.

R. v 402485 Alberta Ltd. (Radar’s Rentals), 2011 ABPC 91,
http://canlii.org/en/ab/abpc/doc/2011/2011abpc91/2011abpc91.html

An Alberta arbitrator ruled that a company had just cause to immediately terminate the employment of a lead mechanic for a Lockout/Tag Out Policy violation because of the exceptional lengths the company had gone to in order to maintain a high level of safety in the plant.

On the day of the incident, a lead mechanic, with seven years of service with the company, was called to the shrink wrapper area and reported that it was not working and that the trunnion wheel had snapped. As the same problem had occurred previously, the mechanic knew that the gear box had to be replaced. He locked out the machine and replaced the gear box. The mechanic later received a call that the shrink wrapper was still not functioning properly. Rather than following the company’s Lockout/Tag Out Policy, the mechanic returned with a rag to clean the oil off the trunnion wheel. He held the rag on the trunnion wheel intending to clean off the oil while the wheel rotated. A jagged edge on the inside part of the rotating wheel caught the rag and flipped the mechanic’s right hand. His thumb nail was removed on impact. The mechanic immediately reported the incident, a workplace investigation followed and the worker was terminated for cause.

The mechanic claimed that he was wrongfully dismissed. The arbitrator concluded that the mechanic was well-versed on the plant safety policy, as well as the expectations of the company and the consequences for failing to follow the Policy at the time of the incident. Moreover, given his experience and position as a mechanic leader, and bearing in mind the emphasis of the company on the importance of observing safety procedures, the arbitrator found it difficult to understand why the mechanic did not follow the Policy on the day of the incident. A deliberate and conscious decision to ignore the Policy was made and can only be viewed as an act of defiance which undermined the confidence and trust of the company. The arbitrator ruled that the just cause termination was justified.

A key point from this case is that if a company policy is relied on for an employee’s termination, the company must ensure that employees are thoroughly aware of company policies and the consequences that may result from a violation.

Lamb-Weston v United Steelworkers of America (Local Union 6034), 2011 CanLII 82275 (AB GAA),
http://canlii.org/en/ab/abgaa/doc/2011/2011canlii82275/2011canlii82275.html

In some recent cases at the Ontario Labour Relations Board, unions have attempted to use the provisions of the Occupational Health and Safety Act to argue that only the unions’ members can perform certain work.

The latest example is an application brought by the International Brotherhood of Electrical Workers (IBEW) arguing that only its members, licensed electricians, are entitled to insert a certain type of plug into a receptacle.

The IBEW relied on section 182 of the Construction Projects regulation under the OHSA,  which provides that:

“182 (1)  No worker shall connect, maintain or modify electrical equipment or installations unless,

(a) the worker is an electrician certified under the Trades Qualification and Apprenticeship Act; or

(b) the worker is otherwise permitted to connect, maintain or modify electrical equipment or installations under the Trades Qualification and Apprenticeship Act, the Apprenticeship and Certification Act, 1998 or the Technical Standards and Safety Act, 2000.

(2)  A worker who does not meet the requirements of clause (1) (a) or (b) may insert an attachment plug cap on the cord of electrical equipment or an electrical tool into, or remove it from, a convenience receptacle.”

The OLRB upheld an MOL inspector’s decision that the receptacle in question, which was used in solar installations, was a “convenience receptacle” and thus a non-electrician could insert the plug into the receptacle.  No special expertise was required in order to effect the connection; there was even an “audible clicking noise” to alert the worker when the connection had been effected.

One expects that the union in this case made a decision to take the case to the OLRB under the provisions of the OHSA’s Construction Regulations, rather than advance the case by a grievance under the collective agreement.  One also expects that the MOL would prefer that its inspectors not be turned into adjudicators of work-assignment disputes that are presented as safety issues.

Whether or not the practice of advancing work assignment disputes under safety legislation is part of a “trend” is not certain, but construction-industry employers in particular should watch this caselaw with interest.  Stay tuned to occupationalhealthandsafetylaw.com for updates.

IBEW Local 530 v. Gil & Sons Limited: http://www.canlii.org/en/on/onlrb/doc/2012/2012canlii17123/2012canlii17123.html

An Ontario arbitrator has held that an ambulance attendant was entitled to be accommodated by the employer, by permitting him to “ride 3rd” in an ambulance despite a potential but not actual risk to his safety.

The ambulance attendant had been injured when he stumbled on a step at a patient’s location.  A physician medically cleared him to return to work, with the only restriction being that he could not lift more than 40 lbs.  The employee asked to be temporarily accommodated by having him be the third crew member in an ambulance in order to allow “gradual re-integration and maintenance of his ACP paramedic skills”; the employee and employer both agreed that a third crew member is not generally required in an ambulance.

The employer argued that it would be unsafe for the employee to work as a third crew member in an ambulance, due to the fact that the employee had remaining lifting restrictions.  The employer offered to accommodate the employee in “other modified duties” until he was “cleared 100% to return to regular duties”.  The employer referred to its obligation to protect the safety of workers under the Occupational Health and Safety Act.  The employer pointed to the risk of confrontations with “un-cooperative or mentally challenged, or disoriented” patients as one risk that an injured employee would face on ambulance duty.

The arbitrator held that the safety risks identified by the employer were inherent in the work of a paramedic, and that the specific safety risks to the employee were speculative and potential – not actual – safety risks.  The arbitrator held that the employer was required, under the Human Rights Code, to accommodate the grievor by allowing him to “ride 3rd” in the ambulance.

Interestingly, the arbitrator noted that an employee with a disability should be permitted to “assume risk” in order to be accommodated in the workplace.  According to the arbitrator, the employer is not permitted to refuse to accommodate solely because there is some risk to the employee from returning to work.

Brant (Country) v. OPSEU, Local 256, 2102 CarswellOnt 2856

The Supreme Court of Canada will decide whether an employer must have “reasonable cause” to conduct random alcohol testing on unionized employees, or whether an inherently dangerous workplace is sufficient to justify random alcohol testing.

In the case, a unionized Irving Pulp and Paper employee, who occupied a safety sensitive position, was randomly tested for alcohol using a breathalyser.  The test revealed a blood alcohol level of zero. Nevertheless, the union filed a policy grievance challenging the provision of the policy that permitted random alcohol testing “without cause”.

The New Brunswick Court of Appeal decided that Irving’s kraft paper mill was an inherently dangerous workplace, and that Irving did not have to prove that there was an existing alcohol problem in the workplace in order to conduct random alcohol testing.

The union has appealed to the Supreme Court of Canada.  The SCC’s decision will be of interest to employers across Canada. 

The New Brunswick Court of Appeal’s decision may be accessed at: http://canlii.ca/en/nb/nbca/doc/2011/2011nbca58/2011nbca58.html

An Ontario arbitrator has held that a worker was not justified in refusing to work because it was allegedly unsafe to work with his coworker, a lead hand.

The grievor, a saw operator, refused to work with the lead hand on a band saw, a two-person job.  The grievor alleged that the lead hand was unsafe because he had “aggressively grabbed” a casting and pulled it towards the saw on one occasion when the grievor had started to work on the band saw on his own.  The grievor took it upon himself to instead work alone on a saws-all.

The company suggested a number of options for the grievor, including working in another position on the band saw or working with another employee on the band saw, but the grievor refused, saying he did not consider the other employee safe as he lacked sufficient training.  The grievor instead continued to work alone on the saws-all.  The company eventually fired the grievor for insubordination due to his refusal to work on the band saw with the lead hand

The arbitrator decided that the grievor did not have a reasonable belief nor reasonable grounds to believe that working with the lead hand on the band saw was a danger to him.  Therefore, the grievor’s work refusal was not justified under the Ontario Occupational Health and Safety Act.  Although the lead hand’s attitude may have been somewhat aggressive, it was in part explained by the fact that the grievor had gone ahead to do, by himself, what was a two-person job on the band saw.

The arbitrator noted that where, for example, a “deranged person” in the workplace was threatening others or causing harm, a work refusal might be justified under the OHSA. That was not the case here, though.

Lastly, the arbitrator held that the grievor’s persistent refusal to work with the lead hand “for the flimsy reasons he gave” constituted a persistent act of insubordination, and justified discipline but not termination. The arbitrator reinstated the grievor without compensation for lost wages subject to him accepting a one-year “last chance agreement” which provided that if the grievor engaged in any type of horseplay, harassment, disruptive behavior or disrespectful behavior towards other workers, his employment would be terminated.

Haley Industries Ltd. v. U.S.W., Local 4820, 2012 CarswellOnt 3332.

The Ontario Labour Relations Board has held that an employee and employer settled a safety-reprisal complaint, due to the employee’s lawyer’s letter to the OLRB advising that the parties had reached an “agreement in principle”.

The employee had filed a complaint under section 50 of the Ontario Occupational Health and Safety Act alleging that he had suffered reprisal for seeking to enforce his safety rights under the OHSA.

In September 2011, the parties reached an “oral agreement in principle”.  On the same day, the employer’s lawyer sent proposed Minutes of Settlement and a Full and Final Release to the employee’s lawyer and invited “questions or concerns”. The next day, the employee’s lawyer requested changes, and the employer’s lawyer sent him revised Minutes of Settlement the same day. On that day, the employee’s lawyer wrote the Ontario Labour Relations Board to advise that an agreement in principle had been reached.

After numerous discussions between the lawyers, the employee’s lawyer wrote to the OLRB to advise that the employee would not be signing the Minutes of Settlement, and that the lawyer would no longer be representing the employee.  The lawyer’s closing letter to the employee indicated that the parties were “close to settlement”.

At the OLRB, the employee’s new lawyer argued that there was no settlement.  He relied upon section 96(7) of the Labour Relations Act - incorporated into the OHSA by section 50(3) of the OHSA.  Section 96(7) provides that where “the terms of the settlement have been put in writing and signed by the parties or their representatives, the settlement is binding upon the parties . . .”

The OLRB held that there was a binding settlement, due to the lawyer’s letter to the OLRB.  Subsection 50(3) of the OHSA provides only that the OLRB “may” - not “must” – inquire into a safety-reprisal complaint under the OHSA.  As such, the OLRB may dismiss a complaint that has been settled, even where the settlement is not in writing

Winston H. Gregory, http://canlii.ca/t/fqsr7

The Ontario Superior Court of Justice has held that a company did not have just cause to immediately terminate the employment of a supervisor for a lock-out violation and his failure to report the violation.

Polyone Canada Inc. is a manufacturing company that makes plastic pellets in various sizes and colours.  The court found that Polyone had a  strong culture of health and safety.  In particular, the company emphasized its “Cardinal Rules”, which include the requirement that any machinery being worked on must be locked out and tagged by any employee working on the machinery. 

The incident that gave rise to this case involved a line supervisor with 17 years of service with the company.  On the day of the incident, the supervisor was informed that the dicer machine was not working properly.  Preoccupied by frustration with some of his employees, the supervisor went over to the machine to clean it out.  In the presence of some of his employees, the supervisor removed the internal safety screen and reached into the machine, momentarily forgetting that he had not first locked out the machine.  Fortunately, neither the supervisor nor any other employees were injured as a result of the incident, which clearly constituted a breach of the company’s “Cardinal Rules”.  Furthermore, despite being well aware of his obligation to immediately report the incident to management, the supervisor did not do so.  However, the employees who had witnessed the incident were bothered by it and they reported the incident to management later that night.  The company commenced a workplace investigation the next day and terminated the supervisor for just cause approximately one week later, following the completion of its investigation.

The supervisor then launched a wrongful dismissal action, which the company defended on the basis that it had just cause to terminate the supervisor’s employment as a result of his serious breaches of the “Cardinal Rules”.  The court concluded that the supervisor’s failure to lock out the machine was very serious as it could have resulted in signficant harm.  The court went on to state that the supervisor’s failure to report the incident was even more serious, as unenforced safety rules in a workplace where heavy equipment operates present a continuing safety risk.  In addition, the  fact that the employee held a supervisory position aggravated the matter, because the supervisor’s conduct could send a message to employees that the company safety rules were not important. 

However, despite all of these findings, the court found that the supervisor’s conduct did not give rise to just cause for termination.  The court found that in a similar situation which had occurred earlier in the year, an employee had failed to lock out a machine.  The matter was not properly reported and the company did not discipline the employee.  In light of the company’s response to the earlier incident, the court found that the termination of the supervisor’s employment for just cause in this case was disproportionate, despite the admitted seriousness of the supervisor’s actions.  As a result, the court found the supervisor was entitled to 14 months’ reasonable notice.

One of the key points for employers to take away from this case is the critical importance of ensuring that they respond in a consistent manner to all violations of safety rules.

Review a copy of the full decision here:  http://www.canlii.org/en/on/onsc/doc/2011/2011onsc6068/2011onsc6068.pdf

Employers appealing Ontario Ministry of Labour compliance orders under the Occupational Health and Safety Act are entitled to notes made and photographs taken by the MOL inspector during his or her site visits, the Ontario Labour Relations Board has ruled.

Employers charged with offences under the OHSA are used to obtaining full “production” of the MOL’s file; now employers facing compliance orders are entitled to a level of documentary production from the MOL.

The appeal in question deals with whether Dollarama must ensure that workers in the receiving area and handling stocks in the stock room of its stores, wear “safety foot protection”, or whether it was sufficient for Dollarama to require only workers operating a pump jack to wear safety toe caps.

Dollarama appealed the MOL inspector’s compliance order.  Dollarama then asked the OLRB to order the MOL to provide all notes made and photographs taken by the inspector during site visits, so that Dollarama could review and possibly use those notes and photographs to challenge the compliance order.

The MOL opposed the request for the inspector’s notes and photographs, arguing that because the OHSA provides that inspectors are not “compellable” as witnesses, inspectors cannot be compelled to produce their notes.

The OLRB disagreed with with MOL, holding that non-compellability of an inspector as a witness does not mean that the inspector can withhold his or her notes.  Dollarama was entitled to the notes and photographs, as part of Dollarama’s entitlement to pre-hearing production of documents from the MOL.

This interesting decision provides another arrow in the quiver of employers appealing MOL orders.  By requesting – and obtaining – the MOL inspector’s notes and photographs, the employer may be able to show weaknesses in the MOL’s case, thereby strengthening the employer’s argument that the compliance order should be set aside.

Dollarama v. Marcelo, http://canlii.ca/en/on/onlrb/doc/2012/2012canlii12602/2012canlii12602.html

The Ontario Court of Appeal has upheld a jury award of $470,000 in damages, plus a costs award of $150,000, against an employer and a supervisor for the supervisor’s sexual assault of an employee.

The employee, a commissioned salesperson with Deluxe Windows, was sexually assaulted four times by the supervisor, who was also a principal and part owner of the company.  The supervisor was convicted criminally of sexual assault and was jailed.  The employee had started employment with Deluxe Windows 18 months after moving to Canada.

At trial, the employee testified she felt shame and was afraid that she would be targeted again.  She said that she was afraid to leave home and afraid to go shopping without her cell phone; she slept with double locks on her bedroom door, and purchased an alarm system for her home.  She experienced nightmares where the supervisor was chasing her and attacking her children.  She suffered from insomnia and had difficulty getting out of bed in the morning.  She suffered a loss of sexual desire and experiences intermittent suicidal ideations.

The supervisor had argued that the employee’s past experiences, including experiences as a child, “materially contributed” to her current problems, so that the supervisor and employer should not be responsible for damages for all of her current troubles. The jury appears to have rejected that argument.

On appeal, the supervisor argued that the damages award was “grossly disproportionate” and far outside the range of awards in other cases.  The Court of Appeal noted that the jury’s damage award was high and “outside of the generally expected range”.  However, it was not plainly unreasonable or unjust. 

This decision demonstrates that employers can be liable for assaults committed on employees by supervisors, and shows the significant potential damages.  The damage award reinforces the need for employers to implement and enforce workplace violence prevention programs, particularly in light of Ontario’s Bill 168 amendments relating to workplace violence and harassment.

M.B. v. Deluxe Windows of Canada, http://www.canlii.org/en/on/onca/doc/2012/2012onca135/2012onca135.html.

In an unusual case, the Ontario Ministry of Labour has charged a small town’s volunteer fire department with safety offences under the Occupational Health and Safety Act.

The case is of interest because it involves the Ministry of Labour using safety laws to scrutinize, through the courts, the actions of emergency response professionals who are faced with a crisis situation.

The charges arose from a restaurant fire in Meaford in September 2009.  The air supply of one of the firefighters ran out while he was inside the building; another firefighter shared his air supply with him.  They were rescued and substantially recovered from their injuries.

Although the MOL originally laid 6 charges, 3 were withdrawn prior to trial.  The 3 remaining charges, all laid under the “general duty” clause of the OHSA, alleged that the fire department failed to activate an “accountability system to track firefighters entering a burning structure”; failed to maintain effective supervision by establishing a command post where radio transmissions could be heard by the incident commander; and failed to establish a Rapid Intervention Team for the protection of firefighters who may become lost or trapped.

The prosecution called 10 witnesses and then rested its case.  The fire department then asked the court to dismiss all three charges before the Town was required to call its witnesses, on the basis that the Crown’s evidence – even if accepted as true – could not lead to a conviction.

Because all of the charges alleged a breach of the fire department’s “general duty” under the OHSA, and did not refer to any specific regulations under the OHSA, the court relied on “relevant guidelines”: the Guidance for Improving Health & Safety in the Fire Service which was prepared by the Ontario Fire Service Health and Safety Advisory Committee, a body established by the Ontario Minister of Labour under the OHSA.

The court dismissed the charge relating to the location of the command post, holding that, “None of the Crown’s witnesses testified that they believed, in any way, that the incident command was located at an inappropriate location.  No alternate locations were suggested.”  Similarly, the court dismissed the Rapid Intervention Team charge because “all witnesses who were asked about the RIT clearly testified that RITs were eventually set up . . . In this case, the particulars [of the MOL's charge] allege that a RIT was not established.  There is absolutely no evidence that would support this allegation.”

The court did not, however, dismiss the charge which alleged that the fire department failed to set up an accountability system.  The court stated that it was apparent from the Crown’s evidence ”that the Meaford Fire Department’s procedures as set out in [the Standard Operating Guidelines of the Meaford Fire Department] were not followed . . . [I]t is clear to the court that there is certainly some evidence which, if believed, could lead a trier of fact to conclude, beyond a reasonable doubt, that an accountability system was not properly activated . . .” The court permitted the MOL to proceed with that one charge.

Of the original 6 charges, the Ministry of Labour is now left with only one.  It will be interesting to see whether the prosecutor decides to withdraw the remaining charge.  If not, the trial will proceed with the fire department calling its witnesses in defence of the charge that it failed to set up an accountability system.

R. v. The Meaford and District Fire Department: http://canlii.ca/en/on/oncj/doc/2012/2012oncj113/2012oncj113.html

In a decision that may cause concern to Ontario municipalities, Ontario’s privacy commissioner has ordered the City of Woodstock to turn over, to a private citizen, a workplace violence and harassment reporting form written by a City employee.  The form related to an incident that involved the private citizen, referred to him by name, and contained information about his personal opinions.  The citizen filed a request for the form under Ontario’s Municipal Freedom of Information and Protection of Privacy Act.

The privacy commissioner also ordered the City to give the citizen e-mail correspondence relating to the incident.

According to the decision, the workplace violence reporting form and e-mail correspondence provide a “narrative of the incident” along with the employee’s “recommendation about the suggested course of action”.

The City objected to providing the documents to the citizen, arguing that the Act allows municipalities to refuse to turn over documents relating to “Meetings, consultations, discussions or communications about labour relations or employment related matters in which the institution has an interest”.  The City argued that a workplace violence reporting form clearly is in respect of “employment related matters”, particularly because under the Bill 168 amendments to Ontario’s Occupational Health and Safety Act, the City “has a legal obligation . . . to ensure that its employees are not subject to violence and harassment in the workplace”.

The privacy commissioner rejected that argument, deciding that the documents did not relate to employment matters between the City and its employees, but rather related to employee observations about the private citizen who was not an employee of the City.

The privacy commissioner decided that the City was not required to give to the citizen the portions of the documents containing a description of how the incident personally impacted the employee who filed the workplace violence reporting form.

Municipalities will want to take this decision into account when designing their workplace violence reporting form and process.

Woodstock (City) (Re): http://canlii.ca/en/on/onipc/doc/2012/2012canlii10571/2012canlii10571.html

A worker at a care home for “mentally challenged adults” refused to deliver juice and food supplements to clients, using a juice cart, after another worker was struck by one of the home’s 113 clients when performing that task.  The Nova Scotia Labour Board decided that she did not have reasonable grounds for engaging in the work refusal under the Nova Scotia Occupational Health and Safety Act.

The worker claimed that she had a pre-existing medical condition that placed her at a higher risk of serious injury if she was to be struck in the face by one of the clients.  She did not reveal the exact nature of the medical condition but claimed that she had it since childhood.

Management of the home had implemented a process for dealing with aggressive clients, including providing Non-Violent Crisis Intervention (NCVI) training to all direct-care staff.

The Nova Scotia Labour Board stated:

“<Appellant’s>  concern about working amongst clients is based upon her fear of being struck by a client.  Her solution is to isolate herself from having contact with clients by working in the kitchen, and by avoiding clients by refusing to accompany the juice cart to the units where clients, including high risk clients, reside.  The Director testified that the right to refuse is based upon an average individual having reasonable grounds for refusing work.  The Act does not address fears.  While every employee who testified admitted that there is an inherent risk in working at the Home, all have accepted this risk as part of the conditions of their employment.  Most try to ameliorate the risk of possible aggression from clients by making themselves aware of which clients have a high risk to offend.  Management has tried to reduce the risk of injury to kitchen helpers by introducing changes to the procedure for delivering juice and supplements to the units.  With regard to the introduction of these changes, most of <Appellant’s>  co-workers were ambivalent about them.  A poll conducted amongst the ten affected employees by two members of the JOHS Committee found that nine felt safe with or without the new procedures being implemented.  The Board is convinced that <Appellant’s>  perception of the dangers imposed by having her accompany the juice run to the units is an emotional reaction and is not one that is based upon reasonable grounds.”

This decision affirms that employees may not refuse to work based only on fear or a perception of danger, particularly where the fear relates to an “inherent risk” in the work.  The fear must be based on reasonable grounds.

The decision may be accessed at: Braemore Home Corporation.

An Ontario judge has held that an employer which failed to train employees on its workplace violence rules did not have just cause to dismiss an employee who slapped a coworker in the face.

Two workers were engaged in “verbal jousting” described by other co-workers as “trash-talk”, “off-colour language”, “salty language” or acting like “two kids in a courtyard”.  One worker, the plaintiff in the lawsuit, struck the other worker on the face with an open hand, apparently provoked by something that the other worker said.  The judge found that the plaintiff, who had almost 6 years of service, enjoyed a clean disciplinary record and did not have a history of violence or anger management problems.  The slap caused brief facial redness.

The employer fired the plaintiff and claimed just cause for dismissal without notice. The employee sued in the courts for wrongful dismissal.

The employer attempted to rely on the rules in its Employee Handbook prohibiting “threatening, intimidating, or coercing fellow employees” and “fighting or attempting to injure another employee”.  The judge stated, however, that the employer did nothing to train its employees with respect to the intent and purpose of the rules and the consequences of breaking them “beyond distributing the Handbook, and revisions to it, to its employees and leaving them to read it and interpret it for themselves.”  According to the judge, the employer could have sent a message to the plaintiff and other employees that workplace violence was not acceptable, by imposing progressive discipline – not dismissal – as referred to in the Employee Handbook.”

While the result in this case may seem inconsistent with the trend towards judges and arbitrators taking a harder line against workplace violence, the decision does show the importance of employers instructing employees on workplace violence rules – particularly if employers wish to rely on those rules to dismiss employees who violate them.

Shakur v. Mitchell Plastics, http://www.canlii.org/en/on/onsc/doc/2012/2012onsc1008/2012onsc1008.html

The Ontario Labour Relations Board, in a preliminary decision in a case, has held that one shouting match between a probationary employee and a co-worker in which the probationary employee alleged that the co-worker called him a “stupid f[***] proby”, was likely not workplace harassment under the Ontario Occupational Health and Safety Act.  The employer later dismissed the employee, and the employee alleged that his dismissal was a reprisal under the OHSA for raising concerns about workplace harassment.

The probationary employee described the incident as follows (the stars in square brackets are mine):

“- March 28^th approx 8:00 pm confronted by Brian W. at my workstation

- [Brian] told me I was doing things “wrong” and am “unorganized” and I was “losing time”

- I replied with “I’m sorry.  I’ve tried your way.  It just doesn’t work comfortably for me!”

- Brian then threw his arms up in the air in frustration

- [Brian] started to raise his voice and tell me that was how he “wanted it done”

- I replied “with all due respect!  Your way has me walking to the end of the table and all the way around it.”

- Brian then yelled “Fine then!  I’m done with you!  You’re a stupid f[***] proby that won’t f[***] listen.”

- I then said “F[***] you”  “You don’t talk to me like that!”  “I deserve a little respect as person!”

- Brian repeated himself while walking away

- I replied “F[***] you”

- Brian then told me to go and quit

- Brian was walking away backward yelling “good bye” “quit” “I’m going to have your job by the end of the night” while waving at me in a good-bye manner

- [Brian was] laughing and taunting me.  It was humiliating and uncalled for!  In front of co-workers (Kirk and John) (25 ft away)”

The OLRB stated that “it is not apparent that what has been described constitutes ‘workplace harassment’ within the meaning” of the OHSA.  “As argued by the employer in its response, it is not apparent that Brian engaged in a course of vexatious conduct.”

It appears from this and other decisions that the OLRB is enforcing the “course of conduct” requirement in order to have workplace harassment. That is, one single event will usually not be “workplace harassment” under the OHSA.

In this preliminary decision, the OLRB stated that “it appears therefore that this application should be dismissed without a hearing.”  However, the OLRB did not dismiss the application but rather gave the employee the opportunity to file submissions as to why the case ought not to be dismissed.

Vey v. Keeprite Refrigeration: http://www.canlii.org/en/on/onlrb/doc/2012/2012canlii3572/2012canlii3572.html

The law firm of a lawyer who assisted a hospital in “evaluating, mediating and resolving workplace conflicts between employees including allegations of harassment and workplace violence” has been ordered removed as lawyers of record for an employee who was suing the hospital.

The lawyer/mediator had met with various hospital employees including staff members, the hospital’s “Safe Workplace Advocate”, the CEO and various other senior hospital staff.

A few months later, a hospital employee started a lawsuit against the hospital and several representatives of the hospital, in respect of the termination of her employment.  The lawsuit apparently touched on some matters that the lawyer had dealt with in her role “evaluating, mediating and resolving” the workplace conflicts.  The lawyer/mediator was not involved in representing the employee.  She eventually left the firm.  The court found that the lawyer/mediator had at all times acted with integrity and professionalism.

The court noted that while the evaluation, mediation and resolution work of the lawyer/mediator had not perhaps been “the traditional work of a lawyer”, the firm was still in conflict.  The court was concerned with distinguishing between a law firm’s obligations to “different categories of existing clients” based on the type of work done by the law firm.  The lawyer/mediator had received confidential information from employees and management of the hospital, which the law firm could use against the hospital in representing the employee.  The court also noted that there was a “real risk in a highly publicized wrongful dismissal action, like this one” that names a hospital executive with whom the lawyer/mediator worked closely, that the law firm’s representation of both the hospital (by the lawyer/mediator) and the employee (by another lawyer in the firm) would be compromised. 

Interestingly, the court put the law firm on notice that the court was considering ordering costs against the firm, and invited the law firm’s submissions on that point.

Spirou v. Chant, http://www.canlii.org/en/on/onsc/doc/2012/2012onsc52/2012onsc52.html 

The Ontario Labour Relations Board, sitting as an arbitrator, has upheld a five-day suspension against a construction employee who admitted that he threatened twice, over two days, to kill his foreman.

The OLRB referred to Ontario’s Bill 168 which introduced workplace violence and harassment provisions to the Ontario Occupational Health and Safety Act.  The OLRB stated that “when an event that fits squarely within the definition of workplace violence [under Bill 168] occurs, an employer is not only permitted but required to act, both to deal with the unacceptable behaviour and to take steps to ensure that its policies are known and understood.”  The OLRB stated that “general deterrence” is important in cases of workplace violence – that is, sending a strong message that discourages other employees from engaging in workplace violence.

The OLRB found that the threats were not a joke. He was not simply speaking out of frustration.  No one who heard the threats thought he was making a joke.  The employee refused to apologize.  A five-day suspension was appropriate.

Reading the decision, one wonders whether termination might have been the appropriate response.  Arbitrators are increasingly taking a hard line against workplace violence.  See our previous post, Threats are “Violence” Post-Bill 168: Firing of Long-Term Employee Upheld.

Teston Pipelines Limited v. Labourers’ International Union of North America, http://www.canlii.org/en/on/onlrb/doc/2011/2011canlii78812/2011canlii78812.html

Basing a harassment-reprisal complaint on a text message is risky when one cannot prove that the text message was ever sent.

The employee, who worked for a pool company, was moved around to different jobs because he had trouble carrying out many of his duties.  Finally the employer found a warehouse position in which the employee excelled. They presented the job description to the employee on November 12, 2010.  The employee raised concerns with the job, and the employer stated that if he did not take that job, there were no other jobs left for him.  The employee refused to take the job, and the employer sent him a Record of Employment stating that he had quit. (The OLRB found that the employer had actually terminated the employee).

The employee filed a reprisal complaint under the Ontario Occupational Health and Safety Act relying on the harassment provisions introduced by Bill 168.

At the OLRB hearing, the employee claimed to have sent his employer a text message in the early morning before the meeting.  The employer denied ever receiving it.  The employee provided the OLRB with a copy of a document that he said was the text message:

“Hi Elton, this is Oneal. Nov 12. I have been very patient and calm with the ill treatment that I have been receiving from supervisor/manager Alex.  You said it yourself, ‘you two don’t get along’. That’s not true I have been respectful and calm with everything that she has said to me and about me.  You said, ‘ill [sic] help you to be on her good side.’  Her treatment, verbal harassment, has gotten worst [sic]. I have been yelled at, called a turkey and a banana.  This has been going on for longer than a month. I ask you to look into this again but this time to stop it completely I don’t deserve to be bullied in the workplace.  I am a hard worker.  I do my best everytime [sic]. I lifted things that are normally too heavy for me to manage in order to be a team player. I am available to talk to you about this issue.  However you have been present many times and therefore know what issues I am seeking a solution for.”

The OLRB found that the employee’s evidence about the text message was “dubious”.  The OLRB stated that the document purporting to be the text message was dated three days after his termination, and that the employee had explained that this was because he subsequently sent a copy of the text message to his e-mail address, and then printed the e-mail from his computer.  Also, it was odd that the message began by the employee noting the date of November 12.  The OLRB stated, “Why did it occur to Mr. Walters to specify the date within the body of the text message?  And what prompted him on the morning of November 12 to prepare a remarkably lengthy and detailed text message, seemingly on the spur of the moment as he made his way to work?”  Also, contrary to the contents of the alleged text message, there was no evidence adduced in the hearing that the employee ever previously spoke to the employer about the supervisor, Alex, or that the employer was aware of any previous tension between the employee and the supervisor.  As such, the reliability of the employee’s evidence was in question.

The OLRB concluded that the employer did not terminate the employee for complaining about harassment. 

The OLRB has previously held that a harassment complaint cannot form the basis of a reprisal complaint under the OHSA.  See our previous post at: http://www.occupalhealthandsafetylaw.com/bill-168-update-olrb-will-not-hear-harassment-reprisal-complaint-under-ohsa

 Walters v. PPL Aquatic, Fitness and Spa Group Inc., http://www.canlii.org/en/on/onlrb/doc/2012/2012canlii77/2012canlii77.html

The Ontario Labour Relations Board has dismissed a reprisal complaint under the Occupational Health and Safety Act because the employee’s allegations – which included “gossip” – did not rise to the level of “harassment” as defined in the OHSA.

The employee, a male teacher, alleged that two female teachers had harassed him.  According to the OLRB, he relied on the following alleged harassing behaviour: one teacher’s “teaching methods and style, her alleged tardiness and her alleged lack of attention to matters of student health and safety during lab work”;  the same teacher “allegedly spread gossip about another teacher” (not the employee himself); the two teachers “declined his suggestion to meet to discuss departmental issues”; the two teachers “confronted him on one occasion about his criticisms of [one of the teachers] as a teacher”; and one teacher “shouted at him once to turn off the lights in the course of a meeting.”

As for the shouted admonition to turn the lights off, the OLRB stated that it “amounts to a single instance of rudeness.”  At best, the OLRB decided, there was a personality conflict between the male teacher and the female teacher who asked him to turn off the lights.  “That kind of problem can and should be resolvable as between adult professionals.  In the circumstances of this case it is quite simply not workplace harassment.”

The OLRB’s decision is a welcome suggestion that personality conflicts that do not rise to the level of harassment should not become legal issues bogging down the employer and co-workers.  Such disputes should be resolved internally and, if possible, between employees.

Parsons v. Simcoe County District School Board, http://canlii.ca/en/on/onlrb/doc/2012/2012canlii395/2012canlii395.html.

A disability-management specialist working for the Toronto Transit Commission is facing a human rights complaint.  The complaint alleges that the specialist, who oversees the TTC’s transitional work program, subjected an employee to harassment and treated her differently compared to other employees on modified duties.

According to an interim decision of the Human Rights Tribunal of Ontario, in the human rights complaint, the employee alleged that the specialist “abused her authority by suspending the applicant’s pay, terminating the applicant’s transitional work duties, harassed the applicant while the applicant was on a leave of absence, suggested the applicant take certain medications, made false allegations against about the applicant, spoke to the applicant in a degrading fashion and solicited information about the applicant’s work performance.”

In order to respond to the complaint, the TTC and the specialist asked the Tribunal to permit them to have access, use and disclosure of the employee’s Occupational Health and Claim Management files.  They said that the Tribunal’s authorization was required because there may be a conflict between the standards required by the Personal Health Information Protection Act and the duty imposed on employers under the Occupational Health and Safety Act (they were likely referring to subsection 63(2) of the OHSA which states that “[n]o employer shall seek to gain access, except by an order of the court or other tribunal or in order to comply with another statute, to a health record concerning a worker without the worker’s written consent.”)

The Tribunal granted the TTC and the specialist access to the Occupational Health and Claim Management file, but only in respect of the period identified in the employee’s human rights complaint. The Tribunal limited access to the advisors, instructors and potential witnesses of the TTC and the disability-management consultant.

The case is a reminder to employers of the confidentiality obligations under section 63(2) of the OHSA.   In particular, where an employee does not consent, and there is doubt about the employer’s right to use an employee’s health file in a litigation matter, the employer should consider obtaining the permission of the court or tribunal in which the employee’s claim was made.

O’Brien v. TTC,  http://canlii.ca/en/on/onhrt/doc/2012/2012hrto170/2012hrto170.html

On August 1, 2009, just as Hollywood actor, Kevin Costner, was getting ready to take the main stage with his band at the Big Valley Jamboree, plow winds in excess of 100 kilometres per hour contributed to its collapse. One concert-goer was killed and more than a dozen others were injured.

On July 29, 2011, charges were laid against Premier Global Production Company Inc., 107372 Alberta Ltd. and Panhandle Productions Ltd. Altogether, the three companies faced 33 charges under Alberta’s Occupational Health and Safety legislation. The charges primarily related to the failure to ensure, as far as it is reasonably practicable, the health and safety of workers. In the case of Premier Global, it was also accused of failing to ensure equipment was of sufficient size, strength and design and made of suitable materials to withstand the stresses imposed on it during its operation and to perform the function for which it is intended or designed and a failure to ensure that rigging was of a sufficient breaking strength.

After the charges were laid, the Crown Prosecutor received additional information which ultimately lead the Crown to determine that “there was no reasonable chance of conviction” against any of the three companies and, therefore, all charges were stayed.

The staying of charges (as opposed to a dismissal) means that the Crown is able to reactivate any or all of the charges with one year should new evidence come forward. For more information see: http://www.ohscanada.com/news/no-chance-of-conviction-in-2009-alberta-stage-collapse-crown/100843527 and http://employment.alberta.ca/SFW/6751.html

An Ontario labour arbitrator has decided that a hospital’s lawyer’s investigation report into a bullying/harassment complaint was not privileged, so that the union was entitled to a copy.

The North Bay General Hospital had retained a lawyer to investigate a complaint that an employee had bullied and harassed other staff.  The lawyer-investigator concluded that the employee had indeed engaged in bullying and harassment.  The hospital disciplined the employee, and the union grieved the discipline.  The union asked the labour arbitrator to order the hospital to turn over a copy of the lawyer-investigator’s report.  The employer argued that the report was lawyer-client (also called “solicitor and client”) privileged and thus the union was not entitled to it.

The arbitrator decided that the investigation report was not privileged.  She noted that the investigation report stated that the lawyer was retained “as an independent investigator” to “investigate the concerns” of bullying and harassment – not as a lawyer to give legal advice.  Thus the hospital was required to give a copy of the report to the union. The arbitrator stated:

“I see no reason to distinguish between [lawyer and non-lawyer investigators] if the purpose for which they were retained is the same, of investigating events to make findings of fact.  I see no reason to attach solicitor and client privilege to a relationship which is not that of a solicitor-client, just because one of the parties happens to be a lawyer.  There are no facts before me upon which I could conclude that Mr. Robinson was retained for any other purpose than investigating the allegations against the Grievor.  Accordingly, I find Mr. Robinson’s communications with the Hospital in respect of his role as investigator of these allegations is not protected by solicitor and client privilege.”

This decision is a reminder to employers that if they wish to claim lawyer-client privilege over a lawyer’s investigation report into a workplace issue (such as a violence or harassment issue under Bill 168, or another safety issue), then the purpose of the lawyer’s involvement should be to provide legal advice, not solely to investigate.  Lawyer-investigators should consider sending the employer a retainer letter stating that the purpose of the lawyer’s involvement is to provide legal advice, and the purpose of the investigation is to gather facts in order for the lawyer to provide that legal advice.  The lawyer should follow up the investigation with a written legal opinion flowing from the results of the investigation; that way, the investigation report is much more likely to be privileged.

North Bay General Hospital v Ontario Nurses’ Association, 2011 CanLII 68580 (ON LA): http://www.canlii.org/en/on/onla/doc/2011/2011canlii68580/2011canlii68580.html

In a case involving an environmental prosecution, an Ontario justice of the peace has concluded that a “wrong company has been charged” argument should be dealt with at a full trial, and not on a pre-trial motion.

Stelco Inc., now U.S. Steel Canada Inc., was charged under the Ontario Environmental Protection Act. It took the position that it was wrongly charged because prior to the environmental incident, the business and premises in question had been transferred from Stelco to a separate company called Hamilton Steel GP. Inc. through a plan of arrangement as part of Stelco’s restructuring.

The justice of the peace decided that there was no pre-trial procedure available to deal with the question of whether the wrong defendant had been charged. Also, deciding that issue on a motion before trial would add complexity and length to regulatory proceedings (such as environmental and OHSA charges). It would also interfere with the prosecutor’s authority to decide whether to withdraw charges or proceed to trial. As such, Stelco’s motion to dismiss the charges was rejected.

The justice of the peace also decided that even if a procedure was available to decide the issue before trial, the complexity of the facts of this case required that a full trial be held – the issue could not be fully understood and decided on a pre-trial motion.

In effect, the result of this decision is that in the face of a “wrong employer” argument involving complex, disputed evidence, the prosecutor retained the power to withdraw the charges or proceed to trial. Prosecutors will consider withdrawing charges if there is no reasonable prospect of a conviction or if it is no longer in the public interest to proceed with the charges.

If this decision is followed in the future, companies charged under the OHSA who believe that “they charged the wrong company” will need to focus their energies on convincing the prosecutor to withdraw the charges. One hopes, however, that in clear cases of “the wrong company” being charged, courts will still consider whether to dismiss the charges before trial, saving the cost of a full trial.

R. v. Stelco Inc., 2011 ONCJ 471 (CanLII)

An Ontario arbitrator has interpreted the Occupational Health and Safety Act to require Loblaws to provide anti-fatigue mats to self-checkout clerks who experienced discomfort from standing. The decision raises the question of how far the Ontario Labour Relations Board and arbitrators can go in forcing employers to buy items not for the safety of employees, but merely for their comfort.

The Union filed a policy grievance claiming that the use of anti-fatigue mats “vastly improves [employees’] health at work”. Employees testified that without the mats, their “legs ache” and they “experience leg and back pain, sometimes severely”. Anti-fatigue mats are intended to reduce fatigue caused by standing on hard surfaces for prolonged periods of time.

The company had provided the mats for self-check-out workers, but took them away because it wanted to encourage employees to move around and assist customers, not stand in one spot.

The Arbitrator decided that the collective agreement did not require the employer to provide the mats. However, because employees felt “significantly less discomfort” and “complained of not having the mat available”, the arbitrator decided that “having the anti-fatigue mat at the u-scan podium is a reasonable precaution for the protection of u-scan clerks who work there”, invoking the employer’s duty under section 25(2)(h) of the OHSA to “take every precaution reasonable in the circumstances for the protection of a worker”. In the arbitrator’s view, the employer had therefore violated the OHSA by taking away the mats.

In my view, this is a problematic decision. The evidence of any hazard to the “health” or “safety” of workers was scant. Rather, it appears, the mere discomfort of employees was enough for the arbitrator to order the employer to provide the mats.

One wonders where this line of reasoning could lead. If one’s back sometimes gets sore when sitting, does the OHSA require one’s employer to buy a new chair to one’s liking? If one’s muscles feel sore after lifting boxes, must the employer provide a machine to lift the boxes? In my view this decision takes OHS legislation beyond where it was intended to go, and also interferes with an employer’s discretion to run its business in the way that it thinks best. Occupationalhealthandsafetylaw.com will keep you posted on any developments in this area.

Loblaws Supermarkets Limited v. UFCW, 2011 CanLII 77390 (Ontario Labour Arbitrator)

Foreign Companies doing business in Alberta are not immune to answering charges regarding workplace safety, even where the foreign entity itself has no presence in the province.

The majority of the Alberta Court of Appeal has ruled that the Chinese employer of two oil sands employees who were killed in a workplace accident in 2007 must face trial for alleged safety violations.

Sinopec Shanghai Engineering Company Ltd., a Chinese corporation, was retained by a Canadian oil and gas company to construct storage tanks at an oil sands extraction facility in Fort McMurray. Since the Canadian oil and gas company wished to deal with a Canadian entity, Sinopec Shanghai incorporated a subsidiary, SSEC Canada Ltd. On April 24, 2007 an accident occurred at the facility, which resulted in the death of two employees. Following an investigation, the Canadian oil and gas company, SSEC Canada and Sinopec Shanghai were all charged with violating sections of Alberta’s Occupational Health and Safety Act.

In order to trigger the jurisdiction of the Provincial Court of Alberta over the defendants, each corporation had to be properly served with the Information in Alberta. Although the Canadian oil and gas company and SSEC Canada have a presence in Alberta, Sinopec Shanghai had no employees and little effective presence. A process server served Calgary resident, Helen Wang, with the Informations (charging documents) for both SSEC and Sinopec Shanghai. Ms. Wang was an employee of SSEC. While Ms. Wang accepted service of SSEC’s Information, she did not accept the Information relating to Sinopec Shanghai. She was never asked what she did with the paper, nor was she asked whether she advised any representative of Sinopec Shanghai that service been attempted. However, a lawyer for Sinopec Shanghai made a conditional appearance to contest service of the Information.  While the dissenting reasons by Justice Slatter concluded that the criminal law recognizes conditional appearances to contest service, the majority of the Court disagreed.

While the majority of the Court of Appeal agreed that the service on Ms. Wang was ineffective, they noted the involvement of Sinopec Shanghai’s lawyer. The majority preferred the reasoning of the Ontario Court of Appeal to the effect that a distinction is to be made between matters that relate to jurisdiction of a court to try an offence and those that related to procedural defects in service.  In this case, service was curable because counsel for Sinopec Shanghai had made an appearance before the Provincial Court to argue that service was not effective. Sinopec Shanghai’s appearance, through counsel, resulted in its attornment to the jurisdiction of the Provincial Court, notwithstanding counsel’s protestations otherwise.

Accordingly, international organizations that do not have a presence in Alberta but conduct business here despite limited presence will not be able to avoid potential responsibility for workplace safety violations.

As a result of the strong dissenting reasons, this case may end up at the Supreme Court of Canada. Stay tuned.

R. v. Sinopec Shanghai Engineering Company Ltd., 2011 ABCA 331

An Ontario Justice of the Peace has rejected a roofing company’s argument that a Ministry of Labour inspector’s request that the company provide training records, employee records and invoices, and the WSIB Form 7 was an “unreasonable search and seizure” under the Canadian Charter of Rights and Freedoms.

The case involved a roofing employee who fell and injured himself.  His co-workers claimed not to have seen the fall, and the injured worker claimed to have no memory of it.  The company was charged with eight offences under the Ontario Occupational Health and Safety Act including charges relating to fall arrest equipment and training.

The Justice of the Peace held that the requested documents were pre-existing business records over which the company had a low expectation of privacy.  Further, the OHSA “envisioned” that the employer would produce those documents for inspection or examination if requested by an MOL inspector.

The Justice of the Peace also held that the statutory compulsion to file a Notice of Death or Critical Injury with the MOL, as required by section 51 of the OHSA did not constitute an unreasonable search and seizure.

The decision suggests that MOL inspectors’ powers to collect routine safety documents from employers in the course of an investigation are not, at least in typical cases, restricted by the search and seizure provisions of the Charter; however, the decision also confirms that once an MOL inspector is no longer “investigating” an accident but is rather gathering evidence to support charges, the inspector will no longer be able to use his or her statutory power to collect documents, but instead will be required to obtain a search warrant.

The decision, Ontario (Ministry of Labour) v. W. Roofing Ltd., may be read at: http://www.canlii.org/en/on/oncj/doc/2011/2011oncj494/2011oncj494.html

In previous posts, we reported that the Ontario Labour Relations Board had expressed doubt about whether it has jurisdiction to hear a complaint under the Occupational Health and Safety Act that an employee suffered reprisal for alleging workplace harassment, but that the OLRB would hear a reprisal case alleging that the employer had neglected its obligations under Bill 168.

A Vice-Chair of the OLRB has now decided that the OLRB has no jurisdiction to hear a complaint under the OHSA that employee suffered reprisal for raising a harassment issue with his or her employer.  The decision, dated November 18, 2011, is called Harper v Ludlow Technical Products Canada Ltd.

Of course, if the employee claims that the harassment was discriminatory on the basis of sex, race, religion and other human rights grounds, the employee may still file a reprisal complaint with the Human Rights Tribunal of Ontario under the Human Rights Code. 

A reprisal complaint under the OHSA must allege that the employee suffered reprisal – such as discipline or discharge – for acting in accordance with the OHSA or seeking to have the employer comply with obligations under the OHSA.  However, the OLRB reasoned, OHSA does not impose an obligation on employers to eliminate harassment or even to follow the employer’s harassment policy; rather, the OHSA only requires employers to implement a harassment policy and provide employees with “information and instruction” on the policy.   It therefore appears that, for the OLRB to consider a reprisal complaint under the OHSA, it must be based on the employer’s failure to implement a harassment policy or provide employees with “information and instruction” on it. 

Employers will welcome this decision, as it requires employees to address harassment complaints internally under the employer’s own policy.  Employees may not resort to the OLRB – at least not under the OHSA – when employees are unhappy with the employer’s handling of the harassment complaint process.

 The decision may be read at: http://canlii.ca/en/on/onlrb/doc/2011/2011canlii73172/2011canlii73172.html

Arguing that his “termination would not have happened” had his employer complied with Bill 168 and thus addressed his harassment complaint properly, an employee has persuaded the Ontario Labour Relations Board to allow his OHS reprisal complaint to proceed to a full hearing.

Bill 168 amended the Ontario Occupational Health and Safety Act to add requirements dealing with workplace violence and harassment.

After he was fired, the employee filed a reprisal complaint with the OLRB alleging that his employer, the Carpenters’ District Council of Ontario, dismissed him for complaining about his immediate supervisor’s conduct.  The Carpenters asked the OLRB to dismiss the complaint, arguing that the conduct did not constitute “workplace harassment” and that the complaint did not allege a violation of the OHSA.

The OLRB noted that the harassment and violence provisions were recently added to the OHSA and had not been the subject of many decisions interpreting the interplay between the workplace harassment obligations and the reprisal provisions.  As such, the employee should be permitted to have his reprisal complaint proceed to a full hearing.

Ontario employers should note that non-compliance with Bill 168 – including failing to prepare and post policies on workplace harassment and violence – could result not only in compliance orders from Ministry of Labour inspectors but could also in reprisal complaints to the OLRB.

The decision may be viewed at: http://www.canlii.org/en/on/onlrb/doc/2011/2011canlii71880/2011canlii71880.html

An Occupational Health and Safety Co-ordinator has been found guilty of a violation of Nova Scotia’s Occupational Health and Safety Act for neglecting to follow up with his employer on recommendations in an asbestos report.

The Safety Co-ordinator was employed with the Cape Breton Island Housing Authority.  When maintenance employees reported that insulation in housing units might contain asbestos, the Safety-Coordinator obtained a report from a testing company.  The report confirmed that the insulation contained asbestos.  The Safety Co-ordinator gave the report to two supervisors employed with his employer.  He then, the judge said, “assumed a passive role” and did not follow up.  The supervisors apparently did nothing with the report until months later when an outside electrician pressed them for information about the insulation.

A government safety inspector was called in and imposed 515 compliance orders.

The court found the Safety Co-ordinator guilty of failing to take reasonable precautions for the safety of persons at or near the workplace, including residents of the homes that contained the asbestos insulation.  It did not matter that he “was not paid at the level of top managers”, did not consider himself a manager, and did not believe he would be involved in making decisions about what to do with the asbestos report.  It also did not matter that he spent much of his time dealing with fire drills, a return-to-work program, and updating a safety manual.  His job description showed that his role was to promote a safe and healthy workplace.

The court stated that upon receiving the testing report, the Safety Co-ordinator should have immediately notified the Director of the housing authority; followed up directly with the two supervisors to whom he gave a copy of the report; told the joint occupational health and safety committee about the report; and instigated a formal hazard assessment of the risks to employees who were working around the insulation.

This decision suggests that courts will hold safety professionals to high standards, particularly where they become aware of hazards in the workplace.   In this case, a job-description duty to promote safety turned into a legal duty that resulted in a conviction and a $1,000.00 fine.

The decision may be read at: http://www.canlii.org/en/ns/nspc/doc/2011/2011nspc67/2011nspc67.html

The Saskatchewan Court of Queen’s Bench has overturned a Saskatoon transit driver’s traffic court conviction for failing to wear his seatbelt while on the job.  The driver claimed that his refusal was justified due to the risk of assaults by passengers, which he claimed was a “growing nationwide epidemic” that he and a number of his colleagues had experienced firsthand.

 At issue was a contest between a Saskatoon employee policy and the province’s Traffic Safety Act.  The employee policy states that all public employees must be buckled in whenever they are behind the wheel of a city vehicle, while the Traffic Safety Act exempts a bus driver from the requirement to wear a seatbelt if he or she has reason to believe the seatbelt might put them at risk of injury.

 The Crown argued that under the Traffic Safety Act exemption, the driver should be permitted to unbuckle only when he or she faces a specific  risk of injury from a specific person or circumstance – for example, a passenger who suddenly becomes violent.  The driver argued the exemption is broader and should be extended to situations where drivers face less-specific threats, such as continuous exposure to safety threats such as assaults.   The driver argued that once drivers have identified a specific risk of injury, it is often too late for them to remove their seatbelts in order to defend themselves, so that drivers should be permitted to not buckle up at all.

 The Court agreed with the driver and found that the exemption in the Traffic Safety Act should be interpreted broadly.  In overturning the driver’s conviction, finding him not guilty of the seatbelt charge, the Court further concluded that the driver’s decision not to wear his seatbelt was a reasonable reaction to the experiences of himself and others.

 Read the decision at:  http://www.canlii.org/en/sk/skqb/doc/2011/2011skqb390/2011skqb390.pdf

A U.S. judge has acquitted an in-house lawyer on obstruction charges, in part because she consulted widely with outside counsel.  The decision, while not involving an occupational health and safety matter, demonstrates the importance of corporate counsel obtaining outside advice from a safety lawyer when confronted with the “drop everything” urgency of an accident investigation by government safety officers.

Lauren Stevens was charged with failing to give complete answers to the U.S. Food and Drug Administration in response to a request for information during an investigation.

United States District Judge Roger Titus stated:

“As to all counts relating to the question of advice of counsel, the evidence in this case can only support one conclusion, and that is that the defendant sought and obtained the advice and counsel of numerous lawyers. She made full disclosure to them. Every decision that she made and every letter she wrote was done by a consensus.”

Ms. Stevens had acted in good faith, on the advice of outside counsel. The charges against her were dismissed.

When government safety inspectors investigate a serious accident, counsel must make quick decisions about issues such as privilege, creation of investigation reports, and when – and whether – an employee must give a statement.  The U.S. District Court’s decision suggests that corporate counsel can protect him/herself – in addition to the organization – by obtaining outside advice.

The decision may be read here. 

Employers who do not comply with Ministry of Labour orders face the wrath of MOL inspectors, and of the courts.  In May 2009, Ontario health and safety inspectors visited Infinity Marble of Canada, a synthetic marble and granite manufacturing company led by sole proprietor Waldemar Kozuchowski.  The inspectors issued several orders in respect of health and safety violations.  The inspectors made a number of follow-up visits to the premises between May 2009 and May 2010 but the violations remained, resulting in further orders.  In total, inspectors wrote 23 orders, 15 of which were not complied with by Mr. Kozuchowski.  The orders that were not complied with included a stop work order relating to the use of a spray booth, as well as orders related to the improper storage of flammable liquids, poor ventilation, a lack of a system to contain spills and a failure to ensure that workers wore respirators.

On October 28, 2011 Mr. Kozuchowski was found guilty of 15 counts of failing to comply with an order issued by an inspector.  He was fined $3,000 for his failure to comply with the stop work order and $1,000 per count with respect to his failure to comply with each of the 14 other orders, resulting in a total fine of $17,000, plus the 25% victim fine surcharge.  For more information, see the Ministry of Labour’s News Release:  http://news.ontario.ca/mol/en/2011/11/business-owner-fined-17000-for-non-compliance.html

An off-site Customer Appreciation Party during Stampede Week in 2007 has resulted in tragic consequences – and a court decision of interest to employers. The event, held at a hotel, included a “calf roping machine” activity that was suggested by the party planner retained for the event. A young software developer who was helping to operate the machine was struck in the head by a steel lever and later died from the injuries.

The employer was charged under the Alberta Occupational Health and Safety Act with failing to ensure, as far as it was reasonably practicable to do so, the health and safety of the worker. It was also charged with failing to ensure that all equipment used at the work site would safely perform the function for which it was intended or designed.

The court rejected the company’s argument that occupational health and safety legislation was not intended to apply to off-site workplace parties. Rather, the court found that the location of the company party was a “work site” because the worker’s participation and duties at the event were directed by company personnel, and it was a place where a business purpose of the company was carried out. The company was therefore obligated to ensure the health and safety of its workers and that equipment, including the calf roping machine, was safe.

The employer, however, was found “not guilty” of the charges because it had raised a due diligence defence. The court decided that the accident was not foreseeable and that the company did all that it could do to ensure that the young worker was safe and that the equipment would safely perform its function. The court noted that the company had made clear its expectation that the professional event planner would arrange for only safe activities and the company depended on the planner’s expertise to provide only safe entertainment activities for its customers. Further, the court distinguished between the circumstances of the employer in this case, a small family owned technology company, as compared to “the larger industrial enterprises typically before the courts as a result of industrial accidents.”

Employers need to be aware of their health and safety obligations when hosting parties or client events, even at locations away from the employer’s workplace. Should something go awry resulting in a serious injury or accident to a worker during the event, an employer may face health and safety charges and fines.

R. v. XI Technologies Inc., 2011 ABPC 313 : http://www.canlii.org/en/ab/abpc/doc/2011/2011abpc313/2011abpc313.html

Workplace threats are now “violence” in Ontario and justify strong discipline, the decision of an Ontario arbitrator suggests.  Bill 168 added workplace violence and harassment to the Occupational Health and Safety Act and defined “workplace violence” to include threats.

The case involved a long-service employee of the City of Kingston.   In a heated discussion, she said to a co-worker, who was also her local union president, “Yes, and you will be [dead] too”, referring to a former local union president who had died.

The grievor, a labourer/truck driver in the City of Kingston’s parks department, had a tortured work history during her 27 years of service.  She had been fired in 1989 and reinstated by a labour arbitrator.  She was fired again in 1992 and was reinstated during the grievance procedure.  She had also filed a human rights complaint which the Ontario Human Rights Commission decided in 1992 not to send to a hearing.  In 2001 and 2004, she had received “non-disciplinary verbal warnings” for shouting at her supervisor and angrily confronting a co-worker.  She admitted that she had “always had a short fuse, and a bad temper”.  She had ongoing attendance issues and had attended an anger management course.

The union grieved the grievor’s discharge for the threat.  Arbitrator Elaine Newman said that Ontario’s Bill 168 affected, in four different ways, the approach to cases of discharge for uttering a threat: (1) Bill 168 provides that threats are now “violence”; (2) employers are now obligated to investigate and address all threats of violence; (3) arbitrators must consider threats to be serious incidents, when assessing whether termination was reasonable; and (4) arbitrators must now consider workplace safety in that assessment.

In this case, even though the arbitrator found that the grievor did not really intend to end her co-worker’s life, the incident was very serious, the co-worker was shaken, and – importantly – the grievor did not apologize, accept responsibility for her actions, or show any willingness to correct her propensity for anger-induced behaviour.  She was, therefore, the “author of her own circumstances.”  The termination was appropriate.

This decision provides a useful precedent for employers – both unionized and non-union – to impose strong discipline on employees who engage in violence, including threats, in the workplace.  In the face of high-profile workplace deaths from violence, one expects to see more hard-line responses to violence in future.

An Ontario Superior Court judge has reinstated an Occupational Health and Safety Act prosecution that “went off the rails” because of errors by a Justice of the Peace and Ministry of Labour inspector in the initiation of the prosecution. The charges resulted from the collapse, across Richmond Street East in downtown Toronto, of a large crane being used to construct a high-rise condominium complex.  No one was injured.

The case could be said to have involved a comedy of errors.  The Superior Court judge described the errors as follows:

“On March 18, 2011, the inspector attended before a Justice of the Peace and presented her with an Information [the document that contains the safety charges] and three summonses directed to the respondents. It is at this point that the process ‘went off the rails’.  It does not appear that either the Justice of the Peace or the inspector were familiar with the formalities associated with the swearing of an Information. As the transcript of the proceedings show, the inspector swore the Information before the Justice of the Peace. However, the Justice of the Peace initially failed to sign the Information confirming that the Information had in fact been sworn. When the inspector pointed this out, the Justice of the Peace apologized and then signed the Information. Unfortunately, she signed the Information on the line where the informant is supposed to sign. Also, while the Justice of the Peace included the day and month on the Information, she did not include the year. In addition to those problems, the inspector did not sign the Information nor did he place his name on the front of the Information where it ought to appear.”

Another Justice of the Peace later threw out the charges because of the problems described above.  The Ministry of Labour then applied the Superior Court to have the charges reinstated.

Mr. Justice Nordheimer reinstated the charges, stating that:

“In my view, a substantial wrong will occur if the decision of the Justice of the Peace is allowed to stand. The consequences of a very serious work-related incident will be left unaddressed. Violations of OHSA, if they occurred, will not be determined and the persons responsible for any such violations will not be held to account. The public is entitled to have an incident of this magnitude properly investigated and not deflected by technical irregularities. That said, that conclusion should not be taken as excusing the inattentiveness surrounding the issuance of the Information in this case or as suggesting that it is being tolerated or overlooked. Rather, the conclusion is a recognition of the simple fact that treating the Information as a nullity is not a measured response to that inattentiveness.”

This decision illustrates that technical issues with charges will not always result in the charges being dismissed or “stayed”.  The courts recognize the importance of having OHSA charges adjudicated on their merits.

Ontario Ministry of Labour v. Rumble Foundations (Ontario) Ltd.: http://www.canlii.org/eliisa/highlight.do?text=%22occupational+health+and+safety+act%22&language=en&searchTitle=Ontario&path=/en/on/onsc/doc/2011/2011onsc6136/2011onsc6136.html

It is rare that the facts of a dismissal case are so bizarre as to be shocking, but this is such a case.  The grievor, an elevator mechanic, was dismissed after a video posted on the Internet showing him with his genitals exposed and his scrotum being stapled to a wooden plank came to his employer’s attention.

The grievor was working on a large office building new construction project.    He and his co-workers often discussed a television show called “Jackass” that involved young men who got rich recording themselves doing stupid things.

A foreman on the project suggested that another employee staple his scrotum to something, and the grievor then agreed to do it if the employee collected enough money.  Word spread throughout the project, and $100.00 was collected.  The grievor then had his scrotum stapled to a board, with about 14 or 15 people watching in the lunchroom during the work day.  The grievor knew that the incident was being recorded on video.  He collected the $100.00.  The video ended up on the Internet.  The video became notorious among general contractors and others in the construction industry.

The Ontario Labour Relations Board upheld the dismissal of the grievor.  The OLRB said that the employer had “demonstrated a real prejudice to its reputation as a safety conscious elevator contractor with a highly skilled and competent workforce.  In my view, an elevator contractor that is believed to tolerate pranks and horseplay in the workplace is at significant risk of having its business reputation damaged.”  The OLRB also noted that an “escalating pattern of pranks and horesplay can lead to even more dangerous stunts in a workplace where an employer and its employees must always be safety conscious.”

This decision demonstrates that employers in safety-sensitive industries such as construction and mining, are entitled to take strong disciplinary action to protect their reputation for safety – particularly where the employees’ offending conduct becomes notorious.

The decision may be read at http://www.canlii.org/en/on/onlrb/doc/2011/2011canlii46582/2011canlii46582.html

A vice-chair of the Ontario Labour Relations Board has suggested, without finally deciding the point, that the OLRB has no authority under the Occupational Health and Safety Act to adjudicate a complaint that an employee suffered reprisal for raising an issue of workplace harassment.

Ontario’s Bill 168 added provisions regarding workplace violence and harassment to the Ontario OHSA.  Although Bill 168 requires employers to take reasonable precautions to avoid workplace violence, interestingly, it does not require employers to take steps to avoid workplace harassment. 

The vice-chair stated that, because the OHSA does not create a right to be free from harassment, an employee cannot advance a complaint that he or she suffered reprisal for raising a harassment complaint.  That is because a reprisal complaint under the OHSA must allege reprisal for exercising a right under the OHSA, but there is no right under the OHSA to be free from harassment.  Rather, the OHSA simply requires employers to have a harassment policy and program and to provide “information and instruction” to employees regarding harassment.

This decision seems right to me.  Employees who believe they have suffered reprisal for raising complaints of Human Rights Code harassment, such as racial or sexual harassment, may still complain to the Human Rights Tribunal of Ontario. Employees with non-Human Rights Code harassment issues will need to deal with those through the employer’s internal processes.

Conforti v. Investia Financial Services Inc.: http://canlii.ca/en/on/onlrb/doc/2011/2011canlii60897/2011canlii60897.html

The Ontario Labour Relations Board has held that an engineer’s report that did not use the words, ”not likely to endanger a worker”, did not satisfy a compliance order.

A Ministry of Labour inspector had ordered four companies, after accidents at various job sites that involved the operation of tower cranes, to provide a “section 54(1)(k)” professional engineer’s report stating that the cranes were not likely to endanger a worker.  The companies unsuccessfully tried to work out an “industry solution” with the MOL.

All four companies retained the same engineering firm, Burrell & Associates.  An engineer with that firm provided four reports.  One of the reports stated that the tower crane was now operating normally and could be placed back into service; another report stated that “turntable bolts are still suitable for the operation of the crane until new bolts are installed”; and a third report stated that “the crane capacity in third gear is adequate for the intended loads on this project . . .”  None of the reports stated that the cranes were “not likely to endanger a worker”, the language used in s. 54(1)(k) of the OHSA.

The MOL refused to accept that the engineer’s reports satisfied the obligation under s. 54(1)(k) to produce a report that the tower cranes were “not likely to endanger a worker”.  The companies appealed to the Ontario Labour Relations Board.

The companies argued that by requiring the precise words “not likely to endanger” in the engineer’s report, the MOL was superseding the judgment of a professional engineer and may discourage engineers from providing reports.  The companies also argued that under section 54(1)(k), the professional engineer – not the MOL inspector – should make the decision as to whether the equipment could be used safely.

The OLRB disagreed.  It held that section 54(1)(k) required the professional engineer to expressly state in his report whether the equipment is or is not likely to endanger a worker.  The OLRB stated,

“Specific reference to the precise words used in the statutory provision facilitates consistency of assessment and minimizes the opportunity for confusion or debate by an Inspector as to what conclusion should be reached based on the content of a report.  Having a certain level of consistency in the content of reports, by requiring all professional engineers to use the precise words envisioned by the Legislature, helps create a common benchmark of evaluation, which enhances and, in all likelihood, may even expedite the Inspector’s ultimate determination as to the safety of the workplace.”

Employers and professional engineers should take note.  The practical effect of this decision is that when ordered to obtain a section 54(1)(k) report, an employer should seek out a professional engineer with significant expertise in the equipment or machinery to which the order relates, so that the engineer feels comfortable writing that it is “not likely to endanger a worker”.

Hardwall Construction Ltd. et. al: http://www.canlii.org/en/on/onlrb/doc/2011/2011canlii34961/2011canlii34961.html

The Ontario Court of Appeal has dismissed a “material handling” prosecution involving a road vehicle that was not actually or typically engaged in the handling of materials.

In the case, the employer, Sheehan’s Truck Centre Inc., operated a highway tractor truck sales business in Burlington. Employees were asked to move tractor trucks, which were being displayed by Sheehan’s for sale, to another area to allow paving of a new parking area.  No trailer was attached to the truck at the time.  One employee reversed a truck over another employee, causing him a serious pelvic injury. 

The Ontario Ministry of Labour charged Sheehan’s under section 56 of the Industrial Establishments regulation under the Ontario OHSA alleging that Sheehan’s failed to provide a signaller “[w]here the operator of a vehicle, mobile equipment, crane or similar material handling equipment does not have a full view of the intended path of travel . . .”

Sheehan’s was found not quilty at trial on the basis that the truck was not handling materials so that section 56 did not apply.  An appeal judge overturned that decision, holding that the truck need not be engaged in the “actual handling of materials” but rather must simply be “intended to be used for this purpose”.

The Ontario Court of Appeal agreed with the trial decision and held that Sheehan’s was not guilty.  The court stated that “material handling” in the context of industrial establishments usually:

“(1) is undertaken in an interior or enclosed setting, such as a factory or plant; (2) extends over short distances; and (3) forms part of a broader industrial process involving the movement of materials or products for such purposes as supply, manufacturing, installation, warehousing, shipment and sale.”

These three characteristics did not apply to the truck in question.  As such, Sheehan’s could  not be found guilty of the “material handling” charge on these facts.

Faced with many court decisions applying a “broad, purposive” interpretation to health and safety legislation, employers may have difficulty understanding the boundaries of their obligations.  The Ontario Court of Appeal has, refreshingly, drawn the attention back to the wording of the regulation section in question.  This case may assist employers in dealing with safety inspectors who may seek to impose obligations on employers that do not seem to flow from the section referenced.

Ontario (Ministry of Labour) v. Sheehan’s Truck Centre Inc.: http://canlii.ca/en/on/onca/doc/2011/2011onca645/2011onca645.html

A new “model” of construction, where a “construction manager” was used instead of a “traditional general contractor”, did not insulate the construction manager from safety charges.

Reid & DeLeye Contractors Ltd. was retained as a “construction manager” on a project owned by Future Inns Cambridge Inc.  The construction contract included the following provision:

“Under this type of construction management arrangement, the traditional roles and relationship of owner/general contractor disappear.  The Owner engages the trade contractors directly and thereby assumes much of the role and responsibility of the traditional general or prime contractor.”

A labourer on the project suffered a fractured arm when he fell off scaffolding.  The construction manager, Reid & DeLeye, was charged as “constructor” under the Ontario Occupational Health and Safety Act.

Reid & DeLeye argued that the use of a construction manager, rather than general contractor, was a new and more-efficient model, and that because the owner contracted with the subtrades, the owner – not Reid & DeLeye – was the constructor under the OHSA.

The Ontario Court of Justice disagreed.  The contract with the project owner stated that Reid & DeLeye was to provide “site management” and ”leadership to [the Construction Management Team] on all matters relating to construction”.  The contract between the owner and a forming subtrade stated that Reid & DeLeye will “assume overall responsibility for establishing and coordinating the safety precautions and programs”.  The court decided that the contracts showed that Reid & DeLeye was to oversee that safety precautions were undertaken by all employers and employees on the project and that safety programs were in place.  Also, Reid & DeLeye’s conduct on the project showed that it understood that it was required to oversee the sub-trades’ use of scaffolds. 

The court said that the more control a company exerts, the more likely that it was a constructor.  Here, Reid & DeLeye was the constructor on the project.

This case illustrates the importance of the terms of contructions contracts, but also of the on-the-ground actitivities of the parties, in determining who is the constructor.  A “construction manager” will be the constructor, and therefore at risk of charges and fines, if in fact it has control over a project, even if the construction contract tries to avoid having the construction manager be the “constructor”.

Ontario (Ministry of Labour) v. Reid & DeLeye Contractors Ltd.: http://www.canlii.org/en/on/oncj/doc/2011/2011oncj472/2011oncj472.html

Employers often ask us whether their employees can be forced to give a statement to an Ontario Ministry of Labour inspector.  A recent decision shows when inspectors cross the line by forcing statements.

A supervisor, Ms. Lootawan, was charged with three offences under the Ontario Occupational Health and Safety Act, including giving false information to an inspector.  The charges arose out of a workplace accident. 

The MOL inspector had issued two Orders requiring the supervisor to give a statement.  After the first Order, the supervisor wrote the inspector declining to give a statement and invoking her right to silence.  The inspector’s form containing the second order warned her that if he refused to give a statement, she could face either imprisonment or a $25,000.00 fine or both. She then went ahead and gave the statement.

The court decided that the second Order to give a statement violated the supervisor’s constitutional right against self-incrimination and her right to be secure against unreasonable search and seizure. 

The court noted that the inspector, when he took the statement, already had reasonable and probable grounds to charge the supervisor under the OHSA, which triggered the requirement to caution the supervisor that she could be charged and to invite her to obtain advice from a lawyer.  If the lawyer was not immediately available, the supervisor had the right to wait a reasonable amount of time to speak with the lawyer.

As a result, the court ordered that the supervisor’s statement could not be used as evidence at the trial of the OHSA charges against her.  The statement was thrown out.

Government safety inspectors do not have an unlimited right to compel employees to give statements.  When the inspector has “reasonable and probable grounds” to lay charges against an employee, the employee has the right to refuse to give a statement and the right to speak with a lawyer.  Supervisors and employees who are at risk of charges should obtain legal advice to ensure that their rights are protected when the MOL comes calling.

The decision may be read at: http://www.canlii.org/en/on/oncj/doc/2011/2011oncj316/2011oncj316.html