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Banned from pool and fitness facility, man who requested “young, hot female trainer” was not discriminated against because of mental disability

A man who requested that a municipal pool and fitness facility provide him with a “young, hot female trainer like” (name redacted), and who earlier had swam up to three nine-year-old boys playing on a floating raft and engaged in conversation with them, was not discriminated against because of a physical or mental disability when the facility banned him.

The man filed a complaint with the British Columbia Human Rights Tribunal asserting that the facility had discriminated against him because of a disability (hypoglycemia, which he said affected his cognition in these instances, and depression).

The Tribunal dismissed his complaint. The Tribunal noted that the complainant had provided no medical evidence that hypoglycemia affected his conduct.  At the time of the events, the complainant gave no indication that he was experiencing symptoms of hypoglycemia.  Also, nothing in the complainant’s evidence suggested that his disabilities, either physical or mental, were known or readily observable, and therefore the facility had no “duty to inquire” into whether he had a mental disability that had influenced his actions.

The Tribunal stated that the complainant’s email setting out his request for a female trainer was “reflective of attitudes that found expression in a bygone era and that are inappropriate, particularly in the circumstances of this case. The Complainant’s email does not reflect an uncontrollable comment blurted out, but rather appears to reflect a deliberate train of thought.”

In the result, the Tribunal dismissed the complaint in its entirety.

Hammell v. Corporation of Delta and another, 2017 BCHRT 246 (CanLII)

Banned from pool and fitness facility, man who requested “young, hot female trainer” was not discriminated against because of mental disability

3 1/2 year jail term upheld on appeal in criminal negligence case against Metron Project Manager

The Court of Appeal for Ontario has upheld the criminal negligence (“Bill C-45”) conviction and 3 1/2 year jail term imposed on Vadim Kazenelson, the Project Manager for Metron Construction.  The charges arose from an incident in which four workers fell to their death and a fifth had permanent injuries after a swing stage collapsed.  None of those workers was attached to a lifeline.

You can view our previous posts on this case here.

The trial judge had, in sentencing Mr. Kazenelson to 3 1/2 years in jail, stated that Mr. Kazenelson not only did nothing to rectify the dangerous situation, he permitted all six workers to board the swing stage together with their tools; he did so in circumstances where he had no information with respect to the capacity of the swing stage to safely bear the weight of the workers and their tools; and he “adverted to the risk, weighed it against Metron’s interest in keeping the work going, and decided to take a chance.  That is a seriously aggravating circumstance in relation to the moral blameworthiness of his conduct.”  Mr. Kazenelson was aware that there was a deadline for completing the work and that his boss was intent on meeting it.

The Court of Appeal for Ontario rejected Mr. Kazenelson’s arguments that he should not have been found guilty of criminal negligence.  Mr. Kazenelson’s argument that the “approach of the trial judge stretches penal negligence too far” given that this was the first conviction of an individual supervisor under section 217.1 of the Criminal Code (which section was added by Bill C-45 in 2004) was rejected.  The appeal court also rejected the argument that Mr. Kazenelson did not show “a wanton and reckless disregard for the workers”.

With respect to the jail sentence, the appeal court rejected the argument that Mr. Kazenelson’s jail term should be shortened because the other workers were “contributorily negligent”; the court agreed with the trial judge’s reasoning that such argument “would ignore the reality that a worker’s acceptance of dangerous working conditions is not always a truly voluntary choice.  It would also tend to undermine the purpose of the duty imposed by s. 217.1 of the Criminal Code, which is to impose a legal obligation in relation to workplace safety on management.”  The appeal court also rejected the argument that, because Mr. Kazenelson was a first-time offender, the trial judge placed too much emphasis on “general deterrence”.

This case has, and will continue to, send a message to employers and supervisors that criminal negligence charges – in addition to Occupational Health and Safety Act charges – are a real possibility after serious workplace accidents, particularly accidents involving fatalities or serious permanent injuries.

R. v. Kazenelson, 2018 ONCA 77 (CanLII)

 

3 1/2 year jail term upheld on appeal in criminal negligence case against Metron Project Manager

“Absolute privilege” barred former employee’s complaint that employer’s confidential-information lawsuit against him was retaliatory under OHSA

The legal doctrine of “absolute privilege” prevented an employee from complaining that his former employer’s lawsuit against him was in retaliation (reprisal) for the employee filing a previous safety-retaliation complaint against the same employer.

Sometime after it terminated the employee’s employment, the employer started a lawsuit against the employee alleging that he had taken confidential information belonging to the employer.  The employee then brought a complaint to the Ontario Labour Relations Board (actually his second safety-reprisal complaint), alleging that the employer’s lawsuit was itself in retaliation for him bringing the previous safety-retaliation complaint and therefore that the employer’s lawsuit violated the Occupational Health and Safety Act and entitled him to damages.

The OLRB noted that the legal doctrine of “absolute privilege” is “rooted in the public policy concern for ensuring freedom of speech in the context of judicial and quasi-judicial proceedings”.  That is, lawyers and parties should be free to draft and serve legal pleadings, asserting their legal position, without fear that the words used in such pleadings, or the fact that they commenced the legal proceedings, could themselves form the basis for a lawsuit against them.

The OLRB decided that, in this case, the starting of the confidential-information lawsuit against the employee was protected by absolute privilege, and therefore could not be used as the basis of a safety-retaliation complaint against the employer at the OLRB.  As such, the employee’s OLRB complaint was dismissed.

Lawrence Hill v Deltro Electric Ltd., 2017 CanLII 87176 (ON LRB)

 

 

 

“Absolute privilege” barred former employee’s complaint that employer’s confidential-information lawsuit against him was retaliatory under OHSA

$5.3 million combined OHSA / EPA fine upheld on appeal in Sunrise Propane case: worker’s actions after explosions showed that he was not properly trained

The dramatic explosions at a propane facility in Toronto in 2008 resulted in the tragic death of one worker and damage to many nearby homes.  An Ontario judge has now upheld a combined fine of more than $5.3 million, plus the 25% “Victim Fine Surcharge”, against Sunshine Propane Energy Group and a related company, and two corporate directors.  We previously wrote about the trial decision and fines.

The appellants were found guilty, after a fourteen-day trial, of a total of seven charges under the Environmental Protection Act and Occupational Health and Safety Act.

With respect to the charge under the OHSA of failing to provide “information and instruction” to the worker, the court noted that the worker who died had only four to five months of experience at the company, and was effectively left in charge of the yard on the day of the explosions, which was “a position prohibited by his lack of education, experience and training”. The trial judge decided that the explosions were a foreseeable event given that an untrained employee had been left in charge, and the appeal court agreed. The appeal judge also agreed that the fact that the worker ran towards the explosions, instead of away from them, showed his lack of training.

The appeal judge also decided that the fines imposed were appropriate. The EPA fines of $5,020,000 (including $100,000 against each of the corporate directors) were unprecedented, but there were a number of “aggravating factors” including the “widespread damage and effects caused by the appellants’ reckless behaviour in conducting truck to truck transfers without licence and with full knowledge of the risk . . .”  Also, “the magnitude of the event was unprecedented in Ontario”.  The OHSA fines of $280,000 were also appropriate in the circumstances.

R. v. Sunrise Propane Energy Group Inc., 2017 ONSC 6954 (CanLII)

 

$5.3 million combined OHSA / EPA fine upheld on appeal in Sunrise Propane case: worker’s actions after explosions showed that he was not properly trained

Fact of accident, without more, is not enough to convict on OHSA charges, appeal court decides

A trial judge was wrong to find a City guilty of Occupational Health and Safety Act charges solely because an accident had occurred in which a worker died.  The trial court should have gone further and analyzed each charge.

The charges were filed against the City of St. John’s after a tragic accident on a road construction site that resulted in one worker dying after being hit by a car. There were seven charges against the City including failure to provide adequate training and failure to maintain adequate traffic control.

The trial judge had held that the mere fact of the car striking the employee was proof of the actus reus of the charges.  The appeal court decided that that was wrong: the trial judge should have analyzed each charge to determine whether the prosecutor had called evidence to prove each element of the offence.  The trial judge had wrongly focused on the consequences of the alleged breach of the OHSA (the accident and the worker’s death) rather than on “the identification and proof of the actual elements of each offence”.

This decision is a welcome reminder that occupational health and safety prosecutors cannot simply rely, in seeking to obtain a conviction on OHSA charges, on the fact that an accident took place. Instead, they must do the work of proving each charge.

R. v St. John’s (City), 2017 NLCA 71 (CanLII)

Fact of accident, without more, is not enough to convict on OHSA charges, appeal court decides

Court finds that “accident as prima facie breach” principle precludes an order for particulars on an OHSA “general duty” charge

The “accident as prima facie breach” principle has been before the court in several recent cases, often with some discrepancy in its application. The principle was again before an Alberta court recently in the context of an application for particulars.

The principle provides that in some cases, proof that an employee was injured in an accident while performing his or her employment duties proves the actus reus for an occupational health and safety (OHSA) “general duty” charge, as long as the necessary elements are proven beyond a reasonable doubt. The burden then shifts to the accused to establish a due diligence defence.

In this case, a worker was seriously injured in a workplace incident and the employer was charged with 8 counts. Count 1 of the Information was a “general duty” breach allegation stating that the employer had failed to ensure, as far as it was reasonably practicable to do so, the health and safety of the worker, contrary to section 2(1)(a)(i) of the Occupational Health and Safety Act (Alberta). After receiving the Crown’s disclosure, the employer applied for particulars of Count 1 on the basis that there was information contained in the Crown disclosure which left the employer uncertain about what act or omission the Crown intended to rely on to sustain Count 1.

At the application hearing, the first issue before the court was whether the “accident as prima facie breach” principle for an OHSA general duty charge would preclude an order for particulars. The court reviewed the principle, noting that the case law had established that the “accident as prima facie breach” principle requires that in order for the Crown to prove the essential elements of an OHSA “general duty” charge beyond a reasonable doubt, the Crown must prove that:

  1. there was an employee;
  2. the employee was injured in an accident; and
  3. the employee was performing his or her duties in the course of his or her employment when injured.

The court noted that the principle does not relieve the Crown of establishing beyond a reasonable doubt that the employer committed a wrongful act but rather, reflects that sometimes, proof of the consequence, that is, the accident, is sufficient to establish that a wrongful act was committed. However, the principle was not one that would apply in all cases as there may be some instances where the wrongful act by the employer cannot be inferred from the circumstances of the accident.

Requiring the Crown to provide particulars of the specific acts, omissions or breaches by the employer under Count 1 would transform those particulars into essential elements of the actus reus of the offence which the Crown would then need to prove beyond a reasonable doubt. The court found that this would generally be inconsistent with the principle applicable to an OHSA “general duty” charge and would place a far higher onus on the Crown.

In the case before it, it was known why the incident happened. A boom stick being held above the ground by a hook and sling held by a caterpillar tractor fell from the hook and sling, severely injuring the worker. As such, the court determined that it was appropriate to apply the “accident as prima facie breach” principle and thus the court was precluded from making an order for particulars of the acts, omissions or breaches by the employer for the Court 1 OHSA “general duty” charge.

The court then proceeded, in obiter, and in what results in a somewhat confusing decision, to find that if the court was wrong on the conclusion that the “accident as prima facie breach” principle precluded it from ordering particulars, then the court would have made an order for particulars as requested by the employer.

R. v. Midwest Pipelines Inc., 2017 ABPC 222

Court finds that “accident as prima facie breach” principle precludes an order for particulars on an OHSA “general duty” charge

In important decision, Ontario appeal court says that general duty clause in OHSA can impose higher obligations than specific requirements in regulations

The Ministry of Labour can prosecute employers under the “general duty” clause of the Occupational Health and Safety Act even where the charges impose obligations that are greater than those set out in the regulations under the OHSA, the Ontario Court of Appeal has decided.

In this case, a trial and appeal justice had decided that the employer could not be found guilty of failing to provide guardrails around a temporary work platform.  They reasoned that the applicable regulation under the OHSA (“Industrial Establishments”), which dealt with the issue of guardrails, did not require guardrails in this particular situation (a temporary work platform at a height of six feet).  As such, the lower courts held that the MOL could not use the “general duty” requirement found in s. 25(2)(h) of the OHSA to impose obligations greater than those in the regulation.

The Ontario Court of Appeal disagreed, stating that regulations cannot be expected to anticipate the circumstances of all workplaces across Ontario. The key question in this case was whether the installation of guardrails was a reasonable precaution.  The Court of Appeal held that the trial justice failed to address that point.

The court concluded, at paragraph 45:

It may not be possible for all risk to be eliminated from a workplace, as this court noted in Sheehan Truck, at para. 30, but it does not follow that employers need do only as little as is specifically prescribed in the regulations. There may be cases in which more is required – in which additional safety precautions tailored to fit the distinctive nature of a workplace are reasonably required by s. 25(2)(h) in order to protect workers. The trial justice’s erroneous conception of the relationship between s. 25(2)(h) and the regulations resulted in his failure to adjudicate the s. 25(2)(h) charge as laid.

Practically, one expects that MOL inspectors will consider using this decision to issue compliance orders – or charges – under the “general duty clause” even where the regulations deal with the specific safety issue at hand – such as guardrails or fall arrest – but do not apply in the particular case.  For instance, MOL inspectors may issue compliance orders or charges for failing to provide guardrails around a temporary work platform that is only one foot high.

The appeal court allowed the appeal and ordered a new trial before a different justice.

Ontario (Labour) v. Quinton Steel (Wellington) Limited, 2017 ONCA 1006 (CanLII)

In important decision, Ontario appeal court says that general duty clause in OHSA can impose higher obligations than specific requirements in regulations

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

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

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

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

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

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

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

 

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

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

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

In a July blog post, we reported on an earlier decision in this case.  The OHSA charge against the company resulted from a fatality at a construction site after a “curb machine” overturned while being off-loaded from a “float” trailer, crushing a worker who later died. There were no witnesses to the accident.  The charge against the company alleged that the curb machine was moved in a manner that endangered a worker.

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

The court stated:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The arbitrator stated:

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

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

The arbitrator concluded:

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

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

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

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

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

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

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

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

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

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

The court concluded:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Attendance management program was not discriminatory, appeal court decides

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

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

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

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

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

The appeal court stated:

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

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

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

 

 

Attendance management program was not discriminatory, appeal court decides

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

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

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

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

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

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

The HRTO stated:

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

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

In conclusion, the HRTO decided:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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