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Ninety-day administrative driving suspension for impaired driving was not just cause to fire Assistant Fire Chief

An Assistant Fire Chief has won his wrongful dismissal suit after he was fired following a 90-day administrative driving prohibition for impaired driving while off-duty.

The Assistant Fire Chief was on the way home from a “date night” with his spouse when he was pulled over for suspected impaired driving.  He failed two roadside breathalyzer tests and received the administrative driving suspension. He immediately advised the Fire Department and was distraught and remorseful. 

Although the Fire Chief and human resources advisor advised against firing, and a number of firefighters signed a letter asking that the Assistant Fire Chief not be fired, the fire department’s Chief Administrative Officer was adamant and went ahead and dismissed him. 

The court held that the fire department did not have just cause for dismissal.  The Assistant Fire Chief was off-duty and he was not representing the fire department at the time.  While the truck he was driving belonged to the fire department, it was not marked as such.  There was no public knowledge of his administrative driving prohibition.  His conduct was not of the same “moral reprehensibility” as in other cases where employees’ off-duty conduct was just cause for dismissal.  The Assistant Fire Chief was not the public face of the fire department.  The other career firefighters in the fire department had not lost confidence in him.  There was no criminal charge, but rather he received a 90-day driving suspension.  In conclusion, the court decided that his off-duty conduct was not incompatible with the faithful discharge of his duties or otherwise prejudicial to the interests or reputation of the fire department. 

In the end, the court awarded the employee five months’ salary as provided for in his employment contract.

Klonteig v West Kelowna (District), 2018 BCSC 124 (CanLII)

Ninety-day administrative driving suspension for impaired driving was not just cause to fire Assistant Fire Chief

Owner of electrical contractor, who transferred assets due to looming charges, held personally liable for company’s $430,000 regulatory fine

In what appears to be a novel decision in the regulatory context, a judge has held an owner of an electrical contracting firm personally liable for the company’s regulatory fines after he transferred assets out of the company following a fatal incident.

In 2014, an elderly man died from burns after being found lying on his bathroom floor, which had overheated.  It turned out that the overheating was caused by the negligence of one of the contractor’s employees four years earlier when he installed an underfloor heating mat in the bathroom.

The company pleaded guilty to three charges under the Electricity Act in respect of the installation.  The court fined the company $430,000.

The judge found that the owner had transferred assets, including property, out of the company after he learned that the company was going to be charged, in order to avoid having to pay a fine.   The judge also stated that the owner had been dishonest in his testimony, and misleading to the Electrical Safety Authority. The company was evidently left with no, or very few, assets to pay the fine.

The judge decided to “pierce the corporate veil” and require the owner and a related entity, to which he had transferred assets, to pay the fine.  In a rather scathing decision, the judge held that the owner, by blurring the lines between himself and the company, had put his own personal assets at risk.  The judge decided that although no statute gave him the power to “pierce the corporate veil” and make the owner personally liable, a judge should do so where it would be “too flagrantly opposed to justice” not to.  The judge stated:

If Mr. Merante had simply shuttered Pro-Teck and left its assets intact and gone on and opened up Master Electric, he could not have been faulted . . . But he did not simply do that.  Two roads diverged before him and Mr. Merante took the one marked self-interest and deceit rather than the one that was marked by his duty to respect his obligations as a shareholder and his duty to accept that the protections that came with Pro-Teck’s corporate status also created responsibilities.

In the result, the judge decided that the owner’s “acts deprive him and Master Electric, both beneficiaries in one way or another of the diversion of assets, of their legal separateness from Pro-Teck.  He in effect treated all three legal entities as one; as he sowed, so shall he reap.  The fines levied against Pro-Teck may be recovered from Mr. Merante personally and from Master Electrical Contracting Services Ltd., 2433302 Ontario Ltd.”

It is unknown at this time whether this decision has been appealed.  Although the owner’s behaviour was clearly troubling to the judge in this case, it is an open question as to whether an appeal court would decide that the judge had the legal authority to “pierce the corporate veil” and make the owner personally liable for the fine.

R. v. 1137749 Ontario Ltd. (operating as Pro-Teck Electric), 2018 ONCJ 502 (CanLII)

Owner of electrical contractor, who transferred assets due to looming charges, held personally liable for company’s $430,000 regulatory fine

Court declines to quash “bid ban” imposed by City on paving company for safety and other reasons

A recent Ontario court decision illustrates the serious business implications that Occupational Health and Safety Act compliance issues or disputes can have on a company.

The City of Sudbury banned a paving company, Interpaving, from bidding on City contracts for four years. The City gave three reasons for the ban.  According to the City: (1) Interpaving had sued the City in relation to five City projects or contracts; (2) Interpaving violated health and safety legislation, and (3) Interpaving had “a significant history of abusive behaviour and threatening conduct” toward City employees.

With respect to safety issues, the City noted an incident in 2015 in which a pedestrian was struck and killed by a construction vehicle as she entered a construction zone in which Interpaving was working.  The Ministry of Labour issued compliance orders against Interpaving and the City. Interpaving took the position, in appeals of those orders, that the City and not Interpaving was the constructor under the OHSA. The City claimed that Interpaving failed to understand its obligations under the OHSA including its role as constructor and failed to cooperate with the City on safety matters.

Interpaving asked the court to overturn the bid ban. It argued that the City had not followed a fair process in coming to the decision to impose the bid ban. The majority of the court disagreed. The majority decided that although the City had initially breached its obligation of procedural fairness (by not giving Interpaving notice of its intention to debar, the City’s grounds for debarring, a description of the potential penalties and an opportunity to respond), the City had “cured” that breach through its “reconsideration and process which gave Interpaving full opportunity to be heard.

The Court stated:

In the Debarment Letter, the City made reference to “numerous orders in relation to projects that Interpaving has been involved in for the City…including seven orders in relation to the City’s Elgin Street Project issued by the Ministry of Labour”. The reference to OHSA orders was also made under the heading “Poor Contract Performance”.  Contrary to the assertion made by Interpaving, there is nothing unreasonable in the consideration of OHSA orders in connection with the quality oflnterpaving’s contract performance. [emphasis added]

Interpaving stated that it employed 200 people in the city and an additional 200 in the summer.  This type of “debarment” decision by public entities can have a serious impact on businesses.  The Court decision indicates that Interpaving’s road paving business is primarily in the City of Greater Sudbury.

Interpaving Limited v. City of Greater Sudbury, 2018 ONSC 3005 (CanLII)

Court declines to quash “bid ban” imposed by City on paving company for safety and other reasons

Armoured car employee’s work refusal due to Christmas crowds was not justified

A federal adjudicator has decided that an armoured car worker was not justified in refusing to do a “run” at a mall because of the crowds during the Christmas shopping season.

The employee claimed that due to crowds, he was unable to maintain a “21 foot perimeter” when he went into the mall, crowded with Christmas shoppers, and that that put him at increased risk of a robbery.  He therefore argued that under the Canada Labour Code, he was justified in refusing to work.

The adjudicator rejected the employee’s argument, finding that the evidence had not proven that there were serious crowds at the mall in the morning when he did the “run”. Further, there  had not been a robbery at the particular shopping centre in the last 10 years.  The adjudicator concluded that the employee was not exposed to an imminent or serious threat to his life or health.  Therefore his work refusal was not justified.

The adjudicator’s decision may be read here.

Armoured car employee’s work refusal due to Christmas crowds was not justified

Nurse’s critical comments at union conference about workplace violence in hospitals were not just cause for dismissal

A mental health nurse whose critical comments, in a closed-door union meeting, about workplace violence in hospitals were later published online by a local newspaper and in a union press release without her knowledge or permission, has been reinstated by an arbitrator with back pay.

The comments in the union press release that were attributed to the nurse included:

“Staff at hospitals with forensic psychiatric units or those with medium security units where patients come direct from area prisons are “easy targets for violence” on understaffed wards. Many of these patients are strong and aggressive young offenders and nurses are told that “the violence is part of the work we do. Nurses are often blamed directly by the employer for the assaults that are directed at them. Or supervisors tell nurses ‘thanks for taking one for the team’. Often nurses face reprisals for reporting incidents of violence and when we demand increased security matters,’ says Sue McIntyre a North Bay psychiatric RPN.”

When her comments were published online by the local paper, the nurse intervened and had the comments taken down within three hours of being posted. The employer concluded that the comments were about the hospital and its staff and patients, not general comments about hospitals, and that the comments were false and had harmed the hospital’s reputation.  It dismissed her, claiming just cause.

The union grieved the dismissal. The arbitrator decided that dismissal was excessive.  A one-week suspension was more appropriate. The comments were made at a legitimate closed-door trade union meeting about workplace safety.  Workplace violence was an important issue in the hospital sector.  Media were not present or invited.  The nurse did not intend the comments to be public.  She was given very little time to think about and prepare her comments.  The union press release and newspaper article were published without her knowledge or consent.  She took prompt steps to have any comments attributed to her removed from those documents.

The arbitrator decided, however, that it was not entirely unforeseeable that the comments would become public, so she must bear some responsibility for the words that she spoke.  Also, the comments were not truthful to the extent that they were comments about the hospital at which she worked.  She had previous discipline on her record.  In the circumstances, a one-week suspension was appropriate, and the employer was ordered to reinstate the nurse with back-pay.

North Bay Regional Health Centre v Canadian Union of Public Employees, Local 139, 2018 CanLII 6645 (ON LA)

Nurse’s critical comments at union conference about workplace violence in hospitals were not just cause for dismissal

Possession of “small amount” of marijuana was just cause to fire employee who had “not carefully checked his pockets” before screening to board flight for offshore platform

An appeal court has upheld the firing of a unionized millwright who was caught with a small amount of marijuana in his jeans pocket during screening prior to boarding a helicopter that would transport him and other employees to an offshore platform. The employer had a policy prohibiting possession of an “illegal drug”, including marijuana, “while on company facility or while performing company business”.

The employee, who was employed on a “call-in” or casual basis, claimed that he was “in disbelief that it was there” and that he “did not know how it got in his pocket”.  The labour arbitrator found that the employee likely knew that he possessed marijuana (noting that he did not protest “loud and long” that the marijuana was not his or that he had no knowledge of his having possessed it) but had forgotten it and had not carefully checked his pockets.  The arbitrator had upheld the employer’s decision to dismiss the employee, but  a judge of the Newfoundland Supreme Court had set that decision aside.

The Newfoundland and Labrador Court of Appeal restored the arbitrator’s decision, stating:

“To avoid disciplinary action, the employee was required to establish that he had taken all reasonable care to ensure that he did not breach the Policy by having possession of marihuana.  The arbitrator reviewed the circumstances and the explanation provided by the grievor and concluded that he had not satisfied this onus.  Rather, the arbitrator found that the grievor more probably than not knew about the marihuana in his pocket, but had forgotten it was there and had not carefully checked his pockets before entering the screening area . . .  The employee’s actions did not establish that he had taken all reasonable care to ensure that he did not breach the Policy.  He did not meet the standard of the reasonable person in similar circumstances.”

The employer’s decision to dismiss the employee was therefore upheld.

Terra Nova Employers’ Organization v Communications, Energy and Paperworkers Union, Local 2121, 2018 NLCA 7 (CanLII)

Possession of “small amount” of marijuana was just cause to fire employee who had “not carefully checked his pockets” before screening to board flight for offshore platform

MOL consulting on changes to Industrial Regulations – new requirement of written risk assessment proposed

The Ontario Ministry of Labour is consulting on proposed changes to the safety regulation that applies to most businesses in Ontario: the Industrial Establishments regulation under the Occupational Health and Safety Act.  Offices, factories, shops and restaurants – and many other workplaces – are caught by this regulation.

One proposed change is particularly notable: it would require employers to assess the risks of hazards that arise from the workplace, at least annually, and provide the results in writing to the joint health and safety committee.  The risk assessment requirement would be an “if you do nothing, you will be in breach” obligation, which requires employers to take a positive step in order to comply.  That requirement would not apply to workplaces at which fewer than 20 workers are regularly employed.

The amendments would also require employers to develop and maintain written measures to control the risks identified in the risk assessment and, where practicable, eliminate the hazards.  There are relatively few requirements on industrial employers under the OHSA to put things in writing, but this will be one such requirement.

The risk assessment would open up a new liability risk for Ontario employers: employers who neglect to do the risk assessment may be charged and fined for failing to do it; employers who conduct the risk assessment may have the MOL argue that they did not adequately address the risks identified.  Mining employers already have similar risk assessment obligations.

The MOL, on its website, states that the government is proposing a number of other amendments to the Industrial Establishment regulations:

“• Update existing requirements regarding guardrails, fall protection, protection against drowning, signallers, eyewash fountains and deluge showers to reflect current workplace practices, processes and technologies; . . .
• Add new requirements for scaffolds and suspended access equipment, similar to existing requirements currently set out in O. Reg. 213/91 (Construction Projects);
• Add new, specific requirements for storage racks and for high visibility safety apparel for signallers to improve worker health and safety and to improve clarity and transparency regarding compliance expectations; and
• Make additional amendments for clarification and to increase alignment between OHSA regulations.”

The MOL is receiving comments on these proposed new requirements until April 6, 2018.  The comment link is at the bottom of the MOL’s web page on the proposed amendments.

MOL consulting on changes to Industrial Regulations – new requirement of written risk assessment proposed

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

The introduction of Bill 30 brings the potential for significant changes to Alberta’s workplace laws

On November 27, 2017, the Government of Alberta introduced numerous proposed changes to Alberta’s Occupational Health and Safety Act and Workers’ Compensation Act. The proposed changes are contained in Bill 30: An Act to Protect the Health and Well-being of Working Albertans.

A review of the key proposed changes in Bill 30 is found here. 

 

The introduction of Bill 30 brings the potential for significant changes to Alberta’s workplace laws

Second OHSA conviction gets construction employer jailed for 30 days

Another Ontario employer has been jailed for violating the Occupational Health and Safety Act. As in some previous OHSA jail-time cases, this one involved a worker falling off a roof.

For our blog posts on some previous OHSA jail-time cases, click here.

The worker was working on the roof of a construction project. He was wearing a fall-arrest harness that was attached to a lanyard, which was connected to a lifeline. The worker detached the lanyard from the lifeline and moved toward a different lifeline at the peak of the roof. He slipped and fell almost 30 feet to the ground and was seriously injured.

The employer, an individual, pleaded guilty to failing to ensure that the worker was attached to a travel restraint system at all times.  The court sentenced the employer to 30 days in jail.

Importantly, this was the employer’s second conviction under the OHSA.  In 2013, another worker employed by the employer died after he fell 26 feet to the ground. The employer was fined $15,000 in that case.

For years, jail terms were very rare in OHSA matters.  The courts appear to be getting more comfortable with imposing jail time for serious OHSA violations by repeat offenders.

The MOL press release for this case can be found here.

Second OHSA conviction gets construction employer jailed for 30 days

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

Loader operator entitled to remain in job despite accidents: insufficient warnings and training, decides arbitrator

A labour arbitrator has ordered an employer to return an employee to his loader operator  position despite the employer’s objection that the employee had caused accidents.

The employee, who had almost 40 years of service including 15 as a loader operator, had been involved in eight incidents in which damage to the employer’s property occurred.  His incident rate of 1.2% was the highest amongst all of its yard loader operators.  After the eighth incident, the employer told him that he was disqualified from the loader operator position and was being transferred to the debarker position. The union grieved.

The arbitrator overturned the transfer. She noted that the employer’s evidence was that the employee had been “involved” in the eight incidents.  The most recent warning was five years before the incident, and only warned him to be more aware of the “whereabouts” of other vehicles, and two years earlier that damage to the employer’s property was not “acceptable”.  At no time was he warned or put on notice that he was viewed as a safety risk and that his employment as a loader operator was in jeopardy.

The arbitrator also noted the absence of evidence that employer provided the employee with training of any sort in an attempt to address performance concerns or assess ability to work safely. The evidence did not support the employer’s conclusion, drawn from the record of incidents, that the employee was no longer able to work safely in the yard loader operator position.

The arbitrator stated that she did not minimize the employer’s “very significant obligations to ensure that the workplace is safe, and to respond to safety issues”.  Based on the absence of warnings or training to address the safety concerns, however, she ordered the employer to reinstate the employee to the yard loader operator position.

Columbia Forest Products v United Steelworkers, Local 1-2010, 2017 CanLII 21145 (ON LA)

Loader operator entitled to remain in job despite accidents: insufficient warnings and training, decides arbitrator

Safety officer, fired after company loses COR certification, wins wrongful dismissal lawsuit

A safety officer whose duties included maintaining his employer’s Certificate of Recognition (COR) certification was not fired for just cause, a court has decided. The company claimed that it lost its COR certification due to his failure to complete certain COR requirements by an end-of-year deadline.

The judge noted that the COR certification “recognizes a high standard of industrial/commercial safety and thereby creates several associated benefits for companies that maintain certification”, and “A COR designation gives a company significant credibility as a leader in high safety standards. Further, it is a prerequisite to serving certain clientele, such as the municipalities of Edmonton and Calgary, and creates significant reductions in WCB premiums.”

The company lost its COR certification when the safety officer failed to meet certain COR requirements including the requirement that an external auditor receive an application for an audit by the December 31 deadline.  The company viewed this as “‘potentially disastrous’ to the company, as it jeopardized several contracts with both the City of Edmonton and the City of Calgary.”

The court found that the safety officer naively believed that, despite the lack of assistance available to him, he could complete necessary internal safety audits in time or get an extension. The court stated, “Naiveté is not dishonesty.  I find he honestly believed that he would obtain this extension of time.”  The application for an extension of time was rejected, the company lost its COR certification, and the employee was fired.

The court noted that the safety officer had become very ill with an autoimmune disease. Also, his supervisor left the company and his new supervisor worked in another city, which meant that they would no longer have daily interactions. The court decided that the employer had repudiated the employment relationship by eliminating the assistance that the safety officer required from other employees to carry out his duties, and eliminating the supervision and support that he required.  The safety officer had pleaded for help and “this plea fell on deaf ears”.

As such, the termination was without just cause. The safety officer, who had four years of service and earned $82,400 per year, was entitled to six months’ notice of termination.  His damages, after deducting his mitigation income from new employment, were $28,709.00.

We understand that this decision has been appealed.

Tipon v. Fleet Brake Parts & Service Limited, 2017 ABPC 29 (CanLII)

Safety officer, fired after company loses COR certification, wins wrongful dismissal lawsuit

Worker entitled to sue coworker for failure to report absence of or defect in protective equipment: court

An Ontario judge has allowed an injured worker to proceed with his lawsuit against a coworker for failing to report the absence of or defect in fall arrest equipment.

The injured worker was hired by a friend to assist in roofing a customer’s house.  He fell from the roof and was badly injured.  He was not wearing appropriate fall arrest equipment.

The injured worker sued his friend and the homeowner.  He sought to later add a coworker and his company (who apparently were there on the day of the accident, and also completed the roofing work after the accident) as defendants to the lawsuit.  The coworker sought to have the claim against him and his company struck out, arguing that there was no legal cause of action against him. The judge disagreed.  He stated that the injured worker had an “arguable cause of action” against the coworker and his company for negligence, “informed by their failure to report . . . the absence of or defect in any safety equipment [the injured worker] used or any unsafe conditions or contravention of the OSHA [sic] or regulations thereunder, pursuant to s. 28(1)(c) or (d)” of the OHSA.

Those sections of the OHSA impose a legal duty on each worker to “report to his or her employer or supervisor the absence of or defect in any equipment or protective device of which the worker is aware and which may endanger himself, herself or another worker” and “report to his or her employer or supervisor any contravention of this Act or the regulations or the existence of any hazard of which he or she knows.”

Interestingly, the parties appear not to have argued whether the injured worker’s lawsuit was barred by the Workplace Safety and Insurance Act because the injury arose out of and in the course of employment.

MacPherson v Samuel, 2017 ONSC 2024 (CanLII)

Worker entitled to sue coworker for failure to report absence of or defect in protective equipment: court

Injured worker’s claim lacked the “something more” needed to establish personal liability against employer’s directors

The Alberta Court has confirmed that in order for a director of a corporate employer to be found personally liable for damages sustained by one of the corporation’s workers in a workplace accident, there must be “something more, sufficient to establish independent tortious liability.”

This case arose from a workplace accident. The plaintiff worked for an oil tank repair company. He was working on a tank with a co-worker when the tank exploded, killing the co-worker and injuring the plaintiff. The Workers’ Compensation Act prohibited the plaintiff from suing his corporate employer. However, the directors of the corporation, the wife and sister of the deceased co-worker, were not considered workers nor employers under the Workers’ Compensation Act and so were not protected from suit.

The plaintiff sued the two sole directors, alleging that the accident was caused by their negligence. The particulars of negligence pled included that they had failed to ensure that the company’s tanks were properly inspected and maintained, had failed to ensure adequate safety procedures were in place and being properly followed, including safety measures required under the Occupational Health and Safety Act, and had failed to ensure workers were properly trained. The directors applied to have the claim against them summarily dismissed.

The application was initially dismissed by a Master and the directors appealed. The Justice hearing the appeal noted that the Master relied heavily on the Alberta Court of Appeal’s 2006 decision in Nielsen (Estate of) v. Epton, where a director was found personally liable following a workplace fatality. However the Justice found that case was distinguishable on its facts because in Epton, the director was directly involved in the work that led to the accident. In this case, there was no evidence that the directors had any involvement with the work being undertaken on the tank. The deceased worker (the husband of one of the directors) and the husband of the other director, were primarily in charge of running the company. The wives (the directors) had no operational involvement in the work being done by the plaintiff and there was no evidence that the plaintiff had any need or expectation they would give him any instructions on how to do his work.

The Justice confirmed that Epton did not stand for the proposition that a director who fails to carry out the duties of a director, or does so negligently, is automatically personally liable. The Justice accepted that the directors may have been negligent in their corporate capacities, but that was not enough to create independent tortious liability. Further, the Justice agreed with the directors that there was no causal link between their alleged negligence as directors and the plaintiff’s injury. There was no evidence that they were acting in a personal capacity or that what they did or did not do in their personal capacities was a material cause of the plaintiff’s injuries. As such, it was appropriate to grant summary judgment dismissing the claim against the defendants.

While the directors fared well in this case, this decision serves as a reminder that with the proper facts, directors may be liable to a worker for a workplace accident, even where the corporate employer is protected by the Workers’ Compensation Act, unless the directors have personal workers’ compensation coverage.

Bower v. Evans, 2016 ABQB 717 (CanLII)

Injured worker’s claim lacked the “something more” needed to establish personal liability against employer’s directors

Church defeats lawsuit by volunteer after stepladder accident. Duelling OHS experts’ testimony considered

A volunteer has lost his lawsuit against a church after he fell off a stepladder he was using at the church.

The volunteer was a parishioner at the church who agreed to help with painting.  He claimed that the church’s negligence led to the accident.  He argued, in support of his negligence claim, that the church violated regulations under the Occupational Health and Safety Act.

The court heard expert testimony from two occupational health and safety experts.  The court rejected one expert’s testimony, which had been “denuded of efficacy” on cross-examination. The court accepted the other expert’s testimony. That expert’s opinion was that the volunteer was not a “worker” under the OHSA; that the regulations under the OHSA did not apply; that because of the precautions taken by the church, even if the regulations did apply, the church did not breach them; and that had the church been prosecuted under the OHSA, the charges would have been dismissed.

It was important to the court that the volunteer had not been asked to install trim but took it upon himself to do so, contrary to instructions. He took the “variation in risk” upon himself.  He fell off the stepladder when working on the trim, not while painting.

With respect to the OHS experts’ testimony, the court noted:

“The exercise [of hearing testimony from the OHS experts] was beneficial.  The standards articulated in the OHSA are for the most part an attempt to legislate common sense.  These standards do not apply to volunteers; however, the analysis applied by an inspector in assessing a set of circumstances for the purposes of statutory compliance has similarities to the analysis of compliance with the occupier’s atattory [sic] standard of care and the plaintiff’s assumption of risk.”

The court, in dismissing the volunteer’s lawsuit against the church, concluded:

“The defendant provided a stable ladder, a flat and stable working surface, appropriate ladder use instruction and maintained general compliance observations over many weeks and hours . . .

“Even if it could be said that the tableau presented an objectively unreasonable risk of harm, it was the plaintiff who undertook this task of his own volition contrary to instructions from Jarvis.  He assumed the variation in risk.  The defendant asked for paint volunteers.  The plaintiff was not asked to install trim. This work was beyond Jarvis’ purview . . .”

Baltadjian v The Roman Catholic Episcopal Corporation for the Diocese of Alexandria, 2017 ONSC 61 (CanLII)

Church defeats lawsuit by volunteer after stepladder accident. Duelling OHS experts’ testimony considered

Regulation still required compliance with older ANSI standard, not updated version: Tribunal

Where the government had not updated a regulation to require compliance with a newer version of an ANSI (American National Standards Institute) standard, the law still required compliance with the old version, a federal tribunal has decided.

Section 2.9 of the Canada Occupational Health and Safety Regulations required that “A fixed ladder installed after the day of the coming into force of this section shall be designed, constructed and installed in accordance with the requirements of ANSI Standard A14.3-1984 entitled American National Standard for Ladders — Fixed — Safety Requirements, as amended from time to time, other than section 7 of that Standard.”

That 1984 ANSI standard was replaced by new versions in 1992 and 2008.

The Occupational Health and Safety Tribunal Canada decided that the 1984 ANSI continued to govern – not the 1992 and 2008 versions – because the 1984 standard was the one referred to in the regulation.  The 1992 and 2008 versions were “replacement” versions, not “amended” versions of the 1984 standard.  The 1984 ANSI standard did not require that “swing gates” be installed at the openings of rest platforms on fixed ladders, and therefore the Direction issued by a federal safety officer was rescinded.

Richardson Pioneer Limited, 2016 OHSTC 16 (CanLII)

 

Regulation still required compliance with older ANSI standard, not updated version: Tribunal

Men without hardhats: where freedom of religion loses out to workplace safety

Freedom of religion and the duty to accommodate within the workplace context is a highly important issue in Québec given the discrimination provisions of the Canadian Charter of Rights and Freedoms as well as the Québec Charter of Human Rights and Freedoms. Employers and employees must work together to attempt to reconcile the right to freedom of religion of employees with the legal obligations imposed on employers under occupational health and safety laws. Quebec courts have been frequently called to rule on this particular subject over the years.

Most recently, in the case of Singh et al. v. Montréal Gateways Terminals et al., the Superior Court of Québec was called to rule on the issue as to whether individuals of the Sikh religion could be exempted from a work policy implemented by the Montréal Gateways Terminals (“MGT”), Empire Stevedoring Co. Ltd. and Termont Terminals Inc. (collectively the “Defendant Terminals”). This policy required all workers to wear a hardhat when circulating outside on the premises of the terminals. The Plaintiffs, truck drivers whose work included transporting containers, claimed that their religious belief prohibited them from wearing such hardhats. Accordingly, they maintained that this policy was discriminatory and violated their right to freedom of religion. Upon adopting the policy, MGT tried to accommodate the Plaintiffs by modifying its container loading procedures which enabled them to stay in their vehicles and, hence, avoid wearing hardhats. However, these measures were rejected by the Plaintiffs as they claimed that they involved significant disadvantages.

This issue was decided upon on September 21st 2016 by Mr. Justice Prévost, J.C.S., who ruled that although MGT’s policy was prima facie discriminatory and violated the right to freedom of religion as regards to the Plaintiffs, it was nevertheless justified given the imperative objectives of such policy.

In reaching his decision, Mr. Justice Prévost, J.C.S., began his analysis by examining the principles with respect to discrimination enshrined in the Canadian Charter of Rights and Freedoms and the Québec Charter of Human Rights and Freedoms. To that effect, this decision is of significant importance as it is a rare case of transposition of the protections granted under the Québec Charter of Human Rights and Freedoms to a federally-regulated workplace. He established that the policy was in fact discriminatory since the Plaintiffs could not meet the requirement of wearing a hardhat without violating their religious beliefs and, thus, could not work at the terminals operated by MGT. He also confirmed that the policy violated the Plaintiffs’ right to freedom of religion as their belief was sincerely held and the challenged policy interfered with the Plaintiffs’ ability to act in accordance with their beliefs in a manner that was more than trivial or insubstantial.

Nonetheless, Mr. Justice Prévost, J.C.S., held that the policy implemented by the Defendant Terminals was justified as it was adopted in order to ensure the safety of workers circulating or working in the terminals operated by the Defendant Terminals. There was in fact a substantial risk of head injuries for truck drivers when they were required to circulate outside their vehicle on the premises of the terminals. In rendering his decision, Mr. Justice Prévost, J.C.S., also underlined the importance of health and safety at work within the Québec society.

Empire Stevedoring Co. Ltd., Termont Terminals Inc. and the Montreal Port Authority were represented by Vikki-Ann Flansberry from Dentons Montreal.

Singh et al. v. Montréal Gateways Terminals et al. 2016 QCCS 4521

Click on the link to have access to the decision (available in French only)

Men without hardhats: where freedom of religion loses out to workplace safety

OHSA conviction, $48,000 fine upheld on appeal: “blocking” of machine required physical block

An Ontario Appeal judge has upheld an employer’s conviction under the Occupational Health and Safety Act for failure to “block” a machine, after the trial justice held that “blocking” required a physical block, not simply shutting off the hydraulic power.

The Ontario Ministry of Labour had charged the company with failing to ensure that a “part of a machine, transmission machinery, device or thing shall be cleaned, oiled, adjusted, repaired or have maintenance work performed on it only when . . . any part that has been stopped and that may subsequently move and endanger a worker has been blocked to prevent its movement”, contrary to section 75(b) of the Industrial Establishments regulation under the OHSA.

A maintenance worker with the company, which operated a sawmill, suffered crushing injuries to his arm as he reached in between the “side heads” of a saw while performing maintenance.  Another employee, not knowing that the maintenance worker had gone into the area between the side heads, had used the control box for the machine to close the side heads.

The machine had been shut down for maintenance and its electrical system had been locked out.  However, the maintenance worker left the hydraulics on, which was required in order to move the side heads for maintenance.

The appeal court held that the trial justice had not erred in deciding that “blocking” required a physical block be used to restrain movement of the side heads.  It was reasonable to interpret “blocking” to require that a physical block, a “large solid piece of hard material” be used.

The conviction was therefore upheld. The appeal judge also held that the $48,000 fine was reasonable, despite the fact that the company had only 25 workers and no previous convictions under the OHSA.

Ontario (Ministry of Labour) v. McKenzie Lumber Inc., 2016 ONCJ 533 (CanLII)

 

OHSA conviction, $48,000 fine upheld on appeal: “blocking” of machine required physical block

Employer loses wrongful dismissal case after court finds safety rules unclear

An employer has lost a wrongful dismissal case after a court found that its safety rules, which it alleged the employee violated, were unclear and not clearly-communicated.

The employee worked at a solid waste facility in the Yukon.  The employer fired the employee and attempted to prove “just cause” on the basis of absenteeism, poor working relationships, use of company cell phone for personal calls, and safety violations.

With respect to safety, the employer claimed that the employee did not like to wear her safety vest and steel-toed boots, despite it being a job requirement, and that the employee was constantly reminded to wear her hard hat.  The employee acknowledged that she knew that if she did not comply with the safety rules, she would be fired; however, she said that the rules were unclear and she had asked that they be written down.

The court decided that the hard hat requirement was not clearly set out by the employer, and was not included in the employer’s “Employee Guidelines” document.  The court concluded:

“I find that the Society did not take the necessary steps to ensure that there was a clear and unequivocal set of rules, guidelines and/or policies that made it clear what equipment was to be worn at what locations and at what times.  I find that, to the extent that there was some verbal direction provided, this direction was not entirely clear and cannot be relied upon as establishing a standard that Ms. Goncharova can then be viewed as having breached.

The power to establish clear and unequivocal standards and requirements lay with the Society.  It simply was not done.”

The employer also failed to prove that the absenteeism, relationship issues and cell phone use justified the dismissal.

This case illustrates the importance of clear communication of safety rules where the employer wishes to discipline or dismiss the employee for a violation of those rules.

Goncharova v. Marsh Lake Waste Society, 2015 YKSM 4 (CanLII)

Employer loses wrongful dismissal case after court finds safety rules unclear