1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar

Three months until July 1 training deadline: Update on Ontario’s new safety awareness training requirement

Ontario employers have less than three months left to ensure that their workers and supervisors get “basic occupational health and safety awareness training” before the July 1, 2014 deadline.

Our February 25, 2014 article set out “what you need to do” to comply with this new requirement.

We have been considering various strategies for our clients as to how to provide this training, and have been in touch with the Ministry of Labour. Here are some updates and additional insights for employers to consider.

Can you combine the worker and supervisor training into one joint in-person session?

There is substantial overlap between the required content of the worker and supervisor training sessions.

If your company will be delivering the training face-to-face not using the Ministry’s online e-module, and is considering combining the worker and supervisor training into one session for all employees, ensure that the session covers all of the required content in the Regulation – but also covers the material from the perspective of both workers and supervisors.

The new Regulation refers to a basic occupational health and safety awareness training program for workers and a basic occupational health and safety awareness training for supervisors. A Ministry of Labour inspector could argue that “for” means “from the perspective of” or “tailored to”. So if, for instance, in a joint session you present only the supervisor’s perspective on a particular safety topic, an inspector might say that you have not complied with the Regulation’s requirement to provide the training “for” workers.

Although the required content for the worker and supervisor training overlap to some extent, you can see from the safety awareness training materials prepared by the Ministry of Labour (see our February 25th article for hyperlinks to those materials) that the Ministry approaches these topics quite differently for workers and supervisors. When delivering the safety awareness training, it is important to ensure that for each topic, workers and supervisors understand the distinction between their respective roles and responsibilities, even if the topic itself – such as “duties and rights of workers under the Act” – is required content in both the worker and supervisor training.

If you are going to combine the worker and supervisor sessions into one joint session, the safest approach is to ensure that any combined training session satisfies all of the criteria in the Regulation while articulating the different perspectives, roles and responsibilities of workers and supervisors. This will likely make the joint session longer than worker-only or supervisor-only sessions would be, possibly defeating the benefit of combining the worker and supervisor sessions.

Must supervisors also take the worker training?

There is some legal debate, based on the wording of the Regulation, as to whether supervisors who complete the supervisor training before July 1st must also complete the worker training. The debate centres around when the Regulation “came into force”, since part of the Regulation came into force on November 14, 2013 and the rest will come into force on July 1, 2014. A Ministry of Labour representative has recently advised us that the Ministry’s position is that July 1, 2014 is the applicable date.

Based on the Ministry’s position, a supervisor will be exempt from completing the worker training if:

(a) the supervisor was performing work as a supervisor for the employer prior to July 1, 2014; and

(b) the supervisor completed a basic occupational health and safety awareness training program for supervisors that contains the required supervisor contents, before July 1, 2014.

As a result, employers should ensure that all supervisors take the supervisor training before July 1st, because if they do, it appears that the Ministry of Labour will not require them to also take the worker training.

What about supervisors outside Ontario who supervise workers in Ontario?

Where your company has a supervisor outside Ontario – for instance, in Calgary – who supervises a worker in Ontario, the safe approach would be to have the Calgary supervisor complete Ontario’s basic safety awareness training for supervisors. Although, except in very limited circumstances, the Ontario Occupational Health and Safety Act does not apply to supervisors or workers working outside Ontario, a Ministry of Labour inspector could take the position that the OHSA does require an Ontario employer to ensure that any person supervising Ontario workers take the training – even if the supervisor is not located in Ontario.

Revising your contractor agreement

Ontario employers are required to ensure that contractors – who are “workers” under the OHSA – working for the employer have taken the worker safety awareness training. We are suggesting that companies revise their template contractor agreement to include a clause in which the contractor confirms that he or she has completed the training and that he or she will provide proof.

E-learning modules need specific web browsers

If you plan to have your workers and supervisors complete the training through the Ministry of Labour’s online e-learning modules, ensure that your company’s computers have at least Internet Explorer 9 or Chrome 17, or they won’t be able to access the modules.

Keep checking www.occupationalhealthandsafetylaw.com for further updates on this topic, or e-mail us at adrian.miedema@dentons.com or chelsea.rasmussen@dentons.com.

 

Three months until July 1 training deadline: Update on Ontario’s new safety awareness training requirement

Federal Health and Safety Officer’s File not Absolutely Privileged: Arbitrator

A federal Health and Safety Officer’s file was not absolutely privileged, and a labour arbitrator may order parts of it produced to parties in an arbitration, an arbitrator has decided.

A safety issue arose between the employer and two unionized employees. A federal Health and Safety Officer got involved and issued a Direction to the employer.  The union alleged that the employer had retaliated against the employees, contrary to the collective agreement. 

The employer subpoenad the federal Health and Safety Officer to testify at the arbitration hearing.  Human Resources and Skills Development Canada got involved, and the Health and Safety Officer was instructed not to produce his file.

HRSDC argued, before the arbitrator, that the Health and Safety Officer’s file was “absolutely privileged” because of sections 144(5) and 144(5.1) of the Canada Labour Code.  Those sections provide:

Information not to be published

144. (5) No person shall, except for the purposes of this Part or for the purposes of a prosecution under this Part, publish or disclose the results of an analysis, examination, testing, inquiry, investigation or sampling made or taken by or at the request of an appeals officer or a health and safety officer under section 141.

Personal  information

(5.1) If the results referred to in subsection (5) contain information within the meaning of Part 4 of the Department of Human Resources and Skills Development Act, the disclosure of that information is governed by Part 4 of that Act.

The arbitrator concluded that the intent of section 144(5) was to “safeguard the integrity of HSO investigations”, but that section does not refer to “privilege”. Instead, that section placed ”limited prohibition on publication and disclosure”.  Section 144(5) was a confidentiality provision, not a privilege provision. Unlike privileged information, confidential information may be subject to production in litigation.  Also, in the arbitrator’s opinion, the confidentiality created by that provision expires once the Health and Safety Officer has provided the “results” to the parties.

As such, the arbitrator denied HRSDC’s objection to the production of the Health and Safety Officer’s file.  The arbitrator ordered that the hearing resume in camera for the purpose of considering “ways and means of dealing with any privileged personal information contained in the HRSDC file.”

The decision may be accessed here.

Federal Health and Safety Officer’s File not Absolutely Privileged: Arbitrator

Failed to Register with WSIB? New “Voluntary Registration” Policy may Provide Mercy

Ontario’s Workplace Safety and Insurance Board has issued a new policy showing when the WSIB will punish – or show mercy to – employers that are required to register with the WSIB but have not done so.

The new policy took effect on February 1st, 2014.  Not all Ontario employers are required to register with the WSIB.

The policy provides that where an employer is legally-required to register with WSIB but has not done so, while remaining undiscovered by the WSIB, if the employer voluntarily contacts the WSIB and discloses the non-compliance, the WSIB may (note – not “will”) waive penalties, refrain from laying charges, and not require payment of retroactive WSIB premiums prior to the “effective date of registration” (which is considered to be the later of the date of the employer’s first hire or 12 months prior to the month in which the employer made voluntary disclosure to the WSIB).

The policy states that the WSIB will, however, not show mercy on employers who have been “identified” to the WSIB prior to the employer’s voluntary disclosure – whether by the WSIB’s own “proactive registration activities”, or by anonymous calls to the WSIB’s ominous-sounding “Action Line”.

The moral of the story is that employers that may be required to register with the WSIB and have not done so, should strongly consider contacting the WSIB voluntarily in order to obtain the benefit of the Voluntary Registration policy, and hopefully avoid significant retroactive premiums and penalties.

The Voluntary Registration Policy may be found here.

Failed to Register with WSIB? New “Voluntary Registration” Policy may Provide Mercy

Company Director Fined $8,500 After Swearing at MOL Safety Inspector, Making Threatening Gestures and Telling Inspector to Leave Project

Corporate directors can be charged by the Ontario Ministry of Labour and fined under the Occupational Health and Safety Act. Threatening and swearing at a Ministry of Labour inspector certainly increases the odds of charges being laid.

A Ministry of Labour inspector visited a construction project where Starland Contracting Ltd. had been hired to build a self-service car wash.  The inspector saw a worker on the roof without fall protection or a hard hat.

A few months later, the inspector made a follow-up visit.  The company’s director was on site and was acting as supervisor.  According to the Ministry of Labour press release, the inspector went to speak with the director, who uttered profanities at the inspector, told the inspector to leave the project, and made threatening gestures and comments towards the inspector.  The director refused to show identification when asked.

The next day, another Ministry of Labour inspector went to the site.  Starland was unable to show a Notice of Project Form or a Form 1000, which lists all employers and subcontractors on site.  That inspector issued an order for those documents, but they were not provided by the deadline in the order.

Starland and the director were charged by the Ministry of Labour under the Occupational Health and Safety Act.  After an ex-parte trial (meaning that the company and the director did not attend at the trial), the company was convicted of three offences under the OHSA and fined $29,500.00, and the director was convicted of two offences (hindering, obstructing, molesting and interfering with an inspector; and refusing to provide information requested by an inspector) and fined $8,500.00.

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

Company Director Fined $8,500 After Swearing at MOL Safety Inspector, Making Threatening Gestures and Telling Inspector to Leave Project

Previous Environmental Convictions Considered in Jailing of Supervisor for OHSA Offences: Court’s Reasons now Available

A supervisor’s previous violations of the Environmental Protection Act, and failure to pay more than $50,000 in fines for those violations, were a factor in the court’s decision to send her to jail for Occupational Health and Safety Act violations, the court’s reasons show.

In our post on March 11th, we wrote that the court jailed a supervisor for 45 days for violations of the Occupational Health and Safety Act. 

The Ministry of Labour prosecutor, in the supervisor’s sentencing hearing for the OHSA violations, provided proof that the supervisor had previously been convicted of 6 offences under the Environmental Protection Act, including submitting false or misleading information to the Ministry of Environment.  She had previously been jailed for EPA offences, and had more than $50,000 in unpaid fines.

A rather obscure but important Ontario statute, the Regulatory Modernization Act, 2007, permits the court to consider previous convictions under another Act when deciding what fine, or length of prison term, a person should receive for violation of a regulatory statute such as the Occupational Health and Safety Act.

The court stated:

“Given her troubling history with lack of compliance with prior court prior orders, the evidence before me that her convictions stem from her ongoing work in the trash removal business where she continues to flout various regulatory standards, and her lack of expression of any remorse for an accident that left a young man permanently paralyzed and fraught with pain, I accept the Crown’s submission that only a term of imprisonment would fulfill the sentencing goal of deterrence, both general and specific.  It would also further the sentencing goal of denunciation, given her pattern of behaviour. Regrettably, I do not foresee any hope of rehabilitation of Ms. Lootawan, given her antecedents.”

This case demonstrates that a supervisor’s entire regulatory conviction history – including convictions under statutes other than the Occupational Health and Safety Act - can be given significant weight when a court decides the supervisor’s sentence for OHSA violations.  A history of violations of the law can, in extreme cases such as this one, land a supervisor in jail.

The court’s reasons are available here.

Previous Environmental Convictions Considered in Jailing of Supervisor for OHSA Offences: Court’s Reasons now Available

$20,000 Fine After HR Staff, Supervisor Fail to Immediately Report Injury to MOL

An Ontario employer has been fined $20,000 for failing to report an injury to the Ministry of Labour, showing that employers need to educate their managers about the types of injuries that must be reported under the Occupational Health and Safety Act.

A worker was injured when a loaded skid tipped and his leg became trapped under parts.  He suffered a broken bone which is a “critical injury” under the OHSA.  The OHSA requires employers to immediately report critical injuries to the Ministry of Labour.  The employee told his supervisor and, later, human resources staff that he had broken his leg.

Four days after the accident, the Ministry of Labour contacted the company about the accident.  The human resources staff said that the company was in the process of reporting to the Ministry of Labour.

The company pleaded guilty to failing to immediately report this critical injury to the MOL, contrary to section 51(1) of the Occupational Health and Safety Act.  The court imposed a $20,000 fine plus the 25% “victim fine surcharge”, for a total of $25,000.

It is not always obvious what types of injuries are “critical injuries” under the OHSA.  Employers should educate their managers and, where there is any doubt, obtain legal advice.

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

$20,000 Fine After HR Staff, Supervisor Fail to Immediately Report Injury to MOL

Class Action Proceeds Against MOL for “Negligent Inspection”

In a case that will be closely watched, an Ontario judge has permitted a class action lawsuit against the Ministry of Labour for “negligent inspection” of a workplace.

The case arises from the collapse of the roof-top parking deck at the Algo Centre Mall in Elliot Lake, Ontario, in which two people were killed and many more injured.

The class action was brought by owners of one of the restaurants in the mall, which was one of the businesses affected by the collapse.  The “class” of claimants included people in the mall at the time of the collapse, business tenants and employees working at the mall. 

The plaintiffs argued that Ministry of Labour inspectors had performed more than 130 inspections at the Mall over approximately 30 years, and had received numerous complaints about the condition of the mall and the dangers of water leakage problems.  The plaintiffs claimed that Ministry of Labour inspectors should have followed up with reasonable investigations and in failing to do so, they were negligent.  

The court stated:

“A government body such as the Ministry of Labour that exercises statutory power to conduct safety inspections owes a duty of care to all who may be injured as a result of a negligent inspection. Thus, for example, once the decision to inspect has been made, the court may review the scheme of inspection to ensure it is reasonable and has been reasonably carried out in light of all the circumstances, including the availability of funds, to determine whether the government agency has met the requisite standard of care.”

Although the Occupational Health and Safety Act provides limited liability-protection to Ministry of Labour employees, including inspectors, it expressly provides in section 65(2) that the Ministry of Labour itself may be held liable for acts of inspectors.

The judge therefore decided that the class action for “negligent inspection” could proceed against the Ministry of Labour.  It should be noted that the court has not yet found the Ministry of Labour liable, but simply said that the class action may proceed.

There are numerous other defendants in the class action, a group described by the court as “everyone involved in the planning, construction, inspection, ownership and maintenance of the shopping centre over the years”. That group includes the mall, the owners of the mall, the City of Elliot Lake, and a number of architects and engineers,

 Quinte v. Eastwood Mall, 2014 ONSC 249

Class Action Proceeds Against MOL for “Negligent Inspection”

July 1, 2014 Deadline to Comply with Ontario’s New Safety Awareness Training Requirements. Here is What you Need to Do

The clock is ticking.  All Ontario employers must provide their workers and supervisors with “basic occupational health and safety awareness training” by July 1st, 2014 or they will be in violation of a new regulation under the Occupational Health and Safety Act.  And employers’ in-house safety awareness training provided to workers in the past will likely not meet the new requirements.

This is an “if you do nothing, you will be in violation” regulation.

Who Must be Trained?

All workers and supervisors must be trained – even workers in jobs that are not considered hazardous. 

There are two types of safety awareness training: worker training and supervisor training, and the government dictates the contents of both.

What About Contractors?

The definition of “worker” under the Occupational Health and Safety Act can include contractors working for the employer.  Companies using contractors need to ensure that the contractors have received the safety awareness training.  Companies should consider revising their contractor agreement to include a clause requiring the contractor to ensure that all of the contractor’s employees who are supplied to the company have completed the safety awareness training.

Obligation is on Employer, not Employee

Every Ontario employer must ensure that their workers and supervisors complete the safety awareness training. The obligation is on the employer, not the employees.

What if the Employer Already Provided Safety Orientation?

If your company already provided safety awareness training to employees, you are not required to provide the new mandatory safety awareness program – as long as your training program includes all of the content required by the Ministry of Labour.  I expect that most employers will want to put all of their employees and supervisors through the new mandatory orientation, using the Ministry of Labour’s training materials, in order to avoid an argument down the road that the employer’s training program did not cover all of the required topics.  In particular, the new regulation requires that the worker and supervisor training cover “roles of the ministry, Workplace Safety and Insurance Board (WSIB), and Health and Safety Associations”, but those roles have recently changed, so one expects that most employers will not have covered that topic properly – if at all – in their existing in-house safety awareness program.

Deadline for New Employees, Supervisors

The deadline for providing the safety awareness training to current employees is July 1, 2014.  But for new employees hired after July 1, 2014, the deadline is “as soon as practicable” after they start working. For supervisors appointed to a supervisory position after July 1, 2014, the deadline is one week after starting to perform work as a supervisor.

How can the Training be Provided?

The training can be provided using the Ministry of Labour’s online “e-learning” modules, or by face-to-face sessions (group or individual) with employees.

Workbooks and E-Learning Tool

The Ministry of Labour makes a number of resources available to employers:

  • “Worker Health and Safety Awareness in 4 Steps” (worker workbook, 24 pages) is available here
  • “An Employer Guide to Worker Health and Safety Awareness in 4 Steps” (2 pages) is available here
  • “Supervisor Health and Safety Awareness in 5 Steps” (supervisor workbook, 32 pages) is available here
  • “An Employer Guide to Supervisor Health and Safety Awareness in 5 Steps” (2 pages) is available here
  • The e-learning training module for workers (45-60 minutes) is available here
  • The e-learning training module for supervisors (45-60 minutes) is available here 

The e-learning training includes a few short videos, and a number of quiz questions.

Employers May use Own Equivalent Materials

Employers may opt to use their own training materials, instead of the MOL’s materials. However, the training program for workers must include instruction on the following topics:

  • the duties and rights of workers under OHSA;
  • the duties of employers and supervisors under OHSA;
  • common workplace hazards and occupational illnesses;
  • the role of joint health and safety committees (JHSCs) and of health and safety representatives under OHSA;
  • roles of the ministry, Workplace Safety and Insurance Board (WSIB), and Health and Safety Associations; and
  • information and instruction requirements set out in the Workplace Hazardous Materials Information System (WHMIS) Regulation.

If employers use their own supervisor safety orientation program, the training program must include instruction on the following topics:

 

  • the duties and rights of workers under OHSA;
  • the duties of employers and supervisors under OHSA;
  • how to identify, assess and manage workplace hazards, the role of joint health and safety committees (JHSCs), and of health and safety representatives under OHSA;
  • roles of the ministry, Workplace Safety and Insurance Board (WSIB), and Health and Safety Associations; and
  • sources of information on occupational health and safety.

How Much Time does the Training Take?

The Ministry of Labour says that the worker and supervisor e-learning modules each take 45 to 60 minutes to complete.

Face-to-face sessions held by the employer can take as long as the employer wishes, but must cover all of the required material.

How Long is the Training Valid?

The training is valid for the employee’s working career. However, employers have an ongoing obligation, irrespective of this new safety awareness training requirement, to ensure that employees are properly trained at all times to do their job.

Maintaining a Record of Training

Employers must maintain a record of the training that is completed by workers and supervisors.  If the training is completed using the MOL’s e-learning training module, an employee will receive a certificate that is valid for the remainder of his or her career.

The employer must keep proof of the training for up to six months after the worker or supervisor stops performing work for the employer.

Exemptions

In the following two situations, workers or supervisors will not be required to complete the new worker safety awareness training:

  1. If a worker or supervisor has previously completed a worker safety awareness training program with a current or former employer that includes the required topics for worker safety awareness training listed above, he or she does not have to take the training again if he or she can provide proof of the training.
  2. A supervisor will not have to complete the worker training if:
    (a) the supervisor was performing work as a supervisor for the employer “prior to the Regulation coming into force”; and
    (b) the supervisor completed a basic occupational health and safety awareness training program for supervisors that contains the required contents listed above, “prior to the Regulation coming into force”.

Unfortunately there has been some legal debate and confusion as to whether the date of the “Regulation coming into force”, for the purposes of the above exemption, is November 14, 2013 or July 1, 2014, since parts of the Regulation came into force on each of those dates. The Ministry of Labour has recently advised us that, in its view, the date is July 1, 2014. That appears to mean that where a supervisor was working as a supervisor with the employer prior to July 1, 2014, and completed the supervisor safety awareness training program prior to July 1, 2014, the Ministry of Labour inspectors will not also require that the supervisor complete the worker safety awareness training program. After July 1st, however, that exemption will not be available.

If a supervisor has previously completed a supervisor safety awareness training program with a current or former employer that satisfies the required topics for supervisor training listed above, he or she will not have to take the supervisor awareness training again if he or she can provide proof of the training.

What Should Employers Do?

All Ontario employers should put a plan in place for ensuring that all workers complete the worker training, and all supervisors complete the supervisor training, by July 1st.  For office workers, the online e-learning module may be best. For others, the employer should consider holding face-to-face group training sessions with employees.

Here are some steps employers could take to work towards completing the training:

  1. Make a list of workers (not just “employees”)
  2. Make a list of supervisors
  3. Determine whether each worker and supervisor already received equivalent worker or supervisor safety awareness training (likely not)
  4. Plan how training will be done (e-learning or face-to-face sessions)
  5. Print paper copies of MOL materials for face-to-face sessions (if training provided face-to-face)
  6. For face-to-face sessions, gather other suggested materials, such as employer safety policies and procedures (see Ministry of Labour’s employer guides, linked above)
  7. Plan when training will be done: regular work day or on employee’s own time?
  8. Schedule training
  9. Set deadline for completing: May 31?
  10. Develop tracking / reminder system
  11. Decide who will keep training records and where

Consequences of Missing the Deadline

A Ministry of Labour inspector recently told me that, immediately after July 1st, inspectors will likely issue a reminder to employers who have not conducted the training by the July 1st deadline.  However, employers who still fail to complete the training will likely receive a compliance order, and in cases of ongoing failure, could be charged and fined.

Non-Compliance may be “Red Flag” to MOL Inspector

Just like failing to post all of the required health and safety materials on your bulletin board (see our article on posting requirements here), a failure to ensure that your workers and supervisors received the safety awareness training by July 1st may be a “red flag” for inspectors that your company is not on top of its safety obligations. Keep a file with all of the completion certificates handy, so you can quickly show the MOL inspector that all employees have been trained.

This Seems Complicated. What is the Simplest Way to Comply?

For many employers, the simplest way to comply is to send all employees and supervisors an e-mail with a link to the MOL modules and require them to complete the e-learning module, print off the completion certificate, and provide the certificate to you before July 1st.

The new regulation, which sets out the mandatory safety awareness training requirement, can be accessed here.

July 1, 2014 Deadline to Comply with Ontario’s New Safety Awareness Training Requirements. Here is What you Need to Do

Real Estate Project Management Firm Fined $100,000 in Workplace Fatality

The death of one of its subcontractor’s employees has resulted in a $100,000 fine to a real estate project management firm.

Four workers of the subcontractor were demolishing an interior concrete block wall which was 26 feet high.  The wall collapsed on two workers.  The collapse was captured on video.  One of the workers died, and the other suffered severe injuries.

A Ministry of Labour investigation found that an inadequate demolition procedure was used.  The project management firm pleaded guilty, as a constructor, to two counts of failing to ensure that the health and safety of workers was protected.  The total fine was $100,000.

This case demonstrates how project management firms can be the “constructor” under the Occupational Health and Safety Act, thereby taking on responsibility for all workers on the project – not only the project management firm’s own employees.

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

 

Real Estate Project Management Firm Fined $100,000 in Workplace Fatality

$110,000 Fine Shows it’s Cheaper to Comply with Orders than Disregard Them

I recently wrote about the cost of failing to report accidents or occupational disease claims to the Ministry of Labour. The cost of failing to comply with an inspector’s orders can be even higher.

Harbour Sports Grille in Toronto received a number of orders from a Ministry of Labour inspector over a period of 6 months.  The company failed to comply with 13 of those orders.  The orders dealt with a number of issues including failing to set up a joint health and safety committee and failing to have required policies and programs (such as harassment and workplace violence) in place.  The Ministry of Labour charged the company under the Occupational Health and Safety Act with failing to comply with those 13 orders.

The company fought the charges and lost.  The presiding justice of the peace imposed a fine of $110,000.00.  One suspects that it would have been cheaper to comply with the orders.

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

 

$110,000 Fine Shows it’s Cheaper to Comply with Orders than Disregard Them

OLRB has no authority to order government investigation of safety-reprisal complaint

The Ontario Labour Relations Board has held that it has no authority to order the Ontario Ministry of Labour to conduct an investigation into an employee’s safety-reprisal complaint, nor could the OLRB base its decision on the results of any such investigation.

The employee, in his safety-reprisal application to the OLRB, stated:

“Therefore, I am requesting the Ontario Labour Relations Board to order a full investigation using any government authority that is appropriate to carry out this investigation. I am asking the Board to make it’s [sic] decisions based on the outcome of this investigation if the investigation is ordered.”

The OLRB held that it had “no authority to do so in any circumstances, and certainly not in a section 50 application.  The Board will deal with appeals from an inspector’s decision or failure to make a decision.  In a section 50 application the Board will adjudicate a claim that an employer has take action against a worker for exercising a right under the Act.  That is a dispute between an employer and a worker and does not involve the Occupational Health and Safety Branch at all.”

Mr X v TJX Canada/Winners Merchants International, 2013 CanLII 68260 (ON LRB)

OLRB has no authority to order government investigation of safety-reprisal complaint

“Cardinal Rule” Safety Violation Warranted 6-Month Suspension, Last-Chance Order

A millwright who violated his employer’s “Cardinal Rules” by committing a lock-out violation, deserved a six-month suspension and with a last-chance stipulation, an arbitrator has held.  The company’s decision to dismiss the employee was overturned.

The employer had five Cardinal Rules of safety.  Cardinal Rule #3 read, “Isolation and lock out procedures must always be followed.”

The employee could not locate the switch to turn off electrical power to equipment that he was asked to fix.  He decided that instead of locating and isolating the power source, he would disconnect electrical wires and put tape on the exposed wiring.  Apparently the tape came off one of the wires and it touched another wire which caused sparks and an electrical short. No one was injured.

Three months earlier, the employee had received a one-day suspension for what the arbitrator called an “identical first offence”.

The arbitrator found that both safety violations occurred in low-risk situations. There was no injury, no damage to property and no evidence of lost production.  The employee’s decision was influenced by his desire to complete the task in the time alloted to him and not for selfish reasons.  At the same time, the arbitrator acknowledged that his decision must deter other employees from violating safety rules.  The arbitrator reinstated the employee with a six-month suspension, and imposed a condition that should the employee “commit any safety violation” in the one year following his reinstatement, the employer would have just cause to dismiss him.

Re Dufferin Concrete and Teamsters Local No. 230, 2013 CanLII 61486 (ON LA)

“Cardinal Rule” Safety Violation Warranted 6-Month Suspension, Last-Chance Order

Driver “talking on cell phone, looking at some papers” before accident, lawsuit alleges

We all know that police in Ontario are cracking down on distracted drivers, particularly those handling cell phones or texting while driving.   But now a private motor vehicle accident lawsuit is alleging that a driver was distracted because of cell phone use immediately prior to an accident.

The accident involved four vehicles and was described as a “chain-reaction rear-end collision.”  Two of the drivers commenced a lawsuit against one Basso.  Basso alleged that one of the other drivers, Usselman, was “driving beside him in the passing lane, talking on a cell phone, looking at some papers.”  Basso alleged that Usselman made a fast lane change, cutting off Basso and causing him to collide with the rear of Usselman’s vehicle.

Usselman’s cell phone records showed that he had indeed been on the phone around the time of the accident.

Usselman moved for summary judgment, arguing that a trial was not needed as it was clear that Usselman should not be liable in any way.  He stated in his affidavit that at no time in the 1/2 km drive before the accident was he talking on his cell phone.  The court refused to grant summary judgment, stating that there were issues of credibility that required a judge to hear from all of the witnesses and decide whether Usselman cut Basso off and whether Usselman was talking on his cell phone.

This case demonstrates that distracted driving due to cell phone use might result in more than a ticket: it might result in a lawsuit and possibly a damages award.  The case provides another jusitification for employers implementing a distracted driving policy.

Cucullo v. Basso, 2013 ONSC 5870 (CanLII)

Driver “talking on cell phone, looking at some papers” before accident, lawsuit alleges

Post-Accident Safety Fixes: An Admission of Liability?

We are often asked whether post-accident fixes or improvements by an employer will be held against it if occupational health and safety charges are laid. For example, if an employer puts a guard on a machine after an employee was injured on the machine, will the court see the installation of the guard as an admission that the machine was not properly guarded?

Employers sometimes feel that they are caught between implementing the fix and risking having it be seen as an admission of liability, or not implementing the fix and risking a higher fine if convicted or being charged with violating a government order to fix the machine. Of course, most employers will be motivated to do what is right and install a fix if needed for safety reasons, regardless of whether that increases the risk of charges or fines; however, the possible risks should be considered. In some cases, quick implementation of the safety fix could actually help avoid charges.

It appears from the caselaw that post-accident safety fixes will, generally, not be considered an admission that an employer violated a safety rule, but may be considered by a court in determining whether the employer exercised due diligence (took all reasonable steps to prevent the violation) or had knowledge of the hazard. For example, the installation of a guard after an accident will likely not be an admission that a guard should have been in place, but it will be relevant to whether the employer, before the accident, took all reasonable steps to ensure that the machine was properly guarded.

In the recent case of R. v. Reliable Wood Shavings Inc., 2013 ONCJ 518, the court stated, “I believe that I can look at post accident conduct in assessing what was reasonable in all of the circumstances . . . What I cannot do is treat them as an admission of liability.”

On the plus-side, post-accident fixes will often lead to lower fines if a company is convicted of a safety offence, as the court will see the employer’s proactive safety fix as a sign of the employer’s commitment to safety. The cost of the fix will often also be considered by the court in setting the amount of the fine.

In one case, the Ontario Food Terminal Board made changes and modifications to the roadways within its facility, including the installation of several stop signs, concrete barriers, and signs around the area where the accident had occurred, after a workplace accident that eventually led to the worker’s death. While the OFTB was convicted of safety offences and fined $65,000, the Justice of the Peace did not view the post-accident actions as admissions of guilt or negligence. The court held that subsequent improvements by a defendant are not a basis for a finding of liability for safety offences, but will be considered in determining whether the employer exercised due diligence or had prior knowledge of the hazard.

An employer should consider, when faced with an accident, how post-accident fixes or improvements could be viewed by the court if the employer is charged. The question is usually not whether to implement the fix, but how to do it in a way that maximizes safety while minimizing legal risk. Advice from an occupational health and safety lawyer should be obtained, and if possible the work should be documented in a manner that confirms that it is not an admission of liability.

Post-Accident Safety Fixes: An Admission of Liability?

Disability Management Company and Principals Not Guilty of Making False Statement

A disability management company charged under the Ontario Insurance Act with knowingly making false or misleading statements to an insurer has been found not guilty. The charges were brought on behalf of the Financial Services Commission of Ontario.

The charges alleged that the company made false statements to an insurer to obtain payment for services that it said that it had provided.  Two principals of the company were also charged.  The business of the company was providing assistive devices and also arranging for assessments to determine persons’ eligibility for insurance benefits under the Statutory Accident Benefits Schedule pursuant to the Ontario Insurance Act.

The essence of the charges was that a doctor had not assessed certain accident victims – for which the disability management company sought payment from the insurer for services – and had not authorized the company to sign a form indicating that the doctor had indeed assessed those persons.

The court held that there was uncertainty in the evidence as to whether the doctor had met with the accident victims, and that the prosecution had not proven that it was unreasonable for the company to believe that it had the consent of the doctor to use the doctor’s name on the forms submitted to the insurer.  The doctor admitted that she had not kept careful track of her visits with the accident victims.

At the very least, this case illustrates that the Financial Services Commission of Ontario and other regulatory bodies take seriously the various stakeholders’ obligation to be truthful when they provide information.

R. v. Ontario Disability Management et al., 2013 ONCJ 470 (CanLII)

Disability Management Company and Principals Not Guilty of Making False Statement

Illegal to Have Cell Phone in Hand, Even for Only a Moment, While Driving: Ontario Appeal Court

Drivers who have a cell phone in hand are committing an offence, even if not using the phone at the time, Ontario’s top court has decided, overturning an appeal judge.

While the driver, Kazemi, was stopped at a stop light, a police officer saw her with a cell phone in her hand. The driver said that the cell phone had fallen from the seat to the floor when she stopped, and that she had picked it up when she got to the red light.

The trial justice convicted her of the offence of “holding or using a hand-held wireless communication device” while driving, pursuant to section 78.1 of Ontario’s Highway Traffic Act.  The appeal judge, however, found her not-guilty.  In his opinion, there must be some sustained physical holding of the device in order to meet the “holding” requirement, so that momentary handling was not enough.  We previously wrote about the appeal decision on this blog.

The Ontario Court of Appeal disagreed, and stated that ”having it in one’s hand” is enough to be guilty of the offence of “holding” a cell phone.  According to the Court of Appeal, that interpretation best meets the objective of road safety and avoids the “enforcement challenge” of requiring a police officer to have “continued observation of the driver” for a period of time in order to write a ticket.

The Ontario Court of Appeal’s decision makes it much more difficult for drivers to beat charges under Ontario’s distracted driving law.  We had previously blogged about some of the creative arguments and alibis tried by drivers, including “it was a garage door opener”; one expects that those arguments and alibis will be unsuccessful in most cases, especially in light of the Court of Appeal’s decision.

As a result of this decision, employers may wish to ensure that their mobile device / distracted driving policy prohibits employees from having a cell phone in hand while driving.

R. v. Kazemi, 2013 ONCA 585

 

Illegal to Have Cell Phone in Hand, Even for Only a Moment, While Driving: Ontario Appeal Court

Arbitrator May Not Award Damages for Workplace Injury where Worker Entitled to WSIB Benefits

An employee who was entitled to Workplace Safety and Insurance Board benefits for a workplace injury could not also obtain damages through arbitration, a labour arbitrator has decided.

The employee, a track worker with the Toronto Transit Commission, was injured while removing old pieces of “running rail” and replacing them with new ones at the “Wilson Station cross-over”.  He applied for and received benefits from the Workplace Safety and Insurance Board.  He later returned to work in an accommodated position.

The arbitrator held that it was clear that the TTC breached its obligations under the Occupational Health and Safety Act in a number of ways.  The union argued that the employer’s breach of the Occupational Health and Safety Act was also a violation of the “management rights” clause of the collective agreement, entitling the employee to damages for the breach and the injury.

However, the arbitrator stated, section 26(2) of the Workplace Safety and Insurance Act precluded an award of damages in respect of the injury, because entitlement to WSIB benefits was in lieu of all other “rights of action” that the employee had against the employer by reason of the accident.  In effect, the employee was entitled to the WSIB benefits only, not to any other damages from the employer.

Amalgamated Transit Union, LOCAL 113 v Toronto Transit Commission, 2012 CanLII 97799 (ON LA)

Arbitrator May Not Award Damages for Workplace Injury where Worker Entitled to WSIB Benefits

Voluntary Global Standard for Occupational Health and Safety Coming Soon

In August, the International Organization for Standardization(“ISO”), the world’s largest global developer of voluntary international standards, approved the creation of a project committee who will develop an international standard for occupational health and safety management systems (“OHSMS”).   

The ISO states that the OHSMS standard is intended to provide governmental agencies, industry and other organizations with an effective, usable guidance for improving worker safety around the world.  One of the primary objectives of the new global standard is to create an international framework for OH&S best practices and help prevent and reduce work-related injuries, diseases, and deaths worldwide. 

While the global standard will not be mandatory in Canada unless expressly adopted into Canadian law, the OHSMS standard may assist employers who opt to implement it in demonstrating that they have taken reasonable steps to ensure the health and safety of its workforce and could be of assistance where an employer is seeking to make out a due diligence defence. 

The first meeting of the project committee is scheduled to be held from October 21-25, 2013 in London, United Kingdom. Stay tuned.

By Lindsay Mullen  and Jennifer Shepherd

 

Voluntary Global Standard for Occupational Health and Safety Coming Soon

$750K Fine for “Extreme” Criminal Negligence: “More Serious” than OHSA Offences, says Appeal Court in Metron Construction Fatality Case

A $200,000.00 fine was “manifestly unfit”, the Ontario Court of Appeal has ruled, in raising Metron Construction’s fine to $750,000 for criminal negligence after four workers died on Christmas Eve, 2009.  The $200,000 fine imposed by the sentencing judge failed “to convey the need to deliver a message on the importance of workplace safety.”

The workers died when a swing stage – a suspended scaffold – collapsed fourteen floors up a building when six workers boarded, whereas the usual practice was only two workers.  Three of the four workers who died had marijuana in their system at a level consistent with having recently ingested the drug.   The court noted that all of the workers were of limited financial means.

Metron pled guilty to criminal negligence charges, under provisions added to the Criminal Code in 2004 by Bill C-45.  The only issue on the appeal was the amount of the fine.  Metron’s owner had pled guilty to four charges under the Occupational Health and Safety Act and was personally sentenced to pay a fine totaling $90,000.  All criminal charges against the owner were withdrawn.

The appeal court noted that criminal negligence was “a different and more serious offence than those found under” the Occupational Health and Safety Act, for which the “cases revealed a range of fines between $115,000 and $425.000 for cases involving fatalities.”

The sentencing judge had made two main errors in imposing a $200,000 fine, the appeal court said. First, although the sentencing judge was entitled to consider the range of fines imposed under the Occupational Health and Safety Act, he failed to appreciate the “higher degree or moral blameworthiness and gravity associated” with Metron’s conviction for criminal negligence causing death.  Second, the sentencing judge was wrong to consider Metron’s “ability to pay”, which was a factor that courts could consider in setting the fine for individual persons but not corporations in criminal negligence cases.

The sentencing judge was, however, entitled to consider the “economic viability of the organization and the continued employment of its employees.” Interestingly, the appeal court held that in appropriate cases, it was permissible for criminal negligence fines to bankrupt a corporation.  In this case, the financial statements submitted by Metron were “heavily qualified and incomplete” and suggested that there were no employees being paid anymore.  As such, “[a]ny public interest in the continued viability of [Metron] was not manifest.”

Finally, the appeal court noted that the criminal negligence of the site supervisor, for which Metron was responsible, was “extreme”.  Three times as many workers were on the swing stage than there were lifelines available, and only one of the lifelines was properly engaged.

R. v. Metron Construction Corporation, 2013 ONCA 541 (CanLII)

$750K Fine for “Extreme” Criminal Negligence: “More Serious” than OHSA Offences, says Appeal Court in Metron Construction Fatality Case

Case Update: Alberta’s Highest Court Hears Appeal in Calf-Roping Fatality Case – Decision Reserved

In December 2012, we posted a blog outlining the Alberta Court of Queen’s Bench decision in R v. Technologies Inc. 2012 ABQB 549 in a fatal accident case involving the use of a “calf roping” machine at a Stampede party event hosted by XI Technologies Inc. (“XI”) in 2007.  A software developer who was helping operate the machine was struck in the head by a steel lever and later died from his injuries. 

The Court of Queen’s Bench overturned two “not guilty” verdicts holding that the employer had not raised a successful due diligence defence and that the preventative measures which were adopted by the employer to respond to the hazard were inadequate considering the risk such that the machine ought to have been removed from service.  XI had been granted permission from Alberta’s highest court, the Court of Appeal, to appeal those convictions.    

The Alberta Court of Appeal heard argument on June 13, 2013.  The Decision was reserved.  We expect that the Court of Appeal’s reasons will be of significant importance to employers as we anticipate that the law in respect of the degree of hazard analysis and identification that must be taken and the corresponding level of precautions or preventative steps that must be implemented will be clarified.

Stay tuned.

This article was written by Lindsay Mullen and Jennifer Shepherd.

 

 

 

Case Update: Alberta’s Highest Court Hears Appeal in Calf-Roping Fatality Case – Decision Reserved