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Employer breached OHSA, collective agreement by sharing employee’s medical information with another employer

An arbitrator has decided that an operator of a long term care facility violated both the Occupational Health and Safety Act and the collective agreement by sharing an employee’s medical information with another employer, without the employee’s consent.

The employee was a part-time dietary aid at the long term care facility, St. Patrick’s Home of Ottawa Inc.  After the employee advised that she required an accommodation in her other position at a different long-term care facility due to medical reasons, St. Patrick’s asked her to provide a medical certificate indicating her fitness and ability to do her job.

The other long-term care facility began to question whether the medical restrictions that she was presenting to them were legitimate.  The other long-term care facility then requested certain information about the employee’s employment at St. Patrick’s, including whether she had worked her regularly-scheduled shifts, had requested any workplace accommodations or provided any work-related restrictions.   St. Patrick’s gave the other facility that information, including a medical note that the employee had provided.  St. Patrick’s later acknowledged that information should not have been disclosed without the employee’s consent.

The arbitrator held that St. Patrick’s had violated sections 63(1)(f) and 62(2) of the OHSA:

“Section 63(1)(f) of this Act specifies that no person shall disclose any information obtained in any medical examination except in a form that will prevent the information from being identified with a particular person or case.  The copy of the note that this Employer gave to West End Villa contained medical information from the Grievor’s doctor that clearly identified the Grievor.  Further, section 62(2) of the Act mandates that no employer shall seek to gain access to a health record concerning a worker without the worker’s written consent, except by an order of the court or other tribunal or in order to comply with another statute.  The Grievor gave no consent to the release of the information or note and West End Villa neither requested the note nor had any legal authorization to receive it.  Since West End Villa had no right to seek the Grievor’s health information, this Employer had no right to provide it.  Therefore, the Agreed Facts reveal a clear violation of the Occupational Health and Safety Act.”

The arbitrator also found that the disclosure of the information violated the collective agreement in that it constituted “harassment”, which was defined in the collective agreement as, “any behaviour which denies and or undermines individuals’ . . .  dignity and respect, and that is offensive, embarrassing and humiliating to said individual.”  Lastly, the arbitrator held that the disclosure constituted the tort of “intrusion upon seclusion”.

The arbitrator ordered St. Patrick’s to comply with its own confidentiality policy and to pay the employee $1,000.00 in damages.

This case illustrates the increasing importance of privacy – particularly of medical information – in the workplace, and that privacy obligations can come from unexpected places, including the OHSA.

St. Patrick’s Home of Ottawa Inc. v Canadian Union of Public Employees, Local 2437, 2016 CanLII 10432 (ON LA)

Employer breached OHSA, collective agreement by sharing employee’s medical information with another employer

City wins suspension of MOL inspector’s “constructor” order

A city has won a suspension of a Ministry of Labour inspector’s decision that the city was a “constructor” under the Ontario Occupational Health and Safety Act on a watermain-improvement project.

The city was the “owner” of the project.  It had retained, for the project, a construction company which had assumed the role of constructor under the OHSA and was carrying out the duties of constructor on the project.

The city asked the Ontario Labour Relations Board to suspend the operation of the inspector’s Order that the city was the constructor.  The MOL opposed the suspension request, alleging that the city had retained a great deal of control over the project, including the timing of some of the work, and had control over the construction company and the police service (which performed some traffic control functions in connection with the project).  The MOL argued that because the city had such “control”, the city should also have the duties of constructor under the OHSA.

The OLRB suspended the MOL inspector’s Order pending the outcome of the city’s appeal challenging the inspector’s decision. The OLRB decided that the safety of workers on the project would be maintained because the construction firm was an “experienced and responsible entity” which was carrying out the duties of constructor on the project.  While the city may have requested and paid for the traffic control services provided by the police, it was at the construction company’s request that the city contacted the police and arranged for traffic control.  The construction company “more closely resembled” the constructor on the project.  Compelling the city to carry out the obligations of the constructor would cause it prejudice that it ought not to bear if it was not in fact the constructor.

City of Greater Sudbury v A Director under the Occupational Health and Safety Act, 2015 CanLII 86601 (ON LRB)

 

City wins suspension of MOL inspector’s “constructor” order

$250,000 fine against school board may be largest-ever against not-for-profit organization in Ontario

A school board has been handed a $250,000 fine under the Ontario Occupational Health and Safety Act after the death of maintenance worker.

The maintenance worker had been assigned the task of replacing a safety cage on a ceiling light in a high school gymnasium.  He was working alone.  While he was rolling a portable aerial device (a type of lifting device) down a ramp off a trailer, the aerial device tipped over and struck the worker, fatally injuring him.

The angle of the ramp was about eight degrees, while the manual for the aerial device stated that it should not be rolled down an incline greater than five degrees.

The school board pleaded guilty to the OHSA charge of failing as an employer to take every precaution reasonable in the circumstances for the protection of a worker.  In particular, the school board failed to ensure that the angle of the ramp was five degrees or less; that the aerial device was rolled down the ramp with its mast on the upper or high end of the ramp to lessen the possibility of it tipping; and that there was another worker present to assist.

The court imposed the fine of $250,000 plus the 25% Victim Fine Surcharge, for a total of $312,250.  This appears to be the largest fine ever in Ontario under the OHSA against a not-for-profit or charitable organization.  The case shows that charities and not-for-profits are not immune from charges and fines under occupational health and safety legislation.

The Ontario Ministry of Labour’s Court Bulletin may be found here.

$250,000 fine against school board may be largest-ever against not-for-profit organization in Ontario

U.S. OSHA’s “severe injury” statistics broken out by industry

The U.S. Occupational Safety and Health Administration has produced a “year one” impact-evaluation report on its Severe Injury Reporting Program.

Effective January 1, 2015, U.S. employers have been required to report to OSHA within 24 hours of any work-related amputation, in-patient hospitalization or loss of eye.

OSHA reports that it received 7,636 “hospitalization reports” in 2015.  The manufacturing industry was responsible for 26% of the hospitalization reports, while 19% were from construction, 11% from transportation and warehousing, 8% from retail trade, 6% from “administrative and support and waste management and remediation services”, 6% from health care and social assistance, 5% from wholesale trade, 3% from oil and gas extraction and 16% from other industries.

Fully 57% of “amputation reports” came from manufacturing, with 10% from construction.

OSHA’s report can be accessed here.

U.S. OSHA’s “severe injury” statistics broken out by industry

Employee stopped production line “to be difficult”, not due to safety issue: work refusal not justified

An employee who shut down a production line allegedly because two other employees were fighting, was not exercising a proper work refusal under the Occupational Health and Safety Act, the Ontario Labour Relations Board has decided.  His poor workmanship was also deliberate.

The employee pushed an “E-stop” button, and said he did so because he saw two coworkers fighting. He said that he saw punches thrown and a headlock.  He said that he pushed the E-stop button out of concern for one of the two employees’ safety.   He did not show up at a meeting the next day to discuss the incident. The employer then dismissed him.

The OLRB noted that under the OHSA, an employee may refuse to work due to workplace violence only when his or her own safety is at risk due to the violence – not the safety of a coworker. Here, the employee said that he was concerned about his coworker’s safety, not his own.  Also, the OLRB held that the two employees were not, in fact, fighting, but rather they were engaged in horseplay.  The employee could not have believed that their safety was in jeopardy.

The OLRB stated, “In light of the foregoing, I find that Mr. McNerney was angry with Ms. Campbell and he decided to be difficult by producing defective products and unnecessarily pushing the E-stop button. Given how unusual it was for an employee to produce so many defective seats during a shift, I find it more likely than not that Mr. McNerney’s poor workmanship was deliberate.”  The employee had no honest and good faith believe that a health and safety issue had arisen requiring him to push the E-stop button.

As such, the OLRB held that the employee had not been dismissed for raising safety issues. There was no violation of the OHSA.

McNerney v Integram Windsor Seating, 2015 CanLII 67646 (ON LRB)

 

Employee stopped production line “to be difficult”, not due to safety issue: work refusal not justified

Contractor loses lawsuit against city for alleged breaches of OHSA’s asbestos-disclosure rules

A construction contractor has lost its bid for damages from a city, relying on a little-used section of the Ontario Occupational Health and Safety Act that permits contractors to sue a building owner for damages for failing to disclose the presence of designated substances such as asbestos. The contractor’s lawsuit and appeal were both dismissed.

The contractor alleged that the City of Ottawa had failed to notify it that asbestos was present on the construction project site, and that as a result, the contractor’s workers had been exposed to asbestos.  The contractor claimed damages for administrative expenses (it’s president’s time dealing with the issue) and legal costs resulting.

The contractor relied on subsection 30(5) of the Ontario Occupational Health and Safety Act, which reads:

30. (5) An owner who fails to comply with this section is liable to the constructor and every contractor and subcontractor who suffers any loss or damages as the result of the subsequent discovery on the project of a designated substance that the owner ought reasonably to have known of but that was not on the list prepared under subsection (1).

Subsections 30(1) and (3) of the OHSA together require the building owner to provide the contractor with a list of designated substances at the project site.

The trial and appeal court decided that the contractor had not proven any damages.  The list of hours spent and work done by the contractor’s president to deal with the asbestos issue, was vague and general and was not suitable proof.  There was no evidence that the legal bill was ever submitted to or paid by the contractor.  As such, the contractor’s lawsuit was dismissed.

Lastly, the trial and appeal court were not prepared to grant a “declaration” that the City caused the unprotected exposure of the workers to asbestos or that the City was liable for damages incurred by the contractor and workers as a result of the exposure.  The court noted that the request was speculative as it was not known whether any of the employees would ever become ill as a result of the asbestos exposure and if so, whether they would start legal proceedings.  Also, any declaration might have an impact on the rights of employees who were not a party to the lawsuit between the contractor and the City.

Curoc Construction Ltd. v. Ottawa (City), 2015 ONCA 693 (CanLII)

Contractor loses lawsuit against city for alleged breaches of OHSA’s asbestos-disclosure rules

Employer’s request for post-incident alcohol and drug test was not justified where no sign of impairment: arbitrator

An employee responsible for a minor, although unusual, accident in a company parking lot was justified in refusing to submit to an alcohol and drug test, a labour arbitrator has found.

The employee was an electrician. His position was safety-sensitive. When backing up to park a vehicle, he backed into the only other vehicle in the parking lot.

The employer demanded that he submit to a post-incident drug and alcohol test. The employee refused, citing advice that he had received from his union.

The arbitrator found that nobody had thought that the employee was impaired. There were no signs of impairment.  After the accident, the employee sat through a half-hour investigative meeting and “could not give anyone in the meeting the slightest suggestion of impairment”.  Two managers, who were in the meeting, did not think he was impaired.  The managers concluded that he could drive home safely.  The cause of the accident was obvious: the employee’s carelessness, which the employee admitted.  The managers were “reasonably able to exclude the possibility that drug or alcohol impairment” may have caused the accident.

As such, the demand that the employee submit to an alcohol and drug test was not justified.

Jacobs Industrial and International Brotherhood of Electrical Workers, Local 353, 2016 CanLII 198

Employer’s request for post-incident alcohol and drug test was not justified where no sign of impairment: arbitrator

Double (16-hour) shift was not prohibited by ESA or OHSA: arbitrator

A labour arbitrator has held that the practice of unionized long-term care home employees voluntarily working two 8-hour shifts in succession did not violate the Ontario Employment Standards Act or Occupational Health and Safety Act.

With respect to the ESA, the arbitrator held that the practice did not violate section 18(1) which required that employers “give an employee a period of at least 11 consecutive hours free from performing work in each day.” That was because, according to the arbitrator, s. 18(1) permitted an employee to voluntarily work more than 13 hours in a day; as such, the collective agreement provision permitting double shifts was a greater right or benefit and thus did not violate the ESA.

The issue under the OHSA was whether the employer, by permitting employees to work double shifts, was violating its “general duty” under s. 25(2)(h) of the OHSA to take all precautions reasonable in the circumstances for the protection of a worker, due to safety issues that could result from employee fatigue. The arbitrator noted that there was “no meaningful correlation” between workplace accidents or resident complaints and employees working double shifts. Also, the practice of double shifts was a reasonably-accepted industry standard. As such, the general duty under the OHSA did not require the employer to ban double-shifts.

The arbitrator stated, though, that employees should voluntarily assess, before they take on an added shift, whether they are too tired to work safely.

The Regional Municipality of Durham, 2016 CanLII 8803

Double (16-hour) shift was not prohibited by ESA or OHSA: arbitrator

General contractor, not present on job site, was still responsible for subcontractor’s safety: labour board

A general contractor on a residential project was responsible for the safety of its subcontractors even though it was not on site at the time of an incident.

The general contractor objected to two compliance orders issued to him under the Nova Scotia Occupational Health and Safety Act, arguing that it was “not his work that was at issue, and therefore not his responsibility”.

The general contractor had entered into a handwritten contract with a homeowner to do renovation work. The contract included the following among 11 areas of work to be done: “supply general contractor services for chimney repair re a separate service to this contract”.  He then obtained four quotes for the chimney work and retained one subcontractor to do that work.  He showed the subcontractor around the property and gave him a key so he could access the bathroom.

The Labour Board found that there was an agreement that the subcontractor could use staging that the general contractor had on site as part of his contract, and that the general contractor would act as “paymaster” for the subcontractor.

An occupational health and safety officer with the Nova Scotia government visited the job site in response to an anonymous complaint. He noted a number of safety issues including roofers working without adequate fall protection on improperly erected scaffolds.  He issued compliance orders to the general contractor.

The Labour Board held that the compliance orders were justified. The officer had reasonable grounds to believe that it was the general contractor’s worksite over which he had overall responsibility.  The handwritten agreement supported this: it referred to “general contractor” duties.  The subcontractor and his employee stated that they regarded the general contractor as their “boss”.

The Labour Board determined that the general contractor was “inclined to distance himself from [the subcontractor] after the situation became problematic and he realized that he was going to be held partly responsible. Had the chimney work turned out well, [the general contractor] might well have taken credit for it.”

Yvan Haince v. Director of Occupational Health and Safety, 2016 NSLB 28 (CanLII)

 

General contractor, not present on job site, was still responsible for subcontractor’s safety: labour board

MOL’s incident-reporting training Order to mining company not suspended

A Ministry of Labour compliance Order issued against a mining company for allegedly failing to report an “uncontrolled fall of ground” should not be suspended pending the outcome of the employer’s appeal of that Order, the Ontario Labour Relations Board has decided.

The Mines and Mining Plants regulation under the Ontario Occupational Health and Safety Act requires that an uncontrolled fall of ground that causes damage to equipment or the displacement of more than 50 tonnes of material must be reported to the Ministry of Labour.

A Ministry of Labour inspector concluded that there had been a fall of ground in a stope that caused damage to a scoop tram, and that the employer had not reported it to the Ministry. The inspector Ordered the employer to ensure that its supervisors were trained in reporting falls of ground under the Regulation.

The employer appealed the Order and asked the Ontario Labour Relations Board to suspend the operation of that Order pending the appeal.  The OLRB refused to suspend the Order, holding that suspending the Order would likely endanger worker safety because if accidents are not reported, the Ministry of Labour will not be able to investigate and identify any hazards.  Also, the OLRB decided that a refusal to suspend the Order would have little effect on the employer because the employer already provided training to its supervisors so it would not require significant effort to train supervisors on incident reporting.

Employers often consider appealing Ministry of Labour Orders after an incident or accident, anticipating that the appeal is necessary in light of possible charges under the Occupational Health and Safety Act.  The cost-benefit of filing such appeals must be carefully considered in light of the possibility of losing the appeal.

Glencore Canada Corporation v Mine, 2016 CanLII 2839 (ON LRB)

MOL’s incident-reporting training Order to mining company not suspended

Death of visitor leads to employer’s conviction, $100,000 fine under OHSA

This case is a reminder that injuries to non-employees can lead to Occupational Health and Safety Act convictions and fines against employers.

A visitor to a self-storage facility in North Bay fell through an open hole in the floor of a storage unit, after he came to the facility to examine a truck that was being stored there.  He fell about 6 feet to the concrete floor below and died.

The company that operated the self-storage facility pleaded guilty to the OHSA offence of failing as an employer to take every precaution reasonable in the circumstances for the protection of a worker (failing to ensure that an open hole in the floor of a storage unit was protected by a guardrail or floor covering).

The Ministry of Labour notes, in its Court Bulletin, that the OHSA applies “because there were workers at the site who were exposed to the same hazard and the company is an ’employer'” under the OHSA.  That is, even where the injured employee is not a worker / employee, if the injury resulted from a hazard to which workers were also exposed, the OHSA applies and the employer may be charged and fined.

Death of visitor leads to employer’s conviction, $100,000 fine under OHSA

Waiver was unenforceable under WSIA, employee entitled to sue employer after workplace injury

An Ontario employee has won the right to sue his employer for damages for an injury suffered at work.  An appeal court decided that a waiver he signed was, due to provisions in the Ontario Workplace Safety and Insurance Act, unenforceable.

The National Capital Kart Club held a go-cart event at which the employee acted as race director.  The employee was injured after one go-kart driver crashed into hay bales.  The employee sued his employer, the go-kart driver and others.  The defendants argued that a waiver, which the employee had signed, released them from any damages.

The employer was not required, under the Workplace Safety and Insurance Act, to be registered with the Ontario Workplace Safety and Insurance Board.  Therefore the employee did not have workers compensation coverage.

The employee, on appeal, relied on the little-known Part X of the Workplace Safety and Insurance Act.  Part X contains section 114(1) which, the employee argued, made the waiver unenforceable.  That section applies to workers whose employer is not registered, and not required to be registered, with the WSIB:

114. (1) A worker may bring an action for damages against his or her employer for an injury that occurs in any of the following circumstances:

1. The worker is injured by reason of a defect in the condition or arrangement of the ways, works, machinery, plant, buildings or premises used in the employer’s business or connected with or intended for that business.

2. The worker is injured by reason of the employer’s negligence.

3. The worker is injured by reason of the negligence of a person in the employer’s service who is acting within the scope of his or her employment.

The Court of Appeal for Ontario held that it was contrary to public policy to allow employers to have employees “contract out” of Part X of the Workplace Safety and Insurance Act (that is, sign a waiver giving up their rights, under Part X, to sue their employer for certain workplace injuries).  As such, the waiver was unenforceable and the employee’s lawsuit could proceed.

Employers that are not registered with the WSIB, and not required to be registered, should review their use of waivers – including waivers for company events.  As a result of this decision, waivers signed by employees will not be enforceable to prevent the employee from suing the employer for certain injuries, including injuries caused by the employer’s negligence.

Fleming v. Massey, 2016 ONCA 70 (CanLII)

 

Waiver was unenforceable under WSIA, employee entitled to sue employer after workplace injury

Firing after employee’s “generalized threat to get legal advice” was not retaliatory

An employee who was fired approximately one month after he told his employer that he “might get legal help” was not the victim of a reprisal, the Ontario Labour Relations Board has decided. Although the case was filed under the Employment Standards Act, the ruling is of interest to health and safety professionals.

The employee did not mention the Employment Standards Act when he said that he “might get legal help”   The OLRB decided that that assertion might describe a broad range of possible actions not limited to those under the Employment Standards Act.

The employee admitted that he did not know about the Employment Standards Act when he said that he might get legal help.  Shortly after his termination, he sent an e-mail to the company referring to wrongful dismissal and discrimination.

The OLRB concluded:

“There are no ‘magic words’ required for an employee to invoke the protection of s. 74 of the Act [the reprisal provision of the Employment Standards Act] so it is not necessary for an employee to refer specifically to the Act . . . However, where the background facts do not appear to raise issues of the enforcement of the Act and the employee makes only a generalized threat to seek legal assistance – as in this case – the protection of s. 74 of the Act cannot be engaged.”

This case confirms that generalized threats will not be enough to support an employee’s complaint that he or she has been retaliated against for asking the employer to comply with employment standards or health and safety legislation.  The employee must have sought to exercise his or her rights under the particular Act before he or she can claim retaliation for doing so.

Zongping (Peter) Luo v Economical Mutual Insurance Company, 2015 CanLII 79023 (ON LRB)

Firing after employee’s “generalized threat to get legal advice” was not retaliatory

Criminal negligence causing death charge against auto mechanic reinstated by appeal court

A charge of criminal negligence causing death against an auto mechanic may proceed, the Ontario Court of Appeal has decided, holding that it was possible that a reasonable jury could find that the mechanic was a “significant contributing cause” of a woman’s death.

The case illustrates that workers – perhaps particularly those who repair or operate vehicles or equipment – could face criminal charges if they are negligent and the negligence causes injury or death.

The mechanic issued a Safety Standards Certificate to the purchaser of a 17-year-old pickup truck.  The Safety Standards Certificate was required to complete the transfer of ownership.  There was evidence that the mechanic did not conduct the legally-required inspection of the truck.  A month later, the truck was involved in an accident in which the driver lost control and collided with an oncoming vehicle driven by the young woman, who died as a result of the accident.

There was evidence at a preliminary inquiry that the truck would not have passed a safety inspection and that there was a serious defect in the truck’s steering mechanism (“excessive free play” in the steering wheel).  The appeal court noted that an O.P.P. accident reconstructionist concluded that the steering defect pre-dated the collision and would cause the driver to over-correct in a panic situation, leading to a loss of control and further over-steering. Also, there was evidence that the truck “fishtailed” before the collision; the previous owner had testified that the steering wheel wandered” and had “a little bit of play”; there was testimony that the purchaser of the truck was planning on installing a new steering shaft; and there was testimony that both the driver and the purchaser thought to blame the accident on the steering shortly after the accident.

The Ontario Court of Appeal therefore concluded that a reasonable jury could find that the mechanic was a significant contributing factor to the death and that the mechanic was therefore guilty of criminal negligence causing death. Therefore, the charge of criminal negligence causing death should proceed to a trial.

R. v. Ramono, 2015 ONCA 685 (CanLII)

Criminal negligence causing death charge against auto mechanic reinstated by appeal court

$5.3 million fine in Sunrise Propane case after joint prosecution under OHSA and EPA

Some cases illustrate very well the principle that “the more dangerous your operation, the more careful you must be”.  This case, involving a joint prosecution by the Ministry of Labour and Ministry of Environment, is one of them.

Sunrise Propane Energy Group Inc. and its directors have been fined a total of $5.3 million under both the Occupational Health and Safety Act and the Environmental Protection Act, following high-profile explosions at a propane-filling plant in Toronto more than seven years ago.

A young worker with short service was killed by the explosions.  Propane was accidentally ignited during a prohibited truck-to-truck transfer.  The explosions also discharged contaminants from fuel tanks, resulting in an evacuation in the area. Some area residents suffered injuries and burns and local businesses lost business as they were forced to close.

Sunrise Propane was fined $280,000 plus a victim fine surcharge of $70,000 for failing to train and supervise workers on safe work practices and failing to take every reasonable precaution to protect workers, contrary to the Occupational Health and Safety Act.  OHSA charges are prosecuted by the Ministry of Labour.

In a previous post, we noted that the court, in its 2013 decision convicting the company and directors in 2013, held that the young worker had not been properly supervised.  The employer did not take the simple step of giving the employee a phone number to call if he had any questions.  Nor did any supervisors call him to check in on him.  The employee should not have been put in charge of the propane yard on the night in question, given his lack of experience.

Referring to the dangerous nature of this workplace, the court had stated in its 2013 decision:

“I am sure that the defendants were well meaning, to a degree, but in an inherently dangerous business such as this there must be a high degree of attention to detail and processes in place that address day-to-day issues, particularly instructing, training and supervision for people handling this very dangerous fuel.  People make mistakes and processes assist in mitigating any damage that arises when employees make those mistakes.”

Sunrise Propane was also fined $2,820,000 plus a victim fine surcharge of $705,000 for failing to comply with a cleanup order from the Ministry of the Environment and Climate Change after the explosions, and for discharging a contaminant that caused adverse effects.  Two company directors were fined $100,000 each plus a victim fine surcharge of $25,000 each for not complying with an order.  A related company was fined $2 million plus a victim fine surcharge of $500,000 for the discharge of the contaminant that caused adverse effects.  EPA charges are prosecuted by the Ministry of the Environment and Climate Change.

The press release from the Ministry of Labour may be found here, and the press release from the Ministry of the Environment and Climate Change may be found here.

$5.3 million fine in Sunrise Propane case after joint prosecution under OHSA and EPA

“Presumptive remedy” for retaliatory discharge under OHSA is reinstatement of employee, OLRB states

Where an employer fires an employee for raising safety concerns, the employee will generally be entitled to reinstatement, the Ontario Labour Relations Board has stated.

The case involved a restaurant employee who sent an e-mail to the owner complaining of workplace harassment and asking for a copy of the employer’s harassment policy.  In the owner’s e-mail response, he denied the harassment. He did not give her a copy of the policy.

A few days later, the owner sent the employee an e-mail advising that the Ministry of Labour had commenced an inspection under the Occupational Health and Safety Act and asking her to meet with the employer’s health and safety committee.  The employee responded that she was willing to do so, and again requested a copy of the harassment policy.  The owner never contacted her again, and did not schedule her for any more shifts despite the employee’s repeated requests to be returned to the schedule.

The employee filed a reprisal complaint under the OHSA with the Ontario Labour Relations Board. The employer did not attend the hearing.  In the absence of an explanation by the employer, the OLRB was satisfied that at least part of the employer’s reason for ceasing to schedule her was that she had raised health and safety issues.

The OLRB stated that, “The presumptive remedy for a reprisal in contravention of section 50 of the Act is to reinstate the discharged employee and to provide the employee with lost wages from the date of the discharge up until the date of the reinstatement subject to mitigation.”

However, in this case, the employee did not want to go back to work at the restaurant.  The OLRB decided that, “Given the manner in which her employment ended, I do not find that reinstatement would be a viable remedy in the circumstances.  I agree with counsel that, in the place of reinstatement, Ms. Thompson is entitled to damages for loss of employment.” The OLRB awarded her damages of $7,437.16 for “loss of employment and loss of wages”.

Thompson v 580062 Ontario Inc (Slainte Irish Gastropub), 2015 CanLII 76907 (ON LRB)

“Presumptive remedy” for retaliatory discharge under OHSA is reinstatement of employee, OLRB states

Contractor jailed for 30 days, fined $45,000 after serious asbestos violations

Every now and then a case comes along to remind us that violators of occupational health and safety legislation can be sent to jail.

Mind you, this case involved not only serious safety violations, but also deceit and illegal dumping.

An Ontario contractor has been jailed for 30 days and fined $45,000, after a successful prosecution by the Ontario Ministry of Labour, for violating the asbestos regulation under the Ontario Occupational Health and Safety Act.

According to the Ministry of Labour court bulletin, on two separate dates in 2014, the contractor, along with at least one of his workers, went to a residential home to remove asbestos-containing insulation from the attic.

The contractor did not separate and seal off the work area; did not have any decontamination facilities in place; did not identify the work area with any signs warning of an asbestos dust hazard; did not wear protective clothing; and he and his worker wore respirators that were not fit-tested and on which they were not trained. Further, the contractor did not notify the Ministry of Labour of the asbestos removal work as required by the asbestos regulation. The contractor had told the homeowner that the removal work was being done in accordance with the asbestos regulation, and that the contractor was certified to do the work, but neither was true. The homeowner and two other people were in the home while the work was being done.

The Ministry of Labour, Ministry of Environment and police got involved when someone reported that vacuum bags with asbestos-containing insulation had been illegally dumped on private property.

After a trial, the contractor was found guilty on nine charges under the Occupational Health and Safety Act and Regulation 278/05 (“Designated Substance – Asbestos on Construction Projects and in Buildings and Repair Operations”) under the OHSA.  The court stated that this was a case of clear deceit and misrepresentation by the contractor and total disregard for the health and safety of workers and the public.

The court then imposed the thirty-day jail sentence and $45,000 fine.

The Ministry of Labour’s court bulletin may be accessed here.

Contractor jailed for 30 days, fined $45,000 after serious asbestos violations

Summary of judge’s reasons for giving Kazenelson, “unquestionably a person of good character”, a 3 1/2 year jail sentence for criminal negligence

The judge’s reasons for sending Metron Construction’s project manager, Vadim Kazenelson, to jail for criminal negligence are now available here.

In our post of January 11th, we reported that the judge had sentenced Mr. Kazenelson to 3 1/2 years in prison.

Mr. Justice MacDonnell’s reasons for imposing the 3 1/2 jail term are as follows:

-Although Mr. Kazenelson was of “good character prior to the accident and has continued to be of good character in the six years since”, and he was remorseful and unlikely to commit further criminal offences of any kind, the offences and their consequences were very serious: four men lost their lives and a fifth suffered devastating and life-altering injuries.

-As the Crown and Mr. Kazenelson agreed, the principles of denunciation and general deterrence (sending a message to others, to prevent similar crimes in future) required a term of imprisonment.

-Mr. Kazenelson’s breach of duty was “more than a momentary lapse”.  He was aware that the workers were working 100 feet or more above the ground without lifelines.  “His duty to take steps to rectify this dangerous situation was fully engaged, and it remained engaged for some time” (he was with the workers for at least 30 minutes prior to the accident).

-He not only did nothing, 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.

-Mr. Kazenelson “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.

-“A consideration of all of the circumstances can lead only to the conclusion that a significant term of imprisonment is necessary to reflect the terrible consequences of the offences and to make it unequivocally clear that persons in positions of authority in potentially dangerous workplaces have a serious obligation to take all reasonable steps to ensure that those who arrive for work in the morning will make it safely back to their homes and families at the end of the day.”

In the end, Mr. Kazenelson, now a 40 year old father of three young sons, described as “honest, hardworking, conscientious and safety-minded”, “a good and devoted father to his children” and “unquestionably a person of good character” who was providing support to his mother who resides overseas, was sentenced to 3 1/2 years in prison.  Mr. Kazenelson has appealed his conviction for criminal negligence, so it would appear that the case is not over yet.

R. v Vadim Kazenelson, 2016 ONSC 25 (CanLII)

 

Summary of judge’s reasons for giving Kazenelson, “unquestionably a person of good character”, a 3 1/2 year jail sentence for criminal negligence

Does your safety policy require an accident investigation? Court suggests investigation file may not be litigation privileged

An Alberta judge has suggested that if a workplace safety policy or program requires that certain accidents be investigated, then the accident investigation reports may not be subject to litigation privilege – meaning that government safety investigators may be entitled to obtain the investigation file.

The comment was made in a case that involved an investigation by an in-house lawyer after a “whistleblower” complained about a potential conflict of interest by a former employee.  Because the company had not shown that the dominant purpose of the investigation was to assist in anticipated litigation, rather than to satisfy the requirements of the company’s whistleblower program, the investigation documents were not litigation privileged.

The court offered the following analogy, which is of interest to health and safety professionals:

“A useful analogy might be drawn to the many reported cases dealing with fire or explosions at industrial facilities. When such event occurs it is obviously a real possibility that an investigation will result in litigation against, for example, the manufacturer of faulty equipment. However, the owner of the facility likely has workplace safety programs. Defendants to litigation are entitled to explore through cross-examination the parameters of the workplace safety program in order to advance an argument that, while anticipated litigation was one of the reasons for the investigation, the requirements of the workplace safety program was an equal reason for the investigation. Likewise, the defendants in this case are entitled to explore through cross-examination, inter alia, the extent to which the investigation which occurred was required under Talisman’s whistleblower program.”

While, in the whistleblower case, the company was not able to rely on litigation privilege to avoid turning over the investigation documents to the other side in a civil lawsuit, the court decided that the company could rely on legal advice privilege (also called “solicitor-client privilege”).  The court held that one of the purposes of the investigation was to ascertain the facts in order to get legal advice from their in-house counsel and, if the matter proceeded further, their outside counsel.  As such, the investigation file was subject to legal advice privilege and the company was not required to give it to the opposing party.

Employers should ensure, when faced with a serious accident, that they consider retaining legal counsel promptly to provide advice and to attempt to attach “legal advice privilege” to the investigation file. Otherwise, the employer may – depending on what its safety program says about investigations – be required to turn over the entire investigation file to the government safety investigators.

Talisman Energy Inc v Flo-Dynamics Systems Inc, 2015 ABQB 561 (CanLII)

 

Does your safety policy require an accident investigation? Court suggests investigation file may not be litigation privileged

Worker’s fainting at sight of his own blood was “work-related”: U.S. OSHA

We all know people who get light-headed at the sight of blood.  The U.S. Occupational Safety and Health Administration (OSHA) has issued an interpretation letter, advising that an incident in which a worker fainted at the sight of his own blood was “work-related”.

The worker in question had scratched his finger on a vinyl saw clamp at work. The injury was minor, and a Band-Aid was the only first aid treatment sought. However, while a co-worker applied the Band-Aid, the worker fainted at the sight of his own blood. He regained consciousness and no further treatment was needed.

The worker’s employer asked OSHA to clarify whether the event was work-related so that the employer was required to “record” the event on an OSHA form. The law required the employer to report a work-related injury or illness if it results in unconsciousness.

Because the employee fainted, OSHA determined that the fainting spell was work-related.

The case is a reminder that some injuries and accidents that appear not to be work-related, may be reportable.  For instance, in Ontario, employers are required to report “critical injuries” to the Ontario Ministry of Labour, including “an injury of a serious nature that . . . produces unconsciousness”.

OSHA’s interpretation letter may be read here.

Worker’s fainting at sight of his own blood was “work-related”: U.S. OSHA