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

$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

Employer ordered to reinstate labourer fired day after complaining about knee pain, safety issue

An employee has won a reinstatement order under the Occupational Health and Safety Act after the Ontario Labour Relations Board held that he was fired for raising safety issues.

The employee complained to a company representative that carrying boxes up and down stairs caused him to suffer knee pain and was dangerous because certain loads he was carrying obstructed his view.  The next day, he was fired.

The employer’s evidence at the hearing, that the employee was dismissed because he was “not himself”, was “complacent” and was “not doing what he normally would be doing” and was “entrenched in what he was doing next” did not possibly establish a basis for termination. As such, the OLRB decided that there must have been another “spark” that set off the termination process, and the only other event was the employee’s safety complaint the day before he was fired.

Importantly, the company representative who received the employee’s safety complaint did not testify at the hearing. Therefore, the OLRB accepted the employee’s evidence that he had made the safety complaint.

Interestingly, the OLRB held that the employee had never seen a “final written warning” that the employer said they gave to him the day before his termination.  The final written warning actually hurt the employer’s case because it demonstrated that the employer believed, before the employee made the safety complaint, that a warning – not termination – was appropriate discipline.  As such, it must have been the safety complaint that led to termination.

The OLRB ordered the employer to reinstate the employee and compensate him for his lost wages from his dismissal to his reinstatement date.

Le v Safecross First Aid Limited, 2015 CanLII 72242 (ON LRB)

 

Employer ordered to reinstate labourer fired day after complaining about knee pain, safety issue

Misleading information about WHMIS training requirements

Work Safe Alberta has recently revised a Bulletin regarding some aggressive, high pressure sales tactics being used by some WHMIS training providers. The Bulletin serves as a reminder to Alberta employers that while WHMIS training is required for workers who work with WHMIS products, the training does not need to be completed by a commercial training provider. Employers should consider the specific training required depending on the particular work site and the employees job duties and tailor their training programs accordingly. The Bulletin can be found here.

Misleading information about WHMIS training requirements

When public perception and the law differ: man fired for heckling TV reporter at soccer game is rehired after arbitration process

Just because members of the public call for the firing of an employee for yelling sexual taunts at a TV reporter at a sports match, does not mean that the firing is legally justified, a recent case illustrates.

A hydro employee fired in May for hurling obscenities at at TV reporter has been rehired, according to a Canadian Press story.

The employee, an assistant network management engineer with Hydro One, was fired in connection with the incident at a Toronto FC game.  A media firestorm ensured, with many Internet commentators and others calling for his firing.  Hydro One did dismiss him, citing violations of its employee code of conduct.

It is not clear whether an arbitrator ordered Hydro One to reinstate the employee, or whether Hydro One did so as part of a settlement.

The case raises the thorny issue of when employees can be disciplined or fired for off-duty conduct.  At the very least, the employee’s rehiring shows that what may seem obvious to members of the public – that vulgar, offensive and/or harassing off-duty conduct justifies firing – may not always be legally correct.

The Canadian Press story, reported on The Globe and Mail Website, can be found here.

When public perception and the law differ: man fired for heckling TV reporter at soccer game is rehired after arbitration process

Lawyer’s harassment investigation report was not solicitor-client or litigation privileged: union entitled to a copy, says arbitrator

The mere fact that a lawyer prepared an investigation report does not make it privileged, a labour arbitrator has held, granting the union’s request for a subpoena to obtain the report.

The Durham Regional Police Association (the police union) filed a grievance alleging that the Association’s civilian members had suffered harassment. The Durham Regional Police Services Board (the employer) retained a lawyer to conduct a harassment investigation and prepare a report, which she did.  The Association requested a copy and the Board refused, claiming that the investigation report was protected by both solicitor-client privilege and anticipated-litigation privilege.

The arbitrator decided that the lawyer-investigator was retained to conduct an investigation into whether harassment occurred. She was not retained to conduct an investigation on the Board’s behalf and to assess its liability and provide legal advice.  The arbitrator noted that the lawyer-investigator was not the Board’s usual labour lawyer.  The lawyer-investigator’s retainer letter was also not a retainer for the provision of legal advice.  Importantly, the investigation was meant to be independent.  Effectively, she was acting as an independent investigator, not the Board’s labour lawyer.  As such, the investigation report was not covered by solicitor-client privilege.

With respect to anticipated-litigation privilege, the arbitrator stated that the dominant purpose for which the investigation report was prepared was not litigation.  Instead, the purpose of the report was to determine whether the harassment complaints were substantiated because the Board was committed to a harassment-free workplace.  Litigation was a mere possibility when the investigation was conducted and was not its dominant purpose.  As such, the investigation report was not protected by anticipated-litigation privilege.

The arbitrator concluded:

“There is so little evidence that the Investigation Report was prepared for the purposes of providing legal advice or in contemplation of litigation that if I were to find that it was privileged it would effectively mean that any time a solicitor is used for an independent harassment investigation an employer could claim privilege over the resulting report and related documents. That is not consistent with the jurisprudence or with good labour relations.”

This case is a reminder that employers and their counsel should carefully consider, up-front, whether they wish the investigator’s report to be independent or to be subject to privilege. If privilege is sought, the investigator’s retainer letter should clearly state that privilege is asserted, and whether both solicitor-client and anticipated-litigation privilege are claimed.  The Ontario Court of Appeal’s 2009 decision in R. v. Bruce Power Inc., 2009 ONCA 573 (CanLII) provides a good example of how privilege can be successfully asserted over a workplace investigation report.

Durham Regional Police Association v Durham Regional Police Services Board, 2015 CanLII 60920 (ON LA)

 

Lawyer’s harassment investigation report was not solicitor-client or litigation privileged: union entitled to a copy, says arbitrator

Moving company fined under smoke-free workplace legislation

As one employer learned recently, smoke-free workplace legislation has teeth.

According to a Nunavut government press release, a government safety officer, in a workplace inspection, “observed evidence of smoking in the workplace.”

The moving company was charged under the Nunavut Environmental Tobacco Smoke Work Site Regulations, made under that Territory’s Safety Act, with failing to control the exposure of workers to environmental tobacco smoke at an enclosed work site.  The company was sentenced to a fine of $2,000, plus a 15% Victim of Crime Surcharge.

The government’s press release states, “It is important that all employers provide safe work environments by prohibiting smoking in an enclosed work site, and outside the enclosed work site within a three metre radius of any entrance to or exit from the site.”

Moving company fined under smoke-free workplace legislation

Business owner facing criminal and provincial charges in workplace death

Both the RCMP and provincial health and safety officials have laid charges against an owner of a body shop in Dartmouth, Nova Scotia after a worker died.

The worker was killed when the vehicle he was working on caught fire.  The RCMP report that police collaborated with investigators from the Nova Scotia Department of Labour and Advanced Education and the Nova Scotia Public Prosecution Service.

Elie Phillip Hoyeck, the body shop owner, is charged with one count of Criminal Negligence Causing Death under the “Bill C-45” provisions of the Criminal Code.

He is also facing 12 charges under the Nova Scotia Occupational Health and Safety Act including failure to comply with the requirements of the Canadian Standards Association (CSA) standard, “Safety in Welding, Cutting and Allied Processes”; failure to ensure that a welding or allied process is performed by a designated competent person; failure to ensure that the person operating the equipment has inspected the surrounding area to ensure adequate precautions have been taken to remove all hazardous material or processes that produce combustible, flammable or explosive material, dust, gas or vapour, and to prevent fire or explosion; and failure to ensure that no person performs a welding or allied process on a container, pipe, valve or fitting that holds or may have held an explosive, flammable or otherwise hazardous material, and that it is performed in accordance with a written work procedure.

The case is a reminder that serious workplace accidents – particularly fatalities – can lead to both criminal and provincial charges against persons in authority over workers or workplaces.

The RCMP’s press release can be found here.

 

Business owner facing criminal and provincial charges in workplace death

Can provincial OHSA legislation apply across borders? Ontario OHSA protects employee for safety concerns raised while temporarily in B.C., OLRB decides

The question often arises as to whether occupational health and safety legislation in an employee’s home province protects him or her when temporarily working in another province.  According to one recent Ontario Labour Relations Board decision, in some cases the answer can be “yes”.

The employee was hired in Ontario, where he lived, in September 2013.  During his first year of employment, he worked for the employer in both British Columbia and Ontario.  In February 2015, he was temporarily assigned to work in B.C. for about three weeks as a Warehouse Supervisor. While there, he raised a number of safety complaints relating to forklifts (which he said were operated by untrained employees at high speeds), the lack of first aid kits, obstruction of emergency exits, black ice and other hazardous conditions.  The employee said that his efforts to have his concerns dealt with were unsuccessful.

Shortly after returning to Ontario, the company terminated his employment.  The employee then filed a reprisal complaint under the Ontario Occupational Health and Safety Act claiming that he was fired for seeking the enforcement of the Ontario OHSA.  The employer objected, arguing that the safety issues related to compliance with B.C. – not Ontario – safety laws, and that the Ontario OHSA protected only against retaliation for asserting violations of the Ontario OHSA.

The OLRB stated:

“However, Mr. Escudero, as an employee of the responding party permanently based in Ontario, had the right, when he was temporarily assigned by the responding party to a workplace located in Prince George, to require the responding party to ensure that every precaution reasonable in the circumstances had been taken to protect him. That right existed independently of the substance of any applicable health and safety standard established by the legislature of British Columbia.  Simply put, at all times Mr. Escudero had the right to require the responding party to satisfy the statutory obligation established by section 25(2)(h) of the [Ontario OHSA].  Mr. Escudero states that he requested of the responding party that it do so, and that his employment was terminated shortly thereafter.  Mr. Escudero claims that his loss of employment was a consequence of the request he made of the responding party to ensure that it take reasonable precautions to protect him.  If a link between the latter request and the reason for his termination from employment is established, section 50(1) of the Act provides the Board with the authority to remedy the situation.”

As such, the OLRB had authority to adjudicate the reprisal complaint under the Ontario OHSA.

Escudero v Diversified Transportation Ltd./Pacific Western Group of Companies, 2015 CanLII 50878 (ON LRB)

 

Can provincial OHSA legislation apply across borders? Ontario OHSA protects employee for safety concerns raised while temporarily in B.C., OLRB decides

U.S. construction companies and manager face fines of nearly $2 million for exposing workers to asbestos

The U.S. Occupational Safety and Health Administration (OHSA) has cited a construction company and its manager for asbestos-related violations and imposed fines of almost $2 million.  Safety regulators are increasingly taking asbestos violations very seriously.

OSHA inspectors determined that the company and some of its supervisors told employees to remove asbestos-containing materials during renovation of a school. Many of the employees were temporary foreign workers whose first language was not English. OSHA’s investigation also found that management threatened some workers with termination if they spoke with OSHA inspectors.

Further, OSHA inspectors found that the manager and the companies failed to warn employees of the danger, even though they were aware of the asbestos hazard.  Further, they did not ensure that the workers used appropriate work methods and respirators, and did not train them on the hazards of working around asbestos.

The company and manager had 15 days to appeal to the independent Occupational Safety and Health Review Commission.

OSHA’s News Release can be accessed here.

 

U.S. construction companies and manager face fines of nearly $2 million for exposing workers to asbestos

Employee guilty of “reckless” speeding in mine trolley: dismissal upheld

Unsafe operation of equipment is an easy way to get dismissed or charged with Occupational Health and Safety Act – or sometimes even criminal – offences.  A labour arbitrator has upheld the dismissal of a mining employee for driving a trolley at excessive speeds in a mine, causing a derailment and significant damage, costing the company more than $100,000.00.

The trolley was used underground to transport ore cars loaded with “muck” ore or waste to “dumps”.  The trolley weighed 20 tonnes.  The arbitrator found that the speed of the trolley was under the employee’s control.  The evidence was that the track was in good condition.  The arbitrator found that the train was traveling “well in excess” of the maximum allowable speed of 12 km/hr when the derailment occurred, and probably at least 19 km/hr.  The 12 km/hr maximum was set by the Mines and Mining Plants regulation under the Ontario Occupational Health and Safety Act. 

The employee was therefore guilty of operating the train at excessive speed, which constituted reckless conduct.  The employee had short service. He had other safety-related discipline on his record.  His reckless operation of the train could have caused serious personal injury or death.  He refused to accept responsibility, offer an apology or display remorse.

The arbitrator noted that the “underground mine environment is a dangerous and extremely safety-sensitive one”.  It was appropriate, in the circumstances, to discharge the employee.

Sudbury Integrated Nickel Operations v Sudbury Mine, Mill & Smelter Workers’ Union Unifor, Local 598, 2015 CanLII 32018 (ON LA)

Employee guilty of “reckless” speeding in mine trolley: dismissal upheld

“Zero tolerance” policy on drugs in workplace upheld by human rights tribunal where employee did not have “marijuana card”

An employee who smoked marijuana on the job without legal and medical authorization was not discriminated against when dismissed under his employer’s “zero tolerance” policy, the British Columbia Human Rights Tribunal has held.

The employer was a logging contractor.  The employee operated a “button top” machine, which resembled an excavator, used for gripping logs. He had been diagnosed with cancer some years ago and smoked marijuana to, he claimed, manage pain.  He and a coworker shared six to eight joints a day.  They smoked at work only when the foreman was not present.

The employer had a policy of “zero tolerance for drugs on the work site”.  The employer gave the employee a letter stating that “if you can’t stop taking drugs on the work site” and don’t attend at work, then the employee would be considered to have quit.  The Human Rights Tribunal decided that this was effectively a dismissal.

The employer noted Regulation 4.20 of the B.C. Occupational Health and Safety Regulation which provides:

“(1) A person must not enter or remain at any workplace while the person’s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else.

(2) The employer must not knowingly permit a person to remain at any workplace while the person’s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else.”

The Human Rights Tribunal stated, “Safety is the purpose of the zero tolerance policy, and this is clearly rationally connected to the performance of the job, namely operating heaving equipment in the logging industry.”  The Tribunal noted, however, that strict application of a zero-tolerance rule, without consideration of accommodation of the employee’s disability (addiction), may offend the Human Rights Code where the employee has a “marijuana card” (Health Canada authorization to possess marijuana) and is legitimately using marijuana for medical purposes.

Here, the employee did not have a prescription, medical document or marijuana card and did not inform the employer that he was using an impairing or potentially impairing substance in the workplace.  It was incumbent upon him to have already obtained legal and medical authorization and to inform his employer that he would be legitimately using marijuana, and only as medically allowed.  He did not do so.

In summary, the Human Rights Code did not require the employer to accommodate the employee by permitting him to smoke marijuana in the workplace without legal and medical authorization.  “It transgressed the bounds of reasonable accommodation and would have amounted to an undue hardship.” The employee’s human rights complaint was therefore dismissed.

French v. Selkin Logging, 2015 BCHRT 101 (CanLII)

“Zero tolerance” policy on drugs in workplace upheld by human rights tribunal where employee did not have “marijuana card”

“Ill-conceived, poorly-executed” job search, “Alberta sojourn” breached Ontario employee’s duty to mitigate damages in OHSA-retaliation case

Even though an employee “won” his safety-retaliation case under the Occupational Health and Safety Act after his employer failed to file a Response, the employee’s damages were reduced because his job search was shoddy.

After initially trying to find a job around his father’s Ontario home, where he could live rent-free, he “decided to abandon Ontario for an unspecified and illusory opportunity in Calgary” which, evidently, did not come through.

The Ontario Labour Relations Board stated:

“In the result, I am of the view that Stringer did not demonstrate that he acted reasonably in his job search by leaving Ontario for Alberta and after his arrival there.  While the responding party bears the onus of establishing a want of mitigation, the Board cannot ignore the approach taken and effort expended by the applicant in determining the period for which he might be compensated in a proceeding such as this.  To put the matter starkly, if a person such as the applicant did nothing at all to attempt to find work and simply argued that the employer was required to prove that by doing nothing the individual had passed up specific opportunities, the Board would, in my view, be justified in concluding that the onus on the employer did not arise and the individual would be restricted to a nominal level of compensation.  So too, where there is evidence of the person’s making some attempt to obtain other employment, but the approach taken was ill‑conceived, poorly executed, or unsupported by a logical factual basis, the Board should hesitate to conclude that the applicant has made reasonable efforts to mitigate and should reflect that concern in its decision with regard to lost wages.  The applicant is not to be held to a standard of perfection, but, as the Board held in Adams v. W.E. Hall & Sons Company, supra, the applicant’s entitlement to compensation is dependent upon his satisfying the Board that he made “reasonable efforts to mitigate [his] damages”.

Although the employee requested 30 weeks’ pay as damages, the OLRB decided that that would compensate him for the period of his “Alberta sojourn”, which would not be appropriate.  In the end, the OLRB decided that he was entitled to 17 weeks’ lost wages.

Stringer v Grand Tappattoo Resort, 2015 CanLII 26124 (ON LRB)

“Ill-conceived, poorly-executed” job search, “Alberta sojourn” breached Ontario employee’s duty to mitigate damages in OHSA-retaliation case

Ontario MOL Releases 2015-16 Safety Inspection Blitz Schedule

The Ontario Ministry of Labour has released its schedule of workplace inspection blitzes for the period from May 2015 to March 2016. The schedule gives employers advance notice of what MOL inspectors will look for when they visit workplaces.

The “province-wide” occupational health and safety blitz schedule is as follows (the MOL has also released a schedule for its “Provincial Initiatives” and “Regional Initiatives”, which can be found on the MOL’s website):

Focus

Sector/Business Type

Date

Struck By Hazards  Construction May – June 2015
New and Young Workers  Industrial May – August 2015
Trenching Hazards  Construction July – August 2015
Mobile Equipment Traffic Control Measures  Mining July – August 2015
Material Handling  Industrial September 14 –
October 23, 2015
Heavy Equipment Operation  Construction October –
November 2015
Modular Training  Mining October –
November 2015
Safe Operation of Machinery  Industrial January 18 –
February 26, 2016
Occupational Disease

 

Mining February –
March 2016

 

 
Ontario MOL Releases 2015-16 Safety Inspection Blitz Schedule

Manager was not a “competent person” to conduct harassment / violence investigation under Canada Labour Code: Court

The Federal Court has held that a manager was not a “competent person” to conduct a workplace harassment investigation under the Canada Labour Code because the employee who filed the complaint had not agreed that the manager was an “impartial party”.

In December 2011, an employee of the Canadian Food Inspection Agency filed a written complaint alleging “miscommunication, favouritism, humiliation, unfair treatment and a lack of respect” on the part of his supervisor.

The CFIA assigned a manager to undertake a “fact-finding” review of the concerns raised in the complaint.  The manager conducted internal investigations and concluded that there were communication issues and unresolved tension, but no evidence of harassment.

The employee contacted a federal Health and Safety Officer, alleging that the manager was not sufficiently impartial to conduct an investigation. The HSO issued a Direction requiring the CFIA to appoint an impartial person to investigate the complaint pursuant to the Canada Labour Code.  The CFIA appealed that direction to an Appeals Officer of the Occupational Health and Safety Tribunal of Canada (who sided with the CFIA), and the employee then appealed to the Federal Court.

The court noted that section 20.9 of Part XX to the Canada Occupational Health and Safety Regulations under the Canada Labour Code sets out procedural obligations of an employer if it receives a complaint of “workplace violence”.  The court held that “harassment may constitute workplace violence, depending on the circumstances”.  The court stated that the alleged harassment in this case could constitute “workplace violence” if after a proper investigation by a competent person it is determined that the harassment could reasonably be expected to cause harm or illness to the employee.  (Workplace Violence is defined in that Regulation as, “any action, conduct, threat or gesture of a person towards an employee in their work place that can reasonably be expected to cause harm, injury or illness to that employee.”

The court noted that under the workplace violence provisions of the Regulation, a person is a “competent person” to conduct a workplace violence investigation if he or she is “impartial and is seen by the parties to be impartial” and has the necessary knowledge, training and experience.

In this case, the employee who filed the complaint did not agree that the manager was impartial.  The court stated:

“What the employer did here was have the Regional Director, Mr. Schmidt, not only institute a pre-screening and fact finding exercise to determine the nature of the complaint and attempt to facilitate mediation, but also conduct a full investigation of the complaint, acting as a competent person under section 20.9(3). In his report, Mr. Schmidt mentions ‘investigation’ eight times and refers to his review of the evidence before him. He was not competent to do so, given there was no agreement that he was an impartial party by the employee and therefore had no authority to conduct any investigation, once the allegation of work place violence was unresolved at the pre-screening stage and still a live issue between the parties.”

As such, the manager’s investigation was essentially unusable, and the court referred the matter back to the Appeals Officer for re-determination of the issues in accordance with the court’s decision.

This decision shows the importance of employers – at least federally-regulated employers who are subject to the Canada Labour Code – of strictly complying with the workplace violence and harassment procedures set out in legislation or regulations.

Public Service Alliance of Canada v. Canada (Attorney General), 2014 FC 1066 (CanLII)

Manager was not a “competent person” to conduct harassment / violence investigation under Canada Labour Code: Court

April 1, 2015: New Working at Heights Training Requirements on Construction Projects

Falls from heights are one of the leading causes of critical injuries and fatalities in Ontario workplaces according to the Ministry of Labour. As a result, beginning April 1, 2015, employers in Ontario must ensure that workers on construction projects who are required to use certain methods of fall protection complete an approved Working at Heights training program.

The Occupational Health and Safety Awareness and Training Regulation (O. Reg 297/13) (see our previous posts here) has been amended to provide for mandatory Working at Heights training. These amendments come into force April 1, 2015.

However, there is a two-year transition period for certain workers: the Working at Heights training requirements do not apply until April 1, 2017 in respect of a worker who has completed training that meets the requirements of the Construction Projects Regulation (section 26.2 of O. Reg. 213/91) before April 1, 2015. If a worker has not been adequately trained in the use of fall protection systems before April 1, 2015, then the training requirements apply as of April 1, 2015.

Who Must be Trained?

The Working at Heights training requirements apply to workers on construction projects who are required under the Construction Projects Regulation to use any of the following methods of fall protection:

  • A travel restraint system;
  • A fall restricting system;
  • A fall arrest system;
  • A safety net;
  • A work belt; or
  • A safety belt.

The Working at Heights training requirements apply in addition to the existing training requirements under the Construction Projects Regulation with respect to fall protection systems. The fall protection systems training under the Construction Projects Regulation requires, among other things, that a worker who may use a fall protection system is adequately trained in its use and given adequate oral and written instructions by a competent person.

Workers who work at heights and use fall protection systems at workplaces not covered by the Construction Projects Regulation do not have to complete the Working at Heights training at this time.

What Will the Training Cover?

The Chief Prevention Officer (CPO) has established Working at Heights training standards for training programs and for training providers.

The Working at Heights Training Program Standard contains the required information that must be included in a CPO-approved training program. Specifically, the Working at Heights training program will consist of two modules:

  • Module 1: Working at Heights Basic Theory – covers foundational elements on how to work safely at heights. It must be at least three hours long.
  • Module 2: Working at Heights Practical – provides more advanced information on fall protection systems and includes hands-on demonstration of equipment and procedures. It must be at least three and a half hours long.

The Working at Heights Training Provider Standard outlines the requirements for training providers seeking approval by the CPO to deliver an approved training program.

What are the Responsibilities of an Employer?

In respect of a worker who may use one of the methods of fall protection listed above, employers are required to ensure the following:

1. workers have successfully completed a Working at Heights training program that is approved by the CPO as meeting the Working at Heights Training Program Standard that applied at the time of the training

2. the training provider is approved by the CPO as meeting the Working at Heights Training Provider Standard that applied at the time of the training

3. the validity period of a worker’s training has not expired

4. a record of the Working at Heights training is maintained and includes the following information:

  • the name of the worker
  • the name of the approved training provider
  • the date on which the approved training was successfully completed
  • the name of the approved training program that was successfully completed

5. the record of training is available to a Ministry of Labour inspector on request

What is Required in a Record of Training and How do Workers Get It?

According to the Ministry of Labour, an approved training provider is required to provide a worker with proof of training upon successful completion of the training program.

The approved training provider must also notify the CPO of a worker’s successful completion of an approved Working at Heights training program. Upon receipt of such notification, the CPO will issue a wallet-sized proof of training card to the worker. A copy of a worker’s proof of training card issued by the CPO is considered a training record.

The Ministry of Labour will keep a secure, centralized database of all workers who successfully completed the training (collected by the CPO under the authority of the OHSA).  Workers and current or potential employers (with the worker’s consent) will be able to access information about a worker’s successful completion of a Working at Heights training program.

For How Long is the Training Valid?

The training is valid for three years from the date of successful completion of the training program. According to the Ministry of Labour’s “Frequently Asked Questions”, once a worker’s training is no longer valid, the worker can take an approved half-day “refresher” training program (which covers the contents of Module 2) to renew the validity of his or her training.

A worker does not need to retake the Working at Heights training if the worker changes employers during the three-year validity period. An employer should request that new employees provide proof of completion upon hiring.

How Can an Employer Find a CPO-Approved Provider?

The Ministry of Labour website lists CPO-approved Working at Heights training providers and programs, as well as the dates on which they were approved. At the time of writing, there are seven CPO-approved providers listed on the website.

If an employer wishes to deliver “in-house” training to its workers, it must seek CPO approval to become a training provider. More information on the provider application can be found here.

What are the Potential Consequences if an Employer does not Comply?

A Ministry of Labour inspector may request that an employer provide copies of records of Working at Heights training for its workers, or a worker provide a copy of his or her CPO-issued proof of training.  If an employer has not complied with the mandatory Working at Heights training requirements, an inspector may take enforcement action, including issuing orders requiring an employer to comply, issuing a stop work order where an imminent hazard exists, or prosecuting an employer under the Provincial Offences Act, where appropriate.

Keep checking www.occupationalhealthandsafetylaw.com for further updates on this topic.

April 1, 2015: New Working at Heights Training Requirements on Construction Projects