Distracted driving, and in particular texting while driving, are important occupational safety issues, and employers need to act, the U.S. Occupational Safety and Health Administration says in a new brochure called “Distracted Driving: No Texting“.

The brochure quotes an official as saying, “It is well recognized that texting while driving dramatically increases the risk of a motor vehicle injury or fatality. We are asking employers to send a clear message to workers and supervisors that your company neither requires nor condones texting while driving.”

The brochure goes on to state that employers should “Prohibit texting while driving. OSHA encourages employers to declare their vehicles ‘text-free zones’ and to emphasize that commitment to their workers, customers, and communities.”

OSHA states that if it receives a “credible complaint that an employer requires texting while driving or organizes work so that texting is a practical necessity, we will investigate and will issue citations and penalties where necessary to end this practice.”

One expects that Canadian workplace safety inspectors would similarly take action, under occupational health and safety legislation, against employers who require or encourage employees to text while driving, or impose such great demands on employees that they are practically required to text while driving.

In what appears to be a departure from a growing line of cases, the Ontario Labour Relations Board has permitted an employee to advance her claim that the employer violated the Occupational Health and Safety Act when it fired her after a manager allegedly confronted her in an angry manner.

The employee, Ashworth, alleged that the manager demanded that she close the door and then positioned herself in front of the closed door and started screaming and pointing her finger in the employee’s face.  The employee claimed that she became afraid and was asked to be allowed to leave, but the manager continued to be abusive.  The employer subsequently terminated her employment.

The employer appears to have argued that the employee’s complaint did not make out a safety-reprisal case because the incident did not raise workplace safety issues under the Occupational Health and Safety Act, and therefore there was no basis for the employee’s claim that she was fired for raising safety issues.

That argument flows from a line of cases, of which Conforti v Investia Financial Services Inc, 2011 CanLII 60897 (ON LRB) is most notable. In that case, the OLRB stated that “it appears the OHSA only requires an employer to put a workplace harassment policy and program in place and to provide a worker with information and instruction as appropriate”, but that the OHSA does not actually require the employer to prevent harassment.  As such, an employee’s claim that she was fired for asking the employer to prevent harassment does not engage the OHSA and cannot form the basis for a reprisal claim.

The OLRB, in Ms. Ashworth’s case, was not persuaded that the case should be dismissed at this stage for failure to disclose a prima facie reprisal case.  Although the decision does not say it, the OLRB may have felt that the manager’s conduct might constitute workplace violence – rather than harassment – in which case the employee’s complaint could possibly succeed.  The OHSA does require employers to take reasonable steps to avoid workplace violence – but not harassment.

Ashworth v Boston Pizza, 2013 CanLII 20917 (ON LRB)

A worker who refused to answer a Ministry of Labour inspector’s questions during an accident investigation has been found guilty of obstructing the inspector.

An employee of a trash-removal business consumed three beers before work, climbed up on a roof to retrieve loose shingles, and then fell off the roof and became paralyzed below the waist.  A corporation was charged as the injured worker’s “employer”.  A representative of the corporation was also charged as a supervisor, and another individual, one Haniff, was charged with obstructing the MOL inspector by not answering questions.

There was much debate in the case about who was the “employer”.  The company was ultimately found to be the employer and convicted of failing to ensure that the worker wore fall arrest equipment and was trained in fall arrest.

Haniff attended at the Ministry of Labour office, as requested by the inspector and handed the inspector an envelope that contained the telephone record for the corporate defendant. However, Haniff, who admitted that he had taken the initial call from the homeowner asking to have the trash removed, failed to answer the inspector’s other questions about what Haniff did after taking the call, and in particular whether he directed the workers to go to the job site.

Justice of the Peace Mary Ross Hendriks stated:

“Section 62(1) of the Act, which also falls under Part VIII – Enforcement,  states:

 Obstruction of inspector

 62(1) No person shall hinder, obstruct, molest or interfere with or attempt to hinder, obstruct, molest, or interfere with an inspector in the exercise of a power or the performance of a duty under this Act or the regulations or in the execution of a warrant issued under this Act or the Provincial Offences Act with respect to a matter under this Act or the regulations.

“Specifically, subsection 62(2)(a) of the Act creates a positive duty to assist, on “every person” to “furnish all necessary means in the person’s power to facilitate any entry, search, inspection, investigation, examination, testing or inquiry by an inspector,” in the exercise of his or her powers or the performance of his or her duties under the Act or regulations.

“Mr. Haniff’s refusal to answer any of his questions when they met hindered Inspector Lomer’s ability to conduct his investigation, and thwarted his ability to explore undisclosed events and workplace relationships which were relevant to his investigation.”

Haniff was therefore guilty of the Occupational Health and Safety Act offence of obstructing the inspector.

The case shows the importance of co-operating with lawful requests from Ministry of Labour inspectors in the course of an investigation.

Ontario (Ministry of Labour) v. J.R. Contracting Property Services et al., 2013 ONCJ 202 (CanLII)

The work refusal provisions of the Occupational Health and Safety Act should not be abused, an arbitrator has effectively held in overturning an employee’s dismissal but refusing reinstatement.

The employee’s work refusal complaint to the Ontario Ministry of Labour had been made in bad faith, according to the arbitrator.

The employee worked as a plumber at a hospital.  In January 2011, he engaged in a verbal exchange with another employee.  The employee alleged that the other employee threatened him.  The arbitrator decided that the employee’s “honest belief [that he had been threatened] graduated into an attitude of increasing certitude, elevated worry, and finally rectitude.  That certitude and eventual rectitude blinded [the employee] to any other possible view of the matter and led him to question the motives and conduct of almost everyone around him.”

The employee went on  “stress leave”. At some point, he insisted on an immediate return to work.  There was a delay in his return because his doctor took time to get back to the Hospital.  The employee then responded by filing a work refusal complaint with the Ministry of Labour under the Occupational Health and Safety Act and sent an emotional e-mail to the Hospital CEO the next day.

The arbitrator decided that the work refusal complaint was “highly questionable”.  The arbitrator held that it was not made in good faith in the sense that it was a “reckless claim– intended to place additional pressure on the Hospital.”  The Hospital had just cause to impose discipline for making the work refusal allegation.

However, because the employee had five years of service and no disciplinary record, the bad-faith work refusal was not enough to dismiss for cause.  But the arbitrator nevertheless decided that he should not be reinstated: the employee was convinced that numerous people had lied about him in the past and continued to lie about him at the arbitration. He had two years to re-evaluate but his position had only hardened.  If he were reinstated, he would “continue his quest for justice as he sees it”. Also, he had found permanent employment with another major public sector unionized employer, which he judged to be equivalent or superior to what he enjoyed at the hospital. 

“But this just can’t go on”, the arbitrator concluded, denying reinstatement that would only embolden the employee to persist in further investigation until he was satisfied with the result.  The employee was instead awarded approximately nine months’ wages in lieu of reinstatement.

 C.U.P.E. v. The Scarborough Hospital, 2013 CanLII 16383 (ONLA)

Since January 1, 2012, Ontario employers have been obligated to provide “individualized workplace emergency response information to employees who have a disability, if the disability is such that the individualized information is necessary and the employer is aware of the need for accommodation due to the employee’s disability.”

The obligation is in section 27 of the Integrated Accessibility Standards regulation under the Accessibility for Ontarians with Disabilities Act, 2005 (often referred to as “AODA”).  Although other obligations under that regulation come into effect in 2014 and later, the emergency response information requirements in section 27 came into effect in 2012.

Section 27 also requires that if an employee who “receives individualized workplace emergency response information requires assistance”, then if the employee consents, the employer shall provide the workplace emergency response information to the person designated by the employer to provide assistance to the employee.”

The section goes on to require that employers provide the emergency response information as soon as practicable after the employer becomes aware of the need for accommodation due to the employee’s disability.

Lastly, section 27 requires that every employer review the individualized workplace emergency response information, “(a) when the employee moves to a different location in the organization; (b) when the employee’s overall accommodations needs or plans are reviewed; and (c) when the employer reviews its general emergency response policies.”

Employers – particularly those with workplaces which might be difficult to exit in the event of an emergency – should consider their obligations under section 27.

Worker safety orientation is expected to become mandatory in Ontario on January 1, 2014, as we have previously advised.  The Ontario Ministry of Labour is developing an e-learning module that workers and supervisors can take to complete the orientation, and has now made available printed copies of its worker safety orientation materials.

The worker materials are called “Worker Health and Safety Awareness in 4 Steps”, and an accompanying employer guide is available.  Printed copies can be ordered by going to www.publications.service ontario.ca and searching for “worker awareness”.

The MOL says that the supervisor materials, called “Supervisor Health and Safety Awareness in 5 Steps”, and the accompanying employer guide, will be available in printed form soon.

Also, the MOL says that the e-learning program will be available later this Spring.  According to the MOL, “learners will be able to access modules on the ministry’s website and print a certificate of completion once they complete the online awareness training.”  The e-learning module will, hopefully, make it relatively easier for employers to comply with their new obligation, as of January 1, 2014, to ensure that all workers and supervisors have received the mandatory safety orientation.  Workers and supervisors may simply go to the MOL website, take the orientation through the e-learning module, print the completion certificate, and give it to their employer.

For more information on the new mandatory training obligations, see our previous post here.

We don’t often hear of 37-year employees being fired for just cause.  An arbitrator has recently upheld the dismissal of a long-service unionized employee for safety violations.

The employer was a recycler of lead, and thus had important safety rules which included the use of respirators.  The employer was required, by the Occupational Health and Safety Act, to monitor employee blood levels for lead.

The employee had 7 disciplines on record in the past year, including a recent 25-day suspension, some of which were for safety violations.  The arbitrator referred to the employee’s “year-long journey of disciplinary misadventure” that ended with two safety-breach “culminating incidents” that occurred on successive days.

In the first culminating incident, the employee failed to wear his hard hat, safety glasses and mask in the plant. In the second culminating incident, he failed to wear a respirator in the plant and be clean shaven for an effective mask seal.

The arbitrator concluded as follows:

“In the result, this case presents a 58-year old grievor with 37 years of service (at the point of discharge) who is guilty of two incidents of health and safety related misconduct on consecutive days, less than a month after receiving a written warning and what amounted to a counselling for related health and safety misconduct (on April 11, 2012), and a little over 4 months after serving a 25-day suspension for multiple misconducts during the 6-week period after he was disciplined on October 12, 2011. The grievor’s evidence and wholly inadequate “apology” demonstrate that that [sic] he still does not fully acknowledge or accept responsibility for his misconduct on either April 30 or May 1, 2012. The Company has reasonably concluded that its efforts to rehabilitate the grievor have been fruitless, and that it can no longer tolerate his presence in the workplace.”

The arbitrator noted that the cases “demonstrate that workplace health and safety is a serious matter. The jurisprudence (not limited to the cases cited) makes it clear that arbitrators take the mutual responsibility of employers, unions, and employees to ensure workplace health and safety is very seriously . . . [L]engthy service by itself has less mitigation currency in health and safety misconduct cases than it has in other kinds of cases.”

In the result, the employee’s discipline history, the seriousness of his safety violations, and the lack of a sufficient apology, along with the two culminating incidents, justified his termination – despite his unusually-long service.

Tonolli Canada Ltd. and USW, Local 9042 (Marsiglia), Re, 2013 CarswellOnt 3855 (Ontario Arbitration, 2013)

In November 2012, we posted a blog regarding Bill 6, The Protection and Compliance Statures Amendment Act, 2012, introduced to the Alberta legislature to amend three Acts, including the Occupational Health and Safety Act as part of an ongoing effort by the provincial government to hold employers (and those responsible for work sites) accountable for the health and safety of their business operations. Bill 6 received Royal Assent on December 10, 2012. As a result, one key amendment now in force is Section 3(1) of the Occupational Health and Safety Act, which deals with the prime contractor.

Prior to the amendment, the legislation was worded in a way which suggested that a prime contractor was only required if two or more employers were involved at the work site at the same time. Due to the wording, some site owners were able to bypass the prime contractor obligation by skillfully crafting a work schedule so that no more than one employer was present at a work site at the same time.

The amendment strikes out the words “at the same time” in an effort to clarify that a prime contractor is required for a work site whenever there are two or more employers whose work activities are interrelated and/or have a health or safety impact on each other, even though they may not be present at the work site together.

For more information see: http://humanservices.alberta.ca/documents/OHS-Act-Amended-LI031.pdf

Supervisors and safety professionals have often told me that they fear being personally charged under the Occupational Health and Safety Act.  Now, a human rights tribunal has decided that an employee’s generalized anxiety disorder was caused by such a fear.

The employee was a “Supervisor, Regulated Substances, Asbestos” with the Hamilton-Wentworth District School Board.  In the fall of 2001, she developed a generalized anxiety disorder as a reaction to the “highly stressful nature of her job, and her fear that, in making a mistake about asbestos removal, she could be held personally liable for a breach of the Occupational Health and Safety Act . . .”

According to the Human Rights Tribunal of Ontario, the employee testified that “the Ministry of Labour was critical of the [school board's] handling of its asbestos removal projects and that she, as the supervisor of these projects, was personally threatened with a substantial fine.”

She went off work due to the anxiety.  Medical evidence showed that she could not work in any position involving liability for health and safety issues.  She asked to return to work in a position that did not involve any risk of OHSA liability.

The Tribunal decided that there were other positions to which the school board could have returned the employee that did not involve potential OHSA liability.  Because the school board did not return her to such a position, it had breached its duty to accommodate.  See my colleague, Catherine Coulter’s article about the significant damages (almost 10 years’ income) awarded to the employee.

The case is an interesting read for safety professionals, and perhaps a reminder to employers to provide sufficient training to ensure that their supervisors and safety professionals can sleep well at night without being nagged by fears of personal charges or liability under the Occupational Health and Safety Act.

Fair v. Hamilton-Wentworth District School Board, 2012 HRTO 350 (CanLII) (decision that employer breached duty to accommodate) and 2013 HRTO 440 (CanLII) (decision awarding damages).

Workplace violence and harassment was the most common category of compliance orders made by Ontario Ministry of Labour inspectors in a recent compliance blitz in the manufacturing sector.

13% of the 5,392 orders dealt with workplace violence and harassment.  Although 16% of orders dealt with employer’s general safety duties, that is a broad group that contains many different kinds of orders.

Inadequate machine guarding was the next most common type of compliance order.

Although the Ministry of Labour’s blitz report does not break down the reasons for issuing the compliance orders dealing with workplace violence and harassment, I expect that the orders dealt with failure to prepare a workplace violence policy and program and workplace harassment policy and program; failure to conduct a workplace violence risk assessment; failure to provide “information and instruction” to employees regarding workplace violence and harassment; and failure to post the workplace violence and workplace harassment policies (a breach that would be immediately evidence to a Ministry of Labour inspector).

The blitz results are a reminder to employers to, first of all, ensure that their workplace violence and harassment policies are posted, and also to ensure that the other OHSA obligations relating to violence and harassment have been satisfied.

The Ministry of Labour’s blitz report may be accessed here.

An Ontario employer has been ordered to pay 24 weeks’ wages to a 12-week probationary employee who was fired after complaining about numerous safety issues with a company truck he was driving which hauled steel.

The employee had complained that the truck was “kicking” and “slipping” in third and seventh gear; that the steering was loose; that the mirrors were cracked and off-angle; that there was no engine brake (“Jake Brake”); that a portion of the dashboard had been removed and that there were exposed wires; and that fuel was leaking.  He decided that the truck was unsafe to drive, and he told the employer so.

The employee said that when he refused to work, the company’s general manager became upset and started swearing, and told him that he was fired and should leave the keys in the truck.

The employee filed a safety-reprisal complaint under section 50 of the Occupational Health and Safety Act.  The Ontario Labour Relations Board decided that the employee had reasonably believed that the truck was unsafe, and had good reason to believe that it was unsafe.  The employee had taken photographs to prove it!

The OLRB also decided that the firing was motivated, at least in part, by the employee’s work refusal, particularly given that the termination took place almost immediately after the employee refused to drive the truck.

The OLRB refused to order the employer to reinstate the employee, because he had been employed there for only 12 weeks and the trust between the parties was clearly broken. Instead, the OLRB ordered the employer to pay 20 weeks’ back pay (for the period of time between the date of the termination and the date of the OLRB’s decision) plus an additional 4 weeks’ pay. This means that the 12-week employee received twice his length of service in damages.

Barber v. LP Services, 2013 CanLII 9952 (ON LRB)

An Ontario supervisor has been convicted and fined under the Occupational Health and Safety Act for disturbing an accident scene.

According to a Ministry of Labour press release, a worker at a residential construction site sustained fractures and a back injury when he fell through an open deck that had been framed but not yet completed.   According to the press release, the supervisor “directed workers to install guardrails and the deck floor before the Ministry of Labour attended the scene. This was done without the permission of a ministry inspector.”

The supervisor was fined $2,500.00.

The company pleaded guilty and was fined $50,000.00 for failing to ensure that a guardrail system was in place.

This case demonstrates the importance of employers ensuring that employees do not disturb the scene of an accident – other than to attend to an injured worker – until the Ministry of Labour inspector has arrived.  Inspectors and prosecutors will show little mercy to those who disturb the scene and potentially make it difficult for the inspector to carry out his or her investigation, particularly if the inspectors suspect an attempt to cover up the facts.

The Ministry of Labour press release may be accessed here.

Many Ontario employers will be relieved by an Ontario appeal decision that clarifies – and limits – the obligation to report workplace accidents to the Ontario Ministry of Labour.  “[I]t is not part of the purpose and objective of the Act to protect non-workers.”

A guest’s swimming pool death did not require an Ontario resort to file a Notice of Accident with the Ontario Ministry of Labour, the Ontario Court of Appeal ruled, overturning a lower court decision that risked dramatically expanding some employers’ accident reporting obligations.

Facts

In 2007, the guest had drowned in an indoor swimming pool at the resort.  No Blue Mountain employees were working at the pool at the time.  A Ministry of Labour inspector ordered Blue Mountain to report the accident to the MOL.  The inspector’s decision was upheld by the Ontario Labour Relations Board and the Ontario Divisional Court.

Section 51 Notice of Accident

The Occupational Health and Safety Act‘s accident-notification provision, subsection 51(1), states:

51(1) Where a person is killed or critically injured from any cause at a workplace, the constructor, if any, and the employer shall notify an inspector, and the committee, health and safety representative and trade union, if any, immediately of the occurrence by telephone or other direct means and the employer shall, within forty-eight hours after the occurrence, send to a Director a written report of the circumstances of the occurrence containing such information and particulars as the regulations prescribe. [underlining added]

The MOL argued that “person” means any person, not just employees, so that employers must report any death or critical injury of any person – including guests or visitors – in a workplace.

The Court of Appeal disagreed, noting that the MOL’s interpretation would have the absurd result that it would make “virtually every place in the province of Ontario (commercial, industrial, private or domestic) a ‘workplace’ because a worker may, at some time, be at that place.  This leads to the absurd conclusion that every death or critical injury to anyone, anywhere, whatever the cause, must be reported.”  For instance, there was evidence that there were approximately 7,000 accidents every year at Ontario ski resorts, many of which – on the MOL’s interpretation – would need to be reported to the MOL even if no employee was involved.

When to file MOL Notice of Accident: 3 Factors

The Court of Appeal decided that an employer must file with the MOL a Notice of Accident where the following three requirements are met:

“a) a worker or non-worker (“any person”) is killed or critically injured;

b) the death or critical injury occurs at a place where (i) a worker is carrying out his or her employment duties at the time the incident occurs, or, (ii) a place where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work (“workplace”); and

c) there is some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at that workplace (“from any cause”).”

The third factor – a reasonable nexus between the safety hazard that caused the accident and a risk to worker safety – is the key factor arising from this decision.  It means that an injury to a non-worker in a workplace will not require the filing of a Notice of Accident if it does not reveal a worker-safety risk.

Result: No Requirement to Report This Guest’s Death

The court said that here, there was no evidence that the guest’s death in the swimming pool was caused by any hazard that could affect the safety of a worker, whether present or passing through.  As such, the third factor was not satisfied, and the resort was not obligated to report the accident to the Ministry of Labour.

Implications for Workplace Violence Policies

The court’s clarification of the meaning of “workplace” is also relevant to employer’s workplace violence policies and programs.  Employers’ workplace violence obligations will extend to a place where “(i) a worker is carrying out his or her employment duties at the time the incident occurs, or, (ii) a place where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work”.

This is an important and readable decision that human resource and health and safety managers should read.

Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75 (CanLII)

A union has taken the unusual step of asking the Federal Court to order the federal Minister of Labour to prosecute a company for alleged safety violations.

In 2010, the Canadian Union of Public Employees and two other unions, the Air Canada Pilots Association and the CAW, filed a complaint with Human Resources and Skills Development Canada, alleging that Air Canada was in violation of certain sections of Part II (Occupational Health and Safety) of the Canada Labour Code.

The alleged violations related to workplace violence concerns, including failing to co-operate with the health and safety policy committee and failing to choose an appropriate, impartial person to investigate workplace violence.  The complaint asked that a Health and Safety Officer with HRSDC intervene.  A Health and Safety Officer investigated and found no violation.

CUPE then applied to the court for an Order compelling an HRSDC Health and Safety Officer to issue a direction to Air Canada to end the alleged violations, and requiring the Minister of Labour to prosecute Air Canada, or to permit CUPE to prosecute Air Canada.

Madam Justice Kane decided that generally speaking, courts will not determine whether a Health and Safety Officer should issue a safety direction or what the direction should be.  She also stated that courts will not order the Minister of Labour to prosecute for an alleged violation of the Canada Labour Code.  Lastly, she stated that courts will rarely interfere with the Minister’s discretion as to whether or not to lay charges.

This case is part of a trend of unions seeking safety charges against companies.  As we have previously mentioned on this blog, the Ontario Federation of Labour has a campaign seeking more criminal prosecutions against companies and supervisors alleged to have committed serious safety breaches.

Cupe, Air Canada Component v. Canada (Minister of Labour), 2012 FC 1484 (CanLII)

Ontario Ministry of Labour inspectors are conducting a winter safety blitz looking for the following:

• Diesel emissions and other hazards that could affect air quality at underground mines (January and February)
• Hazards that could cause slips, trips and falls in industrial workplaces (February and March)
• Workplace violence and harassment issues in health care workplaces (February and March)

For the Ministry of Labour’s announcement of the blitz, click here.

The CBC is reporting that the criminal negligence trial of Karl Lilgert, Navigation Officer of the ferry, Queen of the North, has commenced in Vancouver.

On March 22, 2006, the ferry crashed into an island and sank off the B.C. coast.  Two passengers went missing and are presumed to have died.  A Transportation Safety Board investigation found that Mr. Lilgert was the navigation officer and on the bridge.  He has pleaded not guilty to the charges.

This is another case of criminal charges arising out of an alleged failure to perform workplace duties safely.

Stay tuned for further updates.

An Ontario judge has decided that criminal charges against a Project Manager should go to trial.

The charges against Vadim Kazenelson, Project Manager for Metron Construction, arise from the tragic Christmas Eve 2009 incident in which four workers on a suspended scaffold fell 14 stories to their deaths.

In July 2012, Metron Construction pleaded guilty to charges, arising out of the same incident, of criminal negligence causing death and was fined $200,000.00 plus a $30,000.00 Victim Fine Surcharge.  Metron’s owner, Joel Swartz, pleaded guilty to four charges under the Ontario Occupational Health and Safety Act and was personally fined $90,000.00 plus a Victim Fine Surcharge of $22,500.00.  Our July 17, 2012 post on the fines against Metron and Swartz can be found here.

Labour groups have increasingly been calling for criminal enforcement, under the so-called Bill C-45, against companies and supervisors who commit serious safety breaches. The Ontario Federation of Labour, for instance, has what it calls its “Kill a Worker, Go to Jail” campaign.

Stay tuned for further updates.

Ontario employers will have until January 1, 2014 to ensure that all current workers and supervisors have received new mandatory safety awareness training, the Ontario government has proposed.

The government intends to file a regulation on or before July 1, 2013 making the training mandatory and imposing the January 1, 2014 deadline.

Mandatory for all Workplaces Covered by OHSA

The Ontario Ministry of Labour says, on its website, that the training will be mandatory for all workplaces currently covered by the Occupational Health and Safety Act, regardless of sector, including industrial establishments, construction projects, health care and residential facilities, mines and mining plants, and farming operations. The requirement even extends to office employees and others thought to be in low-safety-risk jobs.

New Employees

The regulation will also require that any new employees receive the worker training as soon as practicable after commencing work duties, and that new supervisors complete the supervisory safety awareness training within the first week of commencing supervisory duties.  New employees or supervisors who can prove that they received the safety awareness training at a previous employer will not be required to retake that training.

MOL’s Worker Training Materials

The MOL has finalized and released worker safety awareness training materials that employers can use.  The materials include a worker workbook, “Worker Health and Safety Awareness in 4 Steps“, and an employer guide to that workbook.  Employers who train workers using the MOL materials will automatically comply with the new mandatory safety awareness training requirement.  Note that the new requirement is for basic safety awareness training only; employers will, depending on the employee’s job, also be required to provide additional safety training, developed by the employer, tailored to the job.

MOL’s Supervisor Training Materials

The MOL’s supervisor safety awareness training materials have not yet been finalized.  A version of the supervisor training materials is being piloted, along with an employer guide to the supervisor training program.  The final version should be released shortly.

Required Content of Training

Employers who opt to use their own training materials instead of the MOL’s must, according to the MOL, ensure that the training covers, at a minimum, the following topics:

Worker Awareness Training

• Rights and responsibilities of workers and supervisors under the OHSA
• Roles of workplace parties, health and safety representatives, and joint health and safety committees
• Roles of the Ministry of Labour, Workplace Safety and Insurance Board, and Health and safety partners
• Hazard recognition
• Right to be informed of hazards
• Reference to an employer’s obligations to provide information and instruction to workers about controlled products as required under Regulation 860 (WHMIS) of the OHSA
• Latency and illness related to occupational disease

Supervisor Awareness Training

• Rights and responsibilities of workers and supervisors under the OHSA
• Roles of workplace parties, health and safety representatives, and joint health and safety committees
• Roles of the Ministry of Labour, Workplace Safety and Insurance Board, and health and safety partners
• Recognition, assessment, control and evaluation of hazards
• Where resources and assistance are available

Previous Training May Not Be Sufficient

Although many employers will have already provided safety awareness training to workers and supervisors, if that training did not include all of the above topics and was not “equivalent” to the training program developed by the MOL, then the training will not meet the new legal requirement.

Consequences of Missing Deadline

Employers who do not comply with the new training requirements by January 1, 2014 could be ordered by an MOL inspector to comply – meaning, they will have to scramble to complete the training in short order – or, in a worst-case scenario, they could be charged and fined.

What Should Employers Do

Ontario employers should, in the near future, do the following:

-review existing worker and supervisor training programs and consider whether they contain the content required under the new rules

-if there are training gaps – that is, if your current program is missing content required by the new MOL requirements – the employer must ensure that the gaps are filled by the end of 2013.  OHS legal counsel can assist in determining whether there are gaps

-decide how the training will be provided: in person, by webinar, etc.

-review your existing training documentation: are you able to prove that your employees have received the training that you have already done?

-consider how you will document that employees and supervisors have received the new mandatory training.  If the training is not properly documented, or you cannot adequately prove that a person received the training, the MOL could still lay orders or charges

The new requirement of safety awareness training is a sweeping requirement that all Ontario employers must be aware of.  MOL inspectors who visit an employer’s workplace in 2013 may ask whether the employer is making progress towards completing the training.  In 2014, inspectors will want to see proof that the training has been completed.

The Alberta Court of Appeal has agreed to hear an employer’s appeal of a judgment of the Court of Queen’s Bench which overturned acquittals, by a Provincial Court judge, of two charges under the Alberta Occupational Health and Safety Act.

A fatal incident occurred involving a “calf roping machine” at a Stampede Week party event hosted by the employer in 2007. A young software developer who was helping to operate the machine was struck in the head by a steel lever and later died from the injuries. Following an investigation into the incident, the employer was charged with failing to ensure, as far as it was reasonably practicable to do so, the health and safety of its worker and failing to ensure that all equipment used at the work site would safely perform the function for which it was intended or designed.

We recently posted an update of this case describing the appeal decision in R. v. XI Technologies Inc., 2012 ABQB 549. The Court of Queen’s Bench overturned the two “not guilty” verdicts of the trial judge. On the evidence, the trial judge found that the employer had raise a successful due diligence defence and found the employer “not guilty” of the charges. The trial judge concluded that while the employer had identified certain hazards arising out of the operation of the calf roping machine, which was not functioning properly at the time, the employer had put in place operating procedures which diminished the risk to the point that a reasonable person would conclude that it was safe to continue with operating the machine in accordance with the adopted procedures. The Crown appealed and the verdicts were overturned. The appeal court disagreed, found the verdict of the trial judge to be unreasonable, and found that on the evidence due diligence on the part of the employer could not be established. The appeal court judge found that the preventative measures adopted by the employer to respond to the hazard were not adequate to address the risk and, as such, the machine ought to have been placed out of service.

In late November, the employer applied to certify that an appeal lies to the Alberta Court of Appeal on the basis that the case involves a question of law of sufficient importance to justify a further appeal. In granting leave to appeal, Justice O’Brien confirmed that the two-part test was met by the employer, which required that the appeal would involve a question of law as well as and a matter that was of sufficient public importance to warrant an appeal.

Justice O’Brien agreed that an issue of law is raised where there is an issue of whether a verdict is reasonable and can be supported by the evidence. Most notably, Justice O’Brien confirmed that an issue of law arises with respect to an employer’s legal obligations regarding hazard identification and preventative steps; in particular, clarification in the law is required as to where the employer may draw a line in the risk versus hazard analysis in determining what preventative steps are reasonable in circumstances where the harm may be likely but minor versus where the harm is extremely unlikely but may result in serious consequences. This question involves the proper interpretation and application of the concepts of “risk” versus “hazard” and how they relate to foreseeability. In this regard, reference was made to the appeal court judge’s interpretation and application of the Ontario Court of Appeal’s decision in R. v. Rio Algom (1988), 66 OR (2d) 674 with respect to the test of whether a reasonable person would have foreseen the potential danger. From this, Justice O’Brien granted leave to appeal because he considered that the extent to which an employer may rely upon operating procedures to mitigate an identified risk was a matter of general public importance.

The decision of the Alberta Court of Appeal in this matter is expected to be of significant importance to employers as we expect the law will be clarified in relation to specifying the degree of hazard analysis and identification that must be taken and the corresponding level of precautions or preventative steps that must be implemented.

The Reasons for Decision regarding the application to certify that an appeal lies to the Court of Appeal is found at R. v. XI Technologies Inc., 2012 ABCA 368.

Stay tuned.

The Ontario Labour Relations Board has reinstated an employee who was fired shortly after he engaged in a work refusal under the Occupational Health and Safety Act. The decision shows that the reprisal provisions of the OHSA do indeed have teeth.

The employee worked for an auto parts company. He had refused to lift nine bins, claiming that the bins were overloaded and that lifting them would endanger his health and safety.  A manager was angry about the work refusal.

Approximately one week later, the company suspended the employee, allegedly because of his failure, approximately 3 weeks earlier, to advise the employer that a company vehicle he had been driving had bald tires.  When he returned to work after the suspension, he was sent home and asked to see a doctor due to a workplace injury before the suspension.  A few days later, the employer reduced his hours without explanation, and shortly afterwards he was told that his employment was terminated “by head office”.

The OLRB held that the timing of the suspension and termination – shortly after the work refusal – suggested a connection between the work refusal and the suspension and termination.  The reasons offered, before termination and at the hearing, for the suspension and termination did not add up.  Also, the employer failed to provide any explanation as to how, when or why the decision to suspend and dismiss the employee was made.  Finally, the suspension and termination were severe and disproportionate to the alleged misconduct, which were ”minor transgressions”.

As such, the OLRB found that the suspension and termination were a reprisal for the work refusal.

The OLRB ordered the employer to reinstate the employee with payment of all lost wages from the date of the suspension to the date of reinstatement.

While employees lose most reprisal cases under the OHSA that make it all the way to a hearing, this decision confirms that where the circumstances of the discipline or termination look suspicious – especially if they are soon after the employee refused work or raised a safety issue – the employee may be reinstated with a costly back-pay order.

Wilken v. 1377041 Ontario Inc. (Hotspot Auto Parts), 2012 CanLII 72730 (ON LRB)

Bill 6, The Protection and Compliance Statutes Amendment Act, 2012 was recently introduced to the Alberta legislature, and will amend three Acts, including the Occupational Health and Safety Act and the Safety Codes Act, as part of a continuing effort by the provincial government to hold employers accountable for the health and safety of their business operations.

The Occupational Health and Safety Act sets out the rules which pertain to the health and safety of workers. Notable amendments to the OH&S Act relate to the introduction to administrative penalties. Employers, prime contractors, contractors, suppliers or workers who have failed to comply with a provision of the OH&S Act, Regulations or Code or an Order issued by an OH&S officer will be subject to an administrative penalty not exceeding $10,000, which amount can accumulate on a per day basis in the case of an ongoing failure to comply. Prior to the amendment, to enforce compliance with OH&S law, an officer had the authority to issue an Order. However, if the Order was not complied with, the only available option was to pursue a prosecution.

The Safety Codes Act applies to fire protection and applies to the design, manufacture, construction, installation, operation and maintenance of buildings, electrical systems, elevating devices, gas systems, plumbing and private sewage disposal systems and pressure equipment. Notable amendments include: the introduction of a three year limitation period for prosecution of offences under the Act, rather than relying upon the six months available under the Provincial Offences Procedures Act; increasing the maximum potential fine for a first offence from $15,000 to $100,000; and increasing the maximum potential fine for a second or subsequent offence from $30,000 to $500,000.

For more information see:

http://alberta.ca/acn/201210/331568EFCD3BB-FC73-31BB-D22CBF161ED087A5.html

An employer struggling with how to comply with a Ministry of Labour inspector’s safety compliance order cannot expect the MOL to identify ways for it to comply, the Ontario Labour Relations Board has held.

The inspector issued an ergonomic compliance order requiring the employer to ensure that wheeled book cases used for book fairs were moved in a way that did not endanger the employees. The inspector decided that the “push forces” required to move the book case up the ramp were greater than permitted in ergonomic data known as “Snook Tables”.

The employer argued that the inspector had “refused to identify ways or means” for the employer to comply with the order. The OLRB decided that the inspector “was under no obligation to do so”. The inspector identified the problem, and it was for the employer to “derive a compliance plan that is most sensible for its operations”.

The employer also argued that there were no ergonomic thresholds set out in the regulations under the Occupational Health and Safety Act, and that the inspector had simply relied on “her professional judgement, as an ergonomist”. The OLRB disagreed, holding that the inspector had based her compliance order on a violation of section 45(a) of the Industrial Establishments regulation under the Occupational Health and Safety Act which requires that materials be moved in a way that does not endanger the worker. There was a legal basis for the compliance order.

The OLRB therefore rejected the employer’s request to suspend the operation of the compliance order pending a full hearing of the employer’s appeal.

There appears to be a trend towards Ministry of Labour inspectors issuing more ergonomic compliance orders, which can often be difficult to comply with. This case demonstrates that the employer, not the Ministry, will be tasked with finding a way to comply with the order.

Scholastic Book Fairs Canada Inc. v. Aguilar, 2012 CanLII 49789 (OLRB)

The Ontario Divisional Court has upheld an arbitrator’s decision that a collective agreement provision requiring the employer – two Ontario government ministries – to take reasonable safety precautions could not be used to award damages for occupational diseases.

The collective agreement provision stated:

“The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees.”

The union filed approximately 235 grievances between 1991 and 2008 against the Ministry of Community and Correctional Services and the Ministry of Children and Youth Services  alleging that exposure to second-hand smoke, particularly in correctional facilities, violated the collective agreement provision and entitled the employees to damages.

The arbitrator decided, and the court agreed, that subsection 26(2) of the Ontario Workplace Safety and Insurance Act, which provides that entitlement to benefits from the Workplace Safety and Insurance Board “is in lieu of all rights of action . . . against the worker’s employer . . . for or by reason of an accident happening to the worker or an occupational disease contracted by the worker while in the employment of the employer”, barred a claim for damages under the collective agreement for an occupational disease – here, health issues from exposure to second-hand smoke.

The end result was that the collective agreement safety provision required the employer to take reasonable safety precautions, but employees could not get damages under the collective agreement for a breach of that clause that resulted in an occupational disease.  As such, the union’s claim for damages was dismissed.

This case demonstrates that employees whose employer is registered with the Workplace Safety and Insurance Board and who claim to have suffered an occupational disease, must claim damages from the WSIB and not from the employer under a collective agreement.

OPSEU v. Ontario et al, 2012 ONSC 2348 (CanLII)

A recent Ontario Labour Relations Board decision suggests that employers’ appeals of Ministry of Labour compliance orders should not proceed while Occupational Health and Safety Act charges are outstanding.

The case arises from the Christmas Eve, 2009 scaffold collapse which resulted in the death of four workers. We recently reported on the fines against Metron Construction, the employer, and its director.  The Ministry of Labour has also charged Swing N’ Scaff Inc., the supplier of the scaffold that failed, under the Occupational Health and Safety Act.  The charges are outstanding.

Swing N’ Scaff appealed Ministry of Labour compliance orders against it after the accident.  The Ministry of Labour’s counsel advised the OLRB that the compliance order appeal raised issues that were also raised in the prosecution.

The Ministry of Labour argued that the compliance order appeal at the OLRB should be stayed while the charges remained outstanding, in order:

“(a) to ensure that the appeal process does not hinder or delay the prosecutions; (b) to ensure that the applicant and the director are not put into a position in which they provide prejudicial information to the Ministry during the appeal process that may impact upon their right to make full answer and defence at their trial; (c) to ensure that potential trial witnesses are not examined or cross-examined on material issues at the appeal hearing before the trial takes place; (d) to allow the Vice-Chair the potential benefit of court rulings concerning issues about suspended scaffolds, and to prevent the possibility of rulings from a Vice-Chair on matters that may arise before the court in the trial; (e) because the applicant is not represented by counsel in these appeals but is represented at trial; and (f) to ensure that inconsistent judgments on the issues in dispute are not rendered.”

The OLRB gave Swing N’ Staff time to file submissions on the issue. In a decision dated September 5, 2012, the OLRB decided:

“For the reasons identified by counsel for the Ministry that are described at paragraph six [quoted above] of my previous decision, I am of the view that it is appropriate to adjourn these proceedings.  The reasons underlying the adjournment request are compelling, and the applicant has not written to oppose the request.”

Employers faced with workplace accidents and Ministry compliance orders that could result in charges, should take note of this decision.  Although a failure to appeal compliance orders could be argued to be an admission of a safety violation, proceeding with the appeal could jeopardize the employer’s position in the related Occupational Health and Safety Act charges.  Advice from a health and safety lawyer is recommended in these complex situations.

Swing N Scaff Inc. v. James, 2012 CanLII 51106 (ON LRB) (September 5, 2012, and Swing N Scaff Inc v James, 2012 CanLII 47333 (ON LRB) (August 10, 2012)

Employers faced with costly Ministry of Labour compliance orders, that have not been issued to competitors, are often concerned that the orders would put them at competitive disadvantage.

In a recent decision, the Ontario Labour Relations Board has rejected an employer’s argument that a Ministry ergonomist’s order should be suspended because of competitive disadvantage.

The Ministry ergonomist accompanied a Steam Whistle Brewing driver on a delivery route and observed him unloading product, including lowering a 50 kg keg down a flight of stairs, walking backwards and partially supporting the key with his thighs.

The ergonomist issued a number of compliance orders to the employer that it appears to have believed would hamper its ability to deliver product efficiently.

Steam Whistle argued that the compliance orders would put it at competitive disadvantage compared with other craft breweries who were not subject to similar compliance orders. 

The OLRB stated,

“To my mind, the question of competitive disadvantage ought not to be a factor in assessing prejudice for the purpose of a suspension request.  In almost every situation in which an Inspector makes an Order under the Act, the recipient of that Order will be in the position to assert that one of its competitors is now more advantaged than it, and therefore has the benefit of a competitive advantage.  Accordingly, if competitive disadvantage were to be a significant factor in a suspension request application, every Order made by an Inspector would be subject to suspension as a matter of course.  In any event, it has not been asserted by Steam Whistle that the cost of complying with the Orders is so significant that it would make a meaningful difference in its ability to compete with its competitors.”

The moral of this case is likely that employers should take proactive steps to avoid issues arising that could lead to costly Ministry compliance orders. The “competitive disadvantage” argument, without more, will not succeed.

Johnson v Steam Whistle Brewing, 2012 CanLII 47332 (ON LRB)

A recent decision of the Ontario Court of Justice indicates that courts are clamping down on drivers accused of using mobile devices while driving.

Justice of the Peace Dechert noted that other drivers – who have apparently opted not to testify but simply to argue that the prosecutor has not proven the charge – have argued that they could have been holding a toy, a flashlight or garage door opener that looks like a cell phone but is not.

J.P. Dechert quoted Madam Justice Ready’s statement, in the case of R. v. Gill, [2012] O.J. No. 2511 (Ont. C.J.) that, “Mere suggestions as they were put to the justice of the peace, without something more concrete, with an air of reality [to] them, cannot lead to reasonable doubt.”

In the case before J.P. Dechert, a police officer testified that he saw the driver holding what appeared to be a cell phone to his left ear as the driver’s lips were moving, and there was a black cord running from the device down to the dash area.

The driver argued that because the police officer made no notation that he had confirmed that the device was a cell phone and had no recollection of seeing the device up close, the prosecutor had not proven that the device was indeed a cell phone, so the charge should be dismissed. 

Justice of the Peace Dechert decided that he could draw a “reasonable inference” that the device was a cell phone, given that the officer saw a black device being held to the driver’s left ear and observed the driver’s lips moving, that there was a black cable running from the device to the dash, and that there was no other person in the vehicle to whom the driver could have been speaking.

Employers should take note of the court’s rejection of drivers’ arguments in these mobile device cases, and should consider, as part of their occupational health and safety program, including a clear requirement that employees not use handheld mobile devices while driving on company business.

R. v. Petrovic, 2012 ONCJ 562 (CanLII)

In an unusual development, a director of a medium-sized company has been personally found guilty and fined under the Occupational Health and Safety Act.  The company’s Internet site states that its field personnel include a dozen full time project superintendents, suggesting a medium-sized company.  Most directors fined in the past have been in a hands on role with a small company.

In 2008, a worker fell from a cement pier while dismantling a guardrail system in Field, Ont. The worker suffered head and leg injuries, and was sent to hospital.

Bélanger Construction (1981) Inc. and R.M. Bélanger Limited were found guilty of a total of four charges under the Occupational Health and Safety Act relating to fall protection, and were fined $290,000 in total plus the 25% Victim Fine Surcharge.

The companies’ director, Ronald Bélanger, was fined $10,000 in relation to the same incident plus the Victim Fine Surcharge. He was found to have failed as a director to ensure that both companies complied with the provisions of the Occupational Health and Safety Act and its regulations.

The Ministry of Labour’s press release states that the court found that the worker was not protected by fall protection of any kind, and that three other workers at the construction project were similarly unprotected.  The press release says that there was a lack of equipment for each worker on the job, as well as a lack of proper care and inspection of existing safety equipment. The court also found that the supervisor on site was unqualified.

Ontario employers have a positive obligation to post a number of items on their employee bulletin boards, and a failure to do so can lead to tickets, compliance orders, or in fewer cases, charges and fines.

The Ministry of Labour has recently updated a document called “Posting and Training Requirements”, which states that employers must post the following documents in each workplace:

-Occupational Health and Safety Act

-Health and Safety Policy

-Workplace Violence Policy*

-Workplace Harassment Policy*

-Names and work locations of joint health and safety committee members (for workplaces requiring a JHSC)

-WSIB poster, “In Case of Injury–1234″

*Note that a workplace violence policy and workplace harassment policy need not be posted in workplaces with five or fewer regularly employed workers.

Leaving aside occupational health and safety and WSIB posting requirements, employers must also post the Ministry of Labour’s poster, “What You Should Know About The Ontario Employment Standards Act”.

And, of course, if the employer receives Ministry of Labour compliance orders under the Occupational Health and Safety Act, the orders must also be posted for a certain period of time.

It is strategically important for employers to ensure that all of the above documents are posted in the workplace.  When Ministry of Labour inspectors visit, they often look at the bulletin board.  Complying with all the posting requirements will send a positive signal about the employer’s commitment to safety.

The Ministry of Labour’s “Posting and Training Requirements” document can be accessed here.

In this article, Andy Pushalik reviews employer’s duties as they relate to workplace violence and harassment in Ontario.

On June 15, 2010, Ontario’s workplace violence and workplace harassment law came into effect. With this implementation deadline looming, employers rushed to take the necessary steps to ensure their compliance.

Reprinted by permission of Carswell, a division of Thomson Reuters Canada Limited.

To read the full article as published in Legal Alert, Vol. 31, No. 2, May 2012, click here.

Company presidents are at risk of charges and fines under the Occupational Health and Safety Act.  This is another example.

A company president, who was also the worker’s supervisor, has been personally fined $10,000.00 in relation to the worker’s death.

According to the Ontario Ministry of Labour’s press release, the worker was replacing a tire on an excavator at a customer’s workplace in Erin. The worker used two jacks to lift the rear of the excavator, with at least one jack on a wooden block. There were no other stands supporting the vehicle. While the worker was under the excavator, it tipped off the jacks, fatally crushing the worker.

Holmes Tire Inc., a commercial tire supplier and the worker’s employer, was also fined $75,000.

Both the employer and the president/supervisor pleaded guilty to failing to ensure that the excavator was securely and solidly blocked to prevent it from moving or falling on the worker.

In hopes of driving up immunization rates among BC health care workers, the Government of British Columbia is imposing strict flu-season requirements on workers who come into contact with patients at publicly-funded health care facilities or in the community. Starting with the upcoming flu season, applicable health care workers (including health-authority staff, physicians and residents, volunteers, students, contractors and vendors) will be required to either obtain a seasonal influenza vaccine or to generally don a mask at all times during the flu season.

B.C. Provincial Health Officer Dr. Perry Kendall, who recommended these measures to the Provincial Government, wrote that less than 50 percent of health care workers are immunized against influenza each year, despite being in contact with high risk populations such as seniors, pregnant women, young children, and the immuno-compromised. Citing evidence from long-term care facilities that health care worker vaccinations results in diminished illness and fewer deaths each flu season, the physician argued that “[g]etting the flu shot should be considered standard patient safety practice for all health-care workers who come into contact with patients – as important as following effective hand hygiene practices, staying home when ill or wearing a mask in the operating room.” British Columbia will be the first jurisdiction in Canada to implement such a policy.

According to media outlets, the unions representing health care workers are generally supportive of vaccinations, although the British Columbia Nurses Union has said it will not yet formally respond to the directive and has rather referred to its October 2011 Press Release on the issue where it stated that vaccinations should be promoted through education, rather than through a punitive approach by the employer.

A Government of British Columbia “Backgrounder”, cites influenza as causing the most deaths among vaccine-preventable diseases.

According to Dr. Kendall, in U.S. jurisdictions where similar requirements have been imposed, health care worker immunizations levels have reached approximately 95 percent.

The Government’s Press Release, Dr. Kendall’s Opinion Editorial and the BCNU Press Release on Influenza vaccinations can be accessed at:

http://www.gov.bc.ca/health/

http://www.newsroom.gov.bc.ca/ministries/health/factsheets/opinion-editorial-flu-shots-save-lives-protect-patients.html

https://www.bcnu.org/News/news.aspx?page=Bulletins_Oct 21, 2011

Can an employer be convicted and fined under the Occupational Health and Safety Act for an accident that resulted in the death of a non-employee?  A recent case suggests that the answer is “yes”.

The Ottawa Catholic District School Board has been fined $275,000 under the Ontario Occupational Health and Safety Act after a student died from an explosion in a school classroom.

Students were making barbeques out of steel barrels. A student was cutting a barrel with a hand grinder, and the barrel exploded. Tragically, the student was killed.  The Ministry of Labour investigation found that the barrel had been washed out with a flammable cleaner that produced vapours which were ignited by a spark from the grinder.

The school board pleaded guilty to failing, as an employer, to provide information, instruction and supervision to the teacher – note, not the student – concerning safe work practices and recognition of the hazards associated with the class project.

Although this case involved a guilty plea, and thus did not result in detailed reasons from the court, the case shows that employers can be liable even where a non-employee was injured or killed, if the Occupational Health and Safety Act is otherwise breached.  Here, the employer’s breach was a failure to properly train the teacher – an employee of the school board – on the hazards associated with the barbecue project.  It did not matter that a non-employee was killed; the school still violated the Act, and the amount of the fine was clearly related to the severity of the harm to the non-employee – the tragic death of a student.

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

An Ontario arbitrator has upheld the discharge of a “modern day prophet” who stated, “the first element to attack is water – the next is fire” after being told that she was suspended for five days.

The employer had issued the five-day suspension to the employee for carelessly packing defective product.  The employee asked to speak with the plant manager, and then made the water-fire statement.  Her statement had particular poignancy because of a serious flood at the facility approximately one year earlier.

The employer discharged the employee.  The union grieved.  At the arbitration hearing, the employee testified that “there was too much wickedness in the plant” and that the manager’s disciplinary decisions had been wicked and unreasonable.  She stated that she was a religious person and that she believed that bad things happen to wicked people.  She also said that she had no intention of starting any fires and did not intend any threat.  She refused to apologize.

Arbitrator Norman Jesin referred to Bill 168 which added workplace violence provisions to the Ontario Occupational Health and Safety Act.  He decided that the employer had just cause to discharge the employee.  Even if the water-fire statement was not a threat, it was made in a loud and aggressive manner and was an attempt to intimidate the plant manager into reconsidering the five-day suspension.  The arbitrator stated that, “The grievor would have me believe that she is a modern day prophet simply issuing a warning for the benefit” of the plant manager. “But I have no doubt that the comments were designed to scare [the manager] into rescinding the suspension.”

In light of the employee’s disciplinary record (a previous one-day and three-day suspension), and particularly in light of the employee’s failure to show any remorse, the arbitrator upheld the termination.

This decision is part of what appears to be a trend towards arbitrators taking a hard line on threats of violence (see a previous blog post on this issue here).

U.S.W. v. Plastipak Industries Inc., 2012 CarswellOnt 7659 (Ontario Arbitrator)

After stating that “many workers continue to be unaware of their workplace rights and responsibilities”, Ontario’s Chief Prevention Officer, George Gritziotis, has noted a “trend to more small workplaces and fewer large ones”, and states that the trend requires “new approaches” for reaching employers and workers with safety messages.

In the same article, Mr. Gritziotis states that, “An important priority will be to establish adequate standards in the area of training and certification.”

As we have previously noted on occupationalhealthandsafetylaw.com, the Ontario Ministry of Labour intends to introduce mandatory worker and supervisor training obligations on Ontario employers.  Mr. Gritziotis’s comments may indicate that the training requirements will be more onerous than had previously been anticipated.  Stay tuned.

Mr. Gritziotis’s article can be accessed here.

An Ontario Ministry of Labour inspector has ordered a sleep laboratory to provide personal protective equipment to employees because of the safety risk posed by patients who may be resistant to antibiotics.  And the Ontario Labour Relations Board has rejected the employer’s request to suspend the order.

The MOL inspector issued the order under the “general duty” clause of the Occupational Health and Safety Act after a worker complained about working with patients who were resistant to antibiotics and may have a contagious form of “Methicillin-Resistant Staphyloccoccus Aureus” or MRSA.  The inspector’s order required the employer to ensure that “workers have measures and procedures for the wearing of Personal Protective Equipment . . .”

The employer asked the OLRB to suspend the order pending the employer’s appeal of the order.  It argued that it already had adequate policies in place  – which had been approved by the Ministry of Health – and had provided appropriate training.  The OLRB, in refusing to suspend the order, noted that the employer admitted that MRSA posed a hazard, and the suspension of the order could endanger a worker.

This case demonstrates the broad powers of MOL inspectors to order employers to take positive steps to ensure the safety of workers, and how workers’ safety concerns that are not addressed internally can lead to MOL visits and orders.

Accqcorp v. Matthie, 2012 CanLII 38160 (OLRB)

The Ontario Ministry of Labour has released its “system priorities” for 2012-13.

In its “Introduction to Safe At Work Ontario Sector Plans, 2012-2013“, the Ministry of Labour states:

Employers should be aware that Ministry of Labour inspectors will be paying particular attention to these issues in the next year.

The U.S. Occupational Safety and Health Administration (“OSHA”) and the National Institute for Occupational Safety and Health (“NIOSH”) have issued a hazard alert to employers engaging in hydraulic fracturing – or “fracking” – operations, requiring those employers to take adequate steps to protect workers from silica exposure.

OSHA states that large quantities of silica sand are used during fracking.  OSHA notes that “workers who breathe silica day after day are at greater risk of developing silicosis, a lung disease.  OSHA says that silica can also cause other diseases.

The Hazard Alert states that a combination of engineering controls, work practices, protective equipment and product substitution, where feasible, along with worker training, can protect workers exposed to silica.

The Hazard Alert may be accessed here.

We recently reported that Metron Construction had pleaded guilty to criminal negligence in respect of the Christmas Eve 2009 deaths of four workers who fell 13 floors when a suspended work platform collapsed.

On Friday, July 13th, the court imposed a historic fine of $200,000 on Metron Construction in relation to that guilty plea.  The prosecutor had requested a fine of $1 million against Metron.

The court also imposed a fine of $90,000 on Joel Swartz, an owner of Metron Construction, for four offences under the Ontario Occupational Health and Safety Act.  The fine against Schwartz is 90% of the maximum fine for individuals.

A Victim Fine Surcharge was added to all fines.

According to the Toronto Star, the judge said that the combined fines totaled more than “three times the net earnings of the business in its last profitable year.”

The Ontario Ministry of Labour, in its press release, notes that:

“A Ministry of Labour investigation found that the deceased workers had not been properly tied off to a lifeline, and had not been properly trained in the use of fall protection. The swing stage had been overloaded and it was later determined to be defective and hazardous.”

The Toronto Star reported that Metron Construction admitted, in an agreed statement of facts put before the court, that the site supervisor, who was one of the four workers who died, had directed the workers to the scaffold knowing that only two lifelines were available; that the site supervisor permitted employees under the influence of drugs to work on the project; that toxicology analysis showed that three of the four workers who died, including the site supervisor, had marijuana in their systems from recent ingestion; and that the scaffold was improperly designed and had defective welding.

The Toronto Star also reported that the fines met with “outrage” from the president of the Ontario Federation of Labour.  Union leaders have been calling for stronger enforcement of criminal safety provisions that came into force in 2004 under what is known as Bill C-45.

The Ministry of Labour notes that other defendants facing charges stemming from this incident are still before the court.

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

As many places in Canada are sweltering under a summer heat wave, employers should assess the risk of heat exposure in their workplace and, where appropriate, develop and implement workplace policies to reduce the risk of illness or injuries relating to heat stress. Most Canadian provinces have enacted specific regulatory requirements to combat thermal stress arising from extreme heat or cold. However, even in those provinces where no specific regulatory requirement exists relating to thermal stress (for example, like in Ontario and Alberta), an employer still has an obligation to prevent heat stress in the workplace as part of its general duty to protect the health and safety of its workers.

Although a number of manufacturing activities can expose workers to heat year-round, incidents of workplace heat exposure and heat stress clearly increase in the summer, particularly where employees are engaged in outdoor work activities. If there is a risk of excess heat exposure in the workplace, an employer is well-advised to take the following steps to prevent heat stress:

Train supervisors and workers to recognize early signs and symptoms of heat stress in themselves and their co-workers, including excessive sweating, dizziness and nausea

Where working in hot environments, arrange work schedules to permit employees to become acclimatized to heat

Provide adequate supervision and don’t allow individuals to work alone in conditions where heat stress is a legitimate risk

Determine appropriate work-rest cycles that allow time for workers to cool down

Provide shaded or well-ventilated areas for breaks and rests and, where appropriate, reduce temperature and humidity through air conditioning

Schedule more physically demanding work at cooler times of the day and, where possible, rotate work activities to reduce heat exposure

Make cool drinking water available and remind workers to drink water regularly to stay hydrated (i.e. approximately 250 mL of water every 20 minutes)

When working outdoors, remind workers to wear light-coloured, loose-fitting clothing that is breathable

Encourage workers to wear long-sleeved shirts and pants and keep their heads covered to reduce direct exposure to the sun when working outdoors

If you suspect that a worker is suffering from heat stress, move him or her to a cool, shaded area, provide the worker with water and appropriate first aid

There are a number of helpful on-line resources to help employers develop workplace policies and programs to combat heat stress in the workplace. For more information on preventing heat stress in the workplace, employers are encouraged to take a look at the following publications:

Ontario Ministry of Labour – Heat Stress Guideline – http://www.labour.gov.on.ca/english/hs/pubs/gl_heat.php

Ontario WSIB – Guide to Preventing Heat Stress – http://www.wsib.on.ca/files/Content/PreventionHSGuide/HeatStressGuide.pdf

WorkSafe Alberta – Best Practices for Working Safety in the Heat and Cold – http://www.employment.alberta.ca/documents/WHS/WHS-PUB_gs006.pdf

WorkSafe BC – Preventing Heat Stress at Work – http://www.worksafebc.com/publications/health_and_safety/by_topic/assets/pdf/heat_stress.pdf

Québec – CSST – Guide de prévention des coups de chaleur – http://www.csst.qc.ca/publications/200/Pages/dc_200_16184.aspx

Southern Ontario’s summer is off to a scorching start. With temperatures expected to top 36 degrees today and the humidex approaching mid-40s, Toronto’s Chief Medical Officer has extended its Extreme Heat Alert.

In conditions like these, the Ontario Ministry of Labour advises that employers must ensure that they are taking proper precautions to protect their workers from suffering heat-induced illnesses. To help employers, Ontario’s Ministry of Labour has published a Heat Stress Guideline which includes a number of tips on how to stay safe and cool during these hot summer months. In addition, Ontario’s Workplace Safety and Insurance Board has also made available on its website a number of resources about the dangers of heat exposure and how to prevent it.

Ministry of Labour – Heat Stress Guideline: http://www.labour.gov.on.ca/english/hs/pubs/gl_heat.php

WSIB – Prevent Heat Stress: http://www.wsib.on.ca/en/community/WSIB/230/ArticleDetail/24338?vgnextoid=f062e35c819d7210VgnVCM100000449c710aRCRD.

Employees won only 2 of 17 reported Occupational Health and Safety Act reprisal cases decided by the Ontario Labour Relations Board in 2011. Employers won the other 15.

The results appear surprising given that when employers think about safety-reprisal cases, they often think about the reverse onus: to win, the employer must prove that any safety issue raised by the employee had nothing to do with any discipline imposed on the employee.

An additional 27 reprisal complaints were reported settled and withdrawn, for a settlement rate of 61%.

In one of the cases in which the employee succeeded, the employee’s hours were crossed off of a work schedule posted the day after she expressed concern about working in front of a recently installed microwave, saying it was dangerous.  In the other successful case, the employee refused to paint because his mask had deteriorated and the replacement mask had not yet arrived; the employer then gave him a 10-day suspension.

In a number of the 15 reprisal complaints that were dismissed, the complaint had nothing to do with the Occupational Health and Safety Act, and the employee had not even alleged that he or she had made a complaint related to a protected safety right under that Act.

The results suggest that many employees are using the safety-reprisal complaint process to try to deal with workplace issues that are unrelated to safety.  That is, many employees may not understand that in order to advance a safety-reprisal complaint, the employee must have raised a safety issue for which he or she claims to have suffered reprisal.  Employees’ poor success rate on these cases gives employers more leverage to resolve unsubstantiated complaints in a favourable manner, or at least have the complaints transferred to a more appropriate forum.

A Ministry of Labour inspector’s compliance order under the Ontario Occupational Health and Safety Act should not be suspended even though the order only restated the employer’s obligations under the Act, the Ontario Labour Relations Board has ruled. However, the employer may have “lost the battle but won the war” if it can later prove that the inspector’s order was based on an incorrect factual assumption.

The Ministry of Labour inspector had ordered the employer, which operated a restaurant, to provide “permanent platforms . . . with access by a fixed, (a) stair; or (b) access ladder” where frequent access was required to “equipment elevated above or located below floor level”.  The equipment in question was a mezzanine above a freezer.  That order simply restated the language of Regulation 851 under the Occupational Health and Safety Act.

The Ontario Labour Relations Board noted that the inspector had not indicated in writing that frequent access was required to the mezzanine.  In fact, the inspector had not “made a determination” that employees accessed the mezzanine frequently, which determination was required for the employer to be obligated to install the ladder or stairs.

Nevertheless, the OLRB did not suspend the operation of the compliance order, because, “This Board cannot suspend the operation of the Act or its regulations.”  The OLRB essentially left it up to the employer, stating that if the employees were indeed having “frequent access” to the mezzanine, then the employer must provide a stair or access ladder.  The employer, which appealed the compliance order, would have the opportunity to later argue to the OLRB that its employees did not have “frequent access” so that neither a ladder nor stairs were required.

This is Pyrrhic victory for the Ministry of Labour, as it effectively permits the employer to not install a fixed ladder or stair if the employer maintains that, factually, employees do not have “frequent access”.

The lesson for employers is that if you receive a “bald” Ministry of Labour compliance order that only restates the Act or regulations but is based on an incorrect factual assumption by the MOL inspector, the employer may elect to decide that it is already in compliance with the order and does not need to make any costly changes.  Such decisions should be made carefully, though, because if the facts don’t support the employer’s position, the inspector may reattend and write a more specific order or, worse, lay charges for violation of the earlier order.

Moxie’s Grill and Bar v. Thompson

The Ontario Labour Relations Board has held that an employee who was fired two months after injuring her knee at work, was not dismissed for asserting her safety rights under the Ontario Occupational Health and Safety Act.

The employee claimed, in her application to the Ontario Labour Relations Board, that she injured her knee at work in April 2011 and was told by a manager to “walk it off and take it easy over the next few weeks”.   She did not lose any work time.

She asserted in her application that in May 2011 her knee injury worsened and she sought medical assistance, and that during June 2011 her employer starting putting together the paperwork to report the injury to the Workplace Safety and Insurance Board.

The Ontario Labour Relations Board stated:

“There is nothing pleaded by the applicant to even remotely suggest that her loss of employment was the direct result of acting in compliance with, or seeking the enforcement of, the Act or its regulations, or of giving evidence in a proceeding in respect of the enforcement of the Act or its regulations.  As noted by the responding party in its response, the applicant’s only complaint relates to the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, legislation that is separate and distinct from the Act.”

The OLRB thus dismissed the employee’s application without a full hearing.

This decision shows that the fact that an employee had a recent injury will not, on its own, provide the basis for a reprisal complaint under the Occupational Health and Safety Act where the employee is later dismissed.

Shier v Ice River Springs Water Co, 2012 CanLII 22546 (ON LRB)

A labour arbitrator has refused to reinstate a discharged Registered Nurse because of her “subtle” and “insidious” bullying and harassment of Registered Practical Nurses.

In 2010, the Peterborough Regional Health Centre decided to reduce costs by replacing 20% of RNs on the dialysis unit with RPNs who have a narrower scope of practice and earn less money.

The grievor, an RN, then engaged in intimidation and bullying of RPNs in the dialysis unit over a six-week period.  Witnesses testified, for instance, that the grievor would walk by RPNs making shoulder contact with them and say “excuse me”.  She would roll her eyes at RPNs, and stare and flap her hands as RPNs passed her work area.  She would avoid eye contact with RPNs.  The employer terminated her employment.  The union grieved the termination.

The arbitrator stated that:

“The grievor engaged in intimidating and bullying conduct in the workplace during the period September to November, 2010. This conduct consisted of an attitude conveyed to the RPNs that they were not wanted in the Dialysis Unit and could not expect support from the RNs and was conveyed to the RPNs through the grievor’s uncommunicativeness, the rolling of her eyes, and staring . . .

“In this matter the grievor’s actions were extremely subtle, and in that sense were extremely insidious. Bullying and harassment can consist of a single incident, or a series of repeated incidents both of which can have great impact upon the victim of the behaviour. Single discreet incidents however are more easily dealt with in the arbitral context than allegations of subtle behaviours over a period of time because the former gives an arbitrator the ability to evaluate each incident, and to apply the principle of progressive discipline in determining the appropriate penalty, whereas a series of subtle behaviours does not afford the same opportunity.”

Although the arbitrator held that the employer did not have just cause to discharge the grievor, the arbitrator decided not to order that the grievor be reinstated.  Instead, he directed the hospital and union to work out an agreement regarding the grievor’s damages for losing her job.  The primary reason for not reinstating the grievor was that her actions were persistent over a period of time and that she did not accept any responsibility for her actions.  Her actions had at least contributed to the destabilization of an entire department and contributed to the resignation of at least two RPNs.  The arbitrator had no confidence that she would not continue her bullying and harassment if reinstated.

This decision is some comfort to employers who are frustrated by the inability to “prove” bullying and harassment that is done subtly and insidiously.  Where the evidence shows a number of single incidents which, on their own, seem mild, but together add up to an insidious pattern, discharge may be justified.

Peterborough Regional Health Centre v. O.N.A., 2012 CarswellOnt 6388

The Ontario Ministry of Labour has released a safety poster that employers are now legally required, under the Occupational Health and Safety Act, to post in their workplaces.  The MOL says that its inspectors will “begin enforcing the requirement” on October 1, 2012.

The poster, which is available in 17 languages, is called “Health and Safety at Work – Prevention Starts Here”. It may be downloaded and printed from the MOL’s website (click here).  The MOL had previously released a draft of the poster for consultation.

Section 25(1)(i) of the Occupational Health and Safety Act requires employers to “post, in the workplace, a copy of this Act and any explanatory material prepared by the Ministry, both in English and the majority language of the workplace, outlining the rights, responsibilities and duties of workers”.  The MOL states that the poster is such “explanatory material prepared by the Ministry”, and therefore it must be posted.

On its website, the MOL says, “The poster summarizes workers’ health and safety rights and responsibilities and the responsibilities of employers and supervisors. It also reminds employers that they must not take action against workers for following the act or for raising workplace health and safety concerns, and seeking enforcement of the OHSA. The poster encourages workers to get involved in health and safety and explains when and why to contact the Ministry of Labour.”

The poster also sets out a toll-free number for employees to call the MOL.

The creation of the poster was one of 46 recommendations of the Expert Advisory Panel on workplace safety, which released its recommendations to the Ontario Minister of Labour in December 2010.

Ontario employers should put up the poster as soon as possible.  Inspectors will look for it when they arrive at workplaces.  By posting the poster, employers send a signal to MOL inspectors that they are on keeping on top of health and safety law developments.

The Canadian Labour Congress (“CLC”), an association of unions, has published a guide for police use when investigating corporate criminal negligence in cases of serious workplace injuries and fatalities.  The Guide is entitled, Death & Injury at Work:  A Criminal Code Offence.  In a press statement issued in May 2012, the President of the CLC indicated that the CLC’s motivation to produce the guide arose from an increasing sense that police are too rarely moving to enforce the corporate criminal negligence laws introduced into the Criminal Code in 2004 through Bill C-45.

The Bill C-45 amendments introduced a legal duty for all persons “directing the work of others” to take reasonable steps to ensure the safety of workers and the public – in effect, it made certain safety breaches criminal issues.  Since 2004, Bill C-45 charges have been laid in only six cases.  It would seem that the CLC wants to see more Bill C-45 charges and, certainly, some Canadian unions have been actively encouraging police to charge employers criminally after serious workplace accidents. 

Of perhaps the greatest interest to employers is the section of the guide that sets out the CLC’s 10 recommendations for police during an investigation into the possibility of Bill C-45 charges.   A brief summary of these recommendations follows:

1.  Take control of the scene.  The guide emphasizes the need to avoid key evidence being lost or tampered with by ensuring that a workplace accident is treated as any other crime scene.

2.  Call for back-up.  The guide suggests that the first police officer on the scene should notify the Ministry of Labour to send an inspector, if one is not already en route.

3.  Understand the corporate structure.  The guide recommends that police understand an organization’s hierarchy by clearly identifying people by name, title and function.

4.  Identify the victims and relevant players.  The guide recommends that police specifically identify the members of the joint health and safety committee and company health and safety staff that may have relevant evidence and information.

5.  Identify relevant evidence.  The guide notes that police must understand what was being done and why it was being done at the time of the accident and encourages police to track down relevant internal correspondence, memos, emails, records of meetings, policies and procedures in order to understand what was known by the organization, the decisions that were made and by whom.  The guide also notes that some of this information may be kept and stored off-site.

6.  Nature of relevant evidence.  The guide notes some of the unique documents that police should request in the case of workplace injuries or deaths such as site plans, work plans, health and safety programs and minutes of joint health and safety committee meetings.  The guide also suggests that the police quickly identify and speak with the organization’s manager in charge of health and safety.

7.  Experts will assist after identifying relevant evidence.  The guide encourages police to contact and work with experts once they have gathered evidence, as those experts may be able to establish a link not identified by the police – i.e. an expert opinion as to why a machine malfunctioned.

8.   Fundamental questions.  The guide encourages police to ask themselves questions when investigating individuals acting on behalf of an organization such as, “what did they know?”, “when did they know it?, “what should they have known?”, “what was done about it?”

9.  No due diligence.  The guide states that police must assess the degree of corporate failure to address the hazard that resulted in the harm.

10.  Arrest/criminal charges.  The guide emphasizes that unlike traditional crimes, charges or arrests should be made only after a very thorough investigation has been completed and access to off-site evidence is in the hands of police.

One is left to wonder whether the police will be interested in taking advice from a union organization with respect to criminal investigations.  However, the recommendations contained within the CLC’s guide, at the least, provide employers with a sense of when unions will push for criminal safety charges against employers. 

To review the full guide, please click here:  http://www.canadianlabour.ca/sites/default/files/death-and-injury-at-work-en.pdf

To review the press statement, please click here:  :  http://www.canadianlabour.ca/national/news/clc-releases-guide-investigating-corporate-negligence-workplace-may-9-20th-anniversary

The Ontario Ministry of Labour has previously stated that it intends to pass a regulation requiring employers to provide safety awareness training to all supervisors – in addition to non-supervisory workers.

The Ministry has now released supervisory training materials for consultation: a supervisor workbook and employer guide to supervisory awareness training.  The Ministry intends to make use of those materials, or equivalent materials, mandatory.

On its website, the Ministry states that, when mandatory, the supervisory training may be provided:

• Face-to-face with one supervisor or a group of supervisors using the workbook
• Electronically through an e-learning program (the Ministry intends to develop e-learning programs for workers and supervisors)

The draft 30-page supervisor workbook is called “A Supervisor’s Guide in 5 Steps”.  Apart from those 5 “steps”, the workbook lists 5 duties of supervisors:

1. Know the OHS Act and the various Regulations attached to it that apply to your workplace

2.  Make sure workers wear the right protective equipment

3. Tell workers about the hazards in their work

More than two-thirds of Ontario companies charged under the Occupational Health and Safety Act plead guilty. Defendants who plead guilty and allow the court to set their fines pay, on average, 40% less in fines than defendants who plead guilty and accept the Ministry of Labour’s proposed fine. At least one party is convicted and fined in 82% of Ontario workplace incidents that result in occupational health and safety charges. Two-thirds of corporations that go to trial are found guilty. These are some of the nine findings that we have drawn from our study of unpublished prosecution data obtained from the Ontario Ministry of Labour through a Freedom of Information request.

From the data, which involves 863 defendants – 592 corporations and 271 individuals such as supervisors and workers – charged with offences under the Occupational Health and Safety Act, we have been able to paint a statistical picture of what actually happens when employers, supervisors, workers and others are charged under the Occupational Health and Safety Act.  All of the charges in our study were resolved during the eighteen-month period from January 2009 to June 2010.

The results of our study may be accessed at: Statistical Analysis of 863 Ontario Occupational Health and Safety Act Prosecutions Report

The U.S. Occupational Safety & Health Administration has warned U.S. employers that some safety incentive programs might discourage workers from reporting injuries, and therefore might “discriminate” against workers who wish to exercise their legal right to report injuries to their employer.

OSHA notes:

“For example, an employer might enter all employees who have not been injured in the previous year in a drawing to win a prize, or a team of employees might be awarded a bonus if no one from the team is injured over some period of time. Such programs might be well-intentioned efforts by employers to encourage their workers to use safe practices. However, there are better ways to encourage safe work practices, such as incentives that promote worker participation in safety-related activities, such as identifying hazards or participating in investigations of injuries, incidents or ‘near misses’.”

OSHA’s pronouncement on safety incentives does not legally apply to employers in Ontario.  However, Ontario employers should consider whether their safety incentive programs could discourage employees from reporting injuries to the employer and/or to the Workplace Safety and Insurance Board (resulting in potential issues for the employer with the WSIB) or could lead to a reprisal complaint under the Ontario Occupational Health and Safety Act (“I lost my safety bonus because I reported a safety incident to my employer”).

OSHA, “Employer Safety Incentive and Disincentive Policies and Practices”: http://www.osha.gov/as/opa/whistleblowermemo.html

An Ontario arbitrator has held that an ambulance attendant was entitled to be accommodated by the employer, by permitting him to “ride 3rd” in an ambulance despite a potential but not actual risk to his safety.

The ambulance attendant had been injured when he stumbled on a step at a patient’s location.  A physician medically cleared him to return to work, with the only restriction being that he could not lift more than 40 lbs.  The employee asked to be temporarily accommodated by having him be the third crew member in an ambulance in order to allow “gradual re-integration and maintenance of his ACP paramedic skills”; the employee and employer both agreed that a third crew member is not generally required in an ambulance.

The employer argued that it would be unsafe for the employee to work as a third crew member in an ambulance, due to the fact that the employee had remaining lifting restrictions.  The employer offered to accommodate the employee in “other modified duties” until he was “cleared 100% to return to regular duties”.  The employer referred to its obligation to protect the safety of workers under the Occupational Health and Safety Act.  The employer pointed to the risk of confrontations with “un-cooperative or mentally challenged, or disoriented” patients as one risk that an injured employee would face on ambulance duty.

The arbitrator held that the safety risks identified by the employer were inherent in the work of a paramedic, and that the specific safety risks to the employee were speculative and potential – not actual – safety risks.  The arbitrator held that the employer was required, under the Human Rights Code, to accommodate the grievor by allowing him to “ride 3rd” in the ambulance.

Interestingly, the arbitrator noted that an employee with a disability should be permitted to “assume risk” in order to be accommodated in the workplace.  According to the arbitrator, the employer is not permitted to refuse to accommodate solely because there is some risk to the employee from returning to work.

Brant (Country) v. OPSEU, Local 256, 2102 CarswellOnt 2856

Employers who deal with Ontario Ministry of Labour inspectors may wish to review the Ontario government’s Regulator’s Code of Practice.  That Code applies to MOL inspectors and other government compliance staff, and sets out principles that the inspectors and other compliance staff are expected to follow.

Interestingly, the Code states that government inspectors should be “compliance-focused” rather than “enforcement-focused”, which in the context of MOL inspectors, appears to mean focused on helping employers maintain a safe working environment rather than focused on laying charges against employers under the Occupational Health and Safety Act.

The Code states that a compliance-focus requires the inspector to “focus on the objectives of regulatory law and policy and then consider the most innovative, efficient and effective method of achieving compliance.”

In an apparent recognition of the challenging economic climate for many Ontario employers, particularly those in the manufacturing industry, the Code states that government inspectors and regulators should do their jobs in a way that “allows businesses to better focus on increasing competitiveness and economic growth while complying with Ontario’s rules and regulations”.

The Code goes on to suggest that government compliance staff, including MOL inspectors, should classify employers into four categories, and treat them as follows:

Stating that “The Ministry of Labour’s proactive inspection blitzes on sector-specific hazards are designed to raise awareness and increase compliance with health and safety legislation”, the MOL has released its schedule of safety inspection blitzes by MOL inspectors for 2012 and 2013:  

The Supreme Court of Canada will decide whether an employer must have “reasonable cause” to conduct random alcohol testing on unionized employees, or whether an inherently dangerous workplace is sufficient to justify random alcohol testing.

In the case, a unionized Irving Pulp and Paper employee, who occupied a safety sensitive position, was randomly tested for alcohol using a breathalyser.  The test revealed a blood alcohol level of zero. Nevertheless, the union filed a policy grievance challenging the provision of the policy that permitted random alcohol testing “without cause”.

The New Brunswick Court of Appeal decided that Irving’s kraft paper mill was an inherently dangerous workplace, and that Irving did not have to prove that there was an existing alcohol problem in the workplace in order to conduct random alcohol testing.

The union has appealed to the Supreme Court of Canada.  The SCC’s decision will be of interest to employers across Canada. 

The New Brunswick Court of Appeal’s decision may be accessed at: http://canlii.ca/en/nb/nbca/doc/2011/2011nbca58/2011nbca58.html

The Ontario Labour Relations Board has held that an employee and employer settled a safety-reprisal complaint, due to the employee’s lawyer’s letter to the OLRB advising that the parties had reached an “agreement in principle”.

The employee had filed a complaint under section 50 of the Ontario Occupational Health and Safety Act alleging that he had suffered reprisal for seeking to enforce his safety rights under the OHSA.

In September 2011, the parties reached an “oral agreement in principle”.  On the same day, the employer’s lawyer sent proposed Minutes of Settlement and a Full and Final Release to the employee’s lawyer and invited “questions or concerns”. The next day, the employee’s lawyer requested changes, and the employer’s lawyer sent him revised Minutes of Settlement the same day. On that day, the employee’s lawyer wrote the Ontario Labour Relations Board to advise that an agreement in principle had been reached.

After numerous discussions between the lawyers, the employee’s lawyer wrote to the OLRB to advise that the employee would not be signing the Minutes of Settlement, and that the lawyer would no longer be representing the employee.  The lawyer’s closing letter to the employee indicated that the parties were “close to settlement”.

At the OLRB, the employee’s new lawyer argued that there was no settlement.  He relied upon section 96(7) of the Labour Relations Act - incorporated into the OHSA by section 50(3) of the OHSA.  Section 96(7) provides that where “the terms of the settlement have been put in writing and signed by the parties or their representatives, the settlement is binding upon the parties . . .”

The OLRB held that there was a binding settlement, due to the lawyer’s letter to the OLRB.  Subsection 50(3) of the OHSA provides only that the OLRB “may” - not “must” – inquire into a safety-reprisal complaint under the OHSA.  As such, the OLRB may dismiss a complaint that has been settled, even where the settlement is not in writing

Winston H. Gregory, http://canlii.ca/t/fqsr7

The Ontario Superior Court of Justice has held that a company did not have just cause to immediately terminate the employment of a supervisor for a lock-out violation and his failure to report the violation.

Polyone Canada Inc. is a manufacturing company that makes plastic pellets in various sizes and colours.  The court found that Polyone had a  strong culture of health and safety.  In particular, the company emphasized its “Cardinal Rules”, which include the requirement that any machinery being worked on must be locked out and tagged by any employee working on the machinery. 

The incident that gave rise to this case involved a line supervisor with 17 years of service with the company.  On the day of the incident, the supervisor was informed that the dicer machine was not working properly.  Preoccupied by frustration with some of his employees, the supervisor went over to the machine to clean it out.  In the presence of some of his employees, the supervisor removed the internal safety screen and reached into the machine, momentarily forgetting that he had not first locked out the machine.  Fortunately, neither the supervisor nor any other employees were injured as a result of the incident, which clearly constituted a breach of the company’s “Cardinal Rules”.  Furthermore, despite being well aware of his obligation to immediately report the incident to management, the supervisor did not do so.  However, the employees who had witnessed the incident were bothered by it and they reported the incident to management later that night.  The company commenced a workplace investigation the next day and terminated the supervisor for just cause approximately one week later, following the completion of its investigation.

The supervisor then launched a wrongful dismissal action, which the company defended on the basis that it had just cause to terminate the supervisor’s employment as a result of his serious breaches of the “Cardinal Rules”.  The court concluded that the supervisor’s failure to lock out the machine was very serious as it could have resulted in signficant harm.  The court went on to state that the supervisor’s failure to report the incident was even more serious, as unenforced safety rules in a workplace where heavy equipment operates present a continuing safety risk.  In addition, the  fact that the employee held a supervisory position aggravated the matter, because the supervisor’s conduct could send a message to employees that the company safety rules were not important. 

However, despite all of these findings, the court found that the supervisor’s conduct did not give rise to just cause for termination.  The court found that in a similar situation which had occurred earlier in the year, an employee had failed to lock out a machine.  The matter was not properly reported and the company did not discipline the employee.  In light of the company’s response to the earlier incident, the court found that the termination of the supervisor’s employment for just cause in this case was disproportionate, despite the admitted seriousness of the supervisor’s actions.  As a result, the court found the supervisor was entitled to 14 months’ reasonable notice.

One of the key points for employers to take away from this case is the critical importance of ensuring that they respond in a consistent manner to all violations of safety rules.

Review a copy of the full decision here:  http://www.canlii.org/en/on/onsc/doc/2011/2011onsc6068/2011onsc6068.pdf

The Ontario Ministry of Labour has reported that its safety inspectors conducted more than 60,000 visits to workplaces from April through to December 2011.

The inspectors visited 32,467 workplaces, for an average of 2 visits per workplace visited.

The MOL says that the inspectors issues 103,965 compliance orders, averaging almost 3 compliance orders per workplace visited.

The MOL has approximately 400 inspectors, meaning that inspectors make, on average, 200 visits per year.

See http://www.labour.gov.on.ca/english/hs/sawo/pubs/issue10.php

The Ontario Court of Appeal has upheld a jury award of $470,000 in damages, plus a costs award of $150,000, against an employer and a supervisor for the supervisor’s sexual assault of an employee.

The employee, a commissioned salesperson with Deluxe Windows, was sexually assaulted four times by the supervisor, who was also a principal and part owner of the company.  The supervisor was convicted criminally of sexual assault and was jailed.  The employee had started employment with Deluxe Windows 18 months after moving to Canada.

At trial, the employee testified she felt shame and was afraid that she would be targeted again.  She said that she was afraid to leave home and afraid to go shopping without her cell phone; she slept with double locks on her bedroom door, and purchased an alarm system for her home.  She experienced nightmares where the supervisor was chasing her and attacking her children.  She suffered from insomnia and had difficulty getting out of bed in the morning.  She suffered a loss of sexual desire and experiences intermittent suicidal ideations.

The supervisor had argued that the employee’s past experiences, including experiences as a child, “materially contributed” to her current problems, so that the supervisor and employer should not be responsible for damages for all of her current troubles. The jury appears to have rejected that argument.

On appeal, the supervisor argued that the damages award was “grossly disproportionate” and far outside the range of awards in other cases.  The Court of Appeal noted that the jury’s damage award was high and “outside of the generally expected range”.  However, it was not plainly unreasonable or unjust. 

This decision demonstrates that employers can be liable for assaults committed on employees by supervisors, and shows the significant potential damages.  The damage award reinforces the need for employers to implement and enforce workplace violence prevention programs, particularly in light of Ontario’s Bill 168 amendments relating to workplace violence and harassment.

M.B. v. Deluxe Windows of Canada, http://www.canlii.org/en/on/onca/doc/2012/2012onca135/2012onca135.html.

The Ontario Ministry of Labour has put up a podcast entitled, “How the Ministry of Labour Investigates Incidents”.  A transcript of the podcast, as provided by the MOL on its website, is as follows:

HOW THE MINISTRY OF LABOUR INVESTIGATES INCIDENTS

Hello, and welcome to another MOL Radio podcast.

Today, we’re going to give you a quick overview on how our inspectors investigate incidents that have resulted in either a critical injury or fatality.

Employers are required, by law, to notify the Ministry of Labour by phone or direct communication when a critical injury or a fatality occurs in their workplace. Once the incident is reported, an inspector is dispatched immediately to the event location. The inspector will investigate to determine what happened, and to ensure that similar incidents do not occur.

Once the inspector arrives at the worksite, the primary concern is that no one else is injured. The inspector, working closely with fire, police and other agencies immediately checks to make sure that the site is safe, and that all immediate hazards are addressed and the site is secure.

If needed, a Stop Work Order is issued, so that work cannot resume at the site until the inspector determines that all workers are safe.

The inspector introduces him or herself to the site supervisor or a person in authority. The inspector then asks to meet with management representatives, a Joint Health and Safety Committee worker member, or a health and safety representative where appropriate.

As with any investigation, a thorough gathering of evidence and review of facts is needed to determine what exactly happened, and to ensure that similar incidents do not take place.

The inspector begins to gather information and analyze the evidence. The collection of evidence includes, among other things:
• Conducting interviews with workers and witnesses;
• Inspecting specific processes, areas, or activities related to the incident;
• Requiring the production of information and documents such as equipment maintenance records, worker training records and certifications;
• Requiring the testing of any equipment related to the incident;
• Documenting any concerns in written form;
• Taking photographs or measurements that may be required to verify observations; and
• Issuing orders that address specific hazards or contraventions and stop work orders.

As part of the investigation, the inspector may consult with specialized Ministry of Labour staff, including engineers, industrial hygienists, ergonomists, medical consultants and infection control specialists. The Ministry may also consult with external experts, as required.

If, during the course of the investigation, a hazard is identified that may affect the particular industry, the ministry may issue a Hazard Alert and distribute it through various channels, including inspectors. The alert is also posted on the ministry’s website.

The Ministry of the Attorney General also provides legal assistance throughout the investigation, including the preparation of warrants and the review of prosecution briefs.

Investigations of workplace incidents are thorough, and the evidence collected is very detailed.

Under the Occupational Health and Safety Act, the ministry has up to one year to complete an investigation. Once the evidence is collected and analyzed, a report is drafted. The report is then reviewed by the Regional Director and the ministry’s Legal Branch.

If charges under the Occupational Health and Safety Act are warranted, they must be laid within one year of the date of the event. If no charges are contemplated, the file is closed.

Ministry investigations are thorough, and may take some time to complete. Aside from finding out what exactly happened, our investigations try to ensure that similar incidents don’t happen again.

That’s it for this segment on MOL Radio.

Thank you for listening.

The podcast is available at http://www.labour.gov.on.ca/english/podcasts/index.php.

In a decision that may cause concern to Ontario municipalities, Ontario’s privacy commissioner has ordered the City of Woodstock to turn over, to a private citizen, a workplace violence and harassment reporting form written by a City employee.  The form related to an incident that involved the private citizen, referred to him by name, and contained information about his personal opinions.  The citizen filed a request for the form under Ontario’s Municipal Freedom of Information and Protection of Privacy Act.

The privacy commissioner also ordered the City to give the citizen e-mail correspondence relating to the incident.

According to the decision, the workplace violence reporting form and e-mail correspondence provide a “narrative of the incident” along with the employee’s “recommendation about the suggested course of action”.

The City objected to providing the documents to the citizen, arguing that the Act allows municipalities to refuse to turn over documents relating to “Meetings, consultations, discussions or communications about labour relations or employment related matters in which the institution has an interest”.  The City argued that a workplace violence reporting form clearly is in respect of “employment related matters”, particularly because under the Bill 168 amendments to Ontario’s Occupational Health and Safety Act, the City “has a legal obligation . . . to ensure that its employees are not subject to violence and harassment in the workplace”.

The privacy commissioner rejected that argument, deciding that the documents did not relate to employment matters between the City and its employees, but rather related to employee observations about the private citizen who was not an employee of the City.

The privacy commissioner decided that the City was not required to give to the citizen the portions of the documents containing a description of how the incident personally impacted the employee who filed the workplace violence reporting form.

Municipalities will want to take this decision into account when designing their workplace violence reporting form and process.

Woodstock (City) (Re): http://canlii.ca/en/on/onipc/doc/2012/2012canlii10571/2012canlii10571.html

The Ontario Ministry of Labour has announced the details of its March 2012 safety blitz on construction sites.

The MOL states that:

“Beginning March 1, inspectors from the Ministry of Labour will visit construction projects employing workers in high-rise formwork, low-rise formwork and masonry, siding and built-up roofing work. The inspections will help ensure that:

-work areas are safe from hazards that cause dangerous slips, trips or falls
-workers are using fall protection systems properly and equipment such as ladders, platforms and scaffolds.”

The MOL’s news release on this blitz may be found at: http://news.ontario.ca/mol/en/2012/03/making-construction-sites-safe-for-workers.html.

A worker at a care home for “mentally challenged adults” refused to deliver juice and food supplements to clients, using a juice cart, after another worker was struck by one of the home’s 113 clients when performing that task.  The Nova Scotia Labour Board decided that she did not have reasonable grounds for engaging in the work refusal under the Nova Scotia Occupational Health and Safety Act.

The worker claimed that she had a pre-existing medical condition that placed her at a higher risk of serious injury if she was to be struck in the face by one of the clients.  She did not reveal the exact nature of the medical condition but claimed that she had it since childhood.

Management of the home had implemented a process for dealing with aggressive clients, including providing Non-Violent Crisis Intervention (NCVI) training to all direct-care staff.

The Nova Scotia Labour Board stated:

“<Appellant’s>  concern about working amongst clients is based upon her fear of being struck by a client.  Her solution is to isolate herself from having contact with clients by working in the kitchen, and by avoiding clients by refusing to accompany the juice cart to the units where clients, including high risk clients, reside.  The Director testified that the right to refuse is based upon an average individual having reasonable grounds for refusing work.  The Act does not address fears.  While every employee who testified admitted that there is an inherent risk in working at the Home, all have accepted this risk as part of the conditions of their employment.  Most try to ameliorate the risk of possible aggression from clients by making themselves aware of which clients have a high risk to offend.  Management has tried to reduce the risk of injury to kitchen helpers by introducing changes to the procedure for delivering juice and supplements to the units.  With regard to the introduction of these changes, most of <Appellant’s>  co-workers were ambivalent about them.  A poll conducted amongst the ten affected employees by two members of the JOHS Committee found that nine felt safe with or without the new procedures being implemented.  The Board is convinced that <Appellant’s>  perception of the dangers imposed by having her accompany the juice run to the units is an emotional reaction and is not one that is based upon reasonable grounds.”

This decision affirms that employees may not refuse to work based only on fear or a perception of danger, particularly where the fear relates to an “inherent risk” in the work.  The fear must be based on reasonable grounds.

The decision may be accessed at: Braemore Home Corporation.

An Ontario judge has held that an employer which failed to train employees on its workplace violence rules did not have just cause to dismiss an employee who slapped a coworker in the face.

Two workers were engaged in “verbal jousting” described by other co-workers as “trash-talk”, “off-colour language”, “salty language” or acting like “two kids in a courtyard”.  One worker, the plaintiff in the lawsuit, struck the other worker on the face with an open hand, apparently provoked by something that the other worker said.  The judge found that the plaintiff, who had almost 6 years of service, enjoyed a clean disciplinary record and did not have a history of violence or anger management problems.  The slap caused brief facial redness.

The employer fired the plaintiff and claimed just cause for dismissal without notice. The employee sued in the courts for wrongful dismissal.

The employer attempted to rely on the rules in its Employee Handbook prohibiting “threatening, intimidating, or coercing fellow employees” and “fighting or attempting to injure another employee”.  The judge stated, however, that the employer did nothing to train its employees with respect to the intent and purpose of the rules and the consequences of breaking them “beyond distributing the Handbook, and revisions to it, to its employees and leaving them to read it and interpret it for themselves.”  According to the judge, the employer could have sent a message to the plaintiff and other employees that workplace violence was not acceptable, by imposing progressive discipline – not dismissal – as referred to in the Employee Handbook.”

While the result in this case may seem inconsistent with the trend towards judges and arbitrators taking a harder line against workplace violence, the decision does show the importance of employers instructing employees on workplace violence rules – particularly if employers wish to rely on those rules to dismiss employees who violate them.

Shakur v. Mitchell Plastics, http://www.canlii.org/en/on/onsc/doc/2012/2012onsc1008/2012onsc1008.html

The Ontario Ministry of Labour has released the results of recent inspection blitzes dealing with racking and storage, underground mining ventillation, and infection prevention and control.

With respect to racking and storage, the MOL notes that from 2006 to 2010, three workers died and 45 others were seriously injured in racking and storage incidents.  In its November 2011 blitz, MOL inspectors conducted 1,167 visits to 977 workplaces and issued 3,063 compliance orders, including 118 stop work orders.  The most common compliance order required employers to maintain racking and storage equipment in good condition, suggesting that the MOL found racking defects such as dents in rack supports.

With respect to underground mining ventillation, the MOL notes that between 2005 and 2009, 176 workers died and another 36 workers developed occupational diseases related to respiratory illnesses in the mining sector.  In October and November 2011, MOL inspectors conducted 61 visits to 36 underground mines and issued 207 compliance orders under the OHSA, including 22 stop work orders to underground mines.  The most common specific compliance order required employers to prepare a plan to comply with an inspector’s order.

With respect to infection prevention and control, the MOL states that in 2010, more than 1,150 health care workers filed infectious disease claims that were approved by the Workplace Safety and Insurance Board.  In November 2011, MOL inspectors conducted 116 visits to 100 health care workplaces and issued 192 compliance orders.  The most common specific compliance order was to perform at least an annual review of health and safety procedures.

The blitz results, and information on the MOL’s “next steps” in these three areas, may be viewed at http://www.labour.gov.on.ca/english/hs/sawo/blitzes/blitz_report36.php, http://www.labour.gov.on.ca/english/hs/sawo/blitzes/blitz_report35.php, and http://www.labour.gov.on.ca/english/hs/sawo/blitzes/blitz_report34.php.

A disability-management specialist working for the Toronto Transit Commission is facing a human rights complaint.  The complaint alleges that the specialist, who oversees the TTC’s transitional work program, subjected an employee to harassment and treated her differently compared to other employees on modified duties.

According to an interim decision of the Human Rights Tribunal of Ontario, in the human rights complaint, the employee alleged that the specialist “abused her authority by suspending the applicant’s pay, terminating the applicant’s transitional work duties, harassed the applicant while the applicant was on a leave of absence, suggested the applicant take certain medications, made false allegations against about the applicant, spoke to the applicant in a degrading fashion and solicited information about the applicant’s work performance.”

In order to respond to the complaint, the TTC and the specialist asked the Tribunal to permit them to have access, use and disclosure of the employee’s Occupational Health and Claim Management files.  They said that the Tribunal’s authorization was required because there may be a conflict between the standards required by the Personal Health Information Protection Act and the duty imposed on employers under the Occupational Health and Safety Act (they were likely referring to subsection 63(2) of the OHSA which states that “[n]o employer shall seek to gain access, except by an order of the court or other tribunal or in order to comply with another statute, to a health record concerning a worker without the worker’s written consent.”)

The Tribunal granted the TTC and the specialist access to the Occupational Health and Claim Management file, but only in respect of the period identified in the employee’s human rights complaint. The Tribunal limited access to the advisors, instructors and potential witnesses of the TTC and the disability-management consultant.

The case is a reminder to employers of the confidentiality obligations under section 63(2) of the OHSA.   In particular, where an employee does not consent, and there is doubt about the employer’s right to use an employee’s health file in a litigation matter, the employer should consider obtaining the permission of the court or tribunal in which the employee’s claim was made.

O’Brien v. TTC,  http://canlii.ca/en/on/onhrt/doc/2012/2012hrto170/2012hrto170.html

An Ontario labour arbitrator has decided that a hospital’s lawyer’s investigation report into a bullying/harassment complaint was not privileged, so that the union was entitled to a copy.

The North Bay General Hospital had retained a lawyer to investigate a complaint that an employee had bullied and harassed other staff.  The lawyer-investigator concluded that the employee had indeed engaged in bullying and harassment.  The hospital disciplined the employee, and the union grieved the discipline.  The union asked the labour arbitrator to order the hospital to turn over a copy of the lawyer-investigator’s report.  The employer argued that the report was lawyer-client (also called “solicitor and client”) privileged and thus the union was not entitled to it.

The arbitrator decided that the investigation report was not privileged.  She noted that the investigation report stated that the lawyer was retained “as an independent investigator” to “investigate the concerns” of bullying and harassment – not as a lawyer to give legal advice.  Thus the hospital was required to give a copy of the report to the union. The arbitrator stated:

“I see no reason to distinguish between [lawyer and non-lawyer investigators] if the purpose for which they were retained is the same, of investigating events to make findings of fact.  I see no reason to attach solicitor and client privilege to a relationship which is not that of a solicitor-client, just because one of the parties happens to be a lawyer.  There are no facts before me upon which I could conclude that Mr. Robinson was retained for any other purpose than investigating the allegations against the Grievor.  Accordingly, I find Mr. Robinson’s communications with the Hospital in respect of his role as investigator of these allegations is not protected by solicitor and client privilege.”

This decision is a reminder to employers that if they wish to claim lawyer-client privilege over a lawyer’s investigation report into a workplace issue (such as a violence or harassment issue under Bill 168, or another safety issue), then the purpose of the lawyer’s involvement should be to provide legal advice, not solely to investigate.  Lawyer-investigators should consider sending the employer a retainer letter stating that the purpose of the lawyer’s involvement is to provide legal advice, and the purpose of the investigation is to gather facts in order for the lawyer to provide that legal advice.  The lawyer should follow up the investigation with a written legal opinion flowing from the results of the investigation; that way, the investigation report is much more likely to be privileged.

North Bay General Hospital v Ontario Nurses’ Association, 2011 CanLII 68580 (ON LA): http://www.canlii.org/en/on/onla/doc/2011/2011canlii68580/2011canlii68580.html

I recently gave a presentation on “The Safety Professional / Engineer as a Witness” to the Canadian Society of Safety Engineers’ Toronto chapter.

The presentation has been uploaded to the CSSE’s website at: http://www.cssetoronto.com/csse12132011/.

The theme of the talk was that everything the safety professional does could end up being scrutinized in court, at arbitration, at the Ontario Labour Relations Board or elsewhere.  As such, a number of legal considerations, including whether to assert privilege over reports, must be considered.

The presentation also discusses cases in which engineers and safety professionals have testified, and had their testimony commented on by judges, and one recent case in which a safety professional was found guilty under the Nova Scotia Occupational Health and Safety Act.

There is no generally-accepted national standard for how employers – and employees  – should deal with mental health issues in the workplace.  The Canadian Standards Association is attempting to change that.

 According to the Mental Health Commission of Canada, mental illnesses and mental health issues are the leading cause of short- and long- term disability in the country.  The cost of dealing with these issues is in the range of $51 billion per year, with almost $20 billion of that amount coming from workplace losses.  However, assistance is on the way. 

 The Canadian Standards Association has announced a public consultation period with respect to its development of a new, voluntary National Standard for Psychological Health and Safety in the Workplace.  The goal of the standard is to provide employees and employers with guidance and tools to assist them in improving the psychological health and safety of employees in the workplace.  The CSA says that the implementation of the standard is aimed, in part, at assisting employers by helping them to lower rates of absenteeism, workplace injuries, disability costs and legal risk while also reducing turnover, enhancing recruitment and increasing employee engagement.   The consultation period runs until December 31, 2011.

For background information, see the Mental Health Commission of Canada’s backgrounder:  http://www.mentalhealthcommission.ca/SiteCollectionDocuments/Workforce_2011/Workforce-Standard-Backgrounder-FINAL.pdf

 For further information from the Canadian Standards Association, including information on how to participate in the public consultation, see:  http://www.csa.ca/cm/ca/en/news/article/public-consultation-workplace-mental-health-standard

https://review.csa.ca/opr/opr_list.asp

Foreign Companies doing business in Alberta are not immune to answering charges regarding workplace safety, even where the foreign entity itself has no presence in the province.

The majority of the Alberta Court of Appeal has ruled that the Chinese employer of two oil sands employees who were killed in a workplace accident in 2007 must face trial for alleged safety violations.

Sinopec Shanghai Engineering Company Ltd., a Chinese corporation, was retained by a Canadian oil and gas company to construct storage tanks at an oil sands extraction facility in Fort McMurray. Since the Canadian oil and gas company wished to deal with a Canadian entity, Sinopec Shanghai incorporated a subsidiary, SSEC Canada Ltd. On April 24, 2007 an accident occurred at the facility, which resulted in the death of two employees. Following an investigation, the Canadian oil and gas company, SSEC Canada and Sinopec Shanghai were all charged with violating sections of Alberta’s Occupational Health and Safety Act.

In order to trigger the jurisdiction of the Provincial Court of Alberta over the defendants, each corporation had to be properly served with the Information in Alberta. Although the Canadian oil and gas company and SSEC Canada have a presence in Alberta, Sinopec Shanghai had no employees and little effective presence. A process server served Calgary resident, Helen Wang, with the Informations (charging documents) for both SSEC and Sinopec Shanghai. Ms. Wang was an employee of SSEC. While Ms. Wang accepted service of SSEC’s Information, she did not accept the Information relating to Sinopec Shanghai. She was never asked what she did with the paper, nor was she asked whether she advised any representative of Sinopec Shanghai that service been attempted. However, a lawyer for Sinopec Shanghai made a conditional appearance to contest service of the Information.  While the dissenting reasons by Justice Slatter concluded that the criminal law recognizes conditional appearances to contest service, the majority of the Court disagreed.

While the majority of the Court of Appeal agreed that the service on Ms. Wang was ineffective, they noted the involvement of Sinopec Shanghai’s lawyer. The majority preferred the reasoning of the Ontario Court of Appeal to the effect that a distinction is to be made between matters that relate to jurisdiction of a court to try an offence and those that related to procedural defects in service.  In this case, service was curable because counsel for Sinopec Shanghai had made an appearance before the Provincial Court to argue that service was not effective. Sinopec Shanghai’s appearance, through counsel, resulted in its attornment to the jurisdiction of the Provincial Court, notwithstanding counsel’s protestations otherwise.

Accordingly, international organizations that do not have a presence in Alberta but conduct business here despite limited presence will not be able to avoid potential responsibility for workplace safety violations.

As a result of the strong dissenting reasons, this case may end up at the Supreme Court of Canada. Stay tuned.

R. v. Sinopec Shanghai Engineering Company Ltd., 2011 ABCA 331

Arguing that his “termination would not have happened” had his employer complied with Bill 168 and thus addressed his harassment complaint properly, an employee has persuaded the Ontario Labour Relations Board to allow his OHS reprisal complaint to proceed to a full hearing.

Bill 168 amended the Ontario Occupational Health and Safety Act to add requirements dealing with workplace violence and harassment.

After he was fired, the employee filed a reprisal complaint with the OLRB alleging that his employer, the Carpenters’ District Council of Ontario, dismissed him for complaining about his immediate supervisor’s conduct.  The Carpenters asked the OLRB to dismiss the complaint, arguing that the conduct did not constitute “workplace harassment” and that the complaint did not allege a violation of the OHSA.

The OLRB noted that the harassment and violence provisions were recently added to the OHSA and had not been the subject of many decisions interpreting the interplay between the workplace harassment obligations and the reprisal provisions.  As such, the employee should be permitted to have his reprisal complaint proceed to a full hearing.

Ontario employers should note that non-compliance with Bill 168 – including failing to prepare and post policies on workplace harassment and violence – could result not only in compliance orders from Ministry of Labour inspectors but could also in reprisal complaints to the OLRB.

The decision may be viewed at: http://www.canlii.org/en/on/onlrb/doc/2011/2011canlii71880/2011canlii71880.html

The Saskatchewan Court of Queen’s Bench has overturned a Saskatoon transit driver’s traffic court conviction for failing to wear his seatbelt while on the job.  The driver claimed that his refusal was justified due to the risk of assaults by passengers, which he claimed was a “growing nationwide epidemic” that he and a number of his colleagues had experienced firsthand.

 At issue was a contest between a Saskatoon employee policy and the province’s Traffic Safety Act.  The employee policy states that all public employees must be buckled in whenever they are behind the wheel of a city vehicle, while the Traffic Safety Act exempts a bus driver from the requirement to wear a seatbelt if he or she has reason to believe the seatbelt might put them at risk of injury.

 The Crown argued that under the Traffic Safety Act exemption, the driver should be permitted to unbuckle only when he or she faces a specific  risk of injury from a specific person or circumstance – for example, a passenger who suddenly becomes violent.  The driver argued the exemption is broader and should be extended to situations where drivers face less-specific threats, such as continuous exposure to safety threats such as assaults.   The driver argued that once drivers have identified a specific risk of injury, it is often too late for them to remove their seatbelts in order to defend themselves, so that drivers should be permitted to not buckle up at all.

 The Court agreed with the driver and found that the exemption in the Traffic Safety Act should be interpreted broadly.  In overturning the driver’s conviction, finding him not guilty of the seatbelt charge, the Court further concluded that the driver’s decision not to wear his seatbelt was a reasonable reaction to the experiences of himself and others.

 Read the decision at:  http://www.canlii.org/en/sk/skqb/doc/2011/2011skqb390/2011skqb390.pdf

A U.S. judge has acquitted an in-house lawyer on obstruction charges, in part because she consulted widely with outside counsel.  The decision, while not involving an occupational health and safety matter, demonstrates the importance of corporate counsel obtaining outside advice from a safety lawyer when confronted with the “drop everything” urgency of an accident investigation by government safety officers.

Lauren Stevens was charged with failing to give complete answers to the U.S. Food and Drug Administration in response to a request for information during an investigation.

United States District Judge Roger Titus stated:

“As to all counts relating to the question of advice of counsel, the evidence in this case can only support one conclusion, and that is that the defendant sought and obtained the advice and counsel of numerous lawyers. She made full disclosure to them. Every decision that she made and every letter she wrote was done by a consensus.”

Ms. Stevens had acted in good faith, on the advice of outside counsel. The charges against her were dismissed.

When government safety inspectors investigate a serious accident, counsel must make quick decisions about issues such as privilege, creation of investigation reports, and when – and whether – an employee must give a statement.  The U.S. District Court’s decision suggests that corporate counsel can protect him/herself – in addition to the organization – by obtaining outside advice.

The decision may be read here. 

Employers who do not comply with Ministry of Labour orders face the wrath of MOL inspectors, and of the courts.  In May 2009, Ontario health and safety inspectors visited Infinity Marble of Canada, a synthetic marble and granite manufacturing company led by sole proprietor Waldemar Kozuchowski.  The inspectors issued several orders in respect of health and safety violations.  The inspectors made a number of follow-up visits to the premises between May 2009 and May 2010 but the violations remained, resulting in further orders.  In total, inspectors wrote 23 orders, 15 of which were not complied with by Mr. Kozuchowski.  The orders that were not complied with included a stop work order relating to the use of a spray booth, as well as orders related to the improper storage of flammable liquids, poor ventilation, a lack of a system to contain spills and a failure to ensure that workers wore respirators.

On October 28, 2011 Mr. Kozuchowski was found guilty of 15 counts of failing to comply with an order issued by an inspector.  He was fined $3,000 for his failure to comply with the stop work order and $1,000 per count with respect to his failure to comply with each of the 14 other orders, resulting in a total fine of $17,000, plus the 25% victim fine surcharge.  For more information, see the Ministry of Labour’s News Release:  http://news.ontario.ca/mol/en/2011/11/business-owner-fined-17000-for-non-compliance.html

The Ontario Ministry of Labour’s November 2011 workplace inspection blitz will target racking and storage facilities at industrial workplaces.  Ministry of Labour inspectors will be visiting industrial workplaces in Ontario to inspect racking and employer procedures for working around racking.  Among other things, inspectors will be examining whether racking and storage systems have been properly selected and installed and that any required pre-start health and safety reviews of the systems have been conducted.  Inspectors will also be focusing on whether the systems are being maintained in a good state of repair and that any damaged components have been promptly replaced or repaired.  Further, inspectors will be checking to ensure that aisles are clear of obstructions, pallets are being maintained in good condition, lift trucks are being operated safety and workers have been provided with required training.   For more information, see the Ministry of Labour’s Alert:  http://www.labour.gov.on.ca/english/hs/sawo/pubs/fs_rackingstorage.php

An off-site Customer Appreciation Party during Stampede Week in 2007 has resulted in tragic consequences – and a court decision of interest to employers. The event, held at a hotel, included a “calf roping machine” activity that was suggested by the party planner retained for the event. A young software developer who was helping to operate the machine was struck in the head by a steel lever and later died from the injuries.

The employer was charged under the Alberta Occupational Health and Safety Act with failing to ensure, as far as it was reasonably practicable to do so, the health and safety of the worker. It was also charged with failing to ensure that all equipment used at the work site would safely perform the function for which it was intended or designed.

The court rejected the company’s argument that occupational health and safety legislation was not intended to apply to off-site workplace parties. Rather, the court found that the location of the company party was a “work site” because the worker’s participation and duties at the event were directed by company personnel, and it was a place where a business purpose of the company was carried out. The company was therefore obligated to ensure the health and safety of its workers and that equipment, including the calf roping machine, was safe.

The employer, however, was found “not guilty” of the charges because it had raised a due diligence defence. The court decided that the accident was not foreseeable and that the company did all that it could do to ensure that the young worker was safe and that the equipment would safely perform its function. The court noted that the company had made clear its expectation that the professional event planner would arrange for only safe activities and the company depended on the planner’s expertise to provide only safe entertainment activities for its customers. Further, the court distinguished between the circumstances of the employer in this case, a small family owned technology company, as compared to “the larger industrial enterprises typically before the courts as a result of industrial accidents.”

Employers need to be aware of their health and safety obligations when hosting parties or client events, even at locations away from the employer’s workplace. Should something go awry resulting in a serious injury or accident to a worker during the event, an employer may face health and safety charges and fines.

R. v. XI Technologies Inc., 2011 ABPC 313 : http://www.canlii.org/en/ab/abpc/doc/2011/2011abpc313/2011abpc313.html

Workplace threats are now “violence” in Ontario and justify strong discipline, the decision of an Ontario arbitrator suggests.  Bill 168 added workplace violence and harassment to the Occupational Health and Safety Act and defined “workplace violence” to include threats.

The case involved a long-service employee of the City of Kingston.   In a heated discussion, she said to a co-worker, who was also her local union president, “Yes, and you will be [dead] too”, referring to a former local union president who had died.

The grievor, a labourer/truck driver in the City of Kingston’s parks department, had a tortured work history during her 27 years of service.  She had been fired in 1989 and reinstated by a labour arbitrator.  She was fired again in 1992 and was reinstated during the grievance procedure.  She had also filed a human rights complaint which the Ontario Human Rights Commission decided in 1992 not to send to a hearing.  In 2001 and 2004, she had received “non-disciplinary verbal warnings” for shouting at her supervisor and angrily confronting a co-worker.  She admitted that she had “always had a short fuse, and a bad temper”.  She had ongoing attendance issues and had attended an anger management course.

The union grieved the grievor’s discharge for the threat.  Arbitrator Elaine Newman said that Ontario’s Bill 168 affected, in four different ways, the approach to cases of discharge for uttering a threat: (1) Bill 168 provides that threats are now “violence”; (2) employers are now obligated to investigate and address all threats of violence; (3) arbitrators must consider threats to be serious incidents, when assessing whether termination was reasonable; and (4) arbitrators must now consider workplace safety in that assessment.

In this case, even though the arbitrator found that the grievor did not really intend to end her co-worker’s life, the incident was very serious, the co-worker was shaken, and – importantly – the grievor did not apologize, accept responsibility for her actions, or show any willingness to correct her propensity for anger-induced behaviour.  She was, therefore, the “author of her own circumstances.”  The termination was appropriate.

This decision provides a useful precedent for employers – both unionized and non-union – to impose strong discipline on employees who engage in violence, including threats, in the workplace.  In the face of high-profile workplace deaths from violence, one expects to see more hard-line responses to violence in future.

The Ontario Labour Relations Board has held that an engineer’s report that did not use the words, ”not likely to endanger a worker”, did not satisfy a compliance order.

A Ministry of Labour inspector had ordered four companies, after accidents at various job sites that involved the operation of tower cranes, to provide a “section 54(1)(k)” professional engineer’s report stating that the cranes were not likely to endanger a worker.  The companies unsuccessfully tried to work out an “industry solution” with the MOL.

All four companies retained the same engineering firm, Burrell & Associates.  An engineer with that firm provided four reports.  One of the reports stated that the tower crane was now operating normally and could be placed back into service; another report stated that “turntable bolts are still suitable for the operation of the crane until new bolts are installed”; and a third report stated that “the crane capacity in third gear is adequate for the intended loads on this project . . .”  None of the reports stated that the cranes were “not likely to endanger a worker”, the language used in s. 54(1)(k) of the OHSA.

The MOL refused to accept that the engineer’s reports satisfied the obligation under s. 54(1)(k) to produce a report that the tower cranes were “not likely to endanger a worker”.  The companies appealed to the Ontario Labour Relations Board.

The companies argued that by requiring the precise words “not likely to endanger” in the engineer’s report, the MOL was superseding the judgment of a professional engineer and may discourage engineers from providing reports.  The companies also argued that under section 54(1)(k), the professional engineer – not the MOL inspector – should make the decision as to whether the equipment could be used safely.

The OLRB disagreed.  It held that section 54(1)(k) required the professional engineer to expressly state in his report whether the equipment is or is not likely to endanger a worker.  The OLRB stated,

“Specific reference to the precise words used in the statutory provision facilitates consistency of assessment and minimizes the opportunity for confusion or debate by an Inspector as to what conclusion should be reached based on the content of a report.  Having a certain level of consistency in the content of reports, by requiring all professional engineers to use the precise words envisioned by the Legislature, helps create a common benchmark of evaluation, which enhances and, in all likelihood, may even expedite the Inspector’s ultimate determination as to the safety of the workplace.”

Employers and professional engineers should take note.  The practical effect of this decision is that when ordered to obtain a section 54(1)(k) report, an employer should seek out a professional engineer with significant expertise in the equipment or machinery to which the order relates, so that the engineer feels comfortable writing that it is “not likely to endanger a worker”.

Hardwall Construction Ltd. et. al: http://www.canlii.org/en/on/onlrb/doc/2011/2011canlii34961/2011canlii34961.html

The Ontario Court of Appeal has dismissed a “material handling” prosecution involving a road vehicle that was not actually or typically engaged in the handling of materials.

In the case, the employer, Sheehan’s Truck Centre Inc., operated a highway tractor truck sales business in Burlington. Employees were asked to move tractor trucks, which were being displayed by Sheehan’s for sale, to another area to allow paving of a new parking area.  No trailer was attached to the truck at the time.  One employee reversed a truck over another employee, causing him a serious pelvic injury. 

The Ontario Ministry of Labour charged Sheehan’s under section 56 of the Industrial Establishments regulation under the Ontario OHSA alleging that Sheehan’s failed to provide a signaller “[w]here the operator of a vehicle, mobile equipment, crane or similar material handling equipment does not have a full view of the intended path of travel . . .”

Sheehan’s was found not quilty at trial on the basis that the truck was not handling materials so that section 56 did not apply.  An appeal judge overturned that decision, holding that the truck need not be engaged in the “actual handling of materials” but rather must simply be “intended to be used for this purpose”.

The Ontario Court of Appeal agreed with the trial decision and held that Sheehan’s was not guilty.  The court stated that “material handling” in the context of industrial establishments usually:

“(1) is undertaken in an interior or enclosed setting, such as a factory or plant; (2) extends over short distances; and (3) forms part of a broader industrial process involving the movement of materials or products for such purposes as supply, manufacturing, installation, warehousing, shipment and sale.”

These three characteristics did not apply to the truck in question.  As such, Sheehan’s could  not be found guilty of the “material handling” charge on these facts.

Faced with many court decisions applying a “broad, purposive” interpretation to health and safety legislation, employers may have difficulty understanding the boundaries of their obligations.  The Ontario Court of Appeal has, refreshingly, drawn the attention back to the wording of the regulation section in question.  This case may assist employers in dealing with safety inspectors who may seek to impose obligations on employers that do not seem to flow from the section referenced.

Ontario (Ministry of Labour) v. Sheehan’s Truck Centre Inc.: http://canlii.ca/en/on/onca/doc/2011/2011onca645/2011onca645.html

A new “model” of construction, where a “construction manager” was used instead of a “traditional general contractor”, did not insulate the construction manager from safety charges.

Reid & DeLeye Contractors Ltd. was retained as a “construction manager” on a project owned by Future Inns Cambridge Inc.  The construction contract included the following provision:

“Under this type of construction management arrangement, the traditional roles and relationship of owner/general contractor disappear.  The Owner engages the trade contractors directly and thereby assumes much of the role and responsibility of the traditional general or prime contractor.”

A labourer on the project suffered a fractured arm when he fell off scaffolding.  The construction manager, Reid & DeLeye, was charged as “constructor” under the Ontario Occupational Health and Safety Act.

Reid & DeLeye argued that the use of a construction manager, rather than general contractor, was a new and more-efficient model, and that because the owner contracted with the subtrades, the owner – not Reid & DeLeye – was the constructor under the OHSA.

The Ontario Court of Justice disagreed.  The contract with the project owner stated that Reid & DeLeye was to provide “site management” and ”leadership to [the Construction Management Team] on all matters relating to construction”.  The contract between the owner and a forming subtrade stated that Reid & DeLeye will “assume overall responsibility for establishing and coordinating the safety precautions and programs”.  The court decided that the contracts showed that Reid & DeLeye was to oversee that safety precautions were undertaken by all employers and employees on the project and that safety programs were in place.  Also, Reid & DeLeye’s conduct on the project showed that it understood that it was required to oversee the sub-trades’ use of scaffolds. 

The court said that the more control a company exerts, the more likely that it was a constructor.  Here, Reid & DeLeye was the constructor on the project.

This case illustrates the importance of the terms of contructions contracts, but also of the on-the-ground actitivities of the parties, in determining who is the constructor.  A “construction manager” will be the constructor, and therefore at risk of charges and fines, if in fact it has control over a project, even if the construction contract tries to avoid having the construction manager be the “constructor”.

Ontario (Ministry of Labour) v. Reid & DeLeye Contractors Ltd.: http://www.canlii.org/en/on/oncj/doc/2011/2011oncj472/2011oncj472.html