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Second OHSA conviction gets construction employer jailed for 30 days

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

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

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

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

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

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

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

Second OHSA conviction gets construction employer jailed for 30 days

Appeal court upholds $270,000 fine in OHSA matter – when MOL and company agreed on $180,000

A recent Ontario appeal decision is a reminder that courts in Occupational Health and Safety Act prosecutions can award fines higher than even the Ministry of Labour prosecutor requests.

In this unusual case, both a trial Justice of the Peace and appeal judge imposed a fine that was substantially higher than what the MOL prosecutor wanted.

After a six-day trial, the defendant, an auto parts manufacturer, was found guilty on three charges under the OHSA.   The trial Justice of the Peace fined the company a total of $270,000, even though the MOL prosecutor at trial had requested a fine in the range of only $175,000 to $225,000.

The company appealed the amount of the fine, but did not appeal the convictions.  On the appeal, the company argued that the fine was not proportionate, that the trial justice placed undue emphasis on a prior conviction against the company under the OHSA, and that the fine was outside of the acceptable range.  The appeal judge rejected all of those arguments because the employer was a “substantial corporation” (two facilities with a total of 770 people) that was “within a broader group of companies”; the employer had been found guilty on three charges under the OHSA; it was proper to consider the prior conviction (which was in 2004); and the harm to the injured worker was “devastating”: he was rendered a paraplegic when a robot on which he was doing a “quick fix” pressed against him on his back.  The company’s practice was not to lock out / tag out robots when doing a “quick fix”.

Interestingly, on the appeal, the MOL prosecutor and the defence counsel actually agreed that $180,000 would be an appropriate amount for the fine.   The appeal judge effectively rejected that agreement, finding that the $270,000 fine was not “unfit”.

The appeal judge decided that a fine of $270,000 “fell within the appropriate range”. The appeal was dismissed.  The case illustrates the point that, particularly in cases of serious injury to a worker that “offends” the court, there is always a risk that the court will impose a fine that is greater than the amount that the MOL prosecutor wanted.

R. v. Matcor Automotive Inc., 2017 ONCJ 560 (CanLII)

Appeal court upholds $270,000 fine in OHSA matter – when MOL and company agreed on $180,000

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We understand that this decision has been appealed.

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

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

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

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

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

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

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

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

MacPherson v Samuel, 2017 ONSC 2024 (CanLII)

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

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

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

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

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

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

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

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

Bower v. Evans, 2016 ABQB 717 (CanLII)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Richardson Pioneer Limited, 2016 OHSTC 16 (CanLII)

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

Employer loses wrongful dismissal case after court finds safety rules unclear

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

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

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

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

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

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

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

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

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

Employer loses wrongful dismissal case after court finds safety rules unclear

Bartender, fired for smoking marijuana at work, loses human rights complaint

A B.C. bartender has lost his human rights complaint after he was dismissed for smoking marijuana on shift.

The bartender also served as assistant manager of the restaurant.  The employer had a policy that prohibited consumption of drugs or alcohol while on shift.  The policy was meant to ensure that employees – including bartenders, who monitored customers’ consumption of alcohol – did not themselves become intoxicated.

The bartender’s job was described, in the decision, as “serving alcohol to customers, monitoring their consumption of alcohol, their demeanor and their conduct to ensure that the employer abides by its legal obligations under the Liquor Control and Distribution Act, the Occupational Health and Safety Regulations, the Occupiers’ Liability Act, and its common law duty of care to ensure that its employees and customers do not create harm to themselves or others.”

After being caught smoking marijuana, the employee claimed that he used it for a a”chronic pain condition”.  He filed a complaint with the B.C. Human Rights Tribunal against his employer, the executive chef and general manager, and the restaurant owners, claiming that his dismissal was discriminatory because of his “disability”.

The B.C. Human Rights Tribunal concluded that there was no evidence that the employer was aware that the bartender’s marijuana use was related to physical disability.  Therefore, the employee had not proven that there was a connection between his disability and his termination.  As such, his human rights complaint was dismissed.

Burton v. Tugboat Annie’s Pub and others, 2016 BCHRT 78 (CanLII)

Bartender, fired for smoking marijuana at work, loses human rights complaint

Ontario man fined $6,000 for illegal use of “professional engineer” title when seeking job

An Ontario man has been found guilty of three counts of violating the Professional Engineers Act by using the protected title, “P.Eng.” in a resume and in communications with a construction firm at which he was seeking employment.

The construction firm had asked for confirmation of the man’s P.Eng. status on several occasions, and then called Professional Engineers Ontario which confirmed that he had never been a licenced professional engineer in Ontario.

The man was fined $2,000.00 on each of the three charges, for a total of $6,000.00.

Employers often retain professional engineers for safety-related advice, such as whether a machine is properly guarded.  Employers should take steps to confirm that the person holds a “P.Eng.” and a “Certificate of Authorization” that authorizes individuals and companies to carry on business offering and providing professional engineering services to the public.   The PEO maintains searchable online directories.

Professional Engineers Ontario’s press release can be found here.

Ontario man fined $6,000 for illegal use of “professional engineer” title when seeking job

Reverse burden of proof sinks no-show employer: OLRB awards more than $25,000 for safety-reprisal

An employer that failed to attend a safety-reprisal hearing has been ordered to pay two employees damages of more than $25,000.00.

The employees filed an application with the Ontario Labour Relations Board claiming that their dismissal was a reprisal under the Occupational Health and Safety Act. The employer failed to attend the hearing.

The OLRB noted that subs. 50(5) of the OHSA places the burden of proof on the employer, in safety-reprisal cases, to show that the employer had not retaliated against the employee for raising safety concerns.  Because the employer failed to attend the hearing, it had not discharged that burden of proof, and was deemed to have accepted all of the allegations in the employees’ reprisal complaints.

One of the employees had been unemployed, after her dismissal, for 30 weeks.  She was awarded 30 weeks’ wages as damages.  The other employee was pregnant when dismissed, and was entitled to back pay for the four weeks before her Employment Insurance maternity/parental benefits began.

The OLRB also awarded both employees damages in the amount of four weeks’ wages for the “loss of employment” plus $1,500.00 each for “mental distress”.  The damages totaled $25,848.00.

This case illustrates what already appears self-evident: employers faced with safety-reprisal complaints under the OHSA must respond and participate in the hearing, or else they will be deemed to have admitted the employee’s allegations – and will be liable for damages.

Sara Dias v 2142472 Ontario Limited, 2016 CanLII 14182 (ON LRB)

Reverse burden of proof sinks no-show employer: OLRB awards more than $25,000 for safety-reprisal

Medical marijuana-using welder must give employer treatment records: arbitrator

A worker who used medical marijuana has been ordered to give his employer any medical records touching on his treatment.

The worker was a long-service journeyman welder employed at the employer’s potash mine.  He claimed to suffer from an anxiety disorder and headaches.  He obtained a prescription for medical marijuana to treat his medical condition, and an authorization from the federal government for that prescription.  He claimed to use medical marijuana in the evenings, away from work – not in the workplace.  He disclosed this information to the employer’s workplace occupational health nurse.

The employer then suspended the employee and placed him on leave until he provided evidence that he is no longer being treated by a prohibited substance that exceeded the employer’s identified thresholds and caused impairment. The worker discontinued his marijuana use and filed a grievance alleging discrimination because of his “medical prescription”.

The employer demanded that the employee produce his application for medical marijuana authorization, and medical records pertaining the conditions treated by the medical marijuana and the treatment proposed or undertaken.  It argued that without that information, it could not assess whether marijuana is an appropriate treatment, whether a more appropriate treatment was available, and whether the worker was fit to work in a safety-sensitive position while under the influence of marijuana.

The arbitrator noted that because the employer had acknowledged, in a communication with the Saskatchewan Human Rights Commission, that the employee suffers from anxiety and cluster headaches, it could not resile from that admission in this case.  As such, the employer was not entitled to medical documentation about the worker’s “underlying disability”.

The employer was, however, entitled to medical documents relating to the employee’s current or proposed treatment.  The availability of alternative treatments was an issue in the arbitration. The employer could not argue its case if it was not permitted to have access to the medical records dealing with the worker’s proposed and undertaken treatment.  Further, the union was challenging whether the worker’s prescription and use of marijuana would cause impairment such that he would be unfit and/or unsafe for work.  This also made the treatment documentation relevant.  The arbitrator decided that the employer should be permitted to determine what information the employee’s doctor had about the worker’s “Fit for Duty workplace requirements” in terms of permitted treatment options, strain potency and frequency of marijuana use, and whether alternative treatments were available, appropriate and/or recommended.

United Steel Workers, Local 7656 v Mosaic Potash Colonsay ULC, 2016 CanLII 18320 (SK LA)

Medical marijuana-using welder must give employer treatment records: arbitrator

Australian employee wins workers compensation benefits after coworker takes covert photographs of her

An Australian employee has won her bid for workers’ compensation benefits for psychological injury after she learned that a coworker had taken covert photographs of her.

The coworker had taken covert photographs of a number of people, including the employee.  Some of the photographs concentrated on the employee’s chest area with her head and face out of the photo.  She was identifiable because other photos included her face.  The coworker had used electronic devices supplied by the employer (a state library) to take the photographs.  Over 2,500 photos were found on the electronic devices, a number of which focused on the chest area of female employees.

The court decided that there was a “necessary association between the injury and the employment”.  Had it not been for the employment, the employee’s psychological injury would probably not have occurred.  As such, the injury “arose out of, or in the course of, employment”. Further, the employment was a “significant contributing factor” to her injury, given the evidence of her psychiatrists.

The applicable workers compensation legislation provided that workers were not entitled to benefits for psychological injury if it arose out of “reasonable management action”. The court decided that, considered “in a global way”, the employer’s actions had not been reasonable.  In particular, the employer had delayed in telling the employee about the photographs and their nature; the employer did not say anything to her until she approached another employee about the matter; and the employer had not imposed any disciplinary action on the male employee who took the photographs, but instead had allowed him to resign at the end of his contract (with four months of notice).

As a result, the employee was entitled to workers’ compensation benefits for psychological injury.

Waugh v Simon Blackwood (Workers’ Compensation Regulator) & anor [2015] ICQ 28 (8 October 2015)

Australian employee wins workers compensation benefits after coworker takes covert photographs of her

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

OSHA’s report can be accessed here.

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