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Safety manager wins wrongful dismissal suit: he had not failed to complete assigned tasks, court decides

An Alberta safety manager has won $28,000 in damages after he was fired by his employer. The employer argued that the employee quit or, in the alternative, that the employer had just cause for dismissal.

The court rejected the employer’s argument that the employee had quit. The employer’s email stating, “Don’t bother coming in either I’ll look after all this k that your two weeks. Thanks for your services have good day” [sic], made it clear that the employer had dismissed the employee.

The court also rejected the employer’s argument that it had just cause for dismissal. Contrary to the employer’s assertion, the employee had not failed to complete an assigned task (addition of certain safety procedures to the employer’s safety manual) and even if he had failed to do so, there was no evidence that the company had suffered harm as a result.

Further, the employee’s outburst in which he told his manager to “f— off” on a telephone call was not just cause for dismissal. It was said on a private call and there was no “scene” in front of other employees or the public.  The employee had an unblemished work record. The manager admitted that he fired the employee in the heat of the moment.

The court therefore decided that the employee, who had 3.5 years of service and an annual salary of $82,000.00, was entitled to 4 months of pay in lieu of notice.  He was therefore entitled to approximately $28,000 in damages.

Bohnet v Rebel Energy Services Ltd., 2018 ABPC 131 (CanLII)

 

 

Safety manager wins wrongful dismissal suit: he had not failed to complete assigned tasks, court decides

Court declines to quash “bid ban” imposed by City on paving company for safety and other reasons

A recent Ontario court decision illustrates the serious business implications that Occupational Health and Safety Act compliance issues or disputes can have on a company.

The City of Sudbury banned a paving company, Interpaving, from bidding on City contracts for four years. The City gave three reasons for the ban.  According to the City: (1) Interpaving had sued the City in relation to five City projects or contracts; (2) Interpaving violated health and safety legislation, and (3) Interpaving had “a significant history of abusive behaviour and threatening conduct” toward City employees.

With respect to safety issues, the City noted an incident in 2015 in which a pedestrian was struck and killed by a construction vehicle as she entered a construction zone in which Interpaving was working.  The Ministry of Labour issued compliance orders against Interpaving and the City. Interpaving took the position, in appeals of those orders, that the City and not Interpaving was the constructor under the OHSA. The City claimed that Interpaving failed to understand its obligations under the OHSA including its role as constructor and failed to cooperate with the City on safety matters.

Interpaving asked the court to overturn the bid ban. It argued that the City had not followed a fair process in coming to the decision to impose the bid ban. The majority of the court disagreed. The majority decided that although the City had initially breached its obligation of procedural fairness (by not giving Interpaving notice of its intention to debar, the City’s grounds for debarring, a description of the potential penalties and an opportunity to respond), the City had “cured” that breach through its “reconsideration and process which gave Interpaving full opportunity to be heard.

The Court stated:

In the Debarment Letter, the City made reference to “numerous orders in relation to projects that Interpaving has been involved in for the City…including seven orders in relation to the City’s Elgin Street Project issued by the Ministry of Labour”. The reference to OHSA orders was also made under the heading “Poor Contract Performance”.  Contrary to the assertion made by Interpaving, there is nothing unreasonable in the consideration of OHSA orders in connection with the quality oflnterpaving’s contract performance. [emphasis added]

Interpaving stated that it employed 200 people in the city and an additional 200 in the summer.  This type of “debarment” decision by public entities can have a serious impact on businesses.  The Court decision indicates that Interpaving’s road paving business is primarily in the City of Greater Sudbury.

Interpaving Limited v. City of Greater Sudbury, 2018 ONSC 3005 (CanLII)

Court declines to quash “bid ban” imposed by City on paving company for safety and other reasons

Harassment arbitration hearing should be open to the public, including the press, arbitrator rules

A police union’s harassment grievance arbitration hearing should be open to the public, including the press, despite the sensitive issues that it raised, a labour arbitrator has ruled. The case illustrates the publicity risk that employers face in many workplace disputes, and the need for employers to consider publicity when analyzing litigation risk.

The grievance alleged that the police services board failed to provide a harassment-free workplace to its civilian members. The issues had resulted in two workplace investigations that had not resolved the dispute.

The arbitrator noted the general requirement, under the Statutory Powers Procedure Act, that a hearing be open to the public. The police board argued that the press should be excluded.  Two officials with the police force, who were “interested parties” at the arbitration, argued that the hearing should be held in camera – that is, closed to the public and the media.

The arbitrator disagreed. There were a number of factors in favour of having an open-to-the-public  hearing.  This was not a case about a single employee; it raised broader issues about the workplace.  A number of members of the police service were already aware of the case.  The police service was a public body, which was a strong factor in favour of having the hearing be open to the public including the press. The particular reporter who wished to attend the hearing had said that he would not audio-record it, and the risk that media reports would influence witnesses who had not yet testified was low. Although some of the evidence at the hearing might reflect poorly on some of the participants, the arbitrator noted that there may be publicity about this matter regardless of whether media is present.

In the result, the arbitrator ruled that the hearing be open to the public.

Durham (Regional Police Association) v Durham (Regional Police Services Board), 2018 CanLII 28649 (ON LA)

Harassment arbitration hearing should be open to the public, including the press, arbitrator rules

Traffic control firm violated safety rules, could not avoid responsibility by blaming employee

A company that provided traffic control services has lost an appeal of two compliance orders issued against it under occupational health and safety legislation.

The compliance orders required the company to ensure that all traffic control signage was available and installed, and that a traffic control plan and checklist was completed prior to a traffic control setup.

The company appealed the compliance orders to the Nova Scotia Labour Board, arguing that the safety officer should have issued the orders to an employee, not to the company, as signage was readily available to the employee and he had failed to draw upon his knowledge, training and experience.

The Labour Board dismissed the appeal, deciding that there was inadequate supervision of employees and the workplace; there was inadequate signage for several hours; the company’s area supervisor had arrived at the site hours after the work had started, even though the employee in question had a history of similar infractions; and the area supervisor left the site before the situation was corrected.  As such, the company had not done all that it could do to comply with its safety obligations under the Occupational Health and Safety Act.  It could not avoid responsibility by blaming the employee. The company’s appeal of the compliance orders was dismissed.

The Labour Board’s decision may be read here.

 

Traffic control firm violated safety rules, could not avoid responsibility by blaming employee

Possession of “small amount” of marijuana was just cause to fire employee who had “not carefully checked his pockets” before screening to board flight for offshore platform

An appeal court has upheld the firing of a unionized millwright who was caught with a small amount of marijuana in his jeans pocket during screening prior to boarding a helicopter that would transport him and other employees to an offshore platform. The employer had a policy prohibiting possession of an “illegal drug”, including marijuana, “while on company facility or while performing company business”.

The employee, who was employed on a “call-in” or casual basis, claimed that he was “in disbelief that it was there” and that he “did not know how it got in his pocket”.  The labour arbitrator found that the employee likely knew that he possessed marijuana (noting that he did not protest “loud and long” that the marijuana was not his or that he had no knowledge of his having possessed it) but had forgotten it and had not carefully checked his pockets.  The arbitrator had upheld the employer’s decision to dismiss the employee, but  a judge of the Newfoundland Supreme Court had set that decision aside.

The Newfoundland and Labrador Court of Appeal restored the arbitrator’s decision, stating:

“To avoid disciplinary action, the employee was required to establish that he had taken all reasonable care to ensure that he did not breach the Policy by having possession of marihuana.  The arbitrator reviewed the circumstances and the explanation provided by the grievor and concluded that he had not satisfied this onus.  Rather, the arbitrator found that the grievor more probably than not knew about the marihuana in his pocket, but had forgotten it was there and had not carefully checked his pockets before entering the screening area . . .  The employee’s actions did not establish that he had taken all reasonable care to ensure that he did not breach the Policy.  He did not meet the standard of the reasonable person in similar circumstances.”

The employer’s decision to dismiss the employee was therefore upheld.

Terra Nova Employers’ Organization v Communications, Energy and Paperworkers Union, Local 2121, 2018 NLCA 7 (CanLII)

Possession of “small amount” of marijuana was just cause to fire employee who had “not carefully checked his pockets” before screening to board flight for offshore platform

The introduction of Bill 30 brings the potential for significant changes to Alberta’s workplace laws

On November 27, 2017, the Government of Alberta introduced numerous proposed changes to Alberta’s Occupational Health and Safety Act and Workers’ Compensation Act. The proposed changes are contained in Bill 30: An Act to Protect the Health and Well-being of Working Albertans.

A review of the key proposed changes in Bill 30 is found here. 

 

The introduction of Bill 30 brings the potential for significant changes to Alberta’s workplace laws

MOL inspectors have the power to Order employers to produce documents, even if no contravention of OHSA has been found, OLRB decides

The Ontario Labour Relations Board has stated that Ministry of Labour inspectors have the power to require employers to provide documents to the MOL, even where the inspector has not found any contraventions of the Occupational Health and Safety Act.  

In the case in issue, the OLRB decided that a municipal fire service must give the MOL certain documents that an MOL inspector Ordered the fire service to provide.

The MOL received an anonymous complaint naming the fire service and raising concerns about training programs available to firefighters.  An MOL inspector visited the fire service and issued a “requirement” Order to provide certain documents including training records for the last two years for firefighters; standard operating guidelines and procedures; a training program flow chart; the professional development program; a report showing what training firefighters get before and after they are hired; and the post-incident analysis and review for all incidents in the past six months.

The fire service provided the training records and standard operating guidelines and procedures but did not provide the other  documents.  It appealed the MOL inspector’s Order to the OLRB and asked the OLRB to suspend the Order pending the result of the appeal.  It made a number of arguments including that the documents already provided to the MOL contained sufficient information for the inspector to assess the training complaint, and that some of the documents related to labour relations and not safety.

The OLRB refused to suspend the inspector’s Order to produce the documents, stating that section  54(1)(c) of the OHSA provides inspectors with broad rights to require the production of any number of documents, even without the inspector having found that the employer contravened the OHSA or regulations.  Also, the OLRB could not at this point determine whether suspending the Order would put any workers at risk.  As such, the inspector’s Order was not suspended and remained in effect.

The Corporation of the Municipality of Chatham-Kent v A Director under the Occupational Health and Safety Act, 2017 CanLII 74130 (ON LRB)

 

MOL inspectors have the power to Order employers to produce documents, even if no contravention of OHSA has been found, OLRB decides

Experienced tanker truck driver had right to refuse to drive refrigeration truck without additional training, OHS appeals tribunal rules

A trucking company should have offered a tanker truck driver fresh training before asking him to pull a 53′ refrigerated trailer (referred to as a “reefer” load) which was longer and taller, a health and safety appeals tribunal has ruled.

The driver had four years of experience with the employer driving tanker trucks, as well as experience at a prior employer.  He refused to pull the refrigerated trailer when asked, saying he required training as it was a new assignment.  The employer argued that the driver did not need more training, since his overall training and his experience on the tanker truck were sufficient.

The Tribunal held that driving a refrigeration truck would have been a “new task” for the driver.  The Tribunal stated:

“While I may be prepared to accept that the existence and knowledge of an employee’s past experience may alleviate the extent of the education that would be needed to satisfy the employer’s obligation, this does not exempt the employer from the obligation as such and of the obligation to ascertain the extent to which the past experience may affect the coverage of said education. Furthermore, I do not share the opinion expressed by the appellant that, in regards to the said needed education, Mr. Wilkins had been hired primarily to ‘drive’. An undertaking such as the one operated by the appellant is not solely a driving undertaking but rather a transportation, a road transport, undertaking which, in the course of its activities, as demonstrated by the appellant in the course of the hearing, requires its employees, drivers, to drive/pull various loads using a variety of trailers, each presenting their own characteristics. As such, given the history of Mr. Wilkins’ service with the appellant, being asked to drive/pull a reefer constituted a new task or, to use the wording of the Regulations, his being ‘assigned a new activity’.”

The Tribunal concluded that the employer therefore violated the Canada Labour Code when it failed to give the driver the necessary health and safety education shortly before assigning a new activity – driving the  refrigeration truck – to him.

Further, the Tribunal held that driving the refrigeration truck without having received the appropriate training presented inherent risks and was therefore a “hazardous activity” that posed a danger and a serious threat to the driver’s life or health due to the risk of an accident.  Driving / pulling conditions were affected by the size of a trailer, its shape, the load balance and the axle positioning.  The driver was therefore justified in refusing to drive the refrigeration truck without more training.

Keith Hall & Sons Transport Limited v. Robin Wilkins, 2017 OHSTC 1 (CanLII)

Experienced tanker truck driver had right to refuse to drive refrigeration truck without additional training, OHS appeals tribunal rules

SCC upholds employer’s “no free accident” alcohol and drug policy: Stewart v Elk Valley

On June 15, 2017, the Supreme Court of Canada released its decision in Stewart v Elk Valley Coal Corp. (2017 SCC 30). This is a landmark decision, reinforcing the right of employers to take proactive risk mitigation and management measures through alcohol and drug policies to ensure workplace safety.

In this case, Ian Stewart (“Stewart”) worked in a safety-sensitive mine operated by the Elk Valley Coal Corporation, Cardinal River Operations (“Elk Valley”). The employer implemented an alcohol and drug policy, which among other things, required employees to disclose addiction issues before any alcohol or drug-related incident occurred (“Policy”). Employees who self-disclosed would be offered treatment. Employees who failed to self-disclose in advance of an incident and subsequently tested positive for alcohol or drugs, could be terminated.

Read the full article

SCC upholds employer’s “no free accident” alcohol and drug policy: Stewart v Elk Valley

Lunchtime car accident a matter for WSIB, not courts, WSIAT rules

The Ontario Workplace Safety and Insurance Appeals Tribunal has ruled that an employee who was injured at lunchtime in a car accident was barred from suing the other driver in court.  Instead, he must go through the WSIB for his injury benefits.

The employee, a sales manager for a food company, was taking his son and a daughter of a colleague to lunch in his company vehicle when the other driver ran a red light and collided with the vehicle.  The other driver was employed with a company that was registered with the WSIB as a “Schedule 1” employer.

The WSIAT ruled that even though it was lunchtime, the injured employee was “in the course of his employment” because on the same trip he planned to see a client and pick up a cheque for his employer, which was a regular task for him.  The car trip had a “dual purpose” and was not solely personal time.  As such he was entitled to claim WSIB benefits, and barred from suing the other driver in the courts because the other driver was employed with a “Schedule 1” employer.

The employee claimed that his employer had registered with the WSIB after the accident, and therefore that he was entitled to sue the other driver in the courts.  The WSIAT ruled that even if his employer has registered with the WSIB after the accident, the employer was a “Schedule 1” employer, and therefore the employee was not entitled to sue in the courts.

Decision No. 1572/16 (Ontario Workplace Safety and Insurance Appeals Tribunal)

Lunchtime car accident a matter for WSIB, not courts, WSIAT rules

OLRB confirms 30-day hard-stop deadline for appealing Ontario MOL inspectors’ compliance orders

A recent Ontario Labour Relations Board decision confirms that the 30-day deadline for appealing Ministry of Labour health and safety inspectors’ compliance orders under the Occupational Health and Safety Act cannot not be extended.

An MOL inspector visited a mortuary and issued five compliance orders including an order to seal certain flammable liquids in sealed containers of not more than 23 litres and in a special metal cabinet.

The employer filed its appeal of two orders with the OLRB 40 days after the MOL inspector issued those orders – that is, ten days after the deadline.

The OLRB stated:

There is no provision in the Act that permits the Board to extend the time period prescribed by subsection 61(1) of the Act within which an appeal must be made to the Board.  That is, the Board does not have the discretion to relieve against appeals that are filed beyond the statutory 30 day time frame . . .  Quite simply, the Board does not have the jurisdiction to extend the 30 day time period provided by the Act to appeal an inspector’s order.

As such, the OLRB dismissed the appeal in respect of the two orders that were appealed late.

The decision is a reminder to employers to ensure that if they intend to challenge MOL inspectors’ compliance orders, the appeal must be filed with the OLRB within 30 days.

Ottawa Mortuary Services v Egrmajer, 2017 CanLII 11813 (ON LRB)

OLRB confirms 30-day hard-stop deadline for appealing Ontario MOL inspectors’ compliance orders

“Safety Engineering Letter of Opinion” dealing with OHSA obligations disallowed by court in civil lawsuit

A “Safety Engineering Letter of Opinion”, styled as an “expert report” and covering Occupational Health and Safety Act obligations, was struck and its author was prohibited from testifying at the trial of a civil lawsuit.

The lawsuit arose from an accident involving the towing of a disabled motor vehicle at a scrapyard. Some defendants sought to have the author of the Safety Engineering Letter of Opinion testify about obligations under the OHSA, apparently to show that a co-defendant (the operator of the scrapyard) breached its OHSA obligations and therefore was negligent.

The court stated that the Safety Engineering Letter of Opinion drew “legal conclusions” that were beyond its author’s expertise. There was no “specialized standard of care” for which expert evidence was required. To the extent that the OHSA was relevant in the lawsuit, the parties could direct the court to look at the OHSA’s provisions.

Interestingly, the court stated at paragraph 34:

“[The Safety Engineering Letter of Opinion] raises no other statutory or common law duties which the AIM defendants may have owed to Awada [the injured party]. The OHSA did not apply to Awada while he was on AIM’s weigh scale. He was a third-party. The OHSA applies only to workplace relationships between employers and workers. Any duties owed by the AIM defendants to Awada are governed by the Occupiers Liability Act, R.S.O. 1990, c. O.2 and the common law, not by the OHSA. Both Awada and Wehbe have pleaded the Occupiers Liability Act and the Negligence Act; they have not made any allegations with respect to the OHSA.”

The court noted that the scrapyard operator had produced materials relating to its Emergency Response Procedures, Occupational Health and Safety Policy, Safety Enforcement Policy, and Workplace Responsibilities. The court stated that if there was an allegation that the scrapyard operator was negligent in failing to provide one of its employees with appropriate safety training so as to ensure that he was a “competent person”, those documents can be referred to.  The parties could also ask the trial judge to direct the jurors to the relevant provisions of the OHSA and regulations without any need to consider the Safety Engineering Letter of Opinion.

In the result, the court struck the Safety Engineering Letter of Opinion and prohibited its author from testifying as a witness at trial.

Awada v Glaeser, 2017 ONSC 1094 (CanLII)

 

“Safety Engineering Letter of Opinion” dealing with OHSA obligations disallowed by court in civil lawsuit

MOL Clarifies its Interpretation of “Critical Injury”

The Ontario Occupational Health and Safety Act requires employers to report fatalities and “critical injuries” to the Ontario Ministry of Labour.

The Ministry of Labour has recently released clarification on its interpretation of “critical injury” – in particular, clauses 1(d) and (e) of the definition of “critical injury”.   It is important to note that this is not an amendment to the definition of “critical injury”; rather, it is an update to the Ministry of Labour’s internal interpretation, which interpretation courts do not have to accept.

Section 1 of Ontario Regulation 834 under the OHSA defines “Critical Injury” as an injury of a serious nature that,

(a) places life in jeopardy,
(b) produces unconsciousness,
(c) results in substantial loss of blood,
(d) involves the fracture of a leg or arm but not a finger or toe,
(e) involves the amputation of a leg, arm, hand or foot but not a finger or toe,
(f) consists of burns to a major portion of the body, or
(g) causes the loss of sight in an eye.

Clause 1(d) states that a “critical injury” includes the fracture of a leg or arm but not a finger or toe.  The Ministry of Labour has clarified that it interprets the fracture of a leg or an arm to include the fracture of a wrist, hand, ankle or foot.  In addition, while clause 1(d) excludes the fracture of a finger or a toe, the Ministry of Labour takes the position that the fracture of more than one finger or more than one toe does constitute a “critical injury” if it is an injury of a serious nature.

Clause 1(e) provides that a “critical injury” includes the amputation of a leg, arm, hand or foot but not a finger or toe.  While the amputation of a single finger or single toe does not constitute a critical injury, the Ministry of Labour interprets the amputation of more than one finger or more than one toe to constitute a “critical injury” if it is an injury of a serious nature.

Notwithstanding the fact that the Ministry of Labour’s interpretation of “critical injury” is just that – the Ministry’s interpretation, not the law – employers should be aware of the Ministry’s interpretation in order to avoid a failure-to-report charge under the OHSA.

The Ministry of Labour’s update can be found here.

MOL Clarifies its Interpretation of “Critical Injury”

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

Work refusal due to second-hand smoke was not properly investigated: arbitrator

A correctional officer with sinusitis and sensitivity to second-hand smoke was entitled to have her work refusal investigated by prison management, an arbitrator has decided.

Although the prison was a non-smoking facility, prisoners would smuggle in contraband cigarettes. There was an “informal arrangement” in place under which the correctional officer could be moved to a different area of the prison if she detected second-hand smoke.

At the time of her work refusal, there was labour unrest at the prison including “mass work refusals”. She refused to work because she “believed that she would be exposed to second-hand smoke”.  She was directed to wait in the lunchroom, where she waited several hours and heard nothing from management.  She, however, made no concerted effort to contact management about the status of her work refusal.

The arbitrator stated:

” . . . I fail to see why the Employer could not have initiated and completed an investigation of CO Gough’s work refusal during the course of her 12-hour shift on September 7, 2014.  It is not clear to me for example why a stage 1 investigation could not have been conducted by the Employer later in the afternoon, rather than the information gathering meeting that was held by DS Large.  CO Gough’s single work refusal was not that complicated and I would have thought that an investigation of it would have been relatively brief and could have been completed before the end of her shift.  In considering all of the circumstances of that day, I find that the Employer’s failure to conduct an investigation of CO Gough’s work refusal on September 7, 2014, was not reasonable and that this failure amounts to a contravention of section 43 (3) of OHSA.”

The arbitrator, however, rejected the union’s argument that the way the employer handled the work refusal constituted harassment.  There was no evidence of bad faith on the part of the employer.

Lastly, the arbitrator decided that the proper remedy was simply “declaratory relief”: a declaration from the arbitrator that management failed to investigate the work refusal and thereby violated the Occupational Health and Safety Act.  However, the correctional officer did not experience any harm that would justify an award of monetary damages.

Ontario Public Service Employees Union (Gough) v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

 

Work refusal due to second-hand smoke was not properly investigated: arbitrator

GHS (WHMIS 2015) online courses now available

The Canadian Centre for Occupational Health and Safety has released two online courses on WHMIS 2015, which implements the Globally Harmonized System of Classification and Labelling of Chemicals (GHS).

One course is for managers and supervisors, and is intended to help them understand their duties under the WHMIS 2015 (GHS) legislation.  The other course explains the purpose of safety data sheets and the information contained in them.

The law provides for a transition period to GHS.  By December 1, 2018, the transition to GHS must be complete for all parties, including employers.  By that date, employers should have no hazardous products with old WHMIS labels and safety data sheets.

More information on the training courses may be found here.

GHS (WHMIS 2015) online courses now available

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

OLRB dismisses union’s “fishing expedition” in safety case: documents requested from MOL and employer were not arguably relevant

The Ministry of Labour and the employer were not required to hand over certain documents requested by the union in a safety dispute, the Ontario Labour Relations Board has decided.

The issue in dispute was whether the employer was required to de-energize cables prior to entry into “Cable Chamber 428″. A Ministry of Labour inspector decided ” no” and the union appealed to the OLRB. A worker had engaged in a work refusal.

The union asked the OLRB to order the MOL and employer to provide documents in numerous categories identified by the union, including any injury or near-miss or accident report involving energized cables from 1999 to present, and any reports of “cable chamber explosions”.

The OLRB decided that the documents requested were not arguably relevant to the appeal in issue, which dealt only with Cable Chamber 428.  The union’s request for documents was “overly broad and lacks the precision needed to make any production order.   It is also a fishing expedition that could unnecessarily protract this proceeding”.  Further, the employer had already produced numerous documents including those it intended to rely upon at the hearing.

Canadian Union of Public Employees, Local 1 v Toronto Hydro-Electric System Limited, 2016 CanLII 65523 (ON LRB)

OLRB dismisses union’s “fishing expedition” in safety case: documents requested from MOL and employer were not arguably relevant

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

High school machine shop teacher loses work refusal case

A machine shop teacher’s work refusal was not justified, an appeals tribunal has decided, given that the teacher had the ability to manage the class environment to ensure safety.

The teacher refused to teach the class if there were more than 16 students present, stating that a larger class size would put his safety at risk.

The teacher argued that adolescents were prone to act in an unpredictable manner when working with machinery, risking creating “projectiles and other hazardous situations”.

In dismissing the teacher’s appeal from the decision of a health and safety officer, the tribunal noted that the collective agreement set the maximum class size at 29 and that the New Brunswick Department of Education recommended a class size of 18 to 22. As such, the teacher’s personal limit of 16 was not justified.

Most importantly, the teacher had the ability to provide less hands-on teaching and more class time, which would help manage safety in the classroom.

The tribunal stated:

“While it is obvious that the teaching experience will suffer, it was apparent from the appellant’s testimony that less hands-on experience and more classroom time will ensure the safety of the students. While students may not like less hands-on training, the issue before me concerns whether the January 8, 2016, decision should be overturned.”

As such, the teacher’s appeal was dismissed.  His work refusal was not justified under the New Brunswick Occupational Health and Safety Act.

20168017 (Re), 2016 CanLII 57012 (NB WCAT)

High school machine shop teacher loses work refusal case