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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

Federal employers not required to inspect workplaces that they don’t control: court

The Federal Court has decided that federally-regulated employers are not required to conduct inspections of places not under their control where their employees work.   The decision will be a relief to federal employers whose employees regularly work away from the employer’s office.

The court rejected letter carriers’ claim that Canada Post was required to ensure that inspections were conducted of public areas including the letter carriers’ routes.

The provision in issue was section section 125(1)(z.12) of the Canada Labour Code which provides:

125. (1) Without restricting the generality of section 124, every employer shall, in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls the activity,

. . .

(z.12) ensure that the work place committee or the health and safety representative inspects each month all or part of the work place, so that every part of the work place is inspected at least once each year;

The Court decided that that provision required inspections of only workplaces actually controlled by the employer – not workplaces, such as letter routes, that are not under the employer’s control.  The Court upheld a federal Appeals Officer’s decision stating that employers cannot be required to inspect workplaces over which they have no control and thus no opportunity to fix hazards identified in the inspection.

The Court concluded:

“The Appeals Officer recognized that Parliament intended to give the broadest possible protection to employees including to those performing work in a place which the employer may not control. In my view the Appeals Officer’s interpretation of subsection 125(1) and paragraph 125(1)(z.12) demonstrates sensitivity to preserving the broad nature of the employer’s obligations to ensure the health and safety of its employees without placing obligations upon the employer that the latter would be unable to fulfill.”

Canadian Union of Postal Workers v. Canada Post Corporation, 2016 FC 252 (CanLII)

Federal employers not required to inspect workplaces that they don’t control: court

Watch Out: Ontario Ministry of Labour Inspection Blitzes/Initiatives Are Coming

The Ontario Ministry of Labour recently announced its 2016 and 2017 enforcement blitz and initiative schedule. In an effort to emphasize the importance of protecting workers’ rights and ensuring employer compliance with both the Occupational Health and Safety Act and the Employment Standards Act, 2000, the Ministry has prepared a coordinated inspection blitz schedule under the Employment Standards Program and the Occupational Health and Safety Program. The blitzes are set to continue until March 2017.

The Employment Standards inspection blitzes will focus on high-risk sectors where there is a history of ESA violations and/or where young workers, vulnerable workers and/or an increasing number of Ontarians are employed. This will include the following sectors: Construction, Food Services, Retail Trade, Professional Services, Services to Buildings and Dwellings, Other Amusement and Recreation Industries, and Personal Care Services.

The OHSA inspection blitzes will focus on sector-specific hazards with the aim of raising awareness and increasing compliance with the OHSA. The provincial OHSA Blitzes will target the Construction, Industrial and Mining Sectors with a focus on: Falls, New and Young Workers, Mobile Cranes and Material Hoisting, and Safe Material Tramming Underground.

In addition to province-wide blitzes, the Ministry will conduct local blitzes in predetermined regions throughout the province targeting specific sectors. For the ESA blitzes this will include the Child Day-Care Services, Manufacturing, Fitness Centres, Tow Truck Companies, and Small Manufacturing sectors; for the OHSA blitzes this will include the Industrial and Construction sectors.

The Ministry will report the results of its inspections shortly after they are completed and will track its findings to ensure improvements in compliance and fewer workplace injuries. The Ministry reports that since 2005, it has recovered over $144 million in wages and other money owed to employees through its inspections, claims and collections and, since 2008, has issued more than one million compliance orders for safety issues across all sectors.

Even if you are not in a targeted sector, be aware that in addition to the 2016/2017 inspection blitzes, the Ministry’s officers will continue to conduct their ongoing enforcement efforts, so they may still show up at your door. As such, all employers, and particularly those in sectors targeted by the 2016/2017 blitzes, should take steps to ensure that their workplaces are compliant with both the ESA and OHSA. The Ministry of Labour’s Inspection Blitzes and Initiatives Announcement and 2016-2017 Schedules can be found here.

Watch Out: Ontario Ministry of Labour Inspection Blitzes/Initiatives Are Coming

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

July 1, 2016: All Ontario employers must comply with new noise regulation

As of July 1, 2016, all Ontario employers will be required to comply with a new workplace noise Regulation under the Occupational Health and Safety Act.

The new Regulation (381/15) replaces noise protection requirements currently in the regulations for Industrial Establishments, Mines and Mining Plants, and Oil and Gas-Offshore.  Those regulations apply to many – but not all – Ontario employers.

The noise obligations will be new for employers with the following types of workplaces:

  • construction projects
  • health care facilities
  • schools
  • farming operations
  • fire services
  • police services
  • amusement parks

The new Regulation’s basic requirements are:

-Employers must take “all measures reasonably necessary in the circumstances to protect workers from exposure to hazardous sound levels”

-The noise-protection measures must “include the provision and use of engineering controls, work practices” and, where required (and permitted), hearing protection devices

-In general, every employer must ensure that “no worker is exposed to a sound level greater than an equivalent sound exposure level of 85 dBA, Lex,8” (as calculated according to the Regulation) without requiring workers to wear hearing protection devices

-Hearing-protection devices are a secondary (not primary) noise-protection solution and will be permitted in only certain listed circumstances

-Employers must, where practicable, post a warning sign at every approach to an area where the sound level regularly exceeds 85

-Employers who provide hearing-protection devices must provide appropriate hearing-protection training to workers who use those devices.

The Regulation may be found online here.

July 1, 2016: All Ontario employers must comply with new noise regulation

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

OSHA’s interpretation letter may be read here.

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