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MOL Inspector’s “Unclear” Order Required School Board to Revise its Workplace Violence Policy

A Ministry of Labour inspector has ordered an Ontario school board to revise its workplace violence policy, and the Ontario Labour Relations Board has suspended that Order, calling it “unclear”.

The inspector attended at a high school after a worker complained about two incidents at the school.  The inspector concluded that the school had failed to provide workers with “information and instruction concerning persons with a history of violent behaviour”, as required by section 32.0.5(3) of the Occupational Health and Safety Act which section was enacted by Bill 168.  The inspector issued an Order under the Occupational Health and Safety Act requiring the school board to “develop arrangements to provide information to workers” regarding the risk of workplace violence from a person with a history of violent behaviour.

The school board appealed the Order. It argued that the inspector had not specified the basic facts underlining the “two examples” that were mentioned in the Order.

The Ontario Labour Relations Board suspended the Order.  It held that the Order essentially required the school board to comply with the OHSA, which it was already obligated to do.  Also, the school board could be prejudiced if it were required to “comply with an order that is unclear on its face”.  Finally, the OLRB doubted that deference should be given to the Ministry of Labour inspector when the Order was unclear on its face.

This case demonstrates that where Ministry of Labour inspectors do not state the facts underlying their compliance Orders, the employer may have a viable challenge to the Order.  Also, the OLRB will be more likely to suspend an Order when it simply repeats obligations in the OHSA.

Dufferin-Peel Catholic District School Board v Ontario English Catholic Teachers’ Association, 2014 CanLII 13515 (ON LRB)

MOL Inspector’s “Unclear” Order Required School Board to Revise its Workplace Violence Policy

Filed Late, Appeal of Inspector’s Order Dismissed

A recent Ontario Labour Relations Board decision illustrates the importance of timely filing of appeals of Ministry of Labour inspectors’ orders.  The OLRB confirmed that that it had no authority to hear late-filed appeals.

A Ministry of Labour inspector wrote compliance orders against the employer under the Occupational Health and Safety Act on November 19, 2013.  The employer filed its appeal with the OLRB on December 31, 2013, which was more than 30 calendar days later. 

The employer stated that this was the first time that it has completed an appeal, and had mistakenly understood that faxing appeal documents to the Ministry of Labour inspector was sufficient to start the appeal. 

The OLRB noted that the appeal must be filed with the OLRB, not the Ministry of Labour, within 30 calendar days of the date of the inspector’s Order, and that the appeal form makes that quite clear.  The OLRB stated that “it is apparent that the [employer] simply did not review the appeal form and Information Bulletin No. 21″ carefully enough.  However, the Ministry of Labour and OLRB are different entities, and the OLRB has no authority to extend the time for filing the appeal of the inspector’s order.

The appeal was therefore dismissed.

LifeLabs v. A Director under the Occupational Health and Safety Act, 2014 CanLII 2302 (ON LRB)

Filed Late, Appeal of Inspector’s Order Dismissed

Three months until July 1 training deadline: Update on Ontario’s new safety awareness training requirement

Ontario employers have less than three months left to ensure that their workers and supervisors get “basic occupational health and safety awareness training” before the July 1, 2014 deadline.

Our February 25, 2014 article set out “what you need to do” to comply with this new requirement.

We have been considering various strategies for our clients as to how to provide this training, and have been in touch with the Ministry of Labour. Here are some updates and additional insights for employers to consider.

Can you combine the worker and supervisor training into one joint in-person session?

There is substantial overlap between the required content of the worker and supervisor training sessions.

If your company will be delivering the training face-to-face not using the Ministry’s online e-module, and is considering combining the worker and supervisor training into one session for all employees, ensure that the session covers all of the required content in the Regulation – but also covers the material from the perspective of both workers and supervisors.

The new Regulation refers to a basic occupational health and safety awareness training program for workers and a basic occupational health and safety awareness training for supervisors. A Ministry of Labour inspector could argue that “for” means “from the perspective of” or “tailored to”. So if, for instance, in a joint session you present only the supervisor’s perspective on a particular safety topic, an inspector might say that you have not complied with the Regulation’s requirement to provide the training “for” workers.

Although the required content for the worker and supervisor training overlap to some extent, you can see from the safety awareness training materials prepared by the Ministry of Labour (see our February 25th article for hyperlinks to those materials) that the Ministry approaches these topics quite differently for workers and supervisors. When delivering the safety awareness training, it is important to ensure that for each topic, workers and supervisors understand the distinction between their respective roles and responsibilities, even if the topic itself – such as “duties and rights of workers under the Act” – is required content in both the worker and supervisor training.

If you are going to combine the worker and supervisor sessions into one joint session, the safest approach is to ensure that any combined training session satisfies all of the criteria in the Regulation while articulating the different perspectives, roles and responsibilities of workers and supervisors. This will likely make the joint session longer than worker-only or supervisor-only sessions would be, possibly defeating the benefit of combining the worker and supervisor sessions.

Must supervisors also take the worker training?

There is some legal debate, based on the wording of the Regulation, as to whether supervisors who complete the supervisor training before July 1st must also complete the worker training. The debate centres around when the Regulation “came into force”, since part of the Regulation came into force on November 14, 2013 and the rest will come into force on July 1, 2014. A Ministry of Labour representative has recently advised us that the Ministry’s position is that July 1, 2014 is the applicable date.

Based on the Ministry’s position, a supervisor will be exempt from completing the worker training if:

(a) the supervisor was performing work as a supervisor for the employer prior to July 1, 2014; and

(b) the supervisor completed a basic occupational health and safety awareness training program for supervisors that contains the required supervisor contents, before July 1, 2014.

As a result, employers should ensure that all supervisors take the supervisor training before July 1st, because if they do, it appears that the Ministry of Labour will not require them to also take the worker training.

What about supervisors outside Ontario who supervise workers in Ontario?

Where your company has a supervisor outside Ontario – for instance, in Calgary – who supervises a worker in Ontario, the safe approach would be to have the Calgary supervisor complete Ontario’s basic safety awareness training for supervisors. Although, except in very limited circumstances, the Ontario Occupational Health and Safety Act does not apply to supervisors or workers working outside Ontario, a Ministry of Labour inspector could take the position that the OHSA does require an Ontario employer to ensure that any person supervising Ontario workers take the training – even if the supervisor is not located in Ontario.

Revising your contractor agreement

Ontario employers are required to ensure that contractors – who are “workers” under the OHSA – working for the employer have taken the worker safety awareness training. We are suggesting that companies revise their template contractor agreement to include a clause in which the contractor confirms that he or she has completed the training and that he or she will provide proof.

E-learning modules need specific web browsers

If you plan to have your workers and supervisors complete the training through the Ministry of Labour’s online e-learning modules, ensure that your company’s computers have at least Internet Explorer 9 or Chrome 17, or they won’t be able to access the modules.

Keep checking www.occupationalhealthandsafetylaw.com for further updates on this topic, or e-mail us at adrian.miedema@dentons.com or chelsea.rasmussen@dentons.com.

 

Three months until July 1 training deadline: Update on Ontario’s new safety awareness training requirement

Failed to Register with WSIB? New “Voluntary Registration” Policy may Provide Mercy

Ontario’s Workplace Safety and Insurance Board has issued a new policy showing when the WSIB will punish – or show mercy to – employers that are required to register with the WSIB but have not done so.

The new policy took effect on February 1st, 2014.  Not all Ontario employers are required to register with the WSIB.

The policy provides that where an employer is legally-required to register with WSIB but has not done so, while remaining undiscovered by the WSIB, if the employer voluntarily contacts the WSIB and discloses the non-compliance, the WSIB may (note – not “will”) waive penalties, refrain from laying charges, and not require payment of retroactive WSIB premiums prior to the “effective date of registration” (which is considered to be the later of the date of the employer’s first hire or 12 months prior to the month in which the employer made voluntary disclosure to the WSIB).

The policy states that the WSIB will, however, not show mercy on employers who have been “identified” to the WSIB prior to the employer’s voluntary disclosure – whether by the WSIB’s own “proactive registration activities”, or by anonymous calls to the WSIB’s ominous-sounding “Action Line”.

The moral of the story is that employers that may be required to register with the WSIB and have not done so, should strongly consider contacting the WSIB voluntarily in order to obtain the benefit of the Voluntary Registration policy, and hopefully avoid significant retroactive premiums and penalties.

The Voluntary Registration Policy may be found here.

Failed to Register with WSIB? New “Voluntary Registration” Policy may Provide Mercy

Safety Committee Co-Chair Disciplined for Insubordination, Must Raise Matters in “Appropriate Forum”

A long-time co-chair of a plant safety committee has been disciplined after he confronted the employer in a “crew talk” meeting for failing to consult with the safety committee before implementing a new drug and alcohol policy.

The employer scheduled crew talk meetings to introduce employees to the policy and permit them to ask questions.  The co-chair, a welder, attended the crew talk meeting with the maintenance employees.  At the end of the meeting, the co-chair asked why the company had not involved the safety committee in the rolling out of the policy.  He became agitated and continued asking questions after management told him to stop.

The arbitrator decided that the co-chair’s “emotional impulse” about the safety committee not being consulted, caused him to engage in insubordinate behaviour at the crew talk meeting.  The co-chair’s long service of 29 years, and virtually clean disciplinary record, did not support the employer’s contention that this was a “premeditated offence”. Instead, it was “spur of the moment”.

The one-day suspension imposed by the company was set aside, and a written warning was substituted, which the arbitrator believed “will bring home to the grievor that insubordinate behaviour to management officials is inappropriate and wrong and that if he wants to raise such matters again in the future, he must do so in the appropriate forum.”

Tolko Industries Ltd v United Steelworkers, Local 1-417, 2013 CanLII 39125 (BC LA)

Safety Committee Co-Chair Disciplined for Insubordination, Must Raise Matters in “Appropriate Forum”

$75,000 Fine for Failing to Report Occupational Disease Claim

The Occupational Health and Safety Act obligation to notify the Ontario Ministry of Labour of accidents and occupational illness claims is not a mere technicality, as one employer has learned when it was hit with a $75,000.00 fine.

Three workers were assigned to dismantle equipment.  A worker was cutting the equipment when he saw a liquid substance emerge along with white smoke.  It was later learned that the equipment contained lead and that the worker had melted lead when doing the cutting.  Neither the worker nor his supervisor were aware that the equipment contained lead.

Later, two of the workers filed “occupational illness” claims with the Workplace Safety and Insurance Board for illnesses that had possibly resulted from the exposure to lead.  The employer was advised of these WSIB claims.  Although section 52(2) of the Occupational Health and Safety Act required that the employer report to the Ministry of Labour within four days of learning that a “worker has an occupational illness or that a claim in respect of an occupational illness has been filed with the Workplace Safety and Insurance Board by or on behalf of the worker . . .”, the employer did not notify the Ministry of Labour.

The employer was charged with and pleaded guilty to failing to notify the Ministry of Labour of the occupational disease claim.  The court imposed the fine of $75,000.00, merely for failing to report to the Ministry of Labour.

The Ministry of Labour’s press release on this case may be accessed here.

 

 

$75,000 Fine for Failing to Report Occupational Disease Claim

Class Action Proceeds Against MOL for “Negligent Inspection”

In a case that will be closely watched, an Ontario judge has permitted a class action lawsuit against the Ministry of Labour for “negligent inspection” of a workplace.

The case arises from the collapse of the roof-top parking deck at the Algo Centre Mall in Elliot Lake, Ontario, in which two people were killed and many more injured.

The class action was brought by owners of one of the restaurants in the mall, which was one of the businesses affected by the collapse.  The “class” of claimants included people in the mall at the time of the collapse, business tenants and employees working at the mall. 

The plaintiffs argued that Ministry of Labour inspectors had performed more than 130 inspections at the Mall over approximately 30 years, and had received numerous complaints about the condition of the mall and the dangers of water leakage problems.  The plaintiffs claimed that Ministry of Labour inspectors should have followed up with reasonable investigations and in failing to do so, they were negligent.  

The court stated:

“A government body such as the Ministry of Labour that exercises statutory power to conduct safety inspections owes a duty of care to all who may be injured as a result of a negligent inspection. Thus, for example, once the decision to inspect has been made, the court may review the scheme of inspection to ensure it is reasonable and has been reasonably carried out in light of all the circumstances, including the availability of funds, to determine whether the government agency has met the requisite standard of care.”

Although the Occupational Health and Safety Act provides limited liability-protection to Ministry of Labour employees, including inspectors, it expressly provides in section 65(2) that the Ministry of Labour itself may be held liable for acts of inspectors.

The judge therefore decided that the class action for “negligent inspection” could proceed against the Ministry of Labour.  It should be noted that the court has not yet found the Ministry of Labour liable, but simply said that the class action may proceed.

There are numerous other defendants in the class action, a group described by the court as “everyone involved in the planning, construction, inspection, ownership and maintenance of the shopping centre over the years”. That group includes the mall, the owners of the mall, the City of Elliot Lake, and a number of architects and engineers,

 Quinte v. Eastwood Mall, 2014 ONSC 249

Class Action Proceeds Against MOL for “Negligent Inspection”

OHS Consultant Loses OHS Reprisal Case

A health and safety consultant has lost his case against his employer, a health and safety association, in which he alleged that he had been retaliated against for raising safety issues.

The consultant alleged that his employer, the Public Services Health and Safety Association, took a number of actions against him including terminating his employment after he raised a number of concerns including excessive hours of work and extensive travel; harassment; the need for a policy on tracking, recording and granting time off; and the fact that he had requested time off to compensation for unpaid overtime that he said he had worked.

The consultant worked out of his residence and traveled around the province.

The Ontario Labour Relations Board stated that “there is no reliable evidence that the Applicant was in fact engaged in attempting to exercise his rights under the Occupational Health and Safety Act.  In particular, there was no evidence that he had raised any specific examples of employees working so many hours that a specific dangerous situation was created in which health and safety was compromised.

As a result, the OLRB dismissed the consultant’s safety-reprisal application.

 Joe Watkins, Applicant v. The Health and Safety Association for Government Services, c.o.b. as the Public Services Health and Safety Association, Responding Party v. Workplace Safety and Insurance Board, Intervenor, 2014 CanLII 2275 (ON LRB)

 

 

OHS Consultant Loses OHS Reprisal Case

July 1, 2014 Deadline to Comply with Ontario’s New Safety Awareness Training Requirements. Here is What you Need to Do

The clock is ticking.  All Ontario employers must provide their workers and supervisors with “basic occupational health and safety awareness training” by July 1st, 2014 or they will be in violation of a new regulation under the Occupational Health and Safety Act.  And employers’ in-house safety awareness training provided to workers in the past will likely not meet the new requirements.

This is an “if you do nothing, you will be in violation” regulation.

Who Must be Trained?

All workers and supervisors must be trained – even workers in jobs that are not considered hazardous. 

There are two types of safety awareness training: worker training and supervisor training, and the government dictates the contents of both.

What About Contractors?

The definition of “worker” under the Occupational Health and Safety Act can include contractors working for the employer.  Companies using contractors need to ensure that the contractors have received the safety awareness training.  Companies should consider revising their contractor agreement to include a clause requiring the contractor to ensure that all of the contractor’s employees who are supplied to the company have completed the safety awareness training.

Obligation is on Employer, not Employee

Every Ontario employer must ensure that their workers and supervisors complete the safety awareness training. The obligation is on the employer, not the employees.

What if the Employer Already Provided Safety Orientation?

If your company already provided safety awareness training to employees, you are not required to provide the new mandatory safety awareness program – as long as your training program includes all of the content required by the Ministry of Labour.  I expect that most employers will want to put all of their employees and supervisors through the new mandatory orientation, using the Ministry of Labour’s training materials, in order to avoid an argument down the road that the employer’s training program did not cover all of the required topics.  In particular, the new regulation requires that the worker and supervisor training cover “roles of the ministry, Workplace Safety and Insurance Board (WSIB), and Health and Safety Associations”, but those roles have recently changed, so one expects that most employers will not have covered that topic properly – if at all – in their existing in-house safety awareness program.

Deadline for New Employees, Supervisors

The deadline for providing the safety awareness training to current employees is July 1, 2014.  But for new employees hired after July 1, 2014, the deadline is “as soon as practicable” after they start working. For supervisors appointed to a supervisory position after July 1, 2014, the deadline is one week after starting to perform work as a supervisor.

How can the Training be Provided?

The training can be provided using the Ministry of Labour’s online “e-learning” modules, or by face-to-face sessions (group or individual) with employees.

Workbooks and E-Learning Tool

The Ministry of Labour makes a number of resources available to employers:

  • “Worker Health and Safety Awareness in 4 Steps” (worker workbook, 24 pages) is available here
  • “An Employer Guide to Worker Health and Safety Awareness in 4 Steps” (2 pages) is available here
  • “Supervisor Health and Safety Awareness in 5 Steps” (supervisor workbook, 32 pages) is available here
  • “An Employer Guide to Supervisor Health and Safety Awareness in 5 Steps” (2 pages) is available here
  • The e-learning training module for workers (45-60 minutes) is available here
  • The e-learning training module for supervisors (45-60 minutes) is available here 

The e-learning training includes a few short videos, and a number of quiz questions.

Employers May use Own Equivalent Materials

Employers may opt to use their own training materials, instead of the MOL’s materials. However, the training program for workers must include instruction on the following topics:

  • the duties and rights of workers under OHSA;
  • the duties of employers and supervisors under OHSA;
  • common workplace hazards and occupational illnesses;
  • the role of joint health and safety committees (JHSCs) and of health and safety representatives under OHSA;
  • roles of the ministry, Workplace Safety and Insurance Board (WSIB), and Health and Safety Associations; and
  • information and instruction requirements set out in the Workplace Hazardous Materials Information System (WHMIS) Regulation.

If employers use their own supervisor safety orientation program, the training program must include instruction on the following topics:

 

  • the duties and rights of workers under OHSA;
  • the duties of employers and supervisors under OHSA;
  • how to identify, assess and manage workplace hazards, the role of joint health and safety committees (JHSCs), and of health and safety representatives under OHSA;
  • roles of the ministry, Workplace Safety and Insurance Board (WSIB), and Health and Safety Associations; and
  • sources of information on occupational health and safety.

How Much Time does the Training Take?

The Ministry of Labour says that the worker and supervisor e-learning modules each take 45 to 60 minutes to complete.

Face-to-face sessions held by the employer can take as long as the employer wishes, but must cover all of the required material.

How Long is the Training Valid?

The training is valid for the employee’s working career. However, employers have an ongoing obligation, irrespective of this new safety awareness training requirement, to ensure that employees are properly trained at all times to do their job.

Maintaining a Record of Training

Employers must maintain a record of the training that is completed by workers and supervisors.  If the training is completed using the MOL’s e-learning training module, an employee will receive a certificate that is valid for the remainder of his or her career.

The employer must keep proof of the training for up to six months after the worker or supervisor stops performing work for the employer.

Exemptions

In the following two situations, workers or supervisors will not be required to complete the new worker safety awareness training:

  1. If a worker or supervisor has previously completed a worker safety awareness training program with a current or former employer that includes the required topics for worker safety awareness training listed above, he or she does not have to take the training again if he or she can provide proof of the training.
  2. A supervisor will not have to complete the worker training if:
    (a) the supervisor was performing work as a supervisor for the employer “prior to the Regulation coming into force”; and
    (b) the supervisor completed a basic occupational health and safety awareness training program for supervisors that contains the required contents listed above, “prior to the Regulation coming into force”.

Unfortunately there has been some legal debate and confusion as to whether the date of the “Regulation coming into force”, for the purposes of the above exemption, is November 14, 2013 or July 1, 2014, since parts of the Regulation came into force on each of those dates. The Ministry of Labour has recently advised us that, in its view, the date is July 1, 2014. That appears to mean that where a supervisor was working as a supervisor with the employer prior to July 1, 2014, and completed the supervisor safety awareness training program prior to July 1, 2014, the Ministry of Labour inspectors will not also require that the supervisor complete the worker safety awareness training program. After July 1st, however, that exemption will not be available.

If a supervisor has previously completed a supervisor safety awareness training program with a current or former employer that satisfies the required topics for supervisor training listed above, he or she will not have to take the supervisor awareness training again if he or she can provide proof of the training.

What Should Employers Do?

All Ontario employers should put a plan in place for ensuring that all workers complete the worker training, and all supervisors complete the supervisor training, by July 1st.  For office workers, the online e-learning module may be best. For others, the employer should consider holding face-to-face group training sessions with employees.

Here are some steps employers could take to work towards completing the training:

  1. Make a list of workers (not just “employees”)
  2. Make a list of supervisors
  3. Determine whether each worker and supervisor already received equivalent worker or supervisor safety awareness training (likely not)
  4. Plan how training will be done (e-learning or face-to-face sessions)
  5. Print paper copies of MOL materials for face-to-face sessions (if training provided face-to-face)
  6. For face-to-face sessions, gather other suggested materials, such as employer safety policies and procedures (see Ministry of Labour’s employer guides, linked above)
  7. Plan when training will be done: regular work day or on employee’s own time?
  8. Schedule training
  9. Set deadline for completing: May 31?
  10. Develop tracking / reminder system
  11. Decide who will keep training records and where

Consequences of Missing the Deadline

A Ministry of Labour inspector recently told me that, immediately after July 1st, inspectors will likely issue a reminder to employers who have not conducted the training by the July 1st deadline.  However, employers who still fail to complete the training will likely receive a compliance order, and in cases of ongoing failure, could be charged and fined.

Non-Compliance may be “Red Flag” to MOL Inspector

Just like failing to post all of the required health and safety materials on your bulletin board (see our article on posting requirements here), a failure to ensure that your workers and supervisors received the safety awareness training by July 1st may be a “red flag” for inspectors that your company is not on top of its safety obligations. Keep a file with all of the completion certificates handy, so you can quickly show the MOL inspector that all employees have been trained.

This Seems Complicated. What is the Simplest Way to Comply?

For many employers, the simplest way to comply is to send all employees and supervisors an e-mail with a link to the MOL modules and require them to complete the e-learning module, print off the completion certificate, and provide the certificate to you before July 1st.

The new regulation, which sets out the mandatory safety awareness training requirement, can be accessed here.

July 1, 2014 Deadline to Comply with Ontario’s New Safety Awareness Training Requirements. Here is What you Need to Do

$110,000 Fine Shows it’s Cheaper to Comply with Orders than Disregard Them

I recently wrote about the cost of failing to report accidents or occupational disease claims to the Ministry of Labour. The cost of failing to comply with an inspector’s orders can be even higher.

Harbour Sports Grille in Toronto received a number of orders from a Ministry of Labour inspector over a period of 6 months.  The company failed to comply with 13 of those orders.  The orders dealt with a number of issues including failing to set up a joint health and safety committee and failing to have required policies and programs (such as harassment and workplace violence) in place.  The Ministry of Labour charged the company under the Occupational Health and Safety Act with failing to comply with those 13 orders.

The company fought the charges and lost.  The presiding justice of the peace imposed a fine of $110,000.00.  One suspects that it would have been cheaper to comply with the orders.

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

 

$110,000 Fine Shows it’s Cheaper to Comply with Orders than Disregard Them

Wave of Harassment Cases Coming to OLRB? New Decisions Cause Concern

May an employee, unhappy with how he or she was treated after filing a harassment complaint with the employer, turn to the Ontario Labour Relations Board for a remedy?  Up until recently, the answer appeared to be “no”. Two recent decisions of the OLRB suggest otherwise.

In a November 2013 decision called Ljuboja v Aim Group Inc., Jesse Nyman, a Vice-Chair of the OLRB, rejected earlier OLRB decisions and decided that an employee may complain to the OLRB where he or she has suffered a reprisal for filing a harassment complaint with the employer.

In a decision called Murphy v The Carpenters’ District Council of Ontario, decided on January 23, 2014, another Vice-Chair of the OLRB, Brian McLean, somewhat reluctantly agreed to follow Vice-Chair Nyman’s decision:

“At the time of the hearing of this matter, there had been no settlement in the Board’s jurisprudence regarding whether the making of a harassment complaint constitutes the exercise of a right under the OHSA (see Investia, 2011 Can LII 6089 and Kazenel v. Citi Cards Canada Inc., 2012 Can LII 9582 etc).  In a decision issued after the hearing in the matter before me was completed, the Board (differently constituted) rejected the Investia reasoning and found that the making of a complaint under an employer’s harassment policy constitutes seeking the enforcement of the Act (see Ljuboja v. A.I.M. Group Inc., 2013 CanLII 26528).  While I have some difficulty with the reasoning in that decision, I recognize that it is within a range of possible results and in the interests of consistent decision making regarding the Board’s interpretation of the OHSA, I accept it.”

These two recent decisions are concerning.  The language of the Occupational Health and Safety Act suggests that harassment complaints are to be dealt with internally – by the employer and employee – and not to be brought to the OLRB.  The OHSA language suggests that only if an employer has not implemented a harassment policy and program, or not ensured that the program contained the contents required under the OHSA, failed to post the policy, or failed to provide “information and instruction” to employees on the policy and program, may an employee complain to the OLRB.  Put another way – and this is often misunderstood - the OHSA does not place a legal obligation on employers to prevent harassment, so the OLRB has no authority to hear a complaint that the employer failed to prevent harassment or did not handle a harassment complaint properly.

The two recent decisions effectively permit employees, unhappy with the result of a harassment complaint, to allege “reprisal” and bring the case to the OLRB.  If the law indeed allows that, one is concerned that the OLRB will receive a wave of such complaints that should be dealt with internally.

Of course, as before, complaints dealing with harassment because of race, gender, sex and other prohibited grounds of discrimination under the Human Rights Code may be brought to the Human Rights Tribunal.  The OLRB decisions do not change that.

We will continue to monitor the caselaw and provide updates on this blog.

Wave of Harassment Cases Coming to OLRB? New Decisions Cause Concern

Engineer Now Facing Both Criminal Negligence, OHSA Charges in Mall Collapse

Police have laid criminal negligence charges against an engineer in relation to the Elliot Lake mall collapse in June 2012.

The charges against engineer Robert Wood are two counts of criminal negligence causing death and one count of criminal negligence causing bodily harm.

Police say that Mr. Wood was an engineer who was involved in the inspections of the building.

A well-publicized judicial inquiry into the collapse of the mall heard that the roof had leaked for many years and the steel support structure was severely rusted.

In April 2013, media reported that Mr. Wood was also charged with offences under Ontario’s Occupational Health and Safety Act relating to negligent advice.

The Occupational Health and Safety Act permits the Ontario Ministry of Labour to lay charges against a professional engineer or architect where, “as a result of his or her advice that is given or his or her certification required under this Act that is made negligently or incompetently, a worker is endangered.

Criminal negligence charges against engineers are rare, as are charges against engineers under the Occupational Health and Safety Act.  This will be an important case for engineers and safety professionals to watch.

CBC News’ report may be accessed here.

Engineer Now Facing Both Criminal Negligence, OHSA Charges in Mall Collapse

Employer did not discourage workers from reporting accidents to WSIB: WSIAT

A worker who delayed reporting an alleged workplace accident has claimed that his employer discouraged employees from reporting, but the Ontario Workplace Safety and Insurance Appeals Tribunal has rejected that claim. The decision illustrates the importance of maintaining a practice of promptly reporting accidents to the WSIB.

The worker worked with a roofing company.  He filed a claim with the Workplace Safety and Insurance Board on April 3, 2008 alleging that he was injured in a slip-and-fall accident at work three months earlier.  He claimed that he had told his supervisor who “made light” of the situation and laughed about it.

Interestingly, the worker claimed that reporting of accidents and filing of WSIB claims was  discouraged in the roofing industry, and that he feared losing his job if he filed a WSIB claim.  He said that the failure of his employer to acknowledge that his injuries were work-related was the result of its general practice of discouraging reporting of workplace accidents.

The WSIB had opened an investigation into the worker’s allegations that his employer discouraged accident reporting, but the investigation was closed with no action taken.

The WSIAT decided:

“. . . I cannot conclude on a balance of probabilities that the employer discouraged employees from reporting work-related accidents.  At best, the evidence provided by the witnesses established that roofing is a physically demanding line of work and workers frequently sustain a variety of bumps, bruises, cuts and burns.  I interpret the evidence of the witnesses to suggest that workers would normally just ‘shake these injuries off’ and would not report them as WSIB matters.  . . . The employer’s witnesses were consistent in their testimony that if there was a serious enough injury, they would report it to their foreman, who would report it to the supervisor, who would report it to the owner.  The evidence fails to satisfy me, on a balance of probabilities that workers were at risk of losing their jobs if they filed a WSIB claim.”

Given the evidence of the employer’s practice of reporting accidents, and in light of the fact that the worker had not sought medical attention on the day of the alleged accident and that it was not until two months later that his physicians became aware of the alleged accident, the worker’s claim for WSIB benefits was denied.

Decision No. 2286/11, 2013 ONWSIAT 1644 (CanLII)

Employer did not discourage workers from reporting accidents to WSIB: WSIAT

Employer may set “terms of reference” for health and safety committee, arbitration board rules

Employers have the power to set terms of reference for the administration and operation of joint health and safety committees, as long as those terms are not different than those in the Ontario Occupational Health and Safety Act, an arbitration board has ruled.

The employer amended the terms of reference for its joint health and safety committee.  The union objected to some of the changes, including: the committee would be a subcommittee of the Employer’s Senior Leadership Committee (SLC); the College’s Manager of Environmental Health and Safety Service would act in an advisory capacity on the committee – albeit without a vote -  in addition to the four management members; the committee would meet five times per year (the union wanted ten times); the maximum duration of any meeting would be three hours; notice would be required to be given for the appointment of new members; a co-chair could serve for a maximum of two years; members would be required to maintain confidentiality; and members must maintain an activity log.

The arbitration board decided that it is the employer’s obligation under OHSA to establish and maintain the joint health and safety committee. As a result, there was nothing inherently improper in setting terms of reference for the efficient operation of the committee and to ensure compliance with the OHSA.

The arbitration board stated that the employer may not set rules for the appointment of worker members of the committee that are different than those in OHSA, unless those rules were agreed to.  This meant that the employer may not, without union agreement, place restrictions not found in OHSA on the right of the workers to choose their representatives.  Also, the employer may not impose term limits on the appointment of worker co-chairs that are not present in the OHSA, unless agreed to.  Finally, any members properly chosen by the workers to sit on the committee should not be prevented from sitting on the committee by new rules that have not been agreed to by the committee. 

Fanshawe College v Ontario Public Service Employees Union Local 110, 2013 CanLII 66173 (ON LA)

Employer may set “terms of reference” for health and safety committee, arbitration board rules

Entire vehicle was a “workplace” under OHSA even when only transporting employees, says OLRB

In a decision that affirms a broad definition of “workplace” under the Ontario Occupational Health and Safety Act, the Ontario Labour Relations Board has ruled that hydro trucks, including their aerial lift buckets, were “workplaces” under that Act even while they were simply being used to transport employees.

The trucks were on the way to work locations when they were required to enter a Ministry of Transportation inspection area beside a highway. Interestingly, a Ministry of Labour inspector was also present at the inspection site and laid certain orders under the Occupational Health and Safety Act in relation to the trucks. The orders required the employer to provide certain documentation, and also dealt with certain safety concerns relating to the operation of the step system used to access the aerial lift bucket.

Hydro One argued that in order for a Ministry of Labour inspector to have jurisdiction to issue an order under the Occupational Health and Safety Act, the order must be issued at the workplace where the equipment (here, the aerial lift bucket apparatus) is to be used.  Hydro One argued that aerial lift bucket apparatus was not a “workplace” when the truck was being used solely to tranport employees, although the rest of the truck would be a “workplace” during the transportation.

The OLRB stated:

“The equipment [aerial lift bucket apparatus] in question is physically incorporated into the vehicle; it is equipment that is and was en route to being used by the very same employee operating the vehicle in question . . . If the employer’s analysis is accepted, i.e. that an order (request) must issue at the workplace and if that did not happen in the instant case, the employer acknowledged that an inspector faced with an obvious safety deficit could follow the vehicle in question to the workplace where the derelict equipment was to be used and properly issue an order there.  I am unable to see how requiring an inspector having full knowledge of facts otherwise warranting the issuance of an order to follow the equipment in question to the workplace before issuing an order is a sensible policy result. It is difficult to see how the spectre of inspectors, whether by stealth or in ‘hot pursuit’, following derelict equipment along highways and thoroughfares and unable to intervene until the inspector, the equipment and the employee in question are all at the ‘proper’ workplace is consistent with the rational administration and effective enforcement of the legislated workplace safety scheme.

Hydro One Networks Inc v Thisdelle, 2013 CanLII 67867 (ON LRB)

Entire vehicle was a “workplace” under OHSA even when only transporting employees, says OLRB

OLRB has no authority to order government investigation of safety-reprisal complaint

The Ontario Labour Relations Board has held that it has no authority to order the Ontario Ministry of Labour to conduct an investigation into an employee’s safety-reprisal complaint, nor could the OLRB base its decision on the results of any such investigation.

The employee, in his safety-reprisal application to the OLRB, stated:

“Therefore, I am requesting the Ontario Labour Relations Board to order a full investigation using any government authority that is appropriate to carry out this investigation. I am asking the Board to make it’s [sic] decisions based on the outcome of this investigation if the investigation is ordered.”

The OLRB held that it had “no authority to do so in any circumstances, and certainly not in a section 50 application.  The Board will deal with appeals from an inspector’s decision or failure to make a decision.  In a section 50 application the Board will adjudicate a claim that an employer has take action against a worker for exercising a right under the Act.  That is a dispute between an employer and a worker and does not involve the Occupational Health and Safety Branch at all.”

Mr X v TJX Canada/Winners Merchants International, 2013 CanLII 68260 (ON LRB)

OLRB has no authority to order government investigation of safety-reprisal complaint

“Cardinal Rule” Safety Violation Warranted 6-Month Suspension, Last-Chance Order

A millwright who violated his employer’s “Cardinal Rules” by committing a lock-out violation, deserved a six-month suspension and with a last-chance stipulation, an arbitrator has held.  The company’s decision to dismiss the employee was overturned.

The employer had five Cardinal Rules of safety.  Cardinal Rule #3 read, “Isolation and lock out procedures must always be followed.”

The employee could not locate the switch to turn off electrical power to equipment that he was asked to fix.  He decided that instead of locating and isolating the power source, he would disconnect electrical wires and put tape on the exposed wiring.  Apparently the tape came off one of the wires and it touched another wire which caused sparks and an electrical short. No one was injured.

Three months earlier, the employee had received a one-day suspension for what the arbitrator called an “identical first offence”.

The arbitrator found that both safety violations occurred in low-risk situations. There was no injury, no damage to property and no evidence of lost production.  The employee’s decision was influenced by his desire to complete the task in the time alloted to him and not for selfish reasons.  At the same time, the arbitrator acknowledged that his decision must deter other employees from violating safety rules.  The arbitrator reinstated the employee with a six-month suspension, and imposed a condition that should the employee “commit any safety violation” in the one year following his reinstatement, the employer would have just cause to dismiss him.

Re Dufferin Concrete and Teamsters Local No. 230, 2013 CanLII 61486 (ON LA)

“Cardinal Rule” Safety Violation Warranted 6-Month Suspension, Last-Chance Order

Post-Accident Safety Fixes: An Admission of Liability?

We are often asked whether post-accident fixes or improvements by an employer will be held against it if occupational health and safety charges are laid. For example, if an employer puts a guard on a machine after an employee was injured on the machine, will the court see the installation of the guard as an admission that the machine was not properly guarded?

Employers sometimes feel that they are caught between implementing the fix and risking having it be seen as an admission of liability, or not implementing the fix and risking a higher fine if convicted or being charged with violating a government order to fix the machine. Of course, most employers will be motivated to do what is right and install a fix if needed for safety reasons, regardless of whether that increases the risk of charges or fines; however, the possible risks should be considered. In some cases, quick implementation of the safety fix could actually help avoid charges.

It appears from the caselaw that post-accident safety fixes will, generally, not be considered an admission that an employer violated a safety rule, but may be considered by a court in determining whether the employer exercised due diligence (took all reasonable steps to prevent the violation) or had knowledge of the hazard. For example, the installation of a guard after an accident will likely not be an admission that a guard should have been in place, but it will be relevant to whether the employer, before the accident, took all reasonable steps to ensure that the machine was properly guarded.

In the recent case of R. v. Reliable Wood Shavings Inc., 2013 ONCJ 518, the court stated, “I believe that I can look at post accident conduct in assessing what was reasonable in all of the circumstances . . . What I cannot do is treat them as an admission of liability.”

On the plus-side, post-accident fixes will often lead to lower fines if a company is convicted of a safety offence, as the court will see the employer’s proactive safety fix as a sign of the employer’s commitment to safety. The cost of the fix will often also be considered by the court in setting the amount of the fine.

In one case, the Ontario Food Terminal Board made changes and modifications to the roadways within its facility, including the installation of several stop signs, concrete barriers, and signs around the area where the accident had occurred, after a workplace accident that eventually led to the worker’s death. While the OFTB was convicted of safety offences and fined $65,000, the Justice of the Peace did not view the post-accident actions as admissions of guilt or negligence. The court held that subsequent improvements by a defendant are not a basis for a finding of liability for safety offences, but will be considered in determining whether the employer exercised due diligence or had prior knowledge of the hazard.

An employer should consider, when faced with an accident, how post-accident fixes or improvements could be viewed by the court if the employer is charged. The question is usually not whether to implement the fix, but how to do it in a way that maximizes safety while minimizing legal risk. Advice from an occupational health and safety lawyer should be obtained, and if possible the work should be documented in a manner that confirms that it is not an admission of liability.

Post-Accident Safety Fixes: An Admission of Liability?

Inspector’s Opinion Beat Engineer’s in Request to Suspend OHSA Compliance Order

The Ontario Labour Relations Board has deferred to the opinion of a Ministry of Labour inspector over that of an engineer in refusing to suspend a compliance order issued by the inspector under the Occupational Health and Safety Act.

The OLRB held that, where an employer seeks to have a compliance order suspended pending an appeal of that order, the OLRB “is reluctant to second-guess the judgement of an Inspector who has had the opportunity to attend at the site and observe the operation with a focus on safety.”

The employer was using a “fabricated attachment” on a Komatsu excavator to hoist pre-case concrete panels from a truck onto a bridge deck.  The Ministry of Labour inspector held that the excavator was not intended to hoist materials in this manner, and ordered that the practice stop.

The employer appealed the inspector’s order and asked to have it suspended pending the appeal.  The employer relied on the written opinion of a professional engineer who determined that there was an adequate factor of safety against tipping of the excavator.  The Ministry argued that a crane should be used instead of an excavator.

The OLRB stated that the Ministry had raised a number of issues regarding the professional engineer’s analysis and the methodology used to test the fabricated attachment, and that those issues were significant enough to raise questions about worker safety, particularly where the employer did not call any witnesses on its suspension request but simply made submissions.

Toronto Zenith Contracting Ltd. v. Health and Safety Act, 2013 CanLII 57229 (ON LRB)

Inspector’s Opinion Beat Engineer’s in Request to Suspend OHSA Compliance Order

Arbitrator May Not Award Damages for Workplace Injury where Worker Entitled to WSIB Benefits

An employee who was entitled to Workplace Safety and Insurance Board benefits for a workplace injury could not also obtain damages through arbitration, a labour arbitrator has decided.

The employee, a track worker with the Toronto Transit Commission, was injured while removing old pieces of “running rail” and replacing them with new ones at the “Wilson Station cross-over”.  He applied for and received benefits from the Workplace Safety and Insurance Board.  He later returned to work in an accommodated position.

The arbitrator held that it was clear that the TTC breached its obligations under the Occupational Health and Safety Act in a number of ways.  The union argued that the employer’s breach of the Occupational Health and Safety Act was also a violation of the “management rights” clause of the collective agreement, entitling the employee to damages for the breach and the injury.

However, the arbitrator stated, section 26(2) of the Workplace Safety and Insurance Act precluded an award of damages in respect of the injury, because entitlement to WSIB benefits was in lieu of all other “rights of action” that the employee had against the employer by reason of the accident.  In effect, the employee was entitled to the WSIB benefits only, not to any other damages from the employer.

Amalgamated Transit Union, LOCAL 113 v Toronto Transit Commission, 2012 CanLII 97799 (ON LA)

Arbitrator May Not Award Damages for Workplace Injury where Worker Entitled to WSIB Benefits