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B.C. Appeal Court Clarifies Workplace Accident Reporting Obligations

The employer of the injured worker, not the owner of the workplace, was required to report the worker’s injury, the B.C. Court of Appeal has held, in a decision that clarifies employers’ accident reporting obligations.

The worker was injured while working on a powerline owned by British Columbia Hydro and Power Authority. The worker worked for a contractor to B.C. Hydro.

The Workers’ Compensation Board of British Columbia issued an order citing B.C. Hydro for failing to report the accident. The order referred to section 172(1)(a) of the Workers Compensation Act, which provides:

“An employer must immediately notify the Board of the occurrence of any accident that (a) resulted in serious injury to or the death of a worker”.

B.C. Hydro argued that it was not the worker’s “employer”. The Board maintained that the reporting obligation applied to “an employer” – not just the employer of the injured worker. “An employer”, said the Board, should include the owner of the worksite because it had a significant connection to the worksite and was in the best position to provide the timeliest notification to the Board.

The court decided that the Board’s decision was unreasonable. B.C. Hydro was not legally required to report the accident to the Board.  The Act did not impose a duty on owners to report accidents. Further, requiring owners to report accidents under s. 172(1)(a) would effectively require owners to carry out other obligations of “employers” under the Act including investigating the accident, preparing an accident report, and taking corrective actions. The legislature could not have intended to impose all of those obligations on owners.

In conclusion, the worker’s employer was required to report the accident to the Board, but B.C. Hydro was not.

Although the B.C. Court of Appeal did not mention the Ontario Court of Appeal’s recent Blue Mountain Resorts Limited  decision, which dealt with accident reporting obligations in Ontario, both decisions attempt to bring clarity and consistency to the government’s interpretation of accident-reporting requirements.

British Columbia Hydro and Power Authority v. Workers’ Compensation Board of British Columbia, 2014 BCCA 353 (CanLII)

B.C. Appeal Court Clarifies Workplace Accident Reporting Obligations

No damages awarded for unforeseeable workplace assault, but employer ordered to rewrite harassment policy

The fact that an employee had engaged in harassment did not make it foreseeable that he would assault a coworker, a labour arbitrator has held.  However, the company’s harassment policy was deficient and needed to be rewritten.

The decision arose from a union grievance alleging that the employer had not provided an injury-free workplace.  An employee, Kryzanowski, alleged that another employee, Wilson, had struck him in the head from behind with a “rather substantial sized plastic lunch pail”. The union alleged that the company had breached the collective agreement and the Saskatchewan Occupational Health and Safety Act because of its actions or inactions both before and after the incident.

The arbitrator stated that there was no doubt that the assault constituted harassment as defined in the OHSA.  ”A serious physical assault, such as this one, is perhaps the most profound single incident of harassment that exists.”  However, according to the arbitrator, the core question was whether the company, through its management personnel and supervisors, knew or should have known that Wilson was a physical threat to other employees and failed to take steps to prevent it.

The arbitrator decided that although Wilson had demonstrated “meanness and bullying” behaviour towards Kryzanowski through numerous disrespectful comments, and the company’s management were sufficiently aware of Wilson’s conduct to know that he was mean-spirited and had anger problems, none of his previous actions were physical alterations and there was no evidence that he was on the verge of physically attacking a fellow employee.  The assault was not foreseeable by the company.

As such, Kryzanowski was not entitled to damages for the assault.  However, the company was ordered to keep Wilson and Kryzanowski on different shifts and direct Wilson to have no contact with Kryzanowski.

Lastly, the arbitrator found that the company’s harassment policy did not comply with the OHSA and regulations in that it was not kept current and did not include specific contents required by the regulations.  The arbitrator ordered the company to “take immediate steps to comply with the Occupational Health and Safety Act by writing its harassment policy to be compliant with the Act and regulations.”

Shaw Pipe Protection Limited v Construction and General Workers’ Local Union No 180, 2013 CanLII 94439 (SK LA)

No damages awarded for unforeseeable workplace assault, but employer ordered to rewrite harassment policy

MOL safety blitz results show many new businesses non-compliant with basic requirements

The results of a recent Ontario Ministry of Labour safety blitz shows many new small businesses violate basic legal requirements such as posting a copy of the Occupational Health and Safety Act.  And non-compliant employers can expect future visits from MOL inspectors.

The MOL says that between April 1, 2013 and March 31, 2014, its inspectors visited new small businesses in the industrial sector that had fewer than 20 workers.  The MOL says that it focused on “businesses that had registered with the Workplace Safety and Insurance Board (WSIB), but had no prior contact with the ministry.”

Some of the  most common compliance orders issued by MOL inspectors in the blitz were: post a copy of the Occupational Health and Safety Act; prepare a health and safety policy and maintain a program; have a worker health and safety representative; have the health and safety representative conduct monthly inspections; provide “information and instruction” on workplace harassment; and maintain a workplace violence prevention program.

The MOL states that inspectors visited workplaces in the industrial sector including retail establishments, restaurants, wood and metal fabrication establishments, industrial services, wholesalers, automotive manufacturers and vehicle sales and service workplaces.

The MOL’s  enforcement initiative is being repeated in the 2014-2015 fiscal year, with each MOL industrial inspector expected to inspect four to eight small businesses with 50 or fewer workers, which have not been previously registered or inspected by the ministry. The MOL says that this initiative will “increase small business awareness of the workplace parties’ roles and responsibilities under OHSA and its regulations”, “promote awareness and compliance with new mandatory occupational health and safety training for workers and supervisors that came into effect on July 1, 2014″, and “support vulnerable workers by making them aware of their rights under the OHSA and the resources available to help them”.

As we have previously advised, employers should, in particular, ensure that they prepare and post all required postings under the OHSA, since doing so will show the MOL inspector that the employer is aware of its basic obligations and has a safety program in place.  See here for our article on health and safety posting requirements in Ontario.

MOL safety blitz results show many new businesses non-compliant with basic requirements

Employer asks HRTO for permission to access employer’s own “Occupational Health and Claims Management” file on employee

Must an employer obtain permission from the Human Rights Tribunal of Ontario to access medical records held in the employer’s own file on an employee who filed a human rights complaint with the Tribunal? That question is raised by a recent Tribunal decision.

The employer submitted that Tribunal authorization was necessary “because there may be a conflict with respect to privacy standards required by applicable legislation. The respondent indicates that the expectations and protections under the Personal Health Information Protection Act, 2004 . . . for health information custodians regarding disclosure may be different from the duty imposed on employers by the Occupational Health and Safety Act . . . The respondent submitted that the Tribunal has granted the orders it seeks in other cases in which similar circumstances arose.”

The employer was likely referring to subs. 63(2) of the OHSA which states:

“No employer shall seek to gain access, except by an order of the court or other tribunal or in order to comply with another statute, to a health record concerning a worker without the worker’s written consent.”

Because the employee alleged disability-discrimination relating to her post-traumatic stress disorder, the Tribunal was satisfied that some but not all of the documents contained in the Occupational Health and Claims Management file were arguably relevant and that the employer required access to them in order to meaningfully respond to the employee’s human rights complaint.  Access was granted.

The case illustrates that employers seeking to use information in an employee medical file for litigation purposes should proceed cautiously and should seek a court or Tribunal order if necessary.

Feres v. Toronto Transit Commission, 2014 HRTO 980 (CanLII)

Employer asks HRTO for permission to access employer’s own “Occupational Health and Claims Management” file on employee

MOL permits employer to have multi-workplace joint health and safety committee, union’s challenge dismissed

A union has lost a request to suspend a Ministry of Labour Director’s order allowing a school board to establish a multi-workplace joint health and safety committee.

The Ontario Occupational Health and Safety Act requires a joint health and safety committee at each workplace where twenty or more workers are regularly employed.  The default rule under the OHSA is that each workplace should have its own committee.  However, the Minister of Labour or his or her delegate has the power to make an Order permitting one joint health and safety committee to cover multiple workplaces.

The Peel District School Board received an Order from a Ministry of Labour Director permitting it to establish and maintain a multi-workplace joint health and safety committee according to certain “terms of reference”.

The Canadian Union of Public Employees challenged the MOL Director’s multi-workplace Order at the Ontario Labour Relations Board, and asked the OLRB to suspend that Order pending the outcome of the appeal.

The OLRB refused to suspend the Order, deciding that the OLRB “appears to have no jurisdiction to deal with anything but an inspector’s order”, not an Order of the Minister of Labour or an MOL Director.  As such, the OLRB had no authority to suspend the multi-workplace Order.

This decision shows that when one workplace party asks the Minister of Labour to permit a multi-workplace joint health and safety committee, the time for parties to make submissions is before the Minister (or MOL Director) makes his or her decision.  Effectively, there is no appeal to the OLRB.

Canadian Union of Public Employees v Peel District School Board, 2014 CanLII 38304 (ON LRB)

MOL permits employer to have multi-workplace joint health and safety committee, union’s challenge dismissed

Notes taken post-accident can lose privilege if used to refresh memory, court decision suggests

Privileged notes taken by a witness – or by the employer from a witness – after a workplace accident may cease to be privileged if used by the witness to prepare to testify in court, a recent court decision suggests.

The case, which was not an occupational health and safety case, involved charges of refusing to provide an “Approved Screening Device” sample. The charge is often laid where a driver refuses to blow into a breathalyzer to determine whether he or she was driving while impaired.

The accused testified that he had made notes after the incident, as his father had told him to write down everything that he remembered, word for word.  At trial, he testified that he had read the notes to prepare for trial.

The judge decided that the accused had used the notes to refresh his memory, and therefore the litigation privilege over the notes was lost.  The judge decided:

“When the accused chooses to refresh his memory from notes to which litigation privilege would otherwise apply prior to taking the stand, the Crown is entitled to see such notes subject to the court’s discretion. An accused person who has prepared notes to refresh their memory and uses those notes to the refresh their memory prior to testifying has waived any litigation privilege attached to those notes. It is important that the opposing party have the opportunity to test the memory of events and expose inaccuracies in memory.”

Employers facing Occupational Health and Safety Act charges should understand that notes that would otherwise be litigation-privileged that are taken by the employer after a workplace accident may lose their privilege, and therefore be obtained by the prosecutor, if used by a witness to refresh his or her memory before testifying.

R. v. Sachkiw, 2014 ONCJ 287 (CanLII)

Notes taken post-accident can lose privilege if used to refresh memory, court decision suggests

“Red flags” were used to assess workplace violence threat; employer’s request for psychiatric assessment was justified

The Human Rights Tribunal of Ontario has ruled that the City of Toronto was justified in requiring an employee to obtain a psychiatric assessment because of “red flags” which included a comment, “Do you want me to die?”

The employee’s handling of a tense security-related incident involving anti-poverty activists was questioned.  When asked by a City security supervisor for more information about the incident, the employee said, “Do you want me to die?”   The supervisor testified that he found the comment, “Do you want me to die?” to be concerning and that he felt that he had an obligation to follow up for health and safety reasons. He testified that he was concerned as he did not know what was going on in the applicant’s mind.

Shortly afterwards, the City told the employee that it had made an appointment with a psychiatrist for him to obtain an assessment. The employee testified that he felt humiliated, but that he decided to go for the psychiatric assessment to prove that he was “mentally fit”, but that he also filed a complaint with the City’s Human Rights office due to the “coercive” act of sending him for a psychiatric assessment.  The employee’s supervisors did not receive the assessment report, but were simply told that the employee was fit to return to work without any restrictions from doing the tasks of the job.

The Tribunal decided that the referral to the psychiatrist was reasonable given that there were “red flags” present, as the City representatives were acting in good faith out of concern for health and safety and had determined that it would not be appropriate to impose discipline on the employee for his actions if they were related to a disability.  Also, there was no evidence that the City had broken confidentiality.

With respect to the “red flags”, the City’s Manager of Security and Life Safety had testified that there are “red flags”, which are relevant in assessing a workplace violence threat, which include “a lack of an immediate support system, a preceding event . . . and a change in character.” He said that the “red flags” that the City had identified were: “the applicant lived alone, was emotional, had stated ‘Do you want me to die?’ . . . and he had been uncharacteristically insubordinate.”

This decision suggests that where an employee’s behaviour raises “red flags” about his or her mental health such that the employee’s – or other employees’ – safety may be at issue, an employer may be justified in requiring the employee to submit to a psychiatric assessment.  In general, the employer is not entitled to receive the assessment report but is entitled to receive the assessor’s determination as to whether the employee is fit for work and able to work safely.

Mokri v. Toronto (City), 2014 HRTO 853 (CanLII)

“Red flags” were used to assess workplace violence threat; employer’s request for psychiatric assessment was justified

Are supervisors able to assess impairment? Drug driving decision suggests so

A recent Ontario decision suggests that laypersons - such as supervisors – may assess whether a person is impaired from drugs or alcohol, and their assessment will be considered in legal proceedings.

In a “drug driving” case, a driver was found guilty of driving while impaired by marijuana.   A police officer approached his vehicle and observed him as having bloodshot, glassy eyes and the smell of marijuana was coming from the vehicle.  The driver’s pupils were dilated. The driver admitted to having smoked a “J” approximately 2 1/2 hours earlier.  He was taken to a police station where another officer, a “drug recognition evaluator”, observed him and performed certain physical and other tests, and concluded that he was impaired.

The driver argued, on appeal, that the drug recognition evaluator should not have been accepted by the trial judge as an “expert” witness on drug recognition.  The appeal court disagreed, going on to state that the courts have had a long-accepted practice of admitting evidence of non-expert witnesses about whether a person was intoxicated or impaired.

Interestingly, a urine test came back negative for THC, the active ingredient in marijuana that causes physical impairment, but the court still decided that based on the police officers’ observations and assessments, the driver was impaired when he was driving (even if he was no longer impaired when the urine sample was taken).

The appeal court referenced the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations, which are used by police officers who are “certified drug recognition experts” to evaluate whether a driver is impaired by drugs or alcohol. Those Regulations set out a number of tests that those officers can perform to assess whether the person is impaired.

Supervisors often question whether they have the expertise to assess whether an employee is impaired. This decision suggests that supervisors’ observations are important and will be relevant evidence in legal proceedings, such as a wrongful dismissal action by an employee who was dismissed for being impaired at work.  Supervisors tasked with identifying impairment should, preferably, be given training and materials (such as a checklist) to help them in the task.

R. v. Henry, 2014 ONSC 4115 (CanLII)

Are supervisors able to assess impairment? Drug driving decision suggests so

Saskatchewan Introduces Ticketing System for Certain Workplace Safety Violations

As of July 1, 2014, Saskatchewan employers who violate certain occupational health and safety laws may be issued a Summary Offence Ticket, which carry fines ranging from $250 to $1,000, depending on the offence (plus victim surcharges).

According to the Saskatchewan Ministry of Labour Relations and Workplace Safety, these tickets are intended to avoid time-consuming and costly prosecutions, while serving as a deterrent to those who are non-compliant with occupational health and safety laws in Saskatchewan workplaces.

Two designated Occupational Health Officers will be issuing tickets for the 12 ticketable offences, which include failing to ensure that workers use personal protective equipment ($1,000); failing to ensure that workers use a fall protection system where a worker may fall three metres or more ($1,000); failing to submit a written progress report ($600); and failing to ensure that any opening or hole is covered and clearly marked or otherwise protected ($1,000).

It is likely that most tickets will be issued to employers, contractors, owners, self-employed persons and suppliers.  There is one offence that applies to workers: clear failure to use personal protective equipment that has been provided by the employer ($250). However, a worker will be ticketed only after the officer determines that the employer provided the worker with the correct PPE, adequately trained the worker on its use, and the worker disobeyed clear direction to use the PPE.

These safety tickets are like speeding tickets – they will typically be issued either on the spot or sent by mail after an officer has assessed the situation and facts on the ground.  Further, everyone who receives a ticket has the right to challenge it in court.

The government indicates that before issuing tickets, officers will assess the severity of the situation and will first try to use other tools, including Compliance Undertakings, Officer’s Reports, Notices of Contravention and Stop Work Orders.  Further, tickets will only be issued where all other avenues to ensure compliance with health and safety in the workplace have been exhausted or are ineffective.

The Saskatchewan Ministry of Labour Relations and Workplace Safety has prepared an overview of Summary Offence Ticketing.

Saskatchewan Introduces Ticketing System for Certain Workplace Safety Violations

Safety committee members lose claims that employer retaliated against them

Disciplinary letters issued to three members of a safety “Policy Committee” were not retaliatory under the Canada Labour Code, the Canada Industrial Relations Board has decided.

Air Canada issued letters to three members of the Policy Committee, which is required by the Canada Labour Code, alleging that they had refused to go through with a Policy Committee meeting despite being on full time paid leave from Air Canada to perform Policy Committee duties.

The employees’ union, CUPE, filed a complaint arguing that the letters were prohibited reprisals under the Canada Labour Code.

Air Canada and CUPE had entered into a Memorandum of Agreement dealing with a number of issues including releasing of cabin personnel to perform safety representative duties. The Memorandum of Understanding lead to CUPE and Air Canada taking contradictory positions about the number of employee members on the Policy Committee. The aborted Policy Committee meeting resulted from that dispute.

The Canada Industrial Relations Board held that the dispute between the employees and Air Canada, and Air Canada’s disciplinary actions, therefore resulted from the Memorandum of Agreement, not from the employees’ participation in a safety process under Part II of the Canada Labour Code. As such, there was no safety-reprisal issue under the Canada Labour Code. The Canada Industrial Relations Board was not the forum for adjudication issues under the Memorandum of Agreement.

Paquet v Air Canada, 2013 CIRB 691 (CanLII)

Safety committee members lose claims that employer retaliated against them

Company fined $25,000 for operating electrical contracting business without license under Electricity Act after apprentice injured

An electrical contractor has been convicted and fined for carrying on an electrical contracting business without being licensed under the Ontario Electricity Act.

A young apprentice with the company was seriously injured after an electrical explosion.

The apprentice was disassembling and reassembling “conduit runs” under the supervision of “others who were his masters or supervisors”. He was “pulling a disconnect of a busbar” when it exploded.  There was a fire and molten metal fell on him.  He suffered lasting injuries.

The court found that the company operated an electrical contracting business without being the holder of an electrical contracting license pursuant to Regulation 570/05 (“Licensing of Electrical Contractors and Master Electricians”) under the Electricity Act.

The court accepted the prosecutor’s request for a $25,000 fine for failing to hold the contracting license.

This case shows that the mere failure to obtain an appropriate license can cost employers many thousands of dollars in fines where the employer carries out safety-sensitive work.

R. v. JF Industrial Systems (Windsor) Inc., 2013 ONCJ 766 (CanLII)

Company fined $25,000 for operating electrical contracting business without license under Electricity Act after apprentice injured

Supervisor who solicited and procured drugs from employee was fired for cause

The B.C. Court of Appeal has upheld the for-cause termination of a supervisor who used text messages to solicit and obtain drugs from an employee under his supervision.  Safety was one of the supervisor’s responsibilities in an industry described as “high risk” and “safety-sensitive”.

The supervisor was a project manager of a pile driving company.  The company fired the supervisor, alleging that he had misused a company gas credit card and a B.C. Ferries card, as well as failed to pay for a hotel bill.   After the termination, when the supervisor returned his company cell phone, the company found text messages from him soliciting drugs from an employee under his supervision.  The primary drugs were Dexedrine and clonazepam, both prescription medications which are “listed substances” under the federal Controlled Drugs and Substances Act. The company relied on the text messages as “after-acquired cause” for dismissal.

The supervisor sued in court for wrongful dismissal. In written argument, he agreed that he had a senior and important role, that safety was a very important function at the company, and that he supervised safety.  He agreed that it was his role to set an example.  He admitted the possibility that he consumed illegal drugs with the employee.

The trial judge stated that it did not matter whether the supervisor’s solicitation happened at work or offsite.  Also, it did not matter that, as the supervisor alleged, others in the company smoked marijuana at a company party.  The trial judge decided that the company had just cause to fire the supervisor.

The B.C. Court of Appeal agreed, stating:

“Vancouver Pile Driving defended Mr. Van den Boogaard’s dismissal, alleging after-acquired cause. Mr. Van den Boogaard admitted he engaged in criminal conduct with a person over whom he had direct supervisory authority, including the ability to hire or fire. He had a high level of responsibility as a project manager on a worksite in one of the highest accident risk industries. He was responsible for site safety and effective execution of all projects under his control. He worked without supervision. He was responsible for the implementation of drug policies. He was expected to supervise his drug dealer in a safety sensitive workplace. He exhibited lack of judgment. As the trial judge found, ‘asking an employee under his supervision to procure illegal drugs is misconduct that goes to the root of the employment relation’. The employment relationship could not be restored in the circumstances.”

As this case illustrates, employers – particularly those in safety-sensitive industries – are entitled to hold their supervisors to high standards of safety. 

Van den Boogaard v. Vancouver Pile Driving Ltd., 2014 BCCA 168 (CanLII); trial decision available here.

Supervisor who solicited and procured drugs from employee was fired for cause

Canada Day deadline: Less than One Month to Complete Safety Awareness Training

Employers have less than one month to ensure that their workers and supervisors complete the mandatory “basic occupational health and safety awareness training” by July 1, 2014.

This training is mandatory for all workers and supervisors whose workplace is covered by the Occupational Health and Safety Act, regardless of industry.

For many employers, the simplest way to comply is to have your workers and supervisors complete the Ministry of Labour’s free e-learning module, print the certificate of completion, and provide the certificate to you before July 1st.

Employers can also offer in-person training programs that are tailored to the specific requirements of their workplace, as long as the training meets the minimum content requirements set out in the regulation.  If employers are providing in-person training, it may be wise to have the presenter, throughout the presentation, refer employees to the corresponding material in the Ministry of Labour workbooks, in order to ensure that all of the required material is covered.

As mentioned in our February 25, 2014 article, a Ministry of Labour inspector has advised us that, immediately after July 1st, inspectors will likely issue a reminder to employers who have not conducted the training by the deadline.  Employers who continue to be non-compliant with the regulation will likely receive a compliance order, and in cases of ongoing failure, could be charged and fined.

If you require additional information on how to comply with this new regulation, see:

  • our February 25, 2014 article, which sets out “what you need to do” to comply with this new requirement;
  • our April 3, 2014 article, which provides various strategies for employers as to how to provide this training; and
  • our May 1, 2014 article, which discusses who has to take this training and how employers can continue to ensure that they are compliant with the training requirements after July 1, 2014.

We are available to assist employers with complying with this new obligation – by the Canada Day deadline.

Keep checking www.occupationalhealthandsafetylaw.com for further updates on this topic, or contact Adrian Miedema or Chelsea Rasmussen.

Canada Day deadline: Less than One Month to Complete Safety Awareness Training

Government OHSA advisors must be licenced paralegals, court decides

Employees of Ontario’s Office of the Worker Advisor and Officer of the Employer Advisor who provide legal services relating to the Occupational Health and Safety Act must be licensed paralegals, an Ontario judge has decided.

Since 2007, paralegals have been regulated by the Ontario Law Society Act.  A paralegal must not provide legal services unless licensed by the Law Society of Upper Canada, which regulates lawyers and paralegals in Ontario.

The Law Society went to court asking for a declaration that government employees who provide legal services relating to the OHSA must be licensed paralegals.  The issue arose when the Office of the Worker Advisor (which provides certain legal services to non-unionized workers) and Office of the Employer Advisor (which provides legal services to smaller employers) started advising on safety-related reprisals after 2011 amendments to the Occupational Health and Safety Act.  The amendments permitted the OWA to educate, advise and provide representation before the Ontario Labour Relations Board to union-unionized workers who experienced reprisals from employers under the OHSA.  The Law Society had granted an exemption to the OWA and OEA to provide legal services in relation to the Workplace Safety and Insurance Act but not the OHSA.

The OWA had posted two “Worker Representative” positions which required that the successful candidates hold a paralegal license from the Law Society.  The union, OPSEU, objected to that requirement and argued that the Worker Representatives need not be licensed paralegals, although they admitted that the OHSA services being provided by the Worker Representatives were “legal services” under the Law Society Act.  OPSEU, however, argued that the Law Society Act did not apply to the government and that the Workplace Safety and Insurance Act exemption applied.

The court disagreed, holding that the Law Society Act applied to the government, and that the Workplace Safety and Insurance Act exemption did not apply to OHSA advice.  That meant that the OWA and OEA employees who provided legal services on OHSA matters were required to be registered with the Law Society as paralegals.

In an age of increasing regulation of professional advisors, health and safety consultants who are not licensed paralegals should consider whether they are providing “legal services” and therefore need to obtain a paralegal license from the Law Society.

LSUC v. OPSEU et al., 2014 ONSC 270 (CanLII)

Government OHSA advisors must be licenced paralegals, court decides

Ontario announces new JHSC certification training standards, refresher requirements

The Ontario Ministry of Labour has announced that new “JHSC Certification Training Standards” will come into effect in early 2015.  In the meantime, the existing “Certification Standards for Joint Health and Safety Committees, May 1996″ remain in effect.

The new standards and certification requirements would include Part One training (general to all workplaces), which would have to be taken from an approved training provider; and Part Two training that would be sector-specific and would be formalized with approved training programs taken from approved training providers.

The Ministry also anticipates that the Chief Prevention Officer will establish new requirements that all certified members take refresher training within three years of certification to maintain certification status.  This would be a new requirement.

The Ministry of Labour’s announcement may be found here.

 

Ontario announces new JHSC certification training standards, refresher requirements

Two months until July 1 safety awareness training deadline: will you be compliant?

The July 1, 2014 deadline is quickly approaching.  Employers in Ontario have two months to ensure that their workers and supervisors complete “basic occupational health and safety awareness training” before the deadline.

Our February 25, 2014 article set out “what you need to do” to comply with this new requirement.  Our April 3, 2014 article set out various strategies for employers as to how to provide this training.

In this article, we will provide updates and address a number of questions that have recently arisen, including who has to take this training and how employers can continue to ensure that they are compliant with the requirements of this Regulation even after their current workforce is trained.

Ministry of Labour Guide to Requirements for Basic Awareness Training

The Ministry of Labour has now released “A Guide to OHSA Requirements for Basic Awareness Training”.  It is fairly brief and worth reading.

Are directors and officers of a company or charity required to take the supervisor training?

The issue of whether directors and officers of a company or charity are considered supervisors is dependent on the particular facts of the situation.  If a director or officer has the responsibilities of a supervisor under the Occupational Health and Safety Act in an Ontario workplace (i.e. the person has charge of a workplace or authority over a worker in Ontario), the Ministry of Labour will likely expect the director or officer to complete the supervisor safety awareness training.  “Authority over a worker” includes, among other things, the ability to promote and discipline workers, schedule work and grant leaves of absence.  If the director or officer is not a “supervisor” under the OHSA, he or she is not required to take the training.

Are volunteers with a charity or not-for-profit organization required to take the training?

Under the OHSA, a worker is defined in part as “a person who performs work or supplies services for monetary compensation”.  As a result, a volunteer is not considered a worker and does not have to take the safety awareness training.  We recommend, however, that if a volunteer is doing work that involves any safety risks, you require him or her to take the safety awareness training.

Must employers verify that temporary employees sent to them by temporary employment agencies have completed safety awareness training?

Yes.  Where a worker is employed by a temporary employment agency and sent to another company to perform temporary work assignments, the temporary employment agency and the company both have safety duties under the OHSA.  While the temporary employment agency is required to provide the training, the company at which the temporary employee is working is required to confirm that the employee has received the training.

Update your checklists and agreements now

Hiring checklists and offer letters:
Ontario employers should update their hiring checklists and offer letters now.  Hiring checklists should include a requirement that a new worker or supervisor provide to the employer proof of having received the safety awareness training.  Going forward, employment offer letters / employment contracts should include a condition that a worker or supervisor has completed or will complete the appropriate safety awareness training.

Contractor and temporary employment agency agreements:
Employers should also include, in their standard-form contractor or temporary employment agency agreements, a requirement that the contractor or temporary employment agency not send to the employer any workers who have not completed the training, and that the contractor or temporary employment agency provide proof that its workers have received the training.  Employers must ensure they have an up-to-date record of safety awareness training for all workers and supervisors who perform work for the employer (which includes workers and supervisors from contractors and temporary employment agencies) in order to demonstrate compliance in the event the Ministry of Labour inspects the workplace.

Keep in mind employees who may require accommodation

Some employees with disabilities, language or literacy issues may require accommodation in order to complete their safety awareness training.  These employees may need additional time, or for the material to be read aloud or clarified.  Some may benefit from the opportunity to ask questions in a one-on-one environment.

The Ministry of Labour currently offers the worker and supervisor workbooks, and accompanying employer guides, in English, French, Traditional Chinese, Simplified Chinese, Hindi, Punjabi, Portuguese, Spanish, and Urdu.  The Ministry of Labour’s e-learning modules are currently available in English and French; however, its website indicates that the e-learning modules will be available in the seven additional languages in Spring 2014.

Please let us know if you would like our assistance in complying with this Regulation, including with slides for face-to-face training and template “proof of completion” certificates for employers to use. 

Keep checking www.occupationalhealthandsafetylaw.com for further updates on this topic, or contact Adrian Miedema or Chelsea Rasmussen.

Two months until July 1 safety awareness training deadline: will you be compliant?

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