Does a broken foot constitute a “critical injury” under the Occupational Health and Safety Act? Because the Ministry of Labour inspector had not yet considered that issue, a union was prohibited from raising the issue on appeal.

An employee was struck by a forklift and sustained multiple broken toes and ribs as well as a crushed toe and broken foot.

The employer and union disputed whether the injury was a “critical injury” under the OHSA. The employer and union called in a Ministry of Labour inspector to decide the issue. He decided that it was not a critical injury. However, he said that he had been told about only the toe injury and broken ribs, and not the multiple broken toes or broken foot.

The union appealed the inspector’s decision. The union attempted to argue that the broken foot was a critical injury.

The OLRB decided, based on previous decisions, that “an appeal from an Inspector’s Orders is restricted to the issues considered by the Inspector”. Because the inspector was aware of the injured toes but not the broken foot, the OLRB could decide only whether the toe injury constituted a critical injury. The OLRB could not decide the issue of whether the broken foot was a critical injury.

If the case proceeds to a hearing, we will obtain guidance as to whether a broken foot constitutes a critical injury under the OHSA, which would require the employer to report the injury to the MOL.

CAW Local 707 v. Ford Motor Company of Canada, 2013 CanLII22067 (OLRB) (April 19, 2013)

An employer has been unsuccessful in its bid to keep a newly-created “capital safety planner” position out of a union bargaining unit.

The capital safety planner was to be involved from the outset in every project that the employer undertook.  He or she would impose requirements for health and safety on projects.

The arbitrator decided that the capital safety planner would not be performing functions of a manager or a superintendent, nor would he or she be employed in a confidential capacity in matters relating to labour relations or in a confidential planning or advisory position in the development of management policy.

Instead, the capital safety planner would implement policy that had already been developed by reviewing the work on each project, identifying the risks, and then determining the steps and resources necessary to address them.  Further, project safety was not a confidential matter that required the person to be excluded from the bargaining unit.

Lastly, the arbitrator noted that the union bargaining unit included other “professional and technical employees including a variety of planning positions”, so it would not appear inappropriate to include the capital safety planner in the bargaining unit.

B.C. Hydro and Power Authority v. Canadian Office and Professional Employees Union, Local 378 (B.C. Arbitrator, January 18, 2013)

A worker who refused to answer a Ministry of Labour inspector’s questions during an accident investigation has been found guilty of obstructing the inspector.

An employee of a trash-removal business consumed three beers before work, climbed up on a roof to retrieve loose shingles, and then fell off the roof and became paralyzed below the waist.  A corporation was charged as the injured worker’s “employer”.  A representative of the corporation was also charged as a supervisor, and another individual, one Haniff, was charged with obstructing the MOL inspector by not answering questions.

There was much debate in the case about who was the “employer”.  The company was ultimately found to be the employer and convicted of failing to ensure that the worker wore fall arrest equipment and was trained in fall arrest.

Haniff attended at the Ministry of Labour office, as requested by the inspector and handed the inspector an envelope that contained the telephone record for the corporate defendant. However, Haniff, who admitted that he had taken the initial call from the homeowner asking to have the trash removed, failed to answer the inspector’s other questions about what Haniff did after taking the call, and in particular whether he directed the workers to go to the job site.

Justice of the Peace Mary Ross Hendriks stated:

“Section 62(1) of the Act, which also falls under Part VIII – Enforcement,  states:

 Obstruction of inspector

 62(1) No person shall hinder, obstruct, molest or interfere with or attempt to hinder, obstruct, molest, or interfere with an inspector in the exercise of a power or the performance of a duty under this Act or the regulations or in the execution of a warrant issued under this Act or the Provincial Offences Act with respect to a matter under this Act or the regulations.

“Specifically, subsection 62(2)(a) of the Act creates a positive duty to assist, on “every person” to “furnish all necessary means in the person’s power to facilitate any entry, search, inspection, investigation, examination, testing or inquiry by an inspector,” in the exercise of his or her powers or the performance of his or her duties under the Act or regulations.

“Mr. Haniff’s refusal to answer any of his questions when they met hindered Inspector Lomer’s ability to conduct his investigation, and thwarted his ability to explore undisclosed events and workplace relationships which were relevant to his investigation.”

Haniff was therefore guilty of the Occupational Health and Safety Act offence of obstructing the inspector.

The case shows the importance of co-operating with lawful requests from Ministry of Labour inspectors in the course of an investigation.

Ontario (Ministry of Labour) v. J.R. Contracting Property Services et al., 2013 ONCJ 202 (CanLII)

The work refusal provisions of the Occupational Health and Safety Act should not be abused, an arbitrator has effectively held in overturning an employee’s dismissal but refusing reinstatement.

The employee’s work refusal complaint to the Ontario Ministry of Labour had been made in bad faith, according to the arbitrator.

The employee worked as a plumber at a hospital.  In January 2011, he engaged in a verbal exchange with another employee.  The employee alleged that the other employee threatened him.  The arbitrator decided that the employee’s “honest belief [that he had been threatened] graduated into an attitude of increasing certitude, elevated worry, and finally rectitude.  That certitude and eventual rectitude blinded [the employee] to any other possible view of the matter and led him to question the motives and conduct of almost everyone around him.”

The employee went on  “stress leave”. At some point, he insisted on an immediate return to work.  There was a delay in his return because his doctor took time to get back to the Hospital.  The employee then responded by filing a work refusal complaint with the Ministry of Labour under the Occupational Health and Safety Act and sent an emotional e-mail to the Hospital CEO the next day.

The arbitrator decided that the work refusal complaint was “highly questionable”.  The arbitrator held that it was not made in good faith in the sense that it was a “reckless claim– intended to place additional pressure on the Hospital.”  The Hospital had just cause to impose discipline for making the work refusal allegation.

However, because the employee had five years of service and no disciplinary record, the bad-faith work refusal was not enough to dismiss for cause.  But the arbitrator nevertheless decided that he should not be reinstated: the employee was convinced that numerous people had lied about him in the past and continued to lie about him at the arbitration. He had two years to re-evaluate but his position had only hardened.  If he were reinstated, he would “continue his quest for justice as he sees it”. Also, he had found permanent employment with another major public sector unionized employer, which he judged to be equivalent or superior to what he enjoyed at the hospital. 

“But this just can’t go on”, the arbitrator concluded, denying reinstatement that would only embolden the employee to persist in further investigation until he was satisfied with the result.  The employee was instead awarded approximately nine months’ wages in lieu of reinstatement.

 C.U.P.E. v. The Scarborough Hospital, 2013 CanLII 16383 (ONLA)

The City of Guelph acted reasonably when it relied on the stamped drawing of an architect and engineer as evidencing compliance with all legal requirements, an Ontario judge has held in dismissing an Occupational Health and Safety Act charge against the City of Guelph.

The charge resulted from the death of a fourteen year old girl when a concrete block privacy wall collapsed on her as she tried to boost herself up onto a change table which was affixed to the wall.

The City was charged under the Occupational Health and Safety Act with failing, as an employer, to ensure that the wall was capable of supporting all loads to which it may be subjected “without causing the materials therein to be stressed beyond the allowable unit stresses established under the Building Code Act“.  Mr. Justice Epstein of the Ontario Court of Justice found that the “allowable unit stresses” standard no longer existed in the Building Code at the time of the design and construction of the building.  Rather, the “limits states design philosophy” had replaced it.  The Ministry of Labour had, however, failed to update the language in the OHSA.  As such, “The wording in the charging section has no applicabliy to the circumstances of this case in that the concept of allowable unit stress had expired long before” the design and contruction of this building, which had been designed in accordance with the “limits states design discipline”.  As such, the prosecutor had not proven beyond a reasonable doubt that the City had committed the offence.

According to Justice Epstein, even if the City had committed the offence, it was reasonable for the City to rely on the stamped drawing of the architect and engineer.  It was not readily apparent that the drawing was defective, and in any event the “default position in the industry” is that if walls are joined as shown on the drawing, they need to be interlocked.  There was also an “outright failure” of the masonry subcontractor to properly construct the wall to be stable.  As such, the City had established due diligence by relying on the stamped drawing.

Occupational Health and Safety Act charges against the architect and engineer were previously dismissed for limitations reasons (see our previous post here) but that decision is under appeal.

The court’s acquittal of the City will be of some comfort to employers who rely on stamped documents of architects and engineers in constructing buildings – at least where it could not have been apparent from the drawing that it was deficient.

Her Majesty the Queen v. Corporation of the City of Guelph, Ontario Court of Justice, February 2, 2012 (Epstein J.)

Since January 1, 2012, Ontario employers have been obligated to provide “individualized workplace emergency response information to employees who have a disability, if the disability is such that the individualized information is necessary and the employer is aware of the need for accommodation due to the employee’s disability.”

The obligation is in section 27 of the Integrated Accessibility Standards regulation under the Accessibility for Ontarians with Disabilities Act, 2005 (often referred to as “AODA”).  Although other obligations under that regulation come into effect in 2014 and later, the emergency response information requirements in section 27 came into effect in 2012.

Section 27 also requires that if an employee who “receives individualized workplace emergency response information requires assistance”, then if the employee consents, the employer shall provide the workplace emergency response information to the person designated by the employer to provide assistance to the employee.”

The section goes on to require that employers provide the emergency response information as soon as practicable after the employer becomes aware of the need for accommodation due to the employee’s disability.

Lastly, section 27 requires that every employer review the individualized workplace emergency response information, “(a) when the employee moves to a different location in the organization; (b) when the employee’s overall accommodations needs or plans are reviewed; and (c) when the employer reviews its general emergency response policies.”

Employers – particularly those with workplaces which might be difficult to exit in the event of an emergency – should consider their obligations under section 27.

Worker safety orientation is expected to become mandatory in Ontario on January 1, 2014, as we have previously advised.  The Ontario Ministry of Labour is developing an e-learning module that workers and supervisors can take to complete the orientation, and has now made available printed copies of its worker safety orientation materials.

The worker materials are called “Worker Health and Safety Awareness in 4 Steps”, and an accompanying employer guide is available.  Printed copies can be ordered by going to www.publications.service ontario.ca and searching for “worker awareness”.

The MOL says that the supervisor materials, called “Supervisor Health and Safety Awareness in 5 Steps”, and the accompanying employer guide, will be available in printed form soon.

Also, the MOL says that the e-learning program will be available later this Spring.  According to the MOL, “learners will be able to access modules on the ministry’s website and print a certificate of completion once they complete the online awareness training.”  The e-learning module will, hopefully, make it relatively easier for employers to comply with their new obligation, as of January 1, 2014, to ensure that all workers and supervisors have received the mandatory safety orientation.  Workers and supervisors may simply go to the MOL website, take the orientation through the e-learning module, print the completion certificate, and give it to their employer.

For more information on the new mandatory training obligations, see our previous post here.

In November 2012, we posted a blog regarding Bill 6, The Protection and Compliance Statures Amendment Act, 2012, introduced to the Alberta legislature to amend three Acts, including the Occupational Health and Safety Act as part of an ongoing effort by the provincial government to hold employers (and those responsible for work sites) accountable for the health and safety of their business operations. Bill 6 received Royal Assent on December 10, 2012. As a result, one key amendment now in force is Section 3(1) of the Occupational Health and Safety Act, which deals with the prime contractor.

Prior to the amendment, the legislation was worded in a way which suggested that a prime contractor was only required if two or more employers were involved at the work site at the same time. Due to the wording, some site owners were able to bypass the prime contractor obligation by skillfully crafting a work schedule so that no more than one employer was present at a work site at the same time.

The amendment strikes out the words “at the same time” in an effort to clarify that a prime contractor is required for a work site whenever there are two or more employers whose work activities are interrelated and/or have a health or safety impact on each other, even though they may not be present at the work site together.

For more information see: http://humanservices.alberta.ca/documents/OHS-Act-Amended-LI031.pdf

Supervisors and safety professionals have often told me that they fear being personally charged under the Occupational Health and Safety Act.  Now, a human rights tribunal has decided that an employee’s generalized anxiety disorder was caused by such a fear.

The employee was a “Supervisor, Regulated Substances, Asbestos” with the Hamilton-Wentworth District School Board.  In the fall of 2001, she developed a generalized anxiety disorder as a reaction to the “highly stressful nature of her job, and her fear that, in making a mistake about asbestos removal, she could be held personally liable for a breach of the Occupational Health and Safety Act . . .”

According to the Human Rights Tribunal of Ontario, the employee testified that “the Ministry of Labour was critical of the [school board's] handling of its asbestos removal projects and that she, as the supervisor of these projects, was personally threatened with a substantial fine.”

She went off work due to the anxiety.  Medical evidence showed that she could not work in any position involving liability for health and safety issues.  She asked to return to work in a position that did not involve any risk of OHSA liability.

The Tribunal decided that there were other positions to which the school board could have returned the employee that did not involve potential OHSA liability.  Because the school board did not return her to such a position, it had breached its duty to accommodate.  See my colleague, Catherine Coulter’s article about the significant damages (almost 10 years’ income) awarded to the employee.

The case is an interesting read for safety professionals, and perhaps a reminder to employers to provide sufficient training to ensure that their supervisors and safety professionals can sleep well at night without being nagged by fears of personal charges or liability under the Occupational Health and Safety Act.

Fair v. Hamilton-Wentworth District School Board, 2012 HRTO 350 (CanLII) (decision that employer breached duty to accommodate) and 2013 HRTO 440 (CanLII) (decision awarding damages).

An alleged comment that “women don’t like to do that job”, and other discussions at an Ontario Labour Relations Board safety-reprisal mediation, were privileged and could not form the basis for a discrimination complaint, the Human Rights Tribunal of Ontario has decided.

An administrative employee with the Alcohol and Gaming Commission of Ontario filed a safety-reprisal complaint under section 50 of the Ontario Occupational Health and Safety Act.  The parties attended mediation at the Ontario Labour Relations Board in that safety-reprisal matter.

She alleged, in a separate discrimination Application to the Human Rights Tribunal of Ontario, that at the OLRB mediation, she was told that her former administrative position no longer existed and was offered a mail clerk position but told that “women don’t like to do that job.”  In her Tribunal Application, she made a number of other allegations about the OLRB mediation.

The Tribunal decided, based on various sections of the Ontario Labour Relations Act, that the discussions at the OLRB mediation were confidential and without prejudice settlement discussions and as such were privileged.  Further, the OLRB mediator could not be compelled to testify as a witness before the Tribunal.  As such, the employee could not use the OLRB mediation discussions as a basis for her discrimination complaint to the Tribunal.

The Tribunal stated that there was no reason to depart from the Tribunal’s usual approach of not relying upon confidential and without prejudice settlement discussions.  Confidentiality is important in mediation, and no exception to the application of settlement (“without prejudice”) privilege was warranted in this case.

 Johnson v. Alcohol and Gaming Commission of Ontario, 2013 HRTO 471 (CanLII)

Health and safety and human resource consultants who conduct investigations or retain outside experts to do so, should pay attention to a court decision in which an Ontario man was convicted of acting as a private investigator without a license.

Ontario’s Private Security and Investigative Services Act, 2005 defines a private investigator very broadly as “a person who performs work, for remuneration, that consists primarily of conducting investigations in order to provide information.”

That Act states that “no person shall act as a private investigator or security guard or hold himself or herself out as one unless the person holds an appropriate licence under this act.”

The defendant had attended “tax sales” (forced sales of homes in order to pay back-taxes owing to a municipality) in the past and had purchased homes in this manner.

The defendant undertook several investigations, including checking to determine whether a particular property had fallen into tax arrears and was in jeopardy of being sold, and determining if the property was free and clear of any liens.  Having been unsuccessful in his attempt to purchase the home, he realized that there would be a “surplus” from the sale, so he located and approached the owner of the home who was apparently unaware of the surplus.   The owner agreed to split any “surplus” from the sale 50-50.

The court decided that the defendant was able through investigative techniques to deduce where the property was located and who owned it, and that he had profited from his investigation.  As such, he had acted as a private investigator without a license.  He was therefore guilty of an offence.

The case indicates how broad the term “private investigation” can be interpreted.  Safety professionals and human resources managers who hire private investigators for a fee, should satisfy themselves that the private investigator is licensed.

Although the Act includes several exemptions, including “persons who perform work, for remuneration, that consists primarily of searching for and providing information on . . . the qualifications and suitability of persons as employees or prospective employees”, there are many types of workplace investigations that could fall outside of that exemption.

The bottom line is that safety professionals or human resources managers who undertake “private investigations” themselves for a fee, should check whether their activities require a license.

R. v. Harvey, 2012 ONCJ 702 (CanLII)

Workplace violence and harassment was the most common category of compliance orders made by Ontario Ministry of Labour inspectors in a recent compliance blitz in the manufacturing sector.

13% of the 5,392 orders dealt with workplace violence and harassment.  Although 16% of orders dealt with employer’s general safety duties, that is a broad group that contains many different kinds of orders.

Inadequate machine guarding was the next most common type of compliance order.

Although the Ministry of Labour’s blitz report does not break down the reasons for issuing the compliance orders dealing with workplace violence and harassment, I expect that the orders dealt with failure to prepare a workplace violence policy and program and workplace harassment policy and program; failure to conduct a workplace violence risk assessment; failure to provide “information and instruction” to employees regarding workplace violence and harassment; and failure to post the workplace violence and workplace harassment policies (a breach that would be immediately evidence to a Ministry of Labour inspector).

The blitz results are a reminder to employers to, first of all, ensure that their workplace violence and harassment policies are posted, and also to ensure that the other OHSA obligations relating to violence and harassment have been satisfied.

The Ministry of Labour’s blitz report may be accessed here.

An employer’s appeal of a Ministry of Labour inspector’s compliance orders may proceed, despite the inspector’s ongoing investigation into possible charges, the Ontario Labour Relations Board has ruled.

The inspector’s compliance orders dealt with the wearing of personal protective equipment and the training of workers regarding hazards associated with moving vehicles or equipment.  The employer appealed the orders to the OLRB.  At the same time, the inspector continued an investigation that could result in potential charges against the employer under the Occupational Health and Safety Act.

Interestingly, it was the Ministry of Labour – not the employer – that asked the OLRB to adjourn the employer’s appeal until the inspector’s investigation had been completed.  The Ministry argued that it would not be proper to address issues in the OLRB’s pre-hearing in the employer’s appeal, or in the course of the appeal itself, which may involve other workplace parties such as the union and a particular worker who were participating in the inspector’s investigation into possible charges.

The OLRB rejected the Ministry’s request, stating that the employer, which was represented by counsel, wished to proceed with the appeal and had not yet been charged with offences under the Occupational Health and Safety Act.  Further, at least at the pre-hearing stage of the employer’s OLRB appeal, the employer would not be required to provide any information to the Ministry against its will which could prejudice the employer if it were charged under the Occupational Health and Safety Act after the inspector completed the investigation.

Lastly, the OLRB stated that any concerns about prejudice would be more persuasively raised by an employer whose interests were potentially at risk, rather than by the Ministry.

In the result, the employer was permitted to proceed with its appeal of the Ministry inspector’s compliance orders.  The Ministry’s request for reconsideration of the OLRB’s decision was also dismissed.

This is a welcome decision that permits employers to challenge Ministry inspectors’ compliance orders without having to wait until the inspector has completed his or her investigation.

Trisan Construction Inc v Labourers International Union of North America, Local 183, 2012 CanLII 87260 (ON LRB), request for reconsideration denied.

Many Ontario employers will be relieved by an Ontario appeal decision that clarifies – and limits – the obligation to report workplace accidents to the Ontario Ministry of Labour.  “[I]t is not part of the purpose and objective of the Act to protect non-workers.”

A guest’s swimming pool death did not require an Ontario resort to file a Notice of Accident with the Ontario Ministry of Labour, the Ontario Court of Appeal ruled, overturning a lower court decision that risked dramatically expanding some employers’ accident reporting obligations.

Facts

In 2007, the guest had drowned in an indoor swimming pool at the resort.  No Blue Mountain employees were working at the pool at the time.  A Ministry of Labour inspector ordered Blue Mountain to report the accident to the MOL.  The inspector’s decision was upheld by the Ontario Labour Relations Board and the Ontario Divisional Court.

Section 51 Notice of Accident

The Occupational Health and Safety Act‘s accident-notification provision, subsection 51(1), states:

51(1) Where a person is killed or critically injured from any cause at a workplace, the constructor, if any, and the employer shall notify an inspector, and the committee, health and safety representative and trade union, if any, immediately of the occurrence by telephone or other direct means and the employer shall, within forty-eight hours after the occurrence, send to a Director a written report of the circumstances of the occurrence containing such information and particulars as the regulations prescribe. [underlining added]

The MOL argued that “person” means any person, not just employees, so that employers must report any death or critical injury of any person – including guests or visitors – in a workplace.

The Court of Appeal disagreed, noting that the MOL’s interpretation would have the absurd result that it would make “virtually every place in the province of Ontario (commercial, industrial, private or domestic) a ‘workplace’ because a worker may, at some time, be at that place.  This leads to the absurd conclusion that every death or critical injury to anyone, anywhere, whatever the cause, must be reported.”  For instance, there was evidence that there were approximately 7,000 accidents every year at Ontario ski resorts, many of which – on the MOL’s interpretation – would need to be reported to the MOL even if no employee was involved.

When to file MOL Notice of Accident: 3 Factors

The Court of Appeal decided that an employer must file with the MOL a Notice of Accident where the following three requirements are met:

“a) a worker or non-worker (“any person”) is killed or critically injured;

b) the death or critical injury occurs at a place where (i) a worker is carrying out his or her employment duties at the time the incident occurs, or, (ii) a place where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work (“workplace”); and

c) there is some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at that workplace (“from any cause”).”

The third factor – a reasonable nexus between the safety hazard that caused the accident and a risk to worker safety – is the key factor arising from this decision.  It means that an injury to a non-worker in a workplace will not require the filing of a Notice of Accident if it does not reveal a worker-safety risk.

Result: No Requirement to Report This Guest’s Death

The court said that here, there was no evidence that the guest’s death in the swimming pool was caused by any hazard that could affect the safety of a worker, whether present or passing through.  As such, the third factor was not satisfied, and the resort was not obligated to report the accident to the Ministry of Labour.

Implications for Workplace Violence Policies

The court’s clarification of the meaning of “workplace” is also relevant to employer’s workplace violence policies and programs.  Employers’ workplace violence obligations will extend to a place where “(i) a worker is carrying out his or her employment duties at the time the incident occurs, or, (ii) a place where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his or her work”.

This is an important and readable decision that human resource and health and safety managers should read.

Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75 (CanLII)

Employers sometimes despair over employees who file multiple claims over the same issue.  The Ontario Labour Relations Board has decided that, at least with respect to safety-reprisal complaints under the Occupational Health and Safety Act, employees get only one kick at the can, so to speak.

The employee had been dismissed for insubordination after he, in an insolent manner, refused to do certain work because of the physical effort involved.  The union grieved the dismissal.

The labour arbitrator dismissed the grievance.  In the course of his decision, the arbitrator found that the employee had not, at the time of his refusal, identified clearly that there was a safety issue underlying his concerns.

The employee complained to the Ontario Labour Relations Board, arguing that his dismissal was a reprisal under the Occupational Health and Safety Act for raising a safety issue.  The OLRB dismissed the reprisal complaint, stating that the employee could have – and apparently did – raise the reprisal issue before the arbitrator.  The arbitrator’s decision settled that issue, and the employee could not attempt to reargue the issue before the OLRB. The OLRB therefore held that it had no jurisdiction over the reprisal complaint.

Koscik v. Lakeridge Health Corporation, 2012 CanLII 81626 (ON LRB)

The Occupational Health and Safety Act does not require that workers be “contemporaneously supervised at all times”, an Ontario appeal judge has held, dismissing two charges.

In a bizarre accident, an 18-year-old worker at a company that washed cars prior to their sale at an auction, drove a vehicle into a wash bay setting off a chain of collisions between two other cars and resulting in another employee, further up the line, being injured.

The worker had been told twice by a manager not to drive, initially when he was hired and again on the day of the incident.  He admitted that he was aware of the safety policy of the appellant that in order “To drive a vehicle on the property you must have a valid driver’s licence.”  He did not have a driver’s licence.

He also admitted that he moved the car “in the heat of the moment”.  At the time of the incident, there were no supervisors in the wash bay; all of the workers had gone on a break. 

At trial, the presiding justice of the peace stated that the worker should not have been unsupervised for any period of time.  She said that the supervision was inadequate because the worker was able to “circumvent this observation and supervision and drive the motor vehicle” because everyone had gone on break and therefore the system failed. 

The appeal judge disagreed, holding that the Occupational Health and Safety Act did not require that a supervisor always be present.  Because it was not the worker’s job to drive, nor was there any reason for the company to suspect that he would drive, the employer was not required to provide him with “information, instruction or supervision” in safe operation or parking of vehicle.

The appeal was allowed, and the Occupational Health and Safety Act charges of failing to instruct and supervise, and failing to ensure that the worker had a valid driver’s license, were therefore dismissed.

R. v. 679052 Ontario Limited (c.o.b. Auction Reconditioning Centre), 2012 ONCJ 747 (CanLII)

The Ontario Labour Relations Board has reinstated an employee who was fired shortly after he engaged in a work refusal under the Occupational Health and Safety Act. The decision shows that the reprisal provisions of the OHSA do indeed have teeth.

The employee worked for an auto parts company. He had refused to lift nine bins, claiming that the bins were overloaded and that lifting them would endanger his health and safety.  A manager was angry about the work refusal.

Approximately one week later, the company suspended the employee, allegedly because of his failure, approximately 3 weeks earlier, to advise the employer that a company vehicle he had been driving had bald tires.  When he returned to work after the suspension, he was sent home and asked to see a doctor due to a workplace injury before the suspension.  A few days later, the employer reduced his hours without explanation, and shortly afterwards he was told that his employment was terminated “by head office”.

The OLRB held that the timing of the suspension and termination – shortly after the work refusal – suggested a connection between the work refusal and the suspension and termination.  The reasons offered, before termination and at the hearing, for the suspension and termination did not add up.  Also, the employer failed to provide any explanation as to how, when or why the decision to suspend and dismiss the employee was made.  Finally, the suspension and termination were severe and disproportionate to the alleged misconduct, which were ”minor transgressions”.

As such, the OLRB found that the suspension and termination were a reprisal for the work refusal.

The OLRB ordered the employer to reinstate the employee with payment of all lost wages from the date of the suspension to the date of reinstatement.

While employees lose most reprisal cases under the OHSA that make it all the way to a hearing, this decision confirms that where the circumstances of the discipline or termination look suspicious – especially if they are soon after the employee refused work or raised a safety issue – the employee may be reinstated with a costly back-pay order.

Wilken v. 1377041 Ontario Inc. (Hotspot Auto Parts), 2012 CanLII 72730 (ON LRB)

An engineer’s inspection report must use the specific language “not likely to endanger a worker” in order to comply with the Occupational Health and Safety Act, an Ontario Labour Relations Board decision suggests.

Following receipt of Ministry of Labour compliance orders, a construction company retained an engineering firm to examine a tower crane.  The engineering firm reported to the inspector that there were no defects in the structure of the crane and that it can be put back into service.  The Ministry of Labour inspector essentially refused to accept the engineer’s report as it did not use the “not likely to endanger a worker” language.  The inspector ordered the construction company to have a professional engineer inspect the tower crane and provide a report that it was “not likely to endanger a worker”, wording found in s. 54(1)(k) of the OHSA.  The construction company appealed those orders.

The construction company then moved to suspend the operation of the orders.  The OLRB, relying on a 2011 decision called Hardwall Construction, held that because the engineer’s report did not specifically state that the tower crane is not likely to endanger a worker, the OLRB could not be satisfied that workers would not be endangered if the compliance orders were suspended.

In the Hardwall Construction case, the OLRB had stated,

“Specific reference to the precise words used in the statutory provision facilitates consistency of assessment and minimizes the opportunity for confusion or debate by an Inspector as to what conclusion should be reached based on the content of a report.  Having a certain level of consistency in the content of reports, by requiring all professional engineers to use the precise words envisioned by the Legislature, helps create a common benchmark of evaluation, which enhances and, in all likelihood, may even expedite the Inspector’s ultimate determination as to the safety of the workplace.”

While some professional engineers may be uncomfortable, for professional liability reasons, with certifying that machinery or equipment is “not likely to endanger a worker”, the OLRB has confirmed that those words are required in any engineering report under section 54(1)(k) of the OHSA.

Drewlo Construction Limited v. A Director under the Occupational Health and Safety Act, 2012 CanLII 66865 (ON LRB)

Where a 143-page contract made clear that a contractor was the “constructor” under health and safety legislation, the Yukon government, as owner of the project, was not the constructor, the Supreme Court of Yukon has decided.

The government, the contractor and the contractor’s supervisor were all charged with offences under Yukon’s Occupational Health and Safety Act after a blaster set off a charge that resulted in rocks falling on nearby homes, one of which punctured a roof.

The court noted that the contract between the Yukon government and the contractor, Sidhu Trucking, stipulated that Sidhu Trucking was the constructor.  The contract was not an evasion of government responsibility for safety, but rather an agreement that Sidhu Trucking would assume the obligations of constructor under the OHSA.

The court stated that it was preferable in principle that there should be one constructor on a project and that the constructor’s identity be made clear at the outset so there was no confusion.

Here, the contract was clear.  The court held:

“Where an owner and contractor agree that the contractor shall assume the statutory obligations of ‘constructor’, it makes little sense to challenge that arrangement, unless it can be established that the reality was quite different or the owner was attempting to evade its statutory duty. That is not the case in this Project. In my view, the evidence and the contractual provisions lead to the conclusion that the Yukon Government did not act as constructor on the Hamilton Boulevard Extension Project, but rather exercised its rights under the Contract to ensure compliance with quality and safety. These rights are consistent with an owner’s rights.”

This case demonstrates the importance of project owners clearly assigning “constructor” safety obligations to the general contractor in construction contracts – if the owner does not intend to be the constructor.  If the factual reality is consistent with the contract, the owner will likely not be the constructor.

Director of Occupational Health and Safety v. Government of Yukon, William R. Cratty and P.S. Sidhu Trucking Ltd., 2012 YKSC 47 (CanLII)

An employer struggling with how to comply with a Ministry of Labour inspector’s safety compliance order cannot expect the MOL to identify ways for it to comply, the Ontario Labour Relations Board has held.

The inspector issued an ergonomic compliance order requiring the employer to ensure that wheeled book cases used for book fairs were moved in a way that did not endanger the employees. The inspector decided that the “push forces” required to move the book case up the ramp were greater than permitted in ergonomic data known as “Snook Tables”.

The employer argued that the inspector had “refused to identify ways or means” for the employer to comply with the order. The OLRB decided that the inspector “was under no obligation to do so”. The inspector identified the problem, and it was for the employer to “derive a compliance plan that is most sensible for its operations”.

The employer also argued that there were no ergonomic thresholds set out in the regulations under the Occupational Health and Safety Act, and that the inspector had simply relied on “her professional judgement, as an ergonomist”. The OLRB disagreed, holding that the inspector had based her compliance order on a violation of section 45(a) of the Industrial Establishments regulation under the Occupational Health and Safety Act which requires that materials be moved in a way that does not endanger the worker. There was a legal basis for the compliance order.

The OLRB therefore rejected the employer’s request to suspend the operation of the compliance order pending a full hearing of the employer’s appeal.

There appears to be a trend towards Ministry of Labour inspectors issuing more ergonomic compliance orders, which can often be difficult to comply with. This case demonstrates that the employer, not the Ministry, will be tasked with finding a way to comply with the order.

Scholastic Book Fairs Canada Inc. v. Aguilar, 2012 CanLII 49789 (OLRB)

An Ontario arbitrator has held, in dismissing a union grievance, that it would be illegal for an employer to delegate authority over safety to the joint health and safety committee.

The employer had introduced a rule requiring employees to wear a chin strap attached to safety headgear.  It is clear that employees did not like the chin strap. The union challenged the rule under the collective agreement, which stated:

“The Company must take all reasonable precautions for the safety and health of its employees during their hours of work.  All protective equipment prescribed by the Joint Health and Safety Committee, and first aid kits, must be provided by the Company.”

The union argued that that clause prohibited the employer from requiring the use of any protective equipment that had not been approved by the committee.

The arbitrator stated

“Having found that s. 25 of OSHA empowers, and indeed requires, the employer to consider, and where reasonably necessary, mandate the use of personal protective equipment above and beyond that prescribed, can the employer delegate that responsibility to another body (in this case the JHSC)?  In my mind, it clearly cannot . . . I do not believe that the employer can avoid its legal obligation, even when acting in good faith, to take every precaution reasonable in the circumstances for the protection of a worker.  Accordingly, even if I were to find (as the union argues) that the employer gave up the right to unilaterally prescribe PPE in the 1997 negotiations, I am of the view that its actions in that regard would be of no force and effect in the face of a statute which imposes the obligation set out in s. 25(2)(h) of OSHA.”

The arbitrator noted that if the union’s argument succeeded, the employer could be prosecuted for a violation of the Occupational Health and Safety Act over which it had no control.

Employers with policies or agreements that could be read to delegate some of the employer’s responsibility for safety to employees or a union, should review those policies or agreements in light of this decision.

Gerdau Ameristeel (Whitby Plant) v United Steelworkers, Local 6571, 2012 CanLII 41114 (ON LA)

A British Columbia arbitrator has held that an employer violated its collective agreement by banning the wearing of “Toning Footwear” in its workplace.

An employee had bought a pair of “Skechers Shape-ups”, which the arbitrator described as having a “rounded or wedged sole . . . designed to change the way a person walks . . . The claim is the result will be toned muscles in the legs, thighs, buttocks and abdomen, weight loss and improved posture . . .”

The employer, which operates a resort, had issued a policy prohibiting the wearing of shoes with a curved platform sole at work because they are unsafe, stating a concern that the sole can cause instability and a potential rollover of the ankle, and noting that there had been several lawsuits in the United States involving toning shoes.

The union challenged the policy under an article in the collective agreement which provided that “Comfortable shoes will be worn which will also complement the attire worn.”

The arbitrator decided that the employer was limiting employees’ personal footwear choices and had not undertaken a thorough risk assessment.  The employer did not have a reasonable basis to conclude that this type of shoe was inappropriate for use at work by all employees in all departments.

The arbitrator ordered that the policy was inoperative, but gave the employer more than four months to undertake a thorough look at toning shoes and determine if that type of shoe was a hazard for any groups of employees or area of the workplace.

While this decision is based on the specific wording of the collective agreement in question, it demonstrates how unionized employers’ safety rules can be challenged when they limit employee freedom but are not clearly supported by evidence.

UNITE HERE, Local 40 v Harrison Hot Springs Resort & Spa, 2012 CanLII 51820 (BC LA)

A recent Ontario Labour Relations Board decision suggests that employers’ appeals of Ministry of Labour compliance orders should not proceed while Occupational Health and Safety Act charges are outstanding.

The case arises from the Christmas Eve, 2009 scaffold collapse which resulted in the death of four workers. We recently reported on the fines against Metron Construction, the employer, and its director.  The Ministry of Labour has also charged Swing N’ Scaff Inc., the supplier of the scaffold that failed, under the Occupational Health and Safety Act.  The charges are outstanding.

Swing N’ Scaff appealed Ministry of Labour compliance orders against it after the accident.  The Ministry of Labour’s counsel advised the OLRB that the compliance order appeal raised issues that were also raised in the prosecution.

The Ministry of Labour argued that the compliance order appeal at the OLRB should be stayed while the charges remained outstanding, in order:

“(a) to ensure that the appeal process does not hinder or delay the prosecutions; (b) to ensure that the applicant and the director are not put into a position in which they provide prejudicial information to the Ministry during the appeal process that may impact upon their right to make full answer and defence at their trial; (c) to ensure that potential trial witnesses are not examined or cross-examined on material issues at the appeal hearing before the trial takes place; (d) to allow the Vice-Chair the potential benefit of court rulings concerning issues about suspended scaffolds, and to prevent the possibility of rulings from a Vice-Chair on matters that may arise before the court in the trial; (e) because the applicant is not represented by counsel in these appeals but is represented at trial; and (f) to ensure that inconsistent judgments on the issues in dispute are not rendered.”

The OLRB gave Swing N’ Staff time to file submissions on the issue. In a decision dated September 5, 2012, the OLRB decided:

“For the reasons identified by counsel for the Ministry that are described at paragraph six [quoted above] of my previous decision, I am of the view that it is appropriate to adjourn these proceedings.  The reasons underlying the adjournment request are compelling, and the applicant has not written to oppose the request.”

Employers faced with workplace accidents and Ministry compliance orders that could result in charges, should take note of this decision.  Although a failure to appeal compliance orders could be argued to be an admission of a safety violation, proceeding with the appeal could jeopardize the employer’s position in the related Occupational Health and Safety Act charges.  Advice from a health and safety lawyer is recommended in these complex situations.

Swing N Scaff Inc. v. James, 2012 CanLII 51106 (ON LRB) (September 5, 2012, and Swing N Scaff Inc v James, 2012 CanLII 47333 (ON LRB) (August 10, 2012)

Employers sometimes struggle to understand the scope of training required by occupational health and safety legislation.  The CSA Group is developing an “Occupational Health and Safety Training” standard for employers, and other workplace parties, to consider using.

A draft of the standard was released for consultation purposes some time ago. It can be viewed at http://redlandsgroup.com/.

The CSA Group expects to publish the new training standard in March 2013.

The CSA Group says, on its website,

“Each year, organizations in Canada are making significant investments in providing safety training to workers. Training is critical to helping ensure the health and safety of employees on the job. To help organizations invest limited training resources appropriately, CSA Group is developing a new standard, Z1001 – Occupational Health and Safety Training, which will provide the essentials of managing a health and safety training program and a way to recognize OHS training practices . . . The Standard . . . will help organizations to evaluate potential training programs and assist with the selection and evaluation of training providers.”

Ontario employers in particular, who will be faced with providing a mandatory safety training program to workers, should consider using the CSA Group standard in developing a comprehensive safety training program.  The use of such a standard could help the employer establish the due diligence defence if charged under the Occupational Health and Safety Act.

In an unusual case, a psychiatrist has decided to disclose, to an employee’s employer and the police, a threat made by the employee against the employer in a confidential psychiatric treatment session.  And an arbitrator has held that the employer was entitled to rely on that disclosure in deciding to dismiss the employee.

The employee was a “residential counsellor” for an organization that operated group homes for persons with “intellectual disabilities or mental health issues.”

A psychiatrist treating the employee decided that she was obligated to breach confidentiality and report to the police that, during a session with the employee, he had made statements that she interpreted as a threat that he might do something serious to harm some members of senior management of his employer.

The arbitrator hearing the employee’s dismissal grievance decided that it made no difference that the employee made the threat “in the context of a therapeutic relationship with someone he thought was bound by strict rules of confidentiality”.  This was not a criminal case involving the Canadian Charter of Rights and Freedoms. The employee “said what he said”, and it continued to have an impact on the feelings and emotions of some of the employee’s immediate supervisors.  The employer was entitled to rely on the threat in disciplining the employee.

However, the arbitrator held that the employer did not have just cause to dismiss the employee. His threat was not made directly to the employer, but rather was made in a therapeutic session, as a “cry for help”.  Further, an assessment of the employee found that he was not a current threat and he was able to return to work.  However, the arbitrator imposed strict reinstatement terms on the employee, including that he continue taking certain medications, attend certain treatment sessions, and that the employee authorize his therapist to report whether the employee is attending treatment sessions and making good faith efforts to participate in the therapy.

Canadian Union of Public Employees, Local 2330 v Highland Community Residential Services, 2012 CanLII 51837

Although “officially induced error” – being misled by authorities – is a defence to many types of charges including those under the Occupational Health and Safety Act, it is rarely used successfully like it was in a recent case.

While not an occupational health and safety case, the decision will be of interest to safety professionals and employers.

The defendant was under a Prohibition Order barring him from driving any “motor vehicle” in Canada for a period of 12 months.  While operating an “E-bike”, an electric bicycle, he was stopped by police.  He was charged with breaching his Prohibition Order. The court accepted his testimony that he had contacted various police forces to ask whether operating the E-bike would violate his Prohibition Order and was told by a Toronto police officer that it would not.  The court found that the police officer’s advice was in error: in fact, the operation of the E-bike did violate the Prohibition Order.

The court stated that in order to establish the defence of officially induced error, a defendant must prove that:

-the error was one of law or mixed fact and law – not of fact only

-the defendant actually considered the legal consequences of his actions (he did not simply assume that his conduct was legal)

-the defendant obtained advice from an appropriate public official

-the public official’s advice was reasonable

-the advice was erroneous

-the defendant relied on the advice

Here, the defendant had satisfied all of these factors.  The error was one of law (whether operating the E-bike would violate his Prohibition Order); the defendant had thought about whether it was legal for him to operate the E-bike while under the Prohibition Order; he obtained advice from a police officer, an appropriate public official; the police officer’s advice was reasonable, given that E-bikes are a relatively new phenomenon; the advice was erroneous; and the defendant relied on the advice when he set out for his bike ride.

Although the officially induced error doctrine is rarely applied, employers should keep it in mind when seeking advice from Ministry of Labour inspectors.  If an employer seeks advice from an inspector regarding the Occupational Health and Safety Act or regulations, reasonably relies on that advice, and the advice turns out to be incorrect, the employer – if charged – may be able to raise the defence of officially induced error.  For that reason, employers should carefully document all such advice received from government safety inspectors.

R. v. Kulbacki, 2012 ONCJ 532 (CanLII)

The Ontario Ministry of Labour is piloting its new worker safety awareness training workbook in a number of Ontario workplaces.  The Ministry states that, “The pilots are taking place during the summer of 2012 with an anticipated launch of the workbook in the Fall of 2012.”

The pilot version of the employee workbook is available here, and an employers guide to worker safety awareness training is available here.

In a May 2012 post, we had discussed the Ministry’s announcement that it intends to introduce a regulation that would require Ontario employers to provide mandatory safety awareness training to all workers and supervisors, using Ministry-developed materials or equivalent materials.

The Ministry states, on its website, that “For a worker awareness program to be mandatory, a regulation will be required and as such, stakeholders will be consulted in the fall on the regulatory proposal.”  One expects that, due to the sweeping nature of the new safety awareness training obligations, the Ministry will provide substantial lead time to employers to provide the safety awareness training to workers and supervisors.

The Ministry notes that “some employers may already provide their workers with the information covered in this program”, and that those employers’ programs may meet the new requirements.  The Ministry says that it intends to introduce an “equivalency guideline” to allow employers to determine whether their existing safety awareness programs meet the new requirements.

Employers should review the new “pilot” worker and supervisor training materials and begin thinking about whether the employer already provides equivalent safety awareness training, and if not, how the employer intends to meet the new training requirements.

Ontario employers have a positive obligation to post a number of items on their employee bulletin boards, and a failure to do so can lead to tickets, compliance orders, or in fewer cases, charges and fines.

The Ministry of Labour has recently updated a document called “Posting and Training Requirements”, which states that employers must post the following documents in each workplace:

-Occupational Health and Safety Act

-Health and Safety Policy

-Workplace Violence Policy*

-Workplace Harassment Policy*

-Names and work locations of joint health and safety committee members (for workplaces requiring a JHSC)

-WSIB poster, “In Case of Injury–1234″

*Note that a workplace violence policy and workplace harassment policy need not be posted in workplaces with five or fewer regularly employed workers.

Leaving aside occupational health and safety and WSIB posting requirements, employers must also post the Ministry of Labour’s poster, “What You Should Know About The Ontario Employment Standards Act”.

And, of course, if the employer receives Ministry of Labour compliance orders under the Occupational Health and Safety Act, the orders must also be posted for a certain period of time.

It is strategically important for employers to ensure that all of the above documents are posted in the workplace.  When Ministry of Labour inspectors visit, they often look at the bulletin board.  Complying with all the posting requirements will send a positive signal about the employer’s commitment to safety.

The Ministry of Labour’s “Posting and Training Requirements” document can be accessed here.

The Ontario Workplace Safety and Insurance Appeals Tribunal has awarded workers’ compensation benefits to a bus driver who was assaulted by a stranger in a parking lot on a paid break.

The worker  was returning to his bus from his car during his shift when the stranger asked for his car keys and subsequently assaulted him.

The Workplace Safety and Insurance Board had denied benefits to the worker.

The employer argued that the worker had participated in a fight, and WSIB policy denies benefits to workers injured as a result of participating in a fight as they have taken themselves out of the course of employment.  The WSIAT disagreed, finding that the worker did not participate in a fight: the worker and the stranger did not exchange blows, but rather the worker was unilaterally assaulted and made efforts to get away.

Finally, the WSIAT decided that the injury had been sustained in the course of employment.  The accident occurred during fixed working hours and while engaging in an activity  – retrieving his driver’s license and his lunch from his car during paid recovery time – reasonably incidental to employment.

Decision No. 1830/11, 2011 ONWSIAT 2353 (CanLII)

An Ontario Ministry of Labour inspector has ordered a sleep laboratory to provide personal protective equipment to employees because of the safety risk posed by patients who may be resistant to antibiotics.  And the Ontario Labour Relations Board has rejected the employer’s request to suspend the order.

The MOL inspector issued the order under the “general duty” clause of the Occupational Health and Safety Act after a worker complained about working with patients who were resistant to antibiotics and may have a contagious form of “Methicillin-Resistant Staphyloccoccus Aureus” or MRSA.  The inspector’s order required the employer to ensure that “workers have measures and procedures for the wearing of Personal Protective Equipment . . .”

The employer asked the OLRB to suspend the order pending the employer’s appeal of the order.  It argued that it already had adequate policies in place  – which had been approved by the Ministry of Health – and had provided appropriate training.  The OLRB, in refusing to suspend the order, noted that the employer admitted that MRSA posed a hazard, and the suspension of the order could endanger a worker.

This case demonstrates the broad powers of MOL inspectors to order employers to take positive steps to ensure the safety of workers, and how workers’ safety concerns that are not addressed internally can lead to MOL visits and orders.

Accqcorp v. Matthie, 2012 CanLII 38160 (OLRB)

The Ontario Ministry of Labour has released its “system priorities” for 2012-13.

In its “Introduction to Safe At Work Ontario Sector Plans, 2012-2013“, the Ministry of Labour states:

Employers should be aware that Ministry of Labour inspectors will be paying particular attention to these issues in the next year.

The U.S. Occupational Safety and Health Administration (“OSHA”) and the National Institute for Occupational Safety and Health (“NIOSH”) have issued a hazard alert to employers engaging in hydraulic fracturing – or “fracking” – operations, requiring those employers to take adequate steps to protect workers from silica exposure.

OSHA states that large quantities of silica sand are used during fracking.  OSHA notes that “workers who breathe silica day after day are at greater risk of developing silicosis, a lung disease.  OSHA says that silica can also cause other diseases.

The Hazard Alert states that a combination of engineering controls, work practices, protective equipment and product substitution, where feasible, along with worker training, can protect workers exposed to silica.

The Hazard Alert may be accessed here.

As many places in Canada are sweltering under a summer heat wave, employers should assess the risk of heat exposure in their workplace and, where appropriate, develop and implement workplace policies to reduce the risk of illness or injuries relating to heat stress. Most Canadian provinces have enacted specific regulatory requirements to combat thermal stress arising from extreme heat or cold. However, even in those provinces where no specific regulatory requirement exists relating to thermal stress (for example, like in Ontario and Alberta), an employer still has an obligation to prevent heat stress in the workplace as part of its general duty to protect the health and safety of its workers.

Although a number of manufacturing activities can expose workers to heat year-round, incidents of workplace heat exposure and heat stress clearly increase in the summer, particularly where employees are engaged in outdoor work activities. If there is a risk of excess heat exposure in the workplace, an employer is well-advised to take the following steps to prevent heat stress:

Train supervisors and workers to recognize early signs and symptoms of heat stress in themselves and their co-workers, including excessive sweating, dizziness and nausea

Where working in hot environments, arrange work schedules to permit employees to become acclimatized to heat

Provide adequate supervision and don’t allow individuals to work alone in conditions where heat stress is a legitimate risk

Determine appropriate work-rest cycles that allow time for workers to cool down

Provide shaded or well-ventilated areas for breaks and rests and, where appropriate, reduce temperature and humidity through air conditioning

Schedule more physically demanding work at cooler times of the day and, where possible, rotate work activities to reduce heat exposure

Make cool drinking water available and remind workers to drink water regularly to stay hydrated (i.e. approximately 250 mL of water every 20 minutes)

When working outdoors, remind workers to wear light-coloured, loose-fitting clothing that is breathable

Encourage workers to wear long-sleeved shirts and pants and keep their heads covered to reduce direct exposure to the sun when working outdoors

If you suspect that a worker is suffering from heat stress, move him or her to a cool, shaded area, provide the worker with water and appropriate first aid

There are a number of helpful on-line resources to help employers develop workplace policies and programs to combat heat stress in the workplace. For more information on preventing heat stress in the workplace, employers are encouraged to take a look at the following publications:

Ontario Ministry of Labour – Heat Stress Guideline – http://www.labour.gov.on.ca/english/hs/pubs/gl_heat.php

Ontario WSIB – Guide to Preventing Heat Stress – http://www.wsib.on.ca/files/Content/PreventionHSGuide/HeatStressGuide.pdf

WorkSafe Alberta – Best Practices for Working Safety in the Heat and Cold – http://www.employment.alberta.ca/documents/WHS/WHS-PUB_gs006.pdf

WorkSafe BC – Preventing Heat Stress at Work – http://www.worksafebc.com/publications/health_and_safety/by_topic/assets/pdf/heat_stress.pdf

Québec – CSST – Guide de prévention des coups de chaleur – http://www.csst.qc.ca/publications/200/Pages/dc_200_16184.aspx

An Ontario court has held that an employer had no duty to provide safety training to a medical manager on a function – the use of ladders – that was outside of the manager’s job duties.

The case involved the Emergency Medical Services Manager with the Parry Sound Health Centre.  The manager took an extension ladder, leaned the ladder against the outside of a building, then climbed the ladder to check a heating and air conditioning roof unit that was not working properly.  When the manager was 15 or 20 feet up, the ladder gave way and he fell to the ground and was seriously injured.

The Ministry of Labour laid an Occupational Health and Safety Act charge against the employer, alleging a failure to properly train the medical manager on ladder use.

Justice of the Peace Tenant, in the Ontario Court of Justice, held that the employer was not guilty.  He found that ladder use “had nothing to do with” the medical manager’s job; that the manager should not have been using a ladder; that it was not foreseeable that he would use the ladder; that he was not asked by the employer to use the ladder or to repair the roof unit; and that he was aware that the proper procedure was to call a maintenance worker.

The court asked, rhetorically, whether it would be “reasonable and necessary to provide information, instruction and supervision to a maintenance worker on the proper use of a hypodermic syringe?” and whether, if a nurse was injured hanging a piece of art, would the employer be required to train all nurses in the use of hammers?

In closing, the court stated that it does not require “super-human efforts” to raise a due diligence defence to Occupational Health and Safety Act charges, and the Act and regulations do not “mandate or seek to achieve the impossible entirely risk-free work environment”.

R. v. West Parry Sound Health Centre, 2012 CarswellOnt 7703 (Ont. C.J.)

An Ontario labour arbitrator has reinstated a dismissed employee after the employer improperly relied on previous discipline and also failed to prove that the employee had threatened a manager with a shovel.

The employer had violated a previous settlement  by failing to remove previous discipline from the employee’s record and then relying on that discipline in its dismissal of the employee after the shovel incident.  For that reason alone, the termination was “null and void”.

Commenting on the employer’s obligations under the Occupational Health and Safety Act in relation to workplace violence, the arbitrator stated:

“In making this decision, I am cognizant of the company’s obligations under the OHSA. However, even if I had determined the merits of the company’s other reasons for discharge, I would not have found that the company met the onus of demonstrating that the grievor had threatened Mr. A. Bombini with the shovel. There is, therefore, no potential conflict with the company’s obligations under the OHSA in returning the grievor to the workplace.”

Although in this case the arbitrator found that the employee had not threatened with the shovel, this decision demonstrates the importance of following appropriate process and showing care in preparation of the termination letter.  Even a strong dismissal case can be lost where, as here, the employer violated the collective agreement by attempting to rely on outdated or “sunsetted” discipline to bolster its workplace-violence dismissal case.

Labourers’ International Union of North America, Local 506 v Tri-Krete Limited, 2012 CanLII 34143 (ON LA)

Southern Ontario’s summer is off to a scorching start. With temperatures expected to top 36 degrees today and the humidex approaching mid-40s, Toronto’s Chief Medical Officer has extended its Extreme Heat Alert.

In conditions like these, the Ontario Ministry of Labour advises that employers must ensure that they are taking proper precautions to protect their workers from suffering heat-induced illnesses. To help employers, Ontario’s Ministry of Labour has published a Heat Stress Guideline which includes a number of tips on how to stay safe and cool during these hot summer months. In addition, Ontario’s Workplace Safety and Insurance Board has also made available on its website a number of resources about the dangers of heat exposure and how to prevent it.

Ministry of Labour – Heat Stress Guideline: http://www.labour.gov.on.ca/english/hs/pubs/gl_heat.php

WSIB – Prevent Heat Stress: http://www.wsib.on.ca/en/community/WSIB/230/ArticleDetail/24338?vgnextoid=f062e35c819d7210VgnVCM100000449c710aRCRD.

The Ontario Labour Relations Board has refused to permit a teachers’ union to expand a safety appeal to several schools where the Ministry of Labour inspector had dealt with the issue at only one school.

The inspector had issued an order at one school, requiring the school board to re-inspect the premises for asbestos.  The teachers’ union asserted that the order was “inadequate”.

The teachers’ union appealed the inspector’s order and asked the Ontario Labour Relations Board to require the school board to assess its asbestos-management program at all schools in the board.

The OLRB effectively held that an appeal of an inspector’s order may deal with only the issues already put to the inspector.  The inspector must actually turn his or her mind to the issue and have the opportunity to conduct an inspection, before the union can advance an appeal in respect of that issue. Here, the inspector was involved at only one school, so it was not appropriate to expand the appeal to deal with other schools.

The case is interesting because it indicates that employers can insist that where employees or a union appeal an inspector’s order or refusal to issue an order, the appeal should deal only with issues actually put to the inspector and locations visited by the inspector.

Elementary Teachers’ Federation of Ontario v. Kawartha Pine Ridge District School Board, 2012 CanLII 31549 (O.L.R.B.)

Ontario employers who have multiple workplaces may wish to have one joint health and safety committee for several workplaces, instead of one for each workplace.  The Ontario Ministry of Labour has released guidance for employers on multi-workplace joint health and safety committees, including guidance on when the Ministry of Labour will approve such multi-site committees.

Section 9(3.1) of the Occupational Health and Safety Act states that the Ontario Minister of Labour “may, by order in writing, permit a constructor or an employer to establish and maintain one joint health and safety committee for more than one workplace or parts thereof, and may, in the order, provide for the composition, practice and procedure of any committee so established”.  The approval power has been delegated to Regional Directors with the Ministry of Labour.

That is, generally speaking, employers must obtain Ministry of Labour approval to have a multi-site joint health and safety committee.

When considering whether to approve an employer’s request for a multi-workplace joint health and safety committee, the Ministry of Labour will consider the following factors:

• the nature of the work being done;
• the request of a constructor, an employer, a group of the workers or the trade union or trade unions representing the workers in a workplace;
• the frequency of illness or injury in the workplace or in the industry of which the constructor or employer is a part;
• the existence of health and safety programs and procedures in the workplace and the effectiveness thereof; and
• such other matters as the Ministry considers advisable.

The Guidance document states that the employer’s application for a multi-site joint health and safety committee must include a written agreement indicating that the “workplace parties” support both the request for a multi-workplace joint health and safety committee and the proposed terms of reference for that committee.  As such, if the employer’s workers do not support the concept of a multi-workplace committee, it appears that the Ministry will be hesitant to approve it.

The Guidance document states that the use of video conferencing for joint health and safety committee meetings, where committee members work at different sites, may be appropriate.

The Guidance indicates that Ministry of Labour inspectors will consult with workplace parties, where an employer has requested Ministry approval of a multi-workplace joint health and safety committee.  As such, the employer should be prepared for the Ministry inspector, when visiting the employer’s premises, to engage in broader scrutiny of the employer’s safety program and practices.

The Ministry of Labour’s “Multi-Workplace Joint Health and Safety Committee Guidance” may be accessed here.

More than two-thirds of Ontario companies charged under the Occupational Health and Safety Act plead guilty. Defendants who plead guilty and allow the court to set their fines pay, on average, 40% less in fines than defendants who plead guilty and accept the Ministry of Labour’s proposed fine. At least one party is convicted and fined in 82% of Ontario workplace incidents that result in occupational health and safety charges. Two-thirds of corporations that go to trial are found guilty. These are some of the nine findings that we have drawn from our study of unpublished prosecution data obtained from the Ontario Ministry of Labour through a Freedom of Information request.

From the data, which involves 863 defendants – 592 corporations and 271 individuals such as supervisors and workers – charged with offences under the Occupational Health and Safety Act, we have been able to paint a statistical picture of what actually happens when employers, supervisors, workers and others are charged under the Occupational Health and Safety Act.  All of the charges in our study were resolved during the eighteen-month period from January 2009 to June 2010.

The results of our study may be accessed at: Statistical Analysis of 863 Ontario Occupational Health and Safety Act Prosecutions Report

The U.S. Occupational Safety & Health Administration has warned U.S. employers that some safety incentive programs might discourage workers from reporting injuries, and therefore might “discriminate” against workers who wish to exercise their legal right to report injuries to their employer.

OSHA notes:

“For example, an employer might enter all employees who have not been injured in the previous year in a drawing to win a prize, or a team of employees might be awarded a bonus if no one from the team is injured over some period of time. Such programs might be well-intentioned efforts by employers to encourage their workers to use safe practices. However, there are better ways to encourage safe work practices, such as incentives that promote worker participation in safety-related activities, such as identifying hazards or participating in investigations of injuries, incidents or ‘near misses’.”

OSHA’s pronouncement on safety incentives does not legally apply to employers in Ontario.  However, Ontario employers should consider whether their safety incentive programs could discourage employees from reporting injuries to the employer and/or to the Workplace Safety and Insurance Board (resulting in potential issues for the employer with the WSIB) or could lead to a reprisal complaint under the Ontario Occupational Health and Safety Act (“I lost my safety bonus because I reported a safety incident to my employer”).

OSHA, “Employer Safety Incentive and Disincentive Policies and Practices”: http://www.osha.gov/as/opa/whistleblowermemo.html

Employers who deal with Ontario Ministry of Labour inspectors may wish to review the Ontario government’s Regulator’s Code of Practice.  That Code applies to MOL inspectors and other government compliance staff, and sets out principles that the inspectors and other compliance staff are expected to follow.

Interestingly, the Code states that government inspectors should be “compliance-focused” rather than “enforcement-focused”, which in the context of MOL inspectors, appears to mean focused on helping employers maintain a safe working environment rather than focused on laying charges against employers under the Occupational Health and Safety Act.

The Code states that a compliance-focus requires the inspector to “focus on the objectives of regulatory law and policy and then consider the most innovative, efficient and effective method of achieving compliance.”

In an apparent recognition of the challenging economic climate for many Ontario employers, particularly those in the manufacturing industry, the Code states that government inspectors and regulators should do their jobs in a way that “allows businesses to better focus on increasing competitiveness and economic growth while complying with Ontario’s rules and regulations”.

The Code goes on to suggest that government compliance staff, including MOL inspectors, should classify employers into four categories, and treat them as follows:

Stating that “The Ministry of Labour’s proactive inspection blitzes on sector-specific hazards are designed to raise awareness and increase compliance with health and safety legislation”, the MOL has released its schedule of safety inspection blitzes by MOL inspectors for 2012 and 2013:  

An Ontario arbitrator has held that a worker was not justified in refusing to work because it was allegedly unsafe to work with his coworker, a lead hand.

The grievor, a saw operator, refused to work with the lead hand on a band saw, a two-person job.  The grievor alleged that the lead hand was unsafe because he had “aggressively grabbed” a casting and pulled it towards the saw on one occasion when the grievor had started to work on the band saw on his own.  The grievor took it upon himself to instead work alone on a saws-all.

The company suggested a number of options for the grievor, including working in another position on the band saw or working with another employee on the band saw, but the grievor refused, saying he did not consider the other employee safe as he lacked sufficient training.  The grievor instead continued to work alone on the saws-all.  The company eventually fired the grievor for insubordination due to his refusal to work on the band saw with the lead hand

The arbitrator decided that the grievor did not have a reasonable belief nor reasonable grounds to believe that working with the lead hand on the band saw was a danger to him.  Therefore, the grievor’s work refusal was not justified under the Ontario Occupational Health and Safety Act.  Although the lead hand’s attitude may have been somewhat aggressive, it was in part explained by the fact that the grievor had gone ahead to do, by himself, what was a two-person job on the band saw.

The arbitrator noted that where, for example, a “deranged person” in the workplace was threatening others or causing harm, a work refusal might be justified under the OHSA. That was not the case here, though.

Lastly, the arbitrator held that the grievor’s persistent refusal to work with the lead hand “for the flimsy reasons he gave” constituted a persistent act of insubordination, and justified discipline but not termination. The arbitrator reinstated the grievor without compensation for lost wages subject to him accepting a one-year “last chance agreement” which provided that if the grievor engaged in any type of horseplay, harassment, disruptive behavior or disrespectful behavior towards other workers, his employment would be terminated.

Haley Industries Ltd. v. U.S.W., Local 4820, 2012 CarswellOnt 3332.

The Ontario Labour Relations Board has held that an employee and employer settled a safety-reprisal complaint, due to the employee’s lawyer’s letter to the OLRB advising that the parties had reached an “agreement in principle”.

The employee had filed a complaint under section 50 of the Ontario Occupational Health and Safety Act alleging that he had suffered reprisal for seeking to enforce his safety rights under the OHSA.

In September 2011, the parties reached an “oral agreement in principle”.  On the same day, the employer’s lawyer sent proposed Minutes of Settlement and a Full and Final Release to the employee’s lawyer and invited “questions or concerns”. The next day, the employee’s lawyer requested changes, and the employer’s lawyer sent him revised Minutes of Settlement the same day. On that day, the employee’s lawyer wrote the Ontario Labour Relations Board to advise that an agreement in principle had been reached.

After numerous discussions between the lawyers, the employee’s lawyer wrote to the OLRB to advise that the employee would not be signing the Minutes of Settlement, and that the lawyer would no longer be representing the employee.  The lawyer’s closing letter to the employee indicated that the parties were “close to settlement”.

At the OLRB, the employee’s new lawyer argued that there was no settlement.  He relied upon section 96(7) of the Labour Relations Act - incorporated into the OHSA by section 50(3) of the OHSA.  Section 96(7) provides that where “the terms of the settlement have been put in writing and signed by the parties or their representatives, the settlement is binding upon the parties . . .”

The OLRB held that there was a binding settlement, due to the lawyer’s letter to the OLRB.  Subsection 50(3) of the OHSA provides only that the OLRB “may” - not “must” – inquire into a safety-reprisal complaint under the OHSA.  As such, the OLRB may dismiss a complaint that has been settled, even where the settlement is not in writing

Winston H. Gregory, http://canlii.ca/t/fqsr7

Employers appealing Ontario Ministry of Labour compliance orders under the Occupational Health and Safety Act are entitled to notes made and photographs taken by the MOL inspector during his or her site visits, the Ontario Labour Relations Board has ruled.

Employers charged with offences under the OHSA are used to obtaining full “production” of the MOL’s file; now employers facing compliance orders are entitled to a level of documentary production from the MOL.

The appeal in question deals with whether Dollarama must ensure that workers in the receiving area and handling stocks in the stock room of its stores, wear “safety foot protection”, or whether it was sufficient for Dollarama to require only workers operating a pump jack to wear safety toe caps.

Dollarama appealed the MOL inspector’s compliance order.  Dollarama then asked the OLRB to order the MOL to provide all notes made and photographs taken by the inspector during site visits, so that Dollarama could review and possibly use those notes and photographs to challenge the compliance order.

The MOL opposed the request for the inspector’s notes and photographs, arguing that because the OHSA provides that inspectors are not “compellable” as witnesses, inspectors cannot be compelled to produce their notes.

The OLRB disagreed with with MOL, holding that non-compellability of an inspector as a witness does not mean that the inspector can withhold his or her notes.  Dollarama was entitled to the notes and photographs, as part of Dollarama’s entitlement to pre-hearing production of documents from the MOL.

This interesting decision provides another arrow in the quiver of employers appealing MOL orders.  By requesting – and obtaining – the MOL inspector’s notes and photographs, the employer may be able to show weaknesses in the MOL’s case, thereby strengthening the employer’s argument that the compliance order should be set aside.

Dollarama v. Marcelo, http://canlii.ca/en/on/onlrb/doc/2012/2012canlii12602/2012canlii12602.html

In a decision that may cause concern to Ontario municipalities, Ontario’s privacy commissioner has ordered the City of Woodstock to turn over, to a private citizen, a workplace violence and harassment reporting form written by a City employee.  The form related to an incident that involved the private citizen, referred to him by name, and contained information about his personal opinions.  The citizen filed a request for the form under Ontario’s Municipal Freedom of Information and Protection of Privacy Act.

The privacy commissioner also ordered the City to give the citizen e-mail correspondence relating to the incident.

According to the decision, the workplace violence reporting form and e-mail correspondence provide a “narrative of the incident” along with the employee’s “recommendation about the suggested course of action”.

The City objected to providing the documents to the citizen, arguing that the Act allows municipalities to refuse to turn over documents relating to “Meetings, consultations, discussions or communications about labour relations or employment related matters in which the institution has an interest”.  The City argued that a workplace violence reporting form clearly is in respect of “employment related matters”, particularly because under the Bill 168 amendments to Ontario’s Occupational Health and Safety Act, the City “has a legal obligation . . . to ensure that its employees are not subject to violence and harassment in the workplace”.

The privacy commissioner rejected that argument, deciding that the documents did not relate to employment matters between the City and its employees, but rather related to employee observations about the private citizen who was not an employee of the City.

The privacy commissioner decided that the City was not required to give to the citizen the portions of the documents containing a description of how the incident personally impacted the employee who filed the workplace violence reporting form.

Municipalities will want to take this decision into account when designing their workplace violence reporting form and process.

Woodstock (City) (Re): http://canlii.ca/en/on/onipc/doc/2012/2012canlii10571/2012canlii10571.html

Last week, WorkSafe BC and the BCAA Safety Foundation launched a website called RoadSafetyAtWork.ca as on on-line toolkit for employers of workers who are required to drive as part of their job duties.  The website contains “British Columbia’s Preferred Practices for Occupational Road Safety” which includes instructions to employers to help ensure the safety of their workers while on the road.  The Preferred Practices link sets out a 5-step plan for employers:

1. Get management to commit to safety;

2. Conduct a status review;

3. Identify risks and hazards;

4. Develop strategies; and

5. Plan for Action

Although these 5 steps sound fairly vague and general, the website provides concrete and specific ways of implementing the plan.  For example, “getting management to commit” includes guidelines around data management, communications, organizational structures, road safety policy and procedures, and even management style. Notably, the practices apply not only to employers that are in the business of driving (such as transportation) but any employer that requires any of its employees to use his or her own vehicle for business persons.

Although the website is designed as a resource for employer, it may be that WorkSafe will soon use the “preferred” practices as the measure to assess an employer’s compliance and due diligence under the Occupational Health and Safety Regulations.  Employers should therefore measure their current road safety practices against these new WorkSafe preferred practices.

WorkSafe BC (the Province’s occupational health and safety regulator) recently introduced policy guidelines which describe an employers’ responsibilities over  its internal joint health and safety committee. The guidelines also set out the factors that WorkSafe may take into account when deciding whether when an employer is exempt from the joint committee requirements set out under the Workers Compensation Act.

The Act requires that every employee establish and maintain a joint committee in each workplace with 20 or more employees. The Act allows the Board to vary  this requirement where an employer has more than one workplace. Unfortunately, the Act does not set out the factors that the Board must or could consider when deciding whether a variation should be made. The Act also does not spell out the employer’s duties or responsibilities with respect to the joint committee and the exercise of their duties in ensuring a safe workplace.

The new guidelines state that the employer must ensure that:

• the joint committee is meeting its obligations under the Act in actively identifying potential health and safety concerns;
• the joint committee has established rules and procedures for its performance of its duties and functions; and
• the joint committee is meeting at least once per month.

The message from WorkSafe is that employers must not only ensure that joint committees are created and maintained, they must vigilantly monitor their joint committees activities and ensure they are carrying out their statutorily required duties.

With respect to a variation of structure, an employer may wish to vary the requirement where, for example, it has a number of workplaces but prefers to have one joint committee only, or where the employer has different workforces with different health and safety issues across a number of workplaces. The guidelines set out the requirements for  a variation application, including injury statistics and hazard ratings and the employer’s rationale for its new proposed structure. The guidelines spell out the factors that the Board must consider in granting the variance, which include: the employer’s overall health and safety program and safety history; the nature or makeup of the workplace; the relationship between workers at various workplaces; and the practicality of communications between workers and members of the joint committee.

WorkSafe BC is recognizing that a “one size fits all” approach is not the best way to ensure compliance with the Act, particularly in today’s complex and multi-faceted workplaces. The guidelines give employers flexibility to tailor their  joint committee structures in ways that best meet their needs and the needs of their workers.

The law firm of a lawyer who assisted a hospital in “evaluating, mediating and resolving workplace conflicts between employees including allegations of harassment and workplace violence” has been ordered removed as lawyers of record for an employee who was suing the hospital.

The lawyer/mediator had met with various hospital employees including staff members, the hospital’s “Safe Workplace Advocate”, the CEO and various other senior hospital staff.

A few months later, a hospital employee started a lawsuit against the hospital and several representatives of the hospital, in respect of the termination of her employment.  The lawsuit apparently touched on some matters that the lawyer had dealt with in her role “evaluating, mediating and resolving” the workplace conflicts.  The lawyer/mediator was not involved in representing the employee.  She eventually left the firm.  The court found that the lawyer/mediator had at all times acted with integrity and professionalism.

The court noted that while the evaluation, mediation and resolution work of the lawyer/mediator had not perhaps been “the traditional work of a lawyer”, the firm was still in conflict.  The court was concerned with distinguishing between a law firm’s obligations to “different categories of existing clients” based on the type of work done by the law firm.  The lawyer/mediator had received confidential information from employees and management of the hospital, which the law firm could use against the hospital in representing the employee.  The court also noted that there was a “real risk in a highly publicized wrongful dismissal action, like this one” that names a hospital executive with whom the lawyer/mediator worked closely, that the law firm’s representation of both the hospital (by the lawyer/mediator) and the employee (by another lawyer in the firm) would be compromised. 

Interestingly, the court put the law firm on notice that the court was considering ordering costs against the firm, and invited the law firm’s submissions on that point.

Spirou v. Chant, http://www.canlii.org/en/on/onsc/doc/2012/2012onsc52/2012onsc52.html 

A disability-management specialist working for the Toronto Transit Commission is facing a human rights complaint.  The complaint alleges that the specialist, who oversees the TTC’s transitional work program, subjected an employee to harassment and treated her differently compared to other employees on modified duties.

According to an interim decision of the Human Rights Tribunal of Ontario, in the human rights complaint, the employee alleged that the specialist “abused her authority by suspending the applicant’s pay, terminating the applicant’s transitional work duties, harassed the applicant while the applicant was on a leave of absence, suggested the applicant take certain medications, made false allegations against about the applicant, spoke to the applicant in a degrading fashion and solicited information about the applicant’s work performance.”

In order to respond to the complaint, the TTC and the specialist asked the Tribunal to permit them to have access, use and disclosure of the employee’s Occupational Health and Claim Management files.  They said that the Tribunal’s authorization was required because there may be a conflict between the standards required by the Personal Health Information Protection Act and the duty imposed on employers under the Occupational Health and Safety Act (they were likely referring to subsection 63(2) of the OHSA which states that “[n]o 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.”)

The Tribunal granted the TTC and the specialist access to the Occupational Health and Claim Management file, but only in respect of the period identified in the employee’s human rights complaint. The Tribunal limited access to the advisors, instructors and potential witnesses of the TTC and the disability-management consultant.

The case is a reminder to employers of the confidentiality obligations under section 63(2) of the OHSA.   In particular, where an employee does not consent, and there is doubt about the employer’s right to use an employee’s health file in a litigation matter, the employer should consider obtaining the permission of the court or tribunal in which the employee’s claim was made.

O’Brien v. TTC,  http://canlii.ca/en/on/onhrt/doc/2012/2012hrto170/2012hrto170.html

An Ontario labour arbitrator has decided that a hospital’s lawyer’s investigation report into a bullying/harassment complaint was not privileged, so that the union was entitled to a copy.

The North Bay General Hospital had retained a lawyer to investigate a complaint that an employee had bullied and harassed other staff.  The lawyer-investigator concluded that the employee had indeed engaged in bullying and harassment.  The hospital disciplined the employee, and the union grieved the discipline.  The union asked the labour arbitrator to order the hospital to turn over a copy of the lawyer-investigator’s report.  The employer argued that the report was lawyer-client (also called “solicitor and client”) privileged and thus the union was not entitled to it.

The arbitrator decided that the investigation report was not privileged.  She noted that the investigation report stated that the lawyer was retained “as an independent investigator” to “investigate the concerns” of bullying and harassment – not as a lawyer to give legal advice.  Thus the hospital was required to give a copy of the report to the union. The arbitrator stated:

“I see no reason to distinguish between [lawyer and non-lawyer investigators] if the purpose for which they were retained is the same, of investigating events to make findings of fact.  I see no reason to attach solicitor and client privilege to a relationship which is not that of a solicitor-client, just because one of the parties happens to be a lawyer.  There are no facts before me upon which I could conclude that Mr. Robinson was retained for any other purpose than investigating the allegations against the Grievor.  Accordingly, I find Mr. Robinson’s communications with the Hospital in respect of his role as investigator of these allegations is not protected by solicitor and client privilege.”

This decision is a reminder to employers that if they wish to claim lawyer-client privilege over a lawyer’s investigation report into a workplace issue (such as a violence or harassment issue under Bill 168, or another safety issue), then the purpose of the lawyer’s involvement should be to provide legal advice, not solely to investigate.  Lawyer-investigators should consider sending the employer a retainer letter stating that the purpose of the lawyer’s involvement is to provide legal advice, and the purpose of the investigation is to gather facts in order for the lawyer to provide that legal advice.  The lawyer should follow up the investigation with a written legal opinion flowing from the results of the investigation; that way, the investigation report is much more likely to be privileged.

North Bay General Hospital v Ontario Nurses’ Association, 2011 CanLII 68580 (ON LA): http://www.canlii.org/en/on/onla/doc/2011/2011canlii68580/2011canlii68580.html

I recently gave a presentation on “The Safety Professional / Engineer as a Witness” to the Canadian Society of Safety Engineers’ Toronto chapter.

The presentation has been uploaded to the CSSE’s website at: http://www.cssetoronto.com/csse12132011/.

The theme of the talk was that everything the safety professional does could end up being scrutinized in court, at arbitration, at the Ontario Labour Relations Board or elsewhere.  As such, a number of legal considerations, including whether to assert privilege over reports, must be considered.

The presentation also discusses cases in which engineers and safety professionals have testified, and had their testimony commented on by judges, and one recent case in which a safety professional was found guilty under the Nova Scotia Occupational Health and Safety Act.

An Occupational Health and Safety Co-ordinator has been found guilty of a violation of Nova Scotia’s Occupational Health and Safety Act for neglecting to follow up with his employer on recommendations in an asbestos report.

The Safety Co-ordinator was employed with the Cape Breton Island Housing Authority.  When maintenance employees reported that insulation in housing units might contain asbestos, the Safety-Coordinator obtained a report from a testing company.  The report confirmed that the insulation contained asbestos.  The Safety Co-ordinator gave the report to two supervisors employed with his employer.  He then, the judge said, “assumed a passive role” and did not follow up.  The supervisors apparently did nothing with the report until months later when an outside electrician pressed them for information about the insulation.

A government safety inspector was called in and imposed 515 compliance orders.

The court found the Safety Co-ordinator guilty of failing to take reasonable precautions for the safety of persons at or near the workplace, including residents of the homes that contained the asbestos insulation.  It did not matter that he “was not paid at the level of top managers”, did not consider himself a manager, and did not believe he would be involved in making decisions about what to do with the asbestos report.  It also did not matter that he spent much of his time dealing with fire drills, a return-to-work program, and updating a safety manual.  His job description showed that his role was to promote a safe and healthy workplace.

The court stated that upon receiving the testing report, the Safety Co-ordinator should have immediately notified the Director of the housing authority; followed up directly with the two supervisors to whom he gave a copy of the report; told the joint occupational health and safety committee about the report; and instigated a formal hazard assessment of the risks to employees who were working around the insulation.

This decision suggests that courts will hold safety professionals to high standards, particularly where they become aware of hazards in the workplace.   In this case, a job-description duty to promote safety turned into a legal duty that resulted in a conviction and a $1,000.00 fine.

The decision may be read at: http://www.canlii.org/en/ns/nspc/doc/2011/2011nspc67/2011nspc67.html

The Ontario Labour Relations Board has held that an engineer’s report that did not use the words, ”not likely to endanger a worker”, did not satisfy a compliance order.

A Ministry of Labour inspector had ordered four companies, after accidents at various job sites that involved the operation of tower cranes, to provide a “section 54(1)(k)” professional engineer’s report stating that the cranes were not likely to endanger a worker.  The companies unsuccessfully tried to work out an “industry solution” with the MOL.

All four companies retained the same engineering firm, Burrell & Associates.  An engineer with that firm provided four reports.  One of the reports stated that the tower crane was now operating normally and could be placed back into service; another report stated that “turntable bolts are still suitable for the operation of the crane until new bolts are installed”; and a third report stated that “the crane capacity in third gear is adequate for the intended loads on this project . . .”  None of the reports stated that the cranes were “not likely to endanger a worker”, the language used in s. 54(1)(k) of the OHSA.

The MOL refused to accept that the engineer’s reports satisfied the obligation under s. 54(1)(k) to produce a report that the tower cranes were “not likely to endanger a worker”.  The companies appealed to the Ontario Labour Relations Board.

The companies argued that by requiring the precise words “not likely to endanger” in the engineer’s report, the MOL was superseding the judgment of a professional engineer and may discourage engineers from providing reports.  The companies also argued that under section 54(1)(k), the professional engineer – not the MOL inspector – should make the decision as to whether the equipment could be used safely.

The OLRB disagreed.  It held that section 54(1)(k) required the professional engineer to expressly state in his report whether the equipment is or is not likely to endanger a worker.  The OLRB stated,

“Specific reference to the precise words used in the statutory provision facilitates consistency of assessment and minimizes the opportunity for confusion or debate by an Inspector as to what conclusion should be reached based on the content of a report.  Having a certain level of consistency in the content of reports, by requiring all professional engineers to use the precise words envisioned by the Legislature, helps create a common benchmark of evaluation, which enhances and, in all likelihood, may even expedite the Inspector’s ultimate determination as to the safety of the workplace.”

Employers and professional engineers should take note.  The practical effect of this decision is that when ordered to obtain a section 54(1)(k) report, an employer should seek out a professional engineer with significant expertise in the equipment or machinery to which the order relates, so that the engineer feels comfortable writing that it is “not likely to endanger a worker”.

Hardwall Construction Ltd. et. al: http://www.canlii.org/en/on/onlrb/doc/2011/2011canlii34961/2011canlii34961.html

A new “model” of construction, where a “construction manager” was used instead of a “traditional general contractor”, did not insulate the construction manager from safety charges.

Reid & DeLeye Contractors Ltd. was retained as a “construction manager” on a project owned by Future Inns Cambridge Inc.  The construction contract included the following provision:

“Under this type of construction management arrangement, the traditional roles and relationship of owner/general contractor disappear.  The Owner engages the trade contractors directly and thereby assumes much of the role and responsibility of the traditional general or prime contractor.”

A labourer on the project suffered a fractured arm when he fell off scaffolding.  The construction manager, Reid & DeLeye, was charged as “constructor” under the Ontario Occupational Health and Safety Act.

Reid & DeLeye argued that the use of a construction manager, rather than general contractor, was a new and more-efficient model, and that because the owner contracted with the subtrades, the owner – not Reid & DeLeye – was the constructor under the OHSA.

The Ontario Court of Justice disagreed.  The contract with the project owner stated that Reid & DeLeye was to provide “site management” and ”leadership to [the Construction Management Team] on all matters relating to construction”.  The contract between the owner and a forming subtrade stated that Reid & DeLeye will “assume overall responsibility for establishing and coordinating the safety precautions and programs”.  The court decided that the contracts showed that Reid & DeLeye was to oversee that safety precautions were undertaken by all employers and employees on the project and that safety programs were in place.  Also, Reid & DeLeye’s conduct on the project showed that it understood that it was required to oversee the sub-trades’ use of scaffolds. 

The court said that the more control a company exerts, the more likely that it was a constructor.  Here, Reid & DeLeye was the constructor on the project.

This case illustrates the importance of the terms of contructions contracts, but also of the on-the-ground actitivities of the parties, in determining who is the constructor.  A “construction manager” will be the constructor, and therefore at risk of charges and fines, if in fact it has control over a project, even if the construction contract tries to avoid having the construction manager be the “constructor”.

Ontario (Ministry of Labour) v. Reid & DeLeye Contractors Ltd.: http://www.canlii.org/en/on/oncj/doc/2011/2011oncj472/2011oncj472.html