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Supervisor fined after workers exposed to asbestos dust

A supervisor with an asbestos abatement company, and his employer, have pleaded guilty to charges under the Occupational Health and Safety Act and were fined, after workers were exposed to asbestos dust on a job site.

The supervisor was fined $4,000.00 after pleading guilty to failing to ensure workers used protective clothing and equipment.

Three workers were working on an asbestos abatement project at a single-family home. The abatement area was enclosed.  In that area, certain asbestos containing materials had been removed and there was an asbestos dust hazard present.

A Ministry of Labour inspector attended and conducted an inspection.  The inspector found one of the workers exiting the enclosed area wearing street clothing.  Two other workers were found inside the enclosed area not wearing protective clothing; one was performing clean-up and the other was securing bags filled with asbestos-containing material.

The Ministry of Labour, in its press release, states that “There is potential for harm when workers and others are exposed to even small amounts of asbestos.”

The company pleaded guilty to failing to ensure that only persons wearing protective clothing and equipment enter a work area where there is an asbestos dust hazard. The company was fined $25,000.00.

The Ministry of Labour generally does not put out a press release for cases involving a fine of less than $50,000.00.  It appears from this and other press releases in asbestos cases, though, that the MOL may make an exception for cases involving asbestos.

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

 

Supervisor fined after workers exposed to asbestos dust

Employer Who Voluntarily Complied with MOL Inspector’s Orders Was Not Entitled to Suspension of Orders Pending Appeal

The Ontario Labour Relations Board has held that where an employer had complied with a Ministry of Labour inspector’s compliance orders under the Occupational Health and Safety Act, to the satisfaction of the MOL, the operation of the orders should not be suspended while the employer appeals the orders.

Employers sometimes appeal MOL inspectors’ orders after an accident, in the hopes of obtaining a decision from the OLRB that the employer did not commit any violation of the OHSA that would justify the orders.  Such a decision can be useful in avoiding charges under the OHSA.

In those cases, employers will often seek a suspension of the inspector’s orders until the appeal is decided.

The OLRB decided, however, that where the employer has already complied with an order, the suspension request is moot and should not be granted. In particular, there was no prejudice to the employer if the operation of the order was not suspended.

This decision shows that an employer wishing to obtain such a suspension cannot voluntarily comply with the orders. Instead, the employer must quickly appeal the order and apply for a suspension, before the deadline set by the MOL inspector for compliance with the order.  The employer may, however, proceed with the appeal of the (unsuspended) order.

Horizon Utilities Corporation v A, 2014 CanLII 75404 (ON LRB)

Employer Who Voluntarily Complied with MOL Inspector’s Orders Was Not Entitled to Suspension of Orders Pending Appeal

WSIB Age Cut-off for Loss-of-Earnings Benefits not Discriminatory Against Older Workers: Court

Ontario’s Divisional Court has decided that the Workplace Safety and Insurance Act’s age cut-off for loss of earnings benefits for older workers did not violate the Canadian Charter of Rights and Freedoms.

Subsection 43(1) of the WSIA cuts off loss of earnings benefits when an employee reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury; or two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury.

The appellant worker, Daniel Gouthro, worked for the City of Toronto. He was injured at work when he was 63 years old.  Because of subs. 43(1) of the WSIA, the WSIB cut off his loss of earnings benefits two years after the date of the injury, when he was 65 years old. Gouthro argued that that cut-off was discriminatory and thus violated the Charter.

The Court noted that one of the stated purposes of the WSIA was that the WSIB operate in a “financially responsible and accountable manner”, so loss of earnings benefits cannot be paid for life.  If the WSIA provided that injured workers were to receive loss of earnings benefits until they died, that would imply that people work until they die.  Both intuitively and statistically, that seemed incorrect.  The Court noted that loss of earnings benefits should be replaced by retirement income benefits at an age reflecting typical retirement.

The Court also noted that the WSIA’s cut-off of loss of earnings benefits “does not create a disadvantage based on a stereotypical attribute. It is grounded in the statistically verifiable facts referred to earlier; namely that as of 2008 approximately 90% of Canadian workers stop working at the age of 65 years and 90% of workers injured after the age of 61 return to work within two years.”

As such, the WSIB’s age cut-offs were not discriminatory and remained in effect.

Gouthro v. Workplace Safety and Insurance Appeals Tribunal et al., 2014 ONSC 7289 (CanLII)

 

WSIB Age Cut-off for Loss-of-Earnings Benefits not Discriminatory Against Older Workers: Court

Where MOL Inspector Withdraws OHSA Compliance Order, OLRB Cannot Reinstate While Appeal Argued

Although an employer may appeal a Ministry of Labour inspector’s rescission (withdrawal) of a compliance order that he or she wrote to an employer under the Occupational Health and Safety Act, the Ontario Labour Relations Board cannot suspend that rescission – effectively reinstating the order – until the appeal is decided, the OLRB has held.

In July 2014, an MOL inspector issued 4 orders against the Ontario Ministry of Children and Youth Services.   In August, the inspector rescinded 3 of those orders.

The union, Ontario Public Service Employees Union, appealed the rescission of the 3 orders and asked the OLRB to suspend the inspector’s rescission of those 3 orders pending the result of the appeal.  Effectively, the union was asking for the orders to be reinstated while the appeal was being argued.

The OLRB refused to suspend the rescission of the 3 orders. It stated that the OLRB has authority to suspend the operation of an order, but not of a non-order.  The MOL inspector’s rescission of the order was equivalent to not issuing an order.   There was nothing to suspend.

This means that where an MOL inspector withdraws a compliance order under the OHSA, the order will remain withdrawn unless and until the OLRB, after hearing the full appeal, reinstates the order.

Ontario Public Service Employees Union v Ontario (Ministry of Youth and Children Services), 2014 CanLII 75073 (ON LRB)

Where MOL Inspector Withdraws OHSA Compliance Order, OLRB Cannot Reinstate While Appeal Argued

Court considers safety, fatigue of replacement workers in granting picketing injunction

A British Columbia judge has considered an employer’s concerns for the safety of replacement workers, in granting an injunction against picketing workers.

The employer and Unifor were in a labour dispute.  Unifor was picketing the employer’s place of business.  In an affidavit submitted on the company’s motion for an injunction, a company manager expressed concern over the safety of the replacement workers due to fatigue:

“In addition to the financial consequences of these increased delays and of greater concern to Cascade are the potential health and safety consequences for CanJet and Trenton personnel. It is very rare that we schedule our production work force for 12 hour days for a significant number of days in a row. The reason this is rare is because of a concern we have for the health and safety of the workers due to fatigue. These workers are repairing complex commercial aircraft and are working with complex tools and equipment. During the course of their duties, they are operating flight controls and doing high-skilled professional work that without due diligence could result in significant damage to the aircraft and/or serious injury to personnel. During the time that the bus is stopped when trying to enter or exit the facility, these personnel cannot simply rest as they are constantly subject to picketers yelling, tapping and scraping their picket signs on the bus and peering through the windows of the bus, sometimes with cameras. I have serious concerns that the number of hours these workers are spending at work and on their way to and from work due to the increased delays in crossing the picket line could lead to exhaustion and a serious work place accident.”

Madam Justice Sharma of the B.C. Supreme Court stated that, “In all the circumstances, I find that there is urgency to this application because of the health and safety concerns of the people working for Cascade.”  She added, “It is clear that Cascade may suffer irreparable harm if the injunction is not granted. I am particularly concerned by the escalation of matters since this matter started.”

The employer was therefore entitled to a temporary injunction prohibiting the union members from “blocking, hindering, delaying or obstructing”.

Cascade Aerospace Inc. v. Unifor (Local 114), 2014 BCSC 1461 (CanLII)

Court considers safety, fatigue of replacement workers in granting picketing injunction

Worker who spread rumour that MOL inspector “paid off” by company, and that company was closing, was fired for cause

A worker who contacted a Ministry of Labour inspector with safety concerns but didn’t get the answer he wanted, and then spread rumours that the MOL inspector had been “paid off” by the company, was dismissed for cause, an Ontario judge has decided.

The company, at the wrongful dismissal trial, denied that it dismissed the employee for complaining about safety issues.  The company instead called evidence about a series of concerns with the employee’s performance, including allowing an unauthorized person to enter a restricted area; permitting three employees to leave work for one hour without punching their time card; approving a full skid of product that had labels missing; winking at a female employee and touching her hand; falling asleep during his shift; failing to wear a required face mask; attempting to engage co-workers against the company; and spreading rumours about the MOL inspector.

With respect to those rumours, three co-workers had signed a statement saying that the employee was spreading rumours that the MOL inspector was a “rat” and had been paid by the company to dismiss his complaints.

Shortly after receiving that signed statement, the company terminated the employee’s employment for creating a “poisoned work environment” and spreading false rumours about the MOL inspector. The company claimed just cause for dismissal.

At trial, the employer said that the MOL inspector had attended and had found no violations of the Occupational Health and Safety Act or that they were minor.

With respect to whether the company had just cause to dismiss the employee, the judge decided that the “cumulative incidents were not minor or trifling. They affected the workplace as a whole”.  The employee had been insubordinate and had attempted to harm the employer, including spreading rumours that the company was closing.  The employee had not been fired in retaliation for raising safety issues.  The company had just cause to dismiss the employee.

Chopra v. Easy Plastic Containers Limited, 2014 ONSC 3666 (CanLII)

Worker who spread rumour that MOL inspector “paid off” by company, and that company was closing, was fired for cause

B.C. Appeal Court Clarifies Workplace Accident Reporting Obligations

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

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

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

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

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

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

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

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

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

B.C. Appeal Court Clarifies Workplace Accident Reporting Obligations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Saskatchewan Introduces Ticketing System for Certain Workplace Safety Violations

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

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

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

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

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

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

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

Saskatchewan Introduces Ticketing System for Certain Workplace Safety Violations

Safety committee members lose claims that employer retaliated against them

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

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

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

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

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

Paquet v Air Canada, 2013 CIRB 691 (CanLII)

Safety committee members lose claims that employer retaliated against them

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Government OHSA advisors must be licenced paralegals, court decides

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

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

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

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

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

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

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

Government OHSA advisors must be licenced paralegals, court decides