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Constructor made mistake of law, not fact: convicted of OHSA charge

A constructor that argued the “mistake of fact” due diligence defence was instead found to have made a “mistake of law” and was convicted of a charge under the Occupational Health and Safety Act. 

A construction employee was injured when a large slab of ice fell from the face wall of a water intake tunnel being constructed.  A few minutes before, workmen suspended by a crane in a basket had been chipping away ice from that area.  The constructor was charged with three offences under the Occupational Health and Safety Act.  The second charge, which the Ministry of Labour inspector admitted alleged “technical” safety violations that played no role in the accident, alleged that the constructor failed to ensure that a load rating chart, prepared by a professional engineer, was affixed in a conspicuous place on the crane.

The crane operator admitted that he was “still waiting” to receive the load rating chart from the professional engineer.  As such, the appeal court found that the constructor guilty on the second charge.

The constructor argued the “mistake of fact” branch of the due diligence defence. It argued that there was a rating chart at the base of a removable plywood platform (that is, at the workers’ feet) that was a suitable “variation” on the legal requirement.  It also purported to rely on a “comfort” letter from an engineering firm. The appeal court held, however, that any mistakes the constructor made were “mistakes of law not fact”: the variations were not permissible because the employer had not given written notice to the joint health and safety committee, and the engineering firm’s letter did not refer to the regulation and could not, in any event, displace the requirements of the regulation.  A mistake of law is not a defence.  As such, the constructor was convicted on the rating chart charge.  Two other charges against the constructor were dismissed.

Ontario (Ministry of Labour) v. Dufferin Construction Company, 2014 ONCJ 652


Constructor made mistake of law, not fact: convicted of OHSA charge

Dismissal of safety-reprisal complaint set aside where employee, mistaken about start time, failed to attend hearing

An employer is facing a resurrected Ontario Labour Relations Board safety-reprisal hearing after the case was dismissed when the employee failed to attend the hearing.

The OLRB dismissed the complaint as abandoned after the employee failed to attend the hearing, which was scheduled to start at 9:30 am.  The OLRB, as is its practice, waited 30 minutes before it dismissed the application. The employer’s representatives were in attendance.

The next day, the employee sent a letter to the OLRB stating that he mistakenly arrived for the hearing at 11:30 am believing that it would start at noon.  He said that he had assumed the noon start time because the previous mediation in the case had started at that time.

The OLRB stated that while it had sympathy for the employer, the employee had demonstrated an effort to participate in the hearing.  He had traveled from Ottawa to Toronto only to find out that he was incorrect about the starting time, and had immediately notified the OLRB about the error and sought to have the complaint re-listed. The OLRB agreed to re-list the complaint for hearing, and overturned the dismissal.

Boville v Alltrade Industrial Contractors Inc, 2014 CanLII 50099 (ON LRB)

Dismissal of safety-reprisal complaint set aside where employee, mistaken about start time, failed to attend hearing

Welcome to Dentons

You will have noticed that the look of this occupational health and safety law blog has changed – a lot!  We are delighted to announce our new global law firm, Dentons.  And much more than our firm colours has changed.

On March 28, FMC combined with international firms Salans and SNR Denton. Each founding firm has built its solid reputation and valued clientele by responding to the local, regional and national needs of a broad spectrum of clients of all sizes—individuals; entrepreneurs; small businesses and start-ups; local, regional and national governments and government agencies; and mid-sized and larger private and public corporations, including international and global entities.

We are now working together with 2,500 talented lawyers and professionals -including many occupational health and safety lawyers - in 79 locations in 52 countries across Africa, Asia Pacific, Canada, Central Asia, Europe, the Middle East, Russia and the CIS, the UK and the US.  Please see Introducing Dentons for an overview of our new firm.

These are very exciting times — for our clients, for our work and for the insights we bring to this blog. To find out more about our new firm, about what makes Dentons different, please visit www.dentons.com.

Welcome to Dentons

Results of MOL’s School Safety Enforcement Initiative

The Ontario Ministry of Labour has released results of its enforcement initiative in Ontario schools, which resulted from the tragic death of an Ottawa area student while cutting a steel barrel.

The enforcement initiative appears to have focused on woodworking shops, technological education labs and shops (auto body, construction, and manufacturing courses) and science labs. 

MOL inspectors conducted almost 2,000 visits to more than 900 workplaces including schools and school board offices.  They issued more than 6,600 compliance orders for a total of more than 3 orders per visit. 

The most common compliance orders related to exposed moving parts on machines, slippery work surfaces, unsafe ladders and a lack of guardrails, guarding devices on equipment, lifting devices and personal protective equipment.

The resutls of the MOL’s school safety initiative can be found here.

Results of MOL’s School Safety Enforcement Initiative

$200,000 Criminal Safety Fine for Company, $90,000 OHSA Fine for Director in Deaths of 4 Workers

We recently reported that Metron Construction had pleaded guilty to criminal negligence in respect of the Christmas Eve 2009 deaths of four workers who fell 13 floors when a suspended work platform collapsed.

On Friday, July 13th, the court imposed a historic fine of $200,000 on Metron Construction in relation to that guilty plea.  The prosecutor had requested a fine of $1 million against Metron.

The court also imposed a fine of $90,000 on Joel Swartz, an owner of Metron Construction, for four offences under the Ontario Occupational Health and Safety Act.  The fine against Schwartz is 90% of the maximum fine for individuals.

A Victim Fine Surcharge was added to all fines.

According to the Toronto Star, the judge said that the combined fines totaled more than “three times the net earnings of the business in its last profitable year.”

The Ontario Ministry of Labour, in its press release, notes that:

“A Ministry of Labour investigation found that the deceased workers had not been properly tied off to a lifeline, and had not been properly trained in the use of fall protection. The swing stage had been overloaded and it was later determined to be defective and hazardous.”

The Toronto Star reported that Metron Construction admitted, in an agreed statement of facts put before the court, that the site supervisor, who was one of the four workers who died, had directed the workers to the scaffold knowing that only two lifelines were available; that the site supervisor permitted employees under the influence of drugs to work on the project; that toxicology analysis showed that three of the four workers who died, including the site supervisor, had marijuana in their systems from recent ingestion; and that the scaffold was improperly designed and had defective welding.

The Toronto Star also reported that the fines met with “outrage” from the president of the Ontario Federation of Labour.  Union leaders have been calling for stronger enforcement of criminal safety provisions that came into force in 2004 under what is known as Bill C-45.

The Ministry of Labour notes that other defendants facing charges stemming from this incident are still before the court.

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



$200,000 Criminal Safety Fine for Company, $90,000 OHSA Fine for Director in Deaths of 4 Workers

Dismissal for Shovel Threat Void where Employer also Relied on Outdated Discipline

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)

Dismissal for Shovel Threat Void where Employer also Relied on Outdated Discipline

MOL Safety Inspectors Should be “Compliance-Focused” not “Enforcement-Focused”: Ontario’s “Regulator’s Code of Practice”

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:

  • “For those who are in full compliance, consider providing compliance assistance.
  • For situations where there is no previous history of non-compliance, consider providing compliance assistance as well as progressive compliance and enforcement action, where appropriate.
  • For situations where there is repeated history of non-compliance, consider using progressive compliance and enforcement actions.
  • For situations where the level of risk is immediate and serious, use your organization’s appropriate enforcement actions.”

Those four categories suggest what is already commonly understood: that employers with a history of non-compliance with the OHSA are more likely to be charged at least in cases of relatively minor safety violations than employers with a history of compliance.

The Code also states that compliance staff should demonstrate honesty and integrity, respect, objectivity, confidentiality, knowledge and competencies.

The Regulator’s Code of Practice may be accessed online at http://www.labour.gov.on.ca/english/about/regulatorscode.php

MOL Safety Inspectors Should be “Compliance-Focused” not “Enforcement-Focused”: Ontario’s “Regulator’s Code of Practice”

Asbestos Exposure did not Cause Colon Cancer: Ontario WSIAT

A mining worker’s exposure to asbestos did not cause his colon cancer, the Ontario Workplace Safety and Insurance Appeals Tribunal has held.

The worker worked for a “nickel producer” for approximately 38 years from 1959 to 1997, first in a mill, then in a smelter, and then in maintenance and construction.  Less than 3 years after he retired, he was diagnosed with colon cancer.

The WSIAT found that although the worker had been exposed to asbestos, the exposure was not of a “continuous and repetitive nature” or a “major component” of his work.

The WSIAT also accepted the evidence of a specialist in occupational medicine that the medical literature overwhelmingly supports the statement that colon cancer is not related to asbestos exposure, and that there was no evidence of a relationship between the worker’s exposure and his colon cancer.

2012 ONWSIAT 4:  http://www.wsiat.on.ca/Decisions/2012/2293%2006.pdf


Asbestos Exposure did not Cause Colon Cancer: Ontario WSIAT