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Student’s violent outbursts justified teacher’s work refusal: OLRB

A student’s history of violent outbursts justified a teacher’s work refusal, the Ontario Labour Relations Board has decided.

The teacher actually engaged in two work refusals: one when the student became violent (which was resolved by removing the student from the teacher’s class), and the second the next day when the teacher realized that the student was back in her class and that the removal had been only for the remainder of the previous day.

The student was in senior kindergarten. He had engaged in violent behavior at the school in the previous school year, including poking another student in the eye with a stick. In senior kindergarten, the student had more violent outbursts including throwing a stool at the teacher; punching another student; trying to bite and scratch the teacher; and kicking the teacher and scratching her face and eye, for which she was required to go to the hospital. The teacher said that it was impossible to predict when the student’s outbursts would occur.

On the day of the teacher’s first work refusal, the student began to push another student. Anticipating an incident, the teacher had the other students removed from the classroom. The student was left with the Educational Assistant, whom the student began to kick and hit. The student also threw toys at the door. The EA was able to calm the student down. While the student was in the classroom with the EA, the teacher went to the principal’s office and said that she (the teacher) was exercising her right to refuse unsafe work. The principal, after consulting with the teacher, removed the student from the class and spent the rest of the day in the principal’s office.

The next day, the teacher came to school and found the student back in her class. She again refused to work, saying she was concerned that the student would have another violent outburst. A Ministry of Labour inspector attended and determined that there was no reason for the teacher to refuse work under the Occupational Health and Safety Act. The teacher’s union appealed that decision to the OLRB.

The OLRB decided that the teacher’s first work refusal was not justified under the OHSA because at the time, the student’s health and safety was in imminent jeopardy in that the student was a danger to himself if left alone.   Regulation 857 prohibited teachers from refusing to work where the circumstances were such that the life, health or safety of a student was in imminent jeopardy. However, the second work refusal was justified as the teacher had a genuine and honest concern about her safety as a result of the student’s violent behavior. Given the student’s history, that concern was reasonable. The school had put the teacher in a difficult position: not only was the student returned to class, but no one in administration spoke with the teacher in advance. No new measures had been considered in order to deal with the student’s outbursts.

Toronto Elementary Catholic Teachers / Ontario English Catholic Teachers Association v. Toronto Catholic District School Board, 2017 CanLII 37597 (ON LRB)

 

Student’s violent outbursts justified teacher’s work refusal: OLRB

SCC upholds employer’s “no free accident” alcohol and drug policy: Stewart v Elk Valley

On June 15, 2017, the Supreme Court of Canada released its decision in Stewart v Elk Valley Coal Corp. (2017 SCC 30). This is a landmark decision, reinforcing the right of employers to take proactive risk mitigation and management measures through alcohol and drug policies to ensure workplace safety.

In this case, Ian Stewart (“Stewart”) worked in a safety-sensitive mine operated by the Elk Valley Coal Corporation, Cardinal River Operations (“Elk Valley”). The employer implemented an alcohol and drug policy, which among other things, required employees to disclose addiction issues before any alcohol or drug-related incident occurred (“Policy”). Employees who self-disclosed would be offered treatment. Employees who failed to self-disclose in advance of an incident and subsequently tested positive for alcohol or drugs, could be terminated.

Read the full article

SCC upholds employer’s “no free accident” alcohol and drug policy: Stewart v Elk Valley

WSIB benefits to be available in Ontario for “chronic or traumatic mental stress” starting in 2018

Ontario has amended the Workplace Safety and Insurance Act to make WSIB benefits available for “chronic or traumatic mental stress” arising from the workplace, starting January 1, 2018. There will be no retroactive application.

The amendments provide, however, that:

“A worker is not entitled to benefits for mental stress caused by decisions or actions of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.”

As with any type of workplace injury, in order to obtain WSIB benefits for mental stress, the worker must show that the mental stress “arises out of and in the course of” the worker’s employment.  To obtain WSIB benefits for mental stress, the worker must also prove that the mental stress was “chronic” or “traumatic”.

The WSIB has released a draft policy on chronic mental stress and invites comments before July 7, 2017.

Of course, workers employed by employers that are not registered with the WSIB (and not required to be registered) will not be entitled to WSIB benefits for workplace mental stress.

One expects that this change will result in a significant number of claims to the WSIB, since “job stress” is a commonly-raised issue.  Some of those claims might otherwise have manifested themselves as workplace harassment complaints (under the employer’s workplace harassment policy), a harassment application to the Human Rights Tribunal of Ontario, a union grievance, or a claim to the employer’s group benefits insurer under a group long-term disability insurance plan.

A Workplace Safety and Insurance Appeals Tribunal decision in 2014 had determined that the current workplace mental stress provisions of the Workplace Safety and Insurance Act violated the Canadian Charter of Rights and Freedoms in that they discriminated against workers with mental disabilities.  The amendments appear to be, at least in part, a response to that decision.

The section of the Bill that relates to amendments to the Workplace Safety and Insurance Act may be read here.

 

 

WSIB benefits to be available in Ontario for “chronic or traumatic mental stress” starting in 2018

Nova Scotia roofer jailed for 4 months after tenth OHSA conviction

Our blog post of May 29th reported that an Ontario roofer has been sent to jail for one day for an OHSA violation. CBC news has reported that a Nova Scotia judge has sent a roofer in that province to jail for four months after being found guilty for the tenth time of Occupational Health and Safety Act violations – nine of them for failing to ensure that workers used proper fall protection.

According to the CBC, this latest violation occurred only three months after the roofer was sentenced to serve 15 days in jail for previous violations of the OHSA.

This is one of the longest jail terms in Canadian history for violating workplace safety legislation.

CBC reports that the roofer is also required to report all jobs to the Nova Scotia Department of Labour and Education for two years.

The CBC article may be found here.

Nova Scotia roofer jailed for 4 months after tenth OHSA conviction

Corporate director jailed for one day, fined $10,000 for OHSA violation; he had been fined twice before

A director of a roofing company who had two previous convictions for violating the Ontario Occupational Health and Safety Act has been sent to jail for one day after he was convicted for the third time.  He was also fined $10,000 for the same offence.  Jail terms, while still rare, are becoming more common in Ontario for OHSA violations.

The director was charged personally as an employer for failing to ensure that a worker was adequately protected from falling, by use of a travel restraint system, a fall arrest system or a safety net.  A Ministry of Labour inspector had caught the worker working at a height of about 26 feet without fall protection.

The director had been convicted two years earlier for the same offence and fined $4,500, and had also been convicted four years earlier for the same offence and fined $2,000.

The MOL’s press release can be read here.

 

Corporate director jailed for one day, fined $10,000 for OHSA violation; he had been fined twice before

Alberta government signs Memorandum of Understanding with police services setting out new procedures for investigating serious workplace incidents

The government of Alberta and 10 police services recently signed the Westray Memorandum of Understanding. The announcement was made on the National Day of Mourning, which this year commemorates the 25th anniversary of the Westray Mine disaster that took the lives of 26 underground miners in Nova Scotia.

The MoU defines protocols for investigating serious workplace incidents, intended to help investigators determine if criminal charges are warranted in addition to occupational health and safety charges. Previously, police officers and occupational health and safety officers would typically coordinate their investigations; however, the MoU now provides formal procedures for police officers and occupational health and safety officers to assess the situation and determine whether an incident involves potential occupational health and safety violations, criminal activity, or both.

Following the Westray Mine disaster, the Criminal Code was amended to allow criminal charges to be laid for workplace incidents (Bill C-45 or the “Westray Bill”). These charges are generally reserved for very serious cases and to date, there have not been any prosecutions in Alberta under the Westray Bill.

The news release can be found here.

Alberta government signs Memorandum of Understanding with police services setting out new procedures for investigating serious workplace incidents

B.C. bans employers’ mandatory high heels policies in some workplaces: amendments to footwear regulations now in effect

On April 7, 2017, the British Columbia government amended the footwear regulation under the Occupational Health and Safety Regulation, BC Reg 296/97 (the “Regulation”) to specify that employers cannot require a worker to wear footwear that is not of a design, construction, and material appropriate to the protection required, or which does not allow the worker to safely perform his or her work.  The driving force behind this amendment was largely to address health and safety issues arising in hospitality workplaces such as restaurants and bars where employers required employees to wear high heels.

Section 8.22 of the Regulation already required footwear to be of a design, construction, and material appropriate to the protection required. The amendment adds that the footwear must allow the worker to safely perform the worker’s work, and introduces the following elements:

  • The addition of “tripping” and the “potential for musculoskeletal injury” to the list of factors in Section 8.22(2) which must be considered when determining the appropriate protection required of footwear; and
  • A provision prohibiting employers from requiring that workers wear footwear which does not comply with the requirements of appropriate design, construction, and material, or which does not allow the worker to safely perform work (Section 8.22(2.1)).The guideline indicates that the Regulation is not intended to interfere with a worker’s choice of footwear if there are no hazards of foot or ankle injury or potential for musculoskeletal injury. A risk assessment should be made to determine what constitutes appropriate footwear in the context of an employee’s particular duties and workplace, taking into account all of the factors in Section 8.22(2).The guideline has been released initially as a “Preliminary Issue” and will remain marked as such for a 60-day period during which time the public may provide comments to WorkSafeBC.
  • Although the guideline specifically addresses high heels, the amendments to the Regulation are not limited to high heels. The additions to Section 8.22 apply to all types of footwear and any employer dress codes or requirements with respect to footwear.
  • On April 28, 2017, WorkSafeBC introduced a new guideline “G.8.22(2.1) High heels” to assist in the interpretation and application of Section 8.22(2.1). The guideline suggests that high heels – given their lack of ankle protection and foot support – would not be appropriate footwear for hospitality workers who walk on different surfaces, including slippery surfaces and stairs, often while carrying food and drinks, such that they are exposed to hazards such as slipping, tripping, uneven terrain, and the potential for musculoskeletal injury.  A dress code requiring these workers to wear high heels would contravene the Regulation.
B.C. bans employers’ mandatory high heels policies in some workplaces: amendments to footwear regulations now in effect

Loader operator entitled to remain in job despite accidents: insufficient warnings and training, decides arbitrator

A labour arbitrator has ordered an employer to return an employee to his loader operator  position despite the employer’s objection that the employee had caused accidents.

The employee, who had almost 40 years of service including 15 as a loader operator, had been involved in eight incidents in which damage to the employer’s property occurred.  His incident rate of 1.2% was the highest amongst all of its yard loader operators.  After the eighth incident, the employer told him that he was disqualified from the loader operator position and was being transferred to the debarker position. The union grieved.

The arbitrator overturned the transfer. She noted that the employer’s evidence was that the employee had been “involved” in the eight incidents.  The most recent warning was five years before the incident, and only warned him to be more aware of the “whereabouts” of other vehicles, and two years earlier that damage to the employer’s property was not “acceptable”.  At no time was he warned or put on notice that he was viewed as a safety risk and that his employment as a loader operator was in jeopardy.

The arbitrator also noted the absence of evidence that employer provided the employee with training of any sort in an attempt to address performance concerns or assess ability to work safely. The evidence did not support the employer’s conclusion, drawn from the record of incidents, that the employee was no longer able to work safely in the yard loader operator position.

The arbitrator stated that she did not minimize the employer’s “very significant obligations to ensure that the workplace is safe, and to respond to safety issues”.  Based on the absence of warnings or training to address the safety concerns, however, she ordered the employer to reinstate the employee to the yard loader operator position.

Columbia Forest Products v United Steelworkers, Local 1-2010, 2017 CanLII 21145 (ON LA)

Loader operator entitled to remain in job despite accidents: insufficient warnings and training, decides arbitrator

Court orders condo owner who harassed building management staff to cease and desist. OHSA harassment provisions applied

A condominium owner who called building management staff offensive and degrading names has been ordered by a judge to cease and desist from harassing them. The decision shows that the Ontario Occupational Health and Safety Act’s harassment provisions can require an employer to take steps to end harassment by third-parties.

The condo owner frequently and persistently emailed staff.  She also called them degrading names such as “obscenely obese”, “massive hulk” and “tubbo”. She suggested that she was deeply concerned about the management of the building.

The condominium corporation sought a cease-and-desist order from the court. The judge noted that the owner’s “verbal barrage has made work life intolerable” for the staff. The judge described her communications as “antisocial, degrading and harassing”.  Her conduct was workplace harassment under the OHSA. It was clearly unwelcome, and the employer had a legal duty under the OHSA to investigate it.

The judge ordered the condo owner to “cease and desist from uncivil or illegal conduct that violates the Condominium Act or the Rules” of the condo corporation. The judge also ordered her to pay the condo corporation $15,000 for its legal costs in the court proceeding.

York Condominium Corp No 163 v Robinson, 2017 ONSC 2419 (CanLII)

Court orders condo owner who harassed building management staff to cease and desist. OHSA harassment provisions applied

New Requirements for BC Joint Health and Safety Committees

If you operate a workplace in British Columbia with 10 or more workers, you may need to make some changes to your workplace health and safety practices.

Recent amendments to British Columbia’s Occupational Health and Safety Regulation (OHSR) took effect on April 3, 2017 that introduce new training, evaluation and investigation requirements for worker health and safety representatives and joint health and safety committees.

What’s Old?

Once a BC workplace reaches a certain size, workers must be involved in workplace health and safety. Workplaces that regularly employ 10 to 19 workers must have a worker health and safety representative and workplaces that regularly employ 20 or more workers must establish a joint health and safety committee made up of employer and worker representatives.

The role of worker health and safety representatives and joint committees is to work with the employer to identify and find solutions to workplace health and safety issues. This includes, among other things, identifying unsafe work conditions, dealing with health and safety complaints, evaluating the sufficiency and compliance of health and safety practices and participating in inspections, investigations and inquiries under the Workers Compensation Act and the OHSR.

These requirements remain in place.

What’s New?

The OHSR amendments make changes in three areas:

  • Annual Evaluation of Joint Committees – The employer must ensure that a written evaluation of the joint committee is conducted each year. The evaluation may be completed by the joint committee co-chairs (or their designates), the employer or a third party retained by the employer. WorkSafeBC has created an evaluation tool to assist employers, which can be found at http://worksafebcmedia.com/test/jc/index.php.
  • Training – New worker health and safety representatives and joint committee members must complete health and safety training upon their appointment. Joint committee members must complete 8 hours of training and worker health and safety representatives must complete 4 hours. The requirement is met if the person has previously completed the training.
  • Role in Investigations – Worker health and safety representatives and joint committees must participate in the employer’s workplace health and safety investigations (which are separate from WorkSafeBC investigations). This obligation is not new, but the scope of that participation has been clarified to specifically include providing assistance to the investigator with gathering and analyzing information and identifying corrective action.

The OHSR can be found here.

New Requirements for BC Joint Health and Safety Committees

Safety officer, fired after company loses COR certification, wins wrongful dismissal lawsuit

A safety officer whose duties included maintaining his employer’s Certificate of Recognition (COR) certification was not fired for just cause, a court has decided. The company claimed that it lost its COR certification due to his failure to complete certain COR requirements by an end-of-year deadline.

The judge noted that the COR certification “recognizes a high standard of industrial/commercial safety and thereby creates several associated benefits for companies that maintain certification”, and “A COR designation gives a company significant credibility as a leader in high safety standards. Further, it is a prerequisite to serving certain clientele, such as the municipalities of Edmonton and Calgary, and creates significant reductions in WCB premiums.”

The company lost its COR certification when the safety officer failed to meet certain COR requirements including the requirement that an external auditor receive an application for an audit by the December 31 deadline.  The company viewed this as “‘potentially disastrous’ to the company, as it jeopardized several contracts with both the City of Edmonton and the City of Calgary.”

The court found that the safety officer naively believed that, despite the lack of assistance available to him, he could complete necessary internal safety audits in time or get an extension. The court stated, “Naiveté is not dishonesty.  I find he honestly believed that he would obtain this extension of time.”  The application for an extension of time was rejected, the company lost its COR certification, and the employee was fired.

The court noted that the safety officer had become very ill with an autoimmune disease. Also, his supervisor left the company and his new supervisor worked in another city, which meant that they would no longer have daily interactions. The court decided that the employer had repudiated the employment relationship by eliminating the assistance that the safety officer required from other employees to carry out his duties, and eliminating the supervision and support that he required.  The safety officer had pleaded for help and “this plea fell on deaf ears”.

As such, the termination was without just cause. The safety officer, who had four years of service and earned $82,400 per year, was entitled to six months’ notice of termination.  His damages, after deducting his mitigation income from new employment, were $28,709.00.

We understand that this decision has been appealed.

Tipon v. Fleet Brake Parts & Service Limited, 2017 ABPC 29 (CanLII)

Safety officer, fired after company loses COR certification, wins wrongful dismissal lawsuit

Worker entitled to sue coworker for failure to report absence of or defect in protective equipment: court

An Ontario judge has allowed an injured worker to proceed with his lawsuit against a coworker for failing to report the absence of or defect in fall arrest equipment.

The injured worker was hired by a friend to assist in roofing a customer’s house.  He fell from the roof and was badly injured.  He was not wearing appropriate fall arrest equipment.

The injured worker sued his friend and the homeowner.  He sought to later add a coworker and his company (who apparently were there on the day of the accident, and also completed the roofing work after the accident) as defendants to the lawsuit.  The coworker sought to have the claim against him and his company struck out, arguing that there was no legal cause of action against him. The judge disagreed.  He stated that the injured worker had an “arguable cause of action” against the coworker and his company for negligence, “informed by their failure to report . . . the absence of or defect in any safety equipment [the injured worker] used or any unsafe conditions or contravention of the OSHA [sic] or regulations thereunder, pursuant to s. 28(1)(c) or (d)” of the OHSA.

Those sections of the OHSA impose a legal duty on each worker to “report to his or her employer or supervisor the absence of or defect in any equipment or protective device of which the worker is aware and which may endanger himself, herself or another worker” and “report to his or her employer or supervisor any contravention of this Act or the regulations or the existence of any hazard of which he or she knows.”

Interestingly, the parties appear not to have argued whether the injured worker’s lawsuit was barred by the Workplace Safety and Insurance Act because the injury arose out of and in the course of employment.

MacPherson v Samuel, 2017 ONSC 2024 (CanLII)

Worker entitled to sue coworker for failure to report absence of or defect in protective equipment: court

Bullied to death? PEI WCB awards benefits to widow after finding a link between workplace bullying and fatal heart attack

The Workers Compensation Board of Prince Edward Island recently awarded WCB benefits to the widow of a worker who died of a heart attack in November 2013. The worker had suffered a workplace back injury a few months earlier and had recently returned to work. According to the widow’s submissions to the WCB, the worker was bullied at work by his supervisor and did not feel he was receiving the proper support from his employer.

The worker’s family had initially approached the WCB about the availability of benefits, but were advised that because the death was not caused by a workplace injury, benefits were not available to them. The worker’s estate, widow and children subsequently commenced a court action against the employer and supervisor claiming damages. The claim alleged that the worker died from heart failure as a result of workplace bullying, and that the work conditions led to stress, anxiety and physical symptoms which ultimately caused his fatal heart attack.

The Supreme Court of PEI initially dismissed the action on the basis that it did not have jurisdiction as there was a collective agreement in place that governed, and so there were other remedies available to the plaintiffs including grievance arbitration and a WCB claim. On appeal, the PEI Court of Appeal reversed the decision, finding that the PEI Fatal Accidents Act did give the Court jurisdiction over the claim brought by the dependents. The Court of Appeal also considered whether a stay was appropriate on the basis that the claim was within the jurisdiction of the Workers Compensation Act. However, the Court was unable to decide that issue on the limited record, reminding the parties that the WCB can adjudicate and determine whether a right of action is removed by the Workers Compensation Act.

The plaintiffs returned to the WCB seeking a determination. The WCB confirmed that a workplace accident could include bullying and harassment. After receiving submissions from the parties, the WCB determined that the worker’s death was linked to workplace bullying and harassment, thus entitling the widow to benefits. The employer has filed an appeal with the WCB so this is likely not the last word.

While WCB policies may vary across the country, the basic premise behind WCB benefits is the same – the historic trade off whereby employers fund a no-fault insurance scheme to compensate injured workers for workplace injuries and in return, workers give up the right to sue the employer. In order for a claim to be compensable, there must have been a workplace accident.

In Alberta, the WCB’s cardiac policy states that in order for cardiac claims to be compensable:

  • there must be evidence of occupational exposure to factors or events known or presumed to be associated with heart problems; and
  • the time period between the occupational exposure and the onset of the cardiac condition is such that a relationship can be established.

The policy also list some examples of occupational exposures which can cause cardiac conditions, including psychological causes, involving exposure to significant and acute psychological stress.

Therefore, while the PEI decision appears to be a unique case, with the proper facts and medical evidence, and the relatively recent focus on issues of workplace bullying, we can expect to see more claims for benefits relating to workplace bullying and harassment. In the meantime, employers should ensure that they have (and follow!) appropriate policies and procedures in place to address workplace bullying and harassment.

The Court of Appeal decision can be found here.

 

Bullied to death? PEI WCB awards benefits to widow after finding a link between workplace bullying and fatal heart attack

“Your ugly face”: employer’s condescending, aggressive, hostile and profane behaviour in one meeting resulted in constructive dismissal. Nurse awarded 24 months in damages

The Ontario Court of Appeal has upheld a 24-month damage award to a long-service nurse in a doctor’s office who believed that she had been fired during a hostile meeting with her employer.

The doctor for whom she worked wanted her to look into electronic medical records (EMR).  She was overwhelmed with a heavy workload and did not get to it.  The doctor angrily confronted her in a meeting, at which the doctor’s wife was also present.  The court found that the doctor, in his anger, said, “Go! Get out! I am so sick of coming into this office every day and looking at your ugly face.”  He also pointed at her, shouted at her, accused her of being resistant to change, and used profanity during that meeting.  The employee, distraught, left the meeting and never returned to work. The employer treated her as having quit. The employee sued for wrongful dismissal.

The trial judge decided that although the doctor did not intend to dismiss the nurse, he did in fact fire her when he told her to “Go! Get out!”

Even if the doctor had not fired the employee, he had constructively dismissed her, the trial judge stated.  Although the meeting was only one incident, it was sufficient to constitute a constructive dismissal.  The trial judge wrote:

“An employer owes a duty to its employees to treat them fairly, with civility, decency, respect and dignity.  An employer who subjects employees to treatment that renders competent performance of their work impossible, or continued employment intolerable, exposes itself to an action for constructive dismissal.  Where the employer’s treatment of the employee is of sufficient severity and effect, it will be characterized as an unjustified repudiation of the employment contract.”

The trial judge found that the doctor’s behaviour was condescending, aggressive, hostile and profane.  His conduct diminished the nurse’s stature and dignity in the office.  When the doctor saw the emotional impact that his comments had on her at the meeting, he did nothing.  He had made her continued employment intolerable, and effectively destroyed the employment relationship.

The trial judge awarded this 22-year employee 24 months’ salary in damages for wrongful dismissal.  The appeal court upheld this award.

The trial judge’s decision can be read here, and the appeal court’s decision here.

 

“Your ugly face”: employer’s condescending, aggressive, hostile and profane behaviour in one meeting resulted in constructive dismissal. Nurse awarded 24 months in damages

Workers flee during MOL investigation, roofing company fined for obstructing inspector

A roofing company has been fined $40,000 under the Occupational Health and Safety Act, including $15,000 for obstructing a Ministry of Labour inspector.

The MOL inspector had gone to the site because of a complaint.  He observed workers on the roof without fall protection, hardhats or safety boots.

According to the MOL press release, the company’s workers “fled the worksite during the investigation, and the company failed to respond to correspondence and the direction of the inspector.”

In additional to the $15,000 fine for obstruction, the company was also fined $20,000 for the lack of fall protection, $2,500 for the lack of hard hats, and $2,500 for the lack of protective footwear, for a total of $40,000.

The MOL press release says that the company had two prior convictions under the OHSA, and that the company’s owner has also been previously convicted and fined under the OHSA.

The Ministry of Labour press release may be found here.

 

Workers flee during MOL investigation, roofing company fined for obstructing inspector

Lunchtime car accident a matter for WSIB, not courts, WSIAT rules

The Ontario Workplace Safety and Insurance Appeals Tribunal has ruled that an employee who was injured at lunchtime in a car accident was barred from suing the other driver in court.  Instead, he must go through the WSIB for his injury benefits.

The employee, a sales manager for a food company, was taking his son and a daughter of a colleague to lunch in his company vehicle when the other driver ran a red light and collided with the vehicle.  The other driver was employed with a company that was registered with the WSIB as a “Schedule 1” employer.

The WSIAT ruled that even though it was lunchtime, the injured employee was “in the course of his employment” because on the same trip he planned to see a client and pick up a cheque for his employer, which was a regular task for him.  The car trip had a “dual purpose” and was not solely personal time.  As such he was entitled to claim WSIB benefits, and barred from suing the other driver in the courts because the other driver was employed with a “Schedule 1” employer.

The employee claimed that his employer had registered with the WSIB after the accident, and therefore that he was entitled to sue the other driver in the courts.  The WSIAT ruled that even if his employer has registered with the WSIB after the accident, the employer was a “Schedule 1” employer, and therefore the employee was not entitled to sue in the courts.

Decision No. 1572/16 (Ontario Workplace Safety and Insurance Appeals Tribunal)

Lunchtime car accident a matter for WSIB, not courts, WSIAT rules

OLRB confirms 30-day hard-stop deadline for appealing Ontario MOL inspectors’ compliance orders

A recent Ontario Labour Relations Board decision confirms that the 30-day deadline for appealing Ministry of Labour health and safety inspectors’ compliance orders under the Occupational Health and Safety Act cannot not be extended.

An MOL inspector visited a mortuary and issued five compliance orders including an order to seal certain flammable liquids in sealed containers of not more than 23 litres and in a special metal cabinet.

The employer filed its appeal of two orders with the OLRB 40 days after the MOL inspector issued those orders – that is, ten days after the deadline.

The OLRB stated:

There is no provision in the Act that permits the Board to extend the time period prescribed by subsection 61(1) of the Act within which an appeal must be made to the Board.  That is, the Board does not have the discretion to relieve against appeals that are filed beyond the statutory 30 day time frame . . .  Quite simply, the Board does not have the jurisdiction to extend the 30 day time period provided by the Act to appeal an inspector’s order.

As such, the OLRB dismissed the appeal in respect of the two orders that were appealed late.

The decision is a reminder to employers to ensure that if they intend to challenge MOL inspectors’ compliance orders, the appeal must be filed with the OLRB within 30 days.

Ottawa Mortuary Services v Egrmajer, 2017 CanLII 11813 (ON LRB)

OLRB confirms 30-day hard-stop deadline for appealing Ontario MOL inspectors’ compliance orders

Arbitrator disagrees that grievor’s interference with air quality test was a deliberate act of sabotage and replaces termination with a lengthy suspension

In this recent Alberta arbitration case, the employer had been dealing with safety issues involving excessive carbon monoxide levels. Carbon monoxide readings in the employer’s facility were often beyond the regulatory levels and the employer had taken several steps to try to reduce them. The City of Calgary ultimately issued an order requiring the employer to either reduce the levels or face a potential plant closure.  The employer hired a consultant to perform the necessary testing. A two day test was set up that involved setting up stationary air quality monitors in the facility, as well as having individuals carry personal air quality monitors while they went about their daily work routine.

On the first day of the test, the grievor was seen moving one of the stationary monitors. When confronted, he replied that he had switched his personal monitor for the stationary one so that the test would take into account his personal exposure. He acknowledged that he did this without authorization. The employer treated this as a serious safety risk as he tampered with the testing process. He had also previously interfered with an air quality test. The employer considered his conduct to be a violation of the company’s safety responsibilities and of its Vision, Mission, Values and Objectives policy. The employer took the position that the grievor had fundamentally breached the trust relationship between them and terminated his employment. The union grieved the termination.

The arbitrator found that the evidence established that the employer was committed to resolving the air quality issue. However, he did not accept that the grievor’s conduct was an act of  sabotage and noted that the grievor’s conduct did not create a safety violation or threat. Nevertheless, the arbitrator acknowledged that the grievor had interfered with a planned scientific test, potentially corrupting its results, and that his conduct warranted discipline. The question was whether termination was appropriate.

The arbitrator noted that the employer’s policies required employees to be vigilant in ensuring safety. The evidence also established that another employee had previously removed a monitor without authorization but was not disciplined. The arbitrator also considered that the grievor had not been made aware of the potential consequences of his actions before he moved the monitor and when he appreciated the implications of what he had done, he admitted his mistake and apologized. Ultimately, the arbitrator held that the employer had not established that the grievor had deliberately tried to sabotaged the tests. What the evidence did establish is that the grievor knew, or ought to have known, the significance of moving the monitor without authority. This conduct was serious and was deserving of appropriate discipline which took into account two previous disciplinary offences.

After reviewing all of the circumstances, the arbitrator  allowed the grievance as he was not persuaded that the employment relationship had been irretrievably severed. He substituted a lengthy, 90 day, suspension, without pay, for the termination.

Cement, Lime, Gypsum And Allied Workers (International Brotherhood Of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers And Helpers, Local Lodge D345) v Certainteed Gypsum Canada Inc., 2017 CanLII 10827 (AB GAA)

Arbitrator disagrees that grievor’s interference with air quality test was a deliberate act of sabotage and replaces termination with a lengthy suspension

Threats of violence, one day after “sensitivity training”, get worker fired for cause. He “may have a problem with women in the workplace, especially women managers”, says arbitrator

A worker who said, “If anything ever happened, like losing my job, I’d have no problem coming in here and shooting them”, a day after receiving sensitivity training relating to workplace violence, was dismissed for cause, an arbitrator has decided. The worker, a fare collector, had taken the training after giving the finger to an “obstreperous customer”.

He made the “shooting them” threat while speaking with a coworker about the materials from the training session, to which he remarked, ” Can you believe this?”  After the coworker tried to make light of the situation, the worker said that he would kill only managers, not union employees.

The coworker reported the threat to management, who then fired the worker, who filed a union grievance.

The arbitrator found that the worker had made the threat, despite the worker’s denial.
The coworker had no motive to make false allegations. The two employees had had a friendly relationship.

Despite the worker’s 25 years of service, the arbitrator decided that the employer had just cause for dismissal. The worker never admitted the threats nor apologized. He had a disciplinary history including discipline for an incident in which he was unable to control his anger. Significantly, he made the threats one day after taking sensitivity training designed to help him control his anger and understand the seriousness of workplace violence. He also had an unfounded view that female employees were conspiring to get him, showing that he “may have a problem with women in the workplace”.  All of these factors “did not bode well for the future” were he to be reinstated.

Toronto Transit Commission v Amalgamated Transit Union, Local 113, 2017 CanLII 11071 (ON LA)

Threats of violence, one day after “sensitivity training”, get worker fired for cause. He “may have a problem with women in the workplace, especially women managers”, says arbitrator

“Safety Engineering Letter of Opinion” dealing with OHSA obligations disallowed by court in civil lawsuit

A “Safety Engineering Letter of Opinion”, styled as an “expert report” and covering Occupational Health and Safety Act obligations, was struck and its author was prohibited from testifying at the trial of a civil lawsuit.

The lawsuit arose from an accident involving the towing of a disabled motor vehicle at a scrapyard. Some defendants sought to have the author of the Safety Engineering Letter of Opinion testify about obligations under the OHSA, apparently to show that a co-defendant (the operator of the scrapyard) breached its OHSA obligations and therefore was negligent.

The court stated that the Safety Engineering Letter of Opinion drew “legal conclusions” that were beyond its author’s expertise. There was no “specialized standard of care” for which expert evidence was required. To the extent that the OHSA was relevant in the lawsuit, the parties could direct the court to look at the OHSA’s provisions.

Interestingly, the court stated at paragraph 34:

“[The Safety Engineering Letter of Opinion] raises no other statutory or common law duties which the AIM defendants may have owed to Awada [the injured party]. The OHSA did not apply to Awada while he was on AIM’s weigh scale. He was a third-party. The OHSA applies only to workplace relationships between employers and workers. Any duties owed by the AIM defendants to Awada are governed by the Occupiers Liability Act, R.S.O. 1990, c. O.2 and the common law, not by the OHSA. Both Awada and Wehbe have pleaded the Occupiers Liability Act and the Negligence Act; they have not made any allegations with respect to the OHSA.”

The court noted that the scrapyard operator had produced materials relating to its Emergency Response Procedures, Occupational Health and Safety Policy, Safety Enforcement Policy, and Workplace Responsibilities. The court stated that if there was an allegation that the scrapyard operator was negligent in failing to provide one of its employees with appropriate safety training so as to ensure that he was a “competent person”, those documents can be referred to.  The parties could also ask the trial judge to direct the jurors to the relevant provisions of the OHSA and regulations without any need to consider the Safety Engineering Letter of Opinion.

In the result, the court struck the Safety Engineering Letter of Opinion and prohibited its author from testifying as a witness at trial.

Awada v Glaeser, 2017 ONSC 1094 (CanLII)

 

“Safety Engineering Letter of Opinion” dealing with OHSA obligations disallowed by court in civil lawsuit