2011: THE YEAR IN COMPLIANCE: Ontario Reforms, Safety Gets Psychological and C-45 Returns to Hibernation

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If you like legislation, 2011 wasn’t your year. True, Ontario OHS reform, Bill 160, was the year’s biggest compliance story and BC Bill 14 extending workers’ comp coverage to gradual mental stress, was also a blockbuster. But most of the big compliance happenings across Canada this year involved not the making of new laws but the application of old ones. Psychological safety, workers’ comp “forum shopping” and changes to OHS enforcement patterns aren’t the kinds of stories that draw headlines—to the extent they get noticed at all. But these are the developments that are affecting you and your safety program.

As we do every year, the Insider breaks down the biggest stories in OHS compliance in 2011 and what they bode for 2012 and beyond. We’ve also handed out our awards for accomplishments, both positive and dubious.

THE 5 BIGGEST STORIES OF THE YEAR

1. Ontario OHS Reform

Fair or unfair, Ontario safety professionals have a reputation for seeing their province as the center of the OHS universe. In fact, most of the OHS lawmaking innovation of recent years has come from provinces such as BC, Manitoba, Saskatchewan and Québec. Still, Ontario is the most populated province and when it enacts big laws, it makes news. Thus, we voted the Ontario OHS reform law, Bill 160, the top compliance story of 2011.

The seeds of Bill 160 were sown on Christmas Eve 2009 with the collapse of an elevated platform at a Toronto high-rise that caused four migrant workers to plunge 29 storeys to their death. The public outcry resulted in the establishment of an OHS reform panel headed by Tony Dean. The commission’s report, issued on Dec. 16, 2010, cites “major gaps and opportunities” in Ontario’s current OHS system, including:

  • Lack of co-ordination in government safety policy and enforcement;
  • Breakdown in the Internal Responsibility System, particularly with regard to workers’ roles;
  • The need to concentrate resources on the most vulnerable workers and respond to the unique needs of small business; and
  • The imperative of making workplace safety a societal value.

A mere five months later—breathtaking speed for legislation—Ontario passed Bill 160. The key aspects of the bill:

  • Reorganization of the OHS system, including establishment of a Chief Prevention Officer (CPO) and Prevention Council and shifting of prevention duties from the WSIB to the MOL;
  • Authority of the CPO to adopt broad new training requirements, including OHS awareness for workers and supervisors, and hazard-specific training; and
  • Ability of MOL inspectors to assert claims on behalf of workers who are fired or suffer other reprisals for raising safety concerns or exercising other OHS rights.

The lesson: Other than the reprisal provisions, Bill 160 is essentially just an enabling law. The real impact on employers will be felt when the MOL and CPO actually exercise their new Bill 160 authority and adopt detailed training requirements. Even as we speak, the training regulations are being drafted. Although MOL sources are noncommittal about timing, the new training requirements could come as early as 2012—although 2013 seems more likely.

But OHS reform isn’t just about training. Look for the MOL to adopt new enforcement policies and procedures in 2012, including:

  • A new mandatory workplace poster listing the rights of workers, duties of supervisors and employers and MOL contact information;
  • New advisory committees on small business and vulnerable workers;
  • New guidelines for MOL inspectors on laying charges for reprisals; and
  • Internal review of current MOL “ticketing” practices.

What’s taking place in Ontario is bound to have some impact in other parts of the country. For example, this July, Saskatchewan announced that it was undertaking its own OHS review. Look for other jurisdictions to do likewise. But in terms of substance, there’s not a lot of groundbreaking stuff in Bill 160 or even the Dean Report. Most of the ideas, such as awareness training for new workers and administrative monetary penalties, are initiatives already being implemented in other jurisdictions.

Insider Says: Use the OHS Insider’s Ontario OHS Reform Compliance Center to keep up with OHS reform progress.

2. The Duty to Provide a Psychologically Safe Workplace

When the industrial revolution began, workers were sent into the factories, mines and mills with no protection. The 20th century’s response was to adopt OHS and workers’ comp laws protecting workers from hazards such as machinery, chemicals, electricity, etc. In the past decade, the laws have evolved to cover not just physical but psychological hazards. This trend continued in 2011:

  • In Feb., Manitoba became the latest jurisdiction to require employers to protect workers from psychological harassment, including bullying, intimidation and humiliation;
  • In Feb., Nunavut and NWT added explicit requirements to their OHS regulations on workplace violence to protect workers from “injury,” defined as including “any impairment of [a person’s] physical or mental condition”; and
  • In June, the Mental Health Commission of Canada, Bureau de normalisation du Québec and CSA announced that they were working together to develop a national standard for psychological health and safety in the workplace to be released in 2012.

The lesson: Psychological safety as an OHS duty is now firmly rooted across much of the country. The next phase in the psychological safety evolution is starting to shift to workers’ comp. The devastation of work-related stress on mental health and productivity has been well documented. Current workers’ comp rules cover work-related stress but only if it’s directly caused by a discrete traumatic event that happens at work, such as witnessing a co-worker get killed. The problem, of course, is that mental damage often comes about not in response to a single traumatic event but as a result of the gradual build-up of stress over time. So why isn’t it covered by workers’ comp? Answer: Because gradual and cumulative stress is hard to trace back to work or any other single source.

On Nov. 3, BC became the first jurisdiction to pooh pooh this concern and propose extending workers’ comp coverage to mental stress developed gradually in a “cumulative series of significant work related stressors,” such as being bullied or sexually harassed at work. Although well-intentioned, Bill 14 is likely to open Pandora’s box, releasing a torrent of expensive and hard-to-litigate new claims. So it remains to be seen whether other jurisdictions will offer up similar legislation.

Insider Says: The OHS Insider’s Psychological Safety Compliance Center will help you keep up and comply with this fast-changing new aspect of OHS law.

3. Supreme Court Slams Door on Workers’ Comp “Forum Shopping”

One of the biggest stories in 2011 OHS compliance is the recent Canadian Supreme Court case addressing a nasty little practice known as “forum shopping.” The case involves the BC Workers’ Comp Board’s policy of paying a fixed amount (2.5% of total disability) for chronic pain. Three workers covered by the policy felt like they were getting a raw deal. So after going through the workers’ comp process, they decided to bring a brand new lawsuit for damages with the BC Human Rights Tribunal, claiming that the Board’s chronic pain policy was a form of disability discrimination. The case ultimately landed in the Supreme Court.

The Court dismissed the case. The Board’s ruling on the workers’ benefits was final—not just under workers’ comp rules but in terms of the human rights aspects of the case, it reasoned. So the Human Rights Tribunal had no jurisdiction, that is, legal authority, to decide if the Board’s chronic pain policy was disability discrimination [BC (Workers’ Comp Board) v. Figliola].

The lesson: Although it might seem like a lot of legal jargon and procedure, the Figliola case has potentially enormous—and extremely positive—implications for employers. The right to challenge workers’ comp benefits decisions in human rights tribunals in separate disability discrimination lawsuits has become a problem across Canada. The Figliola case should help put an end to this abusive forum shopping, in not only BC but also Ontario and other jurisdictions where injured workers disappointed with their workers’ comp benefits have been using disability discrimination lawsuits as a second chance to re-litigate their claims.

4. Prosecution of Safety Coordinator

One of 2011’s biggest headlines was the Nova Scotia prosecution of a housing authority’s safety coordinator, James Della Valle, for not doing enough to protect maintenance workers after learning that insulation in the attic space contained asbestos. (The housing authority and two supervisors were also charged.) Because Nova Scotia doesn’t impose specific duties on safety coordinators (no jurisdiction does), Della Valle was found liable under Sec. 17 of the OHS Act for violating his “general duty” as an “employee” to protect his own safety and that of co-workers and fined $1,000 [R v. Della Valle].

The lesson: The Della Valle case is not unprecedented. In 2007, another Nova Scotia safety coordinator named Bernard Dearing pleaded guilty as an “employer” to failing to “establish and maintain a written occupational health and safety program” in a case involving a fatality that occurred during the dismantling of an old steel mill in Sydney. It remains to be seen whether prosecution of safety coordinators catches on outside Nova Scotia.

But the significance of Della Valle isn’t just the fact that a safety coordinator was prosecuted; the case also illustrates how courts are likely to evaluate whether safety coordinators exercised due diligence. As in most due diligence cases, the issue was whether Della Valle had taken what a “reasonably prudent person” would consider “reasonable steps” to prevent the violation. How did the court know what steps were “reasonable” in the circumstances? Answer: It looked at Della Valle’s own job description. Not notifying his supervisor and the JHSC that asbestos was present and ensuring that a hazard assessment was undertaken before work in areas containing asbestos was undertaken was a failure by Della Valle to live up to the safety responsibilities listed in the job description for his position, said the court.

5. Crown Nixes C-45 Prosecutions

When the year began, we wondered whether the surge of C-45 prosecutions that occurred in 2010 would continue into 2011. It didn’t. C-45 remained largely dormant. Of course, lack of C-45 prosecutions is dog-bites-man; but this year, the story had a man-bites-dog twist. Not once but twice, the Crown declined to pursue C-45 charges in high profile cases:

  • In March, Ontario dropped criminal negligence charges in a case involving the fatal collapse of a crane at a Sault Ste. Marie construction site because it had “no reasonable prospect of conviction based on the evidence”; and
  • Citing lack of evidence, BC prosecutors dismissed criminal negligence charges against Weyerhauser for a sawmill fatality, which had been brought by the steelworkers union in a rare private criminal prosecution.

The lesson: Unions have been calling for more rigorous enforcement of C-45 since the law took effect in 2004. The decision not to pursue criminal charges in these two very high profile cases due to lack of evidence shows just how hard prosecutors think it is to secure a conviction under C-45. Thus, although public sentiment is almost always a factor in prosecutorial decision making, political pressure alone is unlikely to lead to more C-45 prosecutions.

WHAT TO EXPECT IN 2012

OHS inspections, prosecutions and fines will almost surely continue to increase all across the country in 2012. But more OHS enforcement is something we’ve all come to expect. What’s likely to be different in 2012 and subsequent years isn’t the intensity as much as the pattern of OHS enforcement. There are four things to keep an eye on:

More targeted inspections. Historically, OHS inspections were random and/or in response to complaints or incidents. In July 2009, Ontario shifted to “blitzes,” targeted inspections concentrating on specific hazards and high risk industries and operations. This year, Alberta adopted the model—although not the “blitz” name—targeting forklifts and powered mobile equipment, young workers and residential construction. Saskatchewan also conducted a targeted inspection campaign focusing on fall protection. Look for other jurisdictions to adopt the same tactics.

Evening & weekend inspections. This year, Alberta began a pilot program of evening and weekend inspections and will continue it in 2012; evening and weekend inspections are also a key recommendation of the Dean Report.

Group prosecution of workers. Prosecuting workers for OHS violations is nothing new. But a 2011 Saskatchewan case involving the prosecution of not one, or even two, but seven construction workers for not using fall protection could signal a new prosecutorial tactic of treating groups of workers who don’t follow safety rules as accomplices to an OHS offence [David Nicholson, Govt. News Release, Nov. 8, 2011].

Administrative Monetary Penalties (AMPs). AMPs are additional fines that can be imposed on companies without a formal prosecution; a company hit with AMPs can also be prosecuted for the same offence. AMPs are commonly used to enforce environmental laws. But in 2011, Nova Scotia became the fifth jurisdiction to impose AMPs for OHS violations—the others are BC, MB, NB and YK. AMPs for serious and repeat OHS offences were part of the Dean Report but that recommendation didn’t make it into Bill 160. But AMPs could very well be part of the next wave of Ontario OHS reform.

Workers’ comp reform in Ontario. Legislatively, workers’ comp reform in Ontario will be a huge story in 2012. The workers’ comp reform process is currently where OHS reform was last year at this time—under the consideration of a special task force (called the Arthurs Commission) expected to issue its recommendations by year’s end. It could get ugly for employers. The WSIB is sitting on a $7 billion operating deficit that somebody is going to have to pay for. And we all know who that somebody is going to be. So if you think Ontario workers’ comp rates are high now, just wait until you see what happens with Arthurs!

We’ll reconvene next year at this time to look back at how 2012 went. In the meantime, all of us at the Insider wish all of you a safe and prosperous year.

Glenn S. Demby
Managing Editor

SHOW YOUR LAWYER

British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, Oct. 27, 2011

David Nicholson, SK Govt. News Release, Nov. 8, 2011

R v. Della Valle, [2011] NSPC 67 (CanLII), Sept. 14, 2011

Key Developments by Jurisdiction

 

JURISDICTION

KEY OHS DEVELOPMENTS

Federal

  • C-9: Changes to work refusal procedure
  • Changes to Rail Safety Act

Alberta

  • More stringent COR standards
  • Targeted OHS inspection program
  • New forklift safety guidelines
  • Distracted driving law

BC

  • Bill 14, which would extend workers’ comp coverage to gradual mental stress
  • Changes to work refusal guidelines
  • Adoption of revised ACGIH OELs for various substances
  • Technical changes to OHS regulations affecting respirators, guardrails, biohazards, etc.

Manitoba

  • New psychological harassment regulations
  • Mandatory workplace violence assessment and programs for designated workplaces, such as healthcare, education, crisis counselling and retail sales[not the only ones]

New Brunswick

  • Changes to fall protection regulations
  • Distracted driving law

Newfoundland & Labrador

  • End of designated smoking rooms
  • New fall protection training requirements

Northwest Territories & Nunavut

  • Distracted driving law

Nova Scotia

  • Higher OHS fines

Ontario

  • Bill 160, OHS reform law
  • WSIB adopts more stringent reintegration requirements for injured workers
  • Consolidation of confined spaces regulations
  • Changes to mining regulations

Prince Edward Island

  • First year under new workers’ comp industrial classification system

Québec

  • Higher OHS fines
  • Changes to diving safety regulations

Saskatchewan

  • Launch of full scale OHS reform á la Ontario
  • Changes to commercial vehicle weight and dimensions restrictions

Yukon

  • Distracted driving law
  • Expansion of workers’ comp cancer coverage for firefighters