OHS Insider 2014 Year in Review

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A roundup of important new legislation, regulations, court cases and board rulings that we covered in the OHS Insider newsletter  and on OHSInsider.com in 2014.

TOP 5 FINES ACROSS CANADA

1. $325,000 (AB)

A worker died when the power pole he was climbing fell over and crushed him. The power company pleaded guilty to an OHS offence and was fined $325,000 [Rokstad Power Corp., Govt. News Release, Sept. 2, 2014].

2. $280,000 (SK)

After a workplace fatality at the Allan mine site, the mining company pleaded guilty to one violation of the OHS laws and was fined $280,000 [Potash Corporation Inc., Govt. News Release, Oct. 22, 2014].

3. $275,000 (AB)

Workers had installed a storm sewer pipe and were lowering a vertical manhole barrel to be connected to that pipe into an excavation with an excavator. Heavy winds blew the excavator’s door open. As the operator reached for the door, his elbow hit a control, causing the excavator to rotate and swing the barrel. It hit and killed a worker in the excavation. The employer pleaded guilty to failing to use a tag line on the load and was fined $275,000 [R. v. Sureway Construction Ltd., [2013] ABPC 355 (CanLII), Dec. 18, 2013].

4. $275,000 (AB)

A worker suffered fatal injuries when a steel man basket fell on him. His employer pleaded guilty to violating Sec. 2(1)(a)(i) of the OHS Act and was fined $275,000 [I.D. Oilfield Services Ltd., Govt. News Release, Jan. 16, 2014].

5. $275,000 (ON)

An explosion at a mill created a large hole in the roof and a debris field with a radius of about 300 feet. A mill worker was killed and a subcontractor’s workers required medical attention. The mill pleaded guilty to a safety offence and was fined $275,000 [Terrace Bay Pulp Inc., Govt. News Release, April 4, 2014].

YEAR IN REVIEW BY JURISDICTION

Click on the jurisdiction below to see the complete year in review.

FEDERAL

LAW OF THE YEAR

WHMIS/GHS

Changes to the Hazardous Products Act (HPA) and related laws were granted Royal Assent on June 19, 2014. The government then introduced proposed Hazardous Products Regulations to replace the Controlled Products Regulations and implement the GHS in Canada. Comments to them were accepted through Sept. 8, 2014. Final regulations are expected to be published in late 2014 or early 2015, with the goal of having the updated WHMIS laws in force by June 2015.

OTHER NOTABLE REGULATORY CHANGES

Canada Labour Code

Changes to Part II of the Canada Labour Code introduced in Bill C-4 took effect on Oct. 31, 2014. The bill made key changes to the definition of “danger” and the work refusal process.

Transportation of Dangerous Goods

The government took various steps in response to the train incident in Lac-Mégantic, including, issuing a protective direction that requires rail companies to share information on the transportation of dangerous goods with municipalities.

In April, Transport Canada took the following actions to address the TSB’s initial recommendations from the ongoing investigation into the derailment:

  • Issued a Protective Direction removing the least crash-resistant DOT-111 tank cars from dangerous goods service
  • Required DOT-111 tank cars used to transport crude oil and ethanol that don’t meet the standard published in Jan. 2014 or any other future standard, to be phased out or refitted within three years
  • Issued a Protective Direction requiring ERAPs for crude oil, gasoline, diesel, aviation fuel and ethanol
  • Created a task force to strengthen emergency response capacity across the country
  • Required railway companies to reduce the speed of trains carrying dangerous goods and implement other key operating practices.

In July, new dangerous goods regulations, which were published in the Canada Gazette, Part II, on July 2, 2014, took effect. They clarify how the danger placard is to be used to identify shipments of certain classes of dangerous goods contained in small packages and introduce new safety marks to identify organic peroxides, marine pollutants and other dangerous goods transported in limited quantities.

Also in July, Transport Canada published amendments to the Transportation of Dangerous Goods Act that:

  • Update the DOT-111 tank car standard
  • Introduce new and revised means of containment criteria
  • Improve how dangerous goods are classified
  • Harmonize the way these goods are labelled across North America.

CASE OF THE YEAR

Mixed Decision on Rail Company’s Drug and Alcohol Policy

A union challenged various aspects of a rail company’s drug and alcohol policy as unreasonable, and violating workers’ rights and the collective agreement. An arbitrator struck down several parts of the policy but upheld others. For example, the arbitrator ruled that a ban on workers from reporting for duty with blood alcohol concentration levels greater than “0” and the imposition of post-accident drug/alcohol testing without limitation were unreasonable. But she upheld a requirement that workers being certified for safety critical and safety sensitive positions submit to drug/alcohol tests as part of the certification process [Bombardier Transportation v. Teamsters Canada Rail Conference—Division 660, [2014] CanLII 5318 (CA LA), Feb. 10, 2014].

OTHER NOTABLE CASES

Reasonable to Designate Millers and Their Assistants as First Aid Attendants

An employer chose the millers and millers assistants in its plant to be the designated first aid attendants for all employees as required by OHS law. Although these workers were willing to be the first aid attendants for their fellow millers and millers assistants, they objected to doing so for other workers. So the union filed a grievance, claiming the employer unreasonably exercised its management rights. It’s critical that first aid attendants be present when a worker needs medical help before an ambulance arrives. What distinguishes millers and millers assistants from other workers is that they’re always at the plant when they or other employees are working, noted the arbitrator. Thus, designating them as first aid attendants was “practically and operationally logical” as well as reasonable, the arbitrator concluded [United Food and Commercial Workers’ Union, Local 1518 v. Rogers Foods Ltd. (Armstrong Plant First Aid Attendants Grievance), [2013] C.L.A.D. No. 329, Nov. 4, 2013]. 

No Cause to Fire Worker for ‘Cardinal Violation’ in These Circumstances

At an oilseed processing facility, canola meal pellets were stored in bins. An unloader device attached to the centre of the bin sweeps the pellets into a hole, where they fall into hopper cars or trucks. A worker was trying to operate the unloader, which wasn’t working. He attached a pipe wrench to the shaft of a gear box and turned on the device. The wrench pushed his hand against the motor, breaking his finger. The facility fired him for committing a “Cardinal Violation” of its safety rules. But an arbitrator found that he was unjustly dismissed. The worker’s actions were a momentary albeit serious lapse in judgment. But he had no prior violations in 11.5 years as an employee. He also admitted his error and took responsibility for it. Thus, the arbitrator concluded that a one month suspension was more appropriate [Shuya v. ADM Agri-Industries Co., [2014] C.L.A.D. No. 259, Oct. 1, 2014].

Supreme Court Strikes Down Prostitution Laws on Safety Grounds

Although prostitution isn’t illegal, many of its related activities are illegal. Three current or former prostitutes challenged those laws, arguing the laws prevented them from taking reasonable steps to make their working environment as safe as possible and reduce the risk of violence, such as hiring security guards. The lower courts in Ontario struck down the three laws. The Supreme Court of Canada agreed, ruling that these laws violated prostitutes’ Charter right to security. The prohibitions heighten the risks women face in prostitution, which is a legal activity. They also impose dangerous conditions on prostitution by preventing prostitutes from taking steps to protect themselves from these risks. And while the Court agreed that the government had the power to regulate against nuisances, it couldn’t do so at the cost of the health, safety and lives of sex workers [Canada (Attorney General) v. Bedford, [2013] SCC 72 (CanLII), Dec. 20, 2013].

ALBERTA

CASE OF THE YEAR

Arbitrators Reject Random Drug & Alcohol Testing Policy for Oilsands

An oil and gas company attempted to impose a random drug and alcohol testing policy on its workers. The union challenged the policy, arguing that it would violate workers’ rights to privacy, respect and dignity in the workplace. In 2012, a court granted the union an injunction against the policy and sent the case to arbitration. The arbitration panel sided with the union, ruling that there’s no evidence of an out-of-control drinking or drug culture at the company. The random testing policy was an unreasonable exercise of the company’s management rights because the policy has no time limits to review its effectiveness, isn’t targeted as narrowly as possible, doesn’t use the least intrusive or most accurate testing measures available and doesn’t have provisions for communicating with workers about false positives [Suncor Energy, March 26, 2014].

OTHER NOTABLE CASES

Due Diligence Defence Rejected as to Conveyor Belt Incident

A worker bent down to plug in a portable scale under a moving conveyor belt. She felt something tug her from behind. She tried to use her hands to avoid getting pulled into an unguarded drive shaft. The worker lost some hair, injured her hand and part of her thumb was amputated. The employer was charged with two OHS violations. The court convicted the employer, rejecting its due diligence defence. It was reasonably foreseeable that the unguarded drive shaft posed a safety hazard. But the employer didn’t take reasonable steps to protect workers from this hazard, such as by guarding the shaft, properly training workers on the dangers of conveyors or posting signs warning people to be cautious around conveyors [R. v. Value Drug Mart Associates Ltd., 2014 ABPC 164 (CanLII), July 29, 2014]. The court later concluded that an $80,000 fine was appropriate [R. v. Value Drug Mart Associates Ltd., [2014] ABPC 255 (CanLII), Nov. 12, 2014].

AB Court Finds Employer Liable for Worker’s Negligent, Unauthorized Driving

A worker for a roofing company was given access to the company truck and trailer, which were parked at the jobsite where he was working. The company’s principal told him not to drive the truck and use it only to keep required tools and supplies and to stay warm (it was winter). But the company did give him the keys to the truck. Despite his instructions, he drove the truck on a personal errand and negligently caused a traffic accident in which another driver was injured and sued the worker and the roofing company. At trial, the court found that the company wasn’t liable for the worker’s negligent driving. So the injured driver appealed. The Alberta Court of Appeal overturned the trial court’s decision, ruling that the company was liable for the worker’s negligent driving under the Traffic Safety Act because the worker/driver was in possession of the vehicle with its express or implied consent [Mustafi v. All-Pitch Roofing Ltd., [2014] ABCA 265 (CanLII),  Aug. 20, 2014].

Injury Caused by Violation of Safety Rule Still Covered by Workers’ Comp

A worker reached into a moving part of a machine to retrieve an object. As a result, he suffered a broken arm. His workers’ comp claim was accepted but the employer appealed, arguing that he was hurt when he intentionally violated a safety rule. The Appeals Commission noted that injuries suffered due to serious and wilful misconduct aren’t covered by workers’ comp. Here, the worker was trained on and knew about the employer’s lockout rule. But although he broke that rule, his actions were impulsive, not carefully thought out and devoid of regard for probable consequences. Thus, concluded the Commission, his behaviour didn’t meet the policy definitions and requirements of “serious and wilful misconduct” and so his injury was covered by workers’ comp [Decision No: 2014-0343, [2014] CanLII 29801 (AB WCAC), June 4, 2014].

Inappropriate Angry Outburst Didn’t Warrant Termination

After a lockout tag was put on a driver’s truck indicating it needed service and couldn’t be used, he stormed into the lead mechanic’s office, yelling and making gestures that the mechanic took as threats of violence. Other workers escorted the driver out of the office before there was any actual violence. The employer investigated the incident and then fired the driver for violating its harassment and violence policy. The union argued termination was excessive. The arbitrator found that the driver had an inexcusable outburst of anger toward a co-worker, who didn’t deserve such treatment. And he never apologized. But he didn’t make any specific threats of violence nor did any actual physical violence occur. In addition, it was the driver’s first infraction and the employer’s policy didn’t mandate termination for violations. Thus, the arbitrator concluded that a lesser form of discipline would be more appropriate [Waste Management of Canada v. CAW, Local 4050, [2013] 71953 (AB HRC), Nov. 1, 2013].

Firing Worker for Innocent Absenteeism Was Disability Discrimination

A 25-year-old was hired as a process operator trainee. After training was complete, he was absent from work multiple days due to illness. After he was out for about four months due to a non-work related hand injury, the company fired him on his return for poor attendance. The Human Rights Tribunal concluded that the worker’s medical issues were disabilities under the law. The company fired him for innocent absenteeism due to these disabilities, without ever warning him that termination was a possibility. And it didn’t accommodate him or prove that doing so would be an undue hardship. So the Tribunal concluded the company had committed disability discrimination and ordered it to pay the worker more than $40,000 in total damages [Saunders v. Syncrude Canada Ltd., [2013] AHRC 11 (CanLII), Nov. 21, 2013].

5 Day Suspension More Appropriate than Firing for Repeated Hardhat Violations

After a worker was repeatedly reminded to wear his hardhat and verbally warned of the possible consequences of his continued failure to do so, a manufacturer finally fired him for these safety infractions. The union argued that the worker should’ve been suspended before being terminated. The arbitrator noted that the manufacturer had a progressive discipline process. It skipped the suspension step because of the worker’s “stupid and pigheaded” attitude toward the hardhat rule. But there was no evidence that suspending him would’ve been pointless or ineffective. Rather, it might have given him the chance to change his conduct. So the arbitrator substituted a five day suspension for his termination [OEM Remanufacturing v. Christian Labour Association of Canada, [2014] CanLII 228 (AB GAA), Jan. 6, 2014].

Company and Worker Fined $94,000 for Serious Hand Injury

A worker was removing ice from a conveyor when his hand became caught between the running conveyor belt and a scraper, causing serious injuries. The company pleaded guilty to failing to report the injury as soon as possible. The court fined it $90,000. A worker also pleaded guilty to a safety offence and was fined $4,000 [Stony Valley Contracting Ltd. and Jeremy Worden, Govt. News Release, May 12, 2014].

BRITISH COLUMBIA

LAW OF THE YEAR

Combustible Wood Dust

Three new OHS policies, which were developed to identify reasonable steps for employers, workers and supervisors as to the hazards of combustible wood dust, took effect on Sept. 1, 2014:

OTHER NOTABLE REGULATORY CHANGES

OHS Guidelines

In Jan. WorkSafeBC released new or revised OHS guidelines on the following:

  • Combustible dust – Sawmill facilities
  • Excluded confined spaces
  • Training requirements for operators of elevating work platforms
  • Inspection and certification of elevating work platforms
  • Electrical safety – Insulated elevating work platform
  • Electrofishing – Course(s) acceptable to WorkSafeBC
  • Oil and gas – Flow piping
  • Concrete formwork and falsework – Inspections.

In May, guidelines for the following requirements were updated:

  • Prescription safety eyewear
  • Faller training and forestry operation faller training
  • Fire extinguishers
  • Cylinders of breathing air
  • WHMIS supplier labels and supplier MSDSs.

In July, OHS guidelines for the following topics were added or revised:

  • Homeowners as employers
  • Physical or mental impairment – Recreational diving instructors
  • Flammable and combustible materials – Manual cleaning
  • Controlling exposure – Investigating symptoms
  • Blasting operations
  • Medical certification and fitness of recreational diving instructors
  • Forestry operations.

And in Oct., guidelines for the following were added or revised:

  • Jurisdiction over mines
  • Prompt compliance
  • Alternative standard for high-visibility apparel
  • Unfired explosives.

CASE OF THE YEAR

Two Sawmills Fined for Fatal Fires and Explosions

On Jan. 20, 2012, there was a fire and explosion at a sawmill in which two workers died and many were injured. WorkSafeBC imposed an administrative penalty on the mill company of $97,500 and a claims cost levy of $914,139.62, for a total of $1,011,639.62 [Babine Forest Products Ltd., Govt. News Release, April 3, 2014]. An explosion at another sawmill caused the mill’s northern bag house to erupt in flames. The sawmill itself also caught fire and was destroyed. Two workers died and many were injured. WorkSafeBC imposed an administrative penalty on this sawmill of $97,500 and a claims cost levy for $626,663.28, totaling $724,163.28 [Lakeland Mills Ltd., Govt. News Release, July 29, 2014].

OTHER NOTABLE CASES

Utility Didn’t Have Duty to Report Incident Involving Another Employer’s Worker

A worker was injured when he contacted a live power line. His employer called the utility for help rescuing him, which the utility provided. The utility didn’t report the incident, arguing that it wasn’t an employer in this case. The utility was charged with violating the reporting requirement. A court ruled that it was unreasonable under these circumstances to conclude that the utility was an employer with a reporting duty and ordered a review of the violation. A review officer said the utility had a reporting duty here not only as an employer but also as the owner of the site with a “significant connection” to the incident. A court again disagreed and so did an appeals court, which ruled that the review officer failed to consider that the OHS law addresses the duties of owners and doesn’t include a reporting duty for them [BC Hydro and Power Authority v. Workers’ Compensation Board of BC, [2014] BCCA 353 (CanLII), Sept. 15, 2014].

BC Arbitrator Upholds Influenza Control Policy for Healthcare Workers

The Health Employers Association of BC implemented an Influenza Control Program Policy, which required all covered individuals to be vaccinated annually against influenza or wear a surgical/procedure mask during influenza season when in a patient care area. During an actual influenza outbreak, the mask-wearing requirement would be suspended and standard policies regarding exclusion and the use of anti-viral medications would apply instead. Workers who violated the policy would be subject to discipline. The union claimed the policy was unreasonable and violated workers’ privacy rights. The BC arbitrator upheld the policy as a valid exercise of the employer’s management rights. The arbitrator noted that influenza can be a serious—and even fatal—disease, especially for the elderly and those with underlying medical conditions. In addition, the flu vaccine, while not perfect, does reduce the risk of infection. And because workers have a choice between immunization and masking, the policy accommodated those who object to getting a flu shot for medical or other reasons [Health Employers Assn. of BC v. Health Sciences Assn. (Influenza Control Program Policy Grievance), [2013] B.C.C.A.A.A. No. 138, Oct. 23, 2013].

Prime Contractor Failed to Properly Supervise Painting Contractor

At a residential construction site, two workers employed by a painting contractor were injured in a fall from a ladder. The prime contractor was issued an administrative penalty for OHS violations and appealed, arguing that the painting contractor was at fault and it had exercised due diligence to ensure the contractor complied with the OHS laws. The Tribunal disagreed. The prime contractor had a general oversight system, but failed to effectively oversee this worksite and the painting contractor. It simply told the painting contractor what his duties were but didn’t otherwise supervise him, assuming he would comply. The Tribunal concluded that although the painting contractor was obviously at fault, the prime contractor’s failure to adequately supervise him reflects its breach of its own safety obligations [WCAT-2013-03358 (Re), [2013] CanLII 80101 (BC WCAT), Nov. 29, 2013].

Employer’s Supervision as to Fall Protection Failed Due Diligence Test

A safety officer saw two workers at a worksite installing roofing material. Although they were wearing fall protection harnesses, they weren’t attached to lifelines. As a result, the employer was penalized for a fall protection violation. It blamed the workers, arguing that they were experienced roofers who’d been properly trained and had the appropriate fall protection equipment. The Tribunal agreed that the employer had properly trained the workers as to fall protection. But it didn’t adequately supervise them. The employer had prior fall protection violations and so its system of spot checks clearly wasn’t motivating workers to comply. The employer should’ve done more to ensure their compliance with the fall protection requirements, such as requiring non-compliant workers to get additional training. Thus, it didn’t exercise due diligence, concluded the Tribunal [WCAT-2013-03241 (Re), [2013] CanLII 79442 (BC WCAT), Nov. 21, 2013].

OK to Fire Mining Worker for Endangering Safety of Truck Drivers

A mining supervisor told the worker in charge of the dump deck that because the material was muddy, all loads should be dumped short of the edge, where he should then shovel it over. But the worker let several trucks go all the way to the edge to dump their loads. He was fired for this safety infraction and sued, claiming he’d just made a misjudgment. The arbitrator upheld his firing. The mine was a highly safety-sensitive workplace. The worker was responsible for the safety of the truck drivers in the dump deck. And by letting them go to the edge to dump their loads when specifically instructed not to do so, he exposed them to a serious safety risk just to make his job easier. Plus, he minimized what happened, added the arbitrator [Teck Coal Ltd. v. International Union of Operating Engineers, Local No. 115, [2014] CanLII 2131 (BC LA), Jan. 20, 2014].

Employer Failed to Supervise Workers Operating Its Leased Crane

An employer supplied a crane, along with an operator and rigger, to a prime contractor. The prime contractor directed the employer’s workers to operate the crane outside the safe zone established by the employer. While doing so, the crane came into contact with an energized power line. WorkSafeBC imposed an administrative penalty on the employer for failing to provide adequate supervision. It appealed, arguing that the prime contractor had assumed the duties of an “employer” under the law at the time of the incident. The Tribunal found that the employer didn’t take adequate steps to confirm that the prime contractor was qualified to assume responsibility for supervising its workers operating its crane or to clearly communicate who would be responsible for supervising them. Thus, the employer failed to exercise due diligence when it largely abdicated its responsibilities for supervision once the crane was rented by the prime contractor [WCAT-2014-01871 (Re), [2014] CanLII 42633 (BC WCAT), June 20, 2014].

Construction Project Manager Properly Fired for Drug-Related Conduct

A general contractor’s project manager was responsible for safety on the jobsite. The contractor fired the manager and afterwards learned that he’d used a company cell phone to solicit drugs from a worker he supervised. The manager sued for wrongful dismissal. The contractor argued “after-acquired cause,” claiming that his conduct was a gross breach of contract and undermined workplace safety. The court agreed. So the manager appealed. The appeals court dismissed the lawsuit. The trial court had properly used a contextual approach and considered all the factors relevant to the manager’s conduct, job and the workplace. It was in the court’s discretion to give more weight to some factors, such as the fact the manager was in a safety-sensitive position in a dangerous industry and admitted engaging in criminal conduct [Van den Boogaard v. Vancouver Pile Driving Ltd., [2014] BCCA 168 (CanLII), May 1, 2014].

Seven Month Unpaid Suspension Imposed for Risky Planer Feeder Infraction

A supervisor and worker saw a planer feeder operator put a small piece of broken board on chains moving it toward rollers. As it neared the rollers, the operator jumped back. The employer fired him for engaging in unsafe conduct. An arbitrator rejected the argument that the operator was trying to sabotage the workplace and this process. The operator admitted putting the broken board on the chains, intending to remove it before it reached the rollers. But he was too late and so jumped back to protect himself. This conduct was reckless and endangered himself and others in the workplace and thus warranted discipline. And the operator had previously shown poor judgment as to safety. However, given that he took responsibility for his actions and no one was hurt or property damaged, a seven month unpaid suspension was more appropriate, concluded the arbitrator [West Fraser Mills Ltd v. United Steelworkers, Local 1-425, [2014] CanLII 38242 (BC LA), July 9, 2014].

Use of Foreign Workers at Mine Doesn’t Make Site Unsafe

A union challenged the government’s amendment of a permit letting a mining company use foreign workers, claiming that such workers don’t speak English and so make the site unsafe. The court dismissed the challenge on procedural grounds but did address the substantive argument. The permit’s amendment was consistent with the Mines Act and took into account the Health Safety and Reclamation Code for Mines in BC, which only imposes language requirements on workers who fall into certain supervisory categories. The government knew the mining company planned to use temporary foreign workers who might have limited English abilities but concluded there was no health or safety risk that couldn’t be managed. And of course, health and safety concerns would be monitored in the mine on an ongoing basis as required by law, added the court [United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union v. British Columbia (Chief Inspector of Mines), [2014] BCSC 1403 (CanLII), July 24, 2014].

Death Threat to Supervisor Warranted Termination

A worker got into a dispute with his supervisor and threatened to kill him, saying he’d get him outside of work. The disagreement continued outside the supervisor’s office, where the worker said in front of another supervisor that his supervisor was “going to have to pay for this man to man.” The supervisor called the police. And as a result of these threats, the employer fired the worker. The union filed a grievance. The worker denied making threats, didn’t apologize and showed no remorse. The arbitrator didn’t give credence to his denial given all of the facts, including a 3rd party witness. A threat to kill a co-worker is one of the most serious employment offences a worker can commit, said the arbitrator. And this worker had a history of prior incidents involving physical and verbal altercations with co-workers. He’d been warned about and disciplined for such conduct. Thus, his termination in these circumstances wasn’t excessive, concluded the arbitrator [Tolko Industries Ltd. v. United Steelworkers, Local 1-417 , [2014] CanLII 22238 (BC LA), April 23, 2014].

Five-Day Suspension for Not Wearing Safety Glasses Is Appropriate

A charge hand saw a worker using the trim table without wearing safety glasses as required by company policy. He asked the worker multiple times to put on safety glasses and the worker refused. Given that the worker had a previous three-day suspension for a similar offence, the company suspended him for five days, which the union challenged. An arbitrator found that the worker wasn’t wearing safety glasses and was told more than once to wear them. The worker had a prior suspension for the same safety infraction. And such infractions must be taken seriously. Thus, the arbitrator concluded that the five-day suspension was warranted and not excessive [Terminal Forest Products Ltd v. United Steel, Paper and Forestry, Rubber, Manufacturing Energy Allied Industrial and Services Workers International Union, Local 1-1937, [2014] CanLII 26397 (BC LA), May 26, 2014].

Court Issues Injunction Against Union Picketers on Safety Grounds

An employer and union were in a labour dispute, with union members picketing the workplace. The employer asked a court to issue an injunction against the union based on an escalation of conduct that it believed endangered the health and safety of workers. It specifically claimed that increased delays in crossing the picket line could lead to worker fatigue and result in a safety incident. The court noted that these delays had increased from a few minutes to more than three hours. Concluding that there was evidence of a concern for workers’ health and safety, the court issued an interim injunction, barring the picketers from “blocking, hindering, delaying or obstructing” entry or exit from the facility [Cascade Aeroscape Inc. v. Unifor (Local 114), [2014] BCSC 1211 (CanLII), June 22, 2014].

Court Upholds Worker’s Murder Conviction for Shooting of Boss Who Fired Him

After a company fired a worker, he was escorted from the premises, quite angry. He returned to the workplace the next day during the company holiday party. Using a shotgun, he killed one of the executives who’d fired him. The worker was convicted of second degree murder and appealed. The court said there was ample evidence that the shooting wasn’t accidental as the worker claimed. For example, there were many eye witnesses and he told a police officer soon after the shooting that he’d just killed “his boss who had ruined his life.” So it was reasonable for the jury to conclude that it was a planned and deliberate killing, concluded the court [R. v. Kirkpatrick, [2013] BCCA 526 (CanLII), Dec. 9, 2013].

MANITOBA

LAW OF THE YEAR

OHS Laws

New and amended provisions of the OHS act and regulation took effect on April 1, 2014. Highlights:

  • Provides immediate fines for activities presenting an imminent risk to workers or backsliding to unsafe conditions after complying with an improvement order
  • Penalizes employers that prevent workers from exercising their OHS rights
  • Gives Manitoba Workplace Safety and Health the authority to issue a stop-work order to prevent an employer from engaging in a specific task that may place workers at imminent risk of serious injury or illness
  • Clarifies employers’ duties to provide workplace-specific OHS orientations
  • Outlines the role and scope of Manitoba’s new chief prevention officer position
  • Clarifies the criteria for granting of an exemption from a regulatory provision or JHSC requirement for multiple workplaces
  • Requires employers to ensure that each safety and health representative or JHSC member is trained to competently fulfil his duties.

OTHER NOTABLE REGULATORY CHANGES

Workers’ Comp

In Oct., the government proclaimed Bill 65, the Workers Compensation Amendment Act. Highlights:

  • Retaliation by an employer against any person who exercises any rights or duties under the Workers Compensation Act is barred
  • The WCB is required to take action to prevent workplace injuries and illnesses
  • The maximum fines for violations of the Act were increased to $5,000 for workers and $50,000 for all others
  • The administrative penalty provisions were expanded.

CASES OF THE YEAR

$187,500 Fines Imposed in Two Cases

A worker suffered fatal head injuries when he was struck by a metal bar while removing a fabric panel from a temporary structure at a dam site. The employer pleaded guilty to failing to provide the necessary equipment to dismantle a temporary structure and was fined $187,500 [Lafarge Canada Inc. Concrete Products Manufacturing, Govt. News Release, April 25, 2014]. In another case, a worker was using heavy equipment to place a portable steel bumper near the edge of an opening when the equipment fell over the edge, falling approximately 120 feet to the ground below. The employer pleaded guilty to failing to ensure the placement of a bumper by a worker was performed in a safe manner and was also fined $187,500 [Vale Canada Ltd., Govt. News Release, June 18, 2014].

OTHER NOTABLE CASES

Worker’s Death Results in $118,800 Fine

A worker died after being pinned between drill collars situated on a hydraulic pipe rack. The employer pleaded guilty to failing to ensure that a worker used procedures to minimize risks to safety when working in close proximity to drill collars stored on a rack. It was fined $118,800 [Precision Diversified Oilfield Services Corp., Govt. News Release, May 12, 2014].

Worker’s Serious Injury from Steam Explosion Results in $93,800 Fine

A worker was seriously injured while removing molten metal from a slag pit. A steam explosion occurred when molten metal made contact with water that had accumulated in the pit area. The employer pleaded guilty to failing to ensure that work performed in the removal of molten metal from a slag pit was performed in a safe manner. It was fined $93,800 [Gerdau Ameristeel Corp., Govt. News Release, Sept. 4, 2014].

Utility Fined More than $68,000 after Worker Suffers Serious Burns

A worker was trying to secure energized lines to a hydro pole from the basket of a bucket truck. He sustained serious burns to his upper torso as the result of electrical contact. The utility pleaded guilty to failing to ensure that the work was done in a manner that prevented contact with overheard electrical lines and was fined $68,750 [Manitoba Hydro, Govt. News Release, Oct. 30, 2014].

NEW BRUNSWICK

LAW OF THE YEAR

OHS & Workers’ Comp Laws

Changes to the Workers’ Compensation Act and the OHS Act took effect on June 1, 2014. The amended sections of the WC Act clarify and modernize employer and worker obligations to report injuries and establish clearer limitation periods for claim applications. The amended sections of the OHS Act:

  • Enhance the existing requirement for health and safety policies for certain workplaces
  • Introduce a new requirement for certain workplaces to establish an OHS program
  • Clarify orientation and training requirements for new employees
  • Clarify and modernize the requirement to report accidents and incidents.

CASE OF THE YEAR

Lack of Safety Knowledge Valid Reason to Deny Promotion

A unionized mechanic employed by a city applied for the position of Service Foreman-Mechanical. But a co-worker with less seniority got the job. The mechanic filed a grievance challenging his denial of the promotion. The arbitrator dismissed his grievance. One of the qualifications for the position was knowledge of the OHS laws. And the union had approved the list of job qualifications. However, the interview committee had determined that the mechanic didn’t have the necessary OHS knowledge. In addition, he didn’t have some of the other listed qualifications, such as supervisor experience and knowledge of certain computer programs. In contrast, there was no dispute that the co-worker who got the position was fully qualified [Ryan v. Moncton (City), 2014 CanLII 51635 (NB LA), Sept. 8, 2014].

OTHER NOTABLE CASES

Worker’s Carbon Monoxide Poisoning Covered by Workers’ Comp

A worker was sorting recyclables at a solid waste facility when he had trouble breathing, felt dizzy and nauseated, and had a mild headache. At the hospital, the doctors diagnosed him with carbon monoxide poisoning. But his workers’ comp claim was denied. The Appeals Tribunal found that while in a closed work environment filled with propane and diesel fumes from various equipment, the worker had experienced a progression of symptoms that three doctors concluded was associated with carbon monoxide poisoning. Noting that the facility didn’t engage in gas monitoring until after the worker got sick, the Tribunal ruled that he was entitled to benefits as he’d suffered an “accident” on the job and associated with vehicles used internally at the facility [20147284 (Re), [2014] CanLII 36505 (NB WHSCC), June 19, 2014].

Supervisor Fined $600 for Letting Crew on Roof Without Fall Protection

A WorkSafeNB health and safety officer saw a crew working untethered on the roof of a building under construction. The officer ordered the crew onto the ground, told them how they should be tied in and said they could climb back onto the roof once they complied. When the officer returned about three hours later, the crew was back on the roof still untethered. A supervisor for the construction company pleaded guilty to a fall protection violation and was fined $600 [Norman Nixon, Govt. News Release, June 10, 2014].

Two Companies Fined $65,000 for Fatal Collapse of Catwalk

A company co-owner who was also the on-site supervisor was one of three workers hired to do repair work at a mill. The workers fell about 35 feet to a concrete floor when a wooden catwalk they were using to reach part of a ceiling gave way. The co-owner/supervisor died; the other two workers were badly injured. The mill pleaded guilty to a safety offence and was fined $60,000. The company pleaded guilty to failing to ensure that workers complied with fall protection requirements and was fined $5,000 [Val Landry & Son (Roofing and Sheet Metal Working) Ltd. and AV Cell Inc., Govt. News Release, Nov. 26, 2013].

NEWFOUNDLAND & LABRADOR

LAW OF THE YEAR

Offshore Oil Safety

In June, the federal Offshore Health and Safety Act received Royal Assent. The Act clarifies roles and responsibilities, increases transparency, covers workers in transit to offshore platforms and provides enforcement powers for OHS officers. It amends the Canada-Newfoundland Atlantic Accord Implementation Act and the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act.

CASE OF THE YEAR

Fishing Company Fined More than $73,000 for Fatality

A worker on a fishing vessel was crushed to death by a hydraulically operated door to a hold containing shrimp. The door had been inadvertently closed by a co-worker, who didn’t know how to stop it from closing. The fishing company pleaded guilty to two safety offences. At sentencing, the court noted that a company engineer was aware of a problem with the switch operating the door. Also, the company didn’t have an appropriate OHS program to ensure workers knew how to operate the hatch. But the company did take steps to address the causes of the incident, hired an outside consultant to make safety recommendations and implemented an inspection program. So the court fined the company $73,260 and ordered it to pay $5,000 to the OHS Department for a fund dedicated to OHS education [R. v. Katsheshuk Fisheries Ltd., [2014] CanLII 50665 (NL PC), Aug. 25, 2014].

OTHER NOTABLE CASES

Supervisor & Company Fined for Worker’s Serious Hand Injury

A worker’s right hand was crushed when the press portion of a concrete block machine activated unexpectedly. He had to have one finger surgically amputated. The company pleaded guilty to failing to provide a safe workplace, ensure that equipment was fitted with adequate safeguards and ensure that the energy source was isolated where the unexpected start-up of machinery could cause injury. The court fined it $21,000 and ordered it to contribute $2,000 to the Minister of Service NL. A supervisor also pleaded guilty to failing to ensure the health, safety and welfare of all workers under his supervision and was fined $2,000 [Atlantic Minerals Ltd.,  Govt. News Release, Dec. 18, 2013].

Mine Drilling Company Penalized $50,000 for Worker’s Burns

A mine drilling company worker suffered severe burns to his hands and face when a drilling machine he was operating caught fire. The company pleaded guilty to failing to provide a safe workplace and to provide the necessary information, training and supervision to ensure the safety of workers. The court fined it $20,000 for each charge and ordered it to contribute $10,000 towards public education programs [CABO Drilling (Atlantic) Corp., Govt. News Release, May 20, 2014].

NORTHWEST TERRITORIES

CASE OF THE YEAR

NWT Decision Makes Interesting Points on Contractors & Government Liability

The Department of Transportation (DOT) contracts out a ferry’s operation to a company. Driftwood and debris got tangled in the ferry cable. To deal with the problem, three company workers began loosening nuts securing the cable. The cable suddenly started whipping back and forth, striking and injuring two workers. At the time, a DOT engineer was supervising the workers. The DOT and ferry operator were charged with OHS violations. They pleaded guilty. The court fined the ferry operator $7,500. The court then fined the DOT $75,000. In determining the appropriate sentence, the court noted that there’s a “fundamental distinction between a private corporate offender and a government offender.” Here, the DOT has a heightened responsibility compared to that of a private company and “If the Government is not seen to be a safe employer, then how can industry be expected to respect and to obey the law?” The court also noted that on the day of the incident, a DOT employee (the engineer) was supervising three ferry operator workers, removing the “protective curtain” between the DOT and the operator. So although the contract put safety in the ferry operator’s hands, the DOT could no longer say it was protected by the contract, concluded the court [R. v. GNWT (DOT) and Grizzly Marine Services Ltd., [2014] NWTTC 17 (CanLII), June 27, 2014].

NOVA SCOTIA

LAW OF THE YEAR

Administrative Penalties

The new Administrative Penalties System took effect on Oct. 1, 2014. Administrative penalties will be issued for high risk violations, such as working at heights with no fall protection, and when it’s a repeat violation and the employer can’t show due diligence. For details, see Guidelines for Issuing Administrative Penalties.

CASE OF THE YEAR

Company’s Treatment of Supervisor Was a Reprisal for Work Refusal

Believing that a truck unsafely blocked his view, a warehouse supervisor operating a forklift was waiting until it moved. The company owner asked what he was doing and, after he explained, told him it was safe and to either work or go home. The supervisor left. The next day, he asked the JHSC to investigate but the owner refused. He was subsequently moved to a new position at the same pay. He filed a reprisal complaint. The Labour Board ruled that the owner’s response to the supervisor was inappropriate. The company had a duty to investigate the refusal, which it didn’t do. Sending him home that day was a reprisal for exercising his OHS rights, resulting in lost wages. And the “lateral” transfer to a new position was also a result of the work refusal. The Board concluded that the company’s actions were in direct response to the supervisor’s legitimate exercise of his right to refuse unsafe work and reinstated him to his prior position [John Ross and Sons Ltd. v. McKay, [2014] NSLB 95 (CanLII), May 29, 2014].

OTHER NOTABLE CASES

Dismissed Worker Didn’t Follow Proper Procedure for Raising Safety Concerns

A worker claimed that he was fired for raising safety concerns and following up to ensure that his complaints were resolved. The employer said it fired him over anger issues. An OHS officer investigated the reprisal complaint and concluded that the employer didn’t discriminate against the worker. He appealed. The Labour Relations Board explained that if a worker has a safety concern, he must first report it to a supervisor. If it’s not resolved to his satisfaction, he must report it to the JHSC or representative and then to the Division. Here, when the worker wasn’t satisfied, he got into angry confrontations with his supervisor and didn’t follow the established procedure under the OHS law. So the Board concluded that his dismissal wasn’t related to enforcement of the OHS laws [Wooten v. 323195 Nova Scotia Ltd., [2014] NSLB 72 (CanLII), Aug. 12, 2014].

Order to Provide Training for Competency to Inspect Scaffolding Upheld

A worker fell from a scaffold and broke both heels. The scaffold belonged to another contractor on the job. But the employer had a supervisor onsite who was responsible for ensuring the scaffold was safe for its workers to use. The supervisor had visually inspected the scaffold and saw a green tag on it, which he assumed meant it was safe to use. The employer was ordered to ensure workers were properly trained to be competent to inspect scaffolding. It appealed the order. The Labour Board noted that the OHS law required scaffolding to be inspected by a “competent person.” The employer had a duty and full opportunity to prove that the supervisor was a competent person and that it’d done everything reasonably within its power to ensure that he met the definition of a competent person. But it failed to do so. Thus, because the officer correctly identified a lack of evidence to support the supervisor’s competency, the order that the employer provide training to establish such competency was a reasonable corrective response [RKO Steel Ltd. v. Director of Occupational Health and Safety, [2014] NSLB 7 (CanLII), Jan. 29, 2014].

NUNAVUT

LAW OF THE YEAR

Injury Reporting Policy

In Oct., the WSCC revised Policy 11.02 Reporting an Injury to clearly explain when workers and employers must submit Report of Injury forms. The policy now also defines “injury” as physical or psychological harm or damage, and includes exposure to a foreign or contagious substance that may result in an immediate or delayed reaction.

OTHER NOTABLE REGULATORY CHANGES

Codes of Practice

In Nov. 2013, the WSCC released a new Code of Practice on confined spaces. And in June 2014, it released the Occupational Health and Safety Education – Supervisors, which applies to all workplaces subject to the Safety Acts and General Safety Regulations.

ONTARIO

LAW OF THE YEAR

Awareness Training Regulations

A new OHS regulation that requires employers to ensure that all workers and supervisors complete mandatory OHS awareness training took effect on July 1, 2014. The MOL also released a guide on the new health and safety awareness training, which explains the requirements and answers, in plain language, the questions most commonly asked about these requirements.

OTHER NOTABLE REGULATORY CHANGES

Working at Heights Training

In Dec. 2013, the MOL released a new working at heights training standard that will apply to workplaces in the construction sector and construction activity in other workplaces.

CASE OF THE YEAR

MOL Being Sued for Negligence over Christmas Eve Scaffolding Collapse

The only survivor of the infamous Christmas Eve scaffolding collapse and others have sued the MOL for negligence, claiming, among other things that that it failed to enforce safety requirements and properly train its employees. In preparation for the trial, an  MOL representative refused to answer certain questions about the education, training and experience of the inspector assigned to the job site and changes in certain policies after the incident. The plaintiffs asked the court to order the MOL to answer these questions. The court did order the MOL to respond to most of the challenged questions. It also explained that although government can’t be sued over “core policy” decisions, it can be liable when its agents are negligent in carrying out their duties. Whether decisions by inspectors as to when or whether to inspect and the frequency of inspections are core policy decisions or operational decisions by employees and whether there was negligence as to inspections of this particular scaffolding were issues of fact to be decided at trial [Marupov v. Metron Construction Inc., [2014] ONSC 3535 (CanLII), June 13, 2014].

TOP 5 FINES AGAINST INDIVIDUALS

1. $15,000—Sole Proprietor

A worker fell almost 24 feet from a roof to the ground. He died a month later from complications of blunt head trauma. The sole proprietor of a subcontractor carrying out work for the roofing contractor had his workers at the project without permission on a Sunday because he was behind schedule. He pleaded guilty to failing to ensure that workers were protected by a fall protection system and was fined $15,000 [Ji Nan Li, Govt. News Release, Oct. 10, 2014].

2. $8,500—Director

An MOL inspector saw a worker on a roof without fall protection or a hard hat. When the inspector paid a follow-up visit to the site, the contractor’s director was there acting as a supervisor. The director uttered profanities at the inspector, told him to leave the project and made threatening gestures and comments towards him. The director also refused to show identification to the inspector when requested. The director was convicted of OHS violations at trial and fined $8,500 [Starland Contracting Ltd. and Murad Ebeid, Govt. News Release, March 14, 2014].

3. $6,000—Worker

A worker operating a front-end loader ran over the driver of a truck. The driver died from crushing injuries. The worker pleaded guilty to failing to operate a vehicle in a manner that didn’t endanger another worker and was fined $6,000 [Southern Sanitation Inc. and Abdul Maneed Malik, Govt. News Release, April 8, 2014].

4. $3,000—Director

Workers were performing stucco work on the exterior of a building when an MOL inspector saw that although the elevating work platforms were being moved as part of the job process, three of the four workers using the platforms weren’t wearing safety belts attached to the platform to protect them from falling. A director of the stucco company pleaded guilty to failing, as a director, to take all reasonable care to ensure that the company complied with the OHS laws and was fined $3,000 [Cemal Coksurer, Govt. News Release, April 10, 2014].

5. $1,500–Worker

A worker was on a hoist tower at a construction project in Ontario when he jumped from the tower to a nearby roof. An MOL inspector saw his jump and the fact his fall protection harness wasn’t connected to anything. The worker pleaded guilty to a fall protection violation and was fined $1,500 [Christopher Schwaemmie, Govt. News Release, March 12, 2014].

OTHER NOTABLE CASES

Fixing Safety Problem after Incident Doesn’t Warrant Lower Fine, Says ON Court

A forklift operator for a car parts manufacturer placed a bundle of metal sheets on the floor near a cradle by the production line. Another worker cut three of the four bands holding the bundle together. When the forklift operator tried to lift the bundle into the cradle, it slipped off the fork, scattering metal sheets. One of the sheets struck the worker’s foot, breaking several bones. The manufacturer was convicted of two safety violations and fined $25,000 for each. The court said the manufacturer should pay the fines concurrently, resulting in a $25,000 total fine, due to the corrective action it took after the incident. But the Ontario Court of Appeal ruled that the manufacturer wasn’t entitled to a reduced fine for doing what it was required to do under the OHS law. The lower court shouldn’t have discretion to treat an employer’s post-offence compliance, which is statutorily required, as a mitigating factor on sentence. “Deterrence is undermined by treating statutorily required compliance as a mitigating factor on sentence,” ruled the Court. So it reinstated the $50,000 total fine [Ontario (Labour) v. Flex-N-Gate Canada Co., [2014] ONCA 53 (CanLII), Jan. 23, 2014].

Lack of Mandatory Inquests for Farm Worker Deaths Isn’t Discriminatory

A worker from Jamaica at a tobacco farm was crushed to death by a 1,000 pound bin that fell from a steel bin lift. The Chief Coroner declined to hold an inquest into the incident. So his family sued, arguing that it was discriminatory for construction and mining deaths to trigger mandatory coroner’s inquests, but not those of seasonal agricultural workers. The Human Rights Tribunal ruled that the Coroners Act doesn’t discriminate against migrant farm workers. The lack of a mandatory inquest for such workers doesn’t mean their lives are of lesser value or that their safety is less worthy of protection, noted the Tribunal. But mining and construction workers, unlike agriculture workers, face a higher risk of traumatic workplace deaths and the causes of those deaths are quite varied, so inquests into those deaths are more likely to produce useful recommendations, it explained [Peart v. Ontario (Community Safety and Correctional Services), [2014] HRTO 611 (CanLII), April 30, 2014].

Failure to Wear Safety Glasses & Verbal Abuse of Supervisor Justified Firing

An industrial cleaner wasn’t wearing her safety glasses as required. When a supervisor told her to put them on, she verbally abused him, using profanity in front of other workers. So the employer fired her. The union filed a grievance on her behalf. The arbitrator said the employer had a clear policy on wearing proper eye protection and the cleaner had attended three safety talks on this policy. She’d also been warned earlier by a supervisor and a union steward about not wearing safety glasses. And considering the cleaner’s “checkered disciplinary record” and unprofessional conduct, termination was warranted, concluded the arbitrator [Robinson Solutions (Oshawa) Inc. v. Teamsters Local Unino 938 (Bircham Grievance), [2014] O.L.A.A. No. 334, Sept. 2, 2014].

Court Acquits Defendants as to Supervisor’s Death at Construction Site

Workers for a subcontractor at a construction site were using a crane to move a platform from the 23rd to the 22nd floor. To do so, they removed safety fencing on the 23rd floor. The crane knocked a heavy piece of cast iron pipe off the 23rd floor, striking a supervisor for a plumbing company standing below and causing fatal head injuries. The MOL charged the constructor, a site supervisor employed by the general contractor, the subcontractor, the plumbing contractor and its site foreman with OHS violations. The subcontractor pleaded guilty, while the others went to trial and were acquitted. The court found that the subcontractor was primarily, if not solely, responsible for the incident. One of its workers who was supposed to guide the crane from below was out of position and the other shouldn’t have told the crane operator to go ahead before ensuring there was nothing in its path. The court found that the Crown had failed to prove the charges against the other defendants and alternatively that they’d exercised due diligence in any event [Ontario (Ministry of Labour) v. Bay Grenville Properties Ltd., [2014] ONCJ 349 (CanLII), July 21, 2014].

Excavation Company’s Due Diligence Defence Rejected as to OHS Charges

A truck driver was loading an excavator onto a trailer behind a truck when the excavator slipped off the trailer and fell onto its side. The glass in its cab shattered and he was injured. The excavation company was charged with OHS violations. The court convicted it, rejecting its due diligence defence. The court observed that there appeared to have been a presumption that once oral instructions were conveyed, they would be understood and complied with by workers. But there was no evidence as to how those instructions would be reinforced or enforced or whether any steps were made to ensure that anyone working for the company understood the instructions. And though the company was small, it required a system and process for establishing appropriate written OHS policies and procedures, communicating them, monitoring them and enforcing them in a vigilant manner, concluded the court [Ontario (Ministry of Labour) v. Anray Ltd., [2014] ONCJ 203 (CanLII), April 15, 2014].

Supervisor Properly Fired for Concealing Exposure of Workers to Asbestos

A supervisor was fired for not following proper procedure for dealing with asbestos, thus exposing his crew to this hazardous substance when they removed gaskets containing asbestos, and for trying to conceal his error about the gaskets. An arbitrator upheld the dismissal. The supervisor made a mistake in not properly identifying the gaskets as asbestos. He then engaged in a course of conduct specifically designed to conceal this mistake. This conduct not only impeded the investigation of a complaint about the gasket removal but also exposed workers to harm. His misconduct was serious and the potential harm significant and thus provided just cause for his dismissal, concluded the arbitrator [Ontario Power Generation v. Power Workers’ Union, [2014] CanLII 46738 (ON LA), Aug. 5, 2014].

Investment Company Illegally Fired Employee over Violence/Harassment Concerns

An investment company employee and the receptionist often felt threatened when confronted by irate investors. The employee complained to management about the need for workplace violence/harassment procedures but her complaints were dismissed. She called the MOL about her safety concerns but declined to have an inspector come to the workplace. A month later, the receptionist complained to the MOL, which sent an inspector to the workplace. The next day, the company fired the employee, who filed a reprisal complaint. The Labour Relations Board upheld the complaint, ruling that it didn’t matter that the employee was fired mainly due to the appearance of the inspector because of the receptionist’s call to the MOL. The company fired her at least in part because she’d raised safety concerns and wanted the employer to adopt a formal policy to deal with workplace harassment and violence. So the Board ordered the company to pay her almost $5,000 in damages [Abigal C de los Santos Sands v. Moneta Marketing Solutions Inc., [2014] CanLII 33527 (ON LRB), June 17, 2014].

Firing of Workers for Fight Upheld but Not Termination of the Victim

After a verbal altercation escalated into a physical fight between warehouse workers, the employer fired the victim of the assault, a male worker and a female worker. The union filed a grievance on their behalf. (A fourth worker was also fired but his termination wasn’t challenged.) The arbitrator noted that the employer’s policy barred violence in the workplace and workers knew they could be fired for violent conduct. Although the victim participated in the verbal dispute, his only involvement in the fight was defending himself. So he shouldn’t have been fired, concluded the arbitrator. But as for the male worker, he instigated the verbal dispute and engaged in physical violence. And the female worker kicked the victim with steel-toe boots. So the arbitrator upheld their firings [Purolator Courier Ltd. v. Teamsters Local Union, Local 938, [2014] CanLII 34485 (ON LA), June 19, 2014].

Poor Record of Complying with Orders Results in Jail Sentence for Supervisor

A worker fell from a roof and was permanently paralyzed from the waist down. At the time, there was no fall protection equipment on site. And the injured worker said he’d never been trained on the use of such equipment. The contractor and a supervisor were convicted of OHS violations. The court sentenced the supervisor to 45 days’ jail. She’d been sentenced to pay fines for her prior environmental violations but just paid one—and only when forced to do so by the court. At the time of sentencing in this case, her outstanding fines exceeded $50,000. The court said it was “disturbing that the vast majority of her regulatory fines remain unpaid” and that the supervisor showed apparent defiance of prior court orders. So it concluded that a 45 day jail sentence was appropriate for the supervisor’s “serious disregard for public welfare statutes” [Ontario (Ministry of Labour) v. J.R. Contracting Property Services, [2014] ONCJ 115 (CanLII), March 6, 2014].

Owner Jailed, Company Fined $50,000 for Roofer’s Death & Lying to the MOL

A worker on a ladder lost his balance and fell about six metres, striking a fence. He’d been wearing fall protection but it wasn’t affixed to anything at the time of the fall. He died from his injuries. When asked to identify the deceased worker, the owner of the company lied about where the worker had been working and what he was doing. The company also didn’t immediately notify the MOL of the fatality or submit a written report within 48 hours as required by law. The company pleaded guilty and was fined $50,000. The owner pleaded guilty to failing, as a supervisor, to ensure that a worker works with required protective devices and knowingly furnishing an inspector with false information. Given that the MOL and police expended significant resources as a result of the false information he provided, the court sentenced him to 15 days in jail [Roofing Medics Ltd. and Paul Markewycz, Govt. News Release, Nov. 22, 2013].

Criminal Negligence Charges & Class Action Brought in Fatal Mall Collapse

Part of a mall caved in, killing two women. As a result, the police charged a professional engineer who was involved in inspections of the building with two counts of criminal negligence causing death and one count of criminal negligence causing bodily harm [Robert Wood, CBC, Jan. 31, 2014]. In addition, the owners of a business that closed due to the collapse sued the mall owners and others for negligence and asked the court to certify the lawsuit as a class action. The court ruled that this lawsuit is exactly the kind of case for which class actions were designed [Quinte v. Eastwood Mall, [2014] ONSC 249 (CanLII), Feb. 13, 2014].

OK to Fire Worker for Continuing to Refuse Work Deemed Safe

A supervisor asked a worker to wash a conveyor. He refused, claiming it was unsafe to wash the conveyor because it would generate airborne dust. The employer investigated the refusal and concluded that the task wasn’t unsafe provided the worker used a respirator and followed designated procedures. When he continued to refuse, the MOL investigated and agreed with the employer. The worker still refused to wash the conveyor, saying he didn’t have his respirator or his fit card indicating his appropriate model and size respirator. And he claimed not to recall that information. So the employer fired him. The worker claimed the termination was a reprisal for his work refusal. But the Labour Relations Board ruled that the worker was fired for continuing to refuse work that had been determined not to pose a danger to him. And there was evidence his fit card had been in his locker the whole time [Dagenais v. Glencore Canada Corp. Kidd Operations, [2014] CanLII 18533 (ON LRB), April 8, 2014].

Worker Convicted of Assaulting Contractor over Excavator Incident

A contractor thought another contractor’s worker who was operating an excavator had damaged the contractor’s truck. He yelled to the worker, who continued using the excavator to fill the truck. So he opened the excavator door and they started yelling at each other. They struggled in the excavator doorway, with the worker punching the contractor’s hand and kicking him in the leg and ribs as the excavator rotated. The contractor fell onto the excavator’s tracks and eventually to the ground. The worker was arrested and charged with assault. The court noted that the worker denied having any safety duty toward the contractor. And although the contractor unwisely put himself at risk, he didn’t initiate the assault and was trying to hang onto the machine to avoid serious injury. So the court convicted the worker of assault [R. v. Schultz, [2014] ONCJ 9 (CanLII), Jan. 9, 2014].

OK to Fire Worker Who Lied about Serious Safety Incident

A forklift operator drove into a rack, seriously damaging it. Luckily, no products fell off the rack. The operator didn’t report the incident, which was discovered on the next shift. And he falsified documents to cover it up. He only admitted what happened when the employer confronted him with irrefutable proof. So the employer fired him. The arbitrator noted that the 23-year employee had committed a serious safety infraction and then compounded his error by even more serious misconduct. And it couldn’t conclude that the operator wouldn’t commit another serious safety infraction in the future. His admission and apology came far too late. Thus, his termination was justified [Winners Merchants Intl LP v. Workers United Canada Council, Local 152, [2013] CanLII 74235 (ON LA), Nov. 25, 2013].

Companies Fined $180,000 for Portable Heater Incident

A worker employed by a manufacturer entered a temporary shelter at another manufacturer’s project. The shelter was warmed by a propane heater, which was located at the exit and partly inside the shelter. Due to the shelter’s layout and the heater’s position, the worker was too close to the heater. His clothing caught fire, causing second and third-degree burns. The manufacturers pleaded guilty to failing to ensure that a fuel-fired heating device was located, protected and used in such a way that there was no risk of igniting a tarpaulin or similar temporary enclosure or combustible material adjacent to it. The court fined them each $90,000 [RHI Canada Inc. and Carmeuse Lime (Canada) Inc., Govt. News Release, July 3, 2014].

Worker’s Death Results in $160,000 Fine for Metal Company

A metal company worker was cutting bands that held a bundle of steel coils together when one of the coils tipped over, crushing him to death. A trial determined that the company’s training on how to safely disband, position and move coils wasn’t sufficient and the operating procedures for the equipment in question didn’t address known hazards. The company was convicted of failing to provide information, instruction and supervision on how to safely position, move and disband coils and fined $160,000 [Samuel, Son & Co. Ltd., Govt. News Release, June 16, 2014].

Crushing Death of Worker Costs Manufacturer $155,000

A worker performing maintenance on a mould at a manufacturing plant raised the mould’s lid, which was held open by a metal hook attached to an overhead hoist. While he was working under the elevated lid, the hook broke in half, causing the lid to strike him on the head and crushing him between the lid and the lower section of the mould. He died from his injuries. An MOL investigation found that no blocking devices had been used to prevent the elevated lid from closing while the worker was under it. The manufacturer pleaded guilty to failing to ensure that machinery, equipment or material that’s temporarily elevated and under which a worker may pass or work was securely and solidly blocked to prevent it from falling or moving and was fined $155,000 [Johnson Controls Automotive Canada LP, Govt. News Release, May 20, 2014].

Dust Explosion at Refinery Costs Mining Company $150,000

A sulphur dust explosion and fire at a refinery injured five contract workers from an employment agency. Their injuries included second-degree burns, bruising and muscle soreness. The MOL’s investigation determined that the lack of adequate sulphur dust control and failure to eliminate all potential sources of ignition created a risk of explosion and fire. In addition, an adequate supply of a suitable inerting agent wasn’t available or used at all times for blanketing and purging of all equipment. The mining company pleaded guilty to a safety violation and was fined $150,000 [Vale Canada Ltd., Govt. News Release, June 13, 2014].

Fatal Fall Through Skylight Opening Results in $150,000 Fine

Workers were replacing various sections of the roof on an industrial complex. They removed a skylight and placed a vapour barrier, consisting of reinforced paper, over the opening. None of the workers were wearing fall protection and no signs were posted to warn other workers about the fall hazard. A worker moved toward the opening. Although a co-worker shouted a warning, he stepped onto the paper and fell through the opening, falling about 20 feet to the concrete floor below. He died from blunt-impact head trauma. The roofing company pleaded guilty to failing, as a constructor, to ensure that workers working around an opening were adequately protected and that signs to warn workers of a hazard were posted. The court fined it $150,000 [Crawford Roofing Corp., Govt. News Release, Nov. 18, 2013].

Worker Dies While Cutting Grass Due to Defective Seatbelt

As a worker was operating a sit-down lawnmower on a sloped lawn area leading down to a wall at the edge of a river, he was fatally injured in an incident. An investigation determined that the mower’s seatbelt assembly didn’t operate as intended and wouldn’t lock into place as required. In addition, the mower’s roll-over protective structure wasn’t properly secured and so offered no protection. His employer pleaded guilty to failing to ensure the seatbelt restraining device was maintained so as to operate as intended and fined $150,000 [Enbridge Gas Distribution Ltd., Govt. News Release, Nov. 20, 2013].

Railroad Manufacturer Fined $140,000 for Hydraulic Press Incident

A worker was helping a press operator on a hydraulic press at a railroad manufacturer’s plant. The helper saw a loose machine component behind the machine’s punch line. He thought the operator had stopped the operation of the press and so he reached under the punch line to retrieve or adjust the component. But the operator activated the press, which pinched the helper’s arm and caused a permanent injury. The press had a safety feature that used an infrared light beam, which stopped the press when something was inside its surveillance area. An MOL investigation found that at the time of the incident, the beam hadn’t been properly adjusted and so didn’t provide protection to workers. In addition, the workers involved in the incident didn’t get training on how to operate the press. The manufacturer pleaded guilty to failing to provide information, instruction and supervision to a worker to protect his health and safety and was fined $140,000 [National Steel Car Ltd., Govt. News Release, April 28, 2014].

Death of Sub-Contractor’s Worker Results in $140,000 Fine for Farm

A mushroom farm was undergoing extensive construction that included new concrete pads. A worker began driving a front-end loader back and forth on the new pad to pick up compost from one end of the pad and drop it into a hopper at the other end. A worker employed by a sub-contractor crossing the concrete pad was struck by the loader while it was going in reverse. He was pronounced dead at the scene. The farm pleaded guilty to failing as an employer to ensure that workers didn’t walk on the concrete pad while a loader was being operated. It was fined $140,000 [Monaghan Mushrooms Ltd., Govt. News Release, April 10, 2014].

Excavation Company Fined $125,000 after Worker Is Killed, Two Injured

A worker for an excavation company and two workers employed by a subcontractor were installing new hydro poles and wires under existing energized lines. The workers were excavating a hole when the boom of the vehicle came within three metres of the power lines, which were about 20 feet above the hole. All three workers received electrical shocks, with the excavation company worker dying from his injuries. The excavation company pleaded guilty to failing to ensure that the vehicle’s boom wasn’t brought within three metres of the energized power line and was fined $125,000 [Digsafe Inc., Govt. News Release, Nov. 14, 2013].

Employer Fined $115,000 for Suffocation of Worker by Wood Shavings

A worker was sent to a mill to collect wood shavings from a silo and load them into the box of a truck. While prodding the material with a stick, he fell into the box, became engulfed by shavings and suffocated. He later died. After a trial, his employer was found guilty of failing to ensure that the loading of the truck from a silo was conducted in a safe manner. At sentencing, the court found that worker misconduct wasn’t a factor. The employer did express remorse and took steps after the incident to improve worker safety. Given the fact the incident resulted in a fatality as well as the mitigating factors, the court concluded that a $115,000 fine was appropriate [R. v. Reliable Wood Shavings Inc., [2013] ONCJ 712 (CanLII), Dec. 18, 2013].

Company Fined $110,000 after New Worker Is Crushed to Death by Steel Plate

A fairly new worker was using an overhead crane to move a large steel plate weighing more than 7,800 pounds from a pile. He was using two hooks although the company instructs operators to use four for heavy plate lifts. While he was using a hand-held remote to operate the crane, the plate became unstable and shifted. The worker moved around the plate, which continued to slide and struck him, pinning him under the plate and causing fatal injuries. The company pleaded guilty to failing to ensure that material required to be lifted, carried or moved was moved so as to not endanger the safety of a worker and was fined $110,000 [High Strength Plates & Profiles Inc., Govt. News Release, Aug. 28, 2014].

Employer Convicted in Conveyor Collapse & Fined $110,000

A company was working at a plant that was being decommissioned. To get access to a piece of equipment, sections of an overhead conveyor had to be removed. Workers cut and separated a section of the conveyor and began removing the anchoring bolts on the base. As the last bolt was loosened, the conveyor section toppled over, hitting a worker and breaking vertebrae in his back and a bone in one leg. The employer was found guilty at trial of failing to prevent the collapse or movement of part or all of a piece of equipment that’s being dismantled, altered or repaired if its collapse or movement may endanger a worker. The court fined it $110,000 [Process Group Inc., Govt. News Release, Dec. 4, 2013].

Plant Fined $110,000 after Worker’s Fingers Are Amputated

At a meat processing plant, a worker was operating a meat chopper machine, which had a cage that enclosed a moving blade. The worker noticed that some meat had become stuck in the blade. He lifted the safety cage and tried to use a hook to pull the meat from the blade, which continued to turn. The hook got caught by the moving blade, causing the worker’s hand to come into contact with it. He lost several fingers. The MOL concluded that the plant failed as an employer to ensure that a part of a machine was cleaned only when motion that may endanger a worker had stopped. As a result, the plant was fined $110,000 [Maple Leaf Foods Inc., Govt. News Release, March 24, 2014].

Manufacturer Fined $100,000 for Worker’s Electrical Burns

Workers at a manufacturing facility were replacing a set of cooling fans in a capacitator panel. Part of the capacitator panel was locked, disabling one energy source to the panel. A worker was left alone at the panel when the supervisor and another worker left. He was removing the second of two cooling fans when it fell, making contact with an exposed power terminal and initiating an arc flash, which caused significant burns to his body. An MOL investigation determined that the exposed power terminal had remained live and that the worker hadn’t been provided with appropriate PPE. The manufacturer pleaded guilty to failing to ensure that a worker uses rubber gloves, mats, shields and other protective equipment and procedures adequate to ensure protection from electrical shock and burns while performing work. The court fined it $100,000 [Linamar Corp., Govt. News Release, April 17, 2014].

Fatal Wall Collapse Results in $100,000 Fine for Constructor

Four workers employed by a contractor were demolishing an interior concrete block wall, which was about 26 feet high. It collapsed on two workers. One died as a result of multiple trauma; the other suffered severe injuries to his back, chest and pelvis. The demolition and wall collapse were caught on surveillance video. An MOL investigation concluded that the wall collapsed because an inadequate demolition procedure was used. The constructor pleaded guilty to failing, as a constructor, to ensure that the health and safety of workers on the site was protected and was fined a total of $100,000 [English Prestige Builders Ltd., Govt. News Release, Jan. 28, 2014].

PRINCE EDWARD ISLAND

LAW OF THE YEAR

Sharps

In Nov. 2013, the WCB released the Prevention Update on Sharps and Needlestick Hazard Management, which describes best practices for the usage, transfer, storage and disposal of needles, syringes and other sharp objects.

QUÉBEC

CASE OF THE YEAR

Criminal Negligence Charges Laid in Tragic Québec Train Derailment

On July 6, 2013, a Montreal Maine and Atlantic (MMA) train carrying 72 cars of crude oil slipped downhill, derailed and exploded near downtown Lac-Mégantic, Québec. The explosion and resulting fires killed 47 people (although no railway employees), caused massive destruction and resulted in the evacuation of thousands. In addition, the Chaudière River was contaminated by an estimated 100,000 litres of oil.  On May 12, 2014, a spokesman for Québec’s director of criminal and penal prosecutions said the government had charged MMA and also filed 47 counts of criminal negligence causing death against the train’s engineer; the manager of train operations; and the railway traffic controller.

OTHER NOTABLE CASES

Supreme Court Rules Pregnant Teacher Entitled to Preventative Withdrawal

Québec’s OHS law lets pregnant women refuse to perform work that poses a health or safety danger to themselves or their fetus and to be reassigned to avoid those risks. If reassignment isn’t possible, they have the right to “Preventive Withdrawal,” during which they stop working and get income replacement benefits. A pregnant substitute teacher was vulnerable to contagious viruses that can be spread by groups of children. The school board offered her a one-day teaching position, which she accepted. But due to the health risks of the classroom, the CSST told her she was entitled to reassignment or Preventive Withdrawal. The Board appealed to the CLP, which found that she wasn’t eligible for Preventive Withdrawal because of her inability to go into the classroom. The Supreme Court of Canada upheld the appeal, explaining that a contract was formed when the teacher accepted the board’s offer to “supply” teach and thus was a “worker” under the OHS law. Her legislated right to withdraw from an unsafe workplace can’t be used to negate the formation of an employment contract. The teacher’s pregnancy didn’t prevent her from performing the work—it was the dangerous workplace that prevented it [Dionne v. Commission scolaire des Patriotes, [2014] SCC 33 (CanLII), May 1, 2014].

SASKATCHEWAN

LAW OF THE YEAR

Summary Offense Tickets

As of July 1, 2014, designated occupational health officers may issue summary offence tickets for 12 ticketable offences. The tickets can either be issued on the spot or sent by mail and anyone who receives a ticket can challenge it in court. The fines for the summary offence tickets range from $250 for a worker to $1,000 for employers, owners and contractors.

OTHER NOTABLE REGULATORY CHANGES

Workers’ Compensation

The Workers’ Compensation Act, 2013 took effect on Jan. 1, 2014. In addition to the existing employer duties, the new Act also requires employers to:

  • Cooperate to help an injured worker return to work
  • Not knowingly provide false or misleading information
  • Report when an employee returns to work
  • Report any change in an employee’s status that could impact his entitlement to benefits.

Asbestos

The government changed the asbestos requirements. These changes took effect June 1, 2014 and require employers, contractors and owners to:

  • Identify and label asbestos containing materials (ACM) that can release asbestos fibres
  • Regularly check and maintain ACM to prevent any fibre release
  • Develop written control plans to prevent the release of asbestos fibre into occupied areas when maintenance, repairs, renovations or other work may disturb ACM.

CASE OF THE YEAR

OK to Fire Worker for Ignoring Safety Training in Propane Incident

A worker connected a truck to a tank to fill it with propane. He left while the pumps were working. When the truck was full, he turned off the pumps but didn’t remove the hoses. He backed the truck up, causing the hoses to fall out and discharge about 5,000 litres of propane vapour. The company fired the worker for failing to follow proper safety procedures before and after the incident. The worker sued for wrongful dismissal. The court noted that the worker had been trained in the applicable safety procedures and what to do in an emergency, but he acted against his training, including failing to immediately report the incident. Thus, the company had just cause to fire him, said the court [Balzer v. Federated Co-Operatives Ltd., [2014] SKQB 32 (CanLII), Jan. 28, 2014].

OTHER NOTABLE CASES

No Justification for Drug/Alcohol Testing Worker after Minor Safety Incident

A steel mill worker was backing up a truck when he contacted a guardrail, cracking a tail light. He left the scene and later reported the incident to his supervisor, who asked him to take a drug/alcohol test. The results were negative. But the union filed a grievance, arguing that the worker was tested without reasonable suspicion. The arbitrator acknowledged that the workplace and the worker’s job were safety sensitive. And the employer’s post-incident testing program was generally appropriate. However, the program was inappropriately applied to this incident and worker. The incident was minor and resulted in minimal property damage. The employer disregarded the worker’s privacy rights. And the fact the worker left the scene of the incident and didn’t immediately report it didn’t justify testing him, concluded the arbitrator [United Steelworkers, Local Union 5890 v. Evraz Regina Steel (Holtskog Grievance), [2104] S.L.A.A. No. 9, May 26, 2014].

Shift Boss and Employer Fined after Blasting Operation Goes Wrong

During a blasting operation, the concussion from a blast knocked a shift boss and worker to the ground, injuring the worker. Another worker sustained a broken leg when a truck was pushed forward by the blast, pinning him to a wall. The employer pleaded guilty to three OHS violations, including failing to ensure that all work was sufficiently and competently supervised and that appropriate written procedures were provided to a worker conducting a blasting operation. It was fined $24,500. The shift boss pleaded guilty to one safety offence and was fined $2,100 [Claude Resources Inc. and Steve Strickland, Govt. News Release, Jan. 29, 2014].

Supervisor and Roofing Company Fined for Safety Violations

As a result of an inspection by an OHS officer of a residential construction site, a roofing company pleaded guilty to four OHS violations and was fined $3,890. The violations included failing to ensure that workers used a fall protection system at a temporary work area, that workers were trained in the safe use of a fall protection system and that a worker uses appropriate footwear. In addition, a supervisor pleaded guilty to one safety violation and was fined $840 [Ad’s Roofing and Chad Knusdon, Govt. News Release, Feb. 6, 2014].

Worker, Supervisor and Company Fined in Trench Incident

A worker was injured by falling debris while working in a trench. The construction company pleaded guilty to failing to report the injury to the OHS Division as soon as was reasonably possible and was fined $1,400. Two individuals (a supervisor and a worker) also pleaded guilty to letting workers work in a trench that wasn’t protected from cave-in or sliding materials resulting in injuries. They were each fined $4,900 [Glen Peterson Construction, Dwayne Lazar and Kirk Parazader, Govt. News Release, June 23, 2014].

Employer Fined $35,000 for Worker’s Drowning

A worker drowned when he was shutting down a water pump and draining canals near Outlook. His employer pleaded guilty to one OHS violation and was fined $35,000  [South Saskatchewan River Irrigation District No. 1, Govt. News Release, March 20, 2014].

Pipe Company Fined $30,000 for Workplace Fatality

A worker was fatally injured when he was crushed by a bundle of plastic pipe. The pipe company pleaded guilty to failing to ensure that no material was placed, stacked or stored so as to constitute a hazard to workers and was fined $30,000 [KWH Pipe (Canada) Ltd., Govt. News Release, April 3, 2014].

YUKON TERRITORY

CASE OF THE YEAR

Two Companies & Supervisor Convicted in Tire Shop Fatality

An oil company took its truck to a tire shop for work, where it was parked and its engine turned off, with the keys left in the ignition. A worker jacked up the truck but took no precautions to prevent it from moving. A supervisor started the truck’s engine while the worker was still working. An oil company worker came to pick up the truck, got in it and drove away, running over the worker who’d gone underneath it to retrieve a jack and killing him. The tire shop and a supervisor and the oil company plus one of its supervisors were charged with OHS violations. Although the tire shop fostered safe work, its OHS program as to lockout wasn’t sufficient. Likewise, the oil company had an extensive safety manual, which required “walk-arounds” before vehicle use. But the driver failed to do a walk-around, causing the tragedy. And the company’s training of the driver wasn’t complete. So the court convicted the tire shop, oil company and the oil company’s supervisor but acquitted the tire shop’s supervisor [Yukon (Director of Occupational Health and Safety) v. Yukon Tire Centre Inc., [2014] YKTC 4 (CanLII), Jan. 29, 2014]. In April, the court fined the tire shop $48,750, oil company $43,000 and supervisor $3,000. In addition, charges against the oil company worker who drove the truck were stayed but an administrative penalty of $3,000 was imposed on him.