Law of the Year
As part of a drive to reform Ontario’s OHS system, Bill 160, officially named the Occupational Health and Safety Statute Law Amendment Act, 2011, got Royal Assent on June 1. The heart of Bill 160 is the creation of the Chief Prevention Officer and the Prevention Council. The law gives them and the MOL new powers to do certain things regarding workplace safety.
Other Notable Regulatory Changes
Return to Work Policy
On Dec. 1, the WSIB’s Proposed Work Reintegration NEER policy officially took effect. In addition, the final versions of six new return-to-work policies took effect on July 15, 2011.
As of July 1, O. Reg. 632/05 (Confined Spaces) applies to industrial establishments, construction projects, healthcare and residential facilities, and mines and mining plants.
As of Jan. 1, 2011, all propane transfer facilities must submit a Risk and Safety Management Plan to the province’s Technical Standards and Safety Authority within 120 days of their 2011 licence renewal date.
Regulations adopting the National Safety Code Standard 11B, January 2006 (National Standard) for inspections of commercial motor vehicles for annual, semi-annual and safety standards certificates took effect July 1, 2011. Starting July 1, 2013, all such inspections will have to be conducted to the National Standard.
Amendments to the OHS regulation on mines and mining plants took effect on Jan. 1, 2012, which include:
- Updated training requirements
- Occupational noise limits consistent with those in other OHS regulations
- Updated diesel exhaust exposure limits and air volume requirements
- Strengthened hoisting requirements and protections related to work on wheel and tire assemblies
- Modernized provisions on mine rescue programs.
Case of the Year
Crown Drops C-45 Charges in Crane Case
The City of Sault Ste. Marie hired Millennium Crane Rentals to provide an 80-tonne mobile crane and crane operator to assist in placing concrete structures into an excavation. The crane fell into the excavation, crushing a city worker to death. In Feb. 2010, the police charged Millennium Crane Rentals, David Brian Selvers (the crane owner) and Anthony Vanderloo (the crane operator) with criminal negligence. OHS charges were also laid. But in March 2011, the Crown dropped the criminal charges, claiming there was “no reasonable prospect of conviction based on the evidence.” (Millennium and Vanderloo still face charges under the OHS Act.)
Top 3 Fines Against Companies
An elevator dropped several stories, resulting in serious, non-life threatening injuries to five passengers. The elevator maintenance company was convicted of violating the Technical Standards and Safety Act, 2000 and fined $400,000 [Fujitec Canada Inc., June 27, 2011].
A young grocery store worker who was helping to clear materials from the top of a cooler stepped onto the drop ceiling to remove a box and fell through, suffering a fatal head injury. The grocer pleaded guilty to failing to ensure that a guardrail was in place to prevent workers from accessing the drop ceiling and was fined $350,000 [Metro Ontario Inc., Govt. News Release, March 9, 2011].
During an excavation for the installation of natural gas lines, the blade of a plough severed an unmarked propane line, causing propane to leak into a house’s basement. When one of the homeowners entered the basement and lit a candle, the propane that had accumulated exploded, killing the homeowner. The construction company pleaded guilty to failing to ask the owner of the propane service to locate and mark the service prior to the excavation. The court fined it $225,000 [Aecon Construction Group Inc., Govt. News Release, March 9, 2011].
Top 5 Fines Against Indivduals
1. $26,000—Company Owner
After MOL inspectors found OHS violations at a construction project, workers told them that fall protection equipment was in the company owner’s van and that he wasn’t present. When the owner arrived, he refused to answer an inspector’s questions and then left the site. He later lied to the inspector. The court convicted him of eight safety violations and fined him $26,000 [Lushington Grant, Govt. News Release, June 30, 2011].
$15,000 fines were imposed in several cases on:
- A supervisor for failing to ensure that a worker stayed clear of a plough being backed up. The court also ordered him to perform 120 hours of community service and be retrained before operating similar equipment again [Lauri Romanko, Govt. News Release, Dec. 21, 2010]
- A worker for failing to cooperate with ministry inspectors [Marcelo Ponciano, Govt. News Release, June 27, 2011]
- A supervisor after a foreman was crushed to death by a concrete formwork panel that came free of its rigging [Able Concrete and Bryan Cher, Govt. News Release, Feb. 9, 2011.
Courts imposed $12,000 fines on:
- A supervisor for lying to an MOL inspector about a worker’s fall from a pitched roof [Dustin Greer, Govt. News Release, May 5, 2011]
- A supervisor after a propane explosion levelled a house, killing the resident. The company was also fined $180,000 [Genco Masonry and Contracting Inc. and Anthony Aiello, Govt. News Release, Nov. 2, 2010].
$10,000 fines were imposed in two cases on:
- A worker who gave an MOL inspector a Provisional Certification of Qualification that had a forged expiration date [Lloyd Dawkins, Govt. News Release, Nov. 12, 2010]
- An engineer for providing design plans for a bridge support structure that was incapable of supporting the loads to which it was to be subjected [EFCO Canada Co. and James McGerrigle, Govt. News Release, Nov. 30, 2010].
Fines of $8,000 were imposed in two cases on:
- A supervisor after an explosion resulted in a hose striking a worker in the head, causing critical injuries [Bosch Rexroth Canada Corp. and Ken Grant, Govt. News Release, Nov. 23, 2010]
- A supervisor for asbestos related violations [Mary O’Neill, Govt. News Release, Nov. 15, 2010].
Other Notable Cases
Incident Reporting Requirements Apply to Non-Worker Fatalities
A ski resort didn’t report the fatal drowning of a guest in its indoor swimming pool to the MOL because the victim wasn’t a worker. A safety inspector cited the resort for failing to report the death as required by OHS law. The resort appealed but the Labour Relations Board ruled that the incident reporting requirements applied to the guest’s death. The OHS laws say employers must report fatalities or critical injuries to a person, a term that’s clearly broader than the term “worker.” In addition, the pool was part of a workplace. And a court upheld this decision as reasonable [Blue Mountain Resorts Ltd. v. Ontario,  ONSC 3057 (CanLII), May 18, 2011].
MOL Can’t Use Supervisor’s Coerced Statement at OHS Trial
An MOL inspector investigating a serious incident sent a supervisor a form demanding that she appear for an interview. She refused and invoked her right to silence. He sent her a second form threatening her with a large fine or imprisonment if she didn’t appear. The supervisor went to the interview and made statements without a lawyer. She was then charged with OHS violations. Her lawyer asked the court to bar the MOL from using her statements at trial because they were coerced and violated her Section 7 Charter right against self-incrimination. The court agreed. The inspector was clearly pursuing a criminal investigation and had reasonable cause to charge the supervisor. So he should’ve given her a caution before speaking to her and couldn’t make her talk [Ontario (MOL) v. JR Contracting Property Services,  ONCJ 316 (CanLII), June 8, 2011].
Company Could Fire Worker for Video of Dangerous Workplace Prank
A worker at a construction site barred his genitals and allowed his scrotum to be stapled to a wooden plank—all of which was caught on videotape. The “stapling video” was posted online and soon became infamous in the area’s construction industry. When the company learned about the video, it fired the worker. The Ontario Labour Relations Board upheld the worker’s termination. The video was shot in the workplace and in the presence of co-workers. His dangerous conduct violated not only company policy but also OHS law. In addition, the worker’s employer was readily identifiable in the video. So when it became well known to people in this safety sensitive industry, it undermined the company’s reputation [International Union of Elevator Constructors, Local 50 v. ThyssenKrupp Elevator (Canada) Ltd.,  CanLII 46582 (ON LRB), July 28, 2011].
OK to Fire Worker after Imposing Progressive Discipline for Safety Violations
A waste company suspended a driver with a record of safety violations for five days after he missed a mandatory safety meeting and then fired him when he missed a follow-up meeting. An arbitrator upheld his termination. The company had properly followed its progressive discipline protocol in addressing this worker’s safety infractions. He never took responsibility for his unsafe actions and there was no reason to believe his behaviour would change now [Waste Management of Canada Corp. v. Teamsters, Local Union No. 419 (Nazas Grievance),  O.L.A.A. No. 551, Oct. 17, 2010].
Violation of Lockout Policy Costs Worker His Job
After two safety incidents, a company implemented new guards on machinery and a strict lockout policy. A supervisor found a worker operating a machine with the guard removed but the machine not locked out. The company’s decision to fire him was upheld by an arbitrator. He’d committed a serious and flagrant violation of the lockout policy and refused to admit that his conduct was dangerous. Thus, to deter this worker and others in the workplace from committing similar violations, discipline beyond the one day suspension suggested by the union was warranted [Sandvik Materials Technology Canada v. National Automobile, Aerospace, Transportation and General Workers Union of Canada, Local 2228 (Jocque Grievance),  O.L.A.A. No. 603, Nov. 19, 2010].
OHS Charges Against Engineer Dismissed Due to Long Delay in Trial
After a worker got hurt on equipment that an engineer had certified as safe, the MOL charged the engineer on Dec. 21, 2007 with violating the OHS Act. The case was finally scheduled for trial in April 2010 but he said the long delay had violated his rights. The trial court ruled that the delay was unreasonable and had prejudiced the engineer’s right to a speedy trial. And the appeals court agreed [Ontario (Ministry of Labour) v. Vollick,  O.J. No. 5326, Dec. 8, 2010].
Employer Can Require Driver to Take Drug Test before Returning to Work
A truck driver with a prior drug use history showed up late for work, behaved erratically at a customer’s site and had a traffic accident. Co-workers said he wasn’t fit to drive before the accident. A supervisor drove him home. The employer told him he couldn’t return to work until he passed a drug test. But he refused to take one. The arbitrator ruled that the employer had reasonable cause to require the worker to submit to drug testing before returning to work in his safety-sensitive position [Dufferin Concrete v. Teamsters, Local 230 (Luck Grievance),  O.L.A.A. No. 654, Dec. 15, 2010].
Employer Retaliated Against Worker for Refusing to Work without Proper PPE
A worker had a half-face respirator that was supposed to protect him from inhaling paint fumes. But the mask was in disrepair and didn’t provide adequate protection. He refused to paint until he had a new mask. He was suspended for two weeks without pay and given two disciplinary warnings. The Labour Relations Board rejected the employer’s argument that it had disciplined the worker for his poor attitude. It ruled that the discipline was “heavy handed” and in retaliation for the worker’s justified work refusal [Haines v. Cameron Steel Inc.,  CanLII 2238 (ON L.R.B.), Jan. 19, 2011].
Worker’s Dangerous Shortcut Warranted Serious Discipline But Not Termination
A worker was out of position and didn’t want to cause a production delay. So he took a dangerous shortcut to his workstation. The employer gave him 75 demerit points for the infraction, putting him over the 100 limit and resulting in his firing. An arbitrator ruled, however, that the company should’ve only given him 35 demerit points. The worker’s shortcut was very dangerous. But he’d never been disciplined in his 33-year career for a safety violation. In addition, the company’s point system was arbitrary and inconsistent. Thus, the worker’s demotion and wage reduction were adequate discipline under the circumstances [Essar Steel Algoma Inc. v. United Steelworkers Local 2251,  CanLII 11128 (ON L.A.), March 7, 2011].
Auto Parts Supplier Accommodated Injured Worker to Point of Undue Hardship
A worker for an auto parts supplier injured her back on the job. For nearly two years, she tried unsuccessfully to return to work. The supplier finally said it didn’t have any suitable work for her. She claimed that it’d failed to accommodate her. The arbitrator said the supplier had a “credible” early and safe return to work program and had made genuine efforts to accommodate the worker. But her limitations were very restrictive and permanent. As the worker can no longer perform productive work for the supplier, it had accommodated her to the point of undue hardship, concluded the arbitrator [Automodular Corp. v. CAW-Canada, Local 1256 (Petkovska Grievance),  CanLII 20787 (ON L.A.), April 7, 2011].
Employer Must Accommodate Electrician Who Was Drunk at Work
A hog slaughtering facility fired an electrician for being drunk on the job for the third time and injuring himself. But an arbitrator ruled that the electrician was an alcoholic and thus disabled. The employer didn’t try to accommodate him to the point of undue hardship. So the arbitrator ordered the employer to reinstate the electrician subject to fairly stringent return to work conditions, including random alcohol/drug testing and participation in a treatment program [Fearman’s Pork Inc. v. United Food & Commercial Workers International Union, Local 175 (Kutlesa Grievance),  O.L.A.A. No. 288, Aug. 16, 2011].
Guarding Violation Leads to $150,000 Fine
A machine made for shredding metal was shut down for maintenance. The shredder’s dome lid was opened using a hydraulic system and secured with a pin. After maintenance was done, one worker removed the pin while a second activated the hydraulic controls to close the lid. The first worker left and, when he returned, found the second worker trapped in the shredder between the dome lid and base. The company pleaded guilty to a guarding violation. Its fine: $150,000 [Triple M Metal Corp., Govt. News Release, May 2, 2011].
Salt Mine Fined $140,000 for Worker’s Death by Asphyxiation
A salt mine property contained large domes of salt with open grates in the floors to allow the salt to flow down onto conveyors leading to the loading area. A worker was using an excavator to move salt within a dome when the excavator broke down and a maintenance person was called for repairs. While waiting, the worker began clearing salt from the machine. The conveyor started moving and salt began falling through the grate in the floor. He was pulled through the grate with the moving salt and asphyxiated. The salt mine pleaded guilty to failing to ensure that the grate in the bottom of the dome was guarded to prevent a worker from being drawn into it. The court fined it $140,000 [Sifto Canada Corp., Govt. News Release, July 14, 2011].
Two Companies Fined $125,000 for Electrical Incident
A refrigeration company worker was servicing an electrically-powered door at a grocery centre. While standing on a ladder, he made contact with the door’s energized control panel and fell off the ladder, sustaining severe head injuries and electrical burns. During the MOL’s investigation, a grocery manager asked a maintenance worker to interfere with the scene. The grocery center pleaded guilty to disturbing the scene of an incident and was fined $30,000. The refrigeration company pleaded guilty to a lockout violation and was fined $95,000 [Cimco Refrigeration and Sobeys Capital Inc., Govt. News Release, Sept. 13, 2011].
Worker’s Injuries While Clearing Clog Lead to $120,000 Fine
A worker at a car manufacturing plant tried to clear a clog in a picker, a machine with a large spiked roller. Although he locked out the machine before opening an access window to reach the clog, the roller was still moving. His hand got caught by the roller and he was drawn into the machine, suffering serious injuries. The manufacturer pleaded guilty to failing to ensure that the roller was cleaned or adjusted only when motion that may endanger a worker had been stopped. The court fined it $120,000 [Rieter Automotive Mastico Ltd., Govt. News Release, May 13, 2011].
Construction Company Fined $110,000 for Crane Rigging Incident
As a crane lifted two structures made of rebar, the load shifted and the unsecured structure fell on a worker, seriously injuring him. The construction company was found guilty of failing to ensure that the crane’s rigging was arranged to prevent the top structure from slipping or falling and to provide information, instruction and supervision to a worker on preventing a hoisted object from slipping or falling. It was fined $110,000 [AGF Raymond Rebar Inc., Govt. News Release, March 30, 2011].
Paving Company Fined $100,000 for Lack of Signaller
Three paving company workers disconnected a trailer from their truck. When a worker got into the vehicle and slowly reversed it towards the work site, it ran over and killed another worker. The company pleaded guilty to failing as an employer to ensure that the vehicle operator was assisted by a signaller. The court fined it $100,000 [Springside Paving & Construction Ltd., Govt. News Release, Feb. 23, 2011].
Gold Mine Fined $100,000 for Two Separate Safety Incidents
A crew on a tram in a gold mine collided with another crew in a second tram at a curve, crushing and seriously injuring a worker. In a separate incident, a worker was installing ground support at a working face when a piece of loose rock fell, glancing off a drill and hitting him. He suffered leg injuries. The mine pleaded guilty to OHS violations for both incidents and was fined $50,000 for each [Kirkland Lake Gold Inc., Govt. News Release, Sept. 8, 2011].
$100,000 Fine Imposed for Death of Worker in Diving Incident
A diver performing an underwater inspection and videotaping of a dam reported that a “stop log” wasn’t sitting properly. He was told to get a closer view but was pulled against the gap under the stop log and trapped there. He died of chest compression. The company pleaded guilty to failing to ensure that, before the dive began, any water flow that was a potential hazard to the diver was identified and controlled. The court fined it $100,000 [O.D.S. Marine, Govt. News Release, Sept. 28, 2011].
Engineering Consultant Injured Doing OHS Review of Plant Line
An engineering consultant was conducting a pre-start health and safety review of a tile backing line at a plant. The line was in full operation as he pointed out an in-running nip hazard between two rollers. His arm was caught between the rollers and severely injured. An MOL investigation found that the engineering company had failed to provide clear instructions and procedures for a worker to follow when inspecting unguarded moving parts of equipment. It pleaded guilty to an OHS violation and was fined $80,000 [Imasar Engineering Inc., Govt. News Release, Dec. 22, 2010].
Nuclear Plant Fined $80,000 for Worker’s Head Injuries
A worker for a subcontractor doing construction at a nuclear power generation plant was hit on the head by an electrical panel dropped by a plant electrician from a catwalk. He sustained minor head injuries. The plant pleaded guilty to failing, as a constructor, to ensure that the work area was protected by signs warning workers of the overhead danger and was fined $80,000 [Bruce Power Inc., Govt. News Release, Jan. 25, 2011].