2016 OHS YEAR IN REVIEW
A roundup of important new legislation, regulations, court cases and board rulings that we covered in the OHS Insider monthly newsletter and on OHSInsider.com in 2016.
TOP 5 FINES/PENALTIES ACROSS CANADA
- $365,000 (ON)
A mining company was fined $365,000 for two safety incidents. In the first, a miner operating a scoop tram hauling ore was killed instantly when he was struck and crushed by a run of muck or rock. In the second, a worker was loading mine haulage trucks with an excavator when the working face of the stockpile failed, sending a large amount of material onto the excavator. It crushed the operator’s cab and trapped the worker inside. He suffered hand and leg injuries [Lac Des Iles Mines Ltd., Govt. News Release, Jan. 19, 2016].
- $300,000 (AB)
A floor hand was fatally injured when he was crushed between the forks of an excavator and a stationary post on a portable flare tank. A drilling company pleaded guilty to an OHS violation. The court fined it $5,000 and ordered it to pay $295,000 to the Alberta Construction Safety Association for the creation of a safety course. Another company involved in the incident was fined $150,000 [Ensign Drilling Inc. and Daylo Services Inc., Govt. News Release, Nov. 26, 2015].
- $300,000 (AB)
A worker was dismantling a catwalk when a pipe elevator fell off the catwalk and struck him, causing fatal injuries. His employer pleaded guilty to an OHS violation. The court fined it $150,000 and ordered it to pay $150,000 to the Helicopter Emergency Response Organization [Nabors Drilling Canada Ltd., Govt. News Release, Oct. 26, 2015].
- $300,000 (AB)
A worker was hit by a pipe and died. His employer pleaded guilty to an OHS violation and was fined $300,000. A significant mitigating factor was that the company voluntarily established a $100,000 scholarship fund for the deceased worker’s two daughters [TMK IPSCO Canada, Ltd., Govt. News Release, April 28, 2016].
- $280,000 (SK and ON)
A worker in a Saskatchewan mine was killed when he was struck on the head by falling earth. The mining company was fined $280,000 for failing to take effective steps to control the movement of strata in all underground excavations [Potash Corporation of Saskatchewan Inc., Govt. News Release, Dec. 9, 2015]. And at an Ontario propane company’s facility, propane was ignited during a prohibited truck-to-truck transfer, resulting in several explosions and a fire. A young, new worker was killed. The propane company was convicted of violating the OHS laws and fined $280,000. (It was also convicted of environmental violations and fined $2.82 million.) [Sunrise Propane Energy Group Inc., Govt. News Releases, Jan. 25, 2016].
LAW OF THE YEAR
On June 29, 2016, the government published in the Canada Gazette amendments to certain regulations under the Canada Labour Code to reflect WHMIS 2015. The regulation modifies the WHMIS provisions in:
- Canada OHS Regulations
- Aviation OHS Regulations
- On Board Trains OHS Regulations
- Maritime OHS Regulations
- Oil and Gas OHS Regulations.
OTHER NOTABLE REGULATORY CHANGES
Fishing Vessel Safety
Amendments to the Small Fishing Vessel Inspection Regulations enhance safety in the commercial fishing industry. The new regulations update the safety equipment and vessel stability requirements as well as introduce safe operating procedures for small fishing vessels.
CASE OF THE YEAR
Firing of Truck Driver for Refusing Post-Incident Drug/Alcohol Test Upheld
A truck driver was fired after refusing to submit to a drug and alcohol test after a safety incident involving his truck. He sued for wrongful dismissal. An arbitrator found that the driver’s position was a safety-sensitive one. He was aware of the company’s drug and alcohol policies, which provided for termination upon refusal of a test. And after several recent incidents, the company had held a meeting that stressed the need for safety and warned that incidents would result in drug and alcohol testing. After the driver’s incident, it was “reasonable and prudent” for the company to ask him to be tested, said the arbitrator. But he refused and didn’t indicate why. As there were no extenuating circumstances that would justify his refusal, the arbitrator concluded that termination was warranted [Mielke v. Entrec Corp.,  C.L.A.D. No. 272, Nov. 30, 2015].
OTHER NOTABLE CASES
Truck Driver Hauling Hazardous Substances Properly Fired for Unsafe Driving
A bystander saw a truck driver pass another tractor trailer through an intersection and a blind curve, all against a double solid line with oncoming traffic. A supervisor spoke to the driver about the incident and issued him a written warning. Two months later, two drivers for another trucking company reported this driver as driving unsafely and recklessly. Based on these incidents and the driver’s failure to admit his errors, the company fired him. An arbitrator upheld his termination. A higher standard of conduct applied to the company’s drivers because they’re not only operating heavy equipment on public highways but also often hauling hazardous products. This high standard was stressed in the company’s safety policy. The driver committed two serious violations of this policy and the law within two months, and had a bad attitude, refusing to admit he’d done anything wrong. Thus, there was just cause to fire him, concluded the arbitrator [Goulet Trucking (1989) Ltd. v. Niccolls,  C.L.A.D. No. 38, March 7, 2016].
Postal Worker’s Refusal Based on Lack of a Stairway Handrail Rejected
A postal worker exercised his right to refuse unsafe work, claiming that climbing stairs without banisters to deliver mail to a specific home posed a danger. An OHS officer investigated and concluded that it was safe for the worker to deliver mail to this address. The worker appealed. The OHS Tribunal found that, in these circumstances, the lack of a handrail alone wasn’t a condition or hazard that could reasonably be expected to cause injury to a worker. A handrail installed in a stairway helps to avoid falls and there was no indication that there was a reasonable possibility that the worker could fall that day due to obstacles, snow or ice on the stairway at the address in question. In fact, the weather the day of the refusal was dry and sunny and that there were no impediments on the stairs that might have obstructed the path to the mailbox [Thibeault v. Canada Post Corp.,  OHSTC 21, Nov. 13, 2015].
Bank Mishandled Employee’s Violence Complaint & Unjustly Fired Him
A bank employee broke up with his girlfriend, who was the sister of a bank manager. The employee claimed the brother stalked him at work and threatened him with physical violence in the parking lot. The employee attempted suicide and then took leave to deal with severe depression and anxiety. He told the HR partner that he was afraid to return to work due to the threats made by the brother in the workplace. The partner investigated and concluded that there were no safety concerns. The employee was told to return to work or provide medical documentation as to why he couldn’t return. He did neither and was fired. He claimed unjust dismissal. An arbitrator found that the bank’s investigation of the threats of violence didn’t comply with the OHS regulations. In addition, it didn’t warn the brother to stay away from the employee. And the bank’s failure to accommodate him with a progressive return to work made it hard to accept its argument that he was absent without leave. So the arbitrator concluded that the employee was unjustly dismissed [Daoust v. JP Morgan Chase Bank National Assn.,  C.L.A.D. No. 41, March 7, 2016].
LAW OF THE YEAR
On Jan. 1, 2016, key OHS changes in Bill 6, the Enhanced Protection for Farm and Ranch Workers Act, took effect, giving farm and ranch workers the same safety rights and protections as all other workers in the province and in the country.
CASE OF THE YEAR
Decision Against Random Drug & Alcohol Testing Overturned
When an oil and gas company tried to impose a random drug and alcohol testing policy on its workers, the union challenged the policy. An arbitration panel sided with the union, finding that the harm to worker privacy rights from random testing outweighed the safety benefit to be gained and the imposition of random testing wasn’t justified because the company failed to show sufficient evidence of a problem with alcohol and drugs in its workplace. On appeal, the Court of Queen’s Bench disagreed and ordered a new arbitration panel to rehear the case. The court said the panel had inappropriately raised the evidentiary threshold required to prove a workplace alcohol and drug problem from evidence of a general problem to evidence of a significant, extreme or serious problem. In addition, the panel had required the company to establish a causal link between alcohol and drug use, and safety incidents in the workplace. But the Irving decision, the leading case in this area, doesn’t impose a causal connection requirement. The court also criticized the panel for failing to consider all of the relevant evidence, such as the fact that the company had almost 250 positive tests since the introduction of “for cause” alcohol and drug testing in 2003. Thus, the panel’s decision was unreasonable, concluded the court [Suncor Energy Inc. v. Unifor Local 707A,  ABQB 269 (CanLII), May 18, 2016].
OTHER NOTABLE CASES
OHS Convictions Overturned & New Trial Ordered in Death of Well Worker
A worker at a well site was engaged in a process in which a drilling pipe is removed from the well and disconnected piece by piece. He was hit in the head by rotating equipment and died. The court convicted his employer of two OHS violations, ruling that the appropriate standard of care required an engineered solution to the problem of table torque induced by the driller. But an appeals court set aside the convictions and ordered a new trial. The trial judge made a “palpable and overriding error” when he found that industry competitors had adopted an interlock device. In addition, although the Crown proved that the drilling rig had the capacity to endanger the safety of any person, it didn’t prove that the employer committed any wrongful act. The appeals court also found that the trial judge erred in concluding that the employer hadn’t proven that it had done what was reasonably practicable to avoid the worker’s death. In fact, the trial evidence established that it had met all industry standards and legislative requirements [R v. Precision Drilling Ltd.,  ABQB 518 (CanLII), Sept. 16, 2016].
Documents Created in Required Fatality Investigation Are Protected by Privilege
A worker died from an electrical contact. His employer reported the incident to the Alberta Ministry of Labour (MOL) and conducted an investigation as required by the OHS law. The MOL demanded that the employer provide information and various records related to the fatality and its subsequent internal investigation. Although the employer provided some of the requested documents, it refused to produce many others, claiming they were protected by privilege. The MOL imposed a $5,000 administrative penalty on the employer for refusing to provide the requested documents, arguing that because the investigation was mandated by OHS law, the dominant purpose for the collection of the information was to comply with that statutory requirement—not to prepare for litigation—and so privilege didn’t apply. The court ruled that privilege could apply to the contested documents. Although the employer had a legal duty to investigate the fatality, that duty didn’t preclude its entitlement to litigation privilege, particularly if the evidence shows that it took “deliberate steps to cloak documents and information collected in the process of the investigation with the garb of privilege in anticipation or contemplation of litigation,” explained the court. The employer had proven that “the dominant purpose of carrying out its internal investigation was in contemplation of litigation.” So given the volume of documents over which the employer claimed privilege, the court concluded that a court-appointed referee should assess whether each document, record or information fell under either litigation or solicitor-client privilege and make appropriate recommendations to the court [Alberta v. Suncor Energy Inc.,  ABQB 264 (CanLII), May 10, 2016].
First Community Service Sentence Imposed for an OHS Violation
At a residential construction site, a worker fell through an opening between joists, falling approximately 6.6 metres. He was paralyzed from the chest down as a result. The company that employed him pleaded guilty to an OHS violation. And for the first time in Alberta, it was sentenced to serve community service for this violation and pay a $10,000 fine. The Crown suggested community service because the company’s owner had retired and the company was no longer in business. A corporate representative will perform 200 hours of community service with Hearts and Hammers, a non-profit organization that provides home renovations to accommodate people with mobility challenges [Needoba Construction Ltd., Govt. News Release, Feb. 2, 2016].
OK to Terminate Probationary Employee Who Violated Safety Rules
A probationary service technician was standing on a ladder but not properly tied in and not wearing safety boots or glasses. He lost his footing and slid down the ladder, breaking his leg. He admitted that he’d used poor judgment. The employer then learned that the technician had gotten a speeding ticket while driving a company truck on duty, which he never reported. So the employer terminated his employment. The union filed a grievance but an arbitrator upheld his firing. A company has the right to dismiss a probationary employee if the employee’s found to be unsuitable. Here, the technician had a fair opportunity to demonstrate his suitability but immediately after getting training, he violated the safe driving standards and PPE requirements, and fell from a ladder because he failed to follow safe ladder protocols. Thus, the company’s decision to terminate him was reasonable and based on a careful assessment of his performance, concluded the arbitrator [Telecommunications Workers Union, United Steelworkers National Local Union 1944 v. Telus Corp.,  CanLII 6195 (AB GAA), Feb. 10, 2016].
Court Refuses to Dismiss Negligence Case Against Company Directors
Two workers were steam cleaning an oil tank when it exploded. One worker was killed; the other was seriously injured. The injured worker sued the directors of the company that operated the shop where the incident occurred, claiming negligence. The directors asked the court to dismiss the lawsuit, arguing that they owed no duty to the worker and so couldn’t be negligent. They claimed they were directors and shareholders in
name only, and didn’t know anything or do anything with respect to running the company. The court said the defendants had a duty with respect to health and safety in the workplace. It remains to be seen whether their liability will be established on the facts of this case, but their own evidence that “they did nothing would seem to take the plaintiff most of the way there,” said the court in refusing to dismiss the lawsuit [Bower v. Evans,  ABQB 286 (CanLII), May 19, 2016].
Excessive to Fire Worker for Positive Drug Test after Minor Safety Incident
A worker slipped and fell into a trench and onto a co-worker. Neither was injured. The worker took a post-incident drug test, which came back positive for marijuana. His supervisor and a committee recommended a five-day suspension, but the company CEO fired the worker. The union filed a grievance. An arbitrator found that the company’s drug and alcohol policy was reasonable and it was justified in asking the worker to be tested after the minor incident. The positive test result violated that policy. But the worker admitted using marijuana recreationally and took responsibility for his conduct. The arbitrator concluded that automatic termination for a positive result due to recreational drug use was unreasonable and inappropriate in these circumstances. So it ruled that although discipline was justified, termination was excessive [EPCOR Utilities Inc. v. Canadian Union of Public Employees, Local 30,  CanLII 66181 (AB GAA), Sept. 5, 2016].
Also Excessive to Fire Millwright for Careless Lockout Violation
A millwright at a lumber mill entered a restricted area and crossed over live chains without properly locking out all power sources, which violated the mill’s lockout policy. He realized what he’d done and locked out the power. But his supervisor had already seen the violation. The millwright admitted violating policy, but asked if there was really any harm done. Believing he didn’t take the violation seriously, the mill fired him. An arbitrator found that the millwright had made a careless error, which he’d admitted. Although his misconduct was serious, it wasn’t intentional. In addition, there was no evidence he was indifferent to safety and, in fact, he was proud of his record of 27 years without injury. So the arbitrator concluded that termination for this violation was excessive, finding that an eight-day suspension was more appropriate [United Steelworkers Local 1 – 207 v. Weyerhaeuser Company Ltd.,  CanLII 13703 (AB GAA), March 9, 2016].
But OK to Fire Train Operator Who Disabled Safety Device
Calgary Transit trains have a deadman override mechanism consisting of a floor pedal and a button on the cab’s dash. One or the other must be engaged by the operator at all times for the train to run. In an emergency, the deadman is engaged and the train stops. After an operator’s shift, a first aid kit was found jammed between the override button and the dash, allowing the train to run but preventing the deadman from engaging in an emergency. When confronted, the operator denied jamming the button, later admitted the misconduct and then denied it again. So the city fired him. An arbitrator upheld his termination, although he had no prior disciplinary record. The circumstantial evidence was compelling against the operator, who wasn’t credible. In addition, the seriousness of his misconduct and the potential tragic consequences of that action were obvious, noted the arbitrator [Calgary (City) v. Amalgamated Transit Union, Local 583 (Khan Grievance),  A.G.A.A. No. 4, March 11, 2016].
Employer Fined $150,000 for Death of Drywall Finisher
A drywall finisher/taper suffered fatal injuries when he was pinched between the articulating boom lift he was operating and a ceiling bulkhead. His employer pleaded guilty to violating Sec. 15(1) of the OHS Regulation and was fined $150,000 [POS Construction Ltd., Govt. News Release, March 4, 2016].
Company Penalized More than $100,000 after Worker Is Injured by Exploding Tire
A worker was in the process of inflating a new tire when it exploded. The tire/rim struck him in the head, causing a serious injury. A company pleaded guilty to an OHS violation for the incident. The court fined it $5,000 and ordered it to pay $97,750 to the Alberta Motor Transport Association for the development of an entry level shop safety course [Kavanaugh Investments Ltd., Govt. News Release, July 4, 2016].
Cabinet Maker Fined $75,000 for Failing to Repair Safety Mat
A worker for a cabinet maker seriously injured his hand and wrist when he stumbled and put his hand into running equipment to break his fall. The safety mat for the equipment hadn’t worked for about three years before the incident and had been disconnected so the equipment could still be used. The manufacturer pleaded guilty to an OHS violation. At sentencing, the court noted that it would’ve cost about $7,500 to fix the safety mat, which the small company could’ve afforded. But it didn’t have prior safety violations and it properly trained its workers, was remorseful and cooperated in the investigation, and its failure to repair the safety mat was negligent but not malicious or wanton. So the court fined it $75,000 [R. v. The Kitchen Centre Ltd.,  ABPC 12 (CanLII), Jan. 15, 2016].
LAW OF THE YEAR
As of June 1, 2016, distracted driving was elevated to the threshold for “high-risk” driving offences. In addition, distracted drivers are now subject to the following:
- Each offence will include the base fine of $368 and will add four penalty points to a person’s driving record
- First-time offenders will face a minimum $543 in financial penalties
- Repeat offenders, upon a second offence within 12 months, will pay the $368 fine plus $520, for a total of $888 in financial penalties, which increase further for any additional offence.
OTHER NOTABLE REGULATORY CHANGES
In May, WorkSafeBC released a new guideline that provides information describing the competencies necessary in a “qualified person” for purposed of Part 6 – Asbestos of the OHS Regulation.
And in July, WorkSafeBC updated the following OHS Policies and Guidelines:
- R5.48-1 Occupational Exposure Limits
- Table of exposure limits for chemical and biological substances
- G8.24-1 Alternative standards for high visibility apparel.
CASE OF THE YEAR
BC Court Says OHS Laws Are Too Voluminous & Complicated to Understand
Over several years, WorkSafeBC penalized an asbestos abatement company, its owner and his son for violations of the Workers’ Compensation Act (Act) and related OHS Regulation (Regulation). The defendants incurred penalties of more than $200,000 for such violations, which they didn’t pay. The defendants were also issued an order barring them from violating the OHS laws as to the asbestos requirements, which they failed to obey. WorkSafeBC asked the court to hold them in contempt, but it refused. The court explained that to support a finding of contempt, an order must be sufficiently clear, unambiguous and not overly broad. Here, the court concluded that it was “a practical impossibility” for the defendants “to know with any clarity what it is they are to refrain from doing.” Simply requiring them to comply with the OHS laws, without more, is an overly-broad directive for supporting a finding of contempt. The Act is voluminous and complex, particularly for people who aren’t lawyers, observed the court. The Regulation “is equally or more daunting to the untrained eye,” especially when you include the related policies, guidelines and standards. Given the size and generality of the OHS laws, the court concluded that it would be impossible for the defendants, when they went to work each day, to know whether their work put them outside of the Act or Regulation and thus in contempt [Workers’ Compensation Board v. Skylite Building Maintenance Ltd.,  BCSC 394 (CanLII), Feb. 26, 2016].
OTHER NOTABLE CASES
Use of Cameras in Manufacturing Facility Was Reasonable for Safety
A manufacturer installed surveillance cameras in the workplace to achieve greater security and safety. The union demanded removal of the cameras, claiming the manufacturer had violated the collective agreement, provincial law and arbitral policy. An arbitrator found that installation of the cameras was a reasonable exercise of management rights. Reasonable use of the cameras can increase safety. The manufacturer had no ulterior motive. The number and configuration of cameras were appropriate. And they’re only used as an investigative tool for past safety incidents and infractions [Kadant Carmanah Design v. International Association of Machinists and Aerospace Workers, District 250,  CanLII 79278 (BC LA), Nov. 12, 2015].
Employer’s Shirt Tucking Rule Justified on Safety Grounds
An employer and the union jointly agreed to a new work shirt to be worn by workers in the smelter. But the employer also unilaterally imposed a new safety rule requiring this shirt to be tucked into a worker’s pants. The union opposed this rule. The arbitrator noted that the employer required workers to tuck in their shirts at other locations. The safety reasons for the tucking rule include reducing workers’ risk of exposure to air contaminants, protecting workers from splashes of molten metal, reducing the risk of the shirt’s entanglement in equipment and reducing the potential harm from electric spark flashes. Workers who don’t want to tuck can wear coveralls. Management has both the right and obligation to ensure that its OHS standards comply with the law, said the arbitrator. And the OHS laws support the new shirt tucking rule. So the arbitrator dismissed the grievance [Rio Tinto Alcan Inc. v. Unifor, Local 2301 (Change to Personal Protective Equipment Standards Grievance),  B.C.C.A.A.A. No. 52, June 3, 2016].
No Proof Bartender’s Firing Was Due to His Alleged Use of Medical Marijuana
A bartender claimed that he was fired after he was caught smoking marijuana while on shift. He said that he used the medical marijuana to deal with chronic pain and thus his firing was disability discrimination. The bar claimed that he was fired for poor work performance and attitude, irreconcilable conflicts and inappropriate conduct toward female employees. The Human Rights Tribunal found that there wasn’t a link between the bartender’s alleged chronic pain and his use of marijuana. In fact, the evidence showed that the degenerative disc disease that was the cause of his pain was diagnosed only two days after his termination. Moreover, the bar wasn’t aware he had such a disease or chronic pain condition or that he used marijuana as a medical necessity to manage pain arising out of his alleged disability. So the Tribunal dismissed the lawsuit, ruling that the bartender had no reasonable prospect of proving a nexus between his alleged disability and his firing [Burton v. Tugboat Annie’s Pub,  BCHRT 78 (CanLII), June 24, 2016].
Injured Worker’s Discrimination Complaint Dismissed
A worker for a dairy facility injured his shoulder and was out of work for almost three years when his employer fired him. The worker sued for disability discrimination. The employer argued that it had accommodated him to the point of undue hardship. The Human Rights Tribunal dismissed his claim. The worker argued that the employer failed to accommodate him by not offering him a clerical/administrative position such as a data entry clerk after he completed a computer course. But there was evidence that providing such a position didn’t provide him with a reasonable accommodation, said the Tribunal. For example, the worker himself said typing and writing exacerbated his pain. The Tribunal concluded that based on the employer’s ongoing cooperation in trying to accommodate the worker as requested by WorkSafeBC, his physical limitations and the lack of evidence that he wanted to return part-time, there was no reasonable prospect that his complaint would succeed [Barker v. Vitalus Nutrition,  BCHRT 88 (CanLII), July 13, 2016].
LAW OF THE YEAR
As of Jan. 1, 2016, if a worker in Manitoba is exposed to certain types of traumatic events and diagnosed with Post-Traumatic Stress Disorder (PTSD), the WCB can presume the PTSD is caused by the worker’s employment, unless the contrary is proven.
CASE OF THE YEAR
Worker’s Fourth Positive Drug Test Warranted Termination
After a mine worker tested positive for cocaine twice, he got treatment and was allowed to return to work on certain conditions, including random testing. He tested positive again in a random test. Then he disappeared for four days and left a disturbing message on his supervisor’s phone. When he came back to work, he attended a meeting where he acted suspiciously. So he was asked to take a drug test, which he failed. The mine fired him and the union filed a grievance. An arbitrator ruled for the mine. Whether there was reasonable cause to ask the worker to take a drug test was irrelevant as he’d agreed to random testing. And that test was again positive for cocaine. Also, the worker’s explanation for the positive test—that his wife had slipped cocaine into his medication—was “unusual” and unsupported by any evidence, added the arbitrator [Vale Canada Ltd. (Manitoba Operations) v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 6166 (Unjust Termination Grievance),  M.G.A.D. No. 8, Nov. 20, 2015].
OTHER NOTABLE CASES
Hemp Company Fined $20,000 for Machine Guarding Violation
While removing hemp that had jammed in a hemp processing machine, a worker suffered serious injuries to his right arm. His employer plead guilty to failing to ensure that the machine involved was equipped with a safeguard to prevent workers from coming into contact with moving parts and was fined $20,000 [Plains Industrial Hemp Processing Ltd., Govt. News Release, June 22, 2016].
Employer Fined $15,000 after Worker’s Pants Catch Fire
While using a hand grinder, a worker’s pants caught fire, causing significant injury. An investigation found that while installing a work platform the previous day, the worker’s pants were exposed to sodium chlorate. Sparks from the hand grinder ignited the sodium chlorate on his pants. The employer pleaded guilty to failing to implement safe work procedures for installing a work platform above sodium chlorate dryers and was fined $15,000 [Glendale Industries Ltd., Govt. News Release, April 28, 2016].
Sole Proprietor Fined & Put on Probation after Injury to Worker/Family Member
A worker for a sole proprietor, who was also a family member, was washing exterior windows at an apartment complex. A rope attached to a boatswain chair that he was suspended from snapped, causing him to fall seven stories and crash through a glass atrium to the ground below. He suffered serious injuries. The sole proprietor pleaded guilty to failing to ensure that a worker executed his duties as a window washer with adequate equipment, to develop and implement safe work procedures for workers working alone while window cleaning, and to ensure that a fall protection system being used at a worksite was inspected before use. The court fined him $7,806 and put him on probation for 18 months [George Piper, Govt. News Release, Aug. 25, 2016].
LAW OF THE YEAR
New Brunswick’s new regulation implementing WHMIS 2015 took effect on April 1, 2016, with the transition to the new system continuing until Dec. 2018.
CASE OF THE YEAR
Shop Teacher’s Refusal to Work Due to Class Size Wasn’t Justified
A shop teacher refused to work, claiming that the class size of 17 students put his health and safety in danger. A health and safety officer investigated the refusal and concluded that it wasn’t warranted. The teacher appealed. But the Appeals Tribunal found that there wasn’t sufficient evidence to overturn the officer’s conclusion. The OHS laws don’t have any specific limits on class sizes, including shop classes. The collective agreement set a limit of 29 students per class in general, while the school board recommended 18-22 students per shop class. In addition, union representatives, including JHSC representatives, believed that the teacher didn’t have reasonable grounds for refusing to work. The Tribunal also noted that it was agreed that the teacher ultimately had the authority to manage the activities of the students to ensure his safety as well as the safety of the students [20168017 (Re),  CanLII 57012 (NB WCAT), Aug. 31, 2016].
OTHER NOTABLE CASES
Worker’s Wrist Injury Caused by Repetitive Scanning on the Job
A worker filed a workers’ comp claim for a repetitive stress injury to her wrist she said was caused by using a hand-held inventory scanner on the job. The claim was denied, so she appealed. The Appeals Tribunal approved her claim. Based on pictures and other evidence, the worker’s duties were clearly repetitive in nature and involved scanning up to 1,000 items per shift combined with awkward wrist posturing and wrist flexion. And her chiropractor said it was “obvious” that the cause of her injury was the repetitive motion of her hand while at work [20157751 (Re),  CanLII 132 (NB WCAT), Jan. 5, 2016].
Workers’ Comp Must Cover Worker’s Medical Marijuana for Chronic Pain
A worker hurt his back at work. He tried to return to work about one month after the incident, but was experiencing increased symptoms. He saw a chiropractor and an orthopaedic surgeon, who recommended that he visit a pain clinic. Although the worker tried many different medications to help manage his pain, it was an ongoing struggle. So his doctor gave him a prescription for medical marijuana. But workers’ comp refused to cover the prescription. The Appeals Tribunal disagreed. The worker had a chronic condition. Traditional medications failed to relieve his pain and had more side effects than marijuana. That’s why his doctors concluded that medical marijuana was the most effective option for managing his pain. The Tribunal ruled that the worker definitely had an established need for medicinal marijuana as it forms a necessary part of his medical aid, which is directly linked to his compensable injury. So it ordered the workers’ comp board to pay for his medical marijuana prescription [20167943 (Re),  CanLII 39662 (NB WCAT), June 27, 2016].
CASE OF THE YEAR
City’s Conviction for OHS Violations Overturned & New Trial Ordered
During a highway inspection, three employees were hit by an out-of-control vehicle. One was killed; the other two were injured. The Department of Transportation and Works and the city of St. John’s were convicted of seven OHS violations (last year’s Case of the Year). They appealed. The appeals court overturned the conviction and ordered a new trial. The appeals court found that it was an error of law for the trial judge to conclude that, without more, the car’s striking the employees in the course of their road inspection was prima facie proof of any of the offences charged and this error was magnified when the same reasoning was applied to seven different offences, each with its own different elements, but which elements weren’t identified by the trial judge [R. v. St. John’s (City),  CanLII 28455 (NL SCTD), May 16, 2016].
OTHER NOTABLE CASES
JHSC Member’s Termination Wasn’t a Reprisal for Raising Safety Concerns
A building operator for the YMCA and a member of the JHSC claimed he was fired for trying to raise safety issues with his supervisor and senior management. He said he’d complained to his supervisor on numerous occasions, but the supervisor either dismissed his concerns or refused to commit the resources required to address them. The Labour Relations Board found that of all the safety issues the operator referred to, there was evidence that most—if not all—were dealt with in a timely fashion. In addition, an OHS inspection revealed a few minor issues but no stop work orders were issued. Thus, there was no evidence his termination was a reprisal for raising safety concerns, concluded the Board [YMCA of Northeast Avalon Inc. (Re),  N.L.L.R.B.D. No. 2, March 3, 2016].
Mechanic Could Sue Employer for Injuries Under Workers’ Comp Exception
A mechanic was assigned to repair a construction company’s truck, which was placed on blocks. While he was working on it, it rolled off the blocks and crushed his lower body, causing grievous injuries. The mechanic sued the company, relying on an exception under the workers’ comp law for injuries caused by “use of a motor vehicle.” The Commission ruled that this exception didn’t apply because repair and maintenance don’t constitute “use” and so the lawsuit was barred. On appeal, the court overturned this decision, ruling that it was unreasonable. Numerous cases have held in the context of workers’ comp and insurance law that the term “use” includes activities that are normally related to the motor vehicle’s purpose, such as repair and maintenance. Thus, the court found that because the mechanic’s injury arose as a result of “an accident involving the use of a motor vehicle” in the course of his employment, he was entitled to pursue his lawsuit against the employer by virtue of the exemption [Warford v. Weir’s Construction Ltd.,  CanLII 52444 (NL SCTD), Aug. 15, 2016].
LAW OF THE YEAR
On May 1, 2016, changes to the Motor Vehicle Act to address distracted driving took effect. Fines may now apply to drivers holding, operating or even touching a restricted device such as a cell phone.
CASE OF THE YEAR
Lack of Safety Incidents ≠ Due Diligence
An OHS inspector inspected a retail store that used a conveyor to move inventory from one level to the other. The inspector issued a compliance order, requiring the store to ensure that all pinch points on the conveyor were guarded. The inspector also imposed a $500 administrative penalty, which the store appealed. The Labour Board upheld the penalty. Based on photos of the conveyor, it was apparent that a worker with long hair or loose clothing could become entangled, with very serious consequences. The fact that there hadn’t been any safety incidents or injuries involving the conveyor isn’t due diligence, explained the Board. The store simply never considered the possibility that it was operating potentially unsafe equipment, which it should’ve given that the conveyor had been in use for 18 years [Red Apple Stores Inc. (Re),  NSLB 138 (CanLII), April 21, 2016].
OTHER NOTABLE CASES
Due Diligence Defence as to Guardrail-Related Violations Rejected
At a construction site, an OHS inspector saw an opening in the floor that didn’t have guardrails. He also saw a worker working near this opening, who was wearing a fall protection harness but his rope was too slack. As a result, the prime contractor was issued administrative penalties totalling $1,000, which it appealed. The Labour Board upheld the penalties. An inspector doesn’t have to wait until a worker had actually fallen or was at risk of falling to issue an order. Here, the unprotected opening posed a foreseeable risk to the nearby worker. The prime contractor had overall charge of safety on the project. And although it had a safety manual and an on-site safety officer who did daily site inspections, and trained workers, the Board rejected its due diligence defence. For example, guardrails had been in place around the opening but were taken down—and there was no evidence as to why or when that happened [Southwest Construction Management Limited (Re),  NSLB 129 (CanLII), April 14, 2016].
Compliance Orders Properly Imposed on General Contractor
Homeowners hired a general contractor to perform renovations. The general contractor hired a subcontractor to do chimney repairs that he couldn’t do himself. An OHS officer inspected the site and found workers working without adequate fall protection, improperly erected scaffolding and no safe work plan or hazard assessment. The officer issued compliance orders to the general contractor, who argued that the orders should’ve been imposed on the subcontractor and his employee. The Labour Board said it was proper to make the compliance orders against the general contractor. The officer had reasonable grounds to conclude that this worksite was the general contractor’s and that he had an overall responsibility for what went on there. And there was sufficient evidence to connect the general contractor to the subcontractor’s work, including the assumption of general contractor duties in the agreement and statements by the subcontractor and his employee that they regarded the general contractor as their boss [Haince v. Director of Occupational Health and Safety,  NSLB 28 (CanLII), Feb. 8, 2016].
Cracked Wooden Ladder Should’ve Been Replaced, Not Repaired
During an inspection, an officer saw that a company was using two non-commercially made portable wooden ladders that had cracked side rails. The officer issued a compliance order requiring the company to ensure that portable ladders met certain conditions and that any wooden ladders that were deemed “no good” were removed and replaced with new, commercial grade extension ladders. Instead, the company repaired the wood ladders and kept using them. But because the crack was still visible, the company was issued an administrative penalty. It appealed. The Board found that the cited requirements applied to both manufactured and wooden ladders. Despite the company’s good intentions in trying to reinforce the wooden ladder in a safe manner, the officer had determined that it didn’t comply and wanted it taken out of service. And as the wooden side rails were split, the ladder had to be taken out of service and not repaired. So the Board concluded that the officer’s order was reasonable and upheld the $1,000 administrative penalty [Arnoldin Form Work Ltd. (Re),  NSLB 201 (CanLII), July 12, 2016].
LAW OF THE YEAR
New OHS Regulations already in effect in the Northwest Territories were passed into law in Nunavut on March 29, 2016. They now apply to all businesses operating in Nunavut and the Northwest Territories, with the exception of those that are federally regulated.
LAW OF THE YEAR
Sexual Violence & Harassment
In March 2016, the government passed a law designed to, among other things, make workplaces safer from sexual violence and harassment. The key elements of Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015 took effect on Sept. 8, 2016.
OTHER NOTABLE REGULATORY CHANGES
Noise Protection Requirements
As of July 1, 2016, a new regulation updated and replaced the noise protection requirements set out in the regulations for industrial establishments; mines and mining plants; and oil and gas-offshore; and extended these requirements to:
- Farming operations
- Construction projects
- Healthcare facilities
- Fire and police services
- Amusement parks.
Amendments to various provisions of Regulation 854 (Mines and Mining Plants) under the OHS Act were approved. Most of the amendments took effect July 1, 2016; new requirements relating to risk assessments, water management, traffic management and ground control will take effect on Jan. 1, 2017 to give stakeholders time to comply.
In Dec. 2015, Ontario passed the Employment and Labour Statute Law Amendment Act, 2015, which amends several statutes to, among other things:
- Make it an offence for employers to prevent workers from reporting workplace injury or illness to the WSIB
- Increase maximum corporate penalties to $500,000 for a conviction for an offence under the Workplace Safety and Insurance Act.
CASE OF THE YEAR
Project Manager Gets 3 ½ Years’ Jail for Ontario Scaffold Collapse Tragedy
On Dec. 24, 2009, scaffolding collapsed at a Toronto construction project, resulting in four deaths, the establishment of the Dean Panel, and changes to Ontario’s OHS laws and approach to workplace safety. Several companies and individuals pleaded guilty to or were convicted of OHS violations and/or criminal charges, including a project manager who was convicted of criminal negligence in June 2015 (last year’s Case of the Year). In Jan. 2016, the court sentenced him to three and a half years in jail, noting that the sentence made it “unequivocally clear that persons in positions of authority in potentially dangerous workplaces have a serious obligation to take all reasonable steps to ensure that those who arrive for work in the morning will make it safely back to their homes and families at the end of the day” [R. v. Vadim Kazenelson,  ONSC 25 (CanLII), Jan. 11, 2016].
TOP 5 FINES AGAINST INDIVIDUALS
A contractor and at least one worker went to a home to remove asbestos-containing insulation from the attic. The contractor didn’t take required safety measures, such as separating the work area, setting up decontamination facilities, posting warning signs, wearing protective clothing and ensuring containers for the dust and waste were dust tight or identified as asbestos waste. A court convicted the contractor of nine violations of the OHS Act and the Asbestos Regulation. It fined him $45,000—and imposed a 30-day jail sentence [Daniel Lane, Govt. News Release, Jan. 15, 2016].
Farm workers building a bridge were trying to place a concrete block, which weighed over 2,800 pounds, onto an existing concrete pad at the top of a ravine. The farm owner used a tractor equipped with lifting forks to raise the concrete block using a chain and fabric strap. As the concrete block was being lowered, the chain slipped off the forks and the block began rolling down the ravine’s slope. A worker who was below the tractor couldn’t get out of the way and was killed instantly. The farm owner pleaded guilty and was fined $18,000 [Murray Bering, Govt. News Release, Aug. 29, 2016].
Two workers were being transported by a mechanized raise climber (MRC) up a ventilation raise in a mine. After they’d travelled about 30 feet up the raise, rocks started to fall onto the MRC. One of the workers was struck by rock and suffered critical injuries, becoming unconscious. The other suffered minor injuries. The mining company was found guilty of three OHS violations and fined $125,000. The superintendent was convicted, as a supervisor, of failing to have a supervisor or trainer conduct job task observations. He and another supervisor were convicted of two additional safety offences. The superintendent was fined $6,000, while the shift supervisor was fined $5,000 [J.S. Redpath Ltd., Philip Parrott and Robert Beldock, Govt. News Release, May 12, 2016].
While performing maintenance on a vacuum valve, a threaded rod was driven under pressure through a worker’s head. He died two days later. His supervisor pleaded guilty to failing to ensure that the worker was sufficiently trained and/or supervised to perform the task safely and was fined $5,000 [Professional Valve Service Ltd. and Joe Heynsbergen, Govt. News Release, Jan. 6, 2016].
A worker fell from a platform to the ground about 13 feet below; a heavy metal plate being positioned also fell and struck him. He died from his injuries. A supervisor pleaded guilty to fall protection violations and was fined $5,000 [Oskam Welding (2014) Ltd. and Chad Wheeler, Gov’t. News Release, Match 21, 2016].
OTHER NOTABLE CASES
Two Companies & Directors Fined Millions for OHS & Environmental Offences
At a propane company’s facility, propane was ignited during a prohibited truck-to-truck transfer, resulting in several explosions and a fire. A young worker who’d been employed with the company for a short time was killed. The propane company was convicted of violating the OHS laws and fined $280,000. It was also convicted of environmental violations and fined $2.82 million. Two propane company directors were convicted of environmental offences and fined $100,000 each. And the company that had a licence to operate the facility was fined $2 million for environmental violations [Sunrise Propane Energy Group Inc., Shay (Sean) Ben-Moshe and Valery Belahov and 1367229 Ontario Inc., Govt. News Releases, Jan. 25, 2016].
Company Owner Must Go to Trial on Criminal Negligence Charges
A truck driver was operating a tractor-trailer on his company’s behalf when he was involved in a collision that killed the other driver. The Crown charged the driver and the company’s owner with criminal negligence causing death. It claimed the driver fell asleep at the wheel because he was fatigued due to violating regulations on rest periods. The Crown accused the owner of encouraging and facilitating his violations with willful blindness to the consequences. The owner asked the court to dismiss the charges against him. The court refused, ruling that there was evidence on which a reasonable jury could convict the owner. He was the company’s “directing mind” and thus responsible for the operation of its vehicles and drivers. There was evidence the driver was tired and had fallen asleep, causing the accident. And there was evidence the owner had paid the driver for entire trips made in violation of regulations and that he had a suspicion the driver was too tired [R. v. Fummerton,  O.J. No. 925, Feb. 18, 2016].
Store Convicted of Safety Violation in Trip-and-Fall Fatality
An empty wooden pallet lay on the floor in the receiving area of a store. A worker was unloading a full pallet from a truck onto a pallet jack. While walking backwards, he tripped on the empty pallet, fell and hit his head on stacks of items. He died two weeks later. The store was charged with failing to ensure the floor was kept free of obstructions, hazards and accumulations of refuse, snow or ice. It argued that it had exercised due diligence and that the worker was at fault for not “exercising ordinary prudence.” But the court convicted it. Empty skids had no business being left on the floor of the receiving area. The empty skid being left on the floor in that area posed a risk that someone might trip over it. The court also noted that “if it were a perfect world and all employees were always prudent and careful,” there would be no need for the OHS laws. And this worker didn’t have a history of failing to work safely. As to due diligence, although the store pointed to its safety sweep program and clean-as-you-go policy, it didn’t produce the receiving area logs, which would show the diligent sweep of this area or the failure to do so as well as the presence or absence of obstructions. The absence of this logbook for the receiving area meant there was no direct evidence on which the court could conclude that workers were actively engaged in the proper implementation of the safety sweep program with respect to that particular area [Ontario (Ministry of Labour) v. Wal-Mart Canada Corp.,  ONCJ 267 (CanLII), May 6, 2016].
Disabling Safety Device Justified Firing of Worker with Poor Record
An electrician used a Smart Cart to transport material in a plant. After the Smart Cart malfunctioned, a representative of the company that serviced the Cart told the worker that encoders designed to permit the safe, automatic operation of the Cart were faulty and their replacement would take a couple of weeks. The representative said that software could be reinstalled to permit the operation of the Smart Cart in automatic mode without safety encoders. Although the worker said he’d speak to his supervisors about the change, he made it without consulting them. After his supervisor learned that the Cart was operating in automatic mode without safety encoders, he was fired. The employer argued that his multiple safety violations over the prior three years that resulted in progressively serious disciplinary responses including several suspensions warranted his dismissal for knowingly by-passing the safety device on the Smart Cart. The trial judge and an appeals court agreed. The worker had received extensive and ongoing OHS training. Encoders are safety devices that measure the physical speed, direction and position of the Smart Cart. And the plant’s safety rules specifically prohibited tampering with or defeating any safety device [Wasinski v. Norampac Inc.,  O.J. No. 2217, April 28, 2016].
Subcontractor Didn’t Exercise Due Diligence as to Drill Rig Platform’s Stability
A worker died when a drill rig owned and operated by a subcontractor fell over and crushed his backhoe as well as an excavator operated by another worker, who was badly injured. The MOL charged the general contractor and the subcontractor with OHS violations. The contractor pleaded guilty; the subcontractor went to trial on charges that it failed to provide a proper platform for the drill rig. The subcontractor argued that it was reasonable for it to provide specifications to another company to identify the soil’s bearing capacity as required by the manufacturer. But the subcontractor had to follow up and ask if that company had identified the soil’s bearing capacity as adequate for the drill rig, which it didn’t do. The court noted that the subcontractor did have a good safety record, a thorough written safety policy and documented daily safety meetings. However, proof of its safety policy and methods doesn’t establish that it exercised due diligence as to the design of the drill rig platform and the soil’s bearing capacity. And there was no evidence that it took any steps to confirm that the platform could support the drill rig. So the court convicted the subcontractor [Ontario (Ministry of Labour) v. Advanced Construction Techniques Ltd.,  ONCJ 482 (CanLII), Aug. 3, 2016].
Conviction for Failure to Physically Block a Machine Upheld on Appeal
At a sawmill, an industrial saw was turned off and locked out for maintenance. While the machine was shut down, a supervisor found a piece of metal in it and decided the saw blades needed to be changed. The machine was locked out but the hydraulics were kept on during blade change. After a worker completed the change, he went to the field control box to close the side-heads, unaware that the supervisor was in that area. As the side-heads closed, they crushed the supervisor’s left arm. The sawmill was convicted of failing to block the machine to prevent movement and was fined $48,000. It appealed. The appeals court upheld the conviction and fine. The trial court found that “blocking” meant some physical component intended to prevent movement, which was reasonable in the context of laws to protect workers [Ontario (Ministry of Labour) v. McKenzie Lumber Inc.,  ONCJ 533 (CanLII), Aug. 31, 2016].
Not Hazardous for Long-Term Care Employees to Work 16 Hours in a Day
A municipality ran long-term care homes, which operated 24/7. A union raised concerns about employees at the homes working excessive hours without adequate rest. But an arbitrator found that the law didn’t bar employees from volunteering to work a second, overtime shift and thus 16 hours in a row. In addition, there was no meaningful correlation between workplace incidents or injuries in the homes or resident care complaints and staff routinely working double shifts, which was common practice in the healthcare industry. So the Board concluded that there was no evidence that working a double shift causes any harm or significant hazard to be avoided [Durham (Regional Municipality) v. Canadian Union of Public Employees, Local 132,  CanLII 8803 (ON LA), Feb. 25, 2016].
Worker Gets 6 Months’ Jail for Fatal Hit and Run Accident
At night, a security guard wearing only dark clothing was struck by a worker leaving work. He drove away but returned 20 to 25 seconds later. Unfortunately, during that time, a truck had reversed in the driveway, killing the guard. The worker was convicted of several crimes, including criminal negligence causing death. At sentencing, the court noted that the accident wasn’t the worker’s fault, he did return to the scene and he expressed remorse. But he didn’t initially report having hit the guard before the truck did. Because this case isn’t a typical “hit and run” and has highly unusual circumstances, the court sentenced the worker to six months’ jail less a day and 18 months’ probation [R. v. Layugan,  ONSC 2077 (CanLII), March 30, 2016].
OK to Fire Remorseless Labourer Who Fought with Co-Worker
A labourer at a transit tunneling project was required to bring up a skid of bottom rollers but his Bobcat couldn’t reach them. He asked a co-worker for help. The co-worker used a telehandler to move the skid to where the labourer wanted it. But while he was trying to dislodge the skid from the forks, a dispute arose between he and the labourer. The co-worker left his machine and assaulted the labourer. A supervisor eventually separated the two men. Based on witness statements and the company’s zero tolerance policy on workplace violence, both men were fired. The co-worker took responsibility and apologized; the labourer filed a grievance. The Labour Relations Board found that the labourer incited the incident by yelling at the co-worker disrespectfully. And when the supervisor stopped the fight, he continued to attack the co-worker and pushed the supervisor as well. So his misconduct warranted discipline. And because he didn’t admit any wrongdoing or apologize, termination was justified [Labourers’ International Union of North America, Local 183 v. Crosstown Obayashi Technicore Constructors Ltd.,  CanLII 63498 (ON LRB), Sept. 21, 2016].
Church-Run Store Fired Worker for Exercising Safety Rights
A worker for a church-run store supervised the book room, which was located in the basement of the store. She’d complained about the air quality in the room to her superiors but they did nothing. So she complained to the MOL, which sent an inspector to investigate. As a result, the inspector issued 12 compliance orders to the store. Then an unusually large order of books arrived in bad condition. The worker told her supervisor it was unsafe for her to process the load on her own. Instead of giving the worker help, the supervisor issued her a disciplinary warning, demoted her in front of her co-workers and then fired her. The worker claimed illegal reprisal and the Labour Relations Board agreed. When she was fired, the store was clearly aware of her attempts to exercise her rights under OHS law. And its claim that restructuring was the reason for her termination was disingenuous as the changes would, in fact, require hiring more employees. So the Board ordered the store to pay her more than $15,000 in damages [Leah Podobnik v. Society of St. Vincent de Paul Stores (Ottawa) Inc.,  CanLII 65109 (ON LRB), Sept. 27, 2016].
Robot Incident Results in $270,000 Fine for Parts Manufacturer
A supervisor for a manufacturer of metal auto parts was made aware of a problem with a robot cell. He instructed a maintenance worker to fix the tooling and overheating electrode in the cell. Thinking the matter could be quickly fixed, the worker entered the robot cell through the light curtain and without locking out power to the robot. While positioned on a railing by the conveyor belt, he felt the robot pressing his back and causing serious and permanent injury. After a trial, the manufacturer was convicted of three violations. The court found that maintenance workers were expected to make a judgment call about how to fix the equipment—if it was a “quick fix,” the practice was to not follow LOTO and if it was a longer job, then lockout/tag out would be done. The court fined the manufacturer $270,000 [Matcor Automotive Inc., Govt. News Release, Aug. 17, 2016].
Death of a Maintenance Worker Results in $250,000 Fine for School Board
A maintenance worker at a high school was assigned to replace a safety cage on a ceiling light in the gym. The worker, who was working alone, was given a van, a trailer with a ramp and a portable aerial device. He shoveled snow out of the way, opened the trailer and lowered the ramp. While rolling the aerial device down the ramp, it tipped over and fatally struck him. The school board pleaded guilty to failing to ensure that, among other things, the angle of the ramp was five degrees or less and that another worker was present to assist the worker. The court fined it $250,000 [Ottawa Catholic School Board, Gov’t. News Release, March 31, 2016].
Utility Company Fined $225,000 After Three Workers Suffer Electric Shocks
Workers employed by a subcontractor were installing new hydro poles and wires under existing energized lines. They were excavating a hole when the boom of a work vehicle came within three metres of a power line located above the hole. All three workers received electrical shocks, with one later dying in the hospital. At trial, the utility company was found guilty, as a constructor, of three violations of the Constructions Projects Regulation. It was fined $225,000. Previously, the subcontractor that employed the workers, Digsafe Inc., pleaded guilty in relation to this incident and was fined $125,000 [Hydro Ottawa Ltd., Gov’t. News Release, March 29, 2016].
Worker’s Death by Falling Bins Results in $175,000 Fine
Three workers were at a table, loading parts onto a rack in an area known as the line load. A forklift operator was moving material in the line load area. The raised forks caught an edge of the second-level bins in the first row. When the operator raised the forks, he realized that bins in the first row were also being lifted. He started lowering the forks and first-row bins, causing the stack of bins to wobble and fall. Bins fell on the workstation of the workers at the parts table, one of whom was killed after being struck and pinned under the fallen bins. Under the company’s safety rules, the workstation should’ve been at least 30 feet from the stacked bins. But at the time of the incident, it was 16.5 feet from the stacked bins and directly within the fall zone. The company pleaded guilty to failing to ensure that materials were transported, placed or stored so they can be removed or withdrawn without endangering any workers’ safety. The court fined it $175,000 [Canadian Electrocoating Ltd., Govt. News Release, May 25, 2016].
Employer Fined $150,000 after Worker Is Crushed While Riding Rail Car
Part of a workplace contains a rail spur that allows rail cars access to the facility to be loaded with product. It was common for a worker to ride on a fixed ladder on the rail car being moved along the spur and through buildings in the facility. Although the two workers moving rail cars were required to maintain visual contact, there was no written procedure on the riding of rail cars. As a worker was riding on the fixed ladder on the rail car, he struck one of the steel posts below the gangway and was squeezed between the post and the rail car. He suffered severe injuries and died 10 days later. The employer pleaded guilty to violating the Industrial Establishments Regulation and was fined $150,000 [Ingredion Canada Inc., Govt. News Release, Dec. 15, 2015].
Paper Mill Fined $150,000 after Dust Explosion Burned Worker
A boiler was providing heat for a paper mill during the winter. In the days before the incident, workers had been cleaning up the plant in anticipation of its closure. They’d swept up to 15 wheelbarrow loads of fine, dry wood dust and dumped it into the conveyor system. At that time, the boiler was running on natural gas. As the dry wood dust was travelling on the conveyor, it was ignited by an undetermined source and a dust explosion occurred. A fireball burned a worker’s body. It was determined that protective measures for dealing with explosive hazards weren’t in place. As a result, the paper mill was fined $150,000 [Resolute FP Canada Inc., Govt. News Release, Jan. 29, 2016].
Roadside Fatality Results in $150,000 Fine
At a water main installation project, a signaler and a police officer were directing traffic. A traffic control plan was in place, which included traffic cones. An equipment operator moving a portable toilet proceeded to travel in live traffic to an intersection. He stopped on the shoulder of the road and communicated with the signaler, who replied that assistance would be available to stop traffic when he wanted to move the vehicle back out again. The operator saw that traffic was stopped by the police officer and signaler. So without contacting the signaler again and after briefly checking visually to one side of the vehicle, he moved forward around the corner toward the intended drop-off spot. But the equipment ran over and fatally injured a worker. The MOL determined that the equipment operator didn’t use the assistance of the signaler when moving forward. In addition, the operator either couldn’t see or didn’t look in the direction of the deceased worker or communicate with workers before moving forward. The construction company pleaded guilty to violating the Construction Projects Regulation and was fined $150,000 [Varcon Construction Co. Ltd., Govt. News Release, Feb. 10, 2016].
Youth Services Agency Fined $125,000 after Workers Are Attacked
At a youth centre facility, a worker who’d recently started working on the detention and custody unit for boys was directing a youth to return to his room for the night. The youth became agitated, entered the staff office and repeatedly struck the worker. A co-worker intervened in the assault. Both workers suffered physical and psychological injuries. The youth services agency pleaded guilty to failing to provide information, instruction and supervision to protect a worker from workplace violence or the risk of violence from a resident and was fined $125,000 [Kinark Child and Family Services, Govt. News Release, Aug. 16, 2016].
Crane Company Convicted of OHS Violation and Fined $120,000
Two workers stowed a jib alongside the boom of a boom-type truck. The next day, an operating engineer was operating this boom truck, lifting the boom of the crane. During this process, the jib, which was attached to the crane’s boom, fell and struck the engineer. He sustained critical and permanent injuries. At trial, the crane company was convicted of failing to provide information, instruction and/or supervision to its worker to ensure that the jib was stowed on the boom properly and in accordance with the operating manual issued by the manufacturer. The court fined it $120,000 [Sterling Crane Division, Govt. News Release, Sept. 22, 2016].
$110,000 Fine Imposed on Power Company for Worker’s Electrocution
A company was hired to provide electrical equipment in a prefabricated electrical building (or E-House) to a solar farm under construction. After the constructor notified the company of some problems with the E-House, it sent two workers to make the necessary corrections. They plugged in a generator to an outside receptacle to provide power to the E-House, did some work and then left the site for the day. They returned a few days later, restarted the generator and began performing their assigned tasks. One of the workers came into contact with and received an electrical shock from a transformer. He was found by the co-worker and taken to the hospital, where he was pronounced dead. The company was convicted of failing to ensure that workers were adequately protected from electrical shock and burns, and to make a copy of the written measures and procedures available to every worker on the project. The court fined it $110,000 [Enerquest Services Inc., Govt. News Release, June 9, 2016].
Cracker Manufacturer Fined $110,000 for Guarding Violation
A cracker manufacturing facility has an incline conveyor system, which is driven by a 6- to 7-foot-wide powered roller that rotated counter-clockwise, pulling the conveyor belt forward. One centimetre from the powered roller is an additional roller rotating clockwise to guide the belt. This combination of rollers created a pinch point. While this machine was still running, a worker noticed a piece of grip tape sticking out from the edge of the powered roller. When he grabbed the tape to tear it off the roller, his hand was pulled into the pinch point and suffered serious injuries and permanent restrictions. The manufacturer pleaded guilty to a guarding violation and was fined $110,000 [BFG Canada Ltd., Govt. News Release, June 14, 2016].
Pipe Manufacturer Fined $110,000 for Worker’s Electrocution
A worker for a pipe manufacturer was working alone on a machine from an elevated forklift platform. The machine he was working on wasn’t powered off. A plug and thermocouple had been removed from it and the plug had been disassembled, exposing its prongs. The air temperature triggered the machine’s control panel to send power to the plug to heat the machine back to the set-point temperature. The worker was found unresponsive on the platform with the exposed and burnt prongs of the plug in hand. The cause of death was electrocution. The MOL found that the worker hadn’t been trained on how to specifically lock out this machine. The court fined the manufacturer $110,000 for violating the Industrial Establishments Regulation [Ideal Drain Tile Ltd., Govt. News Release, Jan. 18, 2016].
Steam Explosion Injures Three Workers, Results in $100,000 Fine
A steel mill was relocating cooling water piping at its blast furnace. Temporary piping was needed to maintain the cooling systems while the new permanent piping was being installed. A crew of workers was installing the temporary water piping when a steam explosion occurred due to a hose rupture. One worker received leg injuries; another worker injured his hand; and a third received burns to the upper body. An MOL investigation found that the cooling water had been turned off for a substantially long period of time. In addition, two valves were closed to allow work on leaks in the hose. The steam that was created from the trapped water supply caused a pressure build-up that exceeded the hose’s capacity, causing its rupture and the steam explosion. The steel mill pleaded guilty to failing to ensure that water wasn’t turned off at the main header before workers began running temporary bypass hoses and was fined $100,000 [Essar Steel Algoma Inc., Govt. News Release, June 9, 2016].
Steel Manufacturer Fined $100,000 after Steel Slab Falls from Magnet
A worker at a steel manufacturer’s plant used a crane with an attached electromagnet to pick up a steel slab and direct it through the plant to the back of a truck. The truck driver was standing on the flatbed to help maneuver the slab. But when the slab was in position, it unexpectedly dropped from the electromagnet and fell onto the flatbed, causing the truck driver to fall off the back of the truck onto the concrete floor. He was rushed to the hospital. His critical injury, along with complications that included infection, resulted in an amputation. An investigation found that the electromagnet lost power because it had become unplugged and disconnected from its power outlet. In addition, the night before, the same electromagnetic crane had accidentally become disconnected from its power source, causing a suspended steel lab to detach and fall in the same fashion. But the electromagnet lifting device wasn’t immediately taken out of service. The steel manufacturer pleaded guilty to a safety violation and was fined $100,000 [Schmolz + Bickenbach Canada Inc., Govt. News Release, April 19, 2016].
Fatal Fall from Ladder Results in $100,000 Fine
A worker at a greenhouse was watering bales of potting soil, each of which was about eight feet tall. To water a bale, workers must climb a ladder, install a homemade watering wand into the top of the bale and turn on a timed, metered water pump. While the worker was on a ladder in the process of switching the wand from one bale to another, he misstepped on a ladder rung, lost his balance and fell, suffering head injuries. He died in the hospital several weeks later. The greenhouse pleaded guilty to failing to provide information, instruction and supervision to a worker on how to safely water bales and was fined $100,000 [Aldershot Greenhouses Ltd., Govt. News Release, Feb. 29, 2016].
Death of Visitor Results in $100,000 Fine for Self-Storage Facility
A self-storage facility renovated an old missile site into storage units. At the back of one unit, an opening was left in the floor, measuring about four feet by nine feet, nine inches. It was framed in anticipation of adding stairs to the basement in the future. But the hole wasn’t protected by any covering or guardrail. A visitor came to the unit to examine a truck that was being stored there by the person renting the unit. As the visitor bent down to examine the truck’s rear wheel, he fell into the open hole about six feet to the concrete floor below and died from his injuries. The storage company pleaded guilty to failing to ensure that a hole in the floor of a storage unit was protected by a guardrail or floor covering. The court fined it $100,000 [Seavale Inc., Govt. News Release, Jan. 29, 2016].
LAW OF THE YEAR
Farms & Workers’ Comp
Mandatory workers’ comp coverage for farmers under the Workers Compensation Act was approved and took effect Jan. 1, 2017.
CASE OF THE YEAR
Fishing Boat’s Owner Didn’t Negligently Cause Helper’s Injury
A fisherman’s helper got caught in a herring net hauler and suffered serious injuries to his arm. He sued the owner of the fishing boat, claiming his injuries were caused by negligence. He said the owner didn’t provide a safe work environment or adequate training. The court noted that the plaintiff had considerable experience as a fisherman’s helper and experience with a net hauler. The boat’s owner did have a duty to take reasonable steps to provide a safe work system. But the court wasn’t satisfied that the owner was negligent and had breached that duty of care. In addition, even if the helper had proven the alleged acts of negligence, those acts didn’t cause his injury. So the court dismissed the lawsuit [Doyle v. Roberts Estate,  P.E.I.J. No. 53, Dec. 9, 2015].
CASE OF THE YEAR
Sikh Truck Drivers Must Wear Hard Hats Instead of Turbans for Safety Reasons
Three Sikh workers who drive container trucks at the Port of Montreal argued that they had a right to wear a turban instead of a hardhat and that it was religious discrimination to bar them from entering the port’s terminals without protective headgear. Originally, the drivers were allowed to stay in their trucks while containers were loaded, but this accommodation was eventually deemed not commercially viable because it increased the loading time. The court ruled that the turban-wearing Sikh truck drivers must wear hardhats in the workplace when safety standards require them. Although the court recognized that the hardhat requirement violated their charter rights, it concluded that safety should trump religion in this case. The port’s rules were justified because they protect workers from head injuries. “The risks are not lower because the claimants are Sikh and wear turbans,” the court explained. “The safety obligations of the defendants are not less stringent, either, towards the claimants than towards other workers” [Singh c. Montréal Gateway Terminals Partnership (CP Ships Ltd./Navigation CP ltée),  QCCS 4521 (CanLII), Sept. 21, 2016].
LAW OF THE YEAR
Changes to implement WHMIS 2015 in Saskatchewan’s OHS regulations took effect on Aug. 17, 2016. But workplaces will have until Dec.1, 2018 to fully comply. The key responsibilities of suppliers, employers and workers remain the same.
CASE OF THE YEAR
Power Company Acquitted of All Charges on Due Diligence Grounds
A worker at a coal-fired power plant was told by the foreman to check on a “tiger torch” that he had in use to melt ice in a culvert near the utility shop. The worker saw that the torch was out. When he relit it, there was a fireball that burned his face, fingers, hand and arm. As a result, the plant was charged with four safety violations, including providing inadequate training and supervision. The power company argued that it had exercised due diligence. The trial court found that, in general, safety was important to the company. In addition, it wasn’t foreseeable that the worker would use the tiger torch and so needed training on it. In short, the court found the company had exercised due diligence as to all charges and thus acquitted it [R. v. Saskatchewan Power Corp.,  SKPC 2 (CanLII), Jan. 29, 2016].
OTHER NOTABLE CASES
Can a Worker Get Too Much Safety Training?
At a grain terminal, when grain in one of the receiving pits began flowing very slowly, an assistant manager told a worker to look into the pit with a flashlight, which he did. But when the problem reoccurred, the worker entered the receiving pit, where he was engulfed and died of suffocation. The company was charged with six violations of federal OHS law for, among other things, failing to instruct, train and supervise the worker on how to respond to and unplug blockages in a grain pit. The court acquitted the company, ruling that the Crown failed to prove the charges. The worker had gotten extensive safety training, such as computer-based training on various topics including confined spaces. The prosecutor argued that the necessary information about the hazards of entering a confined space were lost on the worker because it was “buried in the mass of material.” But the court ruled that the “mass of material emphasized the dangers, and the importance of following the safety procedures, rather than burying them.” Here, the worker was simply directed to take a flashlight and look into the receiving pit—and he was properly trained for this task. There was no reason to think that he would actually enter the pit, especially given that he knew he hadn’t yet gotten all the necessary training in the safety procedures for entering such a confined space [R. v. Viterra Inc.,  SKQB 269 (CanLII), Aug. 19, 2016].
Roofing Company Acquitted of Charges Related to Falling Outrigger Beam
An outrigger beam fell from the penthouse roof of a building project onto an employee of one of the construction trades, seriously injuring him. The outrigger beam had been disassembled, but wasn’t weighed down and anchored. The roofing company for the project was charged with four OHS violations. As to one count, the Crown had to prove the roofing company failed to dismantle the outrigger according to either the manufacturer’s or an engineer’s specifications. But there was no evidence presented as to such specifications. Also, the company was charged with violating the requirements of Sec. 23.11(1)(b) of the Regulation, but that section doesn’t cover dismantling—and all the charges against it arose from the outrigger’s dismantling. The final two counts charged the roofing company as a “constructor.” However, this company didn’t have the authority at the project that the OHS laws contemplate a constructor to have. So the court acquitted the roofing company on all charges [R. v. McCarthy’s Roofing Ltd.,  NSPC 52 (CanLII), Sept. 13, 2016].
Discrimination to Fire Alcoholic Care Assistant for Coming to Work Drunk
A Continuing Care Assistant at a long-term special care home was fired after she arrived to work a night shift while intoxicated. The union argued that the assistant was an alcoholic suffering from a relapse at the time and the employer should’ve accommodated her rather than firing her. The employer argued that even if the assistant had an alcohol addiction, her showing up for work drunk, in the circumstances, was culpable misconduct deserving of discipline. The arbitrator agreed that seeing to the needs of residents, while under the influence of alcohol, severely jeopardized their safety and the safety of everyone in the care home. But there was adequate proof the assistant had a disability, that is, an addiction to alcohol. And the employer was aware of her addiction. Also, her attendance at work while under the influence of alcohol was totally attributable to her disability and thus non-culpable. So the arbitrator concluded that the employer discriminated against her by firing her for her disability and failing to accommodate her [Canadian Union of Public Employees, Local 4777 v. Prince Albert Parkland Health Region,  CanLII 48150 (SK LA), July 27, 2016].
Employer Fined $100,000 After Guarding Violation Results in Amputation
A worker’s left hand was amputated when it became entangled in a conveyor system. His employer pleaded guilty to a guarding violation. The court fined it $100,000 [Crop Production Services (Canada) Inc., Govt. News Release, July 25, 2016].
Hog Farm Fined $98,000 for Death of Worker Thrown from Tractor
A hog farm worker died after being thrown from the cab of a tractor. The company that runs the farm pleaded guilty to failing to ensure that the operator of a unit of powered mobile equipment uses a seatbelt or other restraining device. The court fined it $98,000 [Olysky LP, Govt. News Release, April 5, 2016].
Driver Sentenced to Jail for Death of 18-Year-Old Flag Person
A driver who struck and killed an 18-year-old flag person on her first day on the job was convicted of dangerous driving causing death in October. At sentencing, his lawyer asked for a suspended sentence. But the court, citing the need for deterrence, sentenced him to two years minus a day in jail and a three-year ban on driving once he’s released. The driver plans to appeal his sentence [Keith Dunford, The Canadian Press, Dec. 7, 2015].
CASE OF THE YEAR
Employer Didn’t Have Just Cause to Fire Worker for Not Wearing PPE
A solid waste facility fired a worker for, among other things, failing to follow safety procedures—specifically not wearing required PPE. The court said that although the worker didn’t wear a hardhat at all locations in the facility, she did wear it in areas where it was required. It found that the employer didn’t take the necessary steps to ensure that there was a clear and unequivocal set of rules, guidelines and/or policies that made it clear what PPE was to be worn at what locations and at what times. And to the extent that there was some verbal direction provided, this direction wasn’t entirely clear and can’t be relied on as establishing a standard that the worker can then be viewed as having violated. So the court concluded that the employer failed to establish that it had just cause to fire the worker [Goncharova v. Marsh Lake Waste Society,  YKSM 4 (CanLII), Dec. 30, 2015].