- Alberta Becomes Latest to Deny Prosecutors a Shortcut to OHS Convictions
Perhaps the year’s most important OHS case was the August ruling that an employer isn’t presumed to have committed an OHS violation just because an accident occurs. The case involved the tragic death of an oil rig floorhand without witnesses or any explanation. All that was clear is that he died and that, argued the Crown, was proof that the employer committed an OHS violation. But the Alberta Court of Appeal rejected the argument, following the lead of other courts, (including, most recently, Newfoundland in a Dec. 2017 case called R. v St. John’s (City) that mere occurrence of an incident isn’t enough to prove an OHS violation and force the burden on the employer to prove due diligence [R v Precision Diversified Oilfield Services Corp, 2018 ABCA 273 (CanLII), Aug. 22, 2018].
- Ontario Rules that 23-Month Delay Violates Defendants’ Right to Speedy Trial
In a 2016 case called R v. Jordan, the Canadian Supreme Court ruled that an OHS trial delay of 18 months or more presumably violates a defendant’s right to a speedy trial unless the prosecutor can show that the case is complex and that it implemented a concrete plan to minimize the delay. Two of 2018’s most important court cases involved interpretation of the so called Jordan rules. The first came in June when the Ontario Court of Appeal upheld the decision to dismiss a case after a 23-month trial delay. The case was complex, the Court acknowledged, but the Crown didn’t come up with the plan to minimize the delay necessary to rebut the Jordan presumption and justify a delay exceeded the 18-month threshold [R. v. Nugent, Guillemette and Buckingham, 2018 ONSC 3546 (CanLII), June 8, 2018].
- Newfoundland Says Jordan 18-Month Delay Rule Doesn’t Apply to Laying of Charges
In November, a Newfoundland court broke new ground by holding that the Jordan 18-month delay rule covers OHS trials but not the laying of charges—or, to put it in lawyerly terms, Jordan applies to post-charge delays but not pre-charge delays which are still assessed under the historical case-by-case formula. Result: The Crown could still prosecute a construction subcontractor charged 2 years after an incident [R. v Flynn Canada Limited, 2018 CanLII 104609 (NL PC), Nov. 5, 2018].
On Christmas Eve 2009, a swing stage collapsed at a Toronto apartment building project run by Metron Construction. Only 1 of the 5 workers aboard survived the 13-storey fall. The safety violations were so egregious that criminal charges were laid under Bill C-45. The project manager was convicted of 4 counts of criminal negligence and sentenced to 3.5 years in jail for allowing 7 workers to board the swing stage knowing that it was creaky and that there were lifelines for only 2 of the men. The manager appealed claiming, among other things, that the victims’ own negligence contributed to the incident. But in January, the Ontario Court of Appeal upheld both the convictions and the sentence [R. v. Kazenelson, 2018 ONCA 77 (CanLII), Jan. 30, 2018].
- Québec Contractor Convicted of, Jailed for Manslaughter in Worker’s Death
The scariest OHS case in recent years wasn’t an OHS but a criminal conviction of an excavation contractor for the death of a 54-year-old construction worker in a trench collapse. In March, the court found the contractor guilty of manslaughter for causing the death by failing to properly shore the trench [R. c. Fournier, 2018 QCCQ 1071 (CanLII), March 1, 2018]. In Sept., he was sentenced to 18 months in jail followed by 2 years of probation [R. c. Fournier, 2018 QCCQ 6747 (CanLII), Sept. 18, 2018].
- Nova Scotia Constructor Found Liable for Swing Stage Outrigger Fall
This significant case began in 2013 when the outrigger of a swing stage fell as it was being moved from a penthouse roof and hit a construction worker on the ground 4 floors below. The project manager was charged, as constructor, with among other things, failing to ensure that the swing stage and components were properly disassembled, secured or stored. We weren’t the constructor, we didn’t commit a violation and even if we did, we exercised due diligence, it contended. But the Nova Scotia court rejected all 3 arguments. 1. The defendant was the constructor because it had control over work at the project including disassembly of the swing stage; 2. It committed an OHS violation because the the outrigger was improperly disassembled; and 3. Its due diligence failed because it didn’t meet OHS requirements, industry standards or its own safety policies in moving the outrigger from the penthouse roof [R. v. Aecon Construction Group Inc., 2018 NSPC 22 (CanLII), June 25, 2018].
- Ontario Hospital Can’t Make Unvaccinated Nurses Wear Masks for Flu Protection
This case illustrating the potential conflict between safety and union rights under a collective agreement involved a hospital that unilaterally adopted a Vaccinate or Mask Policy requiring nurses and other workers who didn’t get the annual flu vaccine to wear surgical masks in areas where patients are present during flu season. While acknowledging that patient safety is paramount, the arbitrator struck down the policy as unreasonable and in violation of the collective agreement right of nurses to refuse to be vaccinated [St. Michael’s Hospital v Ontario Nurses’ Association, 2018 CanLII 82519 (ON LA), Sept. 6, 2018].
- Zero Tolerance Drug Policy Must Accommodate Legal Use of Medical Cannabis
Fittingly, in a year when Canada legalized recreational cannabis, cases pitting workplace safety and legal rights to use cannabis were of particular importance. Among the most significant were a pair of medical cannabis cases. The first centered on an airport ramp agent who got fired for failing a post-incident drug test after accidentally damaging an airplane. The agent claimed that the positive test was attributable to medical cannabis he used legally away from work and that he was never high on the job. The federal arbitrator agreed and ordered that he be reinstated. Although the agent occupied a safety-sensitive position, the testing policy was overbroad and discriminatory. It was incumbent upon the employer to accommodate the agent the moment it learned that the positive test was the result of legally authorized medication [Airport Terminal Services Canadian Company v Unifor, Local 2002, 2018 CanLII 14518 (CA LA), March 15, 2018].
- Not Discrimination to Deny Safety-Sensitive Job to Medical Cannabis User
The other key medical cannabis case was an employer victory. A worker offered the safety-sensitive position of Utility Person at a hydroelectric project admitted to using medical cannabis after testing positive for THC. Rather than instantly cancel the job offer, the contractor kept its head and requested medical information from the prescribing doctor so it could evaluate his fitness for the job. Unsatisfied by the doctor’s response, the contractor asked for more information and refused to let him work any safety-sensitive job until it got the information it needed. The stalemate continued until the union lost patience and filed a grievance. The arbitrator sided with the contractor, saying it tried to accommodate the worker but that letting an admitted medical cannabis user do a dangerous job without being able to assess his capabilities would impose undue hardship [IBEW, Local 1620 v. Valard Construction LP, (Arb. John Roil, Q.C.), April 20, 2018].
An employer scored a relatively rare due diligence victory in a case involving a bulldozer operator who was killed after being run over by a dump truck moving slowly in reverse. The employer admitted that a dedicated signaller wasn’t in place to assist the driver as required by OHS laws but claimed due diligence. We distributed and regularly monitored the required signalling procedures, it argued, and it wasn’t our fault those procedures weren’t followed, it argued. The court agreed. The evidence was thin but enough to show that the victim, who happened to be the driver’s supervisor, saw that the driver wasn’t following the procedure but didn’t stop him before he backed up. So in a very close case, the court found that the employer had done just enough to squeak by on due diligence [Ontario (Ministry of Labour) v. 614128 Ontario Ltd. (Trisan Construction), 2018 ONCJ 168 (CanLII), March 14, 2018].
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