A roundup of important new legislation, regulations, court cases and board rulings that we covered in the OHS Insider newsletter and on OHSInsider.com in 2015.
TOP 5 FINES ACROSS CANADA
- $400,000 (ON)
At a subway construction site, a drill rig suddenly toppled and crushed an excavator as well as the backhoe. The worker operating the excavator was seriously injured; the one operating the backhoe was killed. The constructor pleaded guilty to failing to ensure that safety measures required by the OHS laws were followed and was fined $400,000 [OHL-FCC GP, Govt. News Release, Nov. 28, 2014].
2. $325,000 (ON)
A member of a crew of five utility workers was crushed to death by a regulator, which weighed 15 tonnes. The utility pleaded guilty to failing to ensure that materials or equipment at a project were moved in a manner that didn’t endanger a worker and was fined $325,000 [Hydro One Networks Inc., Govt. News Release, Jan. 13, 2015].
3. $290,000 (ON)
A dairy company worker was struck by a tractor trailer being driven by a subcontractor. He later died from his injuries. The MOL investigation found that there was no signaler present to direct the tractor trailer. The dairy company pleaded guilty to a safety offence. The court fined it $290,000 [Parmalat Canada Inc., Govt. News Release, Jan. 14, 2015].
4. $280,000 (SK)
An explosion and subsequent fire at a refinery injured 52 workers, three of them seriously. The refinery pleaded guilty to failing to ensure that all work at a place of employment was sufficiently and competently supervised. The court fined it $280,000 [Consumers’ Co-operative Refineries Ltd., Govt. News Release, May 12, 2015].
5. $225,000 (ON)
A worker from an employment agency who was operating a side-loading waste collection truck lost control of it and was ejected. He suffered fatal head injuries. The recycling company pleaded guilty to several OHS offences and was fined $225,000 [Halton Recycling Ltd., Govt. News Release, March 13, 2015].
LAW OF THE YEAR
On Feb. 11, 2015, the federal government published the final Hazardous Products Regulations (HPR), which implement the UN’s Globally Harmonized System (GHS), an international system for classifying and labelling chemicals. The new WHMIS, called “WHMIS 2015,” is based on the new requirements contained in the HPR and the Hazardous Products Act, as amended in 2014.
OTHER NOTABLE REGULATORY CHANGES
In June, the federal government enacted the Policy Committees, Work Place Committees and Health and Safety Representatives Regulations. The new regulations impose new requirements on the composition of policy committees, workplace committees and safety representatives, and training for their members.
The Railway Operating Certificate Regulations, which took effect Jan. 1, 2015, require federally regulated companies to hold a valid Railway Operating Certificate (ROC) to operate in Canada and establish baseline safety requirements. They also let Transport Canada immediately stop a company’s operations by suspending or revoking its ROC if a serious violation is identified.
In April, new Railway Safety Management System (SMS) Regulations, 2015 took effect. They require companies to develop and implement a formal framework that integrates safety into their day-to-day operations.
And in June, the Safe and Accountable Rail Act received Royal Assent. The Act amends the Canada Transportation Act to impose enhanced insurance requirements and require a supplemental compensation fund financed by levies on crude oil shippers. The new law also amends the Railway Safety Act to increase information-sharing provisions and provide stronger oversight powers for the Minister and Transport Canada inspectors.
Transportation of Dangerous Goods
Amendments to the Transportation of Dangerous Goods Regulations were published in the May 20, 2015 Canada Gazette Part II, Vol. 149, No. 10. The amendments adopt the following:
- A new class of tank car for flammable liquid dangerous goods service
- Retrofit requirements for older TC/DOT 111 tank cars and the Enhanced Class 111 Tank Car
- Phase out or retrofit of older TC/DOT 111 tank cars, as well as retrofit requirements for the TP14877/CPC 1232 tank cars used to transport crude, ethanol and other flammable liquids.
CASE OF THE YEAR
Federal OHS Case Illustrates Two Important Due Diligence Principles
An airline employee was standing on the apron at an airport gate when he was struck in the back by an empty baggage cart and injured. At the time, the area around the plane was covered in packed snow on top of ice and was slippery, which contributed to the incident. A federal Health and Safety Officer concluded that the airport was in violation of OHS law for allowing an accumulation of ice and snow and issued it a compliance direction. The airport appealed. The federal OHS Tribunal rescinded the direction. The airport had a Winter Maintenance Plan that complied with industry standards, and snow and ice removal procedures in place. In addition to regular snow and ice removal, airlines were expected to make specific service requests when there was an immediate need for removal. But the airline didn’t make such a request for this gate and so failed to bring the snow/ice issue in the area to the airport’s attention. The Tribunal noted that the personnel and equipment dedicated to snow and ice clearance duties and the procedures followed to implement those duties were well documented by the airport, as were the weather conditions prevailing on and around the date of the incident. So the Tribunal rescinded the direction because the airport wasn’t aware of the safety hazard posed by the snow or ice and had exercised due diligence as to snow and ice removal [Macdonald Cartier International Airport Authority,  OHSTC 5 (CanLII), March 5, 2015].
OTHER NOTABLE CASES
New Charges in Lac-Mégantic Derailment Against Companies & Individuals
The federal government laid new charges in the 2013 train derailment disaster in Lac-Mégantic, QC under the Railway Safety Act and the Fisheries Act and against both Montreal, Maine and Atlantic Canada, and Montreal, Maine and Atlantic Railway Ltd. The six individuals charged are former railway president Robert Grindrod, company executives Lynne Ellen Labonte and Kenneth Strout, train driver Thomas Harding, manager of train operations Jean Demaitre and the company’s assistant transportation director, Mike Horan. Those six, along with railway traffic controller Richard Labrie, each face a federal Fisheries Act charge for the crude oil that flowed into Lac-Mégantic and the Chaudiere River after the incident [Govt. News Release, June 22, 2015].
Worker’s Refusal Was Justified as Using Hands, Not Wands, Was a Danger
A worker for a rail company refused to work because he was required to use his hands to install metal tie plates under track suspended by a power jack rather than using the safety wands installed on the power jack for this purpose. He was afraid his hands or fingers would be crushed. A health and safety officer investigated the work refusal and sided with the worker. The rail company appealed. The OHS Tribunal ruled that operating the power jack without using the provided wands was a “danger” under the OHS law. There had been several near misses in which workers almost injured their fingers adjusting the plates with their hands and one instance in which a worker’s fingers were actually crushed. So the rail company’s procedure wasn’t “equally as safe” as using the safety wands, said the Tribunal [Sersa Total Track Ltd.,  OHSTC 12, June 30, 2015].
PPE Violation by Electrical Supervisor Didn’t Warrant Termination
The electrical supervisor at a nuclear facility went to a switchyard to remove locks placed as part of a LOTO procedure. He wasn’t wearing PPE and when asked about his PPE, he refused to get any. During the investigation into the incident, he didn’t accept responsibility and blamed others. So the facility fired him, which he challenged. An arbitrator noted that safety was a core value at the facility and the supervisor had violated a safety rule. But the violation wasn’t considered serious at the time. Also, there were no signs on PPE posted at the site. So although the facility was entitled to expect more from a supervisor, termination was a disproportionate response. Given the supervisor’s prior record, the arbitrator concluded that a two-week suspension without pay was more appropriate [Joncas v. Atomic Energy of Canada Ltd.,  C.L.A.D. No. 293, Nov. 6, 2014].
Does Canada Post Have to Include Carrier Routes in Workplace Inspections?
Letter carriers argued that workplace inspections needed to include their routes. But Canada Post said that carriers were supposed to report hazards they see on their routes to their supervisors, which was sufficient. After a carrier complained, a health and safety officer found that Canada Post had violated the JHSC inspection duties by excluding the carrier routes. The OHS Panel disagreed. The routes were part of the workplace. But because the routes were public areas that Canada Post didn’t own and had no control over or right to alter, it couldn’t ensure that inspections were done of these areas. Thus, the inspection duty didn’t apply to the routes, concluded the Panel, which added that Canada Post did have other measures in place to ensure the safety of carriers on their routes [Canada Post Corporation v. Canadian Union of Postal Workers,  OHSTC 22, Nov. 27, 2014].
CASE OF THE YEAR
OK to Fire Worker Who Caused Accident While under Influence of Cocaine
A worker for a coal mine, a safety-sensitive workplace, got into an accident while operating a vehicle on a work site. He admitted being sleepy at the time due to his use of cocaine the previous night. His employer fired him. The worker claimed disability discrimination based on his cocaine addiction. The court noted that the worker didn’t inform the employer of his alleged drug addiction until after the accident. In fact, there was no proof the worker was actually addicted to cocaine. The court rejected the argument that the worker was in “denial” about his addiction, which excused his failure to seek assistance from the employer, adding that this excuse “amounts to a suggestion that even an employee in a highly safety sensitive position who knows precisely what he is doing can unilaterally and in a secretive manner disregard the profound safety obligations of his employment.” In short, the employer fired the worker not because of his addiction but because he violated its drug and alcohol policy by being involved in a “significant event” while under the influence of drugs on the job. Thus, the court upheld the worker’s termination [Stewart v Elk Valley Coal Corp.,  ABCA 225 (CanLII), June 30, 2015].
OTHER NOTABLE CASES
Employer Violated Industry Standard by Not Using Engineered Solution
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, suffering fatal injuries. The court convicted his employer of two OHS violations. The Crown argued that the appropriate standard of care required an engineered solution to the problem of table torque induced by the driller. The employer argued that industry practice at the time didn’t mandate nor was it reasonable to require an engineered solution given its administrative procedures. The court noted that the goal of engineered solutions is to avoid the sort of human error that occurred in this incident. Here, the evidence was clear that an engineered solution was used by other industry competitors. And the employer itself engineered the same or a similar solution when specifically ordered to do so. Moreover, the solution was cheap, quick and easy—and it was effective. So the court concluded that the appropriate standard of care required “nothing more than applying a small bit of common-sense engineering to a known problem” [R. v. Precision Drilling Canada Ltd.,  ABPC 115 (CanLII), June 1, 2015].
OK to Fire Zookeeper for Letting Gorillas Escape
A zookeeper failed to follow protocol and properly secure an exhibit, resulting in the escape of gorillas. The zookeeper was charged by a silverback gorilla, which pummeled and bit him. The gorillas were eventually corralled without any further injuries to anyone else. The zoo fired the zookeeper—and an arbitrator agreed that termination was appropriate. The escape of the gorillas endangered other zoo employees, contractors who were working in the area, visitors and the gorillas themselves. So the zookeeper’s failure to secure the door to the exhibit was “a very serious safety violation.” Although he was a long-time employee who’d taken responsibility for the incident, his record included prior safety violations. Thus, under the circumstances, the arbitrator ruled that his dismissal was reasonable [Calgary (City) v Canadian Union of Public Employees, Local 37,  CanLII 15352 (AB GAA), March 17, 2015].
Court Fines Employer $80,000 for Conveyor Incident
A warehouse worker was injured when her hair got entangled in an unguarded drive shaft underneath a conveyor. As a result, the employer was convicted of an OHS violation. At sentencing, the court noted that the employer did have numerous safety measures in place and a general concern for safety. But as to the conveyors, the employer should’ve known that the unguarded drive shaft posed a hazard. And this lack of foresight took place over several years. The employer did show remorse and immediately took steps afterwards to address the hazard. Thus, the court concluded that an $80,000 fine was appropriate [R. v. Value Drug Mart Associates Ltd.,  ABPC 255 (CanLII), Nov. 12, 2014].
Workers’ Comp Covered Worker’s Blisters Caused by Wearing Safety Boots
A worker was required by OHS regulations to wear safety boots on the job, which involved a lot of walking. While breaking in new boots, he developed blisters on his feet, which later got infected. His workers’ comp claim was accepted, but the employer challenged it. The Appeals Commission upheld the worker’s claim, rejecting the employer’s argument that his wrongdoing caused the blisters. The Commission found that his blisters were caused by the safety boots he was required to wear at work. Given the amount of walking the worker had to do, there was a risk that he’d develop blisters and that they could get infected. So his injury was work-related and covered by worker’s comp [2015-0671 (Re),  CanLII 52412 (AB WCAC), Aug. 24, 2015].
Worker Can Use Medical Marijuana to Treat Pain from Compensable Injuries
A worker was injured on the job in a single vehicle rollover incident. His injuries were covered by worker’s comp but his request for coverage for the use of medical marijuana to manage his pain was denied. But the Appeals Commission found that the weight of evidence shows that the use of marijuana is a reasonable and necessary medical aid for the treatment of the worker’s compensable injuries. The worker tried or considered all other conventional medical aid and found them to be medically inappropriate. His pain stemmed from a compensable injury. There was also sufficient evidence to indicate that the use of medical marijuana has a positive effect on human health outcomes as part of a comprehensive work return or rehab program. And the worker can legally get medical marijuana from an accredited source, added the Commission [Decision No.: 2014-1174,  CanLII 1059 (AB WCAC), Jan. 19, 2015].
Employer Had Just Cause to Fire Truck Driver for Using Cell Phone While Driving
A truck driver was fired after an onboard camera showed him using his cell phone while pulling away from gas pumps at a truck stop. He’d been disciplined four times before, getting a three-day suspension for the most recent infraction. The union argued that termination was excessive. The arbitrator found that although the driver’s behaviour was unsafe, it wasn’t egregious. He wasn’t on a public road at the time, he was moving very slowly and the truck stop wasn’t busy. But the driver didn’t appear to learn from this incident or accept that what he did was dangerous. And based on his responses to prior discipline, he had trouble accepting fault. So the arbitrator concluded that the employer had just cause to fire the driver [BFI Canada Inc. v. General Teamsters Union, Local 362 (Dismissal Grievance),  A.G.A.A. No. 5, Feb. 12, 2015].
School District Didn’t Accommodate Caretaker Injured on the Job
A caretaker at a school dislocated her shoulder while cleaning under a desk. After she was later fired, she sued the school district, claiming it failed to accommodate her disability. The court found that the district had discriminated against the caretaker based on her physical disability. The evidence showed that accommodation was likely possible. But the court concluded that the district’s accommodation attempts were at best superficial and didn’t reflect an understanding of the duty to accommodate an employee in the caretaker’s circumstances. And the district failed to prove it was an undue hardship to continue to employ the caretaker with her physical restrictions. So the court ordered the district to pay her more than $44,000 in lost income and $15,000 in general damages [Horvath v. Rocky View School Division No. 41,  AHRC 5 (CanLII), March 5, 2015].
Lead Hand Convicted of Assault for Punching Worker in the Face
A lead hand for a cleaning company told a worker he had to wear safety goggles while carrying cleaning chemicals. The worker refused. The lead hand reported the situation to his supervisor and they confronted the worker together, who claimed he’d just been joking. But the worker later poked the lead hand in the shoulder, called him a name and glared at him. In response, the lead hand punched the worker in the face twice, causing a cut to his mouth that required stitches. The lead hand was arrested and charged with assault. He claimed self-defence. But the court rejected that claim and convicted him. His violent response to the worker’s actions was unreasonable and disproportionate. And if he felt threatened, he could’ve easily retreated [R. v. Mohammad-Yousf,  ABPC 252 (CanLII), Nov. 5, 2014].
Termination of Worker for Smoking Pot at Work Ruled Excessive
A worker at a shipping/receiving terminal was caught smoking marijuana in a locker room during his shift. He was immediately suspended and later fired. The union filed a grievance on his behalf. The Labour Relations Board noted that smoking marijuana on the job violated workplace safety rules. But the worker was considered a good employee and had no prior disciplinary record over 32 years of employment. In addition, he was smoking near his deceased brother’s locker and clearly was still grieving. The worker admitted his guilt, was contrite and there was no evidence he’d be a repeat offender. Thus, the Board concluded that a lengthy suspension was more appropriate than termination [Georgia-Pacific Canada LLP v. International Brotherhood of Boilermakers,  CanLII 75160 (AB LRB), Dec. 8, 2014].
Injuries Suffered in Assault at Work Camp Covered by Workers’ Comp
A worker was staying at a camp provided by his employer. He and a co-worker went drinking in a nearby town and when they returned to the camp, the co-worker assaulted the worker. He suffered facial injuries and a broken ankle. His workers’ comp claim was denied, so he appealed. The Appeals Commission ruled that the worker’s injuries were covered by workers’ comp. Because of the nature of his employment, he had to be in the camp location provided by his employer. He was making reasonable use of these premises prior to the assault. And as the worker was unable to control the environment in his living quarters or determine who lived there, the Commission found the hazard arose as a result of the employer-provided residential facility. So there was an indirect relationship between his employment duties and the assault [2015-0447 (Re),  CanLII 32286 (AB WCAC), June 10, 2015].
Young Worker’s Death Results in $150,000 Fine
A 23-year-old worker was in the basket of an aerial work platform securing joists when a 3,500-pound truss fell on him. He died at the scene. The contractor pleaded guilty to an OHS violation and was fined $150,000 [Island Industries, May 28, 2015].
LAW OF THE YEAR
In Feb., WorkSafeBC’s Board of Directors approved amendments to the OHS Regulation to implement WHMIS 2015, Canada’s version of the GHS. The amendments took effect Aug. 4, 2015.
OTHER NOTABLE REGULATORY CHANGES
Introduced in response to two sawmill tragedies, changes to Part 3 of the Workers Compensation Act (the Act) contained in Bill 9, received Royal Assent on May 14, 2015. Some of the changes that took effect on that date included:
- Expanded stop work order powers
- Changes to employee incident investigations
- Expanded injunction powers
- Changes to penalty due diligence.
And these changes took effect on Sept. 15, 2015:
- Compliance agreements
- Employer citations
- Shorter times for requests for reviews
- Additional members of WorkSafeBC Board of Directors.
High Risk Violation Policy
Amendments to the OHS High Risk Policy (D12-196-2) took effect on Dec. 1, 2014. For the purposes of OHS penalties and warning letters, the amendments establish six designated high risk violations and simplify the criteria for determining whether other violations are high risk.
In April, WorkSafeBC added or revised guidelines for the following:
- Occupational hygiene methods acceptable to WorkSafeBC
- Excluded confined spaces
- Blasting operations
- Oil and gas – driver training.
In May, the following revised OHS guidelines were announced:
- Table of exposure limits for chemical and biological substances
- Welding repair on lift trucks
- Ionizing and non-ionizing radiation
- De-energization and lockout
- Rope access.
CASE OF THE YEAR
Undue Hardship to Accommodate Worker’s Illegal Pot Smoking on the Job
A logging company worker who was a cancer survivor claimed disability discrimination, saying the company fired him instead of accommodating his marijuana smoking on the job. The Human Rights Tribunal found that the worker smoked marijuana to manage his pain. But because he didn’t have a “marijuana card,” doing so was illegal. And he admitted smoking pot on the job, although he claimed he was never impaired. The Tribunal concluded that letting the worker smoke pot at work without legal or medical authorization to do so would’ve been an undue hardship for the company. Thus, firing him for violating the company’s zero tolerance policy on drugs wasn’t discriminatory [French v. Selkin Logging,  BCHRT 101 (CanLII), July 8, 2015].
OTHER NOTABLE CASES
Not Discriminatory to Refuse to Reemploy Worker in Safety-Sensitive Position
A worker at a lime-processing plant suffered a non-work-related head injury, which impaired his cognitive function. The position he held—process operator—was hazardous and safety-sensitive. When the worker indicated that he wanted to return to that position, the employer asked for additional information on his condition, abilities and limits. Based on that information, it concluded that it couldn’t return the worker to that or any other safety-sensitive position but offered him a labourer position. The worker filed a disability discrimination complaint, which the Human Rights Tribunal dismissed. The employer’s return to work process was reasonable and necessary in light of the circumstances, and the safety-sensitivity of the workplace and the worker’s prior position. It wasn’t discriminatory not to offer him that position given the possible safety consequences if he lost concentration while at the controls of the kiln. In addition, the employer did offer him a graduated return to work in a non-safety-sensitive position, which he rejected [Fenton v. Graymont Western Canada Inc.,  B.C.H.R.T.D. No. 136, Aug. 26, 2015].
Administrative Penalty Properly Imposed on Company as Owner of the Site
A tree faller was struck by a section of a rotting dead fir tree and died. At the time, he was logging at a location within the area of a forest license owned by West Fraser Mills. But he wasn’t a Mills employee—he was working for a contractor hired by Mills. An administrative penalty was imposed on Mills for safety violations. It appealed, arguing that it couldn’t be penalized because it wasn’t the faller’s employer. The court noted that the health and safety of workers isn’t exclusively a duty of employers. A determination that an employer may be subject to an administrative penalty for failing—as an owner—to take sufficient precautions for the prevention of work-related injuries at its workplace isn’t patently unreasonable, concluded the court. Here, the Tribunal had reasonably concluded that the Mills had breached its obligation by failing to take sufficient precautions to prevent the faller’s tragic death and, as a result, an administrative penalty was appropriately imposed [West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal),  BCSC 1098 (CanLII), June 25, 2015].
Written Warning Proper Discipline for Failing to Wear Seatbelt
A company’s safety rules required workers to wear seatbelts in moving company vehicles. After a supervisor claimed he saw a worker operating a vehicle without wearing a seatbelt, the employer suspended the worker for three days. But he filed a grievance, claiming he had been wearing the seatbelt while the vehicle was in motion. The arbitrator considered the conflicting versions of what had happened and concluded that the worker hadn’t been wearing his seatbelt. However, a written warning was sufficient discipline for this momentary lapse by a worker with a 33-year clean record [Rio Tinto Alcan Inc. v. Unifor, Local 2301 (Madsen Grievance),  B.C.C.A.A.A. No. 8, Jan. 23, 2015].
LAW OF THE YEAR
Amendments aligning Manitoba’s Workplace Safety and Health Regulation with new federal WHMIS 2015 took effect July 31, 2015. New provisions under Part 35 of the regulation apply to any hazardous product classified and labelled under WHMIS 2015.
OTHER NOTABLE REGULATORY CHANGES
Workers’ Comp Violations
A number of penalties for violating the workers’ comp laws increased as of Jan. 19, 2015. Highlights:
- The penalty for claim suppression and discriminatory action increased to $4,000 for the first offence, $5,000 for the second and $6,000 for subsequent offences
- Employers who don’t report an injury to the WCB within five business days now face a $500 penalty
- Employers found guilty of violations face fines up to $50,000 and could receive up to six months in jail
- Workers who commit violations could be fined up to $5,000 and possibly face up to six months in jail.
CASE OF THE YEAR
First Creative Sentence Imposed in Manitoba for an OHS Violation
A worker was operating an edger when a partially processed log got stuck. He reversed the edger to free the log, not knowing that a piece of wood had been thrown onto the conveyer belt on the other side of the machine. This piece shot into the worker’s left groin and exited through his right buttock. His employer pleaded guilty. At sentencing, the government and defence both recommended a $5,000 fine and $20,000 additional penalty or “creative sentence.” The court noted that the additional penalty provision in the OHS law had never been used in Manitoba. But considering the employer’s strong safety culture, no prior record and exemplary efforts after the incident to correct the problem, it concluded that imposing a creative sentence was appropriate here. So the court fined the employer $5,000 and ordered it to pay $20,000 to Safe Work Manitoba to educate the public on matters relating to workplace safety and health [R. v. Spruce Products Ltd.,  MBPC 40 (CanLII), Sept. 25, 2015].
OTHER NOTABLE CASES
Utility Fined $75,000 for Letting Workers Use ATVs Without Certification
A Workplace Safety and Health investigation identified utility workers at a hydro diesel generating plant fueling site using all-terrain vehicles without the required training or certification. The utility pleaded guilty to failing to ensure that a worker possessed Manitoba Hydro F100 All Terrain Vehicle or equivalent certification before performing assigned tasks requiring the worker to operate an all-terrain vehicle. It was fined $75,000 [Manitoba Hydro, Govt. News Release, June 1, 2015].
Bakery Fined $43,800 for Amputation of Worker’s Fingers
A bakery worker was trying to clean a piece of equipment used to cut dough when his hand made contact with a moving scraper blade, resulting in the amputation of three fingers. The bakery pleaded guilty to a guarding violation and was fined $43,800 [Natural Bakery Ltd., Govt. News Release, Dec. 11, 2014].
Another Amputation of Worker’s Fingers Results in $35,000 Fine
A worker was trimming metal bars using an eccentric punch press. While removing a piece of metal from the press, it activated, pinching the worker’s left hand and amputating two fingers. The employer pleaded guilty to failing to provide a worker with the CSA standards on the operation and safeguarding of power press machinery, and to ensure that the press was regularly inspected. The court fined it $35,000 [Buhler Trading Inc., Govt. News Release, Jan. 13, 2015].
Employer Fined $25,550 after Worker Is Run over by a Forklift
A work crew was dismantling a building using a forklift to brace the building. When the forklift was no longer required, workers couldn’t free it from the structure. They used a tractor to tow the forklift from the building. While a worker was lying on the ground under the forklift trying to disengage the tow chain, another worker drove the forklift over him, causing multiple fractures and internal injuries. His employer pleaded guilty to failing to take measures to ensure the safety, health, and welfare of workers working in close proximity to power mobile equipment and was fined $25,550 [Nordevco Associates Ltd., Govt. News Release, July 25, 2015].
CASE OF THE YEAR
Employer Didn’t Reach Point of Undue Hardship as to Alcoholic Worker
After a co-worker reported seeing beer cans in a worker’s cubbyhole and smelling alcohol on him, the employer suspended the worker for 30 days. When the worker again appeared to be under the influence on the job, i.e., he was red-faced, smelled of alcohol, slurred his words and staggered, the employer fired him. But an arbitrator found that the worker had a disability—alcoholism. His conduct did warrant discipline because a disability isn’t a free pass. However, the employer was aware of his disability and didn’t accommodate him to the point of undue hardship. So the arbitrator imposed a 30-day suspension without pay followed by a leave of absence without pay for 16 months so the worker could complete a rehab program. In addition, his return to work would be subject to a last chance agreement [Canadian Union of Public Employees, Local 1252 v. Facilicorpnb,  CanLII 54715 (NB LA), Aug. 15, 2015].
OTHER NOTABLE CASES
Employer Didn’t Have to Rehire Seasonal Employee Who Wasn’t Bilingual
An employer didn’t offer a seasonal employee employment for the new season, hiring instead less senior workers who were fluent in French or bilingual. The employer argued that the employee’s ability to communicate with co-workers was crucial for safety reasons. The union claimed the employer violated the employee’s right to recall. The arbitrator noted that New Brunswick is the only province that’s officially bilingual. Management does have the right to determine job qualifications. And bilingualism in the workplace, depending on the position, has been accepted as a reasonable qualification for a position in the provincial public service. Because the employee wasn’t bilingual, he only qualified for a unilingual position. And other workers with more seniority had filled those positions. Thus, the arbitrator dismissed the grievance [Canadian Union of Public Employees, Local 1190 v. New Brunswick (Department of Transportation and Infrastructure) (Deleavey Grievance),  N.B.L.A.A. No. 2, June 17, 2015].
Company Owner Fined $4,000 for Contacting Overhead Power Lines
While operating a mobile crane and hoisting apparatus, the owner of a company failed to recognize the hazards of operating the equipment near overhead energized transmission lines. As a result, he contacted a 69,000-volt line, leading to electric shock and burns to an employee. The owner pleaded guilty, as a worker, to failing to respect mandatory minimum distances from an energized electrical utility line and was fined $4,000 [David Young, Govt. News Release, Feb. 11, 2015].
Worker’s Request for Coverage of Medical Marijuana Was Properly Denied
Due to a workplace incident, a worker suffered chronic back pain. His doctor prescribed medical marijuana for this pain. The worker filed a workers’ comp claim for coverage of the medical marijuana costs, which was denied. He said the medical marijuana helped with his pain and let him cut back on taking other painkillers. But the Appeals Tribunal denied his appeal. The worker had surgery on his back after he was prescribed medical marijuana and the surgery improved his condition and symptoms. In fact, his surgeon did not prescribe medical marijuana. Thus, his request for funding for medical marijuana was properly denied [20157550 (Re),  CanLII 4929 (NB WHSCC), Jan. 22, 2015].
But Injured Firefighter Was Entitled to Coverage of Medical Marijuana
A volunteer firefighter injured his neck and back on the job. His injuries were covered by workers’ comp but not the use of medical marijuana for the pain from those injuries. So he appealed. The Appeals Tribunal noted that the firefighter’s use of standard pain medication caused substantial side effects. In contrast, his use of medical marijuana treated the pain without any noticeable side effects. The Tribunal concluded that the firefighter had established a need for marijuana and followed all legally required steps to get it, including obtaining the required license from Health Canada. So it ordered coverage of the costs of his medical marijuana [20157630 (Re),  CanLII 20419 (NB WCAT), April 17, 2015].
LAW OF THE YEAR
Starting July 1, 2015, there are new certification training requirements for JHSCs and Workers Health and Safety Representatives/Designates, including:
- Updated, two-day training program
- One course for both committees and representatives/designates
- New requirement to recertify every three years.
CASE OF THE YEAR
Employers Convicted of OHS Violations for Fatal Traffic Incident
A number of workers were hit by a vehicle while they were on the median of a road inspecting the condition of the asphalt. One was killed and two others were injured. As a result, several employers were charged with multiple OHS violations. The court said that the hazard here faced by the workers doing this job was foreseeable—the traffic. So the employers had a duty to take reasonable steps to protect the workers from this hazard. But they failed to do so. For example, the workers weren’t trained on roadside inspections. And there wasn’t sufficient evidence to determine whether the setup was reasonable for the traffic hazards presented. So the court convicted the employers, rejecting their due diligence defence [R. v. Department of Transportation and Works (NL) and City of St. John’s,  CanLII 73922 (NL PC), Dec. 9, 2014]. The court later fined the city and the department $60,000 each [NL Transportation Department and the City of St. John’s, Feb. 27, 2015].
OTHER NOTABLE CASES
Office Manager Convicted of Filming Female Worker in Bathroom
An office manager hid an iPhone in a bathroom and used it to secretly record a female worker using the facilities on several occasions. The worker found the hidden phone and called the police, who arrested the manager. He pleaded guilty to voyeurism. At sentencing, the court noted that the manager claimed he only hid the phone to catch the worker wasting time by texting in the bathroom and that he had no sexual motive. He did apologize, admitting his conduct was “stupid and callous.” However, because of his actions, the worker felt compelled to quit her job. And his actions send “a chilling message to women that even the washrooms at their places of employments are not safe,” said the court. So it sentenced him to probation for one year [R. v. Muggridge,  NLPC 1314 (CanLII), March 11, 2015].
Oil Company Bound by Arbitrator’s Decision on Workers’ Termination
Three workers for a contractor were fired after being denied access to an oil company’s project site. The oil company’s policy barred the use or consumption of alcohol onsite. These workers had been found under the influence of alcohol onsite. An arbitrator reinstated the fired workers and ruled that the oil company was bound by this decision. The oil company, which wasn’t a party to the collective agreement or the arbitration, appealed, arguing that the arbitrator had no jurisdiction over it. On appeal, the court noted that the arbitrator had jurisdiction over the workers’ termination based on their conduct at the oil company’s site. And because the workers’ presence at this site was “intrical and fundamental” to their employment, it was appropriate for the arbitrator to exercise jurisdiction over the oil company, concluded the court [Hebron Project Employers Association v. Resource Development Trades Council of Newfoundland and Labrador,  CanLII 76043 (NL SCTD), Dec. 19, 2014].
LAW OF THE YEAR
New OHS Regulations took effect on June 1, 2015. They give workplaces a modern framework that’s relevant to Northern operations and closes any gaps that once existed between the NWT, NU and other Canadian jurisdictions.
CASE OF THE YEAR
Government Fined $100,000 for Exposing Workers to Asbestos
Government workers were exposed to asbestos at the Prince of Wales Northern Heritage Centre in Yellowknife. As a result, the territorial government pleaded guilty to violating Sec. 4(1)(b) of the Safety Act and was fined $100,000 [Department of Public Works and Services and the Department of Education, Culture and Employment, Govt. News Release, June 5, 2015].
OTHER NOTABLE CASES
Ferry Manager Accosted Safety Officer Investigating Bulldozer Incident
A bulldozer being used to grade the landing area near a ferry crossing got partially submerged. The manager faxed an accident report to the WSCC. The same day, a safety officer met with the manager, who was loud, aggressive and refused to provide a written statement. The officer returned the next day, after getting information that contradicted what the manager had said. The manager confronted him, grabbed him by the biceps, pushed him out the door and slammed it behind him before he could ask any questions. As a result, the manager was charged with and convicted of obstruction. The officer was clearly doing his job. Although the manager didn’t obstruct the officer’s ability to do his job at the first meeting, he did at the second when he physically accosted the officer [R. v. Prodromidis,  N.W.T.J. No. 60, Oct. 26, 2015].
LAW OF THE YEAR
Protections for Offshore Oil Workers
Amendments to the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation (Nova Scotia) Act took effect Dec. 31, 2014, establishing one set of OHS rules for offshore oil and gas workers. Mirror amendments were adopted federally and in Newfoundland and Labrador.
OTHER NOTABLE REGULATORY CHANGES
As of Feb. 1, 2015, Nova Scotians who use a hand-held device while driving face increased fines and receive demerit points on their licences. Under the new rules, anyone convicted of using a hand-held electronic device while driving will receive four demerit points on his or her licence.
CASE OF THE YEAR
First Provincial Criminal Negligence Charge in Workplace Fatality
A mechanic was welding under a car when it caught fire and became engulfed in flames. He died the next day. The government claims that the autobody shop didn’t provide flashback arrestors between the torch and the fuel supply to prevent reverse flow and stop a flame from burning back into the supply lines. The former owner of the shop was charged with criminal negligence causing death. The RCMP says the charge is the first against a Nova Scotia employer under so-called Bill C-45 (also known as the Westray law). The former owner is also facing 12 charges under the provincial OHS law [Elie Hoyeck, Sept. 11, 2015].
OTHER NOTABLE CASES
Rare Creative Sentence Imposed in Nova Scotia Safety Prosecution
An electrician was electrocuted while installing electrical service for a tenant at a strip mall. His employer was charged with two OHS violations. It argued that it had exercised due diligence and wasn’t responsible for the experienced electrician’s lapse in judgment. The court disagreed, convicting the employer of both charges. The court noted that the employer didn’t have a formal OHS program or written safe work practices. It also didn’t provide safety training to junior workers or supervise the electrician. Thus, the employer didn’t take all reasonable precautions for the electrician’s safety [R. v. R.D. Longard Services Ltd.,  NSPC 20 (CanLII), April 17, 2015]. At sentencing, the court fined the employer $35,000. It also said, “The facts of this case lend themselves to the imposition of a ‘creative sentencing option.’” The worker’s tragic death and the lack of formal safety policies at the company constituted “a sobering message” for other small businesses in the construction trades, it reasoned. So the court ordered the employer to make a series of presentations on the facts of the case, the applicable regulatory requirements, the workplace safety issues involved and the required due diligence [R. v. R.D. Longard Services Ltd.,  NSPC 35 (CanLII), June 12, 2015].
Board Refuses to Suspend Order Requiring Hazard Assessment
A crew member on a scallop fishing vessel was seriously injured when a cable was severed. During an investigation of the incident, an OHS officer learned that this cable often broke. So he ordered the fishing company to have an engineer conduct a hazard assessment on the scallop fishing system used on the ship. The company appealed the order and asked the court to suspend its compliance during the appeal. The Labour Board refused. Suspending an order requiring a report on whether the vessel’s equipment was hazardous could mean that the situation that led to or caused the cable to break would remain in effect, thus endangering the crew. And there was evidence that cables had broken in the past and that the most recent break led to serious injury to a crew member. In addition, the company hasn’t shown that requiring it to provide a report would damage its operations or cause it any expense (other than the cost of the report) [Yarmouth Sea Products Ltd. v. Nova Scotia (Occupational Health and Safety),  NSLB 163 (CanLII), Sept. 24, 2015].
Company Fired Truck Driver for Refusing to Shovel Hot Asphalt
A supervisor asked a truck driver for a paving company to shovel excess hot asphalt out of the back of the truck because the truck exceeded the weight restrictions. The truck driver refused to do so, saying the asphalt was very hot and he was afraid of getting burned. The company fired him later that day, claiming it was for wearing out the truck’s clutch. The driver filed a reprisal claim. The Labour Relations Board found that the driver had raised legitimate concerns about his safety in shoveling hot asphalt from the back of the truck. He reported these concerns to his supervisor and was fired as a result. The Board rejected the company’s claim as to why it had fired the driver, noting that it permitted another worker to drive the truck with the allegedly worn clutch. So the Board ordered the company to pay the truck driver for four days’ lost wages [Lenihan’s Paving (2013) Incorporated v. Boggs,  NSLB 53 (CanLII), April 16, 2015].
LAW OF THE YEAR
In Jan., a new Code of Practice for JHSCs was released. WSCC Codes of Practice apply to all workplaces covered by the Safety Act and related regulations.
CASE OF THE YEAR
Employer Fined $2,000 for Violating Workplace Smoking Regulations
During an inspection, a WSCC Safety Officer observed evidence of smoking in the workplace. The employer pleaded guilty to violating the Environmental Tobacco Smoke Work Site Regulations by failing to control the exposure of workers to environmental tobacco smoke at an enclosed work site. The court fined it $2,000 [J&N Moving Ltd., Govt. News Release, May 27, 2105].
LAW OF THE YEAR
New Working at Heights Training Standards
New working at heights training standards become mandatory as of April 1, 2015, with a two-year transition period for workers who already meet the existing fall protection training requirements. The training standards apply to all construction projects covered by the Construction Projects Regulation and are mandatory for workers on such projects, who are required to use designated types of fall protection.
OTHER NOTABLE REGULATORY CHANGES
In Oct., the Chief Prevention Officer released new training standards and requirements for JHSC certification, which take effect March 1, 2016. There’s a new standard for the JHSC Certification Training Program itself and a new standard for the providers of JHSC certification training.
As of July 1, 2015, changes to OELs and/or listings for substances took effect. These changes include the adoption of all OEL proposals set out in the 2013 and 2014 “Review of Occupational Exposure Limits in Ontario” charts, except that the OELs for nitrogen dioxide, manganese and aliphatic hydrocarbon gases will remain unchanged while the MOL considers stakeholder feedback and determines next steps.
CASE OF THE YEAR
Project Manager Convicted of Criminal Negligence in Xmas Eve Scaffold Collapse
A construction company was hired to repair the balconies on two apartment buildings. On Christmas Eve, five workers and their foreman were working from a swing stage, which collapsed. Four workers died and one was seriously injured. As a result, the project manager for the balcony work was charged with four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. The Ontario Superior Court convicted him of all five charges. The day of the incident, the manager knew that the swing stage had only two life lines for the six workers who’d be using it. Once he knew there was inadequate fall protection, he was under a duty to rectify the situation, explained the court. Instead, the manager let the workers with their tools board the swing stage without knowing whether it could bear that weight. And to make matters worse, he later boarded the swing stage himself without fall protection. The court concluded that “in failing to act, he showed wanton and reckless disregard for the lives and safety of the workers” and thus his omissions constituted criminal negligence [R. v. Vadim Kazenelson,  ONSC 3639 (CanLII), June 26, 2015].
TOP 5 FINES AGAINST INDIVIDUALS
As to the swing stage platform incident discussed in the Case of the Year, a director of the scaffolding company pleaded guilty to failing to ensure a suspended platform was in good condition and that a platform weighing more than 525 kg was designed by a professional engineer in accordance with good engineering practice. The court fined him $25,000 for each count [Patrick Deschamps, Govt. News Release, Dec. 4, 2014].
A residential construction project caught fire, forcing a crane operator to flee the cab and crawl out on the 65-metre-long boom, which was about 100 metres in the air. A military helicopter had to rescue the operator, who suffered burns. The company owner was convicted of knowingly furnishing an inspector with false information or neglecting or refusing to furnish information required by an inspector, and failing to furnish all necessary means in the person’s power to facilitate any entry, search, inspection, investigation, examination, testing or inquiry by an inspector. He was fined $19,000 [Aram Malek, Govt. News Release, May 1, 2015].
A roofing company’s owner was convicted on three charges for failing to ensure workers wore fall protection. The court found that a prior conviction and $4,000 fine imposed two days before the events on which the latest charges were based was an aggravating factor and justified a more significant fine. So it fined the owner $14,000 [Sunny Roofing Inc. and Dong Mo, Govt. News Release, Sept. 11, 2015].
MOE officers inspected a waste transfer and processing company’s facility and found that it was storing liquid industrial waste, hazardous waste and solid non-hazardous waste for more than 180 days in violation of its approval. The company and its owner were ordered to submit an action plan and take steps to ensure compliance with the 180 day waste storage limit, but they didn’t. The company owner was convicted of violating the Environmental Protection Act and fined $10,000 [George Scott, Govt. News Release, July 28, 2015].
While mine workers were backfilling a stope using material called sandfill, which can cause caustic chemical burns, one of them got stuck in the backfill. It took seven workers an hour to extricate him; all received burns to their legs and one required skin grafts. Two weeks before this incident, workers had raised concerns about the backfill procedure to the general foreman and supervisor. But they made no changes to the procedure. The supervisor pleaded guilty and was fined $8,000 [Jeffrey Huffman, Govt. News Release, March 13, 2015].
OTHER NOTABLE CASES
ON Court: Crown Can’t Use General Duty Clause to Expand Safety Requirements
A worker fell from an elevated wood platform and suffered fatal injuries. The Crown charged the employer with violating the general duty clause in the OHS Act by failing “to take every precaution reasonable in the circumstances for the protection of a worker,” specifically to take the reasonable precaution of installing guardrails at the open sides of the platform. The Ontario Court of Justice acquitted the employer, dismissing both charges. Sec. of the Industrial Establishments Regulation requires a guardrail around the open side of, among other things, any raised floor, mezzanine, balcony, landing, platform or other surface. The court interpreted this guardrail requirement as applying only to fixtures in an industrial building—not the A-frame and plank system used here. The Crown argued the employer should’ve still installed guardrails at the open sides of any raised wooden platforms because doing so would’ve been a reasonable precaution under the general duty clause. But the court found that it wasn’t appropriate for the government to use the general duty clause of the OHS Act to expand on or extend the guardrail requirements beyond those specifically outlined in the Industrial Establishments Regulation [Ontario (Ministry of Labour) v. Quinton Steel (Wellington) Ltd.,  ONCJ 713 (CanLII), Dec. 17, 2014].
Court Sends Company Directors to Jail for Death of Warehouse Worker
A warehouse worker was moving merchandise using an order picker that had been modified to add an additional platform supported by the forks that was tack-welded to the manufacturer-equipped operator platform. The added platform didn’t have a guardrail around it and the worker using it wasn’t wearing fall protection or safety shoes. He was found dead on the floor from blunt force trauma to the head. Two company directors pleaded guilty OHS violations and were sentenced to 25 days in jail each. The court also ordered them to take a health and safety course [Baldev Purba and Rajinder Saini, Govt. News Release, Jan. 13, 2015].
Case Is a Reminder that Serious Safety Incidents Can Justify Termination
A miner was operating a trolley used to transport cars loaded with ore or waste underground. He was involved in an incident, resulting in the derailment of three full cars of ore and the trailing trolley. There was significant damage to the rail line and production was interrupted for four days. As a result, the employer estimated that it incurred more than $200,000 in costs. An investigation of the incident concluded that it was caused by the miner’s operation of the trolley at excessive speeds. Due to this “reckless and careless” conduct, the employer fired the miner. An Ontario arbitrator upheld the miner’s termination. The arbitrator concluded that it was likely that the trolley was traveling “well in excess” of the maximum allowable speed under the OHS law of 12 km/hour, which constituted reckless conduct under the circumstances. In addition, the miner had a safety-related disciplinary record. His reckless actions resulted in substantial damage and significant economic loss to the employer—and could’ve resulted in serious personal injury or death. And the miner refused to take responsibility, offer any apology or display any real remorse. Because “the underground mine environment is a dangerous and extremely safety-sensitive one,” the arbitrator refused to substitute lesser discipline than termination [Sudbury Integrated Nickel Operations v. Sudbury Mine, Mill & Smelter Workers’ Union Unifor, Local 598,  CanLII 32018 (ON LA), May 30, 2015].
Farm’s Conviction for OHS Violations as to Door Upheld on Appeal
An electrician at a farm was injured when a large shipping door fell on him. He broke his leg, injured his shoulder and couldn’t work for almost a year. As a result, the farm was convicted of two OHS violations and appealed, arguing that it had exercised due diligence. The appeals court disagreed. The electrician and a millwright were sent to an unfamiliar location in the workplace without any supervision. In addition, although the workers may have been trained on the use of blocking in general, they weren’t trained on “the particular danger at hand,” said the court. Thus, the trial court’s decision that the farm didn’t exercise due diligence was reasonable [Ontario (Ministry of Labour) v. Maple Lodge Farms,  ONCJ 172 (CanLII), April 7, 2015].
Roofing Company Convicted for Worker’s Fall from Roof
A worker fell about 22 feet off a roof and into a trailer below. He wasn’t wear fall protection at the time. He was hospitalized for two weeks with various injuries. The roofing company was charged with two safety offences. The trial court noted that the company had installed guardrails on the roof and temporary anchor systems, and provided fall protection equipment. But the guardrail was routinely opened so workers could dump garbage off the roof using a motorized buggy. And the company didn’t have a clear process for this garbage disposal technique that covered issues such as when workers needed to be tied off and the safe use of buggies on the roof. So the court convicted the company, ruling that it didn’t exercise due diligence [Ontario (Ministry of Labour) v. Semple Gooder Roofing Corp.,  ONCJ 183 (CanLII), April 8, 2015].
Company Acquitted of OHS Charges for Incident Resulting in Foot Amputation
A relatively inexperienced worker was making modifications to a spindle. As he was using an overhead crane to rotate the spindle, it fell off its stand and onto his foot, which had to be amputated. The company was charged with two OHS violations. The court found that the company had exercised due diligence. It was unforeseeable that the worker would’ve rotated this large piece on his own. He did so in violation of his training and using a tool not intended for that purpose. In short, the company took all reasonable precautions and appreciated the seriousness of the potential hazard, which is reflected in the orientation session it provided, the overhead crane training and the protocol for the movement of large new pieces by junior workers, concluded the court [R. v. ABS Machining Inc.,  ONCJ 213 (CanLII), April 10, 2015].
Hotel Fired Maintenance Manager for Refusing to Work Without PPE
The maintenance manager for a hotel asked the general manager for a fall protection harness so he could work on a wall from a scaffold. The general manager refused. An MOL inspector ordered the hotel to hire a suitable contractor to repair the wall as it was too dangerous for the maintenance department. The general manager kept pressuring the maintenance manager to do it himself, but he refused and was then fired. The hotel claimed he was fired because he wasn’t skilled enough for the position. However, the Labour Relations Board found that there was “an absolute dearth of written or verbal evidence” of the maintenance manager’s lack of skills. It was clear he was fired as a reprisal for exercising his right to refuse unsafe work [Sean Rapke v. Sylvanacre Properties Limited o/a Four Points Sheraton,  CanLII 75962 (ON LRB), Dec. 8, 2014].
Too Intrusive to Require Nurse to Submit to IME Before Returning to Work
A registered nurse injured her neck and shoulder. After being out of work, the nurse provided the hospital with a doctor’s note saying she could return to modified duties with restrictions. The hospital required the nurse to submit to an independent medical exam (IME) before she returned, which she did. The hospital then gave her a modified job. But the union claimed the hospital violated its duty to accommodate by requiring the IME. The arbitrator agreed, rejecting the hospital’s argument that it needed the IME to fulfill its duties. The arbitrator found that it was reasonable for the hospital to seek medical clarification as to the nurse’s right side rotator cuff before returning her to work. But it could’ve gotten the necessary information in a less intrusive manner than an IME, such as from the nurse’s family physician or treating orthopedic specialist [William Osler Health System v. Ontario Nurses’ Association,  CanLII 40722 (ON LA), July 3, 2015].
Charges Against Plant Based on Falling Car Seats Dismissed
Within four months, two car seats fell forward while on an assembly line in a plant, injuring workers. As a result, the plant was charged with falling to ensure that materials don’t fall and a guarding violation. The court dismissed the charges, ruling that the Crown hadn’t proven them beyond a reasonable doubt. It noted that nearly two million seats had been built at the plant, with only two falling. And the injuries the falls caused were minor. So the JHSC reasonably didn’t consider the risk of seats falling to be a high priority. In addition, the cause of the falls wasn’t reasonably foreseeable. The court also concluded that the plant had taken all reasonable care under the circumstances [Ontario (Ministry of Labour) v. Magna Seating Inc.,  ONCJ 7 (CanLII), Jan. 9, 2015].
Ontario Arbitrator Rules Against Hospital’s Vaccinate or Mask Flu Policy
A hospital imposed a “Vaccinate or Mask” (VOM) policy that required healthcare workers to wear surgical masks during the five to six months of flu season if they hadn’t gotten a flu shot. The hospital claimed the goal of the policy was to prevent hospital-acquired influenza. The nurses’ union challenged the policy as an unreasonable exercise of management’s rights and a violation of workers’ rights. An Ontario arbitrator ruled that the VOM policy was unreasonable. The hospital’s goal of preventing hospital-acquired influenza by increasing immunization rates was laudable. But the weight of the scientific evidence to support the VOM policy on patient safety grounds was insufficient to warrant the imposition of a mask-wearing requirement for up to six months of the year. And without sufficient scientific support, the arbitrator concluded that the policy operated to coerce nurses into getting the flu vaccine, undermining their right under the collective agreement to refuse vaccination. There was also no evidence as to why current hospital policies were inadequate and couldn’t be amended, if needed, to improve patient safety. Lastly, the arbitrator wasn’t convinced the policy would actually encourage “truly voluntary” vaccinations [Sault Area Hospital v. Ontario Nurses’ Association,  CanLII 55643 (ON LA), Sept. 8, 2015].
Worker’s Angry Behaviour & Threat of Violence Justified His Firing
After a worker refused to do his assigned task, he was told he was suspended for a day. He became belligerent, told supervisors they could “fuck” themselves and made obscene gestures. He went to his car but, instead of leaving, he drove back to the office and began yelling obscenities again. He also said, “I’ll be back and fucking shoot you.” Part of the altercation was caught on videotape. The city fired the worker. An arbitrator ruled that his termination was justified. The worker’s threat of violence violated city policy and the OHS law. The arbitrator rejected the union’s argument that the worker’s comments were “shop talk” and he was just blowing off steam. Given his anger and aggressive behaviour, the city had reason to be concerned for the safety of its staff, concluded the arbitrator [Toronto (City) v Toronto Civic Employees Union, Local 416,  CanLII 15347 (ON LA), March 24, 2015].
Appeals Court Upholds Acquittal on Two OHS Charges But Convicts on Third
A worker was in a water intake tunnel when a large slab of ice fell from the tunnel’s wall and seriously injured him. As a result, the MOL charged his employer and a supervisor with OHS violations. The trial court dismissed the charges, ruling that the prosecution hadn’t proven them beyond a reasonable doubt and alternately that the defendants had exercised due diligence. The government appealed. The appeals court found that the trial court’s verdicts dismissing two of the charges were clearly and easily understandable. But as to the remaining charge, which claimed the employer didn’t provide a basket and crane with their rated load capacity posted on them, the appeals court overturned the acquittal and convicted the employer. The evidence established that the crane was missing its rated load capacity chart [Ontario (Ministry of Labour) v. Dufferin Construction Co.,  ONCJ 652 (CanLII), Dec. 8, 2014].
Worker Wrongfully Dismissed after Punching Co-Worker in the Face
A worker and co-worker, who had a tense relationship, got into a physical fight after the co-worker elbowed the worker. The co-worker ended up with a bloody nose and broken safety glasses. The employer fired the worker for punching the co-worker. The worker sued the employer for wrongful dismissal. The court found that the co-worker’s elbowing of the worker wasn’t violent or deliberate. The worker was the aggressor, punching the co-worker in the face. This behaviour violated the employer’s rules of conduct and thus warranted discipline. But the employer didn’t consider any alternatives to firing the worker, who had an “unblemished work record.” Concluding that the worker had been wrongfully dismissed, the court ordered the employer to pay him about $45,000 in damages [Phanlouvong v. Northfield Metal Products (1994) Ltd.,  ONSC 6585 (CanLII), Nov. 17, 2014].
Court Upholds Ruling Against Mandatory Pre-Access Drug/Alcohol Testing
A union challenged a company’s requirement that contractors perform universal mandatory drug and alcohol testing before workers may have access to its worksites. The arbitrator noted that there was no evidence of drug or alcohol issues at the worksites and concluded that there was no demonstrable need for the pre-access testing sufficient to justify the significant invasion of privacy inherent in such testing. On appeal, the court agreed with the arbitrator, ruling that his conclusions were reasonable [Mechanical Contractors Assn. Sarnia v. United Assn. of Journeymen and Apprentices of the Plumbing & Pipefitting Industry,  ONSC 6909 (CanLII), Nov. 27, 2014].
Big Worker’s Threatening Statement to Smaller Worker Was ‘Classic Bullying’
A 5’8” worker who didn’t have the use of his left arm went into the bathroom and was confronted by a 6’2”, 300 lb. co-worker, who told him “I am your worst nightmare” while standing over him in a threatening way. The worker reported the upsetting incident and the employer suspended the co-worker for three days. The union filed a grievance, arguing that the co-worker was just joking. But the arbitrator disagreed. The co-worker had previously been disciplined for making a threatening comment. She ruled that “I am your worst nightmare” meant “I am someone you should be afraid of” and is an example of “classic bullying.” The arbitrator found that the co-worker had perceived the worker’s anxiety and tried to intimidate him. In short, although the co-worker’s comment wasn’t a specific threat of physical harm, it did violate the employer’s workplace violence policy and was hostile language. So the three-day suspension was appropriate [Workers United Canada Council v. Winners Merchants International,  CanLII 21612 (ON LA), April 9, 2015].
Builder and Contractor Fined $170,000 in Fatal Fall from Scaffolding
Workers for a masonry contractor were bricking exterior walls from scaffolding. Ladders hadn’t been provided. A worker accessed the north scaffold to reach the west scaffold so he could retrieve some tools. While doing so, he fell between the scaffold and the building, suffering fatal head injuries. An MOL investigation found that the north scaffolding from which the worker fell had numerous components missing. The contractor and the builder pleaded guilty to violating the Construction Projects Regulation. The court fined the contractor $80,000 and the builder $90,000 [Roswell Construction Inc. and Blue River Masonry Ltd., Govt. News Release, May 15, 2015].
Manufacturer Fined $170,000 for Worker’s Death
A worker at a manufacturing facility was called to troubleshoot a problem with a moving conveyor platform, which couldn’t be lowered from an elevated vertical position down to the horizontal position. To repair it, the worker removed part of the guarding, crawled under the platform and removed the air line from the pneumatic cylinder fitting. When another worker pushed on the down button, the platform fell down suddenly, striking and pinning the worker underneath. He died from his injuries. An MOL investigation found that insufficient interlocks were in place to protect a worker from the hazard caused by the raised platform. The manufacturer pleaded guilty to an OHS violation and was fined $170,000 [Massilly North America Inc./Massilly Amerique de Nord Inc., Govt. News Release, Feb. 4, 2015].
Collapse of Lift Table on Worker Costs Car Company $160,000
A worker at an automotive plant was showing a co-worker how to perform a task that required the removal of screws from a ball screw assembly. The co-worker removed all the screws except one. There was no blocking to prevent the lift table from accidentally falling. The lift table and a pallet fell on top of the worker, who underwent surgery for injuries that included several broken bones. The car company pleaded guilty to failing to ensure that the lift table was securely and solidly blocked to prevent it from falling and was fined $160,000 [General Motors of Canada, Govt. News Release, Jan. 22, 2015].
Fatal Forklift Incident Results in $150,000 Fine for Wheelchair Company
A crew of workers for a wheelchair company used a forklift to move a machine from a trailer. Two workers were standing in the trailer to guide and stabilize the machine. But the distance between the two forks of the forklift was too wide and the machine was lifted on just one fork. As the forklift operator began to lift the machine, the load tipped over and pinned one worker to the side of the trailer. He died. The company pleaded guilty and was fined $150,000 [Future Mobility Healthcare Inc., Govt. News Release, Jan. 15, 2015].
Company Fined $150,000 after Guard Is Hit & Killed by a Car and a Truck
A night shift security guard from a temp agency left the building to smoke. As he was walking in the travel way, he was struck from behind by a car driven by a worker, who left the scene. After the car left, a tractor-trailer began to reverse down the travel way. The fallen security guard was caught by the mud flap behind the trailer’s rear tire and was pushed nearly 100 metres along the travel way. His body was discovered beneath a rear trailer wheel. The company pleaded guilty to failing to ensure that no pedestrians were present in an area where illumination was limited and vehicles in the area had sight-line difficulties. The court fined it $150,000 [Marmora Freezing Corp., Govt. News Release, Feb. 23, 2015].
$130,000 in Fines Imposed on Steel Manufacturer for Two Separate Incidents
A processor and manufacturer of steel products pleaded guilty and was fined $130,000 for two separate incidents, four days apart. In the first incident, a worker fell while changing a tuyere and blow pipe assembly on the west side of the furnace. He suffered a leg fracture. The manufacturer was fined $55,000 for failing to provide a safe means of access to perform the work. In the second incident, two workers were troubleshooting a malfunctioning closed-circuit TV camera. They shut off the cooling fan to prevent dust from being blown around. After ascending and descending the stairs two or three times to access the camera, one worker was overcome with fumes and lost consciousness, although he regained consciousness a few minutes later. Testing showed that the oxygen level in the area was below 10% by volume because hydrogen and nitrogen gases had accumulated after the cooling fan was turned off. The manufacturer was fined $75,000 for this incident [ArcelorMittal Dofasco Inc., Govt. News Release, May 28, 2015].
Construction Company Fined $120,000 in Young Worker’s Death
A young worker at a high-rise student housing project was knocked from the roof by a skid of concrete blocks being moved by a tower crane. He fell four storeys to a mast climber. Although he was trained in fall protection, he wasn’t using any such protection at the time of the incident. The worker died from head and leg injuries. A construction company pleaded guilty to failing to store and move material or equipment in a manner that didn’t endanger a worker and was fined $120,000 [Maison Canada Holdings, Govt. News Release, June 16, 2015].
Worker’s Electrocution Results in $120,000 Fine
A utility worker was performing repair work to a downed line in the aftermath of Hurricane Sandy. He was working from an aerial bucket while a co-worker was working from the ground. The truck suddenly shook and the boom of the bucket dropped. The worker in the bucket was taken to the hospital but died from electrocution. The utility pleaded guilty to failing to ensure that workers performed a documented job plan before performing work on or in proximity to energized electrical equipment and was fined $120,000 [Bluewater Power Distribution Corp., Govt. News Release, May 26, 2015].
Contractor Fined $120,000 for Death of Worker Hit by Formwork Panel
As part of a road construction project, a contractor’s six-member crew was installing and removing pre-manufactured heavy steel panels used to form and hold concrete in place until the concrete has cured. While one panel was being hoisted away by a crane, an adjacent panel separated from the wall and fell on one of the workers. He suffered fatal crushing injuries. The panel manufacturer’s manual specified that the final tie rods shouldn’t be removed before the panel is hooked to the crane, which wasn’t done in this incident. This manual wasn’t on site and the workers hadn’t been trained on it. The contractor pleaded guilty to a training violation and was fined $120,000 [1256458 Ontario Ltd., Govt. News Release, Sept. 18, 2015].
CASE OF THE YEAR
Employer Not Entitled to Injured Worker’s Pre-Incident Medical Records
A worker was seriously injured while working on his employer’s farm. The employer was charged with two OHS violations. He requested the injured worker’s pre-incident medical records for the trial. The trial court rejected the request, so the employer appealed. The appeals court ruled that it didn’t have jurisdiction over the evidentiary ruling, which should be dealt with in an appeal after the trial. But if it did have jurisdiction, it wouldn’t overturn this ruling. Even without the medical records, the employer could still question the worker at trial as to any pre-existing medical condition or illness that may have contributed to the cause of the incident, concluded the court [Mol v. AG,  PESC 13 (CanLII), April 1, 2015].
LAW OF THE YEAR
On June 3, 2015, Bill 43, which implements the federal WHMIS 2015 requirements, received Royal Assent. The bill mainly replaces “controlled product” with “hazardous product” and sets out the terms and conditions for identifying such products, as well as the requirements on training and information received by workers about such products.
CASE OF THE YEAR
Employers Must Accommodate Workers Limited by Work-Related Injuries
An educational instructor at a drop-in centre developed “tennis elbow” from his work duties. The injury resulted in functional limitations that prevented him from continuing to work as an instructor. The employer said no other position was available that was compatible with his limitations and fired him. The instructor claimed that there were two positions that were suitable for him, provided certain adaptations were made. The CLP rejected his argument, ruling that the employer didn’t have to offer the instructor a position accommodating his functional limitations. But the Québec Court of Appeal ruled that an employee living with the after-effects of a work-related injury is considered disabled and thus protected by the Charter and entitled to accommodations. So unless the employer is able to show that accommodating the instructor would be an undue hardship, it must identify all possible accommodations and offer him a position compatible with his limitations [Commission de la santé et de la sécurité au travail c. Caron,  QCCA 1048 (CanLII), June 15, 2015].
OTHER NOTABLE CASES
Provincial OHS Law Didn’t Apply to ‘Federal Undertaking’
The St. Lawrence Seaway Management Corporation challenged numerous intervention reports issued by CSST inspectors that identified it as principal contractor of construction work performed by contractors at the locks of St. Lambert, Ste. Catherine and Beauharnois. The CLP ruled that the corporation was a “federal undertaking” and so Québec’s OHS act didn’t apply to it. As a result, the CLP annulled all the decisions issued by CSST inspectors affecting the company [Corporation de Gestion de la Voie maritime du Saint-Laurent et Construction Injection EDM Inc.,  QCCLP 1479 (CanLII), March 16, 2015].
Class Action Approved in Lac Mégantic Derailment
Three Lac Mégantic residents filed a class action lawsuit on behalf of all the victims of the July 6, 2013 train derailment, which killed 47 people. A court approved the lawsuit against World Fuel Services and Canadian Pacific Railway Ltd. The class action alleges that Canadian Pacific Railway was negligent and showed a lack of due diligence in all circumstances leading up to the derailment [May 22, 2015].
LAW OF THE YEAR
The Occupational Health and Safety (Prime Contractor) Regulations took effect Jan. 1, 2015. Under Sec. 3-13 of the Saskatchewan Employment Act, prime contractors are required at every worksite where there are multiple employers or self-employed persons, and the worksite meets “the prescribed circumstances.” If there’s no written agreement assigning the role of prime contractor at those worksites that must have one, the owner will be the default prime contractor.
CASE OF THE YEAR
Contractor Convicted of OHS Offences in Young Worker’s Fall from Roof
A man hired a contractor to frame the walls and trusses for a building on his property. One of the contractor’s workers fell off the roof, breaking his wrist and two vertebrae. At the time, he wasn’t wearing any fall protection or a hardhat and there was no fall protection installed at the site. The contractor was charged with several safety offences. The court found that the injured 18-year-old worker had received no training at all. In addition, the contractor failed to notify the government about the incident as soon as reasonably possible. In fact, it never notified anyone. And the contractor failed to supervise the worker and ensure he wore appropriate PPE. In convicting the contractor, the court noted that there was “a flagrant disregard of legislation that was enacted to protect workers” like this worker from incurring the kind of injury he suffered [R. v Fred Thue Construction Ltd.,  SKPC 168 (CanLII), Dec. 1, 2014].
OTHER NOTABLE CASES
OK to Fire Worker for Setting off Firecracker at Gas Bar
After work, a gas station worker set off a cherry bomb firecracker in the workplace near a gas bar and propane tanks. Fortunately, the firecracker was the only thing that exploded. But the employer fired the worker for this serious safety incident. The union agreed discipline was warranted but argued termination was excessive. The arbitrator disagreed. The worker had a disciplinary record and just received an unsatisfactory job performance review. Setting off a firecracker at a gas bar was reckless and serious misconduct, especially for a worker trained in handling explosive material. So termination was justified in these circumstances [United Food and Commercial Workers, Local 1400 v. Saskatoon Co-Operative Association Ltd.,  CanLII 48607 (SK LA), Aug. 10, 2015].
Mine’s Random Use of Drug Sniffing Dogs Violated Workers’ Privacy
A union challenged a random drug search process using drug sniffing dogs and follow-up interviews at a mine site’s guardhouse. The unilateral mandatory entry requirement applied to everyone accessing the mine site, with disciplinary consequences for bargaining unit employees. An arbitrator found that although the process didn’t involve testing, it still seriously intruded on workers’ reasonable expectations of privacy. Was the intrusion justified by a legitimate company goal? There wasn’t sufficient evidence of a general problem with drug abuse at the mine. Thus, the process failed the tested spelled out in Irving and wasn’t justified, concluded the arbitrator [United Steelworkers Local 7552 v. Agrium Vanscoy Potash Operations (Grievance 16-10, Random Drug Searches/Interviews),  S.L.A.A. No. 1, Jan. 5, 2015].
Driver Convicted in Death of 18-Year-Old Flag Person
A driver who struck and killed a flag person was convicted of dangerous driving causing death. But the court refused to convict him of the more serious charge of criminal negligence causing the death, finding that the Crown hadn’t proven that he showed “wanton and reckless disregard” for the lives of others. On Aug. 24, 2012, the 18-year-old had been working as a flag person on her first day and was just a couple of hours into her shift, when she was struck and killed. The defendant, a professional truck driver from the UK, told police he was looking at his recent immigration papers when the crash happened. He didn’t slow down as he went by eight construction signs and passed two semi-trucks [Keith Dunford, CBC News, Oct. 13, 2015].
IPC Permits Video Surveillance on City Buses with Conditions
A city bus driver filed a complaint with the Information and Privacy Commissioner, arguing that the city’s use of cameras on buses to make audio recordings violated her privacy. The city argued that its surveillance on public buses was necessary to reduce violence against transit operators, vandalism and inappropriate customer behaviour. The Commissioner found that the driver’s conversations qualified as personal information under the law. In addition, audio surveillance could be necessary for the safety and security of passengers and staff in some circumstances. But although the signs posted in buses regarding the cameras were sufficient, the city’s video surveillance policy wasn’t adequate. So the Commissioner ruled that the city should revise its policy accordingly, conduct public consultations on the use of surveillance on buses and determine if the recordings could be taped over after less than 130 hours [Saskatoon (City) (Re),  CanLII 34192 (SK IPC), June 11, 2015].
Company Fined $28,000 after Two Forklifts Collide
Two forklifts collided in a company’s shipping yard, seriously injuring a worker. As a result, the company pleaded guilty to failing to develop and implement a traffic control plan to protect its workers. The court fined it $28,000 [Premier Horticulture Ltd., Govt. News Release, Oct. 16, 2015].
Supervisor and Employer Fined in Worker’s Fall from Roof
A worker was seriously injured after he went onto a roof to move a hoist. His leg got caught in the hoist as it was being lowered over the roof’s edge and he fell two stories to the ground. The employer pleaded guilty to failing to ensure workers use fall protection when required and that they’re sufficiently and competently supervised. The court fined it $7,000. A supervisor also pleaded guilty to a safety violation and was fined $2,100 [Clark Roofing Regina Ltd. and Harold Vincent, Govt. News Release, Feb. 4, 2015].
LAW OF THE YEAR
In July, Yukon adopted WHMIS 2015, which replaces WHMIS 1988. Employers are responsible for educating and training workers on the new WHMIS regulations. They have three years to be fully compliant with WHMIS 2015, which will be in full effect as of Dec. 1, 2018.
CASE OF THE YEAR
Contractor and Agriculture Branch Fined for Fatal Wild Horse Incident
A contractor, who’d been hired to capture wild horses by the Agriculture Branch of Energy Mines and Resources, built a Russell fence corral and baited the horses into it. While workers were connecting metal panels to the Russell fence, the horses bolted. One horse got tangled in a panel and knocked a worker to the ground. The horse rolled over him, causing a fatal head injury. The Agriculture Branch was fined $5,000 for failing to establish a complete OHS program. The contractor was fined $750 for failing to properly assess the risks associated with the job and not providing appropriate PPE [Yukon Agriculture Branch and Dan Sabo, Govt. News Release, Jan. 26, 2015].
OTHER NOTABLE CASES
Harassment of Estranged Wife’s Friend at Her Workplace Was Criminal
A wife separated from her husband and went into hiding from him. The husband was convicted of criminal harassment against a close friend of his estranged wife, who refused to disclose the wife’s location. He appealed. The appeals court upheld the conviction, ruling that the friend’s fear for her safety was reasonable. Among other things, the husband went to the friend’s workplace and told her supervisor that she was selling drugs to co-workers and having an affair. He also phoned her at work and called her offensive names [R v. Amos,  YKSC 20 (CanLII), May 6, 2015].