OHS Insider Month in Review – June 2017

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A roundup of new legislation, regulations, government announcements, court cases and arbitration rulings

FEDERAL

LAWS AND ANNOUNCEMENTS

WHMIS/GHS
June 1: The deadline for manufacturers and importers of controlled substances to begin using the newfangled GHS Safety Data Sheet and label has been officially pushed back a year to June 1, 2018.  The deadline for distributors will also be bumped back 3 months to Sept. 1, 2018. But the December 1, 2018 deadline for employers will remain unchanged.

Privacy
May 8: Employers are apt to avoid hiring applicants genetically disposed to illness, e.g., HIV-positive, to manage health costs. But a new law took effect that bans employers from making job applicants undergo or submit the results of previous genetic testing for purposes of pre-employment screening.

Conservation
June 7: Fisheries and Oceans Canada announced closures of designated fisheries in BC, New Brunswick, Prince Edward Island, Newfoundland, Nova Scotia and Québec to conserve endangered habitat. (Go to the section of the respective province to see the affected fisheries and terms of closure.)

CASES

Mining Company Fined $3.5 Million for Obed Mountain Dike Failure
In 2013, a dike failure at the Obed Mountain Mine in Alberta resulted in 670 million litres of water contaminated with clay, coal and sand to spill into the Apetowun Creek and Plante Creek and the Athabasca River downstream. The mining company pleaded guilty to 2 Fisheries Act and one EPA violation and was fined $3.5 million [Prairie Mines & Royalty ULC, Govt. News Release, June 12, 2017].

Overtime or Standby Pay for Flight Safety Monitors?
Employees monitor aircraft over the Atlantic by checking a computer-generated email report. Although they can do checks on their smartphone, they need to be available to respond in case of emergencies. They receive standby pay for the shift plus overtime for the time they actually spend checking and, if necessary, responding to emails. But the Board said they should have gotten overtime for the entire shift, including downtime. They weren’t really on standby because they had to work every 30 minutes, the Board reasoned [Canada (Attorney General) v. Canadian Federal Pilots Association, 2017 FCA 100 (CanLII), May 10, 2017].

 ALBERTA

LAWS AND ANNOUNCEMENTS

Youth Employment
June 1: Bill 17, the massive Alberta labour legislation makeover, will have little direct impact on health and safety other than the new rules on youth employment. Highlights:

  • Ban on employing kids under 13 (except for artistic endeavours)
  • Government to revise the list of “light work” jobs that kids under 16 can do
  • Permit and special training will be required for 16- and 17-year-olds to do hazardous work.

Workplace Deaths
May: There have been 7 officially accepted workplace fatalities in Alberta in 2017 as of April 30. Three of the victims were killed after being hit by an object, one 77-year-old worker died of medical conditions with a previous overexertion injury, one medical worker died of Hepatitis C contracted at work, one died of medical complications from a fall injury 7 years earlier and another had a fatal heart attack as a result of stress that aggravated a pre-existing medical condition.

Drugs & Alcohol
July 31: That’s the deadline for Albertans to weigh in on how the province should manage cannabis once the feds legalize it by July 2018. Although legalization will be federally mandated, each province must adopt its own regulatory framework addressing workplace safety and other issues associated with legal cannabis.

CASES

Alcohol-Impaired Pedestrian Can Sue Mall for Tripping Incident
On the way to his car, a shopper jumped over a concrete wall and fell 6 metres through a gap between an elevated ramp and the parking lot. He sued the mall for negligence but the odds were stacked against him: the toxicology report showed that he had been drinking; the entry ramp was designed for vehicle not pedestrian use; and there hadn’t been a pedestrian accident since the ramp was constructed 30 years ago. Even so, the court refused to throw out the case. While he faced an uphill battle, the shopper should at least get a chance to prove that the mall was negligent in not recognizing the danger and posting a warning sign [Hache v West Edmonton Mall Property Inc, 2017 ABQB 367 (CanLII), June 8, 2017].

Railway Fined $125K for Storm Sewer Discharge
In a case showing that federal agencies can be guilty of provincial environmental violations, CN was fined $125K after pleading guilty to a pair of Alberta EPAA offences in connection with an April 2015 incident in which a water separator discharged hydrocarbons into the storm sewer [CN, Govt. News Release, June 12, 2017].

BRITISH COLUMBIA

LAWS AND ANNOUNCEMENTS

Workplace Safety
May 1: New OHS requirements took effect:

OHS REGULATION REQUIREMENTS/REVISIONS
Sec. 1.1 Definition of Combustible & Flammable Liquids Same flashpoint temperature criteria but references to outdated WHMIS 1988 terms removed
Sec. 4.56 Work Platform Guardrails Conditional exemption of movable work platforms and scaffolds from guardrail height criteria
Secs. 4.80-4.82, 28.9 Env. Tobacco Smoke & E-cigarette Vapour i. Ban on workplace smoking expanded to include use of e-cigarettes and exposure to e-cigarette vapour.

ii. No-smoking buffer zone increased from 3 to 6 metres from a doorway, window or air intake to an indoor workplace

iii. Exemptions for smoking tobacco in designated smoking rooms in community care facilities, assisted living residences, private or extended care hospitals, and designated hotel/motel guest rooms extended to include use of e-cigarettes

Sec. 5.71 Combustible or Flammable Air Contaminants Revised to ensure compliance with BC Electrical Code for related electrical equipment contacting the air stream of a ventilation system
Sec. 6.4 Asbestos Inventory i. Both owner and employer are responsible for ensuring inventories are prepared and maintained for asbestos-containing materials (ACMs) in workplace—although only one inventory for workplace is needed

ii. Lists specific info inventory must include and responsibilities for maintaining inventory and making it accessible

New Sec. 12.83 Chassis Dynamometers i. New safety requirements for testing motor vehicles on chassis dynamometers

ii. Only a qualified worker may: (i) test a motor vehicle on a chassis dynamometer, and (ii) operate a motor vehicle, chassis dynamometer or other test equipment for purpose of testing a motor vehicle on a chassis dynamometer.

iii. Wheels and tires must be inspected by a qualified worker before a motor vehicle is tested on a chassis dynamometer

Part 14 Cranes & Hoists i. Scaffolds used to support powered hoists or cranes must be constructed, installed and used in accordance with professional engineer’s instructions

ii. Exempts light duty portable material hoists from application of CSA Standard Z256

iii. Clarifies requirements regarding rated capacity of cranes and hoists

Secs. 20.2 & 20.21 Notice of Project Stricter NOP requirements for construction projects
Sec. 22.12 Underground Supervisors Underground supervisors no longer required to hold an “underground excavation supervisor certificate” acceptable to the Board since Ministry of Mines no longer issues this type of certificate
Sec. 26.13.4 Saw Chain Shot i. Mobile forestry equipment must have cab windows made of polycarbonate totalling 32 mm or more, or material that meets or exceeds ANSI/UL bullet-proofing requirements

ii. Saw chain shot–resistant windows not required if mobile equipment has protective guards or other devices that prevent shot from directly striking the cab windows.

 

OELs

June 15: WorkSafeBC published the new 2017 Occupational Exposure Limits, i.e., amounts of designated toxic substances workers can be exposed to over 8 hours, in OHS Policy R5.48-1. OELs for the following remain unchanged from 2016:

  • Acetamide
  • Cadusafos
  • Captafol
  • 8-chloroprene
  • Ethylene glycol (aerosol)
  • Folpet
  • Furfural
  • Hexylene glycol
  • Isobutane
  • Phthalic anhydride
  • Stearates
  • Tungsten as W, metal and insoluble compounds; soluble compounds.

Meanwhile, WorkSafeBC has proposed extending the Threshold Limit Value review period from 1 to 3 years. Deadline to comment: Sept. 1.

Conservation
June 7: Fisheries in BC affected by the federal marine conservation closure order include the Strait of Georgian and Howe Sound Glass Sponge Reef 9 area, which has been closed to bottom-contacting commercial, recreational and food for social and ceremonial fishing activities to protect glass sponge reefs.

MANITOBA

LAWS AND ANNOUNCEMENTS

Workplace Safety
May 5: The government launched its legislatively required 5-year review of the Workplace Safety & Health Act.  After gathering public feedback on changes and improvements, the Council will issue recommendations by Dec. 31.

CASES

$13K Fine for Not Using Guardrail to Prevent Falls thru Floor Opening
University workers removed floor access panels so they could lower a 2,200-lb (1,000-kg) spool 2 floors to the basement. While the crew had stepped away to retrieve the spool, a co-worker accidentally stepped into the opening and fell 4.4 metres. The victim survived but suffered serious injuries. The employer pleaded guilty to failing to use a guardrail system to prevent falls through the floor opening and was fined $13,000 [University of Manitoba, Govt. News Release, May 9, 2017].

 NEW BRUNSWICK

LAWS AND ANNOUNCEMENTS

Workplace Safety
June 1: WorkSafeNB ran up a $114.8 million operating deficit in 2016 thanks to higher than expected claim costs. Key safety from the newly published 2016 Annual Report:

  • Fatalities: 18
  • Accident frequency (per 100 FTE): 3.06 (vs. 3.05 in 2015)
  • Lost-time workplace injury rate: 1.15 (same as 2015)
  • Employers with at least one day lost-time claims: 5,698
  • Employers with no lost-time claims: 4,769.

Workers’ Compensation
May 31: A new task force will review the New Brunswick workers’ comp system while the auditor general does a dollar-for-value audit of WorkSafeNB to determine whether programs are being administered efficiently. So far, no official timetable has been announced.

Conservation
June 7: New Brunswick fisheries affected by the federal government’s new marine conservation closures and restrictions

Fishery Restriction
Scallop Buffer Zone—SFA 21 Ban on scallop dragging to protect juvenile lobster habitat
Scallop Buffer Zone—SFA 22 Ban on scallop dragging to protect juvenile lobster habitat


CASES

Illegal Iguana Importer Gets Jail Time
Canada Border Service agents busted a 70-year-old Ontario resident returning home from Cuba for possession of 2 undeclared rock iguanas, an endangered species. The importer pleaded guilty to illegally importing an animal and was sentenced to concurrent (as opposed to consecutive) 3-month prison terms.. Translation: The importer, who also faces criminal charges for diamond theft in a separate case,  will be in jail for 3 rather than 6 months [Grigori Zaharov, Govt. News Release, June 8, 2017].

NEWFOUNDLAND & LABRADOR

LAWS AND ANNOUNCEMENTS

Workplace Safety
June: In 2016, the lost-time injury/illness rate fell to an all-time low of 1.5 per 100 workers. The bad news is that the rate has dropped only 0.1% over the past 5 years. On the other hand, back in 1989 the rate was 5.2(!) per 100 workers. Work fatalities fell nearly 50% from 24 to 13 year-over-year.

Workers’ Compensation
June 10: WorkplaceNL began issuing payments to doctors on a weekly basis the way it does with other workers’ comp service providers and vendors. The change doesn’t affect the submission process nor the Form 8/10 (or Form 92), only the payment schedule.

Environmental Assessments
Recent EPA environmental assessment actions:

  • Registration of Secret Cove Brewing Co. proposal to operate microbrewery and tap room in Town of Port au Port East [Reg. 1898, Jun. 5]
  • Registration of Scudrunner Brewing microbrewery project in Gander [Reg. 1897, Jun. 2]
  • Release of Dexter Construction Co. road quarry in Terra Nova [Reg. 1888, Jun. 2]
  • Registration of Chiron Wellness Centre trauma recovery centre project near Grand Falls-Windsor [Reg. 1896, May 29].

Conservation
June 7: Newfoundland and Labrador fisheries affected by the new federal marine conservation closures and restrictions:

Fishery Restriction
Division 3O Coral Ban on bottom fishing to protect coral and sponges
Bay of Island Salmon Migration Ban on pelagic fixed gear fisheries to protect Atlantic salmon migratory area
Trout River lobster area Ban on lobster fishing to foster lobster spawning and egg production
Shoal Point lobster area Ban on lobster fishing to foster lobster spawning and egg production
Penguin Islands lobster area Ban on lobster fishing to foster lobster spawning and egg production
Gooseberry Island lobster area Ban on lobster fishing to foster lobster spawning and egg production
Glovers Harbour lobster area Ban on lobster fishing to foster lobster spawning and egg production
Mouse Island lobster area Ban on lobster fishing to foster lobster spawning and egg production
Gander Bay lobster area Ban on lobster fishing to foster lobster spawning and egg production


Drugs & Alcohol
June 30: That’s the last day to fill out a survey letting the government know what you think about how cannabis legalization should be implemented in the province, including with regard to workplace safety issues.

NORTHWEST TERRITORIES

LAWS AND ANNOUNCEMENTS

Caribou Preservation
June 5: The Northwest Territories Cumulative Impact Program will provide over $700K to fund 13 new environmental research projects monitoring natural and man-made changes to barren-ground caribou habitat.

CASES

Supervisor, Contractor Charged in 19-Year-Old’s Rollover Death
A 19-year-old worker from Australia was crushed to death after the heavy machine he was operating on an access road to the Inuvik Satellite Station Facility near Inuvik rolled over. It was the only work fatality in the Territories in 2016. The WSCC has charged the contractor and supervisor with 9 OHS violations including failure to provide proper safety training and supervision [Allen Services & Contracting Ltd., and supervisor Brian McCarthy, Govt. News Release, May 23, 2017].

NOVA SCOTIA

LAWS AND ANNOUNCEMENTS

Workplace Safety
June 12: New OHS laws (erstwhile Bill 165) took effect clarifying which work injuries and illnesses must be reported and giving government safety inspectors broad new powers to crack down on repeat offenders including authority to:

  • Issue stop-work orders at all sites of a repeat offender
  • Seek a court order barring repeat offenders from working in an industry
  • Require repeat offenders to provide notification of their future work locations and activities.

Workers’ Compensation–Services
June 1: WCB Nova Scotia is building out its MyAccount service to expand the capacity of employers to submit forms and interact directly with agency officials online. The goal is to go live by the end of the month.

Workers’ Compensation–Coverage
May 19: Proposed amendments would establish the presumption that an emergency response worker diagnosed with post-traumatic stress disorder has a work-related condition. Under previous rules, emergency workers had to prove that PTSD was the result of a traumatic and discrete workplace incident.

Conservation
June 7: Nova Scotia fisheries affected by the new federal marine conservation closures and restrictions:

Fishery Restriction
Jordan Basin Conservation Area Ban on all commercial bottom-contact fishing gear to protect cold water coral
Corsair and Georges Canyons Conservation Area Ban on all commercial bottom-contact fishing gear to protect cold water coral
Northeast Channel Coral Conservation Area Ban on all commercial bottom-contact fishing gear to protect cold water coral
Emerald Basin and Sambro Bank Sponge Conservation Areas Ban on all commercial bottom-contact fishing gear to protect glass sponge species called Vazella pourtalesi
Lophelia Coral Conservation Area Ban on all commercial bottom-contact fishing gear to protect Lophelia pertusa coral reef
Scallop Buffer Zone—SFA 22 Ban on scallop dragging to protect juvenile lobster habitat
Scallop Buffer Zone—SFA 24 Ban on scallop dragging to protect juvenile lobster habitat


NUNAVUT

LAWS & ANNOUNCEMENTS

Workplace Bullying
May: The WSCC issued a new fact sheet to help employers control workplace bullying. Recommendations:

  • Implement an anti-bullying policy
  • Establish a system for reporting bullying
  • Educate workers on what bullying is and how to respond if they see it happening
  • Thoroughly and immediately investigate all complaints.

ONTARIO

LAWS AND ANNOUNCEMENTS

Fall Protection
Oct. 1: That’s the new deadline to provide fall protection training to workers working at heights on a “construction project.” Be aware that “construction projects” encompass not just traditional construction sites but any location where construction work is carried out including a factory, warehouse, mill, hydroelectric plant, etc.

Workplace Violence
May 24: Workplace violence is particularly rife in the health care sector. Two years ago, the MOL and Health Ministry created a task force to address the problem. And now the Study Table has issued its report listing 23 recommendations including:

  • Help hospitals create psychologically safe workplace policies based on the CSA standard
  • Require hospitals to address workplace violence in Quality Improvement Plans
  • Change the OHS Act to allow a worker member of the JHSC participate in workplace violence investigations
  • Add a new OHS Act requirement specifying the information that must be provided to a victim of workplace violence.

Construction Safety
June 7: Key items in the MOL’s new Construction Health and Safety Action Plan:

  • Support role of supervisor in creating safety culture and controlling hazards
  • Expand MOL’s ticketing authority for OHS offences
  • Administrative monetary penalties for construction violations
  • Keep up the construction sector blitzes.

OHS Scorecard
June: Ontario OHS fines issued this month (so far): 

Fine Offender Offence(s)
$67.5K Dare Foods Ltd. No machine guard to bar access to pinch point to protect against in-running nip hazard resulting in injury to new worker while cleaning overhead conveyor
$50K Domtar Inc. Lockout violation. Mill worker hurt when a chain and sprocket mechanism of the locked out paper machine he was repairing moved


Workers’ Compensation
July 7: That’s the deadline to comment on the WSIB’s proposed coverage rules for work-related chronic mental stress. The operable word is “chronic,” which means that workers will be covered not just for traumatic stress but “mental stress caused by a substantial work-related stressor, including bullying or harassment.” Decisions or actions affecting the worker’s job duties, work conditions and/or discipline would not be deemed due to work-related chronic stress, according to the WSIB.

CASES

Longshoreman Gets His Job Back After Completing Drug Counseling
A veteran longshoreman signed a last chance agreement requiring him to attend narcotics counseling to get his job back. He offered up papers confirming his attendance. But the documents looked fishy and the company refused to accept them. The documents were rather suspicious, the arbitrator acknowledged, but the company had the burden of proving they were fraudulent and couldn’t do so. Besides, there was no dispute that the longshoreman had gotten and remained sober. So the arbitrator ordered the company to reinstate him—although it didn’t have to pay any damages [Halifax Employers Association v Halifax Longshoremen’s Association, Local 269, 2017 CanLII 33692 (ON LA), June 5, 2017].

OK to Suspend Steel Workers for Horsing Around at Work
Is a one-day suspension too severe a penalty for engaging in a “friendly bout of wrestling” at work? The arbitrator didn’t think so, especially considering the concrete floors and dangerous machinery in which the bout occurred. Although “quantifying discipline is not a science,” the suspension handed down to each man was “within a reasonable range.” Anything more would have been problematic. And while the company’s failure to investigate the incident was a mistake, it didn’t nullify the penalty [Unimin Canada Ltd. v United Steelworkers, Local 5383, 2017 CanLII 31794 (ON LA), May 24, 2017].

PRINCE EDWARD ISLAND

LAWS AND ANNOUNCEMENTS

Trucking
May 8: The government has relaxed driver licensing rules in response to the trucking industry labour shortage to allow 18-year-olds in the last stages of their Graduated Driver’s license to get a Class 3 driver’s license to operate a heavy truck. Applicants will still have to write an air brake exam, pass a medical exam and complete a road test to qualify for a Class 3 license.

Climate Change
June 30: That’s the deadline to comment on the government’s climate change strategy document. The plan is for the Climate Change Secretariat to use the feedback to create recommendations which will then be the subject of public consultations in the fall.

Wastewater
June 9: $29.8 million will be used to fund 26 wastewater infrastructure projects across the Island. $19.9 million will come from Ottawa and the rest from the province. .

Conservation
June 7: PEI fisheries affected by the federal government’s new marine conservation closures and restrictions include:

Fishery Restriction
Scallop Buffer Zone—SFA 22 Ban on scallop dragging to protect juvenile lobster habitat
Scallop Buffer Zone—SFA 24 Ban on scallop dragging to protect juvenile lobster habitat


QUÉBEC

LAWS AND ANNOUNCEMENTS

Young Workers
June 1: With the arrival of summer, CNEST is calling on employers to pay special attention to keeping young workers safe. Every day, 28 workers under age 24 suffer work accidents, notes the CNEST bulletin.

Conservation
June 7: Québec  fisheries affected by the new federal marine conservation restrictions:

Fishery Restriction
Magdalen Island lagoons (6 overlapping closures) Protect lobster habitat and herring spawning areas via ban on: i. hydraulic dredging for Atlantic razor clam and Atlantic surf clam; ii. gill net and square net fishing for winter flounder; iii. gill net fishing for Atlantic herring; iv. pelagic trawling; v. Danish and Scottish seine fishing for yellowtail flounder and winter flounder; and vi. American lobster trap fishing
Les Demoiselles nursery (Plaisance Bay), Magdalen Islands Protect juvenile lobster nursery ground via ban on: i. hydraulic dredging for Atlantic surf clam and Atlantic razor clam; ii. otter trawling; and iii. Danish and Scottish seine fishing for winter flounder, witch flounder, yellowtail flounder and American plaice
Saguenay Fjord Upstream Ban on trawl fishing for all species to protect beluga whale habitat


SASKATCHEWAN

LAWS AND ANNOUNCEMENTS

OHS Scorecard
June: Saskatchewan OHS fines issued this month (so far):

Fine Offender Offence(s)
$5,250 Dalton Parisian No fall protection for workers 3 metres or more high after roofer suffers serious head injuries in fall to concrete driveway
$1,400 Aesthetic Developments Inc. OHS inspector spots workers not wearing proper fall protection on roof of two-storey home

 

Domestic Violence
May 11: According to a new government report, of the 48 domestic violence-related homicides and 9 suicides that occurred in Saskatchewan between 2005 and 2014:

  • The majority of victims were female
  • The majority of perpetrators were male
  • Over 1/3 of the victims were under age 21
  • Nearly 2/3 of victims were attacked in their own home.

Mental Stress
May: The WCB issued a new fact sheet explaining workers’ comp coverage for psychological injuries. Unlike many other provinces which recognize gradually developed cumulative stress as work-related, Saskatchewan continues to limit coverage to one or a series of discrete “traumatic events.”

Workers’ Compensation
June 30: That’s the deadline to comment on proposed changes designed to modernize the Workers’ Compensation Board structure and speed up the processing and appeal of benefits decisions.

CASES

No Causal Connection between Employee’s Safety Concerns & His Firing
An equipment operator was fired 2 months into his probationary employment. He claimed that the firing was in retaliation for his complaining about waste disposal bins being too close to overhead electrical wires. Protection against retaliation applies to probationary employees, the arbitrator acknowledged. But the evidence showed that while the operator complained to co-workers, he didn’t express his safety concerns to management until after he was terminated. So the firing wasn’t retaliatory. The Board found the arbitrator’s ruling reasonable and refused to overturn it [Lund v West Yellowhead Waste Resource Authority Inc., 2017 CanLII 30151 (SK LRB), May 8, 2017].

YUKON TERRITORY

LAWS AND ANNOUNCEMENTS

Mining
June 9: The Faro Mine cleanup project officially launched with a 6-month public engagement process designed to gather feedback on environmental and business issues.