|A roundup of important new legislation, regulations, court cases and board rulings that we covered in 2012 in the Safety Compliance Insider.
LAW OF THE YEAR
In Oct. 2012, the government introduced Bill 6, The Protections and Compliance Statutes Amendment Act, would make changes to three laws, including the OHS Act: Highlights of the proposed changes:
OTHER NOTABLE REGULATORY CHANGES
In Oct. 2011, the government updated online information about workplace injuries and fatalities for more than 150,000 employers and made it available online.
In May, the government introduced a bill that would amend the Workers Compensation Act so that police, firefighters, paramedics and other first responders scarred by post-traumatic stress disorder will be covered.
CASE OF THE YEAR
Record $2.4 Million Fine Imposed for Fatality at Excavation Pit
A truck driver was killed when a 15-metre-high wall of dirt and rock collapsed on him at an excavation pit. The prosecution argued that two related companies cut corners to complete the project and knew of the dangers associated with an improperly shored-up wall of the pit for about two months. The court convicted the companies and fined them $1,437,500 and $1,035,000 respectively plus the 15% victim surcharges, for a record total fine of $2,472,500 [Perera Development Corp. and Perera Shawnee Ltd., Edmonton Journal, June 5, 2012].
While a worker was welding a fitting on the top of a biodiesel settling tank, the tank exploded, killing him. The company and a company official pleaded guilty to violating the OHS Act. The court fined the company $375,000 and the official $15,000 [GLP Instrumentation Inc. and Sebastien Berube, Govt. News Release, Nov. 22, 2011].
A worker welding from an aerial platform was electrocuted. His employer pleaded guilty and received a total penalty of $365,500, including a $10,500 fine, $240,000 payment to NAIT for the development of an aerial platform course and establishment of a Trades Apprenticeship Endowment in the deceased worker’s honour and $115,000 payment to Norquest College for the development of a safety course [Dreco Energy Services Ltd., Govt. News Release, Dec. 15, 2011].
A boom truck operator was killed when an elevated section of an articulating boom crane collapsed and pinned him against another section of the crane as he was trying to repair it. His employer pleaded guilty, was fined $10,000 and ordered to pay $338,500 to St. John Ambulance to provide first aid education and a training classroom facility [Roofmart Alberta Inc., Govt. News Release, Nov. 14, 2011].
A driver was slowly moving a truck with two attached trailers, while another worker was steering the rear trailer from controls located on the trailer’s side. As he was walking beside the trailer, he was run over by the rear wheels and killed. The trucking company pleaded guilty to an OHS violation and was sentenced to pay a $10,000 fine, $144,000 to the Job Safety Skills Society and $131,000 to the Alberta Motor Transport Association for the development of a course on the safe operation of specialized long combination vehicles. The driver also pleaded guilty and was fined $10,000 [Denel Trucking and Keith Hargrave, Govt. News Release, Oct. 24, 2011].
Case Shows Different Views on Due Diligence
For a party, a small technology company rented a mechanical calf roping machine, which was operated by the company’s employees. Because the machine had a faulty spring, the operator had to reach into it to manually release a hook. While a worker was disengaging this hook, he was hit in the back of the head by a steel lever and died. The trial court dismissed the OHS charges but the appeals court convicted the company, ruling that the company could and should have done more to prevent this incident. The company knew that the machine posed a safety hazard because, earlier another worker operating the machine had been hit on the shoulder by the same lever that later killed his co-worker. So a reasonable employer would have discontinued the machine’s use. But this company permitted workers to continue to operate it anyway. The appeals court also found that the company didn’t take all reasonable steps to ensure the machine was safe to operate in the first place [R. v. XI Technologies Inc.,  ABQB 549 (CanLII), Sept. 24, 2012].
Chinese Company Finally Pleads Guilty to OHS Charges
The trial into the deaths of two temporary foreign workers at an oilsands project was delayed because a Chinese company argued it shouldn’t be included in the case because it has no legal presence in Canada. It took its fight to the Court of Appeal, which ruled that the company had to stand trial in Canada [R. v. Sinopec Shanghai Engineering Company Ltd.,  ABCA 331 (CanLII), Nov. 23, 2011]. So the company, which was the employer of the victims, pleaded guilty to three OHS violations. The court is scheduled to sentence the company on Jan. 24, 2013. A joint submission has been made for a $1.5 million fine, the maximum penalty [SSEC Canada, Oct. 4, 2012].
AB Court Says Employer Not Liable for Worker’s Drunk Driving Death
A female office worker got drunk at an impromptu party in the office. On her way home, she got into a head-on collision with a truck and was killed. Her blood alcohol level was three times the legal limit. Her family sued the employer. The court dismissed the lawsuit. The company didn’t provide the alcohol the worker drank. Also, she didn’t appear inebriated. And when the company principal left, he reasonably believed that the others were also leaving, which most did. He couldn’t have known that the worker would stay for several hours more and continue drinking. Plus, under company policy, she could have taken a taxi home at company expense at any time. So the court concluded that the company didn’t owe the worker a duty of care [Jenkins v. Muir,  ABQB 352 (CanLII), May 28, 2012].
Company Points Finger at Prime Contractor for OHS Violations
A company was salvaging metal from a former industrial plant. A temporary worker fell from an opening in a wall onto a pile of pipe, breaking a leg and three ribs. The company was charged with several OHS violations. The company argued that the prime contractor was responsible for supervising all workers—including the company’s—and complying with all safety requirements. So it had no duty to ensure the safety of its workers at that site. But the court convicted the company on all counts. There was no evidence that the company took any steps at all concerning the safety of its workers [R. v. Canadian Consolidated Salvage Ltd. (Clearway Recycling),  ABPC 133 (CanLII), May 8, 2012].
Demotion of Team Lead for Safety Infraction Was Excessive
The union challenged a team lead’s demotion for operating a company vehicle in an “extremely reckless manner” and for statements he made at a presentation to area firefighters. The Labour Relations Board said that pulling a truck up close to a co-worker loading another vehicle was very dangerous and justified discipline even though no one was hurt. But his statements at the meeting were basically a PR error. Given that the team lead had a prior good record and the safety infraction was an isolated incident, the Board ruled that a one week suspension was more appropriate [Atco Electric Ltd. v. Canadian Energy Workers Assn.,  CanLII 46402 (AB LRB), Aug. 10, 2012].
OK for Employer to Fire Cocaine-Using Worker for Violating Drug Policy
After a safety incident, a worker took a post-incident drug test, which came back positive for cocaine. When questioned, he admitted using cocaine on his days off as well as previously using crystal meth and marijuana, claiming to be addicted. The employer fired him for violating its drug use policy; the worker sued for disability discrimination. The Tribunal ruled that his termination wasn’t discriminatory. The evidence showed that the worker made rational choices about his drug use. He chose not to stop using cocaine and not to disclose his drug use to the employer. Thus, the employer’s decision was based on his violation of company policy, not his status as an addict [Bish v. Elk Valley Coal Corp.,  AHRC 7 (CanLII), June 15, 2012].
Injury Suffered in Employer’s Gym Not Covered by Workers’ Comp
During his lunch break, a worker was injured while working out at a staff gym provided by the employer and located on its premises. The Appeals Commission ruled that the injury wasn’t covered by workers’ comp. The employer didn’t require workers in this worker’s position to maintain designated levels of physical fitness. In addition, he wasn’t required to stay in shape as a specific condition of his employment [Decision No: 2012-516,  CanLII 31503 (AB WCAC), June 7, 2012].
Workers’ Comp Charges Crane Operator’s Death to Both Employer & Client
A crane operator was killed trying to lift a communication tower. The question: Against which company’s experience account should workers’ comp charge the loss—Procrane, the victim’s employer, or Westower, the company that hired Procrane? Both sides were negligent and equally responsible for the accident, said the Appeals Board. And a court found the Board’s ruling reasonable and upheld allocating the loss to both companies equally [Procrane Inc. (Sterling Crane) v. Alberta (Appeals Commission for Alberta Workers’ Compensation),  ABQB 37 (CanLII), Jan. 16, 2012].
Labourer’s Conduct as to Drug & Alcohol Test Justified His Firing
A labourer carelessly used a forklift to move a heavy and expensive toolbox, which fell and was destroyed. The employer told the labourer that he had to submit to a drug and alcohol test. He agreed to take it the next day. But at the lab, he was obnoxious, obscene, belligerent and aggressive. And he tried to sabotage the tests. So he was fired. The arbitrator upheld his termination. The labourer’s conduct was so offensive, an embarrassment to the employer’s representatives who were with him at the lab and detrimental to the employer’s image, that the employment relationship couldn’t be restored [Finning (Canada) v. International Association of Machinists and Aerospace Workers, Local Lodge 99,  CanLII 12066 (AB GAA), March 3, 2012].
Broken Leg Suffered in Horseplay Was Covered by Workers’ Comp
A worker broke his leg at work and filed a workers’ comp claim. The Board denied his workers’ comp claim after an investigation concluded that the worker got hurt while he and a truck driver were playing “chicken,” thus removing himself from the course of his employment. The Appeals Commission noted that an injury sustained during horseplay can still be considered work-related if one of four criteria are met. Here, the worker’s actions didn’t interrupt production and he didn’t escalate the horseplay into a dangerous activity (the truck driver did). So it concluded that his injury arose out of and in the course of his employment and thus was compensable [Decision No. 2012-111,  CanLII 5914 (AB WCAC), Feb. 3, 2012].
Fatal Dozer Incident Results in $250,000 Creative Sentence
A Caterpillar Dozer operator was helping another Dozer operator attach two fallen trees to the rear ripper shank of the Dozer. He was crushed between the ripper framework and the tree root ball as the Dozer was backing up. The employer pleaded guilty, was fined $1,000 and ordered to pay $249,000 for the establishment of an OHS management system for the Fishing Lake Métis Settlement [Settlement Transportation Services, Govt. News Release, Jan. 26, 2012].
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