|A roundup of important new legislation, regulations, court cases and board rulings that we covered in 2013 in the OHS Insider newsletter.
LAW OF THE YEAR
Several key provisions of Bill 6, the Protection and Compliance Statutes Amendment Act, 2012, took effect on Oct. 1, with an additional change set to take effect Jan. 1, 2014. These changes to the OHS Act cover:
CASE OF THE YEAR
Record $1.5 Million in Penalties Imposed for Deaths of Chinese Oil Sands Workers
During construction of large metal storage tanks at an oil sands site, a roof collapsed and crushed two Chinese workers to death. Five others were injured. One of the companies involved in the work pleaded guilty to three OHS violations. The court fined it $200,000 and ordered it to pay $1.3 million to the Alberta Law Foundation to support outreach and education programs for temporary foreign workers and workers new to Alberta. According to an Alberta Justice spokesperson, the penalty is the largest ever imposed in the province on OHS charges [SSEC Canada Ltd., Govt. News Release, Jan. 24, 2013].
Court of Appeal Upholds Convictions in Calf Roping Machine Fatality
During a client party, a tech company’s worker was killed while operating a calf roping machine. The company was acquitted of two OHS violations at trial. But the appeals court ruled that the trial judge’s rulings were unreasonable, finding that the company didn’t exercise due diligence. And the Court of Appeal agreed. The trial judge’s verdict was unreasonable because it was inconsistent with the evidence that the company knew the machine wasn’t working properly and wasn’t intended to require the operator to reach into the machine to manually detach this hook. Armed with this knowledge, the company didn’t take sufficient steps and certainly didn’t do all that was reasonably practicable in the circumstances to avoid the reasonably foreseeable risks, concluded the Court of Appeal [R. v. XI Technologies Inc.,  ABCA 281 (CanLII), Aug. 13, 2013]. (In Oct., the court fined it $275,000.)
Employer Penalized $300,000 for Worker’s Fatal Head Injuries
A labourer was struck in the head by a launched sheave assembly, which had been under tension by a hoisting mechanism, when it became detached from the concrete floor. He died from his injuries. The employer pleaded guilty to failing to ensure equipment was of sufficient size, strength and design and made of suitable materials to withstand the stresses imposed on it during its operation and to perform the function for which it was intended or designed. The court fined it $5,000 and ordered it to pay $295,000 to the Manufacturers’ Health and Safety Association of Alberta for the creation of an online resource centre, which will provide industry with the tools to assess and understand limitations and uses of rigging products [Armtec Holdings Ltd., Govt. News Release, Sept. 24, 2013].
Company’s Disregard for Worker Safety Results in $100,000 Fine
A temporary worker for a salvage company fell approximately three metres from an opening in a wall onto a pile of pipe, suffering a broken leg and three broken ribs. The company he was working for was convicted of several safety violations. In sentencing the company, the court noted that the company didn’t have safety plans or documentation, hazard assessments, emergency response plans or procedures, or fall protection procedures for any of the work being done by its workers at this site. Instead, the company claimed that the site owner was responsible for the safety of all workers there—although it didn’t do anything to ensure the site owner was, in fact, taking steps to protect workers. The court concluded that the company’s “apparent disregard of the health and safety of its employees, and in particular, the temporary workers” warranted a $100,000 fine [R. v. Canadian Consolidated Salvage Ltd. (Clearway Recycling),  A.J. No. 477, May 6, 2013].
Worker Injured Violating Safety Rule Still Covered by Workers’ Comp
A worker entered a “No Go Zone” and was injured. He later tested positive for cocaine. He filed a workers’ comp claim for his injuries, which the employer challenged on the grounds that he’d engaged in “serious and wilful misconduct.” The Appeals Commission said that although the worker’s actions may have been ill-advised and in violation of proper procedure, there wasn’t sufficient evidence that his actions constituted serious and wilful misconduct to remove him from workers’ comp coverage. In addition, there was no evidence that the worker, who admitted using cocaine over the weekend, was impaired at the time of the incident [Decision No: 2012-1135,  CanLII 1214 (AB WCAC), Jan. 18, 2013].
Reasonable for Accommodation Plan to Require Obese Worker to Lose Weight
A truck driver at a mine injured his back. Based on a doctor’s evaluation of the worker, the employer prepared an accommodation plan for the obese worker that required him to, among other things, lose 85 pounds and engage in an active rehab program. The union challenged the plan. The arbitrator said the employer’s accommodation plan was supported by the medical evidence of the worker’s condition and health. In fact, every doctor who’d seen the worker since his injury commented on his obesity and risk of re-injury. The arbitrator concluded that the plan was reasonable and fulfilled the employer’s duty to accommodate [Teck Coal Ltd. v. United Mine Workers of America, Local 1656,  CanLII 71111 (AB GAA), Nov. 6, 2012].
Meat Packing Plant Worker’s Firing for Fighting Was Justified
A worker at a meat packing plant initiated a fight with co-workers after they complained about his always coming back late from breaks. The company fired the worker; the union filed a grievance. The arbitrator noted that the company had a well-known and strict policy against fighting, which was understandable given the nature of the work and presence of knives. The worker had two prior offences on his record, neither for fighting. But he never apologized or took responsibility for his actions. So the arbitrator concluded that his termination was justified [XL Foods (Lakeside Packers) v. United Food and Commercial Workers, Local 401 (Trawere Grievance),  A.G.A.A. No. 57, Nov. 5, 2012].
Mental Stress from Multiple Traumatic Events at Work Was Compensable
A transportation worker filed a workers’ comp claim for mental stress due to exposure to a number of fatalities, serious and minor injuries and near misses. The claim was rejected on the grounds that his condition wasn’t work-related. But the Commission found that in the course of the worker’s employment, he was exposed to several events that were traumatic as defined by workers’ comp law and policy. As a result, he developed a drinking problem, depression, anxiety and PTSD. Thus, his psychiatric and psychological diagnoses were causally related to the traumatic exposures at work and so they were compensable [Decision No: 2012-0995,  CanLII 79463 (AB WCAC), Dec. 10, 2012].
Negligent Employer Must Pay Costs of Injury to Another Company’s Employee
A worker for a trucking company got out of his truck at another employer’s site, slipped on ice and fell. Workers’ comp covered his injury. But the trucking company said the other employer should be responsible for these costs because the injury was due to its negligence. The Appeals Commission agreed. It was reasonably foreseeable that a visitor could slip and fall given the weather and conditions. So the employer should’ve taken reasonable steps to address the slippery and icy conditions, such as sanding. Thus, the Commission concluded that the full costs of the worker’s injury should be transferred to the employer due to its negligence [Decision No: 2012-968,  CanLII 68325 (AB WCAC), Oct. 30, 2012].
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