|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
New work refusal rules took effect on April 1, 2012. An MOL inspector may now file a reprisal claim with the OLRB on a worker’s behalf if:
OTHER NOTABLE REGULATORY CHANGES
As of Oct. 1, employers must post a free workplace poster, Health & Safety at Work – Prevention Starts Here, in the workplace.
The pre-registration provisions of the Workplace Safety and Insurance Amendment Act, 2008 took effect Jan. 1, 2012. Mandatory workers’ comp coverage for independent operators and some other individuals carrying on business in construction will take effect on Jan. 1, 2013.
And in April, in response to the final report from the Arthurs Commission on the WSIB, the MOL said that it would establish a new regulation to require the WSIB’s insurance fund to reach a sufficiency of 60% funding in 2017, 80% in 2022 and a full 100% by 2027.
An updated version of the Ontario Electrical Safety Code took effect May 1, establishing safety standards for installing and maintaining electrical equipment, including the prevention of fire and shock hazards.
In July, the new Ontario Underground Infrastructure Notification System Act, 2012 made mandatory the Ontario One Call system, which provides locates and information on utilities buried in a specified area, mandatory.
CASE OF THE YEAR
Guilty Pleas in Christmas Eve Scaffolding Case
On Dec. 24, workers were on scaffolding repairing balconies at an apartment building when the scaffolding collapsed. One worker was seriously injured; four others died. On June 15, 2012, Metron Construction, their employer, pleaded guilty to one charge of criminal negligence causing death under the Criminal Code as amended by Bill C-45. Joel Swartz, its president, pleaded guilty to four violations of the OHS Act, each of which alleged that he failed, as a company director, to ensure that Metron complied with the OHS law and regulations. The court fined Metron $200,000 and Swartz $90,000 [R. v. Swartz,  ONCJ 505 (CanLII), July 13, 2012; R. v. Metron Construction Corp.,  O.J. No. 3649, July 13, 2012]. The government is appealing Metron’s fine as too low.
1. $1.1 Million
While a construction company was performing road work, a backhoe struck and damaged a gas line. Gas escaped into the basement of a building and exploded, killing seven people. The gas distribution company pleaded guilty to a utility locates violation and was fined $350,000. It also pleaded guilty to violating regulations under the Technical Standards and Safety Act, 2000 and was fined an additional $350,000. The utility company pleaded guilty to failing to adequately supervise a worker and was fined $200,000. And the excavator pleaded guilty and was fined $225,000 [Enbridge Gas Distribution Inc., Precision Utility Ltd. and Warren Bitulithic Ltd., Govt. News Release, Dec. 16, 2011].
A worker operating a scoop tram ran over and killed a co-worker. The mine pleaded guilty to several OHS violations and was fined $350,000 [Goldcorp Canada Ltd., Govt. News Release, Oct. 11, 2012].
A worker fell from a cement pier while dismantling a guardrail system, suffering head and leg injuries. Neither he nor three co-workers had any fall protection. There was also a lack of equipment for each worker and proper care and inspection of existing safety equipment. And the onsite supervisor was unqualified. The court fined the constructor $75,000 and the worker’s employer $215,000 for various safety violations. It also fined a company director $10,000 for failing to ensure both companies complied with the OHS law [Bélanger Construction (1981) Inc., R.M. Bélanger Ltd. and Ronald Bélanger, Govt. News Release, Aug. 16, 2012].
A concrete panel collapsed on top of a worker, killing him. The company president pleaded guilty to failing, as a supervisor, to take reasonable steps to ensure workers followed an engineered procedure and wore fall protection. The court fined him $30,000 [Barry Wood, Govt. News Release, July 12, 2012].
Two migrant farm workers were overcome by fumes and later died. A supervisor pleaded guilty to one OHS violation and was fined $22,500 [Brandon Weber, the Canadian Press, Jan. 11, 2012].
3. $17,000—Company Owner
During inspections of a marble and granite manufacturing company, inspectors issued several OHS orders to the owner. The owner failed to comply with15 of these orders. The court convicted the owner of failing to comply with an order and fined him $17,000 [Waldemar Kozuchowski, Govt. News Release, Nov. 8, 2011].
A crane’s boom pinned a worker against the truck’s control panel, fatally crushing him. The supervisor had left the crane’s hydraulics engaged and the truck’s engine running. He pleaded guilty and was fined $15,000 [Delta Truck Equipment and Phillip Hutton, Govt. News Release, Dec. 7, 2011].
A worker was removing conductors from an electrical panel when a bare conductor touched the side of the panel, causing an arc flash. He sustained serious electrical burns. A supervisor was convicted of a lockout violation and fined $11,000 [ThyssenKrupp Industrial Services Canada Inc. and Don Hearn Jr., Govt. News Release, Nov. 22, 2011].
Due Diligence Defence Fails for Lack of a Written Policy & Training
A worker removed a fence guarding the back of an induction hardener to troubleshoot a leak and was seriously injured by an electrical shock. The employer was charged with failing to provide the worker with sufficient instruction on troubleshooting a leak. The company argued that the worker didn’t use a spotter as required by his training. But the court found that its training as to the use of a spotter was unclear. Given the amount of troubleshooting done in the workplace, due diligence required the employer to develop a written policy on troubleshooting and a related training program. So the court convicted the employer [Ontario (Ministry of Labour) v. Linamar Holdings Inc.,  O.J. No. 2159, May 7, 2012].
Employer Doesn’t Need JHSC’s Consent to Require Use of PPE
An employer unilaterally required workers to wear chin straps attached to safety headgear. The union argued that the employer can only introduce PPE that’s been approved by the JHSC or is required by law, which the chin straps aren’t. An arbitrator ruled that, under the OHS law and the collective agreement, the employer had the authority to require the use of PPE without the JHSC’s consent. The union’s position was inconsistent with the employer’s duties under the OSH law [Gerdau Ameristeel (Whitby Plant) v. United Steelworkers, Local 6571,  CanLII 41114 (ON LA), July 19, 2012].
Crane Operator’s Disciplinary Record and Conduct Justified His Firing
A crane operator told his supervisor that he wouldn’t lift a box that didn’t have a load capacity rating on it. The supervisor said the load was safe to lift and did so himself. The operator reported this conversation to the MOL. The next day, he raised an issue about a co-worker and was unhappy with how the supervisor handled it, walking out on a meeting. The following day, the supervisor wrote up the operator for improper use of a spreader bar. After a meeting about this infraction, the operator was fired. He claimed he was fired for raising safety issues. The arbitrator upheld his termination, ruling there was no reprisal. The operator has a serious disciplinary record. His dishonesty in the employer’s investigation, insubordination, unsafe use of the spreader bar and lack of remorse were serious culminating incidents that justified his firing [National Steel Car Ltd. v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, Local 7135,  CanLII 25292 (ON LA), April 30, 2012].
Convictions of Engineer & Company for Bridge Collapse Overturned on Appeal
A company that provided the design plans and structural components for a support structure holding up a bridge during its construction and the engineer who created these plans were convicted of OHS violations after the bridge collapsed, seriously injuring several workers. But the appeals court overturned their convictions and dismissed the charges against them. The bridge collapse was caused by the failure of falsework. However, there were two falsework systems supporting it and the Crown didn’t prove that the collapse was attributable only or primarily to the system designed by the defendants [Ontario (Ministry of Labour) v. EFCO Canada Co.,  O.J. No. 134, Jan. 13, 2012].
Store Manager’s Failure to Stop Safety Infractions Didn’t Justify His Firing
A wheelchair-bound worker had a co-worker lift him up by an order picker truck to the store’s second floor and bring him back down the same way, in violation of the store’s safety rules. After an investigation, the assistant store manager was fired for failing to prevent the lifts from occurring. The manager knew what the men planned. Although he didn’t give them permission, he also didn’t order them not to go through with their plan. But while his misconduct was serious, it didn’t warrant his termination, concluded the court. His performance reviews were good and he had no disciplinary record. So it ordered the store to pay the manager the equivalent of 10 months’ salary [Barton v. Rona Ontario Inc.,  ONSC 3809 (CanLII), Aug. 3, 2012].
Informal Process Led to Injury Accommodation Failure
After a warehouse worker injured his back, his employer reassigned him to modified duties. But the worker said these duties exceeded his functional limits. The employer later gave him a RTW plan to which he flatly objected. When he didn’t show up for his scheduled shift under that plan, it fired him. The worker filed a disability discrimination complaint. The Human Rights Tribunal found that although the employer tried to accommodate the worker, it failed by assigning him to modified duties that he couldn’t physically do. The Tribunal criticized the employer’s informal accommodation process, noting that a formal protocol was needed. But the Tribunal also ruled that the worker wasn’t fired in reprisal for his injury but for categorically rejecting the reasonable return to work plan [Lagana v. Saputo Dairy Products Canada G.P.,  O.H.R.T.D. No. 1431, July 25, 2012].
Ok to Fire Quick-Tempered Worker Who Threw Things at Co-Workers
A worker got angry when a co-worker asked him to switch machines. The co-worker was talking to a colleague about the worker’s refusal to switch when he threw a metal pipe at them. No one was hit. A supervisor told the worker he was suspended pending an investigation. The worker got mad and behaved aggressively, throwing his gloves and arm sleeves in the supervisor’s direction before storming out. He was fired. An arbitrator upheld the termination, ruling that the worker had a quick temper, failed to complete anger management counselling and he didn’t apologize or express remorse [Walker Exhausts v. USW (Local 2894),  CanLII 42290 (ON LA), July 19, 2012].
Charges in Wall Collapse Dismissed Against Engineer & Architect but Not City
A 14-year-old girl was killed when a concrete block wall in the women’s washroom at a city park collapsed. The city, an architect and an engineer were charged with OHS violations. The defendants asked the court to dismiss the charges because they were filed too late. The court dismissed the charges against the architect and engineer, but refused to dismiss the charge against the city, which related to the city’s continual duty to maintain a safe workplace by ensuring a wall could support all loads to which it may be subjected [R. v. Corporation (City of Guelph),  ONCJ 251 (CanLII), April 20, 2012].
Arbitrator: Injured Worker Must Honestly Assist in Return to Work Effort
A worker injured her arm on the job. When she returned to work, at various times she was offered and agreed to various kinds of modified work. The company eventually concluded that it could no longer offer her the modified work she requested. The union filed a grievance, claiming the company had violated its accommodation duty. The arbitrator ruled that the company had taken reasonable steps to accommodate the worker. But she misled the company as to her physical abilities and didn’t make a “reasonable and honest effort” to facilitate her return to work [Banterer Automotive Canada Corporation v. National Automotive, Aerospace, Transportation, and General Workers’ Union of Canada, Local 1285,  CanLII 47961 (ON LA), Aug. 14, 2012].
OHS Charges Against Fire Department Dismissed
When volunteer firefighters responded to a restaurant fire, a woman said her boyfriend was trapped in the apartment upstairs. So two firefighters went inside. One of them “lost air.” They were unable to get out and had to be rescued. The MOL charged the department with three OHS violations under the general duty clause. The defence asked the court to dismiss the charges. The court agreed that there was no evidence to support two of the charges and dismissed them [R. v. Meaford and District Fire Department, Court File No.: County of Grey 1060-999-10-396, Feb. 23, 2012]. After hearing evidence, it later dismissed the third charge, too.
Flour Mill Accommodated Addicted Worker to Point of Undue Hardship
A flour mill fired a worker for being absent without approval and failing to provide adequate medical information. At the time, he was addicted to drugs and alcohol and thus disabled. So the union challenged the termination. The arbitrator ruled that the mill had fulfilled its duty to accommodate the worker and any further accommodation would be an undue hardship. The mill had given him leaves of absence so he could go into rehab. But he always relapsed. And there was no evidence to suggest that this time would be any different. Plus, the mill’s safety concerns as to having a high worker in the workplace were reasonable [Dover Flour Mills v. United Food and Commercial Workers Canada, Local 175,  CanLII 1234 (ON LA), Jan. 15, 2012].
Worker Fired after Driving Company Truck Without Permission & While Drunk
A worker drove a company vehicle without permission and while drunk on the way back to the workplace from a client visit. He was responsible for a serious accident that totalled the truck and left him with serious injuries. The company fired him for cause. The worker had signed the employee handbook, which barred the consumption of alcohol off premises while conducting business. Although he’d been an employee for 23 years, he’d engaged in serious and criminal misconduct in the course of his employment. So the company was entitled to fire him [Dziecielski v. Lighting Dimensions Inc.,  O.J. No. 1305, March 22, 2012].
Failure to Provide Anti-Fatigue Mat Was an OHS Violation
Supermarket workers who manned the self-scan stations requested an anti-fatigue mat to stand on while working. The supermarket contends that the workers aren’t supposed to stand at the self-scan desk; they’re supposed to be moving around and thus the presence of an anti-fatigue mat would give the impression the position’s stationary. An arbitrator ruled that having an anti-fatigue mat is a reasonable precaution for the protection of the workers’ health and by not providing one, the supermarket was violating its duties under the OHS law [Loblaws Supermarkets Ltd. v. United Food and Commercial Workers Union, Local 1000A,  CanLII 77390 (ON LA), Nov. 28, 2011].
Arbitrator Reinstates Worker Caught Drunk Driving Company Vehicle
A worker driving a city vehicle got into an accident and was arrested for driving while impaired. The city fired him. An arbitrator ruled that, based on all of the circumstances—including the worker’s conduct before and after he was fired—termination was excessive. The worker, an admitted alcoholic, had pleaded guilty to the criminal charges and was seeking treatment for his addiction. The arbitrator ordered his reinstatement on certain conditions, including that he not drink alcohol, take tests proving he was abstaining, continue in his treatment program and join AA [Hamilton (City) v. Canadian Union of Public Employees, Local 5167,  CanLII 73195 (ON LA), Nov. 7, 2011].
OK to Fire Worker for Using Company Equipment to Buy Pot while Working
A worker was arrested on the job for possessing marijuana. During the employer’s investigation, the worker admitted smoking marijuana daily during work hours and using a city truck to go to the location where he’d bought the pot. He also claimed he was addicted to marijuana. The city fired him. The union argued disability discrimination. The arbitrator concluded that, based on all of the evidence, the worker didn’t prove that he had a drug addiction. And given that he was purchasing drugs while working and had been operating the employer’s equipment while apparently under the influence of marijuana—thus endangering his coworkers and the public—termination was justified [City of Ottawa v. Ottawa-Carleton Public Employees Union, Local 503 (Lavoie Grievance),  O.L.A.A. No. 582, Dec. 7, 2011].
Arbitrator Imposes One Month Suspension for Lockout Infraction
A company fired a worker for failing to lock out the electrical system on which he was working and not using the specialized equipment provided for such work. The union argued that termination was inappropriate. And the arbitrator agreed. The worker had two prior infractions. But he’d worked as an electrician for 23 years with an otherwise clean record. So although this offence was serious, the arbitrator ruled that a one month suspension without pay was more appropriate [Alberici Construction Ltd. v. Electrical Workers, Local 353 (Ierullo Grievance),  O.L.A.A. No. 588, Dec. 9, 2011].
Five Day Suspension Justified for Threatening to Kill Foreman Twice
A worker was suspended for five days for threatening to kill his foreman—twice. The union challenged the suspension as excessive. The Labour Relations Board disagreed. The threat wasn’t a joke. The worker was “enraged” at the time he made it. And he never apologized or took responsibility for his actions. Thus, a five day suspension was warranted, conclude the Board [Universal Workers Union (Labourers’ International Union of North America, Local 183 v. Teston Pipelines Ltd.,  CanLII 78812 (ON LRB), Dec. 2, 2011].
School Board Hit with $275,000 Fine for Student’s Death in Explosion
A high school student was cutting a barrel with a hand grinder when it exploded, killing him. The MOL found that the school board didn’t have adequate review and assessment procedures in place to ensure hot work on drums or containers was carried out safely. The board pleaded guilty to failing, as an employer, to provide information, instruction and supervision to the student’s teacher on safe work practices and recognition of hazards. It was fined $275,000 [Ottawa Catholic District School Board, Govt. News Release, Aug. 16, 2012].
Constructor Fined $160,000 after Worker Falls to Death at Construction Site
A worker fell about 10 meters through an opening in a concrete slab and died. The opening’s protective floor covering, which was unmarked and unsecured, had been removed before the worker fell through. The constructor pleaded guilty to a safety offence as to the floor covering and was fined $160,000 [Res 2000 Structures Inc., Govt. News Release, April 4, 2012].
Worker’s Electrical Shock & Burns Results in $150,000 Fine
A worker trying to determine the cause of a leak in a machine opened the cage surrounding the machine and entered the enclosed area, which contained exposed parts that were electrically charged. His head came into contact with a charged part, causing electrical shock and burns. The manufacturer was convicted of safety offences and fined $150,000 [Linamar Holdings Inc., Govt. News Release, Aug. 31, 2012].
Waste Management Company Fined $150,000 for Not Training Temporary Worker
A temporary worker was assigned to a waste collection route and told to take recyclable material from the curb and put it into a truck. He got out of the truck while it was still moving and the truck ran over his foot. The waste management company had safety procedures that barred workers from exiting a moving vehicle but didn’t properly train the temporary worker on these procedures. The company was found guilty of failing to provide information, instruction and supervision to the worker and fined $150,000 [BFI Canada Inc., Govt. News Release, Nov. 21, 2011].
Worker’s Fatal Fall Results in $130,000 Fine
A maintenance worker was working on a sprinkler system from a ladder on a platform about five meters high. A supervisor was holding the ladder. When a blast of water came through the sprinkler, the worker lost balance and fell to the concrete floor. He died from his injuries. The company and supervisor pleaded guilty to failing to ensure that the worker was wearing a fall arrest system. The court fined the company $125,000 and the supervisor $5,000 [New Forest Paper Mills LP and Morteza Alemi, Govt. News Release, Oct. 18, 2011].
Company Fined $130,000 after Worker Suffers Head Injury
When a crew unscrewed a hydraulic hose that was connected to the accumulator of a tunnel boring machine, a jet of hydraulic oil hit a worker in the face and neck. He fell and suffered head injuries. The MOL found that the company had failed to ensure the pressure inside the accumulator’s gas compartment was adjusted to atmospheric pressure before a hydraulic fitting was removed. The court fined it $130,000 [Caterpillar Tunneling Canada Corp., Govt. News Release, Dec. 23, 2011].
Steel Manufacturer Fined $120,000 for Guarding Violation
A worker at a steel manufacturer’s factory was standing near the back of a mill when a section of the mill was moved into place using a rack and pinion drive system. His leg was pinched between a moving rack and the mill and broken. The manufacturer pleaded guilty to a guarding violation. The court fined it $120,000 [Welded Tube of Canada Ltd., Govt. News Release, April 26, 2012].
Contractor & Owner/Supervisor Fined $100,000 for Roofer’s Injuries
While moving a bucket of tar at a roofing project, a roofer accidentally stepped off the roof and fell to the ground. The bucket of tar overturned, spilling hot tar on him. He broke multiple bones and suffered third degree burns. The MOL found that there was no fall protection at the project and workers hadn’t been trained in fall protection. In addition, the injured worker wasn’t wearing appropriate clothing for work with hot tar. The contractor pleaded guilty to fall protection violations and failing to ensure workers wore appropriate PPE for work with hot tar. The contractor’s owner—and supervisor at the time of the incident—pleaded guilty to failing to ensure workers were adequately protected by a guardrail system. The court fined the contractor $90,000 and the owner/supervisor $10,000 [King Roofing & Aluminum Contractors Inc. and Joe Scarna, Govt. News Release, July 18, 2012].
Tire Company & President Fined $85,000 for Worker’s Crushing Death
A worker replacing a tire on an excavator used two jacks to lift its rear, with at least one jack on a wooden block. There were no other stands supporting the vehicle. While he was under the excavator, it tipped off the jacks, fatally crushing him. The tire company and its president pleaded guilty to failing, as an employer and supervisor respectively, to ensure that the excavator was securely and solidly blocked to prevent it from moving or falling on the worker. The court fined the company $75,000 and the president $10,000 [Holmes Tire Inc. and Michael Holmes, Govt. News Release, Aug. 14, 2012].
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