Year End Briefing: Ontario 2018 OHS Year In Review
Regime change was the top story of the year. As 2018 began, the MOL unveiled plans to hire 175 new inspectors. In February, it outlined a proposed regulatory overhaul of Ontario’s long neglected Industrial Establishments Regs.
But everything changed on June 7 when the Progressive Conservatives defeated the Liberal government. Although 75 of the new inspectors were already in place, the remaining 100 were never hired. And the aggressive plan to modernize the Industrial Establishments Regs. was reduced to a few minor revisions to guardrails requirements.
2018 OHS LEGISLATIVE & REGULATORY HIGHLIGHTS
January 1: Increased OHS penalties and incident reporting requirements under erstwhile Bill 177 take effect.
January 13: MOL issues guidance banning employers from making workers wear high heels as a PPE violation (under OHS Act, Sec. 25.1).
February 6: MOL proposes significant revisions designed to modernize and bring OHS Industrial Establishments Regs. into line with rules pertaining to other industries covering fall protection, traffic safety, storage rack standards and eyewash stations.
April 6: Public comments on MOL’s proposed OHS Ind. Est. Regs. close.
May 4: Annual changes to OELs include not just the usual ACGIH adjustments but also fundamental changes to the OEL process.
June 7: Progressive Conservatives defeat Liberals in provincial election.
August 29: MOL updated its guidance on how employers should report workplace incidents and structural hazards under OHS laws.
October 26: Fragment from MOL’s February OHS Ind. Est. Regs. proposal affecting when guardrails are not required takes effect. None of the other proposed regulatory changes are included or even mentioned.
THE YEAR IN OHS ENFORCEMENT
As usual, Ontario had way more OHS prosecutions and higher fines than any other jurisdiction. Through December 6, the MOL reported 18 fines of at least six-figures, including one for $1.3 million. To put that into perspective, consider that the province with the second highest six-figure fine rate, Sask., handed out just 4.
Top 5 OHS Fines Reported in Ontario in 2018 (thru Dec. 6)
|$1.3 million||First Nickel (now bankrupt)||Two workers killed by falling material at Lockerby Mine in Chelmsford in accident caused by seismic activity||Failure to ensure the mine was free of accumulations or water flow that could endanger workers, among other offences|
|$325K||Coco Paving Inc.||Welder crushed to death by steel casing that rolled while being moved by a forklift||Not specified|
|$175K||Dematic Limited||Warehouse worker installing a conveyor system is killed after getting pinned between work platform guardrail and a steel structure||Failure to ensure that all vehicles, machinery, equipment and tools were used in accordance with operating manuals|
|$170K||Walker Aggregates Inc.||Metal bar quarry worker is using to remove ice buildup on conveyor pulley gets caught in pinch point and is pulled into machine along with the worker, causing fatal head injuries||Failure to ensure conveyor was properly de-energized and its prime power source locked out during servicing|
|$165K||K-Line Maintenance & Construction Ltd.||Worker on utility construction project killed when a boom became activated and made contact with live overhead electrical lines||Failure, as a constructor, to ensure that a designated signaller was in place to warn the operator each time any part of the vehicle or equipment approached 3 meters from an energized overhead electrical conductor|
THE YEAR IN WORKERS’ COMPENSATION
The big stories in workers’ comp were the taming of the operating deficit and resulting lower rates and implementation of a new WSIB policy making it easier for workers to get mental stress benefits.
January 1: New WSIB Policy 15-03-14 takes effect providing for coverage of DSM-recognized chronic mental stress disorders caused by substantial work-related stressors, including bullying and harassment that are properly diagnosed.
January 1: WSIB begins indexing all workers’ comp benefits to using the same factor, the Consumer Price Index, applied to the benefit amount payable rather than on the basis of a worker’s gross pre-injury earnings.
July 1: Three new cancers are added to the list deemed to be work-related when suffered by firefighters with specific minimum years of service, including Primary-site ovarian cancer (minimum 10 years), Primary-site cervical cancer (10 years), and Primary-site penile cancer (10 years).
July 25: WSIB publishes a list of business activities previously classified under Class G (Construction) that are being moved to a new class (or to a different group within Class G) starting Jan. 1, 2019.
August: WSIB announces that Schedule 2 employers will get a one-time credit adjustment due to the disparity between the actual 2017 provincial administration rate (29.73%) and provisional rate (35.5%).
September: With the Unfunded Liability eliminated, the WSIB announces a 29.8% cut in Schedule 1 workers’ comp rates from $2.35 to $1.65 per $100.
Ontario 2019 Workers’ Comp Rates
|2019 Average Assessment (per $100 assessable payroll)||2019 Maximum Assessable Earnings||2018 Average Assessment (per $100 assessable payroll)||2018 Maximum Assessable Earnings||2019 Filing Deadline|
TOP 5 OHS CASES
Here’s a summary of what OHSI voted the 5 most significant OHS cases decided in Ontario in 2018.
- Metron Construction Project Manager Sent to Jail for C-45 Criminal Negligence
On Christmas Eve 2009, a swing stage collapsed at a Toronto apartment building project run by Metron Construction sending 5 workers to the ground. Only one survived the 13-storey fall. The safety violations were so egregious that the Crown laid criminal charges under Bill C-45. One of the individuals prosecuted, the project manager, was convicted of 4 counts of criminal negligence and sentenced to 3.5 years in jail for allowing 7 workers to board the swing stage knowing that it was creaky and that there were lifelines for only 2 of the men. The manager appealed claiming, among other things, that the victims’ own negligence contributed to the incident. But the Ontario Court of Appeal would have none of it upholding both the convictions and the sentence [R. v. Kazenelson, 2018 ONCA 77 (CanLII), Jan. 30, 2018].
- Contractor Used Due Diligence to Prevent Dump Truck Death
A key due diligence ruling came down in the form of a case in which a bulldozer operator was killed after being run over by a dump truck moving slowly in reverse. The employer admitted that a dedicated signaller wasn’t in place to assist the driver and steps weren’t taken to ensure the victim was in the driver’s view as required by OHS laws but claimed due diligence. We distributed and regularly monitored a traffic safety policy incorporating the required signalling procedures, it argued, and it wasn’t our fault those procedures weren’t followed. The court agreed. The evidence was thin but enough to show that the victim, who happened to be the driver’s supervisor, saw that the driver wasn’t following the procedure but didn’t stop him before he backed up. The victim also could and should have put himself in the driver’s full view but didn’t so. He had the necessary training but his judgment may have been clouded by the cannabis found in his body during the autopsy. So in a very close case, the court found that the employer had done just enough to squeak by on due diligence [Ontario (Ministry of Labour) v. 614128 Ontario Ltd. (Trisan Construction), 2018 ONCJ 168 (CanLII), March 14, 2018].
- 23-Month Delay Violates Defendants’ Right to Speedy OHS Trial
This complex case began in June 2015 with the unfortunate death of a mine worker by cyanide poisoning. After a lengthy investigation, the defendants were charged with both OHS and criminal violations under C-45 in May 2016. A series of procedural delays later, the criminal charges were finally resolved by August 2017. But the OHS case hadn’t yet begun. Enough is enough, exclaimed the defendants claiming their Charter rights to a speedy trial had been violated. Rule: A delay is presumptively unreasonable when it hits 18 months. To overcome the presumption and justify the delay, the Crown must show that the case is complex and that it implemented a concrete plan to minimize the delay caused by the complexity. Applying these principles, the trial court calculated the overall delay in this case as 23 months and found that while the case was complex, the Crown didn’t come up with the required plan to minimize the delay. The Court of Appeal said the trial court’s ruling was entitled to “great deference” and reasonable and refused to overturn it [R. v. Nugent, Guillemette and Buckingham, 2018 ONSC 3546 (CanLII), June 8, 2018].
- Hospital Can’t Make Unvaccinated Nurses Wear Masks for Flu Protection
A hospital unilaterally adopted a Vaccinate or Mask Policy requiring nurses and other workers who don’t get the annual flu vaccine to wear surgical masks in areas where patients are present during flu season. While acknowledging that patient safety is paramount, the arbitrator struck down the policy as unreasonable and in violation of the collective agreement right of nurses to refuse to be vaccinated. The hospital didn’t offer “persuasive evidence” showing that unvaccinated workers posed flu transmission risks to patients or that use of surgical masks prevent those risks, according to the arbitrator [St. Michael’s Hospital v Ontario Nurses’ Association, 2018 CanLII 82519 (ON LA), Sept. 6, 2018].
- Positive Test Doesn’t Prove Employee Smoked Marijuana at Work
After testing positive for marijuana, an employee vigorously denied smoking at work attributing the test results to THC left in his system from his legal home use of medical marijuana for PTSD. The PTSD explanation was later revealed to be a lie; and his testimony in the hearing came across as “self-serving and unreliable.” But in spite of all this, the arbitrator found no just cause to terminate. The company policy banned use at work and there was no proof of when and where the use actually did take place. None of the witnesses who claimed they saw him smoking in a particular building were able to confirm that they smelled pot in that location. Added to the notorious inability of marijuana testing to detect current impairment, it was more probable than not that he smoked the pot at home, the arbitrator concluded [Bombardier Transportation (Thunder Bay Plant) v Unifor , Local 1075, 2018 CanLII 25604 (ON LA), March 8, 2018].
WHAT TO EXPECT IN 2019
As of this writing, there’s no major OHS legislation in the pipeline. And if any is proposed, it will probably be aimed at repealing previous changes in the interest of promoting the PC government’s agenda of cutting red tape and making Ontario businesses more competitive. One possibility is repeal of the new OHS penalty increases and restoration of the pre-Bill 177 maximums. Although the government hasn’t said anything on the issue, this is the same modus operandi it used in repealing the Employment Standards Act penalty increases adopted by its predecessor under Bill 148. So, don’t be shocked if the same approach is applied to OHS laws.
One minor piece of legislation in the pipeline to look out for is Bill 10 which would require the Fire Marshall to develop new safety training requirements for firefighters and firefighter trainees in rescue and emergency services.
It’s the regulatory side where the real mystery lies. The question: Whatever happened to the sweeping OHS Industrial Establishments Regs. changes? Are the new guardrails rules drawn from the proposal the end of the initiative? Or will other bits of the plan be implemented? Stay tuned.