Year-End Compliance Briefing: Saskatchewan 2018 OHS Year In Review
The biggest story in Saskatchewan compliance this year was the surge in the volume and especially the dollar amount of OHS fines. With a month still left, there have already been 4 six-figure fines in 2018, most of any province except Ontario.
Top 5 OHS Fines Reported in Sask. in 2018 (thru Dec. 6)
|$490K||Agrium Inc.||Potash mine worker seriously injured after getting hit in the stomach by a conveyor belt cable that wasn’t secured||Failure as an employer to provide and maintain plant, systems of work and working environments ensuring, as far as reasonably practicable, workers’ health, safety and welfare, resulting in a worker’s death|
|$420K||Shercom Industries||Worker killed after his hand and arm get caught in shredder conveyor belt pulley||Failure as an employer to provide and maintain plant, systems of work and working environments ensuring, as far as reasonably practicable, workers’ health, safety and welfare, resulting in a worker’s death|
|$140K||Brad Hammond Construction Ltd.||Worker paralyzed after falling from roof||Failure as an employer to ensure use of fall protection system by workers at risk of falling 3 metres or more|
|$100K||Associated Mining Construction, Inc.||Worker suffers serious injuries after a structure tips over and conks him in the head||Failure as an employer to ensure workers are informed of associated risks and trained in safe use of machines|
|$100K||324007 Alberta Ltd., operating as Heartland Livestock Services||Cattle worker suffers serious facial injuries after being hit in the face by a metal gate while trying to get a heifer into a holding pen||Failure as an employer to provide and maintain plant, systems of work and working environments ensuring, as far as reasonably practicable, workers’ health, safety and welfare, resulting in a worker’s death|
|$80K July||Carmont Construction Ltd.||Worker killed after getting hit in the head by a sound panel that gave way and slid off the deck of a trailer||Failure as an employer to fail to ensure safe use, handling and transport of sound barrier panels|
|$80K||A.I.M. Agri/Installations & Maintenance Corp.||Worker seriously injures his neck and back after being hit by a piece of falling sheet metal||Failure as an employer to ensure safe design, construction, installation, maintenance and operation of a hoist, crane and lifting device, including all rigging|
2018 Legislative & Regulatory Highlights
February: The WCB modifies its policy (POL & PRO 18/2017) for setting the wage base of workers who suffer a recurrence of a work injury after returning to work, highlighted by use of a recurrent wage base based on whether worker returned long enough to demonstrate ability to manage full requirements of employment and a new procedure for determining if current symptoms are a recurrence or a new injury.
June: The WCB issues a new 4-year Strategic Operating Plan whose objectives include cutting total work injuries and fatalities 30% by and ensuring 95% return to work success by Dec. 31, 2021.
September: New privacy laws give victims of “revenge porn” and other acts in which a third party publishes naked or intimate images of them without consent the right to sue for money damages.
October: WCB announces that after 2017’s 15-year low, workplace fatalities have resurged at 37. And the 2018 numbers count only fatalities thru Aug. 31.
November: Sask. becomes the first province to table legislation (Bill 141, aka “Clare’s Law” in honour of Clare Wood, a UK woman murdered by her partner with a hidden violent past) allowing the police to disclose a person’s violent or abusive history to intimate partners who may be in danger.
December: Government introduces legislation adding 6 more cancers to the list of cancers presumed work-related under workers’ comp when suffered by firefighters.
December: Government implements a 12-month safety monitoring program for all new semi drivers.
Saskatchewan 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 3 CASES
Here’s a summary of what OHSI voted the 3 most significant OHS cases decided in Saskatchewan in 2018.
- Employer Used Due Diligence to Prevent Worker’s Fatal H2S Gas Exposure
While working alone inside an oilfield facility building, a sales rep drawing a liquid product sample is killed by a lethal release of Hydrogen Sulphide gas. The Crown charges the employer with a laundry list of OHS violations but the only one that sticks is failure to furnish the victim an atmosphere supplying respirator. And even that charge fails because the court says the employer showed due diligence. While “imaginable,” the incident wasn’t reasonably foreseeable given that the victim had performed the operation thousands of times without incident. Moreover, the employer took reasonable steps to protect workers from exposure to harmful chemicals including implementing a formal Health and Safety Management System subject to regular audit and review and “never hesitating” to buy safety equipment for workers when needed or requested [R v Nalco Champion, 2018 SKPC 61 (CanLII), Nov. 2, 2018].
Editor’s Note: Although not necessarily wrong, this ruling is somewhat surprising, especially since it involved a fatality. Bet your bottom dollar that the Crown will appeal.
- Vaping while Driving Company Vehicle = Just Cause to Fire, Even for First Offence
An arbitrator ruled that bypassing progressive discipline and firing a worker for vaping medical cannabis while driving a company vehicle on company on company time was justifiable, even though he had a clean disciplinary record. Vaping and driving is a serious safety offence and the fact that it was medicinal in purpose didn’t make the transgression any less dangerous. The employer knew about and had taken steps to accommodate the worker’s use of medical cannabis for his disability. And its insistence that he not operate heavy equipment while using or being impaired was a reasonable condition [Kindersley (Town) v Canadian Union of Public Employees, Local 2740, 2018 CanLII 35597 (SK LA), April 18, 2018].
- Workers’ Comp Bars Sexual Assault but Not Employment Claims
Four female employees who claimed they were sexually assaulted by a floor manager sued their employer for failing to protect them. But before answering the complaint, the employer got the Sask. Workers’ Comp. Board to declare that any claims for personal injury suffered as a result of the manager’s behaviour were work-related and thus barred by workers’ comp. As a result, the court struck the tort law claims from the complaint. But it still let the employees go ahead with their constructive dismissal claim and hold the company director for joint and several liability for their unpaid wages [Rowley v Can‑West Agencies Ltd., 2018 SKQB 224 (CanLII), Aug. 20, 2018].
Editor’s Note: Joint and several liability would put the director personally on the hook for any unpaid wages awarded. Practical impact: The employees will have much greater leverage in settlement negotiations.
WHAT TO EXPECT IN 2019
Effective March 15, 2019, semi drivers seeking a Class 1 commercial licence in Saskatchewan will need a minimum of 121.5 hours of training. The new driver training rules are a response to the Humboldt Broncos tragedy in which a truck collided with a highway bus carrying members of a junior hockey team, killing 16 and injuring 13.
Also expect the province to adopt new OHS regulations dealing with workplace impairment. Public consultations on the subject were held last summer in anticipation of cannabis legalization. Look for a proposal based on the public feedback by early spring.