The corporation repaid the bonuses, and then some, to the US government as part of a civil settlement over the false claims and contract fraud in early 2009.  Cardin proceeded to trial. 

Cardin was convicted after a November 2012 jury trial of falsifying records. The court found that more than 80 injuries, involving broken bones, torn ligaments, and other injuries were not properly reported and employees were denied medical treatment or received delayed medical treatment as a result of the Safety Manager’s actions.  He reportedly denied intentionally misclassifying the injuries and said he did not know safety bonuses were tied to his injury reports.  Investigators found emails confirming the contrary.  The Safety Manger’s sentence took into account a finding that he had obstructed the course of justice in the trial by denying his actions, despite evidence ot the contrary.  Prosecutors commented after the sentencing that the Safety Manager’s practices:

• affected the safety of the work environment of nuclear sites,
• resulted in employees becoming more reluctant to report injuries, employers failing to address safety issues at work sites, and
• employees working through medical conditions that created risks of additional injuries to themselves and others.

The employer in the case of Tonolli Canada Limited v. United Steelworkers, and its Local 9042 is in the business of recycling lead acid batteries.  Given that lead is a designated substance under Ontario’s Occupational Health and Safety Act, the company is required to have a Designated Substance Control Program in place.  Among other matters, the program requires employees to wear respirators to protect them from inhaling lead dust.  In order for the respirators to function properly, a clean seal is required such that employees must be sufficiently clean shaven to facilitate the skin seal of the mask.

The company terminated the employment of a 37-year employee, Frank Marsiglia, for just cause following two incidents in which Mr. Marsiglia failed to report to work clean shaven and failed to wear his hard hat, safety glasses and a respirator (“PPE”), despite prior warnings.  While the company conceded that these incidents alone would likely not suffice to establish just cause for termination, it pointed to Mr. Marsiglia’s rather extensive employment and disciplinary record to support its position.

Specifically, in the one year period prior to his termination of employment for just cause, Mr. Marsiglia had 7 instances of discipline on his record, including a number of warnings about his failure to wear PPE and a 25-day suspension following a number of serious safety incidents – including the unsafe operation of a loader, a failure to report a collision and sleeping in a Bobcat during work time.

The company took the position that Mr. Marsiglia’s repeated safety violations over the one year period amounted to just cause for termination, despite Mr. Marsiglia’s long service. It also pointed to the fact that Mr. Marsiglia was a certified member of the company’s Joint Health and Safety Committee, such that he was well aware of the specific health and safety standards relevant to his performance. The union took the position that while discipline was appropriate, termination for just cause was excessive in light of Mr. Marsiglia’s long service and various other factors.

After considering the evidence, the arbitrator upheld Mr. Marsiglia’s termination for just cause, despite his long service on the basis that Mr. Marsiglia had numerous opportunities to improve on his performance following various instances of discipline and failed to do so for what the arbitrator referred to as “one of the most patient employers I have seen in my more than 25 years as a labour relations adjudicator.”

This case makes it clear that the traditional arbitral approach to long service may give way when the employee misconduct in issue involves serious and repeated safety violations.

Tonolli Canada Limited v. United Steelworkers, and its Local 9042, 2013 CanLII 15108 (ON LA)

Yesterday, the Ontario Court of Appeal reserved judgment in the Crown’s appeal of the $200,000 sentence imposed on Metron in relation to that historic guilty plea. We will continue to monitor the case and report when the Court of Appeal renders its decision.

In the aftermath of the accident, the City of Guelph was charged under section 25(1)(e) of the Occupational Health and Safety Act with failing to ensure that a wall or other part of a workplace was capable of supporting all loads to which it may be subjected, without causing the materials therein to be stressed beyond the allowable unit stresses established under the Building Code Act. In Ontario, OHS charges relating to accidents involving members of the public, clients and students have become more commonplace in recent years.

An OHS Violation Was Not Established
One issue at trial related to the specific charge that had been laid against the City.  While the charge referenced the “allowable unit stresses established under the Building Code Act”, the Building Code Act and the Building Code had abandoned the term “allowable stress units” in 1997 in the wake of a change in engineering philosophy and the introduction of a standard for masonry design by the Canadian Standards Association.  Despite the 1997 change to the Building Code Act and the Building Code, the Occupational Health and Safety Act continued to refer to the concept of “allowable unit stresses” until 2011, when the legislation was finally amended. As a result of all this, the City of Guelph found itself – in 2009 – charged with an offence under health and safety legislation which incorporated a concept – “allowable stress units” – that no longer had any meaning under the Building Code Act or the Building Code.

After considering the arguments, the trial judge found that the wording in section 25 (1)(e) of the Occupational Health and Safety Act had no applicability to the circumstances of the case in that the section – as it read in 2009 – incorporated by reference a standard that did not exist at the time of the design and construction of the public washroom.  The trial judge stated, “[i]t is an inappropriate exercise, in my view, to disregard the technical wording of the section and to draw the conclusion that it is meant to simply suggest that walls in a workplace must be maintained in a safe condition by an employer”.  As a result, the trial judge found that the Crown had not proven the elements of the offence beyond  a reasonable doubt and dismissed the charge. In addition to accepting this argument, the court found that the City had exercised due diligence as it had reasonably relied upon the drawings.  

Changing Tide in the Broad Interpretation of OHS Legislation?
This case continues a welcome trend in recent cases in Ontario, providing some relief to employers who seek to lead defences to OHS charges based on the specific or technical wording contained in various provisions of the Occupational Health and Safety Act and its regulations.    It is true that the legislation is a public welfare statute and is generally to be interpreted in a manner that promotes public health and safety consistent with the purpose of the legislation. However, this guiding principle is not without its limits where adhering to the principle would, in effect, ignore specific wording contained in the legislation or lead to an absurd result. Other recent helpful cases include the Ontario Court of Appeal’s decisions in Ontario (Ministry of Labour) v. Sheehan's Truck Centre Inc. and Blue Mountain Resorts Limited v. Ontario (Labour).

The City of Guelph case is not yet available electronically. Please contact the writer at chall@heenan.ca should you wish to obtain an unreported copy.

According to an agreed statement of facts filed with the court, SSEC Canada Ltd. was contracted by Canadian Natural Resources Limited (CNRL) to build holding tanks at the Horizon Oil Sands Project near Fort McMurray, Alberta.  SSEC Canada Ltd. recruited 132 Chinese citizens to provide the necessary labour, but their entry into Canada was delayed and the project fell behind schedule.  In order to address the delay, SSEC Canada Ltd. proposed to assemble the tank walls and roof support structure at the same time, rather than to assemble the roof after the walls as originally planned. The proposal was not certified by an engineer.  CNRL agreed to the proposed change, but amended the contract to require the work to be supervised by its team to ensure quality and safety.  However, SSEC Canada Ltd. began using the new assembly method before CNRL employees arrived to supervise.  Three weeks later on April 24, 2007, a tank roof collapsed when tensioned cables providing stability to the roofing structure snapped in high winds.  Two workers were killed and three other workers received minor injuries.

Following an investigation, 53 charges under Alberta's Occupational Health and Safety Act were laid against SSEC Canada Ltd., CNRL, and another company.  After a lengthy and ultimately unsuccesful challenge to the jurisdiction of the courts, SSEC Canada Ltd. pleaded guilty to three charges in September, 2012.  On January 24, 2013, the company was fined $200,000 and ordered to pay $1.3 million to fund a program to educate foreign workers about their rights under occupational health and safety laws. 

The fine against SSEC Canada Ltd. is one of the largest fines imposed for a workplace accident in Alberta, and it is part of a upward trend in sentencing for serious workplace accidents in Canada.  

The Standard is intended to promote psychological health and safety in the workplace and may require, among other things, employers to implement new policies, procedures, hazard identification, incident investigation and monitoring activities, in addition to all of the existing steps required to develop and manage occupational health and safety (“OHS”) systems.

As we have previously written, the Standard presents challenges for implementation given its complexity; however, it also presents an opportunity for employers to develop policies and procedures beyond existing OHS and human rights requirements. This could assist employers in avoiding or minimizing civil, human rights, OHS and workers’ compensation claims, and grievances arising from psychological injuries or stress suffered in the workplace.

Interested readers are invited to register for our February 21, 2013 seminar on psychological health and safety in the workplace. During the complimentary seminar, part of our Managing the Workplace series, lawyers from our labour and employment law group will discuss the Standard as a part of the growing awareness of psychological health and safety issues in the workplace, and an increasing willingness to compensate workers for workplace psychological injuries.

For more information on the Standard and its implications for your workplace, please contact Shane Todd (stodd@heenan.ca), Cheryl A. Edwards (cedwards@heenan.ca), or Jeremy Warning (jwarning@heenan.ca).

The arbitration in the Suncor matter began on January 2, 2013 after being postponed at the request of local union president, Roland LeFort, for unspecified personal matters before the holidays. The hearing is expected to extend over the next few months.

The case dates back to October 2012, when the union was successful in obtaining an injunction from Alberta’s Courts preventing Suncor from rolling out a new random drug and alcohol testing policy for its employees at its oil sands operations in Fort McMurray. In November 2012, Alberta’s Court of Appeal, in a split decision, upheld the injunction in light of the upcoming arbitration.

The employer, Suncor, is arguing that random drug and alcohol testing for all employees is needed, saying that three of the seven deaths at its operations in Alberta since 2000 involved workers under the influence of alcohol or drugs. The union, on the other hand, is arguing the policy would violate the privacy and dignity of employees, as well as the terms of their collective agreement.

The current landscape

In Canada, random testing of employees in safety sensitive positions remains contentious and will likely be the subject of a challenge if termination of employment results from a positive test.  While there is some authority in Canada to suggest that random “alcohol” testing is permitted in certain unique circumstances, the same cannot be said for random “drug” testing.

Inconsistent rulings by Courts, labour boards and human-rights tribunals across Canada have led to confusion on the law relating to random testing of all employees for the prevention of workplace accidents beyond the “safety sensitive” positions. The Suncor and Irving cases are expected to shed light on the issue.

As the hearing gets underway, we will continue to monitor and blog about any developments. 

_

For further details, see:

Globe and Mail, January 2, 2013 - “Oil sands drug-testing battle reaches critical stage”

Huffington Post, January 3, 2013 – “Suncor Drug Testing: Energy Giant And Union Local 707 Back In Court”

In the case, Dowling v Hamilton-Wentworth Detention Centre, 2012 CanLII 81181, the Detention Center received an anonymous tip that a zip gun (makeshift firearm) was present somewhere in the prison. While the employer implemented a Level II search to remedy the situation, correctional officers believed that given the security threat a Level IV search was more appropriate. When the employer maintained the Level II search, numerous officers refused to carry out their rounds on the basis that their health and safety was endangered. The refusal continued over several days. A Ministry of Labour inspector decided by telephone, without speaking to workers, and then attended in person to deliver the decision, that the officers did not have the statutory right to refuse to work in the circumstances. Workers appealed the decision under section 61 OHSA.

Ordinarily, sections 43(4) and (7) OHSA require the employer and the MOL inspector to investigate a complaint of alleged endangerment. During an investigation, the OHSA provides that the worker is to remain in a safe place. However, the Board ruled that the duty to investigate does not apply when section 43 as a whole is not applicable, under the provisions of sections 43(1) and (3), as there is no right to refuse work. It is clear that section 43 does not apply to certain workers, such as correctional officers, if the health or safety risk complained of is an inherent part of the work, is a normal condition of employment, or if the refusal to work would directly endanger the life, health or safety of another person. The adjudicator found that the possible presence of a zip gun was inherent in the work and a normal condition of a correctional officer’s job.

The Board in Dowling v. Hamilton-Wentworth Detention Centre disagreed with prior jurisprudence on the obligation to investigate to determine the threshold question. A more literal interpretation of section 43 was taken. The Board justified its departure by noting that past jurisprudence did not consider the policy reasons for the inclusion of section 43 OHSA. Public sector employees such as police officers, firefighters, and correctional officers are tasked with the protection of others and ensuring public safety. Their work is more dangerous. Their health and safety is given less protection. The protection of others (the public, other workers) is dependent upon those persons doing their jobs despite the dangers. Any refusal to work would put the lives of others and public safety at risk. There is a limited right to refuse work, even if the work is dangerous, and even if the employer is violating the OHSA. Section 43 work refusal rights do not apply in these situations. The Board adjudicator clearly stated: “I do not mince words: the Legislature would rather a worker in this special category of professions have different health and safety rights than have a  member of the public or someone under their care be hurt”.

Although it was strenuously argued that it is necessary to conduct an investigation into the threshold question of whether an unsafe workplace condition is inherent in work or a normal part of employment, the Board clearly found that there was no statutory requirement to do so. Further, allowing correctional officers, police or firefighters to await the results of an employer or MOL investigation into this question, before resuming their work duties would be contrary to the policy reasons behind section 43. Ultimately, ruled the Board, a correctional officer (or other public sector worker whose right to refuse is limited) can raise a complaint or concern. If they refuse to work when he or she is faced with an unsafe work condition, the gamble is that if the safety concern is inherent in the work or a normal part of employment, the correctional officer could face employment consequences such as disciplinary measures.

For further information about this case or any other occupational health and safety matter, please contact Cheryl Edwards (cedwards@heenan.ca) or Daniel Mayer (dmayer@heenan.ca).

Ontario has been slowly moving forward on those recommendations. Consultation on mandatory training has now commenced.  On December 6, 2012, the Ontario MOL posted a notice of consultation on mandatory health and safety training for all workers and supervisors.  Minimum content requirements from the Dean Panel report have been listed and stakeholders have been asked to provide input into the following:

• Worker awareness training and its content;
• Supervisory awareness training and its content; and
• Accessibility and portability of training records for worker and supervisory training.

Stakeholders have until February 4, 2013 to provide input to the Awareness Training Programs Regulation Project at the MOL. Harkening back to the comments and recommendations of the Dean Panel, stakeholders may wish to keep in mind, for purposes of any input to the MOL, that Dean had:

• Proposed mandatory entry level health and safety training for all workers and supervisors which would be free of charge to workers, supervisors and employers.
• Recommended that appropriate established employer programs providing basic entry level worker training would be grandfathered;
• Recommended mandatory construction worker training – this does not appear to be on the tab le as part of the proposal to introduce mandatory worker training, but this is not entirely clear from the MOL notice;
• Recommended mandatory fall protection training for all workers performing work at heights, and this is also not mentioned in the MOL notice.

It should be noted that the MOL has yet to define the scope of the “supervisor” definition for purposes of training. This raises the question of whether all lead hands or working forepersons will require this training.

We will keep readers informed of the MOL’s progress on mandatory training programs, necessary regulatory changes and the content and timing of those regulations.  Readers with questions can contactl Cheryl Edwards: cedwards@heenan.ca, Jeremy Warning: jwarning@heenan.ca, Kevin MacNeill: kmacneill@heenan.ca or Samantha Seabrook: sseabrook@heenan.ca of our national OHS & Workers’ Compensation Practice Group.

An employee complained that he was not returned to work safely and consequently, faced a loss of work and income. The employee gave sixteen examples to demonstrate that the employer’s responses to his complaints about safety were reprisals. Ultimately, the OLRB dismissed fifteen of the sixteen allegations for failing to disclose a prima facie case of reprisal, sending the sixteenth on to a hearing on the merits.

Employers constantly face the risk of reprisal allegations by employees. However, employers can rest assured that not every response to requests about safety will amount to a prima facie case of reprisal: a threshold is required. An employee must allege the breach of a specific right in the OHSA and establish a nexus between that right and the employer’s alleged acts of reprisal. Disagreements about the duty to accommodate, for example, although related to workplace safety, do not amount to a prima facie case of reprisal.

The law on reprisals, generally speaking, is as follows: Reprisal is any employer action that threatens the job security of, disciplines, imposes a penalty on, or intimidates or coerces an employee for invoking his or her rights under the OHSA. The onus of proof lies with the employer when an employee complains to the OLRB, but only if the employee can demonstrate a prima facie case of reprisal. A prima facie case of reprisal is established when the underlying facts of the allegation, if true and provable, constitute a form of reprisal. For example, employers are required to give employees the requisite information and instruction regarding health and safety in the workplace. A prima facie case of reprisal would be established if an employee alleged that he was threatened with losing his or her job for demanding that the employer comply with the obligation to give the requisite information and instruction.

The OLRB went on to provide a helpful list to employers about what will not constitute a prima facie case of reprisal:

• Sending a letter stating that there is no suitable position for the employee’s medical restrictions and that the employee’s employment will be terminated if he does not participate in the Workplace Safety Insurance Board’s (WSIB) Work Transition program.
• Sending the employee home without pay when he refused to perform modified work. A dispute regarding what constitutes appropriate modified work does not amount to a form of reprisal. 
• Taking the position that the employee should not receive WSIB benefits. An employer has the right to object the employee’s eligibility to WSIB benefits.
• Requiring the employee to complete paperwork following an injury before attending the emergency room.
• Sending an e-mail between management to suggest discussing the employee’s concerns that the modified work is above his medical restrictions.
• Bald assertions that the employer’s physician uttered threats and was intimidating.
• Any action by WSIB personnel will not be considered an act of reprisal by the employer.

In the End, the OLRB found that one of the employee’s allegations constituted a prima facie case of reprisal. The fact that the employee was laid-off for six (6) days after contacting the Ministry of Labour regarding the alleged unsafe work conditions could potentially be a reprisal. The OLRB sent that allegation on to a hearing on the merits.

On Friday, December 7, 2012 the Supreme Court of Canada heard an appeal in the Communications, Energy and Paperworkers Union of Canada (CEP), Local 30 v. Irving Pulp & Paper, Limited case. The employer seeks to have employees undergo random alcohol tests at its mill operations in New Brunswick, to the ire of the union. On Monday, December 10, 2012, a labour arbitration board in Alberta began hearing the CEP’s opposition to Suncor Energy’s attempt to introduce random alcohol and drug testing at its oil sands operations in Fort McMurray for all employees and contractors. (More on this from the CBC: "Companies push for random drug, alcohol testing".)

Generally speaking, the current Canadian law usually restricts such testing to dangerous or safety-sensitive workplaces.  Employers can have policies and practices on employee drugs or alcohol testing so long as they are a bona fide occupational requirement. They can also test employees post-accident or incident where substance abuse may have been a contributing factor.

The Canadian Human Rights Commission (“CHRC”), on the other hand, considers alcohol and drug testing as prima facie discrimination. According to the CHRC’s “Policy on Alcohol and Drug Testing”, past or current alcohol or drug dependence is considered a disability and Canadian law prohibits discrimination on such a basis.

What is being challenged in these two cases is the random testing of employees for the prevention of workplace accidents beyond the “safety sensitive work” context. With Canadian jurisprudence on this aspect of the issue anything but clear, the Irving and Suncor cases are expected to shed some light.

We will continue to monitor and update you on any developments.

We will continue to track the progress of the Standard and to update our readers. In the meantime, for more information on the draft Standard, please see our OHS and Workers' Compensation Management Update, which provides an overview of the proposed Standard.

Mr. Bultje avoided Mr. Tsironis at work the next day, and Mr. Tsironis decided to send a copy of Mr. Bultje’s profanity-laden text message back to him. Mr. Bultje confronted Mr. Tsironis at the entrance to one of the trailers on the site. The trailer was raised off the ground and accessible by five stairs that lead to a platform outside the trailer’s door. While standing on the raised platform, Mr. Bultje yelled at Mr. Tsironis, raised his hands, and tapped Mr. Bultje’s hard hat. Mr. Tsironis responded by pushing Mr. Bultje backward, causing him to lose his balance, and forcing him down the stairs.

Mr. Tsironis’ employment was terminated the next day for violating the employer’s workplace violence policy. The termination letter stated that Mr. Tsironis would not be eligible for reemployment with Hydro One Inc. in any capacity at any work location in Ontario. Mr. Bultje was suspended for two days for violating the employer’s code of conduct and workplace violence policy by being involved in the altercation, failing to report the incident, and sending inappropriate text messages.

Mr. Tsironis filed a grievance challenging his dismissal. The Board found that Mr. Tsironis’ actions were an unplanned reaction to the aggressive confrontation instigated by Mr. Bultje in an inherently dangerous location, but noted that it was equally open to both employees to stop the confrontation or wait until they reached the ground. The Board found that Mr. Tsironis’ actions called for severe discipline because he made physical contact with Mr. Bultje at the top of the stairs where the consequence of the backwards push could have been much worse. Summary dismissal was appropriate because Mr. Tsironis did not apologize. In the absence of an apology and any evidence showing that the Mr. Tsironis and Mr. Bultje had or could reconcile, the Board found that reinstatement would create an undue burden on Hydro One Inc. to keep the two apart to avoid further hostilities. However, the Board found that the permanent prohibition on reemployment was excessive for an altercation that was over quickly, and could be characterized equally as poor management by Mr. Bultje and a lack of judgment by Mr. Tsironis. The Board held that the Mr. Tsironis could be reemployed in the future where he would not be required to work with Mr. Bultje.

Workplace violence is a multifaceted problem and employers have a complex set of often overlapping legal obligations that they must manage. One of the common requirements is that employers must take workplace violence incidents seriously, conduct a full and fair investigation of the incident, and take a considered and proportionate disciplinary response to the incident where warranted.

The new regulations will come into force on January 1, 2013, making Saskatchewan only the second Canadian province to adopt specific regulations intended to protect late-night retail employees. These specific provisions are in addition to existing general obligations to create workplace violence policies, programs, and working alone obligations.

In addition, the following security measures will need to be implemented:

• The development of written safe cash handling procedures;
• The use of video cameras that capture key areas in the workplace, including the cash desk and the outdoor gas pumps;
• The establishment of measures to ensure good visibility in and out of the premises, the placement of signage indicating limited accessibility to cash and valuables and the use of cameras.

Where one employee works alone during late-night hours, the employer must implement a check-in system and a written check-in procedure as well as provide a personal emergency transmitter to be worn by the employee that signals for help when activated.

British Columbia was the first jurisdiction in Canada to enact similar late-night retail safety regulations in 2008. In 2011, they amended the regulations to require the wearing of a personal emergency transmitter by late-night retail workers.

In Ontario, a private member’s bill was introduced to amend the Occupational Health and Safety Act to require employers who engage in the business of selling fuel at service stations to require customers to pay before fuelling.  The amendments also would have required employers to provide training to employees involved in the sale of fuel at service stations and other retailers that sell fuel. It died on the order paper upon prorogation of the Legislature this fall.

The new Standard creates detailed and sweeping measures and systems through which employers are encouraged to assess and ensure the psychological health of employees.   Employers should take note because the Standard broadens traditional workplace health and safety norms by measuring psychological health with reference to extra-workplace factors such as the employee’s ability to cope with the normal stresses of life and to make a contribution to his or her community.   

The Standard presents an opportunity for employers to develop systems to protect and enhance this component of workplace health and safety. This may assist in stemming the ongoing tide of litigation and claims arising from allegations of bullying, violence, stress in the workplace in multiple forms – including wrongful dismissal, workers’ compensation claims, OHS reprisal complaints, and grievances among them.

The Standard will set out optimistic goals and processes for achieving "psychological health and safety" in the workplace. A psychological health and safety system will encompass policies, procedures, hazard identification, incident investigation and monitoring activities, and much more relating to the broadly-defined concept of psychological health and safety under the Standard. 

The Standard presents challenges in that such steps will be voluntary. They will be expected in addition to all existing steps being taken to develop and manage occupational health and safety systems for “traditional” health and safety physical hazards, conditions, and substances. The Standard goes well beyond existing regulatory occupational health and safety regimes which currently require, in various forms in different Canadian jurisdictions, specific steps by employers to proactively prevent and respond to workplace violence and harassment.  Full compliance will involve an extremely complex exercise, although we understand that the CSA will be emphasizing the need for each organization to consider step by step compliiance, or compliance as a journey, with full compliance as the ultimate goal.  

We are of the view that requiring compliance with the Standard will present interesting challenges for OHS regulators should they choose to enforce the Standard through regulatory OHS provisions.  Although compliance with the Standard, as with any CSA standard, is voluntary, it should be noted that numerous CSA Standards have been directly incorporated into OHS legislation across Canada, in which case they are fully enforceable by orders, directions, or prosecution. Right now, it is unknown if any jurisdiction will require compliance with the Standard through a specific statutory requirement. Legislative amendment can be a slow process.  Even if a jurisdiction were inclined to statutorily mandate compliance with the Standard, once it is finalized, it could be some time before a specific requirement becomes law. 

Employers should be reminded of the “general duty” provision that exists within OHS legislation across Canada.  This duty requires employers to generally take every reasonable precaution to ensure health and safety in the workplace.  Though there is some variance in the language of these clauses natonally, they could be used by OHS regulators to require compliance with the Standard without specific legislative change.  If OHS regulators were inclined to enforce the Standard through these clauses, there could be little lag time between the publication of the Standard and a regulatory push to comply with it. Enforcement of the Standard through the general duty clause of OHS legislation may be challenging for regulators, however.  Existing workplace violence and harassment provisions may present legal impediments to the enforcement of the Standard though a general duty provision in that it could be argued that the regulators have already established the reasonable precautions required by enacting specific OHSA requirements for harassment and violence prevention policies and programs.

The more detailed article linked here examines the Standard and its requirements, and a recently-published Action Guide for complying with the Standard. For more information and questions about the Standard, please contact Cheryl A. Edwards cedwards@heenan.ca; Jeremy Warning jwarning@heenan.ca; or Shane Todd stodd@heenan.ca of our national OHS and Workers' Compensation Practice Group. 

• Prevention of workplace injuries and illnesses;
• Development of a provincial occupational health and safety strategy; and
• Any significant changes to funding or service delivery under the Workplace Safety and Insurance Act.

The Prevention Council is composed of four representatives each for labour and employers, one for non-union workers and one for the Workplace Safety and Insurance Board, as well as an occupational health and safety expert. The members of the council are:

• Patrick Dillon, Business Manager and Secretary Treasurer, Provincial Building and Construction Trades Council of Ontario
• Colin Grieve, Occupational Disease Worker Advocate, Hamilton and Ontario Professional Firefighters Associations
• Nancy Hutchison, Secretary Treasurer, Ontario Federation of Labour
• Bryan Neath, Regional Director – Ontario, United Food and Commercial Workers Canada

Non-union worker representative

• Linda Vannucci, Director, Toronto Workers’ Health and Safety Legal Clinic

Employer representatives

• Michael Oxley, President and Chief Financial Officer, DuPont Canada
• Gloria Rajkumar, CEO, SIMAC
• John Sauger, Executive Vice President, Project Management and Construction, Bruce Power
• Roy Slack, President, Cementation Canada Inc.

Occupational health and safety expert

• Graeme Norval, Associate Chair and Undergraduate Coordinator, Department of Chemical Engineering, University of Toronto

WSIB representative

• Susanna Zagar, Chief Strategist, Workplace Safety and Insurance Board

The Prevention Council was scheduled to have its first meeting on September 28, 2012.

While specific next steps for this newly constituted Prevention Council have yet to be made public, we expect that the Prevention Council will begin examining how to further implement recommendations from the Dean Panel Report (see our previous articles on the Dean Panel Report here and here ). In particular, we may see recommendations on training standards and mandatory training requirements for workers, supervisors, and health and safety representatives as the first focus of the Prevention Council. We will continue to keep you updated as more information becomes available.

In our May 2011 Occupational Health and Safety and Worker’s Compensation Newsletter, we reviewed and commented on the Ontario Divisional Courts’ ruling in Blue Mountain Resorts Limited v. Ontario (The Ministry of Labour and The Ontario Labour Relations Board). Today, the Ontario Court of Appeal heard oral argument in the case, a decision that could have significant repercussions on when employers and constructors must report injuries to the Ministry of Labour.  

Five parties participated in the appeal:  Blue Mountain Resort, the Ontario Ministry of Labour, the OLRB, and intervenors Conservation Ontario and the Tourism Industry Association of Ontario (“Tourism Ontario”).  The Resort, Conservation Ontario and Tourism Ontario asserted that the OLRB’s interpretation of the statute had significant practical implications for employers (with just about every “place” in Ontario being a “workplace” for purposes of the Act). They all submitted that a nexus between any given “accident” causing a critical or fatal injury, and the act of working, should be required in order for reporting requirements to be engaged. In response, the Ministry of Labour called on the Court of Appeal to apply a plain and ordinary reading to the provision at issue, thereby sustaining the OLRB’s decision in the case. In the Ministry of Labour’s view, all accidents causing fatal or critical injuries in Ontario workplaces ought to be reported. It argued that it is the Ministry’s role – as regulator – to determine if any given incident is a workplace accident for purposes of the OHSA that ought to be investigated.

The Court of Appeal reserved its decision. The Court noted that it would release its final decision in case as soon as possible.  Stay tuned to Workplace Wire for news of the decision when it is released.

The March 2004 amendments to the Criminal Code, which resulted from the 1992 Westray Mine explosion, were designed to make it easier to prosecute organizations for criminal negligence.  The means and method of proving criminal negligence was broadened such that the actions of a broader group of people could be used to prove an offence.  The revised method of proof requires that: (1) a representative of the organization act, either alone or through the cumulative conduct of multiple representatives, with wanton and reckless disregard for the lives or safety of any person; and (2) that a senior officer markedly depart from the reasonable standard of care expected to prevent the harm caused by the representative(s).  As such, criminal negligence against a corporation is to be proven through a two-step test.

However, Metron was convicted of criminal negligence solely on the actions of a site supervisor.   This effectively collapsed the two-step test into a single step because the site supervisor was treated as both the representative and senior officer.  In so doing, the actions of the site supervisor displaced a number of positive steps taken by Metron and its upper management before the accident.  Further, the agreed facts suggest that the criminally negligence behaviour of the site supervisor may have been rogue actions that largely occurred over a very brief period of time.

Although Metron was a guilty plea and the conviction based on agreed facts - which may not represent the totality of the evidence being considered by Metron - the conviction, which was tacitly endorsed by the court, should give employers and other organizations pause.  That is because, in contrast to proceedings under health and safety legislation, there is no due diligence defence to criminal negligence.  Consequently, Metron suggests that, should a person be injured or killed by the criminally negligent behaviour of a senior officer of the organization (who will also be a representative), the organization could be convicted regardless of the extent of any positive steps taken.  This means an organization may have near absolute liability in such circumstances and could convicted of criminal negligence notwithstanding evidence of due diligence sufficient to acquit it of a regulatory charge.  It is the view of the authors of our recent OHS & Workers' Compensation Management Update that, in order to give effect to the provisions of the Criminal Code and the legislative intent behind the 2004 amendments, the two-step test must be applied, the Metron case presents a troubling potential for organizations with individuals who exercise a high degree of local authority.

Future cases may be required for clarification but Metron does present a chilling prospect.  For more detailed comment, please follow the link to our Update.

The overall scenario is no doubt familiar to many employers, which I will abridge here to allow for easier reading. Employee claims a back injury. Employer questions whether the injury is truly work-related or happened on the employee’s own time but the WSIB recognizes the injury and the employer attempts to accommodate. There is back and forth between the employee, employer and WSIB, a period of absence and periods of accommodation in modified work. Eventually, the employee is required to perform modified duties on a shift he does not want. The WSIB finds that the duties offered are suitable. The employee alleges he was harassed months before by a supervisor in the accommodation process, insists on working a different shift, refuses to return to the shift that meets his medical restrictions and is ultimately fired for that.

In this case, the Tribunal found for the employer on several of the questions raised in the litigation (some of which I have tweeted about), notably on the alleged harassment and the employee’s termination.  However, it is the Tribunal’s finding that the employer failed to adequately accommodate the employee early in the return to work process which concerns us here.

The Tribunal found that during the employee’s first period of accommodated duties, the employer failed to meet its duty to accommodate because in fact some of the duties the employee was asked to perform exceeded his medical restrictions.

What is interesting to note about this is that the Tribunal accepted that the employee’s supervisor had an informal practice of letting employees decline work which they felt exceeded their medical restrictions.

We often see medical notes with comments to the effect that an employee may do work “as tolerated” and we also often see employees asking for accommodation in the nature of letting them decide how much work they can handle and when. Employers often accede to these sorts of requested accommodations.

And the Tribunal in this case recognized that sometimes this is an okay approach to accommodation:

 “… a reliance on employees self-regulating their work may be a reasonable accommodation measure when  employees have reported a minor injury and when there are no clearly identified medical restrictions.  It may also be a reasonable accommodation with an employee who has identified medical restrictions when they are told that they can decline to undertake a task that is within their restrictions in order to protect them from aggravating their condition.”

However, as this decision also shows:

“… this informal approach is not so appropriate in situations, such as the applicant’s, where an employee has defined medical restrictions and has job functions that potentially extend to tasks beyond these restrictions.  It is not appropriate, in my view, to have an employee potentially undertake tasks beyond their modified duties with a proviso that they do not have to do these tasks if it further aggravates their condition.”

In such cases, for the Tribunal, an employer needs to have a “more formal established protocol” that expressly makes it clear that the employee should not perform tasks beyond his or her medical restrictions.

This sort of paternalistic thinking is not out of line with what we often see in the Occupational Health and Safety law context. Employers are to leave as little as possible to the judgment of individual workers in order to protect them from potential harm. One mantra of the Ministry of Labour is that occupational health and safety legislation “does not rely on competent workers to take care of themselves, but exists to protect negligent, stupid or reckless workers from potential harm at the workplace”. It is not surprising therefore to see this sort of thinking making its way into the accommodation process as well.

The take away from this decision is that in the future employers may need to more carefully consider the scope of individual discretion they grant to workers in deciding which tasks they perform. If there is a risk that the exercise of this discretion could result in a worker performing tasks that exceed his or her medical restrictions, clear direction needs to be given as to which tasks can and cannot be performed in accommodated duties, and ideally these directions should be documented.

The charges arose from a Christmas Eve 2009 accident in which five workers fell thirteen storeys after the collapse of a swing stage.  Four workers were killed and the fifth was seriously injured.  The penalty imposed on Metron represents the highest fine imposed for criminal negligence arising from a workplace accident in Canadian history.  The only previous corporate criminal negligence conviction in such a matter, occurred in Quebec in 2008. It involved Transpavé Inc. which was fined $100,000 after a worker was crushed in a piece of machinery.  Similarly, the $90,000 fine imposed on Metron's president is the highest monetary penalty ever imposed under OHS legislation in Canada. 

With respect to the criminal negligence charge, the Crown had sought a fine of $1,000,000  while Metron had argued that a fine of $100,000 was appropriate.  In his reasons for judgment, Justice Robert Bigelow considered the Criminal Code sentencing factors applicable to corporations and found that Metron had not realized any advantage as a result of the offence, that the offence was not planned, the company president had been fined as a result of the incident, and that neither Metron nor any of its representatives had been convicted or sanctioned by any regulatory body for similar conduct in the past.  Justice Bigelow also found that imposing the fine sought by the Crown would likely result in Metron's bankruptcy.  Ultimately, Justice Bigelow held that the $342,500 in fines and surcharges payable by Metron and its president, which amounted to three times Metron's net earnings in its last profitable year (the year before the accident), would send a clear message to all businesses of the overwhelming importance of ensuring worker safety. 

In imposing sentence on Metron's president, the court accepted the joint submission that was presented to him by the Crown and defence.  His Honour commented that the case involved serious breaches of health and safety legislation that resulted in horribly tragic consequences.  However, the defendant had over 20 years of experience in the construction industry without any violations of health and safety legislation.  After considering those circumstances, Justice Bigelow found that the jointly recommended penalty would not be contrary to the administration of justice.

The fines and surcharges imposed on Metron and its president are to be fully paid within one year.

For more detailed analysis and commentary on today's decision, please see our OHS & Workers' Compensation Management Update.