Workplace Wire - Connecting Employers to Developments in Labour, Employment & Pension Law

Several news agencies, including the World Nuclear News, reported last week that a 78 month jail sentence has been received by Walter Cardin, a former Safety Manager, for deliberately falsifying workplace injury records.  Cardin was previously employed by a subsidiary of Shaw Group, Stone and Webster Construction.  Stone and Webster had been contracted by the Tennessee Valley Authority (TVA), a US government corporation, to provide maintenance and repair services at two nuclear sites. Services included construction work for a restart of a facility.  Reportedly, Cardin provided false and misleading information about worker injuries at the facilities, which was then used by Stone and Webster to collect safety bonuses of over $2.5 million from the TVA. 

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.

As regular readers will know, Metron Construction Corporation became the first corporation in Ontario to be convicted under the Criminal Code, as amended by Bill C-45 in 2004, after a June 15, 2012, guilty plea to a charge of criminal negligence causing death following a workplace accident. 

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.

SSEC Canada Ltd., the Canadian subsidiary of Sinopec Shanghai Engineering, has been ordered to pay $1.5 million in relation to a workplace accident that killed two foreign nationals and injured three others in Alberta.  The fine is widely being reported as the largest fine imposed for a workplace accident in Alberta.

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.  

In a December 10, 2012 Workplace Wire Blog, we posted about two high-profile cases that could change Canada’s random drug and alcohol testing laws, CEP, Local 707 v. Suncor in Alberta and CEP, Local 30 v. Irving Pulp and Paper Ltd. in New Brunswick.

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.

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One key recommendation of the Dean Panel, which diligent readers will recall from the 80 page report and 46 recommendations released December 2010, was proposed mandatory OHS training for a number of workplace parties.  Dean’s recommendations to reform Ontario’s OHS system raised the concern that health and safety representatives, workers and supervisors are not adequately trained and informed of key workplace party roles and workplace rights and should have mandatory training to support the internal responsibility system.

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.

Two high-profile cases are testing Canada’s alcohol and drug testing-in-the-workplace laws.  In both, the central issue is the difficult balancing game between the need to ensure a safe work environment, and concerns over an individual’s privacy and human rights.

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.

Violence in the workplace is a prominent concern for employers and most jurisdictions have enacted legislation that details specific employer obligations to protect workers against violence. These enhanced obligations have contributed to a stricter approach towards incidents of workplace violence by judges, arbitrators and other decision-makers. This approach is evident in a recent case where the Ontario Labour Relations Board held that an employer had just cause to dismiss an employee for pushing a co-worker backwards and forcing him down five stairs on a raised platform during an argument instigated by the co-worker.

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There are increasing calls for governments to use regulatory legislation to require employers to provide employees with a psychologically safe workplace.  The most recent development in this regard comes from the Canadian Standards Association (CSA) through a Standard prepared by it and the Bureau de normalisation du Québec.  The Standard has been available in draft form since November 2011 and is expected to be published and released November 7, 2012 in early 2013. (Editor's Note:  The release date originally noted in this blog post has been updated following advice from the CSA that the release of the final Standard has been delayed until early 2013)

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. 

The full scope of injury reporting requirements under Ontario's Occupational Health and Safety Act ("OHSA") is now one step closer to being clarified.

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.  

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I just finished reading the Human Rights Tribunal of Ontario’s decision in Lagana v. Saputo Dairy Products. Among other things, this case shows that employers may need to be more careful in allowing employees with medical restrictions to work “as tolerated”.

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.

As we detailed in our blog posting on June 15, 2012, Metron Construction Corporation and its President both entered guilty pleas to charges stemming from a December 24, 2009, accident that claimed the lives of four workers and seriously injured another.  Metron pleaded guilty to one count of criminal negligence causing death while its President pleaded guilty to four offences under the Occupational Health and Safety Act (OHSA).  A joint submission recommending a fine of $90,000 against the President was made to the court but Metron and the Crown made seperate submissions about the penalty to be imposed for the criminal negligence conviction.

Sentencing submissions by Metron and the Crown concluded on June 28, 2012.  Metron is arguing that the court should impose a fine of $100,000.  There is a vast gulf between that position and the position taken by the Crown which submitted that a $1,000,000 fine ought to be imposed on Metron.  The court did not immediately impose sentence on either Metron or its President.  The court reserved its decisions until July 13, 2012, meaning no penalties have been imposed as yet.

With respect to the President's OHSA convictions, the court is not bound by the joint submission that it has been asked to accept.  However, it is rare for a sentencing court to depart from a joint submission made as part of a negotiated resolution.  Indeed, the Ontario Court of Appeal recently reaffirmed that a sentencing court should deviate from a joint submission in narrow circumstances: where the joint submission is contrary to the public interest and would bring the administration of justice into disrepute.  Currently, a $70,000 fine is the highest monetary penalty imposed on an individual convicted under the OHSA.

Imposing a penalty on Metron will likely prove the more challgening decision for the court.  The Criminal Code does not set either a minimum or maximum penalty for a corporation convicted of criminal negligence causing death.  However, the Code does mandate that the court adhere to certain principles and consider certain factors.  When imposing sentence on a corporation, the court must consider a series of factors that are specific to a corporate defendant.  This includes, amonst other things, considering the impact of the fine on the economic viability of the corporation, any advantage to the corporation by the commission of the offence, and if there has been any concealment or conversion of assets to show that the corporation cannot pay a fine or restitution.  Additionally, the court is to be guided by the overarching principles of proportionality  (accounting for the seriousness of the offence and blameworthiness of the defendant) and parity (that similar cases and defendants receive similar sentences).  In sum, the court is expected to balance all of these factors in deciding on the sentence to be imposed. 

Deciding on sentence may prove challenging for the court because there are exceedingly few cases in which a corporation has been sentenced for criminal negligence - particularly in matters of workplace safety.  In fact, since 2004, when the Criminal Code was amended to include a specific duty relating to workplace health and safety and to broaden the means by which criminal negligence could be proven against a corporation, there has only been one corporation sentenced for a workplace fatality.  That decision was in 2008 when Transpavé Inc. was fined $100,000 after pleading guilty to criminal negligence causing death.  In argument, both Metron and the Crown referred to penalties imposed on corporations for violations of the OHSA that have resulted in fatal injuries to workers.  It will be interesting to see how much impact  sentences imposed in regulatory cases have on the imposition of a penalty for a criminal offence.

It will also be interesting to see if a fine is the totality of the sentence imposed on Metron.  In addition to a fine, the Criminal Code empowers the court to place a corporation on probation and impose conditions.  Amongst other powers, the court has the power to require a corporation to:

• make restitution to a person for any loss or damage that they suffered as a result of the offence; and/or
• provide information to the public, in the manner directed by the court, setting out the offence committed, the sentence imposed and any measures the corporation is doing to reduce the chance of a subsequent offence; and/or
• comply with any other reasonable conditions to prevent the commission of subsequent offences or to remedy the harm caused by the offence.

The possiblity of a probation order was not addressed during sentencing submissions, which may make it less likely that one would be imposed.  However, it remains a sentencing option available to the court. 

As we indicated in our previous post, this is a historic case.  Consequently, whatever penalties are imposed on July 13, they are likely to be influential in future criminal negligence and OHSA proceedings.

The Ministry of Labour has published a poster explaining key workers’ rights and responsibilities and the responsibilities of employers and supervisors under the Occupational Health and Safety Act. Employers are required by the Act to post copies of the poster (along with a copy of the Act) in English and the language of the majority of the workers in the workplace.  According to the Ministry, inspectors will begin enforcing this obligation on October 1, 2012.

The creation of a health and safety poster was one of the recommendations made by the Expert Advisory Panel, which was appointed to review Ontario’s occupational health and safety system following a series of workplace fatalities in late 2009 and early 2010, including the highly-publicized quadruple fatality involving immigrant, non-union workers who fell after a swing-stage collapsed on Christmas Eve 2009.  During its review, the Panel found that many workers, particularly vulnerable workers, had little understanding of their rights and the responsibilities of employers under the Act.  In order to improve their understanding, the Panel recommended that the Ministry develop a health and safety poster explaining these rights and responsibilities and that employers be required to post the poster in the workplace.

As soon as possible and by no later than October 1, 2012, employers should download copies of the poster in English and any other language necessary and post them in a conspicuous location where they are likely to come to the attention of workers.

The Government of Ontario has taken another step towards the implementation of Bill 160, the Occupational Health and Safety Statute Law Amendment Act, 2011 by beginning the process of appointing members to the Prevention Council. 

The Prevention Council was created by Bill 160 to advise the Minister of Labour on the appointment of the Chief Prevention Officer and thereafter, to advise the Chief Prevention Officer on the exercise of his duties under the Occupational Health and Safety Act. These duties include, among other things, the prevention of workplace injuries and occupational diseases, the development of a provincial occupational health and safety strategy, and other matters assigned by the Minister of Labour.

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The Ontario Ministry of Labour is seeking submissions on a proposed new regulation under the Ontario Occupational Health and Safety Act (“OHSA”) that would provide assistance with OHSA reprisal complaints, including education, legal advice and representation, to non-unionized workers and small employers (fewer than 50 employees). The proposed regulation would expand the mandate of the Office of the Worker Advisor (“OWA”) and the Office of the Employer Advisor (“OEA”) to provide reprisal complaint assistance. Currently, the OWA and OEA assist workers and employers under the Workplace Safety and Insurance Act, 1997 (“WSIA”).

Section 50 of the OHSA prohibits employers from dismissing, disciplining, penalizing, or intimidating or coercing a worker because he or she has, among other things, acted in accordance with or sought enforcement of the OHSA, its regulations or an order under the OHSA or testified in any OHSA proceedings.  Workers who allege violation of this prohibition may resolve their complaint through binding arbitration under a collective agreement (if any) or by filing a complaint with the Ontario Labour Relations Board (“OLRB”). The Dean Panel, which was appointed to review Ontario’s occupational health and safety regime, found that the OLRB system was too complicated for unrepresented parties and reprisal complaints were often abandoned without being adjudicated.  To address this situation, the Dean Panel recommended expanding the mandate of the OWA and the OEA to provide assistance to workers in pursuing and assistance to small employers in responding to reprisal complaints. The proposed regulation will expand the mandate of the OWA and OEA to provide reprisal complaint support and advocacy services to workers and small employers, respectively.

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The question of whether corporations and their senior executives ought to be criminally prosecuted after tragic workplace accidents continues to ignite controversy in Canada and elsewhere. 

Readers will recall that following Canada’s worst industrial accident in Nova Scotia, the report of the Public Inquiry “The Westray Story: A Predictable Path To Disaster” recommended greater corporate accountability for workplace accidents believed to have arisen from corporate criminal negligence. The Westray report decried the absence of a safety ethic, a multitude of illegal practices, an ineffective joint health and safety committee and management attitudes that actively discouraged reporting of safety concerns. Westray led to the Bill C-45 Amendments to the Canadian Criminal Code in 2004, creating new duties to prevent bodily harm, new mechanisms to prosecute and convict corporations criminally, and the potential for limitless fines for corporations if prosecuted and convicted of criminal negligence arising from a workplace tragedy. Expectations were raised somewhat that we might regularly see Criminal Code prosecutions alleging corporate “criminal negligence”. Such prosecutions remain rare.

But several developments in the area of criminal negligence prosecutions for workplace accidents are worth comment as we look back on 2011. First, we are rapidly reaching a point in Canada in which virtually all workplace deaths are considered in some circles as deserving criminal investigation, if not enforcement.  After a workplace fatality in Toronto in October, the Ontario Federation of Labour was quoted (Canadian Occupational Health and Safety News, October 17, 2011) as stating publicly and in a letter to local police:“every worker who is killed at work deserves to have their death investigated through the lens of C-45 … their family deserves to know the police have done more than rule out foul play – that they have looked at criminal negligence by the employer as a possible cause”. 

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It may now be commonplace to see supervisors charged under occupational health and safety legislation, but it is extremely rare to see a safety manager convicted.

But that is just what happened last month in Cape Breton, Nova Scotia. James Della Valle, Safety Coordinator for the Cape Breton Housing Authority, was convicted as an employee and fined $1,000 for failing to protect workers and members of the public.

In the fall of 2005, Della Valle received a report detailing positive test results for asbestos in the attic insulation of a housing complex under renovation. The report called for, among other things, the immediate sealing of the contaminated areas and careful and safe removal of the insulation. 

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On October 4, 2011, the Court of Appeal for Ontario granted leave to appeal to Blue Mountain Resorts Ltd. in its bid to overturn a recent OHS decision issued by the Divisional Court.

The Divisional Court had upheld a conclusion by the Ontario Labour Relations Board that Blue Mountain Resorts was required to report the drowning of a guest at an unsupervised swimming pool to a Ministry of Labour inspector pursuant to section 51 of the Ontario Occupational Health and Safety Act (“OHSA”).

That such a notification was required for this incident is notable because it arose in a context in which no worker was involved. The Court confirmed an expectation that critical and fatal events to all “persons” at Ontario workplaces be reported. As we described in our earlier post, this decision potentially establishes a very broad and onerous reporting obligation for Ontario employers. It also requires the preservation of the scene of the incident for Ministry of Labour inspectors. Detailed analysis of the Divisional Court and OLRB decisions was presented in a recent OHS & Workers' Compensation Management Update. 

In its motion before the Court of Appeal, Blue Mountain Resorts argued that the OLRB’s broad interpretation of the OHSA reporting provision leads to “an absurd result.” It argued that the trigger for the reporting requirement could not be so broad as to include fatalities and critical injuries of customers using its recreational facilities. Furthermore, it cited the potential for serious disruption to the operations of Ontario businesses if the reporting requirements were broadly interpreted to include non-workers. The disruptions would notably include the requirement to preserve the scene for Ministry of Labour inspectors. 

The Ministry of Labour unsuccessfully argued before the Court of Appeal that the lower court decision should not be reviewed because the Divisional Court properly interpreted the clear meaning of the terms in the section 51 reporting provisions of the OHSA, specifically that the term “workplace” had been properly interpreted to include the swimming pool.

The Court of Appeal will hear the matter on a date yet to be announced. Because of the onerous obligations imposed on employers as a result of the lower court decision, guidance from the Court of Appeal on the interpretation of the reporting obligation will be very helpful. 

Prepared with assistance from Konrad Pola, student-at-law. 

Heenan Blaikie’s Jeremy Warning recently spoke at the Construction Labour Relations Conference in Toronto, hosted by Insight Information. During the session “Preparing for the Worst: How to Respond to a High Risk Incident” Jeremy provided advice to construction managers on what to do if there is an injury at the workplace.

This is the third video from Jeremy’s presentation from a four-part series recorded by Reed Construction Data Canada. We will post the last video next week.

There is a mounting trend to charge organizations and their senior executives with criminal offences when workplace accidents occur.  In Canada, the federal government enacted Bill C-45, An Act To Amend The Criminal Code (Criminal Liability Of Organizations) to permit organizations to be more readily prosecuted for crimes like criminal negligence.  There are a number of recent examples. In R. c. Scrocca, a landscape contractor was convicted of criminal negligence and sentenced to a conditional sentence of imprisonment after the brakes on his backhoe failed and the backhoe hit and killed an employee. In Ontario, Millennium Crane and two individuals were charged after a crane fell into a trench and fatally injured an employee. Although, those charges were subsequently withdrawn because there was no reasonable prospect of conviction.

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A skier suffers a broken arm. A student is knocked unconscious during a physical education class. A patient dies while in hospital. Aside from being sad and unfortunate events, incidents such as these are generally not seen as attracting an obligation to report the matter to health and safety authorities. That is no longer the case as a result of a recent OHS decision involving Blue Mountain. On May 18, 2011, the Ontario Divisional Court upheld an Ontario Labour Relations Board decision that determined that all fatal and critical injuries, occurring to a "person" at a workplace, should be reported to the Ministry of Labour. 

The decision  establishes  very broad obligations which arise notwithstanding that a fatality or critical injury does not involve a worker and is not work related and, therefore, has the potential to significantly impact numerous Ontario employers and constructors who are obligated to both report and preserve the scene of the fatality or critical injury pursuant to the Occupational Health and Safety Act.   

In a recent OHS & Workers' Compensation Management Update my colleague, Cheryl Edwards, and I provide a detailed discussion of this important decision along with some practical suggestions for managing its potential consequences.  

It should be noted that a couple of developments that have arisen since that piece was published.  First, Blue Mountain is seeking leave to appeal to the Ontario Court of Appeal and, second, we understand that the Ministry of Labour no longer intends to prepare the consolidated reporting regulation mentioned in the article.