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

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.