February 2, 2016
In 2015, there were a number of notable developments in Canadian health and safety law. Some of these developments are helpful to employers while others demonstrate potential risks and establish new or expanding obligations.
The Year in Review will highlight the most significant developments in occupational health and safety (OHS) law including:
1. Sentencing – Increasing Frequency of Jail Sentences
2015 provided more evidence that jail terms are becoming increasingly common for supervisors, managers, directors and officers convicted of serious OHS offences. This may confirm a major shift in the approach to sentencing in regulatory offences (including OH&S), where, traditionally, monetary penalties were commonly imposed and jail sentences were rare and imposed only as a sentencing measure of last resort. Jail sentences of any length are a severe penalty for OHS offences, which, generally, are offences of omission (i.e. failing to do something required) rather than offences of commission (i.e. recklessly or intentionally committing a prohibited act).
In R. v. New Mex Canada Inc. et al (unreported, January 13, 2015, Ont. C.J., Brampton, Fletcher J.P.), New Mex was fined $250,000 and two of its directors received jail sentences of 25 days each after pleading guilty to safety infractions that led to the death of a worker in a warehouse. The worker was using a combination forklift / order picker and standing on a platform that had been added to the order picker by the company. The added platform did not have guardrails. The worker was fatally injured after falling from the machine. The directors each pleaded guilty to two offences: failing to ensure the company provided information, instruction and supervision to a worker regarding fall protection and/or working at height and to failing to ensure that the company ensured that a worker was protected by fall protection. The company pleaded guilty to related offences.
Based on the agreed statement of the facts filed with the court, it appears that there was no functioning OHS program at the company, and that no training or protective equipment related to fall protection were provided. As well, the involved worker had a reported history of seizures, the platform added to the order picker had a slippery surface, and was not equipped with guardrails. It was determined that the worker was wearing no fall protection at the time of the fall. Further, Ministry of Labour investigators determined that, before their arrival, fall protection had been attached to the order picker and they observed other OHS violations, including fall protection violations, during their investigation. These factors appear to have aggravated the sentences imposed. All penalties, including the jail terms, have been appealed and sentences suspended pending the hearing of the appeal.
2. Prime Contractor in Saskatchewan/ Constructors
Employers with operations in multiple provinces should be aware of the differences in “prime contractor” legislation that apply in Saskatchewan, Alberta, and BC, and review their policies and procedures to ensure they are in compliance with the applicable requirements.
Saskatchewan’s new Occupational Health and Safety (Prime Contractor) Regulations came into force on January 1, 2015. These regulations require that there be a “prime contractor” for every worksite in the forestry, oil and gas, or construction industries, involving multiple employers and ten or more workers. If the owner of the site does not reach an agreement with another contractor on site to act as prime contractor, the owner of the site will be considered the prime contractor. Prime contractors have numerous health and safety responsibilities under this regulation, including coordinating work on site, appointing a competent supervisor, and informing other workers and employers of potential hazards. The provisions are similar to, but are more extensive than, the prime contractor provisions in Alberta and BC. One example of the more expansive nature of the Saskatchewan requirements is that its prime contractor regulations provide for owner obligations that must be fulfilled when the owner assigns the prime contractor role to another party. These obligations are, largely, informational in nature and include the obligation to provide the prime contractor with the policies, procedures and safe work practices of each employer or self-employed person at the worksite.
3. New WHMIS/GHS Implementation:
For over 25 years, Canadian employers have used the WHMIS 1988 system of hazardous product classification and labelling. This familiar system is now being replaced by the WHMIS 2015 requirements, which incorporate the Globally Harmonized System of Classification and Labelling of Chemicals (“GHS”).
On February 11th, 2015, the federal government announced that the revised Hazardous Products Act and the new Hazardous Products Regulation are now law in Canada. The new system adopts the Globally Harmonized System for Classification and Labelling of Chemicals. The regulation includes a transition period intended to ease the shift to the new system. Provincial legislation and regulations will also need to be amended to fully implement the new system. Provinces and territories across Canada are at various stages of this process.
Shortly after the government published the Hazardous Products Regulation, a website was released to help Canadians transition from the old WHMIS system to WHMIS 2015. The website provides Canadians with a single point of access to the most current information about WHMIS 2015 from all of the jurisdictions across Canada. The website also contains helpful tools and resources for workers, employers, suppliers and trainers. It is developed by the Canadian Centre for Occupational Health and Safety (CCOHS) in collaboration with the Workplace Hazardous Materials Bureau of Health Canada and each of the federal, provincial and territorial occupational health and safety regulatory jurisdictions across Canada.
4. Criminal Negligence
The workplace-specific duties set out in the criminal negligence provisions of the Criminal Code have been infrequently applied in Canada. However, on June 26, 2015, the Ontario Superior Court of Justice released its decision in R. v. Kazenelson, 2015 ONSC 3639 (CanLII) in which Mr. Kazenelson was convicted of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm. The facts of the case are widely known. Mr. Kazenelson was the project manager of Metron Construction Corporation and was responsible for a balcony remediation project at an apartment building in Toronto. On Christmas Eve 2009, Mr. Kazenelson and six other men boarded a swing stage to descend from the thirteenth storey to the ground. The swing stage collapsed. Five of the men fell to the ground, one had his fall arrested because he was connected to a fall protection system, and Mr. Kazenelson survived by climbing onto a balcony.
The decision is notable for a number of reasons. First, it explains how the obligations contained within health and safety legislation may be used in assessing an allegation of criminal negligence based on the failure to take reasonable steps to prevent bodily harm to a person performing work. In Kazenelson, the court confirmed that non-compliance with the Ontario Occupational Health and Safety Act (OHSA) or its regulations is not, in and of itself, proof that a person has failed to discharge their Criminal Code duty. However, the court indicated that, because the OHSA and its regulations are designed to ensure workplace health and safety, they can “assist in identifying what steps it is reasonable to expect a person […] to take to prevent bodily harm in the workplace”.
A second notable element of the case is the examination of the scope of behaviour that is relevant to the criminal negligence analysis. The Crown and defence pursued evidence regarding Mr. Kazenelson’s attention to health and safety prior to the accident. The Crown sought to paint Mr. Kazenelson as inattentive to health and safety while the defence elicited evidence to show that Mr. Kazenelson paid keen attention to the safety of the workers on the project. In large measure, the court found that it was Mr. Kazenelson’s behaviour shortly before the accident that was probative of whether he was criminally negligent. In particular, the court found that, once Mr. Kazenelson realized that there were more men on the swing stage than available lifelines, he was obligated to rectify that situation. His failure to do so was a significant factor in finding him guilty of criminal negligence – even though the employees were experienced and should have known they needed fall protection. Sentencing submissions were heard on October 16, 2015. The Crown argued that Mr. Kazenelson should be sentenced to four to five years in jail while Mr. Kazenelson submitted that a twelve month to two year sentence would be appropriate. Earlier this month, the court sentenced Mr. Kazenelson to three-and-a-half years in jail. Mr. Kazenelson has appealed both his conviction and the sentence imposed on him and has been released on bail pending the outcome of his appeals.
The Kazenelson case was not the only reason the workplace-specific duties of the criminal negligence provisions of the Criminal Code were in the headlines this year, as authorities are looking to the Criminal Code more often after a work-related accident. In British Columbia, two individuals and two corporations were charged with criminal negligence causing death following a 2007 workplace incident in R. v. Stave Lake Quarries. A young worker was killed on her second day on the job when the truck she was cleaning began to roll down a hill and flipped on its side pinning her underneath. This is believed to be the first time that criminal negligence charges, arising from a workplace accident, have been laid by police in British Columbia. Notably, the charge was laid approximately eight years after the accident. The significant passage of time between the incident and the charge should remind employers of the importance of conducting an immediate and thorough investigation of all serious workplace accidents. Failing to do so could make it very difficult to collect beneficial information and evidence.
2015 also saw the first “Bill C-45” charge laid in Nova Scotia since that Bill, colloquially referred to as the Westray Bill, was enacted. The defendant, Elie Hoyeck, is the former owner of Your Mechanic Auto Corner and was charged with one count of criminal negligence causing death. The charge was laid in early September, 2015, and arose from an accident on September 20, 2013, in which a mechanic suffered fatal burns after the car he was working on caught fire. At the time of the fire, the worker had been removing the gas tank of the car with a torch. Mr. Hoyeck has also been charged with a number of offences under the Nova Scotia Occupational Health and Safety Act.
5. General Duty Clauses
It is well established that occupational health & safety legislation is to receive a broad and liberal interpretation. This approach can be particularly significant when applying a “general duty” clause that sets out an employer’s broad obligation to take reasonable measures to protect workers. General duty clauses exist in every Canadian health and safety statute. In Ontario, for example, an employer must “take every precaution reasonable in the circumstances for the protection of a worker”. In 2015 there was further confirmation that a general duty clause cannot displace existing regulatory standards if doing so would hold an employer to a stricter standard.
In Ontario (Ministry of Labour) v. Quinton Steel (Wellington) Limited, 2014 ONCJ 713, Crown appeal dismissed (unreported, November 5, 2015, Ont. C.J., Guelph, Douglas J.) the Ontario Court of Justice acquitted the operator of a custom steel fabrication business of an offence under the general duty provision of the Ontario Occupational Health and Safety Act. The charge was laid after a worker fell 6’6” from a platform on which he was welding. The worker suffered a fatal head injury in the fall.
The Ministry of Labour investigated the incident and, of note, charged Quinton Steel (Wellington) Limited with failing to take the reasonable precaution of ensuring that guardrails were erected around the open sides of a raised wood platform. This charge was laid under the general duty clause of the Ontario Occupational Health and Safety Act.
At trial, Quinton Steel did not assert a due diligence defence. Rather, it argued that the requirement to use fall protection is, in most cases, a height-based obligation triggered by the location at which the worker is working. Quinton Steel argued that the worker was working at a height of 6’6” which is below the height-based threshold for the use of guardrails as set out in the Construction Projects Regulation and below the height at which fall protection is required under the Industrial Establishments Regulation. These regulations require guardrails and fall protection at 8 feet and 10 feet respectively. Quinton Steel also argued that it would not have been reasonable to have been guided by a guardrail provision in the Industrial Establishments Regulation (the regulation that directly applied to the work) because that provision addressed workplace fixtures rather than temporary or mobile equipment. Further, Quinton Steel pointed to evidence that no worker had previously fallen or nearly fallen when working on the platforms. It also pointed to evidence that the platforms were used on virtually a daily basis, were obvious to see in the workplace, and had not been the subject of any Ministry of Labour order or concern despite numerous visits and inspections of the plant. It was argued by Quinton Steel that these were relevant circumstances in determining whether it was reasonable to have erected a guardrail.
The Crown argued that guardrails were a reasonable precaution because the vision of workers is restricted by their welding masks which makes them vulnerable when moving on the platform. The Crown also pointed to evidence given by certain workers that they would erect guardrails themselves at heights below 10 feet. Finally, the Crown argued that Quinton Steel ought to have referred to the guardrail provision in the Industrial Establishments Regulation for guidance.
Ultimately, the court rejected the Crown’s arguments and found that the Crown had failed to prove an offence under the general duty clause. The court held that the guardrail provision in the Industrial Establishments Regulation applied only to fixtures at the premises of a workplace and not to temporary equipment. The court held that it was reasonable for Quinton Steel to have considered the Construction Projects Regulation and that the obligation to use fall protection was triggered by a worker working above a threshold height – which had not been met. The court determined that the Crown was attempting to hold Quinton Steel to a stricter standard than was available in the regulations.
The Crown appealed Quinton Steel’s acquittal. The Crown asserted that the trial court erred in failing to adjudicate the charge that was laid thereby failing to adequately consider the circumstances. The trial court’s decision was upheld on appeal. The appeal court found no error in the trial court’s decision.
The Crown has sought leave to appeal to the Ontario Court of Appeal.
6. Extra-territorial Application of Provincial OHS Legislation
A recent decision from the Ontario Labour Relations Board suggests that employers who temporarily assign their workers to work outside of their home jurisdiction could still be found to have responsibilities to these workers pursuant to the OHS legislation of the “home” jurisdiction.
In August 2015, the Ontario Labour Relations Board dismissed an employer’s preliminary objection to a reprisal application in Escudero v. Diversified Transportation Ltd./Pacific Western Group of Companies, 2015 CanLII 50878 (Ont. L.R.B.). In the preliminary objection, the employer argued that the Board did not have jurisdiction to inquire into the application because the safety concerns that had been raised by the applicant related to the applicant’s temporary assignment to work in British Columbia. Therefore, the applicant could not have been acting pursuant to the Ontario Occupational Health and Safety Act (OHSA) when raising a health and safety concern. If that were the case, the employer could not have committed a reprisal under the Ontario OHSA.
The applicant was temporarily assigned to work as a warehouse supervisor at the employer’s location in Prince George, British Columbia. The applicant’s home position was in Ontario. While working in Prince George, the applicant raised numerous health and safety concerns. The applicant believed the response to his concerns was not acceptable and he prepared a report that set out all of the contraventions he had observed. The applicant sent that report to a person who had been acting as his mentor. After sending the report, the applicant was asked to return to Ontario.
Upon his return to Ontario, the applicant requested a meeting with the Operations Manager. The two agreed to meet approximately ten days after the applicant had returned to Ontario. At that meeting the applicant’s employment was terminated. The applicant filed a complaint alleging that he had been the subject of an unlawful reprisal contrary to the OHSA.
In dismissing the employer’s preliminary motion, the Board concluded that, although the specific health and safety standards applicable to the Prince George workplace were the responsibility of the British Columbia Legislature, the Ontario employer had the obligation to take every precaution reasonable in the circumstances for the protection of the worker. This is provided for in the general duty provision of the OHSA. The Board held that the general duty provision applied while the applicant was temporarily assigned to work in British Columbia and that the applicant could require the employer to comply with that obligation. Further, the Board held that, in reporting the health and safety concerns, the applicant was acting in compliance with his obligation, under the OHSA, to report the existence of a health and safety hazard to the employer.
The upshot of the decision is that employers cannot automatically assume that all provisions of the OHS legislation of the “home” jurisdiction cease to apply when a worker is temporarily working in another jurisdiction. The importance of the decision for Mr. Escudero is that, if a link between the termination of his employment and the application of the obligations and rights mentioned above is established, then a reprisal will have occurred and the Board has held that it is able to provide him with a remedy.
7. Discipline for Safety
As the awareness of, and focus on, workplace safety issues continues to increase across Canada, so too does the rigorous assessment of the appropriate levels of discipline for employee breaches of workplace safety rules. A number of 2015 cases establish that arbitrators, tribunals, and courts will support employers who impose a serious discipline for breaches of workplace safety rules, as long as the employer considers the totality of the factual circumstances.
(a) Breach of Workplace Violence Rules
In Certainteed Insulation Canada and Unifor, Local 80-0 (Zimba) Re, 2015 CarswellOnt 187 (Ont. Arb.), an arbitrator upheld the dismissal of an employee for workplace violence where no physical assault occurred. The union argued that the incident was at the “low end” of the spectrum of workplace violence because “it was all words” and there was no physical contact or injuries. Yet, the arbitrator concluded that the verbal attacks, which were related to a co-worker’s physical appearance and sexual orientation, were “over and above” more “traditional” profanities and merited termination. The employee had previously signed a document indicating that he understood a violation of the workplace health and safety rules might result in discipline up to and including termination.
(b) Breach of Rules Regarding Alcohol
On the other hand, a “zero tolerance” approach that automatically imposes a serious level of discipline for the breach of a workplace safety rule, without regard to the totality of the circumstances, may be viewed as unfair to an employee. In U.S. Steel v United Steelworkers, Local 1005, 2014 CanLII 50003 (ON LA), the arbitrator drew a distinction between “zero tolerance” policies that state that every incident must be investigated as compared to policies that impose an automatic penalty for every violation regardless of the circumstances. In this case, a random search by the employer found a partially-consumed bottle of vodka in the trunk of the employee’s vehicle, parked on Company property (which was a safety-sensitive workplace). The employee had cooperated with the employer and had a reasonable explanation for the bottle, which the employer had no reason to disbelieve. The arbitrator agreed the Company had cause to discipline the employee but rejected the imposition of an automatic penalty of a three-day suspension without regard to the totality of the circumstances.
(c) Breach of Rules Requiring Disclosure of Drug Problem
Where employee misconduct is the first sign to the employer of an employee’s addiction or other disability, the employer does not necessarily have to forego its disciplinary procedures. For example, in Stewart v. Elk Valley Coal Corporation, 2015 ABCA 225, the court upheld the termination of an employee based on drug use at a safety-sensitive worksite. The majority of the Alberta Court of Appeal concluded that the dismissal of an employee, whose cocaine addiction came to light following a post-incident drug test, did not constitute discrimination as the employee had been dismissed for failing to disclose his problem and continuing to use drugs, rather than the disability itself.
The employer’s policy encouraged employees who were concerned about their use of alcohol or drugs to seek assistance voluntarily but provided for the possibility of discipline where an employee tested positive for drug use after an accident or other significant incident. Though Mr. Stewart had argued that, prior to the accident, he had been in denial about his drug use; the majority rejected the assertion that this excused him from his duty to seek assistance or accommodation, particularly at a safety-sensitive worksite.
8. Changes in BC – Stop Work/Stop Operations-Related Provisions
On May 14, 2015, Bill 9 received Royal Assent, and results in a number of changes to Part 3 of the Workers Compensation Act (Act). These changes significantly expand WorkSafeBC’s ability to enforce compliance with occupational health and safety regulations and place new obligations on employers to investigate following workplace incidents. The changes have the potential to affect not just the employers committing the most egregious violations of the Act but those who commit less serious contraventions as well.
(a) Expanded Stop Work Order Powers
There are two major changes to stop work orders. First, in certain circumstances, the threshold for being able to issue a stop work order has been lowered. The recent changes now provide that WorkSafeBC may consider a stop work order in two circumstances:
A) When there are reasonable grounds to believe there is a high risk of serious injury, serious illness, or death; or
B) When an employer fails to comply with a provision of the Act or the Regulation, has failed to comply with an order under that provision in the previous year, and there are reasonable grounds to believe that there is a risk of serious injury, serious illness, or death.
As such, where there has been repeated or continuing non-compliance, WorkSafeBC can now issue a stop work order if there is “a” risk rather than a “high” risk.
Second, the potential scope of the stop work order has been changed. Now, a stop work order may also be made applicable to one or more of an employer’s other workplaces (a “stop operations order”) if there are reasonable grounds to believe that the same or similar unsafe working or workplace conditions exist at the other workplaces. However, an officer does need prior approval before issuing a stop operations order.
Under the previous legislation, orders to stop work could only be issued where WorkSafeBC had reasonable grounds for believing that an “immediate danger” of serious injury, serious illness or death exists. The impact of these changes is that an employer with repeated contraventions will be in the situation where WorkSafeBC can shut down its workplace or workplaces based on a lower threshold.
(b) Expanded Incident Investigation Obligations
There are two major changes to the requirements for employer incident investigations (required when (amongst other things): a worker has been seriously or fatally injured, a major structural failure or collapse has occurred, or there has been a major release of a hazardous substance). First, employers are required to undertake a preliminary investigation within 48 hours of the incident. Second, employers are required to submit a full investigation report to WorkSafeBC within 30 days of an incident.
(c) Changes to Penalty Due Diligence
Section 196 of the Act deals with administrative penalties. Currently, WorkSafeBC has the obligation, before imposing a penalty, of determining that an employer failed to exercise due diligence. The amendment clearly places the onus of demonstrating due diligence on the employer.
The changes outlined here under Bill 9 are only some of the newest developments in WorkSafeBC’s continued implementation of recommendations relating to occupational health and safety inspections and investigations as outlined in the July 2014 Review and Action Plan.
These changes to WorkSafeBC policy and procedure come in the wake of two tragic incidents at sawmills in which workers were killed in explosions (see Lakeland Mills Ltd. and Babine Forest Products Ltd. summaries above). Among the stated goals of the changes are creating a more robust deterrence program and building a world-class inspection and investigations regime at WorkSafeBC, which includes a review of WorkSafeBC’s OHS penalties and potential changes to a number of WorkSafeBC’s policies.
In October 2015, WorkSafeBC issued a Discussion Paper that addresses the proposed changes. The proposed changes, if accepted, are anticipated to take effect March 1, 2016.
9. Investigation of Workplace Violence
Not all of 2015’s notable developments were provincial. Of note for federally regulated employers is a decision that considers an employer’s obligation to investigate allegations of workplace violence. In particular, it appears that, in all but the clearest of cases, employers are compelled to investigate allegations of workplace violence.
Canada (Attorney General) v. Public Service Alliance of Canada, 2015 FCA 273 (CanLII)
The Canada Occupational Health and Safety Regulations require federally-regulated employers to appoint a competent person to investigate if the employer is unable to resolve a complaint related to workplace violence. The Federal Court of Appeal dismissed an appeal in which the core issue was whether an employer can unilaterally determine whether the conduct complained of amounts to work place violence before appointing a competent person to investigate the complaint. The Federal Court of Appeal held that an employer has a very narrow discretion in this regard such that, unless it is “plain and obvious that the allegations do not relate to work place violence even if accepted as true”. It is the function of the investigation to determine whether work place violence has occurred as part of the conclusions arising from a completed investigation.
10. Workplace Harassment and Sexual Harassment
While sexual harassment is not a new issue, 2015 saw a surge of public incidents and media reports on allegations of sexual harassment, including those involving high profile people such as the Jian Gomeshi and Bill Cosby incidents. Those developments may have helped spur the Ontario Government to move forward with its Action Plan known as “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment”.
On March 6th, 2016, Ontario Premier Kathleen Wynne announced the provincial government’s “It’s Never Okay” action plan to address sexual harassment and violence in Ontario. Amongst other things, the action plan proposes amending the OHSA to include a definition of “sexual harassment” and an obligation on employers to “make every reasonable effort to protect workers from harassment, including sexual harassment, in the workplace.” Another proposal suggests new investigation rules that employers must follow when a workplace / sexual harassment complaint is received.
One of the ways that the Ontario government has followed up on the Action Plan is through Bill 132 which is entitled Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015 (the Bill). The Bill was first introduced on October 27, 2015, and moved through Second Reading in the Ontario Legislature on December 8, 2015, at which time it was referred to the Standing Committee on Social Policy.
The Bill seeks to implement a number of the changes to the Ontario Occupational Health and Safety Act (OHSA) proposed in the Action Plan. Those changes, principally, are centred on the workplace harassment provisions that were enacted in June 2010.
The proposed changes include adding a definition of “workplace sexual harassment” to the OHSA. The current proposal is that this definition of “workplace harassment” read as follows:
(a) engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome; or
(b) workplace sexual harassment
It is proposed that “workplace sexual harassment” mean:
(a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or
(b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome;
At this point, the rationale for proposing a definition of workplace sexual harassment is not entirely clear. None of the new or expanded obligations refer specifically to “workplace sexual harassment” but apply to all behaviour that can be defined as “workplace harassment”.
Further, the Bill contains a number of proposed changes to the workplace harassment programs that are already required of Ontario employers. The program changes that are proposed in the Bill include:
In addition, the Bill proposes to employ Ministry of Labour Inspectors to order that an investigation into an incident or complaint of workplace harassment be conducted by a person with such knowledge, skills, and experience as required by the Inspector. Under the Bill, the Inspector may require this investigation to be conducted at the expense of the employer.
Ontario is not alone with notable developments relating to workplace harassment. In Alberta, the Ministry of Jobs, Skills, Training and Labour is in the process of considering feedback that was received as part of its public consultation process on potential changes to the OHS Code that was collected in early 2015. According to media reports, one change under consideration would require employers to develop a workplace harassment policy as currently only workplace violence policies are required (i.e. physical violence).