WSIB fraud requires a wilful act, like tax evasion, appeal court decides
Posted on Nov 15th, 2018 By Adrian Miedema
Categories: Caselaw Developments, Prosecutions / Charges
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The WSIB must prove that a worker intended to obtain WSIB benefits to which he or she was not entitled, when it charges a worker with "wilfully failing to inform the Board of a material change", the Ontario Court of Appeal has decided.
The WSIB prosecuted three workers, who were receiving WSIB benefits, for failing to report a "material change" with respect to their entitlement to WSIB benefits. The WSIB argued that it was not required to prove that the workers intended to defraud the WSIB. The appeal court disagreed. It held that in order to obtain a conviction for failing to report a material change, the prosecutor must prove something akin to tax evasion or fraud. The court said that the WSIB must prove the following:
1. The accused knew that a material change in his or her health, income, employment status or other circumstance had occurred. Material change means a change that could affect his or her entitlement to benefits paid by the WSIB;
2. The accused intended not to inform the WSIB of that change; and
3.The accused:
a. intended by the failure to inform, to receive benefits to which he or she was not entitled, or
b. foresaw that the failure to inform was substantially certain to result in the receipt of benefits to which he or she was not entitled.
With respect to one of the three workers, whose first language was not English and who may not have understood his obligations, the appeal court held that the prosecutor had not proven the necessary intent. As such, his charge was dismissed.
The other two workers, who were found guilty at trial, were awarded a new trial as the trial justice's decision did not contain sufficient detail to permit the court to determine whether the workers had the necessary intent to receive WSIB benefits to which they were not entitled.
The decision is somewhat of a setback for the WSIB in prosecuting workers for "WSIB fraud", as it will often be difficult for the WSIB to prove that a worker intended not to inform the WSIB of a material change and intended to receive benefits to which he or she was not entitled.
Workplace Safety and Insurance Board v. Curtis, 2018 ONCA 441 (CanLII)
Ninety-day administrative driving suspension for impaired driving was not just cause to fire Assistant Fire Chief
Posted on Sep 19th, 2018 By Adrian Miedema
Categories: Caselaw Developments, Safety - Risk Management
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An Assistant Fire Chief has won his wrongful dismissal suit after he was fired following a 90-day administrative driving prohibition for impaired driving while off-duty.
The Assistant Fire Chief was on the way home from a "date night" with his spouse when he was pulled over for suspected impaired driving. He failed two roadside breathalyzer tests and received the administrative driving suspension. He immediately advised the Fire Department and was distraught and remorseful.
Although the Fire Chief and human resources advisor advised against firing, and a number of firefighters signed a letter asking that the Assistant Fire Chief not be fired, the fire department's Chief Administrative Officer was adamant and went ahead and dismissed him.
The court held that the fire department did not have just cause for dismissal. The Assistant Fire Chief was off-duty and he was not representing the fire department at the time. While the truck he was driving belonged to the fire department, it was not marked as such. There was no public knowledge of his administrative driving prohibition. His conduct was not of the same "moral reprehensibility" as in other cases where employees' off-duty conduct was just cause for dismissal. The Assistant Fire Chief was not the public face of the fire department. The other career firefighters in the fire department had not lost confidence in him. There was no criminal charge, but rather he received a 90-day driving suspension. In conclusion, the court decided that his off-duty conduct was not incompatible with the faithful discharge of his duties or otherwise prejudicial to the interests or reputation of the fire department.
In the end, the court awarded the employee five months' salary as provided for in his employment contract.
Klonteig v West Kelowna (District), 2018 BCSC 124 (CanLII)
"Communications and conduct" of employer's lawyer regarding sexual harassment investigation were not privileged, could be referred to in Claim, court decides
Posted on Aug 29th, 2018 By Adrian Miedema
Categories: Caselaw Developments, Violence and Harassment
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Over the objections of a company's employment lawyer, an Ontario court has permitted an employee to refer, in her Statement of Claim for constructive dismissal and bad faith, to the "communications and conduct" of the company's lawyer in respect of a sexual harassment investigation.
The employee made sexual harassment and bullying allegations against a coworker. The employer investigated and concluded, without speaking with the employee, that the allegations were not substantiated. During this period, the employee was placed on a Performance Improvement Plan.
The employee eventually retained counsel who requested a severance package. The employer then also retained counsel. For a few months, the lawyers communicated by phone and correspondence. They discussed the investigation. The employee's counsel urged the company to conduct a new or more thorough investigation, which the employer did. The employee then started her constructive dismissal lawsuit and included, in some paragraphs of her Statement of Claim, reference to some of counsel's discussions and conduct.
The company moved to strike those paragraphs from the Statement of Claim on the basis that the discussions between counsel were "without prejudice" settlement discussions. The Master refused to strike the paragraphs. She held that the discussions and conduct of the company's lawyer with respect to the harassment investigation did not relate to a "litigious dispute" but rather to the company's statutory obligation under the Occupational Health and Safety Act to investigate the sexual harassment allegations. The sexual harassment investigation report itself was not privileged. Counsel's conduct during the sexual harassment investigation was "highly relevant and both counsel must have understood its relevance should litigation ensue". Finally, although the outcome of negotiations between counsel may have led to a severance settlement, and the employer's lawyer told the employee's lawyer that she wished to engage in without prejudice settlement discussions prior to sharing any information with him, the communications in relation to the investigation and the PIP were directly relevant to the employee's claim for constructive dismissal and bad faith.
In the result, the communications between counsel regarding the sexual harassment investigation and the PIP were not "settlement privileged" and were not struck from the employee's Statement of Claim.
Clayton v. SPS Commerce Canada Ltd., 2018 ONSC 5017 (CanLII)
Owner of electrical contractor, who transferred assets due to looming charges, held personally liable for company's $430,000 regulatory fine
Categories: Caselaw Developments, Prosecutions / Charges, Safety - Risk Management
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In what appears to be a novel decision in the regulatory context, a judge has held an owner of an electrical contracting firm personally liable for the company's regulatory fines after he transferred assets out of the company following a fatal incident.
In 2014, an elderly man died from burns after being found lying on his bathroom floor, which had overheated. It turned out that the overheating was caused by the negligence of one of the contractor's employees four years earlier when he installed an underfloor heating mat in the bathroom.
The company pleaded guilty to three charges under the Electricity Act in respect of the installation. The court fined the company $430,000.
The judge found that the owner had transferred assets, including property, out of the company after he learned that the company was going to be charged, in order to avoid having to pay a fine. The judge also stated that the owner had been dishonest in his testimony, and misleading to the Electrical Safety Authority. The company was evidently left with no, or very few, assets to pay the fine.
The judge decided to "pierce the corporate veil" and require the owner and a related entity, to which he had transferred assets, to pay the fine. In a rather scathing decision, the judge held that the owner, by blurring the lines between himself and the company, had put his own personal assets at risk. The judge decided that although no statute gave him the power to "pierce the corporate veil" and make the owner personally liable, a judge should do so where it would be "too flagrantly opposed to justice" not to. The judge stated:
If Mr. Merante had simply shuttered Pro-Teck and left its assets intact and gone on and opened up Master Electric, he could not have been faulted . . . But he did not simply do that. Two roads diverged before him and Mr. Merante took the one marked self-interest and deceit rather than the one that was marked by his duty to respect his obligations as a shareholder and his duty to accept that the protections that came with Pro-Teck's corporate status also created responsibilities.
In the result, the judge decided that the owner's "acts deprive him and Master Electric, both beneficiaries in one way or another of the diversion of assets, of their legal separateness from Pro-Teck. He in effect treated all three legal entities as one; as he sowed, so shall he reap. The fines levied against Pro-Teck may be recovered from Mr. Merante personally and from Master Electrical Contracting Services Ltd., 2433302 Ontario Ltd."
It is unknown at this time whether this decision has been appealed. Although the owner's behaviour was clearly troubling to the judge in this case, it is an open question as to whether an appeal court would decide that the judge had the legal authority to "pierce the corporate veil" and make the owner personally liable for the fine.
R. v. 1137749 Ontario Ltd. (operating as Pro-Teck Electric), 2018 ONCJ 502 (CanLII)
Female police officers' class action claiming gender harassment dismissed because arbitrator, not courts, had jurisdiction
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A group of female police officers has lost its bid to bring a class action in the courts for gender discrimination and harassment.
The officers claimed systemic gender-based discrimination and harassment by male members of the police force.
The court decided that it had no jurisdiction over the class action because the claims should have been brought at arbitration. Under the Police Services Act, arbitration was mandatory – and binding – even though the arbitrator did not have the power to award punitive damages. The officers therefore were barred from making the discrimination and harassment claim in the courts.
The fact that the police association (the police union that would have carriage of a harassment case at arbitration) was made up mostly of male members did not require the court to take jurisdiction.
The court also decided that a claim of workplace discrimination did not make out a viable "cause of action" at common law. This meant that even if the court (not an arbitrator) had jurisdiction over the case, the claim was not the type of case that courts will hear.
The judge concluded:
The Defendants should not regard this result as a vindication of current practices. Like Sharpe J.A. in A.(K.), I have considerable sympathy for the Plaintiffs' desire to have this litigated in court. Even on the limited and contradictory evidence before me, it is apparent that this case raises serious, triable issues relating to the workplace culture. The allegations are very troubling and will require close scrutiny should this matter proceed to another forum for adjudication.
The court action was therefore stayed, bringing it to an end.
The plaintiffs have appealed this decision to the Court of Appeal for Ontario.
Rivers v. Waterloo Regional Police Services Board, 2018 ONSC 4307 (CanLII)
Safety manager wins wrongful dismissal suit: he had not failed to complete assigned tasks, court decides
Posted on Aug 3rd, 2018 By Adrian Miedema
Categories: Caselaw Developments, Safety Professionals - Practice Issues
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An Alberta safety manager has won $28,000 in damages after he was fired by his employer. The employer argued that the employee quit or, in the alternative, that the employer had just cause for dismissal.
The court rejected the employer's argument that the employee had quit. The employer's email stating, "Don't bother coming in either I'll look after all this k that your two weeks. Thanks for your services have good day" [sic], made it clear that the employer had dismissed the employee.
The court also rejected the employer's argument that it had just cause for dismissal. Contrary to the employer's assertion, the employee had not failed to complete an assigned task (addition of certain safety procedures to the employer's safety manual) and even if he had failed to do so, there was no evidence that the company had suffered harm as a result.
Further, the employee's outburst in which he told his manager to "f— off" on a telephone call was not just cause for dismissal. It was said on a private call and there was no "scene" in front of other employees or the public. The employee had an unblemished work record. The manager admitted that he fired the employee in the heat of the moment.
The court therefore decided that the employee, who had 3.5 years of service and an annual salary of $82,000.00, was entitled to 4 months of pay in lieu of notice. He was therefore entitled to approximately $28,000 in damages.
Bohnet v Rebel Energy Services Ltd., 2018 ABPC 131 (CanLII)
Court declines to quash "bid ban" imposed by City on paving company for safety and other reasons
Posted on Jul 20th, 2018 By Adrian Miedema
Categories: Caselaw Developments, Safety - Risk Management, Safety Professionals - Practice Issues
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A recent Ontario court decision illustrates the serious business implications that Occupational Health and Safety Act compliance issues or disputes can have on a company.
The City of Sudbury banned a paving company, Interpaving, from bidding on City contracts for four years. The City gave three reasons for the ban. According to the City: (1) Interpaving had sued the City in relation to five City projects or contracts; (2) Interpaving violated health and safety legislation, and (3) Interpaving had "a significant history of abusive behaviour and threatening conduct" toward City employees.
With respect to safety issues, the City noted an incident in 2015 in which a pedestrian was struck and killed by a construction vehicle as she entered a construction zone in which Interpaving was working. The Ministry of Labour issued compliance orders against Interpaving and the City. Interpaving took the position, in appeals of those orders, that the City and not Interpaving was the constructor under the OHSA. The City claimed that Interpaving failed to understand its obligations under the OHSA including its role as constructor and failed to cooperate with the City on safety matters.
Interpaving asked the court to overturn the bid ban. It argued that the City had not followed a fair process in coming to the decision to impose the bid ban. The majority of the court disagreed. The majority decided that although the City had initially breached its obligation of procedural fairness (by not giving Interpaving notice of its intention to debar, the City's grounds for debarring, a description of the potential penalties and an opportunity to respond), the City had "cured" that breach through its "reconsideration and process which gave Interpaving full opportunity to be heard.
The Court stated:
In the Debarment Letter, the City made reference to "numerous orders in relation to projects that Interpaving has been involved in for the City…including seven orders in relation to the City's Elgin Street Project issued by the Ministry of Labour". The reference to OHSA orders was also made under the heading "Poor Contract Performance". Contrary to the assertion made by Interpaving, there is nothing unreasonable in the consideration of OHSA orders in connection with the quality oflnterpaving's contract performance. [emphasis added]
Interpaving stated that it employed 200 people in the city and an additional 200 in the summer. This type of "debarment" decision by public entities can have a serious impact on businesses. The Court decision indicates that Interpaving's road paving business is primarily in the City of Greater Sudbury.
Interpaving Limited v. City of Greater Sudbury, 2018 ONSC 3005 (CanLII)
OHSA charges in fatality case dismissed for delay. Crown did not have "concrete plan" to move case along
Posted on Jul 5th, 2018 By Adrian Miedema
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An Ontario appeal judge has upheld the dismissal of Occupational Health and Safety Act charges against employees due to delay.
The charges resulted from the death of a mining employee from cyanide intoxication by way of skin absorption. The company itself had pleaded guilty to criminal negligence charges, after which all fifteen OHSA charges against the company were withdrawn. Criminal charges against one of the employees were withdrawn at the same time.
The total delay in this case, from the laying of the charges until the last day scheduled for trial, was 21 months, which exceeded the 18-month presumptive delay ceiling set out by the Supreme Court of Canada in the Jordan case.
The trial judge found that the Ministry of Labour prosecutor had breached his duty to develop and follow a concrete plan to minimize the delay due to the complexity of the case. Also, it was not reasonable for the prosecutor to fail to seek trial dates until 5 1/2 months before the 18-month "presumptive ceiling" for delay. Further there was no effort by the prosecutor until late in the case, to seek to narrow the issues or shorten the trial by seeking admissions, attempting to negotiate an agreed statement of facts, or seeking agreement regarding documents, despite being invited by the defence to do so. The trial judge therefore concluded that the prosecutor's trial management fell well below the standard set out in the Jordan, and the appeal judge upheld that finding.
In the result, the appeal judge upheld the trial judge's decision to stay the charges against the employees for delay, bringing the prosecution to an end – despite the fact that the charges were particularly serious as they resulted from a fatality.
R. v. Nugent, Guillemette and Buckingham, 2018 ONSC 3546 (CanLII)
"Distracted" by cell phones, forklift operators were guilty of OHSA offence
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Two forklift operators at a bottling plant have been found guilty after they were served with tickets under the Occupational Health and Safety Act charge for using cell phones while sitting on their forklifts. The charge was operating equipment in a manner that may endanger a worker: one could say "distracted driving", but on a forklift.
A coworker staged a work refusal after observing the forklift operators using cell phones while seated on their forklifts. A Ministry of Labour inspector was called in. The coworker, who was retired at the time of trial, testified that one operator was seen sitting on the forklift looking at the cell phone while the forklift was stationary and not moving, and the other operator was seen showing his cell phone to another employee.
The court did not accept the forklift operators' version of events: one said that he had used his cell phone only to check the time, and the other said that he was off of his forklift and that it was actually another employee who had been using his cellphone. The court found that they had their cell phones with them and were using them.
The court decided that "operating or using" a forklift included sitting on a forklift even when it was stopped and turned off; other workers and forklifts may be nearby and put at risk by the operator's distraction and inattention to his surroundings while using the cell phone. Further, the employer had a clear rule prohibiting use of cell phones in the warehouse, and even displayed a poster with a cell phone with a slash through it. The operators were therefore guilty of the OHSA charge against them.
"Like motorists who unlawfully hold or use cellphones or other mobile communication devices while operating or driving motor vehicles on public highways in Ontario, workers that use cellphones or other mobile communication devices while operating equipment or machines in factories or warehouses, such as a forklift, would also pose the same danger to themselves or others, as a consequence of being distracted to what is going on around them while using those mobile communication devices."
Ontario (Ministry of Labour) v. Nault, 2018 ONCJ 321 (CanLII)
MOL inspector's compliance orders, claiming that employer's harassment investigation was not "appropriate", suspended on appeal
Posted on May 18th, 2018 By Adrian Miedema
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The Ontario Labour Relations Board has suspended a Ministry of Labour inspector's compliance order relating to an employer's harassment investigation after the employer appealed the orders and the complainant resigned.
The MOL inspector's compliance order read as follows:
The employer shall ensure that an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances to protect a worker from workplace harassment. At the time of this visit, additional information regarding an allegation of workplace harassment was reported to the employer by this Inspector and an investigation appropriate in the circumstances had not been conducted by the employer.
The OLRB noted that the person who filed the harassment complaint and reported it to the MOL had since resigned. Also, the employer said that it had investigated the complaint and reported the result to the parties.
The OLRB stated that there was nothing in the application (the appeal document) suggesting that there would be ongoing safety issues posed to any workers, including the worker who complained, if the compliance orders were not suspended.
Because the MOL had not opposed the employer's request for suspension of the compliance order, the "low threshold for establishing a prima facie case" had been met. There did not appear to be any reason to defer to the MOL inspector. The compliance order was therefore suspended pending the result of the appeal.
A link to the decision may be found here.
Harassment arbitration hearing should be open to the public, including the press, arbitrator rules
Posted on May 2nd, 2018 By Adrian Miedema
Categories: Caselaw Developments, Safety Professionals - Practice Issues, Violence and Harassment
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A police union's harassment grievance arbitration hearing should be open to the public, including the press, despite the sensitive issues that it raised, a labour arbitrator has ruled. The case illustrates the publicity risk that employers face in many workplace disputes, and the need for employers to consider publicity when analyzing litigation risk.
The grievance alleged that the police services board failed to provide a harassment-free workplace to its civilian members. The issues had resulted in two workplace investigations that had not resolved the dispute.
The arbitrator noted the general requirement, under the Statutory Powers Procedure Act, that a hearing be open to the public. The police board argued that the press should be excluded. Two officials with the police force, who were "interested parties" at the arbitration, argued that the hearing should be held in camera – that is, closed to the public and the media.
The arbitrator disagreed. There were a number of factors in favour of having an open-to-the-public hearing. This was not a case about a single employee; it raised broader issues about the workplace. A number of members of the police service were already aware of the case. The police service was a public body, which was a strong factor in favour of having the hearing be open to the public including the press. The particular reporter who wished to attend the hearing had said that he would not audio-record it, and the risk that media reports would influence witnesses who had not yet testified was low. Although some of the evidence at the hearing might reflect poorly on some of the participants, the arbitrator noted that there may be publicity about this matter regardless of whether media is present.
In the result, the arbitrator ruled that the hearing be open to the public.
Durham (Regional Police Association) v Durham (Regional Police Services Board), 2018 CanLII 28649 (ON LA)
Armoured car employee's work refusal due to Christmas crowds was not justified
Posted on Apr 20th, 2018 By Adrian Miedema
Categories: Caselaw Developments, Safety - Risk Management, Violence and Harassment
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A federal adjudicator has decided that an armoured car worker was not justified in refusing to do a "run" at a mall because of the crowds during the Christmas shopping season.
The employee claimed that due to crowds, he was unable to maintain a "21 foot perimeter" when he went into the mall, crowded with Christmas shoppers, and that that put him at increased risk of a robbery. He therefore argued that under the Canada Labour Code, he was justified in refusing to work.
The adjudicator rejected the employee's argument, finding that the evidence had not proven that there were serious crowds at the mall in the morning when he did the "run". Further, there had not been a robbery at the particular shopping centre in the last 10 years. The adjudicator concluded that the employee was not exposed to an imminent or serious threat to his life or health. Therefore his work refusal was not justified.
The adjudicator's decision may be read here.
Traffic control firm violated safety rules, could not avoid responsibility by blaming employee
Categories: Caselaw Developments, Government Safety Investigations, Safety Professionals - Practice Issues
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A company that provided traffic control services has lost an appeal of two compliance orders issued against it under occupational health and safety legislation.
The compliance orders required the company to ensure that all traffic control signage was available and installed, and that a traffic control plan and checklist was completed prior to a traffic control setup.
The company appealed the compliance orders to the Nova Scotia Labour Board, arguing that the safety officer should have issued the orders to an employee, not to the company, as signage was readily available to the employee and he had failed to draw upon his knowledge, training and experience.
The Labour Board dismissed the appeal, deciding that there was inadequate supervision of employees and the workplace; there was inadequate signage for several hours; the company's area supervisor had arrived at the site hours after the work had started, even though the employee in question had a history of similar infractions; and the area supervisor left the site before the situation was corrected. As such, the company had not done all that it could do to comply with its safety obligations under the Occupational Health and Safety Act. It could not avoid responsibility by blaming the employee. The company's appeal of the compliance orders was dismissed.
The Labour Board's decision may be read here.
Out-of-business company that did not defend OHSA charges, fined $1.3 million after two workers killed
Posted on Apr 6th, 2018 By Adrian Miedema
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A defunct mining company that went out of business in 2016 has been fined $1.3 million under the Ontario Occupational Health and Safety Act after being found guilty on six charges. This is one of the largest OHSA fines in Ontario history. However, it should be noted that the company, First Nickel Inc., did not defend this Ministry of Labour prosecution.
The fine included:
-$250,000 for failing to ensure that part of the underground mine was kept free of accumulations or flow of water
-$350,000 for failing develop a quality control program to ensure that ground support systems were properly installed and remained effective
-$300,000 for failing to ensure that a written record was made by the shift supervisor about the dangerous condition
-$100,000 for failing to ensure that a written report was provided to the Ministry of Labour where a fuse, a detonator or an explosive is found to be defective
-$150,000 for failing to develop a written program to provide for the timely communication of information between workers and supervisors in the mine respecting ground stability, ground movement, falls of ground, ground monitoring equipment and emergencies
-$150,000 for failing to examine the ground conditions of the workplace for dangers and hazards and, if required, made safe
The MOL notes, in its press release, that the mine closed in 2015, the company was not represented in court, and the company went out of business in 2016.
The MOL press release can be accessed here.
Nurse's critical comments at union conference about workplace violence in hospitals were not just cause for dismissal
Posted on Mar 22nd, 2018 By Adrian Miedema
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A mental health nurse whose critical comments, in a closed-door union meeting, about workplace violence in hospitals were later published online by a local newspaper and in a union press release without her knowledge or permission, has been reinstated by an arbitrator with back pay.
The comments in the union press release that were attributed to the nurse included:
"Staff at hospitals with forensic psychiatric units or those with medium security units where patients come direct from area prisons are "easy targets for violence" on understaffed wards. Many of these patients are strong and aggressive young offenders and nurses are told that "the violence is part of the work we do. Nurses are often blamed directly by the employer for the assaults that are directed at them. Or supervisors tell nurses 'thanks for taking one for the team'. Often nurses face reprisals for reporting incidents of violence and when we demand increased security matters,' says Sue McIntyre a North Bay psychiatric RPN."
When her comments were published online by the local paper, the nurse intervened and had the comments taken down within three hours of being posted. The employer concluded that the comments were about the hospital and its staff and patients, not general comments about hospitals, and that the comments were false and had harmed the hospital's reputation. It dismissed her, claiming just cause.
The union grieved the dismissal. The arbitrator decided that dismissal was excessive. A one-week suspension was more appropriate. The comments were made at a legitimate closed-door trade union meeting about workplace safety. Workplace violence was an important issue in the hospital sector. Media were not present or invited. The nurse did not intend the comments to be public. She was given very little time to think about and prepare her comments. The union press release and newspaper article were published without her knowledge or consent. She took prompt steps to have any comments attributed to her removed from those documents.
The arbitrator decided, however, that it was not entirely unforeseeable that the comments would become public, so she must bear some responsibility for the words that she spoke. Also, the comments were not truthful to the extent that they were comments about the hospital at which she worked. She had previous discipline on her record. In the circumstances, a one-week suspension was appropriate, and the employer was ordered to reinstate the nurse with back-pay.
North Bay Regional Health Centre v Canadian Union of Public Employees, Local 139, 2018 CanLII 6645 (ON LA)
Possession of "small amount" of marijuana was just cause to fire employee who had "not carefully checked his pockets" before screening to board flight for offshore platform
Posted on Feb 27th, 2018 By Adrian Miedema
Categories: Caselaw Developments, Safety - Risk Management, Safety Professionals - Practice Issues, Uncategorized
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An appeal court has upheld the firing of a unionized millwright who was caught with a small amount of marijuana in his jeans pocket during screening prior to boarding a helicopter that would transport him and other employees to an offshore platform. The employer had a policy prohibiting possession of an "illegal drug", including marijuana, "while on company facility or while performing company business".
The employee, who was employed on a "call-in" or casual basis, claimed that he was "in disbelief that it was there" and that he "did not know how it got in his pocket". The labour arbitrator found that the employee likely knew that he possessed marijuana (noting that he did not protest "loud and long" that the marijuana was not his or that he had no knowledge of his having possessed it) but had forgotten it and had not carefully checked his pockets. The arbitrator had upheld the employer's decision to dismiss the employee, but a judge of the Newfoundland Supreme Court had set that decision aside.
The Newfoundland and Labrador Court of Appeal restored the arbitrator's decision, stating:
"To avoid disciplinary action, the employee was required to establish that he had taken all reasonable care to ensure that he did not breach the Policy by having possession of marihuana. The arbitrator reviewed the circumstances and the explanation provided by the grievor and concluded that he had not satisfied this onus. Rather, the arbitrator found that the grievor more probably than not knew about the marihuana in his pocket, but had forgotten it was there and had not carefully checked his pockets before entering the screening area . . . The employee's actions did not establish that he had taken all reasonable care to ensure that he did not breach the Policy. He did not meet the standard of the reasonable person in similar circumstances."
The employer's decision to dismiss the employee was therefore upheld.
Terra Nova Employers' Organization v Communications, Energy and Paperworkers Union, Local 2121, 2018 NLCA 7 (CanLII)
Banned from pool and fitness facility, man who requested "young, hot female trainer" was not discriminated against because of mental disability
Posted on Feb 22nd, 2018 By Adrian Miedema
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A man who requested that a municipal pool and fitness facility provide him with a "young, hot female trainer like" (name redacted), and who earlier had swam up to three nine-year-old boys playing on a floating raft and engaged in conversation with them, was not discriminated against because of a physical or mental disability when the facility banned him.
The man filed a complaint with the British Columbia Human Rights Tribunal asserting that the facility had discriminated against him because of a disability (hypoglycemia, which he said affected his cognition in these instances, and depression).
The Tribunal dismissed his complaint. The Tribunal noted that the complainant had provided no medical evidence that hypoglycemia affected his conduct. At the time of the events, the complainant gave no indication that he was experiencing symptoms of hypoglycemia. Also, nothing in the complainant's evidence suggested that his disabilities, either physical or mental, were known or readily observable, and therefore the facility had no "duty to inquire" into whether he had a mental disability that had influenced his actions.
The Tribunal stated that the complainant's email setting out his request for a female trainer was "reflective of attitudes that found expression in a bygone era and that are inappropriate, particularly in the circumstances of this case. The Complainant's email does not reflect an uncontrollable comment blurted out, but rather appears to reflect a deliberate train of thought."
In the result, the Tribunal dismissed the complaint in its entirety.
Hammell v. Corporation of Delta and another, 2017 BCHRT 246 (CanLII)
MOL consulting on changes to Industrial Regulations – new requirement of written risk assessment proposed
Categories: Amendments to Safety Laws, Safety - Risk Management
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The Ontario Ministry of Labour is consulting on proposed changes to the safety regulation that applies to most businesses in Ontario: the Industrial Establishments regulation under the Occupational Health and Safety Act. Offices, factories, shops and restaurants – and many other workplaces – are caught by this regulation.
One proposed change is particularly notable: it would require employers to assess the risks of hazards that arise from the workplace, at least annually, and provide the results in writing to the joint health and safety committee. The risk assessment requirement would be an "if you do nothing, you will be in breach" obligation, which requires employers to take a positive step in order to comply. That requirement would not apply to workplaces at which fewer than 20 workers are regularly employed.
The amendments would also require employers to develop and maintain written measures to control the risks identified in the risk assessment and, where practicable, eliminate the hazards. There are relatively few requirements on industrial employers under the OHSA to put things in writing, but this will be one such requirement.
The risk assessment would open up a new liability risk for Ontario employers: employers who neglect to do the risk assessment may be charged and fined for failing to do it; employers who conduct the risk assessment may have the MOL argue that they did not adequately address the risks identified. Mining employers already have similar risk assessment obligations.
The MOL, on its website, states that the government is proposing a number of other amendments to the Industrial Establishment regulations:
"• Update existing requirements regarding guardrails, fall protection, protection against drowning, signallers, eyewash fountains and deluge showers to reflect current workplace practices, processes and technologies; . . .
• Add new requirements for scaffolds and suspended access equipment, similar to existing requirements currently set out in O. Reg. 213/91 (Construction Projects);
• Add new, specific requirements for storage racks and for high visibility safety apparel for signallers to improve worker health and safety and to improve clarity and transparency regarding compliance expectations; and
• Make additional amendments for clarification and to increase alignment between OHSA regulations."
The MOL is receiving comments on these proposed new requirements until April 6, 2018. The comment link is at the bottom of the MOL's web page on the proposed amendments.
3 1/2 year jail term upheld on appeal in criminal negligence case against Metron Project Manager
Posted on Feb 2nd, 2018 By Adrian Miedema
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The Court of Appeal for Ontario has upheld the criminal negligence ("Bill C-45") conviction and 3 1/2 year jail term imposed on Vadim Kazenelson, the Project Manager for Metron Construction. The charges arose from an incident in which four workers fell to their death and a fifth had permanent injuries after a swing stage collapsed. None of those workers was attached to a lifeline.
You can view our previous posts on this case here.
The trial judge had, in sentencing Mr. Kazenelson to 3 1/2 years in jail, stated that Mr. Kazenelson not only did nothing to rectify the dangerous situation, he permitted all six workers to board the swing stage together with their tools; he did so in circumstances where he had no information with respect to the capacity of the swing stage to safely bear the weight of the workers and their tools; and he "adverted to the risk, weighed it against Metron's interest in keeping the work going, and decided to take a chance. That is a seriously aggravating circumstance in relation to the moral blameworthiness of his conduct." Mr. Kazenelson was aware that there was a deadline for completing the work and that his boss was intent on meeting it.
The Court of Appeal for Ontario rejected Mr. Kazenelson's arguments that he should not have been found guilty of criminal negligence. Mr. Kazenelson's argument that the "approach of the trial judge stretches penal negligence too far" given that this was the first conviction of an individual supervisor under section 217.1 of the Criminal Code (which section was added by Bill C-45 in 2004) was rejected. The appeal court also rejected the argument that Mr. Kazenelson did not show "a wanton and reckless disregard for the workers".
With respect to the jail sentence, the appeal court rejected the argument that Mr. Kazenelson's jail term should be shortened because the other workers were "contributorily negligent"; the court agreed with the trial judge's reasoning that such argument "would ignore the reality that a worker's acceptance of dangerous working conditions is not always a truly voluntary choice. It would also tend to undermine the purpose of the duty imposed by s. 217.1 of the Criminal Code, which is to impose a legal obligation in relation to workplace safety on management." The appeal court also rejected the argument that, because Mr. Kazenelson was a first-time offender, the trial judge placed too much emphasis on "general deterrence".
This case has, and will continue to, send a message to employers and supervisors that criminal negligence charges – in addition to Occupational Health and Safety Act charges – are a real possibility after serious workplace accidents, particularly accidents involving fatalities or serious permanent injuries.
R. v. Kazenelson, 2018 ONCA 77 (CanLII)
"Absolute privilege" barred former employee's complaint that employer's confidential-information lawsuit against him was retaliatory under OHSA
Posted on Jan 25th, 2018 By Adrian Miedema
Categories: Caselaw Developments
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The legal doctrine of "absolute privilege" prevented an employee from complaining that his former employer's lawsuit against him was in retaliation (reprisal) for the employee filing a previous safety-retaliation complaint against the same employer.
Sometime after it terminated the employee's employment, the employer started a lawsuit against the employee alleging that he had taken confidential information belonging to the employer. The employee then brought a complaint to the Ontario Labour Relations Board (actually his second safety-reprisal complaint), alleging that the employer's lawsuit was itself in retaliation for him bringing the previous safety-retaliation complaint and therefore that the employer's lawsuit violated the Occupational Health and Safety Act and entitled him to damages.
The OLRB noted that the legal doctrine of "absolute privilege" is "rooted in the public policy concern for ensuring freedom of speech in the context of judicial and quasi-judicial proceedings". That is, lawyers and parties should be free to draft and serve legal pleadings, asserting their legal position, without fear that the words used in such pleadings, or the fact that they commenced the legal proceedings, could themselves form the basis for a lawsuit against them.
The OLRB decided that, in this case, the starting of the confidential-information lawsuit against the employee was protected by absolute privilege, and therefore could not be used as the basis of a safety-retaliation complaint against the employer at the OLRB. As such, the employee's OLRB complaint was dismissed.
Lawrence Hill v Deltro Electric Ltd., 2017 CanLII 87176 (ON LRB)