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MOL engineer not qualified to give expert evidence: he was too involved in the investigation, too closely identified with prosecution at trial

An Ontario judge has refused to permit a professional engineer employed with the Ontario Ministry of Labour to testify as an expert in a health and safety prosecution.

A company was charged under the Occupational Health and Safety Act after a drill rig tipped over on a construction site, causing one death and one serious injury.  The cause of the accident was key to the case.

The MOL engineer had prepared a report in which he explored all of the possible causes from an engineering perspective.  He concluded the report with his own opinion as to the root cause of the accident.

The judge held that the MOL engineer was “inextricably bound up with the investigation of this case”.  He was the first person on the scene of the accident along with the MOL’s lead investigator.  He had been closely involved in the MOL’s investigation throughout.  At each point in the MOL’s investigation, the engineer had been performing at least two roles: (1) he was himself investigating directly by his observations, and (2) he was assisting the investigators by being the contact person with the technical knowledge beyond the expertise of the lead MOL investigator.

The judge noted that being an MOL employee did not disqualify the engineer from offering an expert opinion.

However, his extensive involvement in the investigation that led to the MOL laying the Occupational Health and Safety Act charges, and his enthusiastic identification with the prosecution during the trial, led the judge to conclude that the engineer could not give an unbiased opinion on the root cause of the collapse of the drilling rig.  As such, the court refused to qualify the MOL engineer to give expert evidence at trial.

The Ministry of Labour in Right of the Province of Ontario v. Advanced Construction Techniques Ltd. (Justice B. Knazan, April 21, 2015)

MOL engineer not qualified to give expert evidence: he was too involved in the investigation, too closely identified with prosecution at trial

Cost of compliance with safety officer’s order could cause serious economic harm to company: Appeals Tribunal

A safety officer’s compliance order has been suspended where the cost of compliance would be so high that it could cause serious economic harm to the company.

The company performed stevedoring and terminal handling of containers at the Port of Montreal.  It employed “checkers” who used Toyota Echo and Yaris cars to move about the Port coordinating work.  A federal health and safety officer decided that the lighting levels of two terminals at the Port were below the prescribed standards.  She issued a direction requiring the employer to end the violation and increase lighting levels.
The company appealed and applied for a suspension of the direction.  The company presented evidence that in order to comply with the direction, it would need to install 10 new “lighting towers” at a total cost of at least $2 million.  The company also noted that it was impossible to install new lampposts by the compliance deadline because it was winter and the ground was frozen.

The federal Occupational Health and Safety Tribunal Canada decided that the direction should be suspended pending the outcome of the appeal. Firstly, there was a serious legal issue as to whether the direction was legally correct. Secondly, the company would suffer serious harm if the direction was not suspended.  First, it appeared impossible to comply with the direction, by the deadline, given the weather conditions and engineering work involved.  The company could suffer serious economic harm that could threaten the company’s viability, given the cost of compliance.  Further, the inspector took 9 months, after her inspection, to issue the direction, suggesting that the lighting levels did not pose a serious hazard.  Thirdly, the company was willing to put additional safety measures in place – including painting the cars a different colour, installing an LED light at the tip of the flag on the car, and adding lights to the checkers’ safety vests – that adequately protected the checkers.

The Tribunal agreed to suspend the direction on the condition that the company takes action, immediately, to put into place the additional safety measures.

Termont Montréal Inc. v. Syndicat des Débardeurs, ILA Local 375 and Syndicat des Vérificateurs, ILA Local 1657, 2015 OHSTC 7 (CanLII)

Cost of compliance with safety officer’s order could cause serious economic harm to company: Appeals Tribunal

Ontario MOL Releases 2015-16 Safety Inspection Blitz Schedule

The Ontario Ministry of Labour has released its schedule of workplace inspection blitzes for the period from May 2015 to March 2016. The schedule gives employers advance notice of what MOL inspectors will look for when they visit workplaces.

The “province-wide” occupational health and safety blitz schedule is as follows (the MOL has also released a schedule for its “Provincial Initiatives” and “Regional Initiatives”, which can be found on the MOL’s website):

Focus

Sector/Business Type

Date

Struck By Hazards  Construction May – June 2015
New and Young Workers  Industrial May – August 2015
Trenching Hazards  Construction July – August 2015
Mobile Equipment Traffic Control Measures  Mining July – August 2015
Material Handling  Industrial September 14 –
October 23, 2015
Heavy Equipment Operation  Construction October –
November 2015
Modular Training  Mining October –
November 2015
Safe Operation of Machinery  Industrial January 18 –
February 26, 2016
Occupational Disease

 

Mining February –
March 2016

 

 
Ontario MOL Releases 2015-16 Safety Inspection Blitz Schedule

Manager was not a “competent person” to conduct harassment / violence investigation under Canada Labour Code: Court

The Federal Court has held that a manager was not a “competent person” to conduct a workplace harassment investigation under the Canada Labour Code because the employee who filed the complaint had not agreed that the manager was an “impartial party”.

In December 2011, an employee of the Canadian Food Inspection Agency filed a written complaint alleging “miscommunication, favouritism, humiliation, unfair treatment and a lack of respect” on the part of his supervisor.

The CFIA assigned a manager to undertake a “fact-finding” review of the concerns raised in the complaint.  The manager conducted internal investigations and concluded that there were communication issues and unresolved tension, but no evidence of harassment.

The employee contacted a federal Health and Safety Officer, alleging that the manager was not sufficiently impartial to conduct an investigation. The HSO issued a Direction requiring the CFIA to appoint an impartial person to investigate the complaint pursuant to the Canada Labour Code.  The CFIA appealed that direction to an Appeals Officer of the Occupational Health and Safety Tribunal of Canada (who sided with the CFIA), and the employee then appealed to the Federal Court.

The court noted that section 20.9 of Part XX to the Canada Occupational Health and Safety Regulations under the Canada Labour Code sets out procedural obligations of an employer if it receives a complaint of “workplace violence”.  The court held that “harassment may constitute workplace violence, depending on the circumstances”.  The court stated that the alleged harassment in this case could constitute “workplace violence” if after a proper investigation by a competent person it is determined that the harassment could reasonably be expected to cause harm or illness to the employee.  (Workplace Violence is defined in that Regulation as, “any action, conduct, threat or gesture of a person towards an employee in their work place that can reasonably be expected to cause harm, injury or illness to that employee.”

The court noted that under the workplace violence provisions of the Regulation, a person is a “competent person” to conduct a workplace violence investigation if he or she is “impartial and is seen by the parties to be impartial” and has the necessary knowledge, training and experience.

In this case, the employee who filed the complaint did not agree that the manager was impartial.  The court stated:

“What the employer did here was have the Regional Director, Mr. Schmidt, not only institute a pre-screening and fact finding exercise to determine the nature of the complaint and attempt to facilitate mediation, but also conduct a full investigation of the complaint, acting as a competent person under section 20.9(3). In his report, Mr. Schmidt mentions ‘investigation’ eight times and refers to his review of the evidence before him. He was not competent to do so, given there was no agreement that he was an impartial party by the employee and therefore had no authority to conduct any investigation, once the allegation of work place violence was unresolved at the pre-screening stage and still a live issue between the parties.”

As such, the manager’s investigation was essentially unusable, and the court referred the matter back to the Appeals Officer for re-determination of the issues in accordance with the court’s decision.

This decision shows the importance of employers – at least federally-regulated employers who are subject to the Canada Labour Code – of strictly complying with the workplace violence and harassment procedures set out in legislation or regulations.

Public Service Alliance of Canada v. Canada (Attorney General), 2014 FC 1066 (CanLII)

Manager was not a “competent person” to conduct harassment / violence investigation under Canada Labour Code: Court

Mere posting of standard operating procedure was not enough: OLRB refuses to suspend MOL inspector’s training order

Employers often post new procedures in the workplace without providing formal training.  A recent decision of the Ontario Labour Relations Board suggests that for some work procedures, posting is not enough; rather, training is required.

After a concern was expressed, a transit company updated its Standard Operating Procedure on how to handle a complete brake system pressure loss.  A Ministry of Labour inspector asked whether all affected employees have been trained on the updated procedure, which had been posted on information boards and video screens.  The employer’s response was that affected employees should read the information boards and video screens.

The inspector was apparently concerned that the employer could not prove that all affected employees were aware of the new procedure or how it was to be applied.  The inspector ordered the employer to “provide instruction and training” on “the hazards of vehicular traffic in the event of a complete brake system pressure loss in a bus”.

The employer appealed the order and argued that there was no suggestion that the employees did not understand the updated procedure or that they were not aware of it. As such, said the employer, the inspector’s order should be suspended pending the appeal.

The Ontario Labour Relations Board held that the failure to train or instruct on the updated procedure could endanger the safety of employees.  Further, the training did not put an onerous burden on the employee.  As such, the mere posting of the procedure was not enough, and the MOL inspector’s training order was not suspended.

London Transit Commission v Amalgamated Transit Union, 2014 CanLII 68423 (ON LRB)

Mere posting of standard operating procedure was not enough: OLRB refuses to suspend MOL inspector’s training order

“Not the right fit”? Fired hours after MOL inspector’s visit, employee awarded $19,000 in damages

Employers who have bona fide reasons for dismissing an employee should avoid using “not the right fit”. They should also show up at Ontario Labour Relations Board hearings.

An employee who was dismissed hours after a Ministry of Labour inspector’s visit, was fired in retaliation for raising safety issues and was awarded $19,000.00 in damages.

The employee was a maintenance manager at a hotel.  In May 2014, an anonymous telephone call was made to a MOL health and safety inspector regarding floor drains backing up at the hotel as well as a “precariously hanging partition wall hanging in the ballroom”.  Around the same time, the employee had informed the hotel’s General Manager that the employee required a fall protection harness in order to work on a 25 foot high scaffold. The General Manager refused his request and ordered him to do the work without a safety harness.

The MOL inspector met with the employee and General Manager, and issued an order that required the hotel to use a suitable company to repair the partition wall as it was too dangerous for the maintenance department to repair.  Despite that, the General Manager continued to pressure the employee to climb the scaffold.

A few hours after the inspector left, the General Manager dismissed the employee. The termination letter stated that the employee was “not the right fit to our hotel property”, while the hotel’s response to the employee’s reprisal complaint at the OLRB claimed that he was “not skilled enough for the position” and that he had not been terminated “because he refused dangerous work”.

The Ontario Labour Relations Board found that the hotel’s “attempted explanation” for the employee’s dismissal was questionable, “to express it mildly”.  If the employee had not been the right fit, or was not skilled enough, then there would have been written or verbal evidence to that effect.  However, there was no evidence that the employee had any shortcomings, and in fact the General Manager had responded “Awesome” to an e-mail from the employee in which he had described some “things which I would like to accomplish in the maintenance department”.  No one had attended the OLRB hearing for the hotel.

The OLRB decided that the employee had suffered a reprisal under the Occupational Health and Safety Act: he was fired for raising safety issues.  That was a violation of the OHSA.  There was no other possible conclusion.  The OLRB awarded the employee six months’ wages, amounting to $19,000.00, and ordered the hotel to post a copy of the OLRB’s decision in the hotel’s premises so it could be read by maintenance staff.

Sean Rapke v Sylvanacre Properties Limited o/a Four Points Sheraton, 2014 CanLII 75962 (ON LRB)

“Not the right fit”? Fired hours after MOL inspector’s visit, employee awarded $19,000 in damages

Employer Who Voluntarily Complied with MOL Inspector’s Orders Was Not Entitled to Suspension of Orders Pending Appeal

The Ontario Labour Relations Board has held that where an employer had complied with a Ministry of Labour inspector’s compliance orders under the Occupational Health and Safety Act, to the satisfaction of the MOL, the operation of the orders should not be suspended while the employer appeals the orders.

Employers sometimes appeal MOL inspectors’ orders after an accident, in the hopes of obtaining a decision from the OLRB that the employer did not commit any violation of the OHSA that would justify the orders.  Such a decision can be useful in avoiding charges under the OHSA.

In those cases, employers will often seek a suspension of the inspector’s orders until the appeal is decided.

The OLRB decided, however, that where the employer has already complied with an order, the suspension request is moot and should not be granted. In particular, there was no prejudice to the employer if the operation of the order was not suspended.

This decision shows that an employer wishing to obtain such a suspension cannot voluntarily comply with the orders. Instead, the employer must quickly appeal the order and apply for a suspension, before the deadline set by the MOL inspector for compliance with the order.  The employer may, however, proceed with the appeal of the (unsuspended) order.

Horizon Utilities Corporation v A, 2014 CanLII 75404 (ON LRB)

Employer Who Voluntarily Complied with MOL Inspector’s Orders Was Not Entitled to Suspension of Orders Pending Appeal

Where MOL Inspector Withdraws OHSA Compliance Order, OLRB Cannot Reinstate While Appeal Argued

Although an employer may appeal a Ministry of Labour inspector’s rescission (withdrawal) of a compliance order that he or she wrote to an employer under the Occupational Health and Safety Act, the Ontario Labour Relations Board cannot suspend that rescission – effectively reinstating the order – until the appeal is decided, the OLRB has held.

In July 2014, an MOL inspector issued 4 orders against the Ontario Ministry of Children and Youth Services.   In August, the inspector rescinded 3 of those orders.

The union, Ontario Public Service Employees Union, appealed the rescission of the 3 orders and asked the OLRB to suspend the inspector’s rescission of those 3 orders pending the result of the appeal.  Effectively, the union was asking for the orders to be reinstated while the appeal was being argued.

The OLRB refused to suspend the rescission of the 3 orders. It stated that the OLRB has authority to suspend the operation of an order, but not of a non-order.  The MOL inspector’s rescission of the order was equivalent to not issuing an order.   There was nothing to suspend.

This means that where an MOL inspector withdraws a compliance order under the OHSA, the order will remain withdrawn unless and until the OLRB, after hearing the full appeal, reinstates the order.

Ontario Public Service Employees Union v Ontario (Ministry of Youth and Children Services), 2014 CanLII 75073 (ON LRB)

Where MOL Inspector Withdraws OHSA Compliance Order, OLRB Cannot Reinstate While Appeal Argued

Total fines now $1.24 million in Christmas Eve fatalities after swing stage company and director fined

The total of safety fines paid for the December 24, 2009 swing stage collapse fatalities is now $1,240,000 after Swing N Scaff Inc., the company that supplied the swing stage platform (a suspended work platform), was fined $350,000.00 and a director of Swing N Scaff was fined $50,000.00 under the Ontario Occupational Health and Safety Act.

Four parties have now been convicted and fined as a result of this tragic accident: Metron Construction Corporation, a director of Metron, Swing N Scaff and a director of Swing N Scaff.

The Ministry of Labour states, in its press release, that at least six workers were on the swing stage suspended 13 floors above the ground when it broke apart in the middle and collapsed.  Ministry of Labour investigators found that the welds on the platform were inadequate.  Tragically, four workers died.

Swing N Scaff pleaded guilty to the Occupational Health and Safety Act offence of failing to ensure that a suspended platform and/or a component supplied to Metron Construction was in good condition.

The director of Swing N Scaff pleaded guilty to failing to take all reasonable care to ensure a suspended platform was in good condition and that a platform weighing more than 525 kilograms was designed by a professional engineer in accordance with good engineering practice.

Previously, Metron Construction was fined $750,000.00 for criminal negligence under the “Bill C-45″ amendments to the Criminal Code; that amount was increased on appeal from the $200,000.00 fine set by the trial justice.  Metron’s Criminal Code liability resulted from the actions of its site supervisor, who Metron admitted was a “senior officer” of Metron, so that his actions were taken to be the actions of Metron.  The site supervisor had directed and/or permitted six workers to work on the swing stage when he knew or should have known that it was unsafe to do so; directed and/or permitted the six workers to board the swing stage knowing that only two lifelines were available; and permitted persons under the influence of drugs to work on the project.

A director of Metron Construction was previously fined $90,000.00 under the Occupational Health and Safety Act for failing to ensure that non-English speaking workers received written material in their native languages and failing to ensure that training records were maintained; failing to ensure that the swing stage was not defective or hazardous (by allowing it to be used without having received any of the required information with respect to its capacity and use); and failing to ensure that the swing stage was not loaded in excess of the load that the platform was designed and constructed to bear.

The Ministry of Labour’s press release on the Swing N Scaff fine may be read here.

Total fines now $1.24 million in Christmas Eve fatalities after swing stage company and director fined

Failing to correct hazards, pay OSHA fines gets U.S. business owner taken into custody

An Illinois business owner has been taken into custody after his business failed to correct serious trenching hazards and pay Occupational Safety and Health Administration penalties.  The case illustrates the personal risk to business owners and executives who neglect occupational health and safety legislation.

An April 2013 statement from OSHA said that the business owner had been cited for “seven safety violations, including three willful, for failing to protect workers from cave-ins and moving soil and chunks of asphalt during trenching operations.”

A U.S. judge granted a motion filed by the U.S. Secretary of Labor against the owner, a sewer and water contractor.  OSHA states the business owner had a “long history of failing to comply with OSHA standards and orders of the independent Occupational Safety and Health Review Commission”.

OSHA reports that the court had previously issued an enforcement order against the owner and when he failed to comply, the court held him in contempt.  Then, after receiving no response from the owner, the court granted the Secretary of Labor’s motion to take “coercive actions”, ordering him placed into the custody of the Attorney General.

OSHA says that the owner will remain in custody until he has either fully complied with the court’s enforcement order or demonstrated that he is unable to comply.

OHSA’s statement on this matter may be read here.

Failing to correct hazards, pay OSHA fines gets U.S. business owner taken into custody

New Ontario Safety Blitz Targets Large Number of Industrial Workplaces

The Ontario Ministry of Labour will conduct a safety blitz of industrial workplaces from November 3rd to December 14th, 2014.

Although the MOL’s bulletin regarding this blitz does not say it, employers should ensure that all of their health and safety postings are up, and that all workers have received the mandatory health and safety awareness training; inspectors will likely be checking those items.

The MOL states that its inspectors will “visit wood and metal fabrication, manufacturing, chemical and plastics and automotive plants and other industrial sector workplaces.”  This description includes a large number of workplaces.

The inspectors will be checking for machines that are not properly guarded, locked out or blocked.  The MOL says that inspectors will also check that workplaces have a strong internal responsibility system in place; that employers are “working to prevent awkward postures and repetitive motions that could lead to musculoskeletal disorders involving injuries and disorders of the muscles, tendons, nerves, joints and spinal discs”; and that workers are protected from exposure to chemicals (such as metalworking fluids and degreasing solvents) that could cause occupational disease.

The MOL’s Bulletin on the blitz may be accessed here.

New Ontario Safety Blitz Targets Large Number of Industrial Workplaces

B.C. Appeal Court Clarifies Workplace Accident Reporting Obligations

The employer of the injured worker, not the owner of the workplace, was required to report the worker’s injury, the B.C. Court of Appeal has held, in a decision that clarifies employers’ accident reporting obligations.

The worker was injured while working on a powerline owned by British Columbia Hydro and Power Authority. The worker worked for a contractor to B.C. Hydro.

The Workers’ Compensation Board of British Columbia issued an order citing B.C. Hydro for failing to report the accident. The order referred to section 172(1)(a) of the Workers Compensation Act, which provides:

“An employer must immediately notify the Board of the occurrence of any accident that (a) resulted in serious injury to or the death of a worker”.

B.C. Hydro argued that it was not the worker’s “employer”. The Board maintained that the reporting obligation applied to “an employer” – not just the employer of the injured worker. “An employer”, said the Board, should include the owner of the worksite because it had a significant connection to the worksite and was in the best position to provide the timeliest notification to the Board.

The court decided that the Board’s decision was unreasonable. B.C. Hydro was not legally required to report the accident to the Board.  The Act did not impose a duty on owners to report accidents. Further, requiring owners to report accidents under s. 172(1)(a) would effectively require owners to carry out other obligations of “employers” under the Act including investigating the accident, preparing an accident report, and taking corrective actions. The legislature could not have intended to impose all of those obligations on owners.

In conclusion, the worker’s employer was required to report the accident to the Board, but B.C. Hydro was not.

Although the B.C. Court of Appeal did not mention the Ontario Court of Appeal’s recent Blue Mountain Resorts Limited  decision, which dealt with accident reporting obligations in Ontario, both decisions attempt to bring clarity and consistency to the government’s interpretation of accident-reporting requirements.

British Columbia Hydro and Power Authority v. Workers’ Compensation Board of British Columbia, 2014 BCCA 353 (CanLII)

B.C. Appeal Court Clarifies Workplace Accident Reporting Obligations

MOL safety blitz results show many new businesses non-compliant with basic requirements

The results of a recent Ontario Ministry of Labour safety blitz shows many new small businesses violate basic legal requirements such as posting a copy of the Occupational Health and Safety Act.  And non-compliant employers can expect future visits from MOL inspectors.

The MOL says that between April 1, 2013 and March 31, 2014, its inspectors visited new small businesses in the industrial sector that had fewer than 20 workers.  The MOL says that it focused on “businesses that had registered with the Workplace Safety and Insurance Board (WSIB), but had no prior contact with the ministry.”

Some of the  most common compliance orders issued by MOL inspectors in the blitz were: post a copy of the Occupational Health and Safety Act; prepare a health and safety policy and maintain a program; have a worker health and safety representative; have the health and safety representative conduct monthly inspections; provide “information and instruction” on workplace harassment; and maintain a workplace violence prevention program.

The MOL states that inspectors visited workplaces in the industrial sector including retail establishments, restaurants, wood and metal fabrication establishments, industrial services, wholesalers, automotive manufacturers and vehicle sales and service workplaces.

The MOL’s  enforcement initiative is being repeated in the 2014-2015 fiscal year, with each MOL industrial inspector expected to inspect four to eight small businesses with 50 or fewer workers, which have not been previously registered or inspected by the ministry. The MOL says that this initiative will “increase small business awareness of the workplace parties’ roles and responsibilities under OHSA and its regulations”, “promote awareness and compliance with new mandatory occupational health and safety training for workers and supervisors that came into effect on July 1, 2014″, and “support vulnerable workers by making them aware of their rights under the OHSA and the resources available to help them”.

As we have previously advised, employers should, in particular, ensure that they prepare and post all required postings under the OHSA, since doing so will show the MOL inspector that the employer is aware of its basic obligations and has a safety program in place.  See here for our article on health and safety posting requirements in Ontario.

MOL safety blitz results show many new businesses non-compliant with basic requirements

MOL inspector’s grievance gives glimpse into MOL’s after-hours accident response process

Ministry of Labour managers have discretion as to whether to send out an inspector when an employer calls after-hours about a workplace accident, a recent decision suggests.

An MOL inspector filed a grievance under his collective agreement claiming that when a call regarding a workplace injury came in at 5:15 pm, the call should have been referred to him and not the on-call MOL manager. The manager had determined that there was no need to send an inspector to the workplace that night.  The accident involved a broken bone which was a “critical injury” (a worker lost her footing and jumped down the last 3 stairs) under the Occupational Health and Safety Act.

The inspector claimed that he would have gone to the workplace, at least to “secure the site”, and would have earned “premium pay” for his time spent on the visit.

A vice-chair of the Grievance Settlement Board noted that the “Ministry Operations Division Policy and Procedures Reference Manual” contemplated that only after-hours calls falling within certain categories including “critical injuries” are forwarded to the inspector on-call, and that the hotline operator could contact an MOL manager if he or she required clarification or direction on any issue.  The manager had the authority to conduct “triage” and not to send an inspector to the workplace that evening.

There was no violation of the collective agreement or of the Reference Manual, so the inspector’s grievance was dismissed.

Ontario Public Service Employees Union (Beaulieu) v Ontario (Labour), 2014 CanLII 40173 (ON GSB)

 

MOL inspector’s grievance gives glimpse into MOL’s after-hours accident response process

“Disgruntled and aggressive clients” posed safety threat under OHSA

An employee who was fired after complaining to the Ministry of Labour that she felt threatened by “disgruntled and aggressive clients” was entitled to damages for the retaliatory discharge, the Ontario Labour Relations Board has decided.

The employee worked for an investment/marketing company.  She tried to speak with a company manager about her concerns with aggressive clients and about having the company develop procedures to deal with matters such as violence and harassment. The manager refused to entertain the suggestions.

The employee then contacted the Ministry of Labour and told the MOL that she felt threatened in the workplace and that her employer had no policies to deal with her concerns.  After a co-worker contacted the MOL with concerns, an MOL inspector came to the workplace and ordered the employer to prepare a violence and harassment policy.  The next day, the company dismissed the employee.

The OLRB accepted that the threat posed by “disgruntled and aggressive clients” was a workplace safety issue under the Occupational Health and Safety Act, and that the employee had characterized it as such when she had complained to management.  Also, in the absence of an explanation by the employer (the employer did not attend the OLRB hearing), the OLRB was satisfied that at least part of the company’s reason for dismissing her was her safety complaint.  As such, her termination was an illegal reprisal under the Occupational Health and Safety Act.  She found employment quickly, and was entitled to damages in the amount of four weeks’ wages.

Abigail C de los Santos Sands v Moneta Marketing Solutions Inc, 2014 CanLII 33527 (ON LRB)

 

“Disgruntled and aggressive clients” posed safety threat under OHSA

Worker, Caught by MOL Inspector, Given Significant Fine for Safety Violation

An Ontario construction worker has been fined $1,500.00 after jumping from a hoist tower to a nearby roof.  Unfortunately for the worker, a Ministry of Labour inspector saw him do it. 

The worker was wearing a fall protection harness and lanyard, but the lanyard was not tied off.  He was approximately 50 feet above the ground when he jumped.

The worker pleaded guilty to failing to be adequately protected by a method of fall protection while exposed to a fall of more than three metres (9.8 feet).

This case shows that workers can incur significant fines for safety violations under the Occupational Health and Safety Act particularly where, as in this case, death or serious injury could have resulted.

The Ministry of Labour’s press release may be accessed here.

Worker, Caught by MOL Inspector, Given Significant Fine for Safety Violation

MOL Inspector’s “Unclear” Order Required School Board to Revise its Workplace Violence Policy

A Ministry of Labour inspector has ordered an Ontario school board to revise its workplace violence policy, and the Ontario Labour Relations Board has suspended that Order, calling it “unclear”.

The inspector attended at a high school after a worker complained about two incidents at the school.  The inspector concluded that the school had failed to provide workers with “information and instruction concerning persons with a history of violent behaviour”, as required by section 32.0.5(3) of the Occupational Health and Safety Act which section was enacted by Bill 168.  The inspector issued an Order under the Occupational Health and Safety Act requiring the school board to “develop arrangements to provide information to workers” regarding the risk of workplace violence from a person with a history of violent behaviour.

The school board appealed the Order. It argued that the inspector had not specified the basic facts underlining the “two examples” that were mentioned in the Order.

The Ontario Labour Relations Board suspended the Order.  It held that the Order essentially required the school board to comply with the OHSA, which it was already obligated to do.  Also, the school board could be prejudiced if it were required to “comply with an order that is unclear on its face”.  Finally, the OLRB doubted that deference should be given to the Ministry of Labour inspector when the Order was unclear on its face.

This case demonstrates that where Ministry of Labour inspectors do not state the facts underlying their compliance Orders, the employer may have a viable challenge to the Order.  Also, the OLRB will be more likely to suspend an Order when it simply repeats obligations in the OHSA.

Dufferin-Peel Catholic District School Board v Ontario English Catholic Teachers’ Association, 2014 CanLII 13515 (ON LRB)

MOL Inspector’s “Unclear” Order Required School Board to Revise its Workplace Violence Policy

Corporate Director Fined under OHSA in Safety Belt Case

A corporate director of a stucco company has been fined $3,000.00 under the Ontario Occupational Health and Safety Act for failing to ensure that workers used safety belts on elevated work platforms.

An inspector caught workers not wearing safety belts attached to the elevated work platforms while using those platforms to perform stucco work on a five-storey office building.  The corporate director also owned the building.

The corporate director pleaded guilty to the charge.

This case is a reminder that corporate directors – not only workers and supervisors – may be charged under the Occupational Health and Safety Act.

The Ministry of Labour’s press release may be accessed here.

Corporate Director Fined under OHSA in Safety Belt Case

Filed Late, Appeal of Inspector’s Order Dismissed

A recent Ontario Labour Relations Board decision illustrates the importance of timely filing of appeals of Ministry of Labour inspectors’ orders.  The OLRB confirmed that that it had no authority to hear late-filed appeals.

A Ministry of Labour inspector wrote compliance orders against the employer under the Occupational Health and Safety Act on November 19, 2013.  The employer filed its appeal with the OLRB on December 31, 2013, which was more than 30 calendar days later. 

The employer stated that this was the first time that it has completed an appeal, and had mistakenly understood that faxing appeal documents to the Ministry of Labour inspector was sufficient to start the appeal. 

The OLRB noted that the appeal must be filed with the OLRB, not the Ministry of Labour, within 30 calendar days of the date of the inspector’s Order, and that the appeal form makes that quite clear.  The OLRB stated that “it is apparent that the [employer] simply did not review the appeal form and Information Bulletin No. 21″ carefully enough.  However, the Ministry of Labour and OLRB are different entities, and the OLRB has no authority to extend the time for filing the appeal of the inspector’s order.

The appeal was therefore dismissed.

LifeLabs v. A Director under the Occupational Health and Safety Act, 2014 CanLII 2302 (ON LRB)

Filed Late, Appeal of Inspector’s Order Dismissed

Company Director Fined $8,500 After Swearing at MOL Safety Inspector, Making Threatening Gestures and Telling Inspector to Leave Project

Corporate directors can be charged by the Ontario Ministry of Labour and fined under the Occupational Health and Safety Act. Threatening and swearing at a Ministry of Labour inspector certainly increases the odds of charges being laid.

A Ministry of Labour inspector visited a construction project where Starland Contracting Ltd. had been hired to build a self-service car wash.  The inspector saw a worker on the roof without fall protection or a hard hat.

A few months later, the inspector made a follow-up visit.  The company’s director was on site and was acting as supervisor.  According to the Ministry of Labour press release, the inspector went to speak with the director, who uttered profanities at the inspector, told the inspector to leave the project, and made threatening gestures and comments towards the inspector.  The director refused to show identification when asked.

The next day, another Ministry of Labour inspector went to the site.  Starland was unable to show a Notice of Project Form or a Form 1000, which lists all employers and subcontractors on site.  That inspector issued an order for those documents, but they were not provided by the deadline in the order.

Starland and the director were charged by the Ministry of Labour under the Occupational Health and Safety Act.  After an ex-parte trial (meaning that the company and the director did not attend at the trial), the company was convicted of three offences under the OHSA and fined $29,500.00, and the director was convicted of two offences (hindering, obstructing, molesting and interfering with an inspector; and refusing to provide information requested by an inspector) and fined $8,500.00.

The Ministry of Labour’s press release may be found here.

Company Director Fined $8,500 After Swearing at MOL Safety Inspector, Making Threatening Gestures and Telling Inspector to Leave Project