1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar

Project Manager for Metron Construction convicted of criminal negligence in Christmas Eve fatalities. Three individuals and two companies now convicted

The project manager who supervised the four workers who died after a swing stage scaffold collapsed on Christmas Eve, 2009, has been found guilty on four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm.  Vadim Kazenelson received the verdict today.

The court has not yet imposed his sentence.

Five parties have now been found guilty of safety-related offences as a result of this tragic accident: Metron Construction Corporation, a director of Metron, Swing N Scaff Inc., a director of Swing N Scaff Inc. (all of which received fines), and Mr. Kazenelson.

As we previously reported, the total of safety fines imposed for the December 24, 2009 swing stage collapse fatalities is $1,240,000.

According to the Ministry of Labour, 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 Inc., the company that supplied the swing stage platform (a suspended work platform), had previously 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 Corporation was in good condition.  It was fined $350,000.00.

The director of Swing N Scaff Inc. had previously 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.  He was fined $50,000.00 under the Ontario Occupational Health and Safety Act.

Previously, Metron Construction Corporation 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.

A director of Metron Construction Corporation was previously fined $90,000.00 under the Ontario 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.

Project Manager for Metron Construction convicted of criminal negligence in Christmas Eve fatalities. Three individuals and two companies now convicted

“Creative sentence” imposed for OHSA violation: company must give 150 hours of safety presentations on case, plus pay fine

A Nova Scotia court has imposed a “creative sentence” for a violation of the Occupational Health and Safety Act, requiring the company to make safety presentations in addition to paying a fine.

A journeyman electrician employed by the company was electrocuted when he made a “tragic, fatal miscalculation”, deciding to work on an energized system.  The company was found guilty of failing to institute any policies or practices that addressed workplace safety, but instead relying exclusively on the employee being an experienced and safety-conscious electrician.  Further, the company did nothing to ensure compliance with the Canadian Electrical Code.

The Nova Scotia Occupational Health and Safety Act allows for fines and “creative sentencing options” for violations.  The court imposed a fine of $35,000.00 on the company, acknowledging that the company was very small and was now insolvent and no longer operating.

In imposing a “creative sentence option”, the court noted that the electrician’s death and the lack of formal safety policies at the company “constitute a sobering message for other small businesses in the construction trades.”  The court decided to impose a “community service order” requiring the company to make a series of presentations on the facts of the case as indicated in the trial decision, the applicable regulatory requirements, the workplace safety issues involved, and the required due diligence. The presentations must total 150 hours and be completed in 18 months.

While Nova Scotia’s Occupational Health and Safety Act permits such “creative sentencing options”, other provinces such as Ontario do not.  While at the same time recognizing the obvious tragedy of the death, one can see that the reputational damage associated with a conviction in such a case, and 150 hours of presentations that recite the sad facts, is obvious.  In Ontario and a number of other provinces, the government prosecutors often issue press releases that identify the company, the violation and the amount of the fine.

R. v. R.D. Longard Services Limited, 2015 NSPC 35 (CanLII)

 

“Creative sentence” imposed for OHSA violation: company must give 150 hours of safety presentations on case, plus pay fine

Ontario Bill will increase fines for Workplace Safety & Insurance Act violations

The Ontario government has introduced legislation that will, among other things, quintuple the maximum fine against corporations for violating the Workplace Safety & Insurance Act, Ontario’s workers’ compensation act.

The Employment and Labour Statute Law Amendment Act, 2015 will, if passed, amend the Workplace Safety & Insurance Act to:

  • Increase the maximum fine for companies that violate the Workplace Safety & Insurance Act from $100,000 to $500,000 (including for offences such as knowingly making a false or misleading statement to the WSIB)
  • Make it illegal for employers to try to prevent workers from – or punish them for –  reporting a workplace injury or illness to the WSIB
  • Allow WSIB survivor benefits to be calculated based on the average earnings, at the time of diagnosis, of the deceased worker’s occupation rather than the current legislated minimum

The $500,000 maximum fine will equal the maximum fine for violations of the Ontario Occupational Health and Safety Act.  After the Bill has been passed, we will need to wait for some court decisions to see whether judges and justices of the peace hand down larger fines.

Unlike OHSA fines, which tend to result from serious workplace injuries, WSIA fines are typically for violations such as failing to register with the WSIB when required, failing to report a worker’s injury to the WSIB, or providing false information to the WSIB.  The WSIB’s conviction reports show that recent fines against corporations under the Workplace Safety & Insurance Act have been in the range of $2,500 to $25,000.

A press release from the Ontario government announcing the changes can be found here.

 

Ontario Bill will increase fines for Workplace Safety & Insurance Act violations

Former Safety Manager Charged in U.S. Workplace Death

A former Safety Manager in California is among those charged with “willfully violating worker safety rules”, allegedly causing the death of a worker.

The former Safety Manager and the Director of Plant Operations of Bumble Bee Foods LLC, and the company itself, were charged “with three felony counts each of an Occupational Safety & Health Administration (OSHA) violation causing death.”

A news release by the Los Angeles County District Attorney states:

“Prosecutors said on Oct. 11, 2012, victim Jose Melena, 62, of Wilmington, entered a 35-foot-long cylindrical oven as part of his job duties at Bumble Bee’s Santa Fe Springs plant. The oven is used to sterilize cans of tuna.

“Coworkers were unaware that Melena was inside the oven when they loaded multiple carts, collectively containing about 12,000 pounds of tuna, closed the front door and started the oven. The victim inadvertently became trapped in the back of the super-heated, pressurized steam cooker.

“During the two-hour heat sterilization process, the oven’s internal temperature rose to about 270 degrees. Melena’s severely burned remains were discovered by a coworker, prosecutors said. Melena worked for the company for about six years.”

The charges against the former Safety Manager and the Director of Plant Operations carry a possible jail term of three years and/or a fine of $250,000.00.  The company faces a fine of up to $1.5 million if convicted.

Charges against safety professionals are quite rare.  As we noted in a previous post, in 2011 an Occupational Health and Safety Co-ordinator was found guilty of a violation of Nova Scotia’s Occupational Health and Safety Act for neglecting to follow up with his employer on recommendations in an asbestos report.

The Los Angeles County District Attorney’s news release may be found here.

Former Safety Manager Charged in U.S. Workplace Death

Injured Worker’s Act was Not Foreseeable: OHSA Charges Against Employer Dismissed

Recently, an Ontario court dismissed Occupational Health and Safety Act charges against an employer where the injured worker’s unexpected and unauthorized act led to his injury.

The worker used an overhead crane to rotate a large spindle that weighed about 10,000 pounds.  He threaded a piece of rebar through one of the holes on the spindle and attached hooks for the overhead crane to each end of the rebar.  Tragically, the spindle fell off its stand and onto his foot, which had to be amputated.

The Ministry of Labour charged the employer with failing to ensure that the spindle was moved safely and failing to properly train the injured worker.

The court concluded that the injured worker’s supervisor had not instructed him to rotate the spindle.  The court also concluded that a reasonable employer could not have foreseen that the injured worker would rotate the spindle on his own and do it in the manner that he did, because: there was no evidence that a junior employee had ever previously tried to move a large piece of equipment like the spindle before; there was an unwritten protocol in place which the injured worker acknowledged that he understood; the way in which the worker rotated the spindle was contrary to his training; and he attempted to rotate the spindle on his own even though that work had always been done by material handlers or supervisors.  The injured worker conceded that he had failed to follow his training.

Further, the employer had provided an orientation session and overhead crane training to the injured worker.

Interestingly, the court also noted that the Ministry of Labour had not issued a stop work order requiring the employer to stop rotating spindles, suggesting that the inspector must have concluded that the employer’s procedure was adequate for the protection of workers.

In conclusion, the court held that the employer had established due diligence: it took every reasonable precaution in the circumstances, and could not have anticipated that the injured worker would rotate the spindle.  The OHSA charges were dismissed.

R. v. ABS Machining Inc., 2015 ONCJ 213 (CanLII)

Injured Worker’s Act was Not Foreseeable: OHSA Charges Against Employer Dismissed

Company owner convicted, fined under OHSA for failing to co-operate with MOL inspector

A widely-reported fire at a Kingston construction site that required the evacuation of a crane operator by helicopter, has resulted in fines against the owner of the company that supplied the crane operator.

To avoid the heat from the fire, the crane operator was forced to crawl out on the boom of the crane, which was about 100 metres in the air. A military helicopter rescued him.

Shortly after the incident, a Ministry of Labour inspector contacted the company owner to request crane records.  The owner provided some but not all of the information. The MOL inspector attempted to interview the owner but was unable to reach him by telephone or at his residence.

The Ontario Occupational Health and Safety Act provides, in section 62, that no person shall hinder or obstruct an inspector; every person shall co-operate in respect of an inspector’s investigation; and no person shall provide false information to an inspector or refuse to provide information required by an inspector.

The company owner was charged with and convicted of the Occupational Health and Safety Act offences of (1) knowingly furnishing an inspector with false information or neglecting or refusing to furnish information required by an inspector, and (2) failing to furnish all necessary means in the person’s power to facilitate any entry, search, inspection, investigation, examination, testing or inquiry by an inspector. He was personally fined $19,000.00.  His company was also found guilty of failing to comply with a requirement of an inspector, and was fined $8,000.00.

This case illustrates the broad powers of Ministry of Labour inspectors and the consequences of interfering with an inspector’s investigation.

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

Company owner convicted, fined under OHSA for failing to co-operate with MOL inspector

Even “inspecting” equipment is “working on it”: employer guilty of OHSA charge where employees had not even started maintenance work

A maintenance electrician had “worked on” a stuck shipping door when he simply “inspected” it, even though he had not actually performed maintenance on it, a court has ruled.  He was injured when the door fell on him.  The employer was found guilty of failing to ensure that the door was “blocked” before employees worked on it.

The maintenance employee testified that he “took a look at the controller [for the door] just to make sure, looked in to make sure that the P-L-C was powered up”.  He agreed that he was “merely inspecting, trying to determine what the problem was.”

The trial justice found that “some level of work” took place, and therefore that the employer was guilty of the offence of failing to ensure that the shipping door was blocked before it was “adjusted, repaired, or [had] work performed on it”, contrary to the Industrial Establishments regulation under the Occupational Health and Safety Act. 

The appeal judge agreed and upheld the conviction.  He stated that the OHSA did not require that a “minimum or threshold amount of work be performed” before the requirements of the OHSA are triggered.  The maintenance employee’s checks of the electrical system for the door amounted to “some work” and therefore the obligation to “block” the door had been triggered.

Ontario (Ministry of Labour) v. Maple Lodge Farms, 2015 ONCJ 172 (CanLII)

 

Even “inspecting” equipment is “working on it”: employer guilty of OHSA charge where employees had not even started maintenance work

Company that “met or exceeded many industry standards in its operations” still found guilty of OHSA charges

Exceeding industry standards does not, on its own, protect employers from health and safety convictions or fines, a recent court decision shows.

A roofing company was charged with two offences under the Ontario Occupational Health and Safety Act. The charges alleged a failure to ensure that roofing workers were adequately protected by a guardrail system that met the requirements of the Construction Projects regulation under the OHSA.  A worker fell off a roof after he had removed both the middle and upper parts of a guardrail system to dump garbage, without tying-off. His sleeve caught on a motorized buggy he was using to transport waste on the roof; both he and the buggy went over the edge.

The court found that the guardrail system was routinely opened up by removing the middle rail and possibly also the top rail.  The original wooden middle rail had been replaced with an iron bar that was not securely fastened, at the time of the accident, to the guardrail system.  The presence of the removable iron bar violated the regulation.  Also, there was no clear process in place for the garbage disposal at the time of the accident.

The court noted that the company had “generally met or exceeded many industry standards in its operations”, and had clear internal policies, weekly production meetings to discuss safety topics, and “Toolbox Talks”.  It also hired outside consultants to teach various health and safety courses and to perform spot audits of safety.  There was evidence that workers who failed to use safety equipment were sent home without pay and given retraining.  The company had even fired long-term employees who repeatedly violated safety rules.

However, none of that was enough to establish the “due diligence” defence, because the company had not taken “all reasonable steps to prevent this accident”.

This case shows that an excellent safety program may not be enough to defeat OHSA charges if the employer failed to properly address even one particular hazard.

Ontario (Ministry of Labour) v. Semple Gooder Roofing Corporation, 2015 ONCJ 183 (CanLII)

Company that “met or exceeded many industry standards in its operations” still found guilty of OHSA charges

“Flagrant disregard” of OHSA, failure to report, gets construction company convicted on 5 OHSA charges

A construction company that tried to blame a worker’s fall on his untied boots, has been found guilty of all 5 charges against it under Saskatchewan’s The Occupational Health and Safety Act.

The 18-year-old worker, who had been on the job for 6 or 7 hours, fell at least 20 feet and broke his wrist and 2 vertebra.  He had been working on roof trusses that were 20 to 25 feet off the ground. He had not received any training and there was no fall protection equipment provided.

The contruction company argued that the worker was not its employee but rather was an independent contractor. The court rejected that argument, finding that the worker was under the direction of the owner’s son; had no independent control of his employment; his wages were set by the company’s owner; no one ever suggested to him that he was a self-employed contractor; and he considered himself to be an employee.

The contruction company failed to report the accident to Saskatchewan Occupational Health and Safety. A representative of Saskatchewan Occupational Health and Safety testified that they had received notice from Worker’s Compensation, not the company.  As such, the court convicted the company of failing to report to Saskatchewan Occupational Health and Safety where a worker is required to be admitted to a hospital as an inpatient for a period of 72 hours.

The court also convicted the employer of failing to train; not providing fall protection equipment; failing to provide competent supervision (which was clear because the company violated basic requirements under the OHSA); and failing to ensure that the worker wore approved industrial protective headgear.

The owner of the company argued that the injured worker caused the accident as his boots were not tied.  The court noted that that was irrelevant as the employer had a duty to supervise and ensure proper safety procedures on the work site were followed.  It is generally not prudent to attempt to blame the injured worker for a relatively minor transgression when the company committed serious safety violations.

As such, the court found the company guilty on all 5 charges under The Occupational Health and Safety Act.

R. v Fred Thue Construction Ltd., 2014 SKPC 168 (CanLII)

“Flagrant disregard” of OHSA, failure to report, gets construction company convicted on 5 OHSA charges

OHSA charges were adequately particularized, court finds: disclosure showed violations Crown intended to prove

A judge has rejected an employer’s argument that Occupational Health and Safety Act charges against it were unclear and that the Crown was required to provide further “particulars” of the charges so the employer could defend itself after an employee was electrocuted.

“Particulars” are details, provided in addition to the charges themselves, that help the defendant understand what it is accused of doing or failing to do.

There were two charges against the employer, a company that provided commercial and residential electrical services: (1) a failure to provide adequate training, and (2) a failure to ensure that an electrical installation was serviced, repaired or dismantled in accordance with the latest version of CSA standard, “CSA C22.1, ‘Canadian Electrical Code Part 1′, Safety Standard for Electrical Installations”.

The company argued that it required particulars of the 2 charges so that it could know what it “did or did not do that it should have done” to prevent the employee’s death.

The court noted that the effect of ordering that the Crown provide further particulars is that the Crown must prove the offence, as particularized, beyond a reasonable doubt.

The court ultimately decided that the disclosure provided to the employer indicated what witnesses are expected to say happened. The disclosure suggested that the Crown would seek to prove that the company had no supervisors on site with the worker. The disclosure included an expert’s report that concluded that the electrical work being done by the worker was not being performed in a safe manner as set out in the CSA standard.

The court decided that an order for particulars was unnecessary and would unreasonably restrict the Crown’s case.  Further, the judge said, “I fail to see how Longard does not know the case it is facing”.

R. v. R.D. Longard Services Ltd., 2014 NSPC 100 (CanLII)

OHSA charges were adequately particularized, court finds: disclosure showed violations Crown intended to prove

Having an active joint health and safety committee can help employers defend against OHSA charges, court decision suggests

An Ontario court has dismissed charges under the Occupational Health and Safety Act after two incidents which the joint health and safety committee did not identify as posing a “high priority” safety concern.

The charges arose from two incidents on an assembly line at Magna Seating Inc. in which workers were struck by a partly-manufactured vehicle seat that had fallen forward from an upright position, “which is not unlike when someone releases the lever on a seat in an automobile and the seat falls forward due to the tension of the seat’s springs.”

The two charges were: failing to ensure that things were transported so that they would not tip, collapse or fall; and failing to ensure that a machine (the conveyor that transported the seats) was guarded.

The court noted that almost two million seats had been built on the assembly line with only two documented occasions in which a seat had fallen forward. In one incident, a worker’s lip had been cut; she required only a Band-Aid.  In the second incident, the seat had struck a worker in the chest; she was taken to the hospital but was released two hours later with a prescription for painkillers.

The Justice of the Peace noted that  the Joint Health and Safety Committee, comprised of management and workers, were aware of the two incidents but had not considered the seat falling forward issue to be of high priority; also, the possibility of guarding being implemented was still being investigated by the joint health and safety committee.

Ultimately, the charges were dismissed because the Justice of the Peace decided that the conveyor was not a “machine” within the meaning of that term in the regulation, and Magna had taken all reasonable care to ensure that workers were not injured from seats falling forward.

The case shows that having a well-functioning and active joint health and safety committee can actually help an employer defend against Occupational Health and Safety Act charges. If the committee was aware of and considered a safety issue and determined there was no – or a minimal – hazard, that is evidence that can assist an employer to show that it acted with due diligence.

Ontario (Ministry of Labour) v. Magna Seating Inc., 2015 ONCJ 7 (CanLII)

Having an active joint health and safety committee can help employers defend against OHSA charges, court decision suggests

OHSA charges dismissed: not appropriate for MOL to charge under “general duty” clause where specific regulation addressed safety issue

In dismissing Occupational Health and Safety Act charges against an employer arising out of a fatality, an Ontario court has held that it is not appropriate for the Ministry of Labour to charge under the “general duty clause” found in s. 25(2)(h) of the OHSA to “extend requirements beyond those specifically outlined in” the regulations under the OHSA.

In the case at hand, a worker had been welding a large steel product, approximately 6.5 feet off the ground, standing on planks atop A-frame steps.  He fell to his death.

The MOL charged the employer under section 25(2)(h), often called the “general duty clause”. That section requires employers to “take every precaution reasonable in the circumstances for the protection of a worker”. The charge alleged that the employer “failed to take the reasonable precaution of installing guardrails at the open sides of a raised wood platform”. A second charge alleged that the employer failed to properly train the worker regarding working on a raised platform.

The employer successfully argued that the Industrial Regulations under the OHSA specifically dealt with guardrails and did not require a guardrail around the planks on which the worker was working. Section 13 of that Regulation, which was in the “Premises” section of the Regulation, required a guardrail around the perimeter of an uncovered opening in a floor, roof or other surface, and at the open side of a raised floor or other surface. The Justice of the Peace decided, however, that section 13 dealt only with “fixtures” – that is, surfaces such as a walkway that were attached to the premises.  It did not require a guardrail around the planks on which the worker was working atop two portable A-frame steps.

The Justice of the Peace held that it was not appropriate to attempt to use the general duty clause in s. 25(2)(h) of the OHSA to impose a stricter requirement than was found in the Regulation. Put another way, a guardrail could not be a “reasonable precaution” where the Regulation section that dealt with guardrails did not require one.

The Justice of the Peace also dismissed the training charge, holding that because a guardrail was not required, there was “no gap” in the training provided to the worker with respect to working on a raised platform.

Ontario (Ministry of Labour) v. Quinton Steel (Wellington) Limited, 2014 ONCJ 713 (CanLII)

OHSA charges dismissed: not appropriate for MOL to charge under “general duty” clause where specific regulation addressed safety issue

Supervisor fined after workers exposed to asbestos dust

A supervisor with an asbestos abatement company, and his employer, have pleaded guilty to charges under the Occupational Health and Safety Act and were fined, after workers were exposed to asbestos dust on a job site.

The supervisor was fined $4,000.00 after pleading guilty to failing to ensure workers used protective clothing and equipment.

Three workers were working on an asbestos abatement project at a single-family home. The abatement area was enclosed.  In that area, certain asbestos containing materials had been removed and there was an asbestos dust hazard present.

A Ministry of Labour inspector attended and conducted an inspection.  The inspector found one of the workers exiting the enclosed area wearing street clothing.  Two other workers were found inside the enclosed area not wearing protective clothing; one was performing clean-up and the other was securing bags filled with asbestos-containing material.

The Ministry of Labour, in its press release, states that “There is potential for harm when workers and others are exposed to even small amounts of asbestos.”

The company pleaded guilty to failing to ensure that only persons wearing protective clothing and equipment enter a work area where there is an asbestos dust hazard. The company was fined $25,000.00.

The Ministry of Labour generally does not put out a press release for cases involving a fine of less than $50,000.00.  It appears from this and other press releases in asbestos cases, though, that the MOL may make an exception for cases involving asbestos.

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

 

Supervisor fined after workers exposed to asbestos dust

Two company directors jailed 25 days after worker dies, no safety training provided

Rarely are senior corporate officials jailed for health and safety offences in Canada.  But recently, two company directors of an importer and retailer of furniture and accessories, were jailed for 25 days after a worker died from a fall.

The Ontario Ministry of Labour says, in its press release, that the worker was moving merchandise at the Brampton workplace of New Mex Canada Inc., using a combination forklift /operator-up platform called an order picker. The order picker had been modified to add a platform supported by the forks that was tack-welded to the operator platform. There was no guardrail around the added platform. The worker was not wearing fall protection.  The worker was pronounced dead after he was found on the floor.  The cause of death was  determined to be blunt force trauma to the head.

The Ministry of Labour states that its investigation found that there had been no health and safety training provided to warehouse workers, and workers said that they were not provided with fall protection equipment.

The two corporate directors were charged with failing as directors of New Mex Canada Inc. to take reasonable care that the corporation complied with the Occupational Health and Safety Act and with Regulation 851 (Industrial Establishments). Both pleaded guilty.   Both received a 25-day jail sentence, to be served on weekends.  Also, both were ordered to take a health and safety course within 60 days.

Further, the employer, New Mex Canada Inc. was fined $250,000.  It pleaded guilty to failing to provide training and supervision to a worker regarding fall protection and/or working from a height, and failing to ensure the safety measures required by law were carried out.

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

Two company directors jailed 25 days after worker dies, no safety training provided

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

Ontario Ministry of Labour Inspector Charged with Extortion

According to a Toronto Police news release, on October 21, 2014, a Ministry of Labour Inspector was arrested and charged with breach of trust, accepting a benefit from a person having dealings with government, and extortion, after he allegedly requested money from the owner of a business after a safety audit revealed the business did not comply with certain provincial standards.

Toronto Police state that the investigation began on June 25, 2014 when they received a call for a Fraud in the Markham Road and McNicoll Avenue area. The owner of the business alleged that a Ministry of Labour inspector conducted a safety audit and found a number of items that were not in compliance with provincial standards. The inspector left the owners to fix the issues; however, it is alleged that he returned to the business and made an improper request for money from the owner.

Joseph Ah-Hone, 55, is scheduled to appear in court on December 4, 2014.

By way of the Toronto Police news release, the Ontario Ministry of Labour reminded the public that inspectors are trained in legislation, policy and procedures and technical requirements, and adhere to a code of professionalism. As public servants, inspectors are forbidden from accepting money or commissions for any of their services.  Police say there may be other victims.

Click here to read the Toronto Police news release.

Ontario Ministry of Labour Inspector Charged with Extortion

No OHSA Charges Laid in Death of Alberta Youth Home Worker

A 19-year-old has pleaded guilty to second-degree murder after he stabbed to death a youth worker at a supported independent living facility in Alberta in 2012.  At the time of her death, the worker was working alone overnight.  The boy was a resident of the home, which taught life skills to teens.

The Canadian Press reports that although Alberta Occupational Health and Safety investigated the death and provided the results of its investigation to the Crown, the Crown did not pursue any charges under the Occupational Health and Safety Act (see Teen who stabbed Alberta youth home worker pleads guilty to second degree murder).

According to the Edmonton Journal, the worker’s family has launched a lawsuit against the Government of Alberta in which they allege that her employer “failed to meet the standards of the Occupational Health and Safety Act and ‘intentionally, recklessly and negligently’ failed to make sure” that the worker was safe at work (see Family of slain Camrose caregiver sues Alberta government).

No OHSA Charges Laid in Death of Alberta Youth Home Worker

Ontario OHSA convictions at six-year low in 2013/14, average fine relatively steady

The number of Ontario Occupational Health and Safety Act convictions was at a six-year low in the government’s fiscal 2013/14 year, Ontario Ministry of Labour statistics show.

There were 780 convictions in 2013/14, compared to the previous five years’ conviction numbers of 814 (in 2012/13), 903, 948, 1,164 and 1,303 (in 2008/09), a consistent downward trend over that six-year period.

The average fine per conviction in fiscal 2013/14 was $11,932, compared with $13,139, $10,821, $11,911, $11,091 and $10,849 over the previous five-year period.  Interestingly, this shows that the average fine has remained relatively steady over that period.

The MOL notes that more than one conviction may be related to a single incident.  For instance, one workplace accident on a construction site could result in two convictions against the constructor, three against a subcontractor and one against a supervisor.

Our extensive 2012 study of Occupational Health and Safety Act prosecutions and fines showed that 68% of companies charged with OHSA offences plead guilty, and fines negotiated with the MOL tend to be much higher than those set by the court after hearing submissions from the MOL and the defendant.

Note that the Ministry of Labour statistics include Part I contested tickets, Part I summonses and Part III prosecutions.  Our 2012 study looked at Part III prosecutions (reserved for more serious cases, which tend to involve significantly higher fines) and did not include Part I tickets or summonses.   Part I tickets and summonses carry a maximum fine of $1,000 per conviction while Part III prosecutions have a maximum fine of $500,000 per conviction.  As such, the average fines in our study were higher than those in the MOL statistics referenced above.

Ontario OHSA convictions at six-year low in 2013/14, average fine relatively steady

Notes taken post-accident can lose privilege if used to refresh memory, court decision suggests

Privileged notes taken by a witness – or by the employer from a witness – after a workplace accident may cease to be privileged if used by the witness to prepare to testify in court, a recent court decision suggests.

The case, which was not an occupational health and safety case, involved charges of refusing to provide an “Approved Screening Device” sample. The charge is often laid where a driver refuses to blow into a breathalyzer to determine whether he or she was driving while impaired.

The accused testified that he had made notes after the incident, as his father had told him to write down everything that he remembered, word for word.  At trial, he testified that he had read the notes to prepare for trial.

The judge decided that the accused had used the notes to refresh his memory, and therefore the litigation privilege over the notes was lost.  The judge decided:

“When the accused chooses to refresh his memory from notes to which litigation privilege would otherwise apply prior to taking the stand, the Crown is entitled to see such notes subject to the court’s discretion. An accused person who has prepared notes to refresh their memory and uses those notes to the refresh their memory prior to testifying has waived any litigation privilege attached to those notes. It is important that the opposing party have the opportunity to test the memory of events and expose inaccuracies in memory.”

Employers facing Occupational Health and Safety Act charges should understand that notes that would otherwise be litigation-privileged that are taken by the employer after a workplace accident may lose their privilege, and therefore be obtained by the prosecutor, if used by a witness to refresh his or her memory before testifying.

R. v. Sachkiw, 2014 ONCJ 287 (CanLII)

Notes taken post-accident can lose privilege if used to refresh memory, court decision suggests

Ontario Bill to extend protection of OHSA to unpaid trainees

A new Ontario Bill will give unpaid trainees the protection of the Occupational Health and Safety Act.  The OHSA currently gives that protection to paid workers only.

The current definition of “worker” under the OHSA is “a person who performs work or supplies services for monetary compensation . . .”

Under Bill 18, the OHSA’s definition of “worker” will be expanded to include unpaid high school, college and university students in certain approved programs; as well as certain unpaid trainees receiving training for their own benefit and not for the benefit of the employer.  Bill 18 also allows the government to pass a regulation making other unpaid persons “workers” under the OHSA.

Practically, most employers will already apply their safety programs to unpaid trainees as if the OHSA already applied to them.  The main impact of the redefinition of “worker” will be that employers are now exposed to charges and fines if unpaid trainees – who, one suspects, have a higher than average risk of being injured – are in fact injured. This makes it all the more important that employers ensure that trainees receive all necessary safety training.

Bill 18 passed first reading on July 16, 2014.  Due to the Liberal majority, the Bill is expected to pass.  We do not yet know when the Bill will come into force.

Bill 18, which contains amendments to a number of other employment-related laws, may be accessed here.

Ontario Bill to extend protection of OHSA to unpaid trainees