OHSLAW Report - April 2012

Edited by Norm Keith

EDITORIAL

By Norm Keith

Spring is here, and so is construction, forest fires and workplace accidents. We at Gowlings are here to provide you with current changes in OHS laws, enforcement activities under Bill C-45, and record fines.

In addition to reporting on new OHS law developments across Canada, Gowling has been busy developing new training and consulting services to help employers and workers prevent accident and injuries at work. We are please to announce our new e-learning services with 10 new online courses for learning about OHS law, Workers' Compensation, Corporate Social Responsibility, Bill C-45 and other Workplace Risk Management courses. Check it out at www.ohslaw.ca/online.

So Happy spring, may it be a safe one for your and your family at work and at home.

RECENT UPDATES TO THE CANADIAN ELECTRICAL CODE, PART 1

By: Cathy Chandler

The 2012 Canadian Electrical Code (CEC), Part 1, is the 22nd edition of Canada's primary standard for electrical installations. The 2012 CEC contains more than 180 updates and revisions including:

• Garage doors: A receptacle must now be provided for each cord-connected overhead garage door opener in residential garages for all new constructions
• Roof-top outlets: New commercial or industrial buildings will require a roof-top receptacle in order to help heating ventilation and air-conditioning technicians to safely maintain roof-top equipment using power tools
• Outdoor outlets: New "in-use" weatherproof covers will be required to protect outdoor receptacles from wet weather, even when electrical devices are plugged in

The standard, released in February 2012, is available for purchase from the Canadian Standards Association at www.csa.ca.

MOL Targets Infection Control Practices in Ontario's Health Care Sector

The Results are In...

In the past 10 years several new viral pathogens such as Avian Influenza H5N1 and SARS-CoV, have appeared in human populations both in Canada and abroad. We have also seen the re-emergence of other infectious diseases such as measles and tuberculosis. Infectious diseases have gained prominence in Ontario health care facilities due to a number of outbreaks, including norovirus, clostridium difficile (c.difficile) and influenza.

In November 2011, Ministry of Labour inspectors conducted an inspection blitz with respect to the effectiveness of infectious disease prevention and control strategies, or lack thereof, at healthcare workplaces in Ontario. More than 500,000 people work in the healthcare sector in Ontario, including at hospitals, long-term care homes, retirement homes and in the community sector.

The 'Blitz'

In November 2011, Ministry of Labour inspectors conducted 116 visits to 100 healthcare workplaces and issued 192 orders under the OHSA and its regulations.

Inspectors targeted the following:

Employer duties: Inspectors checked employers' compliance with the OHSA, including compliance with an employers' duty to take all reasonable precautions to protect the health and safety of workers from infection hazards. They also checked that employers are reporting occupational illnesses to the Ministry of Labour, trade union (if any) and the workplace's Joint Health and Safety Committee (JHSC).

Safe work practices: Inspectors checked that employers had developed practices such as respirator fit-testing, safe use and disposal of sharps, maintenance of ventilation systems, and cleaning and disinfection, for the protection of workers from infection hazards. They also checked that workers are following safe work practices and use required personal protective equipment, and that employers and supervisors are inspecting the workplace for infection hazards.

Personal protective equipment and safety devices: Inspectors checked that personal protective equipment, such as gloves, eye protection and respirators, are being properly used by workers and maintained by employers. They also checked that workers have access to appropriate and required hygiene facilities, and that workers are safely handling and using safety-engineered needles.

Worker information, education and training: Inspectors checked that workers are aware of infection hazards in the workplace and are trained in the safe handling, storage, use, disposal and transport of infectious agents. Inspectors also checked that workers have appropriate information, instruction and supervision to protect their health and safety.

Results

Ministry inspectors issued orders at a rate of 1.66 per workplace visit. Inspectors visited 100 workplaces during the blitz. Orders were issued under the OHSA and the following regulations:

• Health Care and Residential Facilities Regulation
• Needle Safety Regulation
• Workplace Hazardous Materials Information System Regulation (WHMIS)

Orders issued indicated improvements to prevent and control the spread of infectious diseases are needed. Inspectors found gaps in the following areas:

• Written measures and procedures developed and implemented in consultation with the JHSC or Health and Safety Representative (HSR) with respect to the hazards related to infectious diseases
• Review and revise infection prevention and control measures and procedures at least annually or more frequently in light of current knowledge and practice
• Develop, establish and provide education, information and training in consultation with the JHSC or health and safety representative Inspection blitzes are part of Ontario's "Safe at Work Ontario" compliance strategy. They are announced to the sector by the ministry in advance, although individual workplaces are not identified in advance. Results are posted on the MOL's website – www. labour.gov.on.ca. The blitzes raise awareness of workplace hazards and promote compliance with the OHSA and its regulations.

OHS Legal Requirements to Prevent Spread of Infectious Diseases in Health Care Facilities

Healthcare facilities are required to comply with applicable provisions of the Occupational Health and Safety Act R.S.O. 1990, c.0.1 (OHSA), and its Regulations.

In addition, the OHSA section 25(2) (h), the 'general duty clause,' requires an employer to take every precaution reasonable in the circumstances for the protection of a worker. There is a general duty for an employer to establish written measures and procedures for the health and safety of workers, in consultation with the joint health and safety committee or health and safety representative, if any. With respect to addressing hazards related to exposure to infectious diseases, such measures and procedures may include, but are not limited to, the following:

• Safe work practices
• Safe working conditions
• Proper hygiene practices and the use of hygiene facilities
• The control of infections

At least once a year the measures and procedures for the health and safety of workers shall be reviewed and revised in the light of current knowledge and practice. The employer, in consultation with the joint health and safety committee or health and safety representative, if any, shall develop, establish and provide training and educational programs in health and safety measures and procedures for workers that are relevant to the workers' work.

A worker who is required by his or her employer or by the Regulation for Health Care and Residential Facilities to wear or use any protective clothing, equipment or device shall be instructed and trained in its care, use and limitations before wearing or using it for the first time and at regular intervals thereafter, and the worker shall participate in such instruction and training. The employer is reminded of the need to be able to demonstrate training, and is therefore encouraged to document the workers trained, the dates training was conducted, and materials covered during training. Under the OHSA, a worker must work in compliance with the Act and its regulations, and use or wear any equipment, protective devices or clothing required by the employer.

Elements of Infection Prevention and Control Program

The elements of an infection prevention and control program (IPAC) must be based on a hierarchy of controls determined through a risk assessment of actual and potential hazards. An IPAC should include but not be limited to the following:

• A hand hygiene program
• Surveillance based on systematic data collection to identify infections, subsequent analysis of data and timely dissemination of results to persons who require the data to make improvements
• A system of precautions to reduce the risk of transmission of infectious agents (i.e., routine practices, additional precautions)
• Continuing education for health care providers in IPAC
• Education for clients/patients/ residents and visitors
• A system for detection, investigation and control of healthcare-associated outbreaks
• IPAC policies and procedures
• Audits
• A resident health program that addresses the prevention and control of infectious disease in long-term care homes (e.g., immunization)
• Elements of an occupational health program for healthcare providers related to transmission of microorganisms
• Reportable disease reporting to public health authorities
• Review of care policies and procedures for practices impacting on IPAC ( Best Practices for Infection Prevention and Control Programs in Ontario, Provincial Infectious Diseases Advisory Committee, Ministry of Health and Long-Term Care, January 2011)
  
  

RECORD-SETTING FINE AWARDED TO WALMART IN NEW BRUNSWICK TEEN'S DEATH

By: Anna Abbott

Walmart was fined $120,000 ($100,000 plus $20,000 victim fine surcharge) on Tuesday, March 20, 2012 in connection with a death of a teenage employee last year in Grand Falls, New Brunswick. The civil lawsuit filed by Patrick Desjardins' family was settled out of court for an undisclosed amount.

Patrick Desjardins, 17, was electrocuted while buffing a floor in the garage at the Grand Falls store. Walmart pleaded guilty on Tuesday, March 20, 2012 to three (3) charges under the Occupational Health and Safety Act (OHSA) while the garage supervisor, Mr. Denis Morin, pleaded guilty to two charges under the OHSA.

At the plea hearing, crown prosecutor Karen Lee Lamrock stated that the death was not a result of Walmart putting profits ahead of safety concerns, but was an accident resulting from imprudence. Walmart agreed and has taken several remedial steps to ensure that this type of accident never happens again. Justice Paul Duffie of the Provincial Court of New Brunswick stated on the record that he was impressed that Walmart had admitted guilt and worked to find a resolution with the Crown.

Before this case, the highest fine ever imposed in New Brunswick for a violation under the Act was $30,000.00. However, the increased fine may in part be due to the fact that the New Brunswick OHSA was amended in 2008 to increase the maximum fine per count to $250,000.00 for a corporation.

Mr. Morin, the supervisor, who makes roughly $36,000.00 a year, was fined $880.00 plus a $176.00 victim fine surcharge as recommended in the joint submission.

The remedial steps taken by Walmart to prevent similar accidents that were communicated to the court at the plea hearing included:

• Launching a nationwide search for similar unauthorized equipment, and ensuring its immediate removal
• Amending a daily checklist to direct inspectors to place a greater emphasis on looking for tools that are not authorized to be in Walmart stores
• Placing greater emphasis on looking for any defects in equipment that is authorized for use
• Retraining all tire and lube express employees on safety procedures
• Removing all extension cords in tire and lube shops
• Adding the removal of extension cords to the daily, monthly checklist
• Permanently wiring in any equipment
• Repairing and replacing any outlets that do not have ground fault interrupters

This case serves as a reminder to employers to ensure that supervisors and workers are properly trained to identify hazards in the workplace.

Sources: CBC News
http://www.cbc.ca/news/canada/new-brunswick/story/2012/03/19/nb-wal-mart-plea-death-desjardins-grand-falls.html

Canada.com
http://www.canada.com/business/Walmart+supervisor+fined+teen+worker+electrocution/6344410/story.html

WHAT WORK CAN NON-ELECTRICIANS PERFORM UNDER THE CONSTRUCTION REGULATIONS? BOARD PROVIDES SOME CLARITY FOR THE SOLAR INDUSTRY

By: John Illingworth

For more than 30 years, the Construction Regulations under the Ontario Occupational Health and Safety Act (the Act) have provided for some limited instances in which a non-electrician could connect electrical equipment. However, these regulatory provisions, and the limits on their applicability, had remained relatively untested by litigation. In its March 30, 2012 decision of IBEW, Local 530 v. Gil & Sons Limited et al., the Ontario Labour Relations Board (the Board) has now provided some clarity in the matter.

The case arose from an incident occurring on a solar farm. The worker, a non-electrician, was found to have experienced a shock while tasked with connecting "MC4 Plug In Connectors" in wet conditions. MC4 connectors, used to connect photovoltaic panels, are standard within the solar industry, and are designed to be joined together by inserting a plug into a receptacle. This function is also known within the industry as "plug and play." The pins on the MC4 connectors were encased in a housing and were therefore designated as "finger safe." The connectors also locked together when connected, and bore a warning not to disconnect under load.

A Ministry of Labour inspector attended the site and, in the course of his inspection, determined that the work did not have to be performed by a certified electrician. IBEW, Local 530 (the IBEW), appealed the inspector's determination to the Ontario Labour Relations Board, pursuant to s.61 of the Act.

Section 182 of the Construction Regulations requires that electrical work be performed by licensed electricians or their apprentices. Subsection 181(1) states:

However, s.182(2) does provide a limited exception to these requirements:

Although there was general acceptance that the MC4 plug was "an attachment plug cap" within the meaning of the Regulation, the IBEW contested that the receptacle on an MC4 connector was not a "convenience receptacle," a term which is not defined under the Regulation.

In its argument, the IBEW noted that s.182(2) was an exception to a general provision and, therefore, should be narrowly construed. A "convenience receptacle" for the purposes of the Regulation, the IBEW argued, was a receptacle normally found in offices or homes, designed to receive a standard 2-prong or 3-prong plug, and using alternating current (MC4 connectors are direct current). The IBEW argued that the effect of the exception was to permit a worker on a construction site to plug a tool into a power source (i.e., a "convenience receptacle") without waiting for an electrician. In support of this position, the IBEW noted that the language of the original regulation had referred to plugging into, or disconnecting from, a power source. MC4 connectors, on the other hand, involved interconnecting wiring to form a circuit and create a power-generating device.

For many of the reasons advanced by the various responding parties, the Board did not accept the IBEW's arguments. First, the Board observed that the exception under the Regulation was not restricted to power tools, but also included the connecting of "electrical equipment." There was no dispute that the MC4 connectors and the solar modules constituted electrical equipment. Second, the Board noted that the term "power source" was not imported to the current Regulation and, indeed, there was nothing in the current Regulation which suggested that the exception was limited to connecting to a power source.

Arguably of most importance, the Board provided an interpretation as to the meaning of "convenience receptacle." In particular, the Board stated: "Convenience ordinarily connotes ease of use. A convenience receptacle is one that is designed to accept a plug cap without any further work in order to affect the connection. The hazards associated with such work are thus avoided by the design of the plug and the receptacle themselves."

In addition, the Board did not accept that the difference between plugging into a power source and interconnecting wiring was a meaningful distinction in the circumstances. The MC4 connector was designed in such a manner that the specialized skill of an electrician was not required to perform the work safely. Finally, the Board found that the more narrow interpretation advanced by the IBEW "would give rise to anomalous if not absurd results." Noting a number of different types of receptacles, the Board speculated that under the more narrow interpretation advanced, anyone bringing a notebook computer onto a construction project could plug the power adaptor into a standard receptacle, "but only an electrician could plug the other end of the adaptor into the computer itself." Accordingly, the Board denied the appeal.

Certainly, the Board's interpretation of s.182(2) will be of critical importance to employers within the solar industry. However, employers in the broader construction sector now have better guidance as well in determining what work must be performed by electricians and what limited electrical work may be safely performed by others.

B.C. GUIDELINES FOR VARYING JOINT COMMITTEE REQUIREMENTS

By: David Marchione

British Columbia's Workers Compensation Act (the Act) requires that employers establish a Joint Health and Safety Committee in each workplace where there are 20 or more workers regularly employed, or in any other workplace where a joint committee is required by an order of the board.

The Act allows that the board may order or permit an employer to establish and maintain either:

• More than one committee for a single workplace
• One committee for more than one workplace or parts of more than one workplace
• One committee for the workplace or parts of the workplace of a number of employers if the workplaces are the same, overlapping or adjoining

The Act sets out the minimum requirements for committee composition and outlines additional requirements for the employer to support the committee in its functions. For example, the Act requires the employer to provide a copy of any report of a committee meeting to the union, if one exists, and to post specific committee information in the workplace for a specified period of time.

The joint committee is an integral part of an employer's health and safety management system as they serve as a double check on the functioning of the system. As it is the employer's direct responsibility to identify, assess and control hazards in the workplace, the committee serves to proactively assist in the identification of those hazards and to recommend improvements or changes in hazard controls.

Contrary to common belief, the committee is not responsible for the functioning of the health and safety management system at the workplace. They are a proactive reminder to the employer about their responsibility to the workplace and serve to bring together management and worker representatives from different areas within the workplace to identify hazards and make recommendations to bring about positive change.

WorkSafeBC issued a guideline for variations in joint committee requirements. The Guideline provides examples of when an employer may request a variance to the standard requirements and when WorkSafeBC may issue an order allowing the variance. These may include situations where:

• An employer has a number of similar workplaces and it may be more practical or effective to have a single committee encompassing all of the workplaces
• The employer may wish to have distinct committees for each workplace, but operated under the umbrella of a corporate safety committee
• The employer may have a number of similar workplaces; some of which may not have the 20 workers needed to require a committee, and worker representatives may desire a structure that includes these workplaces
• The workplace might not have 20 or more workers "regularly" employed, but may have a large number of workers with irregular employment and health and safety issues that are best addressed through a committee structure
• The employer has different workforces with different health and safety issues across a number of workplaces

Only the board or WorkSafeBC may order a variance to the minimum committee requirements set out in section 125 of the Act. Typically a variance request would be triggered by a request from the employer, members of the committee or a union. Any such requests should be supported by as much relevant information as possible to allow a prevention officer to evaluate the best option for the employer and the workplace.

The provisions in the Act require the employer to establish and maintain a joint committee, where required. Employers must ensure that they meet at least the legislated minimum requirements for committee establishment, composition, training and functioning for each workplace where a committee is required, unless they have received a variance order from WorkSafeBC. The penalties for non-compliance under the Act can be substantial.

For more information on the guidelines issued by WorkSafeBC for joint committees, please see:

http://www2.worksafebc.com/Publications/OHSRegulation/GuidelinesWorkersCompensationAct.asp?ReportID=25161

BILL 160 AMENDMENTS TO THE OHSA CAME INTO FORCE ON APRIL 1, 2012

By: Goldie Bassi

In May 2011, the Ontario Government passed Bill 160, An Act to amend the Occupational Health and Safety Act and the Workplace Safety and Insurance Act, 1997 with respect to occupational health and safety and other matters (the Amendment Act). Although the Bill received royal assent in June 2011, it was not fully proclaimed at that time.

On April 1, 2012, several sections of the Amendment Act came into force, including the following:

• Section 13 of the Amendment Act amends section 50 of the OHSA, which now provides an inspector the power to refer matters regarding reprisals to the Ontario Labour Relations Board if certain conditions are met
• Section 14 of the Amendment Act amends Part VI of the OHSA by adding a section regarding the functions and costs of the Offices of the Worker and Employer Advisors
• Section 16 of the Amendment Act amends section 63 of the OHSA regarding the compellability of witnesses and production of documents
• Section 17(1) of the Amendment Act amends section 65(1) of the OHSA, which now provides immunity from civil proceedings to employees of the Offices of the Worker and Employer Advisors, in addition to employees of the Ministry of Labour acting in good faith
• Section 18(4) of the Amendment Act amends section 70(2) of the OHSA providing the Lieutenant Governor the power to make regulations respecting the functions of the Offices of the Worker and Employer Advisors

These Amendments were introduced in response to the Tony Dean Report, which among other things recommended:

• Shifting the prevention mandate to the Ministry of Labour from the WSIB
• Mandatory training for workers and health and safety representatives
• Expansion of powers for JHSC co-chairs to make direct recommendations to employer/ constructor where committee fails to reach a consensus
• Establishment of a Prevention Council and chief prevention officer
• Development of Codes of Practice for Accident Prevention
• Powers to inspectors to refer reprisals to the Ontario Labour Relations Board

Bill 160 also gave the Ministry of Labour power to implement additional changes recommended by the Tony Dean Panel. For example, although Bill 160 amendments set out requirements for mandatory training for new workers and health and safety representatives, the training standards and approved trainers will be established by the Prevention Council once it is fully operational. We expect that the Prevention Council will also be responsible for the development of the Codes of Practice that will assist employers and constructors with meeting the specific health and safety requirements set out in the regulations.

WSIB RELEASES 2012-2016 STRATEGIC PLAN

By: Roshni Vaz

Last month, the Workplace Safety and Insurance Board (WSIB) released its new 2012-2016 Strategic Plan (the Plan). The Plan boasts to transform the WSIB into a modern, sustainable and customer-focused workplace compensation system.

The WSIB, an independent trust agency that administers compensation and no-fault insurance for Ontario workplaces, is committed to delivering fast, accessible service and fair benefits at a fair price to the workers and employers of Ontario. The best outcome for the employer and the worker following an injury on the job is to get the worker back to work as soon as possible. WSIB helps both parties achieve this by providing support, wage-loss benefits and medical coverage.

The founding principles of workers' compensation in Ontario were set in 1914 with the first Workmen's Compensation Act. These principles focused on providing benefits and services for workers injured on the job through a compromise. This being, injured workers gave up their right to sue employers for negligence and, in exchange, employers agreed to pay into a fund, the Unfunded Liability Fund (UFL), which would provide fast, fair and no-fault compensation.

Unfunded Liability (UFL)

The UFLhas been a challenge for the WSIB due to growing economic uncertainty, including the assets available to make all future payments on claims that are in the system, and WSIB's financial obligation to make those future payments as they become due.

In recent years, the financial capability of the UFLhas been called into question. In his 2009 Annual Report, the auditor general required that the WSIB develop a new approach to reducing and eliminating the UFL. The Five Pillars, developed in 2010, represent the WSIB's response to this direction.

In the auditor general's 2011 Annual Report, he notes favourably that a number of initiatives were underway to address the UFL, including the current Funding Review (initiated in September 2010, led by Harry Arthurs, seeking consensus on the best approach to addressing the UFLand related issues). The report noted the positive effects of premium rate increases, compliance strategies, and a new Strategic Investment Plan on reducing the UFL.

2012-2016 Strategic Plan – Five Pillars

The 2012-2016 Strategic Plan (The Plan), aims to deliver better service, in a financially responsible manner. How does WSIB plan to do this? By shifting its focus to supporting workers in early recovery and while making it easy for employers to get back to business.

In the last few years, through its healthcare strategy (i.e., rollout of a leading practice narcotics strategy and introduction of a comprehensive lower back program) and enhanced work reintegration, workers have been getting better health care and returning to worker sooner. This first stage of the transformation has led to strong operational results and a significantly improved financial position.

The Plan sets out the principles and strategic direction for the WSIB over the next five years. The Plan is organized around the following Five Pillars:

1. Sufficient Funding: Secure benefits for workers, stable and competitive premiums for employers, and a solid foundation for service excellence.
2. Revenue Must Cover Costs: Optimize its premium and investment revenues as critical measures of fiscal health.
3. Right Sizing Costs: Reduce total benefit costs through promoting early recovery and return-to-work, and contributing to employer incentives, analysis and funding for prevention.
4. Efficient Administration: Keep administrative costs in line with comparable organizations and external benchmarks through increased efficiency.
5. Stakeholder Relationships and Service Excellence: Deliver the best customer service and achieve the highest ever customer satisfaction.

Three-Year Plan

Over the next three years, the WSIB will be focused and committed to a series of initiatives. These include enhancements and changes to the way the WSIB focuses its resources, assesses and meets the needs of stakeholders, delivers services, and interfaces with its customers. By the end of 2014, WSIB's desired future will address:

1. Sufficient Funding: Through financial integrity.
2. Revenue Covering Costs: With fair, simple and effective scheme that balances classification, pricing and incentives, along with stable premium rates.
3. Right Sizing Costs: Recovery & return-to-work through a standardized path to self-service, with focus of highly-skilled resources being dedicated to the complex cases.
4. Efficient Administration: With a defined plan, being a modern organization that will support paper light, and value services. As well, real time access to information, and staff that are more specialized and technically skilled.
5. Stakeholder Relationships & Service Excellence: Achieved through improved sharing of information and interaction with customers through fewer, but more interactive channels that will be available around the clock.

Upon completion of its three-year plan, the WSIB will have improved its process, technology, and people through some of the following: a defined workers' compensation plan; streamlined, automated processes; focus being made on complex cases; analysis and data pushed/pulled by the WSIB and customers; and a knowledge-based and highly skilled workforce.

The WSIB has taken charge of its future. It has a plan to ensure it fulfills its responsibilities in providing the services and benefits that matter to its customers. It is committed to making the hard decisions and adopting the changes necessary to meet its strategic goals.

QUÉBEC SUPERVISOR PLEADS GUILTY TO CRIMINAL NEGLIGENCE CAUSING BODILY HARM

By: Anna Abbott

Seven years after an incident at a dealership in LaSalle, Quebec where a mechanic was badly burned by a faulty fuel pipe, the criminal case against the garage supervisor has finally been resolved. Supervisor Mark Hritchuk was charged with two counts of criminal negligence causing bodily harm in 2005 in relation to the incident. Moments before he was scheduled to begin a jury trial, Mr. Hritchuk pleaded guilty to a reduced charge of one count of criminal negligence causing bodily harm.

During the plea, the judge commented that he had trouble assigning liability to Mr. Hritchuk in this case as he was merely delegating the work to a mechanic and was relying on their experience to perform it. The injured worker had been working as a mechanic in the garage for 22 years. The Crown prosecutor told the court that where one could criticize the service manager was in his sin of omission that he failed to ensure that the mechanics were working with equipment that was safe. Mr. Hritchuk has no criminal record and will return to court in June for a sentencing hearing.

The company that Mr. Hritchuk works for, Gabriel Volkwagen, was fined $15,000.00 as a result of the incident by the Commission de la santé et de la sécurité du travail (CSST). The case against Mr. Hritchuk proceeded to the criminal court following a complaint from the victim to the police that no criminal charges had been laid. At the preliminary inquiry into the matter, one of the victims, Mr. Daoust, explained that a "law of silence" with respect to health and safety violations prevailed in many garages in Québec and that this needed to stop to prevent future injuries.

Bill C-45 update

Following the resolution in this case, there are only two outstanding Bill C-45 occupational criminal negligence cases that have yet to be resolved - the Karl Lilgert, Queen of the North prosecution in British Columbia and the Metron Construction prosecution in Ontario. The Metron case is scheduled for a preliminary hearing over three months this year and the Queen of the North case is scheduled for trial in January 2013. There has yet to be a trial decision providing an analysis of the corporate criminal negligence provisions.

Source: La Presse, March 13, 2012

Online: http://www.cyberpresse.ca/actualites/quebec-canada/justice-et-faits-divers/201203/13/01-4504941-mecanicien-brule-le-gerant-de-service-coupable-par-omission.php

"I BROUGHT IT FROM HOME" THE RISKS OF ALLOWING HAZARDS INTO THE WORKPLACE

By: Ryan D. Campbell

Recent occupational health and safety prosecutions in two Canadian jurisdictions have focused on the risks to employers of allowing the use equipment that employees or other third parties have brought from home in the workplace.

On Tuesday, March 20, 2010, the New Brunswick Provincial Court fined Walmart $120,000 after the organization pled guilty to charges arising from the death of a worker. The worker was electrocuted while using a second-hand floor buffing machine on a wet garage floor. The floor buffing machine had been purchased used at a yard sale by another Walmart employee who brought the tool to work to be used. Walmart reimbursed this employee for the purchase. The device was then modified, splicing an extension cord together with the buffer.

A similar proceeding is underway in Ottawa, where the Ottawa Catholic District School Board has been charged in relation to a student death caused by the explosion of a metal drum that was brought in to a shop class from a third party source.

In Ontario, section 25(1) of the Occupational Health and Safety Act (OHSA) requires an employer to ensure that the equipment provided by the employer is maintained in good condition and used as prescribed. The fact that this provision is restricted to apply only to equipment provided by the employer would seem to absolve employers of liability for equipment introduced to the workplace by employees or other third parties. However, this may not always be the case. In particular, s. 25(2) of the Act requires employers to acquaint workers or supervisors with any hazards in their work, and in the handling, storage, use, disposal and transport of equipment. Notably, there is no similar restriction in either of these provisions. The concept of employer responsibility for all equipment present in the workplace may be further broadened by the general duty clause contained at s. 25(2)(h) where employers must take every precaution reasonable in the circumstances for the protection of a worker. Similar requirements pertaining to all equipment are contained in the Construction Regulations and the Regulations for Industrial Establishments.

These provisions may create additional risk for employers who permit, knowingly or unknowingly, their employees to use equipment in the workplace that the employee has brought from home. Examples of this may include office heaters, electronics and portable tools.

In order to minimize risk of exposure for such incidents, employers should ensure that their workplace health and safety policies include provisions preventing employees from bringing equipment, tools or other items into the workplace to be used to perform work duties. Instead, all equipment required to perform workplace duties should be provided by the employer, and the employer should be satisfied of its suitability before allowing the equipment to be used. In addition, the Joint Health and Safety Committee should be encouraged to identify the presence of personal equipment in the workplace, during their monthly workplace investigations. Finally, supervisors should be educated on the risks of allowing employees to contravene these workplace policies.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.