Canada: OHSLAW Report - March 2013

Edited by Norm Keith

EDITORIAL

As winter winds swirl and skiers and snowboarders fly down the slopes, a case relating to Ontario's Blue Mountain Resorts has just been released! The Court of Appeal for Ontario has ruled that the death of a member of the public was not reportable to the Ministry of Labour. Please read the article in this newsletter for all the details and our analysis. In this newsletter we also cover important subject of changes to WSIB coverage in Ontario's construction sector, Pre-Start Health and Safety Reviews, AODA in the workplace, wrongful dismissal, and failing to report safety violations. Stay warm and stay safe. Spring is coming.

BLUE MOUNTAIN RESORTS WINS AT COURT OF APPEAL: JUDGEMENT LEAVES SOME CONFUSION FOR EMPLOYERS

By: Norm Keith

The Court of Appeal for Ontario has released its decision in the Blue Mountain Resorts Limited case relating to the death of a guest at the resort in 2007. The central issue in the case was whether or not Blue Mountain Resorts was required to report a guest fatality to the Ministry of Labour pursuant to section 51(1) of the Occupational Health and Safety Act (OHSA). The case raises important issues of the interplay between occupational health and safety and public health and safety for workplaces that involve employees serving the public.

An employee found the deceased guest and used a defibrillator in an attempt to revive him. Blue Mountain Resorts assumed that the guest had suffered a heart attack. An autopsy later determined the cause of death was drowning in the swimming pool.

Blue Mountain Resorts owns and operates an all-season resort and recreational facility on a 750-acre property near Collingwood, Ontario. The resort offers 36 downhill ski runs and other recreational facilities, including mountain biking trails, a golf course and indoor swimming pools.

The swimming pool was not supervised by any employee of Blue Mountain Resorts at the time of the fatality. Further, no employees were working in the vicinity of the swimming pool at the time of the drowning.

Blue Mountain Resorts employs approximately 1,750 staff, and at the peak of its ski season, may accommodate as many as 16,000 visitors at once.

Ministry of Labour Inspector Richard Den Bok issued an Order pursuant to section 51(1) of the OHSA in relation to the drowning death. This provision states:

Blue Mountain Resorts did not notify the Ministry of Labour of the drowning death and did not submit a written report to the ministry within 48 hours. When Inspector Den Bok directed the company to comply with section 51(1), Blue Mountain Resorts appealed the Order pursuant to section 61 of the OHSA to the Ontario Labour Relations Board (OLRB).

The OLRB heard evidence that there are approximately 1.5 skiing related incidents for every 1,000 visitors to the resort during the ski season. This ratio could translate into as many as 38 to 40 reports of "critical injuries" (as defined by the OHSA and its regulations) per weekend.

Inspector Den Bok gave evidence at the OLRB hearing that, in most cases, the inspector on call would provide a release of the accident scene if critical injuries suffered by guests of Blue Mountain Resorts were called in.

The OLRB also heard evidence that the Ministry of Labour has been aware of the resort for more than 27 years, and had never previously issued an Order with respect to a critical injury or fatality of a guest. The ministry argued that its shift in policy was due to a number of resorts appearing to engage in high-risk activity and an increased number of critical injuries to guests in recent years.

The OLRB upheld Inspector Den Bok's Order and the company was unsuccessful in its application to the Divisional Court for judicial review. But Blue Mountain Resorts was then successful in its application for leave to appeal to the Court of Appeal.

The Court of Appeal made several analytical findings before rendering its final judgment. First, the court noted that simply because a generous approach should be given to interpreting public welfare legislation such as the OHSA, this does not permit "a limitless interpretation of their provisions." It said that such an interpretive approach may result in the reach of the legislation going far beyond what was intended by the legislature.

Second, the Court of Appeal agreed with the OLRB that workers may be subject to the same workplace hazards that may cause critical injuries or death to guests. But it said that concern must be anchored in a hazard or risk that has potential harm to workers, and cannot be a vague or general hazard or risk.

Third, the Court of Appeal held that the OLRB's decision had the potential to reach far beyond the purpose of the OHSA and result in unreasonable or unwieldy ramifications.

Further, the Court of Appeal held that section 51 (1) of the OHSA must be read in light of the subsection which follows it that deals with preserving the incident scene until there has been an investigation by a Ministry of Labour Inspector. This, said the court, had not been part of the review and analysis of the OLRB. As a result, the OLRB ignored the possibility of shutting down part or all of the resort for the purpose of a workplace and worker safety investigation. The Ministry of Labour counsel on the file conceded to the Court of Appeal, as recorded in the Reasons for Judgment, that, "he could not think of any location in the province of Ontario, except perhaps an abandoned woodlot, that would not be classified as a workplace."

The Court of Appeal held that the consequences of the OLRB and Divisional Court's decision were incompatible with the objectives of the OHSA and extended the scope of intrusive Ministry of Labour powers beyond what could reasonably be required to promote and preserve workplace safety in Ontario.

In conclusion, the Court of Appeal held that the interpretation of section 51(1) of the OHSA by the Ministry of Labour Inspector, the OLRB and the Divisional Court was unreasonable. The appeal was allowed and the court said that the ministry must only be notified of a death or critical injury at a workplace (and a report provided) where there is some "reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to workers' safety at the workplace." Justice Blair, writing for the three member panel of the Court of Appeal, said:

The implications for employers are broad and complex. First, a critical injury or fatality of a non-worker does not always need to be reported to the Ministry of Labour. There must be, as the court indicated, a nexus between the hazard giving rise to the critical injury or death and a realistic risk to workers' safety at the workplace. Further, it is not always clear, as a result of this decision, who will make the judgment regarding this nexus. Presumably it is, at first instance, the employer. A Ministry of Labour Inspector may still take a different view and issue an Order — or even prosecute the employer for failure to report.

Do employers require legal advice to determine if there is a nexus? In our view, legal advice is always recommended when determining whether or not to report a workplace critical injury or fatality to the Ministry of Labour — involving either a worker or a member of the public. The Blue Mountain Resorts case reinforces this point. Employers who fail to be proactive in getting legal advice risk making a wrong interpretation, which may put a corporate employer at risk of prosecution for failing to report a critical injury or fatality.

It will be interesting to see if the Ministry of Labour field inspectors change their procedures as a result of this case. Certainly the Court of Appeal has supported a more contextual approach to section 51 of the OHSA. Other provisions of the OHSA may also have broader implications and ramifications for other interpretations, including cases currently before the courts where charges are being prosecuted under the OHSA.

PRE-START HEALTH AND SAFETY REVIEWS: AN OVERVIEW

By: Roshni Vaz

The current requirements for pre-start health and safety reviews (PSHSRs) came into effect on October 7, 2000. PSHSRs or PSRs as they are commonly called, are written professional reviews of equipment and process safety and a legal requirement in Ontario.

The PSR requirements are found under section 7 of Ontario's Regulation for Industrial Establishments. The intent of a PSR is to identify specific hazards pertaining to the installation or modification of equipment or processes with respect to safeguarding devices or interlocks, flammable liquids or explosive dusts, lifting or hoisting equipment, racking or stacking structures, toxic substances, the production of aluminum or steel, or the handling of molten metal. The requirement to complete a PSR as prescribed in the Regulation is in addition to the general requirement for employers to comply with the Occupational Health and Safety Act (OHSA).

Though complex and technical, the objective is straightforward: to prevent injuries through the identification of hazards, and the implementation of appropriate control measures before start-up and, ideally, at the design phase. The responsibility to determine whether a PSR is required, and to ensure one is completed, falls on owners, lessees or employers.

The Triggers

There are four main triggers to consider when determining if a PSR is required:

• Is the workplace governed by Ontario's OHSA?
• Is the workplace an industrial establishment?
• Does the workplace meet the definition of 'factory' as defined in the OHSA?
• Does the criteria established by section 7 apply?

If you've checked all four boxes, your workplace may require a PSR by law, if you are installing or modifying an apparatus, structure, protective element or process.

In most cases, a PSR must be completed by a professional engineer. However, the legislation allows for review by a "knowledgeable person" where it involves a process that uses or produces toxic substances that may result in exposure above occupational exposure limits.

The Report

Although the legislation does not specify any format or template for a PSR report, section 7 dictates that the written report should contain, at minimum, the following:

• Details of measures taken to bring the item into compliance
• Date and signature of the person performing the PSHSR
• If a professional engineer (P.Eng) performed the PSHSR, his or her seal
• If the person performing the PSHSR is not a P.Eng, details of his or her special expertise, knowledge or qualifications.

The report, along with any supporting documents, must be readily accessible in the workplace, for as long as the item remains in the workplace. Further, the key players must know where to find the report, and be able to retrieve it readily.

• In addition, the Joint Health and Safety Committee (JHSC) must be provided with the PSR report before the equipment or process is operated or used, and must be provided with any exemption documents upon request. Further, the JHSC must be given written notice of any alternative measures to be taken, if the measures identified for compliance on the PSR are not implemented.

Documents provided to the JHSC or the health and safety representative are for information and review purposes only.

The item may be put into operation or used once the PSR report has been provided to the JHSC or the health and safety representative. We recommend creating a stamp that includes the date and a space for a JHSC member signature, confirming receipt of the PSR for review. This will help facilitate an efficient internal PSR audit and provide proof for due diligence purposes.

Effective management of PSRs is critical. Recommendations for effectively managing these reviews include providing courses on the subject matter to key players involved in workplace health and safety, and development of a PSR procedure that includes, at a minimum, annual internal audits to ensure compliance with section 7. Individuals who should receive PSR training include personnel from production, engineering, maintenance, health and safety and even accounting and/or purchasing.

Failure to complete PSRs when required may result in enforcement by the Ministry of Labour by way of compliance and/or stop work orders and/or prosecutions. A conviction under the OHSA carries a maximum penalty of $25,000 and/or a 12-month imprisonment for individuals, and a maximum penalty of $500,000 per offence for corporations. In addition, directors, officers, and/or corporations may be charged under the Criminal Code.

For more information on PSRs, consult the Ministry of Labour Guidelines for Pre-Start Health and Safety Reviews, available on the MOL website at www.labour.gov.on.ca.

IS THERE A DUTY TO MAINTAIN A PSYCHOLOGICALLY SAFE WORKPLACE?

By: Deanah Shelly

Workers with mental health challenges represent the fastest growing number of disability claims in the country. Mental health challenges are also the leading cause of both short-term and long-term disabilities in Canada. The economic effects of mental health challenges are estimated at $51 billion per year, of which nearly $20 billion is attributable to workplace losses.

Recently, the CSA Group (CSA), the Bureau de normalisation du Québec (BNQ) and the Mental Health Commission of Canada (MHCC) worked collaboratively to release a national standard to improve the psychological health and safety of Canadian workers. The standard titled the CAN/CSAZ1003- 13/BNQ 9700-803/2013 is built on existing occupational health and safety guidelines, management systems and risk assessments.

Although compliance is currently voluntary, there is speculation in the occupational health and safety community that this standard could be incorporated by reference into relevant statutes, and emerge as a legal duty under occupational health and safety legislation. This speculation is based on the assumption that many aspects of psychological health and safety are within the control, responsibility, or influence of the workplace, the employer, the supervisor, and more generally, its workforce.

The standard addresses the prevention of harm (the psychological safety of employees), the promotion of health (maintaining and promoting psychological health), and the resolution of incidents or concerns. For workers, addressing these areas can heighten engagement, enhance productivity and improve creativity and innovation. For employers and supervisors, the corresponding effect is better recruitment and retention of talented workers, and a reduction of several key workplace issues including the risk of conflict, grievances, injury rates and morale problems.

Section 1.1 of the standard provides a list of requirements for a documented and systematic approach to develop and sustain a psychologically healthy and safe workplace:

1. Identification and elimination of hazards in the workplace that pose a risk of psychological harm to a worker;
2. Assessment and control of the risks in the workplace associated with hazards that cannot be eliminated (example, stressors due to organizational change or reasonable job demands);
3. Implementation of structures and practices that support and promote psychological health and safety in the workplace; and
4. Development of a culture that promotes psychological health and safety in the workplace.

While compliance with the standard is voluntary, and accordingly, does not have the force of law, employers have a legal duty to take reasonable precautions to protect the health and safety of workers. The OHS specialists at Gowlings recommend that employers, supervisors, and occupational health and safety professionals be knowledgeable of the standard's strategic pillars: namely the proposed prevention of harm, the promotion of health, and the implementation recommendations, thus encouraging resolution of incidents and concerns.

For a free download of CAN/CSA-Z1003-13/BNQ 9700- 803/2013, register through the CSA website at http://shop.csa.ca or www.bnq.qc.ca.

DEVELOPING A PROCESS TO PROVIDE INDIVIDUALIZED WORKPLACE EMERGENCY RESPONSE INFORMATION TO EMPLOYEES: A REQUIREMENT UNDER THE INTEGRATED ACCESSIBILITY STANDARDS REGULATION

By: Cathy Chandler

The intent of the Accessibility Standard for Employment, one of the three standards contained in the Integrated Accessibility Standards (IAS) Regulation, is to help Ontario businesses and organizations make accessibility a regular part of finding, hiring and supporting employees with disabilities. One of the requirements under this standard is that organizations must help employees stay safe in an emergency by providing them with individualized emergency response information when necessary. This requirement is contained in section 27 of the standard as follows:

1. Every employer shall provide individualized workplace emergency response information to employees who have a disability, if the disability is such that the individualized information is necessary and the employer is aware of the need for accommodation due to the employee's disability.
2. If an employee who receives individualized workplace emergency response information requires assistance and with the employee's consent, the employer shall provide the workplace emergency response information to the person designated by the employer to provide assistance to the employee
3. Employers shall provide the information required under this section as soon as practicable after the employer becomes aware of the need for accommodation due to the employee's disability.
4. Every employer shall review the individualized work place emergency response information,
   
   
   1. when the employee moves to a different location in the organization;
   2. when the employee's overall accommodation needs or plans are reviewed; and
   3. when the employer reviews its general emergency response policies.
      
      
5. Every employer shall meet the requirements of this section by January 1, 2012.

Employers must provide individualized workplace emergency response information to employees who have a disability, if the disability requires individualized information and the employer is aware of the need for accommodation. For instance, you have an employee with a broken leg who has indicated to you that he/she requires assistance in an emergency situation, until such time as the leg is healed. You may also have employees with permanent disabilities who require permanent accommodations in an emergency response situation.

The standard does not dictate how employers must comply with this requirement. We would recommend that employers develop a template form to assist in the development of individualized workplace emergency response information and emergency procedures. Consider the following:

• What are the employee's communication requirements?
• What are their physical strengths and weaknesses? Is one side of their body stronger than the other? Do they use assistive devices?
• What is the employee's preferred method of lift or carry for evacuation?
• Are there one or two "buddies" (assistants) assigned to the individual?
• Does the individual spend time in various locations in the building? How will he or she be located?
• Is the building elevator capable of providing a safe exit during an evacuation or will the individual need to use the stairs?
• Are evacuation devices available? Will they be required?

Incorporate the evacuation plans of employees who require assistance during an emergency situation into the overall evacuation procedures for your building or workplace. The identity of employees who require special assistance and their individualized workplace emergency response information plans must be kept confidential in accordance with the requirements of applicable privacy legislation.

Employers were required to comply with this provision in the IAS by January 1, 2012.

MANAGING FATIGUE AT THE WORKPLACE

By: Carla Oliver

One of the fundamental aspects of a job as a health and safety professional is to ensure that an employer has identified and assessed its workplace hazards, and put into place proper controls to either eliminate or reduce those hazards. Basic Safety 101 . . . correct? We have our inspection checklists, our risk matrices, our risk determination criteria, and off we go. But have we really identified all the risks to workers? A hazard you may not have considered in your assessment is worker fatigue.

If you ask someone at work how they are doing and they respond, "OK, just tired," what do you think? We may associate tiredness with working too much, but generally we think they're just not getting enough sleep. Normally we don't sit and ponder the reason why. We tend to think getting enough rest is a personal responsibility.

But it may not be that simple. What if your employees work in shifts, or consistently work overtime? How do you manage the risk of fatigue and why should you, as an employer, care about worker fatigue?

Fatigue is considered a symptom because it is a subjective feeling: someone feels tired. There are different types of fatigue, such as physical or mental fatigue. Physical fatigue occurs when one's muscles don't perform at an optimal level. Mental fatigue can affect cognitive performance. The upside of fatigue is that it can be alleviated by periods of rest. The downside of fatigue is that it may result in worker errors due to a reduced ability to focus on the work at hand, underestimation of risk or reduced coordination. These errors may cause accidents resulting in injuries and health problems, and may cause an organization to experience a downturn in production.

Worker fatigue at a workplace may be the result of excessive working times, rotating shifts or working at night. One third of the Canadian labour force does not work a regular daytime shift. Working in the evening, at night and in rotating shifts has the greatest potential to disturb sleeping patterns and disrupt circadian rhythms. This can lead to fatigue.

Under health and safety legislation, an employer is required to acquaint workers and their supervisors with any hazards in the workplace. Employers need to consider that fatigue may be a hazard to employees who work on rotating shifts. Fatigue needs to be identified, assessed and controlled like any other workplace hazard, taking into consideration the employer's need for increased production, or a worker's willingness to work extra hours or additional shifts. An employer may already be following the minimum requirements for work hours set out by employment standards legislation, but an assessment should be completed to ensure it is sufficient in addressing the risk of fatigue in the organization.

After assessing the risk of fatigue at your worksite, employers should create a policy or program to address and manage the fatigue. There are many controls an organization may implement. A few may include developing roles and responsibilities for both employers and employees, training supervisors to recognize the symptoms of fatigue and on the steps to take if they find a worker is fatigued, and developing employee awareness about the symptoms of fatigue.

There is no easy solution to managing fatigue. Customer demands and the willingness of workers to work excessive hours, or to request night shifts due to work-home balance considerations, may present challenges. However, when provided with the proper tools for a risk assessment, an employer can implement controls to reduce the risk of fatigue, ensuring a safer and healthier workplace.

EXPANDED MANDATORY WSIB COVERAGE NOW IN EFFECT FOR CONSTRUCTION SECTOR EMPLOYERS

By: David Marchione

January 1, 2013 brought about big changes for those working in Ontario's construction sector. Executive Officers, partners in a partnership and independent operators who work in the construction sector, now require coverage by the Workplace Safety and Insurance Board (WSIB).

Until December 31, 2012, employers in the construction sector who had at least one worker (full- or part-time) were required to register for coverage with the WSIB and pay premiums on behalf of their workers. Executive officers (as defined by WSIB's criteria), partners in a partnership and independent operators (when ruled as such by the WSIB) were not required to have coverage. Employers who contracted with independent operators could either pay premiums on behalf of those independent operators, thus treating them as workers and assuming liability for any workplace injuries, or obtain an independent operator ruling from the WSIB. An individual who met the WSIB's criteria for an independent operator, was exempt from coverage.

As of January 1, 2013, the WSIB expanded coverage in the construction industry to include those previously excluded. Following are some highlights of the changes:

• Companies must now pay premiums on behalf of their Executive Officers, and may exempt only one executive officer from coverage. In order to be exempt, the Executive Officer may perform only administrative duties on behalf of the corporation and may not perform any construction work. Employers need to complete a specific form (Form 1208WA) to apply for this exemption.
• The WSIB has established a new rate group for non-exempt executives, and companies need to complete a specific form (Form 1209WA) to request coverage under it. The premium rate for the new Rate Group 755 for 2013 is 21 cents per $100 of insurable earnings.
• A partnership may exempt one partner from coverage, but premiums must be paid on behalf of the other. Once again, the exempt partner may not perform construction work, and must only perform administrative duties on behalf of the partnership.
• Those individuals in the construction sector meeting the WSIB's criteria for independent operator status are no longer exempt from coverage, and are required to register their own account and maintain coverage. Those who contract with an independent operator may now obtain a clearance certificate from the independent operator, confirming registration with the WSIB and that the account is in good standing. Changes to the Workplace Safety and Insurance Act make the principal of the contract liable if they fail to obtain a clearance certificate.

The changes above apply only to those who do not work exclusively in home renovation. Employers performing only home renovation work will be required to maintain registration and premium remittances on behalf of their workers, but will not be subject to the expanded coverage for executive officers and partners in a partnership. Independent operators working exclusively in home renovation are also exempt from coverage and are not required to register. However, if any of these parties performs other construction work in addition to home renovation work, registration and premium remittance is required.

Failing to register with the WSIB within 10 days of becoming an employer is an offence under the Workplace Safety and Insurance Act, carrying a maximum penalty of $100,000 plus a 25 per cent victim surcharge. The WSIB has established a permanent partial amnesty for employers who voluntarily register for coverage, but have missed the deadline by which they should have registered. The partial amnesty protects them from prosecution, and limits the amount of retroactive premiums the WSIB will seek to recover. Employers identified by the WSIB as having failed to register are not eligible for the partial amnesty and may be subject to significant retroactive premium charges, plus interest, as well as the possibility of prosecution.

For more information on the mandatory registration requirements, and to view the WSIB's new operational policies on mandatory registration in construction, please visit the WSIB website at www.wsib.on.ca.

COURT OF APPEAL UPHOLDS DECISION THAT EMPLOYEE WHO FAILED TO REPORT A SAFETY VIOLATION WAS WRONGFULLY DISMISSED

By: Anna Abbott

The Court of Appeal upheld the decision of the Superior Court (2011 ONSC 6068) that employee, John Plester, who failed to report a safety violation in a timely manner, was wrongfully dismissed by his employer PolyOne. The Court of Appeal agreed that the dismissal of John Plester was a disproportionate response to the incident.

The decision, Plester v. PolyOne Canada Inc. 2013 ONCA 47 of the Ontario Court of Appeal was released on January 28, 2013.

Mr. Plester, a line-supervisor, was a 17-year employee with a largely unblemished safety record. His employer, PolyOne, had a strong workplace safety culture and a policy that employees report safety violations "immediately." The incident that resulted in Mr. Plester's dismissal involved his failure to lock out a machine he was working on as required, and his subsequent failure to immediately report the safety violation. Additionally, Mr. Plester had attempted to dissuade subordinates from reporting his mistake before he had the chance to report it to management himself. Management quickly discovered the failure to report, and Mr. Plester was immediately dismissed without notice.

In deciding for Mr. Plester, the court recognized an employer's ability to respond to violations of workplace safety rules. However, given Mr. Plester's long-standing service with only minor disciplinary incidents, and none since his promotion to supervisor six years earlier, it found that immediate dismissal was not the appropriate sanction in this case. The court also considered the fact that the incident had not harmed another worker.

Although safety in the workplace must be a top priority for employers, decisions to terminate employment for safety violations must be assessed on a case-by-case basis. There may be instances where termination of employment is warranted, however, employers will need to consider all factors and possibly apply less severe sanctions where appropriate. For example, suspension or discipline may be more appropriate sanctions than terminating the employment of a long-standing employee with a clean safety record.

Footnote

1 Cara Williams, "Work-life balance of shift workers", Statistics Canada, January 31, 2013, (http://www.statcan.gc.ca/pub/75-001-x/2008108/article/10677-eng.htm)

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.