Canada: The National Workplace Risk Management Newsletter Of Gowlings - September 2010

Last Updated: September 17 2010

EDITORIAL

It is September, and everyone is getting back to something: Children are heading back to school, employees are heading back to work and OHS regulators are heading back to changing and enforcing regulations and standards.

In this edition, we provide you with timely information regarding new regulations for federally regulated employers in the maritime industries. We also address the new initiatives of the Ontario Workplace Safety Insurance Board to update and change the labour market re-entry program, which may effect thousands of injured workers.

As a result of my involvement with the American Society of Safety Engineers "ASSE", and due to popular demand, we will be providing a regular update in our newsletters on developments in American occupational safety and health law; in this edition, we talk about the OSHA updating up "Whistleblower" protection.

As you head back to work, Gowlings is there to back you up in reducing workplace risk, reducing employer costs, and helping make workplaces safer and more productive across Canada.

Norm Keith, B.A., LL.B., CRSP
Partner, Gowlings

Revised Maritime Occupational Health and Safety Regulations – In Force as of June 3, 2010
BY: ANNA ABBOTT, B.A., LL.B., ASSOCIATE

The Maritime Occupational Health and Safety Regulations under Part II of the Canada Labour Code have been revised for the first time since 1987. The regulations came into force on June 3, 2010. These new provisions were implemented with the goal of modernizing and updating regulatory provisions related to workplace health and safety in the marine sector. The main goals sought by legislators through the update of these regulations were to:

  • harmonize the regulations with the Canada Occupational Health and Safety Regulations, while recognizing the special working conditions of onboard employees in order to ensure that they enjoy the same level of health and safety protections as offboard employees
  • update the regulations to promote consistency with the Canada Shipping Act 2001
  • incorporate updated technology and current national and international marine industry standards
  • implement requirements from the Maritime Labour Convention, 2006 (MLC 2006)

The key changes to be implemented as a result of the new provisions are:

  • the development, implementation and monitoring of a hazard prevention program (Part 7)
  • the development, implementation and monitoring of a violence prevention program (Part 5, Division 2)
  • the implementation of new requirements derived from the MLC 2006 pertaining to crew accommodation, recreational facilities, sanitation and medical care (Parts 3, 4 and 6)

The costs of implementation of the hazard and violence prevention programs will be high in the first few years of operation. However, the benefits will eventually outweigh the costs. These provisions are anticipated to help Canada's marine industry become more competitive in the international market through the avoidance of economic loss generated by occupational illness and workplace accidents.

Further, the adopted MLC 2006 provisions reflect and clarify practices that the Canadian Marine industry has been operating under for years. Many newer large vessels already comply with the conven- tion as they are required to follow these provisions if they wish to dock in international ports where the convention has already been ratified. Vessels built prior to the coming into force of the regulations will not be affected by the provisions derived from the MLC 2006. Therefore, these specific provisions are not expected to have a significant cost impact on employers.

While Canada has yet to ratify the International MLC 2006, the revisions to the Maritime Occupational Health and Safety Regulations support the eventual ratification of this Convention by Canada, which has long been supported by Canadian ship owners.

The Transport Canada Marine Safety Health and Safety Officers are delegated the responsibility of enforcing these regulations. Booklets and information pamphlets on the new provisions are available on the Transport Canada website.

Marine workers remain protected by the Canada Occupational Health and Safety Regulations when not aboard a vessel.



PSRs 10 Years Later, Lessons Learned
BY: DANNY C. MARMORA, P.ENG. PRINCIPAL, MARMORA CONSULTING

As we approach the 10 -year anniversary of the Pre-Start Health and Safety Review (PSR), legislation as we know it today, I was humbled when Mr. Keith asked me to comment on the "lessons learned." Upon reflection, two critical areas stand out in my mind.

The first deals with the employer, owner or lessee of a facility responsible for completing a PSR. Under the legislation, the aforementioned parties are charged under O.Reg 851 Section 7 to ensure that when an applicable PSR "trigger" arises, a PSR is completed. It has been my experience, and to current date, that many employers, owners, etc., of equipment, machinery, etc., still do not understand the mechanics of the Legislation. This is of no detriment to them, but I have found it surprising to still encounter the most basic questions about the PSR process. Given that Bill C-45 has passed and a number of cases are soon to be heard , I find it troublesome that some employers still do not understand their Regulatory obligations, given the possible incarceration now possible. At times, this lack of knowledge or failure to act on it has had heart -wrenching consequences as noted below.

On March 14, 2001, a worker at the Les Aliments Dainty Food plant in Windsor, Ontario was cleaning a roller mill (a machine used to mill rice grains into rice flour). The worker's fingers became caught in the mill's rolls, and three fingers were amputated . The Ministry of Labour (MOL) investigation found that Les Aliments Dainty Foods failed as an employer to conduct the required engineering review of the roller mill in accordance with Section 7 of the Regulations for Industrial Establishments, and failing as an employer to ensure the roller mill was guarded in accordance with Section 25 of Ontario Regulations 851 for Industrial Establishments. In this case, the employer failed to recognize that a PSR was required, or failed to have one completed. Les Aliments Dainty Foods was fined $85,000 in total.

"Lesson learned": The lack of employer action regarding the knowledge of or completion of a PSR resulted in an employee injury.

What is further troubling is that some employers will have the PSR completed as a "necessary evil" (as heard first - hand many times by the author in the industry), and NOT act on it. For example, on July 20, 2006, an employee of Steelmatic Wire located in Toronto was seriously injured while using a wire drawing machine with a protective cover opened. While this is troublesome enough, the court heard that a PSR identifying the hazard leading to the injury was completed some two years prior. Upon reviewing the PSR report, the MOL discovered the area of the machine that caused the injury, had been identified by the reviewing engineer as a hazard and needed to be interlocked in some form.

"Lesson learned": Here we have an employer, who is positioned at the top of internal responsibility systems (IRS), a key stakeholder in worker safety, and they fail to act on their legal obligation to protect the worker by implementing the recommendations noted in a PSR. Steelmatic Wire was fined $150,000 and three company officials were each fined the maximum allowable fine of $25,000 after pleading guilty.

From a different perspective, and one very close to the author, I wish to comment on the competency of the Professional Engineers providing PSRs. When the PSR process went "public" and the onus was one the employer to retain a "private" Professional Engineer, the marketplace became, and remains, flooded with a myriad of practitioners who, in the author's opinion, have not provided complete reports to their clients.

Now I would expect this comment will draw quite a bit of fire from the readers, but it has been my direct experience seeing what other Professional Engineers are calling PSR reports. Many of these reports leave an employer with a false sense of security, as said reports do not identify all the potential Regulatory/ Standards deficiencies that could lead to an injury or worse. A case in point deals with Mr. Vinodbhai Patel, P.Eng. In September 2002, Mr. Patel was retained by Cougar Automation Technologies to review and comment on the electrical control drawings for some safety upgrades to the Parmalat warehouse in Mississauga, Ontario. Mr. Patel's review and preliminary electrical / control designs did not provide for circuitry for stopping several motors that were critical to the e-stop function. Further, Mr. Patel did not recognize the motor e-stop circuitry was "routed" through software and over a communication cable. At that time, all safety -related functions had to be "hard wired," from the device to the controller. The use of software -based control logic was not acceptable. At the end of the investigation, Professional Engineers Ontario (the regulator for Professional Engineers in Ontario) found Mr. Patel guilty of professional misconduct. Mr. Patel did not appeal the decision.

"Lesson learned": To all employers, scrutinize the Professional Engineer you hire to do the PSR work. It has been my experience that "thin" PSR reports do not always mean the machine / process meets current Regulatory requirements. Look for references to applicable Standards and codes. Look for a risk analysis as required by CSA Z432 / Z434. Look for detailed recommendations on how to bring the reported deficiency back into compliance. These are all requirements of a complete PSR report as required by O.Reg. 851 Section 7. If these things are missing, then the report is not complete. Be cautious and careful; the services provided by that Professional Engineer have a direct and lasting effect on the safety of the employees in your facility.

Danny Marmora is the Principal at Marmora Consulting. Mr. Marmora has 10 years direct experience in occupational health and safety consulting, and is authorized by Professional Engineers Ontario to provide Pre-Start Health and Safety Reviews, machinery safety assessments, industrial risk, occupational health and safety engineering and accident / fatality investigation. Mr. Marmora can be reached at danny@marmoraconsulting.com or www.marmoraconsulting.com.



Ontario's WSIB Re-Vamps Vocational Rehabilitation Program
BY: DAVID MARCHIONE, B.A., CHSC, OHS CONSULTANT/PARALEGAL Ontario's Workplace Safety and Insurance Board ("WSIB") has announced that it will be making significant changes to its vocational rehabilitation, or Labour Market Re-Entry ("LMR"), program. This program is generally used to assist workers in returning to the workforce following injuries that result in a permanent impairment, and where the worker is unable to return-to-work with the preinjury employer.

Vocational rehabilitation has been part of the workers' compensation in Ontario since the 1930s. In 1990, provincial legislation brought in a more prescriptive role for the compensation board's staff and put obligations on employers to offer to re-employ injured workers for up to two years following their injury. During that period, the board had its own vocational rehabilitation staff to assist with return to work and workplace reintegration (Source: http://www.wsib.on.ca/wsib/wsibsite.nsf/public/NewsWorkReintegration).

In 1998, the WSIB shifted to a selfreliance model that put responsibility for return-to-work in the hands of the employers and workers. The vocational rehabilitation program was changed, with its goal being to help injured workers who could not return to the preinjury employer by providing them with retraining and support to re-enter the open labour market. LMR case management was outsourced to third party providers who would work with secondary service providers to deliver academic, language, vocational and job search training. The WSIB's role in the process was to monitor progress and provide dispute resolution.

,P> The WSIB determined that since the changes in 1998, its re-training programs have not been as effective as they anticipated in helping workers return to work or restore their earnings. The Board conducted a comprehensive review of its LMR and return-to-work programs in 2009 to identify the root of the problem. Stakeholder consultations also supported the need for significant change to the WSIB's approach.

The WSIB has announced that late in 2010, it will integrate its LMR and return-to-work programs into a new Work Integration Program. The WSIB has stated that the goals of the program are to help injured workers return to decent, safe and sustainable jobs and to give Ontario's employers more support from the WSIB to retain and re-train their injured employees (Source: http://www.wsib.on.ca/wsib/wsibsite.nsf/public/NewsWorkReintegration).

The new program will help:

  • maintain the relationship between the worker and the original employer
  • provide direct oversight by the WSIB for all retraining services for injured workers
  • increase worker input and choice in their vocational goals
  • make greater use of Ontario's public education system for injured worker retraining
  • provide workers with marketable skills and valid credentials

Under the new system, the WSIB will phase out the use of external LMR case managers and WSIB staff will manage individual cases. This new approach will be less prescriptive than the former vocational rehabilitation model, and is also a move away from the self-reliance model as the WSIB has recognized that workers and employers need the WSIB's help to achieve successful work reintegration outcomes.

The new system will feature a strong focus on work retention with the injury employer, direct oversight of all retraining services, and increased worker input and choice. The new system will mean changes for all parties involved in LMR – employers, workers, WSIB staff, and primary and secondary service providers with the goal of better and more sustainable outcomes for injured workers.

For more information on the WSIB's new Work Integration Program, see the Q&A at: http://www.wsib.on.ca/wsib/wsibsite.nsf/public/NewsWorkReintegrationQA



Ontario Government: Target on Construction Workplaces in Safety Campaign
BY: ANTHONY DI GIANNI, CHSC, OHS CONSULTANT/PARALEGAL

The Ontario Ministry of Labour has launched an eight-week campaign with its Ontario Health and Safety partners, the Workplace Safety and Insurance Board (WSIB) and Infrastructure Health and Safety Association (IHSA), with a focus on putting safety first on construction sites across the province. "Workers, supervisors and employers need to watch out for each other on construction sites. I hope these strong messages will remind them of what's at stake. It's about going home to your family safe and sound at the end of the work day," stated Peter Fonseca, Ontario Minister of Labour.

What is known as the "Workplace Safety Tour" on construction sites began on July 28, 2010 with its first stop in Toronto. The tour will be making numerous stops across the province, including Hamilton, London, Kitchener, Sault Ste. Marie, Ottawa, Kingston and Peterborough. The focus of the tour is to emphasize the need for everyone on the job to be trained properly, be made aware of dangers associated with their work and to ultimately provide a safe working environment for all workers.

The safety campaign follows a recent 90-day safety enforcement blitz of more than 2,800 Ontario construction sites. During the blitz, Ontario Ministry of Labour inspectors identified many violations related to missing or inappropriate use of guardrails, scaffolding and fall protection systems and supervisor and worker training. These proactive inspection blitzes on sector-specific hazards are designed to increase awareness and compliance with health and safety legislation.

The Ontario Ministry of Labour announces these blitzes in advance and the results are reported after they are completed. The Ministry tracks each sector to determine if the blitzes result in a long-lasting increase in compliance and decrease in injuries. Upcoming blitzes for Ontario workplaces include: Musculoskeletal Disorders (MSDs) from September 1st to October 31st for all sectors, Conveyor Guarding from November 1st to December 31st for the industrial sector, and Loading Docks from February 1st to 28th for the industrial and health care sectors.



Ford Motor Company of Canada Fined $850,000 for Worker Deaths
BY: CATHY CHANDLER, B.A. SC., CRSP, CHSC, OHS CONSULTANT/PARALEGAL

On May 25, 2010, Ford Motor Company of Canada ("Ford") pleaded guilty to two counts of failing to take all reasonable precautions to protect the safety of workers in two separate fatal incidents. On January 31, 2008, Sarwan Baraich, a 20-year Ford veteran, was fatally injured when he was crushed between two forklifts at the company's Oakville, Ontario assembly plant. The worker was standing beside one of the forklifts when another worker reversed a separate forklift into the individual. The Ministry of Labour's investigation found that the operator of the forklift did not keep a clear view of the vehicle's path of travel, resulting in the fatality. One year later, on January 14, 2009, Shara Flanigan, who had been with the company for 12 years, was killed while driving a lift truck carrying an unsecured pallet at Ford's Bramalea parts distribution centre. The worker was driving the lift truck down a narrow aisle when the pallet struck a storage rack. The worker was crushed between the pallet and the lift truck. A Ministry of Labour investigation found that Ford's material movement policies and procedures were not adequate.

As outlined in s. 66(2) of the Occupational Health and Safety Act, the maximum penalty faced by a corporation for a contravention of the Act or its regulations is a $500,000 fine. A fine of $850,000 was imposed by Justice of the Peace Jerry Woloschuk for the two fatalities at Ford. In addition to the fine, the court imposed a 25 per cent victim fine surcharge of $212,500, as required by the Provincial Offences Act. The fine, which totalled $1,062,500, is the largest levied by the Ontario courts in recent history for multiple violations of the Occupational Health and Safety Act.

The amount of the fine is typically determined by taking into consideration factors such as the size of the company involved, the scope of economic activity in issue, the extent of actual and potential harm to the public, and the maximum penalty prescribed by statute. Above all, the amount of the fine is determined by the need to enforce regulatory standards by deterrence. The million dollar penalty levied in this case is an indication that the Ministry of Labour may be seeking higher fines for workplace fatalities.



American Occupational Safety and Health Administration Reviews "Whistleblower" Protection"
BY: NORM KEITH, B.A., LL.B., CRSP, PARTNER

The prevention of reprisals against those individuals who turn in their employer, or alert health and safety regulators to problems at their place of employment, has long been a part of Canadian OHS law. How successful this protection has been largely depends on the willingness of the employee to risk retaliation and assert their rights under applicable provincial or federal OHS legislation in Canada. In light of the West Virginia Mine disaster earlier this year, and the now infamous BP oil spill in the Gulf, which of course also resulted in the explosion and fire on the rig and death of 11 workers, the U.S. OSH administration is reviewing its whistleblower protection.

Occupational Safety and Health Administration (OSHA) administrator David Michaels recently announced the agency would conduct a "top-to-bottom" review of its whistleblower protection program, and address the difficulties and inconsistencies in the "patchwork" of laws protecting whistleblowers.

OSHA is tasked with enforcing a varied collection of whistleblower protections, including the Occupational Safety and Health Act statute, seven environmental statutes and six transportation statutes. "Along with an inconsistent, confusing collection of provisions, we find unsatisfying outcomes of complaints," Michaels said. "Too few complaints are reaching resolutions intended by the whistleblower provisions."

Calling the 40-year-old OSH Act "antiquated," Michaels praised the whistleblower protection provisions in the Protecting America's Workers Act (S. 1580). The legislation would expand anti-retaliation provisions by:

  • Prohibiting employer policies that discourage workers from reporting illnesses or injuries
  • Prohibiting employer retaliation against reporting injuries or illnesses
  • Granting workers the right to pursue their cases if OSHA fails to do so in a timely manner

Michaels said the provisions in PAWA are only the first step – 16 other whistleblower statutes will also need strengthening. Although critics have claimed that whistleblower protection has not been on the "radar" of OSHA leadership, Michaels disagreed. "Whistleblower protection is an essential part of strong enforcement, and over the last year, OSHA has been struggling to shore up its foundations on several fronts," he said.

It is interesting, from a Canadian perspective, to look at the U.S. OSH response to recent occupational health and safety crises and consider how to review and improve their legislation. For example, there is a greater emphasis in Canadian OHS legislation on the role of a joint health and safety committee and safety representatives than there is in the U.S. The last president who attempted to amend the American OSHA, Bill Clinton, was unsuccessful. However, before we dismiss this initiative by David Michaels, it is clear that the whistleblower protection is an important aspect of any sophisticated OHS legislative regime, and the pending changes in the United States are worth consideration for Canadian OHS regulators and for progressive employer best practices.



Good "Scents" for Ontario Employers
BY: ANNA ABBOTT, B.A., LL.B., ASSOCIATE

On May 11, 2010, Bill 64, the Occupational Health and Safety Amendment Act (Scented Products), 2010, was introduced in the Provincial Legislature. If successful, Bill 64 will amend subsection 25 (2) of the Occupational Health and Safety Act. The amended section will require employers to prepare and review annually, in consultation with workers, written policies on the use of scented products in the workplace. Employers will also be required to develop and maintain programs to implement such policies.

The policy employers must draft in consultation with workers should identify the purpose of the scent-free policy, list restricted products and identify any health issues caused by these restricted products. The policy must also identify those individuals responsible for managing the policy in the workplace. In order to identify restricted products, the employer must consult with workers to determine what is meant by "scent-free" contain scents.

It is important to note that Bill 64, as drafted, does not require employers to adopt a specific scent policy, such as a scent-free or scent-reduction policy. The Bill aims at ensuring that all employers consult employees about what is reasonable for their particular workplace and implement an appropriate program that fits their particular work environment.

Regardless of when the requirement for a scented products policy is legislated under the Occupational Health and Safety Act, it is prudent for employers to consider creating a policy in order to manage liability with respect to possible human rights violations. There are human rights implications for employers that fail to provide a scent controlled workplace. Sensitivity to scented products, most often referred to as environmental sensitivities, is a disability that is recognized by the Canadian Human Rights Commission and the Ontario Human Rights Commission. The Canadian Human Rights Commission has released a policy on Environmental Sensitivities that can be viewed at http://www.chrc-ccdp.ca.

Currently, Health Canada is the government body responsible for regulating cosmetics under the Food and Drug Act and the Cosmetic Regulations. The Canadian Environmental Protection Act, 1999 (CEPA) provides Health Canada and Environment Canada additional authority to regulate chemical ingredients that meet the legal definition of "toxic."

First reading of Bill 64 was carried on May 11, 2010 and no further steps have been taken. The Bill would become law in Ontario six months after receiving Royal Assent. Bill 64 was introduced as a Public Bill by Mr. Dave Levac, MPP (Brant).



Proposed Changes to Exposure Limits in Ontario
BY: KATHRYN ALDRIDGE, B.A.SC., CHSC, OHS CONSULTANT/PARALEGAL

The Ontario Ministry of Labour has published its proposed changes to Occupational Exposure Limits (OEL) for 2010. OELs are maximum exposure limits, with respect to duration and concentration, prescribed for exposure to an airborne hazardous chemical or biological agent. These limits are in place to provide protection to workers from adverse health effects. Ontario Regulation 833, Control of Exposure to Biological and Chemical Agents and Regulation 490, Designated Substances govern OELs.

The Ministry of Labour derived their proposed changes from recommendations from the American Conference of Governmental Industrial Hygienists (ACGIH). The ACGIH is a memberbased organization that aims to improve occupational and environmental health. Independent experts voluntarily work together to determine appropriate exposure limits that are relied upon across North America. Due to changes from the ACGIH, the Ministry of Labour has proposed the following changes:

  • Addition of the substance Citral and Methyl Isocyanate
  • Revisions to existing exposure limits for 10 substances ( Cotton dust, Cresol, Dieldrin, Hydrogen sulphide, Methyl isobutyl ketone, α- Methyl styrene, Oil mist – mineral, Portland cement, Thallium, Thionyl chloride)
  • Removal of Tantalum, metal and oxide
  • Removing short-term exposure limits for 22 substances and applying excursion limits instead

There is a 60-day consultation period for the proposed changes which provides stakeholders an opportunity to give feedback before the changes become law. September 17, 2010 is the date the consultation ends. Employers should familiarize themselves with the upcoming changes and ensure their respective control programs meet the new requirements.

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.

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