AMENDMENTS TO ONTARIO OCCUPATIONAL HEALTH AND SAFETY ACT COMING
No provision yet for MOL to impose "administrative monetary penalties", but new certified member training requirements coming. Codes of Practice will provide broader defence
The Ontario government has introduced amendments to the Occupational Health and Safety Act resulting from the recent report of an expert panel. Bill 160 received first reading on March 3, 2011.
No "Administrative Monetary Penalties" – Yet. Perhaps because it is an election year, the government appears to have chosen not to implement the recommendation that might have concerned employers the most: giving the MOL power to impose monetary penalties without laying charges in the courts. The Ontario Ministry of the Environment already has such a power.
Training Standards and Codes of Practice. The two changes most likely to directly impact employers are: (1) the Minister of Labour will be given the authority to establish standards for health and safety training of health and safety representatives and certified members of joint health and safety committees, and (2) Codes of Practice approved by the Minister may now be used to prove compliance with the OHSA itself (for instance, employers' general duty to take reasonable precautions) rather than with the regulations only (for instance, guarding requirements in the Industrial Regulations).
Reprisals. Where the employee consents, the Bill will also allow an MOL inspector to refer a reprisal issue to the Ontario Labour Relations Board, instead of requiring the employee to file a reprisal complaint – alleging that he or she was punished for raising safety issues ‐ him or herself.
Expanded Mandate of Offices of Worker and Employer Adviser. Under the Bill, the Minister may assign the Office of the Worker Adviser and the Office of the Employer Adviser the authority to advise workers and employers with fewer than 100 employees, respectively, on health and safety matters, rather than simply on workers' compensation matters. This change could provide a real benefit to small employers.
Prevention. The MOL will assume responsibility for prevention of injuries and accidents. Previously, the OHSA did not explicitly make this a responsibility of the MOL.
Chief Prevention Officer. There will be a new Chief Prevention Officer for Ontario who will be tasked with providing leadership on the prevention of workplace injury and occupational diseases. The MOL has already appointed an Interim Health and Safety Prevention Council headed by Paavo Kivisto, former Deputy Minister of Labour.
Health and Safety Associations. The Minister of Labour will also be given oversight power over the Province's health and safety associations (Infrastructure Health and Safety Association, Workplace Safety North, Public Services Health & Safety Association, Workplace Safety & Prevention Services), under the leadership of the Chief Prevention Officer.
The report of the Expert Advisory Panel, which was released in December 2010, can be viewed at: http://www.labour.gov.on.ca/english/hs/pdf/eap_report.pdf
Bill 160, Occupational Health and Safety Statute Law Amendment Act, 2011: (http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&Intranet=&BillID=2463)
"DISPERSED WORKPLACES" MAY REQUIRE JOINT HEALTH AND SAFETY COMMITTEE
Small office with large number of dispersed independent contractors may be required to establish joint health and safety committee
The Ontario Court of Appeal has held that independent truck drivers were "regularly employed" by the load broker that contracted with them to transport sand, gravel and crushed stone.
Section 9 of the Ontario Occupational Health and Safety Act requires a joint health and safety committee "at a workplace at which twenty or more workers are regularly employed".
The company, United Independent Operators Limited, had a small office with fewer than 20 employees but contracted with 30 to 140 independent truck drivers depending on the time of year. It was charged with not having a joint health and safety committee at that office.
The court rejected the company's argument that, because the truck drivers were independent, they were not "regularly employed" by the company. The court noted that the OHSA's definition of "employer" includes the employer of an independent contractor and the definition of "worker" includes independent contractors.
Interestingly, the court did not decide the ultimate question of whether the company must establish a joint health and safety committee, because there had been no decision on whether the company's office was the truck drivers' "workplace" at which they were regularly employed. As the company had already established a joint health and safety committee, that issue did not need to be decided.
This decision may affect employers with small offices that support dispersed contractors such as salespersons or drivers. Those employers should consider counting the dispersed contractors as "regularly employed" workers at that workplace and establishing a joint health and safety committee at that workplace, in order to avoid the types of charges that United Independent Operators Limited faced for approximately six years.
Ontario (Ministry of Labour) v. United Independent Operators Limited (Ontario Court of Appeal): http://www.canlii.org/en/on/onca/doc/2011/2011onca33/2011onca33.pdf
ENGINEER FINED $10,000 FOR NEGLIGENCE IN BRIDGE COLLAPSE
Bridge collapsed because engineer's design of falsework was negligent under OHSA: Court
An Ontario engineer has been found guilty of negligently designing falsework (supports intended to provide stability while the concrete is forming) for a bridge that collapsed.
Six workers were injured when the falsework for the bridge collapsed in the final stages of a "concrete pour". The bridge crossed the Eighteen Mile River near Lucknow, Ontario.
Subsection 31(2) of the Ontario Occupational Health and Safety Act allows for charges against a licensed architect or engineer where a worker is endangered as a result of the architect's or engineer's negligent or incompetent certification required under the OHSA or advice that is given. These charges are separate from any disciplinary charges that could be laid against an engineer by Professional Engineers Ontario.
The court found that the engineer's falsework design made the falsework incapable of withstanding all loads and forces likely to be applied to it. In particular, because the bridge crossed the river at an angle, the engineer had designed the horizontal and diagonal braces to be clipped to the corners – not flush with the sides – of the vertical supports. The court found that the corner clips did not provide enough friction to have a sufficiently strong connection against sideways forces. The court relied on expert evidence of other engineers who testified as witnesses.
The court imposed a fine of $10,000 on the engineer.
This decision shows that not only employers and supervisors can be convicted and fined under the OHSA. Where accidents occur, engineers and architects who have given related advice should themselves obtain legal advice from a health and safety lawyer about their personal risk.
R. v. James McGerrigle (Ontario Court of Justice): http://www.canlii.org/en/on/oncj/doc/2010/2010oncj421/2010oncj421.pdf
NEW MOL CRITERIA FOR TARGETING FIRMS FOR SAFETY INSPECTIONS
Your firm may be targeted for an unannounced workplace inspection
The Ontario Ministry of Labour has introduced two new criteria for selecting firms for "proactive" workplace inspections:
- Workplaces that have been visited as part of a blitz may be revisited to determine if compliance has improved; and
- Firms that have not reported an injury within the last three years in rate groups that have a high number of injuries may also be visited.
These two criteria were added to the following existing criteria:
- The number and severity of workplace injuries;
- Compliance history;
- Hazards inherent to the work;
- New businesses;
- Size of businesses;
- Specific events or incidents (e.g., critical or fatal injuries or due to workplace violence); and
- The presence of young, new or otherwise vulnerable workers.
The MOL also looks at Workplace Safety and Insurance Board data to identify companies with high rates of lost‐time and non‐lost‐time injuries and⁄or injuries with high costs.
Employers that fit these criteria should be and remain prepared for an unannounced visit by an MOL inspector. Unprepared employers may receive costly compliance orders or, in some cases, charges.
HANGING OUT YOUR "DIRTY LAUNDRY": WHEN HAS THE ONTARIO MOL PUBLICIZED SAFETY INFRACTIONS?
The MOL rarely publicizes employer fines under $50,000. Here is when it has
The Ontario Ministry of Labour has an unpublicized policy of issuing news releases for all charges against employers that result in fines of $50,000 or more not including the Victim Fine Surcharge.
For many employers, the business or reputational risk associated with a safety charge is as serious as the financial risk. In some cases, employers who have a conviction under the Occupational Health and Safety Act might lose the opportunity to obtain a contract with a company that asks for disclosure of the bidders' safety records.
Our review of the MOL's recent press releases shows that, even where the fine is under $50,000, the MOL has publicized convictions involving:
- Farm employers (conviction of a farmer in a tractor roll‐over; the OHSA has only recently (since 2006) applied to certain farms);
- Injuries to young workers (a co‐op student was injured on a brake press);
- Asbestos violations (failure to advise workers of asbestos);
- Obstruction of MOL inspector (a company obstructed a Ministry of Labour inspector);
- Dangerous clothing or jewelry (a worker wearing a ring had his hand entangled in a pinch point between two rolls); and
- Apparent disregard for obvious or known safety hazard (ladder was missing three of its four non‐slip feet, and one of its cross‐members was broken).
"TOE CAPS" NOT SAFE ENOUGH FOR RETAILER'S RECEIVING EMPLOYEES
Dollarama ordered to ensure receiving employees wear safety shoes
An Ontario Ministry of Labour inspector has ordered Dollarama to ensure that receiving employees at three of its stores wear safety shoes because "toe‐caps" are not safe enough.
Many of us have worn toe caps – plastic equipment that are reminiscent of Ronald McDonald's shoes – at work or on site visits.
The OLRB rejected Dollarama's argument that the inspector's orders should be suspended because pump‐cart operators and pallet movers would be adequately protected by toe‐caps and by Dollarama's safety procedures. The Ministry of Labour noted that toe‐caps did not comply with the Canadian Standards Association standard "Protective Footwear".
Toe caps are quite commonly used in manufacturing and other industries. Employers in those industries should pay attention to this decision.
This is an interim decision only. The OLRB has yet to finally rule on whether toe caps are sufficient in this case.
Dollarama L.P. v. Johnson (Ontario Labour Relations Board): http://www.canlii.org/en/on/onlrb/doc/2010/2010canlii78702/2010canlii78702.pdf
HUMAN RIGHTS APPLICATION STAYED DUE TO OHSA REPRISAL COMPLAINT
Employee cannot advance both Human Rights and OHSA complaint that deal with same dispute
The Human Rights Tribunal of Ontario has decided not to hear a disability‐discrimination complaint until a companion safety‐reprisal complaint has been resolved.
The employee's human rights complaint alleged disability‐discrimination and alleged that he was harassed and laid off following his filing of a report with the Ontario Ministry of Labour. The employee also filed a complaint under the Occupational Health and Safety Act claiming that he was fired for attempting to ensure that his employer complied with the OHSA.
The Human Rights Tribunal decided that the facts and allegations in the human rights and health and safety complaints were the same, the legal issues overlapped, and the employee claimed similar remedies – reinstatement, lost wages, training, and general damages – in both complaints.
The Human Rights Tribunal therefore ordered that the hearing of the human rights complaint be deferred pending the resolution of the OHSA process.
Many employers have experienced employees who file multiple complaints about the same issue. This decision demonstrates that where the facts, issues, and remedies claimed are essentially the same, employers can force the employee to deal with one complaint at a time.
MacDougall v. Caldwell Enterprises (Human Rights Tribunal of Ontario): http://www.canlii.org/en/on/onhrt/doc/2010/2010hrto2504/2010hrto2504.pdf
POLICE NAME TAGS NOT A SAFETY ISSUE: OLRB
Employees increasingly using health and safety legislation to challenge unpopular policies
The Toronto Police Association (the union for Toronto police officers) has lost its safety‐based challenge to the requirement that police officers wear badges that display their first initial and last name.
In 2006, the Toronto Police Service introduced a mandatory requirement that while in uniform, officers wear a name badge. The Police Association asked a Ministry of Labour inspector to order the Police Service to drop the requirement. The inspector refused to grant the order, and the Police Association appealed to the Ontario Labour Relations Board.
The Police Association claimed that criminals and others could use the badge information to track down officers and harass or harm them and their families.
The OLRB found that there were a number of ways, apart from the name tags, that members of the public could obtain officers' names – including by calling the police detachment and giving the officer's badge number.
Although the OLRB concluded that organized crime and motorcycle gangs do maintain databanks containing personal information on police officers, there was no evidence that that information had been used to harm police officers. The Police Association had not proven that the use of the name tag increased the risk to police officers from organized crime or gangs.
In the result, the Police Association had not proven any material increase in risk from the use of the name tags. As such, the inspector's refusal to order the Police Association to change its name tag policy was upheld.
This dispute illustrates how employees can use health and safety legislation to attempt to strike down unpopular policy decisions of their employer.
Toronto Police Association v. Toronto Police Services Board (Ontario Labour Relations Board): http://www.canlii.org/en/on/onlrb/doc/2010/2010canlii76072/2010canlii76072.pdf
"MATERIAL HANDLING" CONVICTION IMPOSED WHERE TRUCK NOT HANDLING MATERIAL
Court overturns technical interpretation of safety regulations. Lower court had found employer not guilty because truck not handling material at the time
An employer has been found guilty of a material handling charge even though the truck in question was not handling material at the time of the accident.
Sheehan's Truck Centre was found guilty under section 56 of Ontario's Industrial Regulations, which requires the use of a signaler when the operator of a vehicle or "similar material handling equipment" does not have a full view of the intended path of travel. Section 56 is under the heading "Material Handling" in the Regulation.
An employee of Sheehan's had reversed an industrial truck with a trailer and drove over another employee who suffered serious pelvic injuries. At the time, Sheehan's lot was being paved. The truck and trailer were empty.
The appeal judge decided that the truck did not have to be handling material at the time of the accident in order for the "material handling" section, including the requirement of a signaler, to apply. It was sufficient that the truck was intended to be used to handle materials. The trial judge had applied a "literal, technical interpretation" when he found Sheehan not guilty because the truck was not handling materials at the time.
The case is not over yet. The Ontario Court of Appeal has agreed to hear Sheehan's appeal on the issue of the proper interpretation of section 56, finding that the section raises workplace safety issues that are of public interest.
Ministry of Labour v. Sheehan's Truck Centre Inc. (Ontario Court of Justice): http://www.canlii.org/en/on/oncj/doc/2010/2010oncj713/2010oncj713.pdf, and http://www.canlii.org/en/on/onca/doc/2011/2011onca170/2011onca170.pdf (Ontario Court of Appeal)
$350,000 FINE IN DEATH OF YOUNG WORKER
Grocer convicted and fined where young worker fell through drop ceiling and died
The Ontario Ministry of Labour has long been concerned with safety of young workers. The courts recently handed down a significant fine in the death of a young worker.
Metro Ontario Inc., a retail grocer, was fined $350,000 after a young worker in its Mississauga store fell to his death through a drop ceiling. The worker had been helping the assistant store manager clear materials from the top of a cooler beside which was a drop ceiling made up of acoustic tiles. The drop ceiling was accessible from the top of the cooler but it was not meant to be weight bearing.
The assistant store manager indicated that a box needed to be removed from on top of the drop ceiling. The young worker stepped onto the drop ceiling to remove the box and fell through. He died of head injuries.
The company pleaded guilty to failing to ensure that a guardrail was in place to prevent workers from accessing the drop ceiling.
From May 1, to August 31, 2010, the Ontario Ministry of Labour conducted a blitz focusing on the health and safety of new and young workers at construction, industrial and health care workplaces. A primary finding of the blitz was lack of training of young workers. Ministry of Labour inspectors issued 3,586 compliance orders during the blitz. The Ministry of Labour's report on the results of the blitz can be read at: http://www.labour.gov.on.ca/english/hs/sawo/blitzes/blitz_report20.php.
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