An employee in Ontario is facing a charge under that
province's Occupational Health and Safety Act. It is not
for causing an injury. It is not for participating in unsafe
work practices. He is being charged for failing to report an
unsafe work situation that he observed.
This is not a BC case, so it does not have direct application to
employers in BC. But it is remarkable as an example of
putting some teeth behind the often forgotten duty of both
employers and employees to work safely and promote safe work
We know that employers always have that liability and are
consistently punished in one way or another when anything goes
wrong, notwithstanding all the good efforts they have made to
ensure a safe workplace. We also know that only rarely
are employees held responsible, even when they have acted
contrary to workplace rules and safety training they have
The fact that an employee is now facing a charge in these
circumstances may help employers drive home the message in safety
training that everyone has a responsibility.
To give that pitch some substance, here are the facts of the
The City of Ottawa had a private contractor hooking up a site to
the water and sewer systems. The contractor's employees
were seen by a government inspector working in an
unshored trench. The inspector also noted a City employee who
was not working on the sewer hook-up but who allegedly observed the
work in the unshored trench. Both the Supervisor of the
contractor and City employee have been charged. The City
employee goes to provincial court on November 29 and faces a
potential fine of up to $1,000.
We are also reminded by our colleague Dan Pugen
in Toronto that supervisors are being held liable. In one
recent case an Ontario Ministry of Labour prosecution led
to a $30,000 fine.
These examples should be sobering reminders to all
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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