Bangladesh is not the only place with serious worker safety
issues: Recently, I have been involved in several cases where
clients have found themselves in difficult straits as result of
having cut corners. The skimping resulted in employee injuries
— in one case, a death. The lesson: don't balk at the
sticker price of keeping your workplace safe. The alternative is
far more costly.
Following a work injury, two things happen: The Ministry of
Labour and the police (in some cases) conduct an investigation.
This team dissects what took place; if they find an iota of
evidence that the accident was the employer's fault, it could
be charged under both the Occupational Health and Safety Act (OHSA)
and the Criminal Code.
The fines are skyrocketing: Corporations that are charged face
up to $500,000 for each violation under the OHSA. If charged
criminally, there is no limit on the fine. The judge will care
little that you paid under the OHSA, you could also go to jail.
Attempting to argue double jeopardy will get you nowhere. You could
be one of the unlucky few dinged twice for the same incident by two
It would do all employers and their managers well to read the
recent court decisions; the lessons on employee safety are
unequivocal and severe.
In Vale Canada Ltd., a fine of $1.05-million (the highest ever)
was imposed under the OHSA. The Toronto-based company
operated an underground mine. Two workers were transferring broken
rock and ore down a level through a transfer gate. To operate this
gate, they had to position themselves in front of it, 3,000 feet
below the surface. It was a recipe for disaster; the run of
rock and ore erupted through the transfer gate. One worker was
buried immediately and the other died from multiple blunt force
Why did this material erupt through the transfer gate and whose
fault was it? The Ministry of Labour (the OHSA guys) found there
had been a hang-up of wet material in the ore pass because Vale did
not deal with water issues in the mine. Previous convictions did
not assist Vale's lot.
The sizable fine was intended to hurt and was a punishment for
an avoidable tragedy and the miserly attempts by the employer to
keep its employees out of harm's way.
In the case of R. vs. Metron Construction Corp., Metron was
charged under the Criminal Code on top of the OHSA charges, which
were of no concern to the police. Three workers and a site
supervisor plunged to their deaths when a swing stage collapsed as
it descended from the exterior of the fourteenth floor of a
high-rise construction site. Two others were seriously and
Metron was fined $750,000 after the crown appealed the
initial conviction under the Criminal Code on the basis it was too
low. A trial judge should be concerned about whether the punishment
fits the crime not what the OHSA fine range is, the Crown noted.
What is notable is this fine was three times the profit in
Metron's last profitable year.
Given the judicial test, such a charge could be an
employer's death knell. My job starts with defending my client
against the specific allegations, but continues long after the case
is closed, working with the employer to develop reforms to improve
worker safety at their workplace.
Generally, I advise employers cases such as these are a warning
about what could happen if employee safety is taken lightly;
workplace injuries can't be seen as a "cost of doing
— If you are guilty, apologize quickly.
— Routinely examine workplace conditions to ensure they
conform to applicable OHSA standards and are generally
— Make sure employees have and use safe tools and
equipment and properly maintain this equipment. Monitor this for
— Provide safety training in a language and vocabulary
workers can understand; and
— Ensure you post (at visible locations) a directive
informing employees of their rights and responsibilities.
This article originally appeared in the Financial Post.
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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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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