MINES OPINACA LTÉE C. COMMISSION DES NORMES, DE L'ÉQUITÉ, DE LA SANTÉ ET DE LA SÉCURITÉ DU TRAVAIL DES NORMES, 2018 QCCS 4899
This decision was an appeal from a conviction under Québec's occupational health and safety regime. The appellant, Mines Opinaca ltée, operates a gold mine in Northern Québec. During the construction of the mine, the appellant installed fire doors in two underground mechanical workshops. During an inspection, an occupational health and safety inspector issued a correction notice requiring the appellant to install an automatic closing device on the fire doors within a specified timeframe.
Mines Opinaca complied with the requirement and installed an automatic closing system, but failed to comply with the time limit. In 2017, Mines Opinaca was convicted of violating provisions of the Act Respecting Occupational Health and Safety and the Regulation respecting occupational health and safety in mines.
Mines Opinaca contested the conviction because it was unreasonable on the evidence, arguing that the convicting judge erred in law. Mines Opinaca argued that it was impossible to install the automatic closing device within the required time frame, since the steel fire door onto which the device was to be installed was defective. The underlying defect had to be corrected before the automatic closing device could be installed.
The Québec Superior Court agreed. The Court reversed the conviction on the basis that the evidence showed that it was impossible for the appellant to comply with the timeframe in the correction notice. The Court held that the trial judge erred in dismissing the defence of impossibility, allowed the appeal and acquitted the appellant of the offence charged.
MOUNT POLLEY MINING CORPORATION V. UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION, LOCAL 1-2017., 2018 CANLII 64302
This case involved allegations by a union that Mount Polley Mining Corporation breached s. 54 of the B.C. Labour Relations Code (Code) when it failed to give 60 days' notice before laying off a significant number of employees in early 2018.
Mount Polley argued that it should be relieved of its obligation under s. 54 because the layoff resulted from circumstances outside of its control, or alternatively because the requirements of s. 54 would only result in increased layoff notice to individual employees who were already appropriately compensated in accordance with the collective agreement. The Labour Relations Board, however, held that Mount Polley had breached s. 54 of the Code, and ordered Mount Polley to make whole any employee who lost wages as a result of the failure to comply with the notice requirements.
The Board also refused to exercise its discretion to relieve Mount Polley of the notice requirements under s. 54. Mount Polley had argued that the layoffs were caused by financial losses resulting from the tailings pond breach in 2014 and its parent company's decision to stop running the mine at a loss. The only plan that could avoid further losses, according to Mount Polley, would require a reduction of pit operations, necessitating the lay-offs. The Board was not persuaded that the tailings pond breach, the cost of remediating the breach, and the significant financial losses thereafter were "new and unforeseen," such that Mount Polley would have been unable to comply with the notice requirement in s. 54 of the Code.
RED CHRIS DEVELOPMENT CO. AND USW LOCAL 1-1937, RE, BC LRB NO. B25/2018
In this decision, the B.C. Labour Relations Board granted a union's application for access to Red Chris Development Company's mining operation for the purpose of organizing employees.
Red Chris resisted the union's application on the basis that it had already provided the union with access pursuant to the terms of a separate settlement agreement, and granting access to the same group of employees a second time would be inappropriate. The Board disagreed, holding that it was not obligated to defer to an access period agreed to between the parties in a settlement agreement. The Board was concerned that mandatory deferral to a private agreement between the parties would result in a disincentive to parties to negotiate and agree to terms of access privately, particularly on the side of the union, which would be disinclined to agree informally to a period of access if such agreement would prevent it from seeking more time. In this case, the union was seeking a limited period of further access (two five-day periods), not open-ended access. The Board concluded this request was reasonable and granted the extension.
The Board also granted the union's application to turn off certain security cameras on mine premises during the additional period of access. The Board was not satisfied that Red Chris used its security cameras to identify participating employees or otherwise monitor the union's organizing campaign, but it recognized the potential to do so and the chilling effect that would have on employees. Leave to reconsider this decision was denied. See BC LRB No. B42/2018.
TECK COAL LTD. AND USW, LOCAL 7884, RE, 2018 CANLII 2386 (BC LA)
This arbitration concerned grievances filed by two unions at different sites operated by Teck Coal Ltd. following the unilateral introduction by Teck of a policy permitting random drug and alcohol testing of employees.
The main issue before the arbitrator was whether the random drug and alcohol testing was "reasonable" and therefore a proper exercise of management rights. The arbitrator concluded the testing intruded on employees' privacy in an invasive manner and so was not reasonable.
The parties did not dispute that the employees' privacy was infringed by the random testing policy. Teck argued that there was a legitimate need for random testing in order to counter a "work hard, play hard" culture involving excessive consumption of alcohol and drugs on days off. The arbitrator disagreed that this was a real motivation for the introduction of the policy, concluding the policy was meant to address an element of risk that Teck believed could impinge on safety rather than a demonstrable workplace problem. In the absence of a demonstrable workplace problem, there was no cause or legitimate need for random testing.
The arbitrator also considered whether, even if Teck had established a legitimate need for random testing, random testing would be an effective means of addressing Teck's concerns or whether a less intrusive response was available. The arbitrator concluded that random drug testing was not a proportionate measure in light of evidence that the accident rate was already declining as a result of other safety measures introduced by Teck.
UNIFOR, LOCAL 707A V. SUNCOR ENERGY INC., 2018 ABCA 75
In this case, Suncor Energy Inc. appealed an interim injunction prohibiting it from implementing random drug and alcohol testing of Unifor's members working on an oil sands facility near Fort McMurray, Alberta until completion of an arbitral hearing on whether the random testing policy was justified.
An Alberta chambers judge granted the injunction on the basis that: (i) there were serious issues to be tried, including whether random testing is effective in deterring drug and alcohol use in the workplace and whether drug and alcohol use on the Suncor site was increasing or decreasing over time; (ii) the impact on the privacy and dignity of workers could not be remedied if the union were ultimately successful on the arbitration; and (iii) the balance of convenience favoured granting the injunction because chaos would ensue if the injunction was not granted.
A majority of the Alberta Court of Appeal upheld the chambers judge's decision. The majority swiftly rejected Suncor's arguments that the chambers judge failed to consider the evidence and erred in considering the impact on the privacy and dignity rights of employees to be irreparable harm. On the balance of convenience, the majority agreed with the chambers judge that the balance of convenience favoured Unifor's position in favour of the injunction prior to the ultimate determination of the issue by the arbitration panel. Thus, there was no reviewable error in the chamber judge's exercise of discretion to grant the injunction and the appeal was dismissed.
WEST FRASER MILLS LTD. V. BRITISH COLUMBIA (WORKERS' COMPENSATION APPEAL TRIBUNAL), 2018 SCC 22
In this decision, a majority of the Supreme Court of Canada upheld a workers' compensation claim and associated fine against a forestry company that owned the property where an independent contractor's employee was fatally injured.
The employee was a tree faller who was struck by a rotting tree within the area of a forest license held by West Fraser Mills. West Fraser Mills employed a supervisor to oversee contractors prior to the project starting. The supervisor met with the independent contractor and the tree faller before work began and completed a walk-through of one work area, but the supervisor did not walk through or identify hazards in a second area where the fatality occurred.
The B.C. Workers' Compensation Board (Board) investigated the accident and found that West Fraser Mills had failed to meet its obligations as the "owner of a forestry operation" to ensure all activities were planned and conducted safely, and specifically to take all reasonable steps to identify hazardous or potentially hazardous work conditions. The Board fined West Fraser Mills C$75,000 under the Workers Compensation Act. The Workers' Compensation Appeal Tribunal dismissed West Fraser Mills' appeal, and the B.C. courts upheld the Tribunal's order.
On appeal to the Supreme Court of Canada, West Fraser Mills argued that the Board did not have jurisdiction to issue a fine under s. 196(1) of the Workers Compensation Act because that section only permitted fines against entities acting as an "employer," whereas it was an "owner." The majority of the Court disagreed and upheld the Appeal Tribunal's finding that West Fraser Mills was an "employer" within the meaning of the Workers Compensation Act. There was a factual nexus between West Fraser Mills' activities and choices as an employer of individuals meant to monitor the worksite (i.e., the supervisor) and the incident that occurred. The Appeal Tribunal had accepted this interpretation of "employer" in issuing the fine against West Fraser Mills, and the Court held that this approach was reasonable and entitled to deference on appeal. The Court also noted that this interpretation of the word "employer" recognized the complexity of overlapping and interacting roles on the actual worksite and furthered the goals of the statute and the scheme built upon it.
For more on this decision, see McCarthy Tétrault LLP's Canadian Employer Advisor blog post entitled "Supreme Court of Canada Upholds Workers' Compensation Order Against Site Owner."
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