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Health and safety year in review 2018

Notable cases include manslaughter conviction, owner charged as employer

By Jeremy Warning

This year saw significant developments in occupational health and safety law across Canada. This article highlights the most significant developments ranging from the legalization of cannabis to a unique application of the criminal law to workplace safety and a director made personally responsible for paying a fine imposed on a company.

Cannabis legalization

Employers must now deal with the myriad of issues accompanying the legalization of recreational cannabis. As with alcohol and other drugs that cause impairment, employers can prohibit workplace use and possession of cannabis and employees attending for work while impaired.

Employers should implement policies explicitly addressing cannabis that set clear expectations concerning both medical and recreational use. Such policies should focus on impairment and on ensuring that employees are fit for duty. They should distinguish between the use of medicinal and recreational cannabis and set the workplace rules and the disciplinary process to follow a contravention. Policies covering the use of medical cannabis should outline the forms of medical documentation that will be required to substantiate its use, as well as a commitment to accommodate to the point of undue hardship.

Policies should also address substance abuse and addiction. They should require employees to report if they are unfit for duty, a co-worker is suspected of being unfit for duty, and/or they have an addiction to cannabis (or any other impairing drug). Such policies are permissible when the objective is to treat dependency issues. Failing to comply with the policy, and only disclosing an addiction or dependency after an incident, may permit the employer to discipline the employee. In these instances, the discipline would be for a breach of the policy and not for the employee’s addiction or dependency (which would contravene applicable human rights legislation).

A key concern for employers relating to the legalization of cannabis is workplace safety and potential liability if reasonable steps are not taken to address cannabis in the workplace. While it remains a sensitive issue, random drug and alcohol testing may become more common for employers with workers in safety-sensitive positions. In November, nearly seven years after its random testing policy was first rolled out, Suncor has reached an agreement with Unifor Local 707A to start random testing at its oil sands work sites in Alberta.

Ontario OHSA

On Dec. 14, 2017, Bill 177 introduced the most significant changes to Ontario’s Occupational Health and Safety Act (OHSA) in nearly 30 years.

Until the change, the maximum fines for violating the OHSA were $500,000 (corporation) and $25,000 (individual) per charge. The maximum fines are now $1,500,000 and $100,000, respectively. We note that, for an individual, the increased fine is in addition to any jail term — which remained at a maximum of 12 months per charge. As well, for all defendants, the victim fine surcharge of 25 per cent, automatically imposed under the Provincial Offences Act, still applies.

The limitation period for a charge was one year from the contravention. Bill 177 added a discoverability element to the limitation period. The discoverability element means that the limitation period may not lapse until one year after an inspector becomes aware of the alleged offence. The change is likely to impact latent violations such as negligent advice by engineers or architects but could also make other historical violations actionable. An example of the latter could be an injury or accident that is not required to be reported to the Ministry of Labour but becomes known to an inspector at some point.

For employers, the expansion of the limitation period may make it imperative for employers to conduct a detailed internal investigation of all such incidents and to ensure that the proper steps are taken to protect that investigation with solicitor-client privilege. This approach will allow the employer to gather detailed information and documentation, while the matter is fresh, and to resist any MOL requirement for investigation materials, should it investigate the matter.

An employer, that does not own the workplace, must now notify the MOL if a joint health and safety committee or a health and safety representative identifies potential structural inadequacies of a workplace as a source of danger or a hazard to workers. As well, Bill 177 provides that additional notification requirements may be created by regulation which suggests that circumstances requiring notification of the MOL may expand further.

Alberta safety laws

On June 1, Bill 30: An Act to Protect the Health and Well-being of Working Albertans, took effect. Amongst other changes, the bill repealed and replaced the Alberta Occupational Health and Safety Act.

Various positive duties and requirements were imposed on employers and supervisors. This included obligations to:

•ensure workers are aware of their rights and duties
•ensure health and safety concerns are addressed and resolved in a timely manner
•ensure workers employed by or under their supervision do not participate in acts of workplace violence or harassment
•report incidents that could have caused serious injury
•have a written health and safety program (including prescribed elements) and joint work site health and safety committee at employers with 20 or more employees
•have a health and safety representative at employers with five to 19 employees.

Workers were also given new stated obligations including requirements to:

•wear all required personal protective equipment or other devices designed to keep them safe at all necessary times on a work site
•report concerns about unsafe or harmful work to their employer or supervisor
•co-operate with other people for the purposes of protecting the health and safety of workers on a work site.

Other key changes included an expansion of the obligation to ensure the health, safety and welfare of workers engaged in the work of an employer, or present at the work site at which such work is carried out, to include anybody who may be affected by the hazards at or in the vicinity of the work site in question. This expands the potential liability of employers.

Also notable among the changes is a specific provision entitling workers, directly affected by stop work orders and stop use orders, to the wages and benefits they would have received had those orders not been issued. 

Manslaughter conviction

On Sept. 18, excavation contractor Sylvain Fournier was sentenced to 18 months in prison and two years of probation after being convicted of manslaughter under the Criminal Code. The charge followed an April 2012 accident that resulted in the death of a worker employed by Fournier’s business. An unprotected trench had been excavated in order to replace a sewer line and it collapsed. The trench did not comply with Quebec’s health and safety legislation and was an unlawful act. Fournier was also found to have markedly departed from the behaviour expected of the reasonable person in the circumstances. The unlawful act and marked departure were key elements in convicting Fournier of manslaughter.

This unique use of the criminal law to address workplace safety should serve as a reminder that businesses, their management, supervisors, officers and directors, as well as workers, can be prosecuted criminally following a serious workplace accident. Both the conviction and the tragedy that precipitated it reinforce the need for all businesses to have a vigorous health and safety system in the workplace.

General duty clause

Precision Diversified Oilfield Services is an Alberta Court of Appeal case about a fatal head injury to a worker who had been working as a floor hand on a drilling rig. Following his death, Precision was charged with an offence under the “general duty” clause of the Alberta Occupational Health and Safety Act. 

The case ended up before the Alberta Court of Appeal. At issue was whether the expression "as far as is reasonably practicable for the employer to do so", in the “general duty” clause, was part of the Crown’s burden of proof. The Crown argued that it could rely on the accident as proof of the offence. The court disagreed and determined the expression “as far as it is reasonably practicable for the employer to do so” forms part of what the Crown must prove. As a result, the Crown must establish, beyond a reasonable doubt, that the worker was engaged in the work of the employer, the worker's health or safety was threatened or compromised, and that it was reasonably practicable for the employer to address the unsafe condition through efforts it failed to undertake.

This decision clarifies the obligations on the Crown when prosecuting under the “general duty” clause in Alberta. It will assist employers in better understanding the allegations made by the Crown and the case to be met in defence.

Director responsibility

The 1137749 Ontario Ltd. o/a Pro-Teck Electric decision demonstrates that a director can be held personally liable for fines imposed against a corporation for breaches of regulatory legislation. In this case, the corporation pleaded guilty to three charges under the Electricity Act and was sentenced to fines totaling $430,000.

However, after becoming aware that charges were likely, the sole director of Pro-Teck transferred its assets to himself and his other electrical contracting company. The Crown argued that these transfers were deliberately done to avoid payment of potential fines and that the court should impose the penalty on the director personally. The Crown appealed after the trial court determined it lacked the jurisdiction to do so.

The appeal court determined that the corporate veil could be pierced in the circumstances which should serve to remind employers that they must proceed carefully, to avoid director liability, when restructuring a company that is or could be subject to quasi-criminal charges.

‘Owner’ as ‘employer’

In West Fraser Mills Ltd. v British Columbia (Workers Compensation Appeal Tribunal), the Supreme Court of Canada found that a site owner could be penalized under British Columbia’s Workers Compensation Act.

The case involved a tree feller who was fatally injured while working in an area of a forest license held by West Fraser Mills. The deceased was not employed by the company. As the license holder, West Fraser Mills was the “owner” of the workplace.

The Workers Compensation Board (WCB) concluded, in part, that West Fraser Mills was in violation of the OHS Regulation, which requires an owner of a forestry operation to ensure that all activities of the operation are both planned and conducted in a manner consistent with it and accepted safe work practices. As a result, the WCB imposed an administrative penalty on West Fraser Mills.

The case turned on the particular wording of the penalty section of the Workers Compensation Act, which provides that the WCB may impose an administrative penalty on an employer. West Fraser Mills argued that it was not the employer of the deceased. It also argued that the WCB could not rely on the OHS Regulation because it impermissibly added to the “owner” obligations in the Workers Compensation Act.

The majority of the Supreme Court of Canada rejected West Fraser Mills’ arguments. It concluded that the involved provision of the OHS Regulation was a reasonable exercise of the power conferred by the act. It found that an owners’ duties are not limited to those set out in the Workers Compensation Act as the involved provision of the OHS Regulation is a “natural extension” of the owner’s WCA duty to ensure compliance. The majority also held that West Fraser Mills was an “employer” for the act’s purposes. The upshot is that the penalty section of the act may be applied broadly.

Loretta Bouwmeester, Paul McLean and Deanah Shelly, all lawyers at Mathews Dinsdale & Clark, co-authored this article. 

Jeremy Warning

Jeremy Warning is a former OHS prosecutor who is now a partner at Mathews Dinsdale & Clark in Toronto. He can be reached at (647) 777-8284 or jwarning@mathewsdinsdale.com, or visit www.mathewsdinsdale.com for more information.
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