5 cases OHS managers need to know

Norm Keith
Following are five cases that rise above the hundreds that have been decided across Canada this year. These five cases should be well-understood and reviewed by your occupational health and safety management team to ensure you do not fall into some of the traps demonstrated in some of these cases.

R. v. Larry Argue et al
Larry Argue was a structural engineer hired by Alan Grinham to work on behalf of a consultant for an Ontario municipality to build a washroom facility and change room in a public sports field.

Several years after the design and construction of the facilities, a 14-year-old schoolgirl hopped up on a change table, causing an unsecured privacy wall to collapse with fatal results.

The Ministry of Labour prosecuted the municipality, the architect and the engineer. In a pre-trial motion, all three defendants argued the charges had been laid in excess of 12 months beyond the design and construction of the facility. The defendants all argued the offences were limited to a point in time, that the time limit for laying charges had expired before the fatal accident occurred and they were all beyond the reach of the Ministry of Labour for prosecution under the Occupational Health and Safety Act (OHSA).

Justice Michael Epstein held the engineer and the architect could rely upon a statute of limitations defence. He accepted the role of the architect and the engineer under the OHSA was a discrete, point-in-time involvement of either providing advice or appropriate certification. However, he held the municipality was under a continuing duty to provide a safe workplace, to both workers and members of the public — such as the fatally injured schoolgirl — and the charges were not dismissed against the municipality. This case is a dire warning for all employers who have duties not only to workers but also members of the public.

R. v. Town of Meaford Fire Department
The Fire Service of Ontario, and similar agencies across Canada for that matter, have had to walk a tight rope between public expectations to perform heroic emergency services on one hand and maintain high standards of occupational health and safety on the other.

This tension was clear in the decision of Justice Thomas Stinson, when he acquitted the Town of Meaford Fire Department from charges under the OHSA.

The charges arose from a September 2009 incident when the volunteer fire department responded to an early morning fire in an apartment above a local restaurant. The fire department used appropriate tactics, including an interior search and seizure. In the course of that rescue attempt, the self-contained breathing apparatus of one firefighter malfunctioned and, although extricated from the burning building, two firefighters suffered smoke inhalation.

The Ministry of Labour prosecuted the Town of Meaford Fire Department. The court acknowledged a standard of perfection regarding worker safety is unfair and contrary to public interest. On the other hand, some of the obiter dictum suggests if a fire department does not follow its own internal standard operating guidelines and provincial guidelines, it may find itself at the wrong end of a prosecution and be convicted.

Investia Financial Services
The Bill 168 amendments to Ontario’s OHSA required certain violence and harassment policies, procedures and training to take place effective June 15, 2010.

An employee who was dismissed for insubordination, brought a reprisal complaint to the Ontario Labor Relations Board (OLRB), on the basis he had been dismissed for exercising his right to complain about harassment in the workplace.

In a very important decision, the OLRB held the two primary purposes of Bill 168 were to first create a workplace harassment policy and program and, second, to provide workers with information and instruction as appropriate for their particular workplace.

The OLRB was not persuaded in this case there was a general duty on the part of employers to prevent harassment of employees by other employees under Bill 168.

The OLRB also went on to hold that even if the board exercised jurisdiction to hear and decide this case, it failed on its merits. This decision of the OLRB has set the standard for minimal rights on the part of workers to attack employers’ decisions to discipline up to and including discharge, if there is a credible answer by the employer relating to insubordination. Bill 168 cannot be used as a cure-all for disgruntled employees to seek reinstatement under section 50 of the OHSA.

Garda and Teamsters
The Garda decision involving a work refusal grievance is an important reminder of work refusal procedures to be followed by employers. In that arbitration decision, a security guard working for Garda complained his bulletproof vest zipper was torn and could not be used safely. The security guard’s supervisor provided him with a vest from a “used part-time pool,” but the security guard refused to use the replacement equipment citing hygienic and fit reasons. He did, however, offer to accept work that did not require the use of a bulletproof vest.

That solution was not acceptable to management. The security guard was sent home and lost pay for an eight-hour shift. In its decision, the arbitrator held the employer did not follow all of the fairly clear and well-established process of a work refusal.

Section 43 of the OHSA in Ontario requires that if there is a continuing work refusal, a Ministry of Labour inspector must be called in to determine if the circumstances under which the worker has been directed to work constitute “likelihood of endangerment of the worker.” Since the second stage investigation involving the Ministry of Labour was not complied with, the employer failed to respect the process set out in the OHSA. The security guard was awarded eight hours of back pay.

This case is a reminder to employers that they, and their first line management, must be very familiar with the work refusal process and the right of a worker to refuse unsafe work, even if the employer disagrees with the basis upon which the worker refuses to do the work.

R. v. Metron Construction and Joel Swartz
This case almost needs no introduction since it flows from the events that occurred in Toronto on Christmas Eve 2009. Four workers died when two swing-stage scaffolds they were on broke apart and they fell 13 storeys. Two of the six workers on the scaffold had safety lines and did not fall to their death. Metron Construction and its president, Joel Swartz, were charged with both OHSA and criminal negligence causing death and bodily injury.

Ultimately, part way through a criminal preliminary inquiry, the president pleaded guilty to four counts of violating the OHSA, and his corporation pleaded guilty to criminal charges under the Bill C-45 amendments to the Criminal Code.

Although there has been much criticism of the $200,000-fine against the company, Judge Robert Bigelow — a very experienced and capable trial judge — held that to impose a higher fine would essentially result in the bankruptcy of the company, and also ignore a number of the mitigating factors in the corporate defendant’s favour.

The real lesson of Metron Construction — apart from the criminal prosecutions and charges against the company director and president — is that life is precious, safety systems must be implemented and focus on workplace safety is always a good business decision.

Disregarding these could result in lives lost or ruined, and business reputations irreparably damaged.

Norm Keith is a partner at Toronto-based law firm Fasken Martineau DuMoulin LLP. He specializes in occupational health and safety, environmental, workers' compensation, and workplace risk management litigation. He advises and represents clients in regulatory and corporate criminal investigations and charges. Norm received his Canadian Registered Safety Professional (CRSP) designation in 1998, making him the first practising lawyer in Canada to achieve the CRSP designation.