OHS Roundtable: What’s in Store for Safety in 2014

1. OHS Roundtable: What’s in Store for Safety in 2014 Moderator: Robin L. Barton Editor in Chief, OHSInsider.com

2. Roundtable Members • Ryan J. Conlin, Partner, Stringer LLP • RConlin@stringerllp.com • Yvonne O’Reilly, CRSP, O’Reilly Health & Safety Consulting • yvonne@ohsconsulting.ca • Jeremy Warning, Partner, Heenan Blaikie • JWarning@heenan.ca

3. AGENDA • The impact of key cases decided in 2013 on workplaces in 2014 • New laws and regulations • Enforcement trends • Q & A

4. Key Cases from 2013 • Irving Pulp: • A NB paper mill implemented a policy of annual mandatory random alcohol breathalyser tests of 10% of all workers in safety sensitive positions. If a worker tested positive for alcohol, he could be disciplined, including fired. The union challenged the policy. • The Supreme Court of Canada struck down the policy.When a workplace is dangerous, an employer can test an individual worker if there’s reasonable cause to believe that he was impaired while on duty, was involved in a workplace incident or was returning to work after treatment for substance abuse. But the dangerousness of a workplace doesn’t automatically justify the unilateral imposition of random testing with disciplinary consequences. Mandatory random testing of workers in a dangerous workplace is generally seen as an unjustified invasion of privacy unless there’s also evidence of a general problem with substance abuse in the workplace. • Here, although the paper mill was a “dangerous work environment,” it didn’t prove that it had a general problem with workplace alcohol abuse. • Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp and Paper Ltd., [2013] SCC 34 (CanLII), June 14, 2013

5. Key Cases from 2013 • Métron Construction: • On Christmas Eve, workers were on swing stage scaffolding repairing balconies at an apartment building when the scaffolding collapsed. One worker was seriously injured; four died. The resulting investigation found that three of the four workers who died and the site supervisor had used marijuana before the incident. • The company that employed them pleaded guilty to one charge of criminal negligence causing death under the Criminal Code as amended by Bill C-45. • Key rulings: • The trial court fined the company $200,000. But an appeals court increased that fine to $750,000. • Court confirmed that a corporation can be held criminally liable based solely on the acts of a supervisor. R. v. Metron Construction Corp., [2013] ONCA 541 (CanLII), Sept. 4, 2013

6. Key Cases from 2013 • Blue Mountain: • A guest at a ski resort was found drowned in the facility’s swimming pool. The resort didn’t report the fatality to the MOL because the victim wasn’t a worker. A safety inspector cited the resort for violating the reporting requirements. The Ontario Labour Relations Board ruled that the incident reporting requirements applied to the guest’s death. • But the Court of Appeal concluded that an employer must report a non-worker’s death or critical injury only when: • The death or critical injury occurs at a “workplace,” which is a) a place where a worker is carrying out his employment duties at the time the incident occurs; or b) a place where a worker might reasonably be expected to be carrying out such duties in the ordinary course of his work; and • There’s some reasonable nexus between the hazard giving rise to the death or critical injury and a realistic risk to worker safety at that workplace. Blue Mountain Resorts Ltd. v. Ontario, [2013] ONCA 75 (CanLII), Feb. 7, 2013

7. Key Cases from 2013 • XI Technologies: • During a client party, a tech company’s worker was killed while operating a calf roping machine. The company was acquitted of two OHS violations at trial. • But the appeals court ruled that the company didn’t exercise due diligence. • The Court of Appeal agreed, ruling that the trial judge’s verdict was unreasonable because it was inconsistent with the evidence that the company knew the machine wasn’t working properly and wasn’t intended to require the operator to reach into the machine to manually detach a hook. • Armed with this knowledge, the company didn’t take sufficient steps and certainly didn’t do all that was reasonably practicable in the circumstances to avoid the reasonably foreseeable risks. • R. v. XI Technologies Inc., [2013] ABCA 281 (CanLII), Aug. 13, 2013 • Note: In Oct. 2013, the court fined it $275,000.

8. Key Cases from 2013 • Fair: • An Ontario school board supervisor in charge of handling asbestos removal projects developed an anxiety disorder because the MOL had criticized her handling of such projects and threatened her with a personal fine. When she was ready to return to work, she asked for a position that didn’t involve any risk of OHS liability, which the school board failed to provide. • The Human Rights Tribunal ruled that because there were other positions that the school board could’ve given to the supervisor that didn’t involve potential OHS liability, it violated its duty to accommodate her by not assigning her one of those positions. • Fair v. Hamilton-Wentworth District School Board, [2013] HRTO 440 (CanLII), March 14, 2013

9. New Laws & Regulations • Ontario safety awareness training requirements: • Take effect July 1, 2014 • Require workers and supervisors to get basic safety training • Implementation of GHS/replacement of WHMIS across Canada : • Draft regulations were released for comment in June 2013 • Final federal regulations are expected any day • Provinces and territories will need to amend their WHMIS laws accordingly • Bill C-4 and proposed changes to the federal Labour Code: • Received Royal Assent on Dec. 12, 2013 • Changes the definition of “danger” • Changes the unsafe work refusal process

10. Enforcement Trends • More jail sentences? (See R. v. Roofing Medics Ltd., [2013] ONCJ 646 (CanLII), Nov. 21, 2013. Owner of roofing company pleaded guilty to an OHS violation as a supervisor after a roofer died in a fall. The court sentenced him to 15 days in jail, stressing the staggering number of falls in the roofing industry and need for deterrence.  “It is unacceptable for any roofer to be injured or to die as a result of a fall off a roof. These injuries and deaths can be prevented. Since the industry has not been able to accomplish prevention to date, it is appropriate for the Court to send a message that offenders will be dealt with harshly.”) • Psychological safety in the workplace and CSA Standard • Workplace violence, harassment and/or bullying • Protection of new and young workers • Supervisors – increased OHS expectation for them?

11. Q & A QUESTIONS?