due diligence defence fails to shield - rubin … employment safety and health guide 3 both counts....

DUE DILIGENCE DEFENCE FAILS TO SHIELDEMPLOYER FROM OH&S LIABILITY IN RELATIONDecember 2012TO EQUIPMENT SOURCED FROM THIRD PARTYNumber 387

— Ryan Campbell, associate. © Rubin Thomlinson LLP. Reproduced with permission.

Health and SafetyFrom Coast to

IntroductionCoast . . . . . . . . . . . . . . . 4Regulatory regimes in Canada that contemplate penal sanctions for contraventions are

considered “quasi-criminal” in nature and, in accordance with the Supreme Court ofWorth Noting . . . . . 5Canada decision in R. v. Sault Ste. Marie, afford alleged offenders a defence of due

diligence to avoid liability for their otherwise culpable conduct. The language from the

country’s top court is unequivocal, and has been applied universally for nearly 35 years:Health and SafetyViolations . . . . . . . . . . 6

It is open to the accused to avoid liability by proving that he took all

reasonable care. This involves consideration of what a reasonable man would

have done in the circumstances. The defence will be available if the accusedQ & A . . . . . . . . . . . . . . 6reasonably believed in a mistaken set of facts which, if true, would render the

act or omission innocent, or if he took all reasonable steps to avoid theU.S. News . . . . . . . . . . 7 particular event.

In the occupational health and safety context, employers who consider themselves to beRecent Cases . . . . . . 9 making best efforts to observe the obligations prescribed by legislation generally expect

to be able to avail themselves of the defence of due diligence to protect against liability

arising from hazards that are not reasonably foreseeable. That would seem to be a

reasonable proposition, especially in situations where an employer has sought advice

from a third-party expert, or where an employer has obtained equipment from a

third-party supplier. Notwithstanding the expertise of a third party, however, an employer

may still be successfully prosecuted for occupational health and safety contraventions if

it (a) becomes aware of a hazard that has not been addressed by the third party, and (b)

fails to take appropriate corrective action to protect the health and safety of a worker.

The recent decision from the Court of Queen’s Bench of Alberta in R. v. XI Technologies

Inc. (2012 ABQB 549) is illustrative of exactly this point. In finding the employer guilty

of failing to ensure the health and safety of its workers, and failing to ensure that all

equipment used at a work site would safely perform the function for which it was

intended or was designed, Justice Sullivan concluded that

an employer should not be able to successfully prove due diligence simply by

stating that it assumed that equipment delivered to its work site would be safe.

[. . .] To find that a due diligence defence can be satisfied based upon an

assumption of safety would be to undermine the objectives of the OHSA.

1

CANADIAN EMPLOYMENT SAFETY AND HEALTH GUIDE 2

The Facts

XI Technologies Inc. (“XI Tech”) is a small, family owned technology company based in Calgary, Alberta. During the

2007 Calgary Stampede, XI Tech had retained the services of an experienced event planner to organize a client

development function at a local venue. One of the attractions at this function was a calf-roping machine (“CRM”),

which was provided by a third-party rental company. When the CRM was delivered to the venue, XI Tech was not

provided with operating instructions, and although the driver who delivered the machine went through a brief

explanation of how the calf was to be loaded, it was left up to XI Tech staff to figure out how to operate the CRM.

One employee of XI Tech, Fenemore, had past experience as a machine operator, and he led his co-workers — Ratani

and Shair — in figuring out how to operate the CRM. Together, the three employees conceived a method of operating

the CRM: Fenemore would load the calf into the machine, while Ratani pulled a lever down into position to cock the

machine; then, when the rider was ready for the calf to be released, he would say “Go”, and Shair would reach into

the machine manually and disengage a hook, allowing the rider to release the calf by pushing on a release plate; finally,

Shair was to stand clear of the CRM before the rider released the calf, so as to avoid being struck by moving parts

within the machine.

This method had been modified throughout the day in response to “minor” incidents of contact between the moving

parts of the machine and the three employee operators.

Sometime after these modifications had been made, one rider, who had consumed eight or nine drinks at the event,

activated the release plate and launched the calf before Shair was able to stand clear of the CRM. Unfortunately, this

premature release caused a lever to spring forward, striking Shair in the head and causing his death.

An investigation by the Alberta Ministry of Human Services determined that it was a malfunctioning spring that caused

a worker to have to reach into the machine to release the hook. The hazard was further compounded by the design of

the machine, which allowed the lever arm to be drawn upwards when the calf was released, and the position of the

trigger plate directly adjacent to the saddle stirrup, increasing the likelihood or possibility of premature launch.

The Charges

As a result of this incident, XI Tech was charged with two contraventions of Alberta’s Occupational Health and Safety

Act:

(1) Failing to ensure, as far as it was reasonably practicable to do so, the health and safety of a worker engaged in the

work of that employer, contrary to section 2(1)(a)(i) of the Act; and

(2) Failing to ensure that all equipment used at a work site would safely perform the function for which it was

intended or designed, contrary to section 12(1)(b) of the Occupational Health and Safety Regulation pursuant to the

Act.

The Trial Decision

After reviewing the evidence of numerous witnesses and considering the role XI Tech played in the fatality, the trial

judge determined that all essential elements of the offences had been proven by the Crown beyond a reasonable doubt.

However, XI Tech was successful in demonstrating, on a balance of probabilities, that the accident that caused Shair’s

death was not foreseeable and that, in any event, the company had taken all reasonable steps to avoid the accident.

Therefore, Justice Van de Veen of the Provincial Court of Alberta found XI Tech not guilty on both counts.

The Crown then appealed the ruling to the Court of Queen’s Bench of Alberta.

The Appeal Decision

On appeal, the Crown argued, among other points, that the trial judge had made unreasonable findings of facts to

support the conclusions that the death was not foreseeable, and that the due diligence defence had been established.

The appeal court agreed, and in its decision overturned the acquittals and registered convictions against XI Tech on


both counts.

In that regard, the Court drew a distinction between (a) the fact that the CRM was improperly functioning, and (b) the

decision of the employer to continue operating the machine once the potential danger associated with the method of

loading the calf became evident. In this case, the employer’s decision attracted liability and warranted XI Tech’s

conviction.

With respect to foreseeability, Justice Sullivan determined that the employer need not have foreseen a specific type of

injury. Rather, the question was whether a reasonable person would have foreseen the potential danger associated with

the manner in which XI Tech had been operating the CRM at the time of the accident. In light of the earlier “minor”

contact incidents, and the readily apparent possibility of premature release of the calf, the Court concluded that a

reasonable person would have foreseen the potential danger of operating the CRM.

As to due diligence, the Court reasoned that

In this instance, once the hazard was detected, a reasonable employer would have simply placed the CRM off

to the side and hung an “out of order” sign on it. It would not have expected its employees to determine the

“most safe” (or least dangerous) method of operation. It would not have permitted untrained employees to

reach into a piece of equipment. Rather it would have discontinued all use of the CRM.

XI Tech’s failure to observe such objectively reasonable safety precautions prevented it from establishing that it had

been duly diligent. Moreover, the Court determined that any reliance that XI Tech had placed upon the party planners

or the supplier became unrealistic once mechanical issues were first experienced with the CRM.

Accordingly, the Court rejected the due diligence defence, and convictions were entered against XI Tech.

Commentary

Employers in all Canadian jurisdictions should take note of this decision as they design and refine their occupational

health and safety programs. While the relevant legislation in this case was Alberta’s Occupational Health and Safety

Act, it is notable that the first charge was laid under the “general duty” clause in that statute — i.e., the requirement

to “ensure, as far as it was reasonably practicable to do so, the health and safety of a worker engaged in the work of

that employer” — which corresponds to similar provisions that appear in occupational health and safety legislation

across the country.

In order to meet the standard set in such “general duty” clauses, and with a view to mitigating risk and avoiding

liability, employers should implement the following best practices:

(1) Do not place inappropriate or excessive reliance on third-party representations or assurances regarding the safety

of equipment or processes to be used by workers and/or in the workplace.

(2) Encourage the immediate reporting of any incidents or “near-miss” events, no matter how trivial they may seem.

(3) Develop a response protocol to efficiently and effectively respond to incident reports.

(4) Prohibit the use of equipment involved in incidents or near-miss events until a supervisor has been notified and

directs employees to continue working.

(5) Appoint competent supervisors.

(6) Ensure that workers have received necessary training before assigning them new tasks.

(7) Remind workers of their rights and obligations under occupational health and safety legislation, including their right

to refuse unsafe work and their obligation to report hazards and contraventions to the employer or supervisor.

Legislation in some jurisdictions also prohibits workers from operating unsafe equipment.

While XI Tech is seeking leave to appeal this decision to the Alberta Court of Appeal, the precedent stands for now,

and is a stark reminder to employers of the very high threshold that the “due diligence” standard represents.


HEALTH AND SAFETY FROM COAST TO COAST

Alberta Bill 6 — Protection and Compliance Statutes Amendment Act,2012

Bill 6, the Protection and Compliance Statutes Amendment Act, 2012, received third reading on November 20, 2012. It

will amend three Acts, including the Occupational Health and Safety Act, RSA 2000, c. O-2, and the Safety Codes Act,

RSA 2000, c. S-1.

Notable amendments to the Occupational Health and Safety Act relate to the introduction of administrative penalties.

Employers, prime contractors, contractors, suppliers, or workers who have failed to comply with a provision of the

Occupational Health and Safety Act, Regulations, Code, or an order issued by an occupational health and safety officer

will be subject to an administrative penalty not exceeding $10,000, which amount can accumulate on a per day basis

in the case of an ongoing failure to comply. Prior to the amendment, to enforce compliance with OHS law, an officer

had the authority to issue an order. However, if the order was not complied with, the only available option was to

pursue a prosecution.

The Safety Codes Act applies to fire protection and applies to the design, manufacture, construction, installation,

operation, and maintenance of buildings, electrical systems, elevating devices, gas systems, plumbing, and private

sewage disposal systems and pressure equipment. Notable amendments include: the introduction of a three-year

limitation period for prosecution of offences under the Act, rather than relying upon the six months available under the

Provincial Offences Procedures Act, RSA 2000, c. P-34; increasing the maximum potential fine for a first offence from

$15,000 to $100,000; and increasing the maximum potential fine for a second or subsequent offence from $30,000 to

$500,000.

British Columbia Bill 151 — An Act to Amend the Workers CompensationAct

Bill 151, An Act to Amend the Workers Compensation Act received third reading on December 4, 2012. It amends the

Workers Compensation Act, RSBC 1996, c. 492, so that a coal miner who receives a permanent impairment benefit may

only have the benefit increased and not reduced on review.

Saskatchewan Late-Night Retail Employees

Saskatchewan Regulation 75/2012 under the Occupational Health and Safety Act, 1993, SS 1993, c. O-1.1, amends the

Occupational Health and Safety Regulations, 1996, RRS c. O-1.1 Reg. 1, to protect late-night retail employees. The

amendments become law on January 1, 2013.

Effective January 1, 2013, employers of workers of late-night retail premises, such as convenience stores and gas

stations, must conduct workplace hazard assessments of workplaces open to the public between the hours of

11:00 p.m. and 6:00 a.m. The assessments must be reviewed and revised every three years and whenever there is a

change of circumstances that may affect the health and safety of workers.

In addition, the following security measures must be implemented:

● the development of written safe cash handling procedures;

● the use of video cameras that capture key areas in the workplace, including the cash desk and the outdoor gas

pumps;

● the establishment of measures to ensure good visibility in and out of the premises; and

● the placement of signage indicating limited accessibility to cash and valuables and the use of cameras.

Where one employee works alone during late-night hours (between 11:00 p.m. and 6:00 a.m.), the employer must

implement a check-in system and a written check-in procedure as well as provide a personal emergency transmitter to

be worn by the employee that signals for help when activated.


Saskatchewan Bill 122 — The Environmental Assessment Amendment Act,2010

Bill 122, The Environmental Assessment Amendment Act, 2010, SS 2010, c. 11, was proclaimed in force November 7,

2012. It amends the Environmental Assessment Act, SS 1979-80, c. E-10.1, to update and improve environmental

assessment processes.

WORTH NOTING

2013 WCB Maximum Assessable Earnings

As of this update, we have received confirmation of the following 2013 WCB maximum assessable earnings figures:

● Alberta — $90,200;

● British Columbia — $75,700;

● Manitoba — $111,000;

● New Brunswick — $59,500;

● Newfoundland and Labrador — $54,155;

● Northwest Territories and Nunavut — $84,200;

● Nova Scotia — $54,400;

● Ontario — $83,200;

● Prince Edward Island — $50,000;

● Quebec — $67,500; and

● Saskatchewan — $55,000.

The Quebec rate is preliminary and may be subject to change.

Alberta OHS Code Review

The following Parts of the OHS Code are under review for this year:

● Part 4 — Chemical Hazards, Biological Hazards, and Harmful Substances;

● Part 6 — Cranes, Hoists, and Lifting Devices;

● Part 21 — Rigging;

● Part 23 — Scaffolds and Temporary Work Platforms;

● Part 33 — Explosives;

● Part 36 — Mining; and

● Schedule 1, Table 2 — Occupational Exposure Limits for Chemical Substances.

For detailed information, see http://humanservices.alberta.ca/working-in-alberta/14789.html.


HEALTH AND SAFETY VIOLATIONS

Stacey Electric Company Limited Fined $150,000 for Workers’ Death andInjuries

On November 19, 2012, Stacey Electric Company Limited was fined $150,000 for violations of Ontario’s Occupational

Health and Safety Act after one worker was killed and another worker was injured.

On December 23, 2010, two Stacey Electric workers were repairing a broken beacon at a railway underpass in Toronto.

The beacon was on a cement median between four lanes of traffic. One worker was in the bucket of a boom truck

that had been extended over a lane of traffic next to the median. The other worker was standing on the median

assisting the worker in the bucket. There were no traffic control measures such as signs or traffic cones in place. While

the workers were repairing the beacon, a bus struck the boom attached to the bucket holding one of the workers. The

worker on the median was struck and killed by the bus and the bucket as it fell to the ground. The second worker

suffered injuries.

A Ministry of Labour investigation found that there was no traffic protection plan in place during the repair operation.

Stacey Electric Company Limited plead guilty to failing to take the reasonable precaution of ensuring that their workers

prepare a traffic protection plan for their protection.

The fine was imposed by Justice of the Peace Donald Buchanan.

Canduct Industries Limited and Worker Fined $62,000 for Workers’Injuries

On November 16, 2012, Canduct Industries Limited, an insulation components manufacturer, was fined $60,000 for

violations of Ontario’s Occupational Health and Safety Act after two workers were injured in separate incidents.

Another worker was also fined $2,000.

On April 25, 2011, a worker was using a table-mounted router to cut fibreboard at the company’s London facility. The

router did not have a guard to protect the worker from its moving blade. As the worker was cutting the material, it

kicked back and the worker’s hand slid into the blade. The worker suffered hand injuries.

On October 6, 2011, a different worker was operating a table saw at the same facility. This machine was also not

equipped with a guard to prevent access to its moving blade. The worker passed a piece of material over the moving

blade and it kicked back, causing the worker’s hand to slide into the blade. The worker suffered hand injuries.

On October 20, 2011, a Ministry of Labour inspector was doing a follow-up inspection of the workplace. The inspector

noticed another worker operating a table saw without its guards adjusted to provide protection from the moving blade.

The worker plead guilty to failing to ensure that the machine was properly guarded to prevent access to its moving

blade. The worker was fined $2,000.

Canduct Industries Limited plead guilty to two counts of failing to ensure that a machine was properly guarded to

prevent access to its moving parts. The company was fined $30,000 for each offence.

The fines were imposed by Justice of the Peace Jamie Shortt.

Q & A

How should an organization conduct workplace inspections?

Workplace inspections happen at several different levels. One of the tasks of management is to coordinate these

different levels, and to ensure the inspections are driving corrective actions and continuous monitoring of hazards or

potential hazards. Workers and their supervisors are continuously in the workplace, and should be vigilant in keeping an

eye out for any hazards. Organizations should establish practices where hazards are immediately reported, corrected,


and documented. These records can later be reviewed by management and the joint health and safety committee

(“JHSC”) to analyze potential trends.

Each day, the supervisor should inspect the workplace using a checklist. Again, hazards that are identified should be

immediately corrected. Other specific maintenance issues can form part of the checklist. For example, the supervisor

may want to spot-check pre-use inspection sheets on equipment to ensure these are being properly completed. The

supervisor may also want to check any logs to see what activities have been taking place. If a hazard was previously

recorded, the supervisor can check to see if the corrective action was appropriate and prevented a recurrence. These

checklists should be kept on file.

The JHSC is also tasked with doing a more formal monthly inspection. A checklist is again used to ensure critical

elements are not overlooked. This might include ensuring firefighting equipment has been regularly inspected

and maintained, and that other pieces of safety equipment (i.e., eye wash stations, safety showers, Material Safety Data

Sheet stations) have been maintained. The list also serves as a tool to ensure routine items are specifically looked for.

It is easy to overlook a common occurrence like a blocked exit. Making this an item to look for ensures complacency is

overcome.

In addition to these inspections, organizations that value safety typically require senior managers to periodically

conduct their own inspections. This communicates to all employees that the management group does more than

merely pay lip service to the notion of safety. This also demonstrates due diligence. It shows management has done

more than merely read reports on what is happening on the shop floor. During these senior management inspections, it

is a good idea to talk to workers and let them know precisely what is happening. Soliciting their views on health and

safety lets management know if the “improvement process” is really driving cultural change, or if it is simply a paper

tiger.

U.S. NEWSThe following two articles appeared in Ideas and Trends, #739, October 3, 2012, published by CCH Incorporated, United

States, a Wolters Kluwer business, and are reproduced with permission.

Responding to Workplace Violence Starts With Prevention

In the wake of the July 20, 2012 shooting at the movie theater in Aurora, Colorado, a workplace safety video produced

by the city of Houston titled “Run. Hide. Fight.” went viral. The video shows employees following (or not) much of the

advice detailed in a U.S. Department of Homeland Security (“DHS”) booklet on how to respond to an active shooter.

While it is good to prepare employees for what to do in the case of a shooting, workplace violence encompasses a

much wider range of negative behaviors that cause harm, increase stress, and lower productivity.

Despite the highly publicized nature of workplace murders, shootings and stabbings account for only a small percent of

workplace violence. Employers should therefore create a violence prevention program addressing violence generally.

Such a program would not only help ensure a safe workplace, but it could also evidence the employer’s commitment

to safety and lower the risk of liability in the event of a violent incident.

Prevention — training and watching for warning signs. Awareness of violence — weapons are not the only means.

Employees and managers should be trained on awareness of violence, recognizing and reporting potentially violent

employees, and methods to prevent or diffuse hostile situations. The first step is to recognize that using a weapon to

cause physical harm is not the only type of workplace violence. Violence includes:

● verbal threats (including veiled threats like “you haven’t seen the last of me”);

● acts of aggression, menacing gestures, brandishing of weapons;

● attempts at intimidation or coercion;

● verbal or physical harassment or abuse (including domestic abuse, which can spill over into the workplace);

● stalking; and


● disorderly conduct and fist fights (even horseplay can become too aggressive and should be prohibited in the

workplace).

What are the warning signs? Individuals do not usually just “snap”, and there are often signs that, if recognized, could

lead employers to take to preventative action. Some signs to train supervisors and employees to watch for include:

● increased use of alcohol or drugs;

● unexplained increase in absences;

● decrease in attention to appearance and hygiene;

● depression, mood swings, suicidal comments;

● talk of problems at home;

● unsolicited comments about firearms or other weapons; and

● signs of domestic abuse (i.e., unexplained injuries, attempts to conceal injuries, frequent calls or visits from partner,

overly controlling behavior by a partner).

Train managers and employees to watch for these signs and to report them. In addition, managers should be trained

that workplace stress and the perception of unequal treatment can lead to workplace violence. Implementing policies

requiring fair treatment reduces the likelihood of internal workplace violence and has the added benefit of increasing

morale.

Security measures — facilities, policies, and procedures. Aside from training staff, employers should take security

measures to prevent workplace violence, such as providing sufficient lighting at entrances and in parking lots; requiring

photo ID badges to enter the building; using metal detectors or surveillance cameras; prohibiting weapons to the extent

allowed by state law; and encouraging employees to be aware of their surroundings, including the nearest exits. If an

employee is experiencing domestic violence, consider added security to prevent the problem from spilling into the

workplace. Measures could include screening visitors more closely, screening calls, changing the employee’s office

location or hours, and providing an escort to and from the parking lot.

Employers should also have procedures in place for how warning signs, threats of violence, and violent behaviors can be

reported. Of course, it should go without saying that all reports should be promptly investigated. If necessary, get local

law enforcement involved and consider legal measures. For example, employers can help employees obtain protective

orders to keep potentially dangerous persons at a distance.

Response — escape, hide, warn others, call law enforcement. In addition, train supervisors and employees on how

to respond to a violent incident. In many cases, the response will involve finding the nearest exit and ensuring one’s

own immediate safety before calling for help. For example, in the DHS booklet and poster, the DHS instructs people to

respond to a shooting first by trying to escape and leaving personal belongings behind. If escape is not possible, the

DHS suggests hiding behind something that might provide protection but that will not trap you, being sure to turn off

your cellphone, and trying to remain quiet. As a last resort, the DHS suggests that if you are in imminent danger, you

are more likely to survive if you attempt to incapacitate the shooter by acting aggressively, improvising weapons, and

committing to your actions.

Once safety is assured, employees should call 911 and stop others from entering the danger zone. It may be a good

idea for everyone to know a “code word” to use to signal trouble in the workplace.

The DHS also encourages employers to run drills for employees to practice the measures that might one day save their

own and others’ lives. By taking these actions, employers can help ensure the safety of their workers. They can also

show they are committed to workplace safety and help minimize the potential for liability in the event that a violent

incident occurs.

Source: Originally published in Fair Employment Practices Guidelines, No. 688, September 2012, a Wolters Kluwer Law &

Business publication.

© 2012, CCH Incorporated. All Rights Reserved. A Wolters Kluwer Company.


Can Employer Be Liable if a Normally Mild-Mannered Employee Acts OutViolently?

Issue: One of your employees, who has never been known to be particularly threatening, has been in a bad mood

lately for unknown reasons. Recently, when discussing politics, he raised his voice and got face-to-face with a coworker,

causing other employees to be concerned that he is capable of violence. He never actually touched anyone in anger

and has no known history of violence. Can the company be held liable if he actually hurts someone while at work?

Answer: Yes, but the basis for and extent of liability depends on the circumstances. If the employee hurts a coworker,

then workers’ compensation is normally the exclusive remedy against an employer. If a third party is injured, the

employer may face liability under tort theories, such as negligent hiring or retention.

The issues in such cases are often whether the violent behavior was foreseeable and whether the employer took

reasonable measures to prevent it. With this in mind, employers should take proactive steps to reduce the risk of

workplace violence. One measure is to create a policy that includes an effort to mitigate violence; a definition of the

various elements of workplace violence; and a strategy for detection, reporting, and diffusion of potentially hostile

situations. Including a risk analysis program in the violence policy is vital for identifying potentially hostile situations.

© 2012, CCH Incorporated. All Rights Reserved. A Wolters Kluwer Company.

RECENT CASES

Accident Could Not Have Been Expected

Ontario Court of Justice, November 14, 2012

The appellant, Rassaun Steel & Mfg. Co. Ltd. (“Rassaun”), appealed its conviction under section 25(2)(h) of the Ontario

Occupational Health and Safety Act for failing to take reasonable precaution to ensure that an overhead duct system

was adequately supported while it was being demolished or dismantled. Employees were removing ducts and other

equipment from a non-operational foundry. A large section of the duct work collapsed and seriously injured a worker.

The appeal was allowed. Rassaun was acquitted. The sand had built up in the ducts and caused them to collapse. There

was no basis to conclude that the collapse was a foreseeable risk. The uncontradicted evidence was that the sand

build-up within the duct work should not have occurred and could not have been expected. It was not practical or

reasonable to inspect all welds in the ducts as it would have taken years to do so. The indisputable conclusion was

that, but for the poor welds and the sand build-up, the collapse would not have occurred. It was not open for the

Court to conclude otherwise.

R. v. Rassaun Steel & Mfg. Co., 2012 CSHG ¶95,868

Government Not Constructor on Project

Supreme Court of the Yukon Territory, June 11, 2012

This was an appeal by Sidhu Trucking Ltd. (“Sidhu”), Cratty, and the Yukon government from convictions for offences

under the Occupational Health and Safety Act (the “Act”) on the basis of alleged errors in fact and law. Sidhu had

entered into a contract with the Yukon government, the owner of the project, to do blasting work. Cratty was

employed by Sidhu as supervisor of the project. Sidhu had hired a blaster to do the work. Sidhu, Cratty, and the Yukon

government were charged with violating the Act when blasting caused property damage in a nearby trailer court. The

blast showered the trailer court with rock. The blaster estimated the trailer court was 400 metres from the blast site

but it was actually only 149 metres. The Yukon government was convicted as a constructor for failing to ensure

compliance with the Act. Sidhu was convicted as an employer for failing to ensure that the processes under its control

were safe. Cratty was convicted as a supervisor for failing to provide proper instructions to the blaster. (See 2010 CSHG

¶95,723.)

The appeal by the Yukon government was allowed. The appeal by Sidhu and Cratty was dismissed. Damage from the

blasting incident was foreseeable and the trial judge did not err in finding that the defence of due diligence was


unavailable to Sidhu and Cratty. The Yukon government was not the constructor of the project. The contract between

the Yukon government and Sidhu stipulated that Sidhu was the constructor and it was an error of law to ignore that

term of the contract. In addition, the Yukon government did not meet the definition of “constructor” in the Act. The

Yukon government was the owner of the project. It had hired Sidhu as contractor to undertake the project as its

constructor. When an owner hires a contractor to undertake a project as its constructor, the owner cannot also be

undertaking the project unless it explicitly takes back some of the responsibilities contracted out, which the Yukon

government had not done. The Yukon government did not act as constructor on the project but rather exercised its

rights under the contract to ensure compliance with quality and safety. These rights were consistent with an owner’s

rights. There was inadequate evidence supporting the trial judge’s reasoning that the Yukon government had maintained

control over the entire project.

Director of Occupational Health and Safety v. Government of Yukon, 2012 CSHG ¶95,869

Wording in Engineer’s Inspection Report Must Comply With OHS Act

Ontario Labour Relations Board, October 30, 2012

The applicant, Drewlo Construction Ltd. (the “company”), sought the suspension of a Ministry of Labour order requiring

it to have a professional engineer inspect a tower crane and provide a report that it was “not likely to endanger a

worker,” wording found in section 54(1)(k) of the Ontario Occupational Health and Safety Act (the “Act”). Following

receipt of a Ministry of Labour compliance order, which resulted in the tower crane being put out of service, the

company retained an engineering firm to carry out a structural inspection of the tower crane and to provide a report

to the inspector. The engineering firm reported to the inspector that there were no defects in the structure of the

crane and that it could be put back in service. The inspector refused to accept the engineer’s report because it did not

expressly certify that the tower crane was not likely to endanger workers on the project. The company appealed those

orders and subsequently sought the suspension of the orders.

The suspension request was denied. Section 54(1)(k) of the Act requires a professional engineer to expressly state in the

written report whether the affected equipment, machine, or device is or is not likely to endanger a worker. Specific

reference to the precise words used in the statutory provision facilitates consistency of assessment and minimizes the

opportunity for confusion or debate by an inspector as to what conclusion should be reached based on the content of

a report. Having a certain level of consistency in the content of reports by requiring all professional engineers to use

the precise words envisioned by the Legislature helps create a common benchmark of evaluation, which enhances and,

in all likelihood, may even expedite the inspector’s ultimate determination as to the safety of the workplace. In the

instant case, since the report did not specifically state that the tower crane was not likely to endanger workers, the

Ontario Labour Relations Board could not be satisfied that workers would not be endangered if the orders were

suspended.

Drewlo Construction Limited v. A Director, 2012 CSHG ¶95,870

Employer Did Not Fail To Accommodate Employee’s ScentHypersensitivity

Human Rights Tribunal of Ontario, August 14, 2012

The applicant, an employee suffering from a scent hypersensitivity, claimed that her employer, the respondent

Inteleservices Canada Inc., discriminated against her when it allegedly failed to enforce its policy that restricted scents

in the workplace. There were two versions of the respondent’s fragrance-free policy. Both versions were intended to

restrict the use of noticeably scented products in the workplace. Neither version was intended to restrict the use of all

scented products. During the applicant’s hiring interview, the applicant told the recruiter that she had a scent

sensitivity. The recruiter told her it would not be a problem because the respondent had a fragrance-free policy.

However, over the course of her training period, the applicant repeatedly complained about scents she claimed her

co-workers were wearing. The employer tried to accommodate her by pointing a fan in her direction and allowing her

to shadow a co-worker. By the third day of training the applicant left the workplace because she could not stay in the

environment.


The application was dismissed. The respondent did not fail to accommodate the applicant’s disability. The applicant was

“hypersensitive” to scents and she was sensitive to scents that others could not detect. The applicant required not only

an environment free of noticeable scents, but an environment free of scents that were not detectable to others. The

question of whether the workplace could be accommodated without undue hardship so that the applicant would not

be exposed even to scents not noticeable by others could not be answered because a request for such accommodation

was never made or suggested by the applicant. An employer cannot provide accommodation for a problem that it does

not know about. If the accommodation that she required was that she could not be exposed to scents that were not

detectable by others, she should have been clear that this was the case. She did not make that clear. She did not

explain what accommodation she was seeking, apart from enforcement of the fragrance-free policy. The applicant had

a positive obligation to accurately identify to the respondent what her accommodation needs were and to clearly

explain to the respondent why the solutions that had been attempted were not adequate.

Kovios v. Inteleservices Canada Inc., 2012 CSHG ¶95,871

Worker Not Entitled to Compensation for Psychological/PsychiatricInjuries Resulting from Gradual Onset Stress

Nova Scotia Court of Appeal, September 7, 2012

The appellant, Bishop, a former underground coal miner, had been employed by the respondent Enterprise Cape Breton

Corporation (the “employer”) from 1991 to 1999. During this time, Bishop worked at coalfields including the Phalen

Colliery. He sought compensation for gradual onset stress, which he claimed was brought on over the course of time

by his work in the colliery. In order to qualify for compensation for gradual onset stress, Bishop had to prove he met

the criteria set out in Workers’ Compensation Board (“WCB”) Policy 1.3.6. WCB Policy 1.3.6 provides that the

work-related events or stressors experienced by the worker must be “unusual and excessive in comparison to the

work-related events or stressors experienced by an average worker in the same or similar occupation.” Bishop’s claim

was denied by a case manager, a hearing officer, and a Workers’ Compensation Appeals Tribunal (the “WCAT”) panel.

Bishop successfully appealed the WCAT decision. The matter was remitted back to the WCAT for a new hearing (see

2008 CSHG ¶95,580). During the second WCAT hearing, Bishop introduced evidence, including evidence that the

working conditions at the Phalen Colliery were more stressful than at the employer’s other collieries. The employer

introduced evidence concerning the conditions at its four collieries and the conditions at underground coal mines in

other parts of the world, excluding developing countries. The WCAT accepted the employer’s comparator group. The

WCAT then compared the work-related stressors experienced by Bishop to those experienced by an average worker in

the comparator group. It found that the stressors experienced by Bishop were not unusual and excessive and denied his

claim. Bishop appealed the WCAT decision. At issue was whether the WCAT erred in law by choosing the wrong

comparator group, causing it to wrongly deny compensation to Bishop.

The appeal was dismissed. The WCAT’s choice of a comparator group was reasonable. Having chosen the comparator

group, the WCAT carefully analyzed the evidence to determine if the work-related events or stressors experienced by

Bishop were unusual or excessive in comparison to the work-related events or stressors experienced by an average

worker in the underground coal mines in the comparator group. The WCAT determined that Bishop’s experiences were

not unusual and excessive. The WCAT’s decision fell within a range of possible outcomes.

Bishop v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2012 CSHG ¶95,872


CANADIAN EMPLOYMENT SAFETY AND HEALTH GUIDE

Published monthly as the newsletter complement to the Canadian Employment Safety and Health Guide by CCH Canadian Limited.For subscription information, contact your CCH Account Manager or call 1-800-268-4522 or (416) 224-2248 (Toronto).

For CCH Canadian Limited

Marta Balcewicz, MA, JD, Writer Rita Mason, LLB, Director of Editorial(416) 224-2224, ext. 6370 Legal and Business Markets

email: [email protected] (416) 228-6128email: [email protected]

Bindia Persaud, Editor(416) 224-2224, ext. 6202 Andrew Ryan, Marketing Manager

email: [email protected] Legal and Business Markets(416) 228-6158

email: [email protected]

Editorial Board

Carol Dakai, BA, LLB

© 2012, CCH Canadian Limited

Notice: This material does not constitute legal advice. Readers are urged to consult their professional advisers prior to acting on the basis

of material in this newsletter.

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