management ohs update and...
TRANSCRIPT
OHS Update and RiskManagement
Recent Developments in Health & Safety Law & Enforcement
Norm Keith, PartnerDeanah Shelly, Associate
February 7, 2017
Topics to be Covered
• Statistics– Orders, Convictions, Fines
• Legislation – Who can conduct an internal investigation and navigating the
dissemination of the findings • Case Law
– How recent decisions will influence H&S in 2017 • Right to Remain Silent
– The rise of police enforcement in H&S matters• Risk Management and Mitigation
– Steps and strategies for OHS due diligence
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Ontario Statistics
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Ontario Statistics2013-14 vs. 2014-15
• Orders increased
– From a total of 126,330 to 131,197
• Convictions increased
– From a total of 780 to 817
• Fines increased
– From a total of $9.31 to $9.36 million
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Ontario Statistics 2013-14 vs. 2014-15
• The number of inspections decreased – From a total of 73,204 to 70,604
• 2013-14 – 42,865 proactive visits– 30,339 reactive visits
• 2014-15 – 41,308 proactive visits– 29,296 reactive visits
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Legislation: Ontario
• Bill 132 became law on September 8, 2016
• “An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and related matters”
• Amendments do not include sexual violence or domestic violence
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Legislation: Ontario
Key actions: • Amend existing policies and programs to include
“sexual harassment” • Option to file a complaint to someone “not under
management direction” • Internal or External Investigator must prepare a
written report summarising facts that lead to finding
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Legislation: Ontario
Key actions: • Advise both parties in writing of the finding and
corrective action• The findings (not the report) must be provided to
both parties and the JHSC• The JHSC does not have an absolute right to the
written report [32.0.7(2)]
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Legislation: Federal
• An employer is required to appoint a “competent person” to investigate a complaint of violence and harassment
• Section 20.9 of the Regulations defines a “competent person” to be, among other things, someone who is “impartial and is seen by the parties to be impartial”
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Legislation: Federal
• In a recent decision, the Occupational Health and Safety Tribunal Canada (the “Tribunal”) held that this requirement means that the complaining employee and the employee alleged to have engaged in an act of workplace violence must both agree that the proposed investigator is impartial
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Ontario Legislation
• Noise Regulation 381/15 became law July 1, 2016 • Workplaces now covered by this regulation:
– construction projects– health care facilities– schools– farming operations– fire services– police services– amusement parks
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Ontario Legislation
• Mines and Mining Plants Regulations 854 became law on January 1, 2017
• Amendments require risk assessments and strengthen requirements for certain high hazards including water and traffic management, and recording of seismic events
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Case Law
R. v. Daniel Lane (ONCJ) 2016• Convicted of nine (9) counts under the OHSA and
the Asbestos Regulation 278/05• Deceit and misrepresentation to the homeowner,
total disregard for the health and safety of his workers and for the public
• 30-day jail sentence and $45,000 in fines
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Case Law
R. v. Joe Ramono (ONCA) (ongoing)• 17 year old pick-up truck required a SSC• SSC issued illegally (without required inspection) • MVA causing death • Ramano charged with criminal negligence
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Case Law
R. v. Joe Ramono (ONCA) (ongoing)• “…there is evidence on which a reasonable jury,
properly instructed, could find that the appellant was a significant contributing cause of the young woman’s death.”
• Workers – particularly those who repair or operate vehicles or equipment – can face criminal charges if they are negligent and the negligence causes injury or death.
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Case Law
R. v. Kazenelson (ONSC) 2016• Project manager convicted of four (4) counts of
criminal negligence causing death and one (1) count of criminal negligence causing bodily harm
• Crown and Defence counsel accepted that imprisonment was “called for” in this case
• 3½ years imprisonment on each count• R. v. Fournier (QCCS) 2016
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Case Law
R. v. Royal Ottawa Health Care Group (ONCJ) 2016 (currently under appeal) • Workplace Violence • Code White - violent patient • Three (3) charges laid against the hospital for
violations of s. 25(1)(c), 25(2)(a), 25(2)(h)
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Case Law
R. v. Royal Ottawa Health Care Group (ONCJ) 2016• MOL failed to prove all counts • “Do we have a policy on workplace violence? We
do. Does it have information on how to summons immediate help? It does. We do not have to establish the effectiveness of this particular policy.”
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Case Law
R. v. CAMH (ONCJ) 2016 • Workplace Violence – violent patient • Patient had a history of violence • Two (2) workers suffered physical and
psychological injuries• Patient charged and convicted for assault
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Case Law
R. v. CAMH (ONCJ) 2016 • CAMH pleaded guilty to violating s. 25(1)(c) of the
OHSA and s. 8 of Regulation 67/93• CAMH failed to develop, establish and put into
effect measures and procedures to protect workers in the circumstances on the night shift from workplace violence
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Case Law
CUPW and Canada Post Corporation (FCA) 2016 • Began as an appeal of a direction (order) issued
against Canada Post• Union seeks to expand WPC (JHSC) hazard
assessment obligations • Currently restricted to the physical building • Attempting to expand to include “all points of call”
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Case Law
CUPW and Canada Post Corporation (FCA) 2016• Matter currently before the Federal Court of
Appeal • Will have broad reaching effects for all Federal
employers and is likely to impact provincial employers as well
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Case Law
R. v. WAL-MART CANADA CORP. (ONCJ) 2016• Worker tripped on a pallet left on the floor• Called in sick the next day • Employer asked him to report the incident • Two (2) weeks later he died in hospital • The MOL could not prove contributing factor
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Case Law
R. v. WAL-MART CANADA CORP. (ONCJ) 2016• Charged with a violation of s. 25(1)(c)• Measure & Procedure: Namely that the floor be
kept free of obstructions, hazards, and accumulations of refuse, snow or ice
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Case Law
R. v. WAL-MART CANADA CORP. (ONCJ) 2016• [212] I find that the absence of the missing safety
sweep logs for the backroom area results in a failure of reliable proof that it is more likely than not that every precaution reasonably available in the circumstances was taken.
• [214] …I find the defendant has not met its onus of establishing due diligence on a balance of probabilities…found guilty of the charge.
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Your Right to Remain Silent
• Under s. 7 of the Charter of Rights and Freedoms people (workers) have the right to delay and/or decline giving witness statements to regulators
• Regulators include: – MOL / CLC health and safety regulators – MOE regulators; and – The Police
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Your Right to Remain Silent
• However, the OHSA, the CLC, and the EPA provide regulators with the power to compel statements from witnesses
• Navigating the right to silence and the obligation to provide a statement is challenging
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Your Right to Remain Silent
• Potential consequences associated with your choice: – Obstruction of justice charge – Provide evidence used to charge a co-worker – Provide evidence used to charge yourself – Provide evidence used to charge your company
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Your Right to Remain Silent
• Steps to minimize legal action – Inform your workplace about the differences between
regulators/officers and their respective powers – Establish a policy or protocol to address dealing with a
regulator/officer during an investigation – Consider additional training for management – Involve counsel at the earliest stage possible
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• Steps for PREVENTION
1. PRIORITY by senior management to worker safety 2. RISK identification and assessment3. ELIMINATE or control workplace hazards4. VERIFY OHS programs and safe work procedures5. ENGAGE managers and workers in OHS training6. NOTE and document OHS program compliance7. TOTAL OHS management system auditing
Risk Management & OHS Due Diligence
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Norm KeithPartner+ 1 416 868 [email protected]
Deanah ShellyAssociate+ 1 416 868 [email protected]
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