By Rosalind H. Cooper

Most occupational health and safety statutes across Canada contain provisions that prohibit employer reprisals for workplace health and safety matters. While the outcome of complaints made by workers regarding employer reprisals is always fact specific, employers had been taking comfort from several recent decisions.

Those decisions suggested that complaints regarding employer reprisals in relation to allegations of workplace harassment couldn’t be sustained under health and safety legislation. However, a recent decision of the Ontario Labour Relations Board in Ashworth v. Boston Pizza, where an employee was terminated after her manager allegedly confronted her in an angry manner, has changed this view. read more…

By Marc Rodrigue

Increasing public attention has been given to mental health awareness. And Canadian employers are not exempt. Today’s employers have many employees who are affected by, directly or indirectly, psychological illness or are at risk of psychological hazards on the job. Sometimes these hazards can create human resources challenges, including extended employee absences and complex accommodation scenarios. read more…

By Antonio Di Domenico

Occupational health and safety laws across Canada provide that employers must take certain steps to protect the health and safety of their workers. But none go so far as to make certain health and safety training mandatory. At least not until now. read more…

by Rosalind H. Cooper

Employers in many Canadian provinces have often looked to Ministry of Labour inspectors to provide guidance to assist them in complying with their obligations under various occupational health and safety statutes and regulations. Employers often request such advice because they believe that Ministry of Labour inspectors, who visit multiple workplaces and observe many different means of compliance, have useful guidance or recommendations. read more…

By Antonio Di Domenico

On Christmas Eve 2009, a swing stage (a work platform) suspended on the 14th floor of an Ontario apartment building collapsed. Four workers including the site supervisor died after falling to the ground.

Metron Construction was charged with criminal negligence causing death under Canada’s Criminal Code. The company’s owner and sole director, Joel Swartz, was charged under Ontario’s Occupational Health and Safety Act. Both the company and Swartz pleaded guilty. In two decisions, R. v. Metron and R. v. Swartz, both were fined significantly.

The basis for the charges and fines? The expanded scope of criminal liability under Canada’s Criminal Code, which is no longer confined to the “directing mind” of a corporation. Here it applied to an independent contractor. read more…

by Rosalind H. Cooper
Employers and others are generally protected by actions against them that occur outside of limitation periods. That applies to charges under Canadian occupational health and safety legislation, too. But when do those limitation periods begin to run?

A recent decision of the Ontario Court of Justice in R. v. Corporation (City of Guelph) has said they may begin to run at different times for different entities. In this case, the court said that although the limitation period in the Ontario Occupational Health and Safety Act (OHSA) began to run for the employer when the accident occurred, it began to run much sooner for the architect and engineer involved in the construction of the project that led to the accident. As such, charges could proceed against the employer, but not the architect or engineer. read more…

By Rosalind H. Cooper

Occupational health and safety legislation in most Canadian provinces prohibits reprisal by an employer against an employee who makes allegations of unsafe work. Workers routinely try to rely on such reprisal provisions to attack any actions of their employers.

A recent Ontario Labour Relations Board decision, Petro v. The Beer Store, confirms that workers can’t. Reprisal complaints must relate to health and safety matters. They can’t relate to failures to follow corporate reporting procedures or to threats of discipline for refusal to follow directions regarding workplace reporting protocols.

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by Rosalind H. Cooper

It is commonplace for companies and supervisors across Canada to be charged and convicted with respect to health and safety offenses. But the same doesn’t necessarily hold true for health and safety managers. In R. v. Della Valle, the Provincial Court of Nova Scotia recently convicted and fined a health and safety manager. This individual is now the second health and safety manager to be convicted of an occupational health and safety offense.

Facts
James Edward Della Valle was the occupational health and safety coordinator of the Cape Breton Island Housing Authority, which owns and maintains several housing units.  After concerns were raised by an employee, testing was done on vermiculite insulation found in the attics of some of the housing units.

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By Rosalind Cooper

Recently, courts across Canada seem to be expanding the application and coverage of occupational health and safety legislation, providing broad and liberal interpretations of legislation. But that may be changing. The decision in Ontario (Ministry of Labour) v. Sheehan’s Truck Centre Inc. is being welcomed by many as an indication that the protective purpose of the regulatory scheme cannot override the actual words used in the legislation.

Employee run over
A company that owned and operated a highway tractor-truck sales business offered units for sale in its parking lot. While the company was expanding the parking lot, four employees were directed to move a number of the trucks in the parking lot from one area to another. The movement was required to facilitate paving work relating to the expansion.

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By Rosalind Cooper

Which party on a construction project is the “constructor”? While some provinces in Canada use this term, other provinces use slightly different terms, such as prime contractor. All are meant to refer to the party at the workplace that has overall responsibility for health and safety on the construction project. It’s generally that party that’s exposed to the greatest legal liability in terms of safety-related incidents.

“Constructor” obligations
For example, under the Ontario Occupational Health and Safety Act (OHSA), constructors have significant obligations. They must ensure that all employers and workers on the project comply with OHSA and the Construction Regulations. The case law has confirmed that constructors will be held to a high standard in meeting those obligations. Therefore many companies go to great lengths to avoid assuming this role on a project.

An Ontario court has recently provided some further guidance on what indicators will be looked at in determining who is a constructor. In the case of R. v. Reid & DeLeye Contractors Ltd., a company was found to be a “constructor,” rather than the construction manager it had contracted to be.

Background
In June of 2005, Reid & DeLeye contracted with a hotel owner to construct a new hotel in Cambridge, Ontario. Reid & DeLeye intended to be the construction manager. The company was responsible for carrying out specific roles during the pre-construction, construction, and post-construction phases of the project.

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