In-Depth Analysis

OHS in Canada: The Year in Review 2017

OHS & Workers’ Compensation Advisor

January 10, 2018

OHS in Canada: The Year in Review 2017

Authors: Loretta Bouwmeester, Cheryl A. Edwards and Jeremy Warning, Partners

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Happy New Year.  It’s now 2018 but we are looking back on what was a tumultuous 2017 that saw many legislative changes and important court decisions – both of which led to important developments in occupational health and safety (OHS) law across Canada.

This Year in Review, which is provided as a follow up to our webinar on November 16, 2017, will highlight and provide context for the most significant developments, including:

  • the law of privilege and how it may apply to internal accident investigations;
  • obligations to inspect workplaces that the employer does not control;
  • drug and alcohol testing in the workplace;
  • court decisions that may make sentencing less predictable and the outcomes even more onerous; and
  • key legislative changes that have important implications for employers.

1. Protecting OHS Investigations With Privilege – Do New Developments Mean New Strategies?

Employers, prime contractors, and constructors often carry out their own investigations after a serious workplace accident.  Investigations may be conducted for different reasons and are often required by law to be done.  Regardless of why the investigation is carried out, they can produce a significant amount of information including detailed reports, witness statements, photographs, measurements and even expert reports and opinions.  These materials can include information that could be harmful to the interests of the organization and its management.  They can also include information that was not gathered by government investigators.  It is, therefore, good practice to remain in control of this information and keep it out of the hands of government investigators to the extent that this can be done.  The principal tool for doing so is to protect the material with legal privilege.

Relatively few cases in the occupational health and safety area address the steps necessary to establish either solicitor-client or contemplated litigation privilege over information – particularly in light of statutory requirements to conduct investigations and prepare reports.  However, the Alberta Court of Appeal recently provided some clarification through their decision in Alberta v Suncor Energy Inc., 2017 ABCA 221.

The case arose from a fatal incident at a worksite near Fort McMurray.  Suncor began an internal investigation and asserted “litigation privilege” over the materials created and collected in the course of its investigation.  Litigation privilege is a form of legal privilege that can be claimed over documents and information created for the dominant purpose of preparing for reasonably anticipated litigation – such as a prosecution under health and safety legislation.

In response to Suncor’s claim to litigation privilege, the Ministry of Labour and the Government of Alberta asked the Alberta Court of Queen’s Bench to order Suncor to provide information and records related to the workplace fatality.

At the Alberta Court of Queen’s Bench, Suncor was successful in arguing that litigation privilege applied in respect of regulatory proceedings, including when a regulatory agency carries out an investigation that “could result in the prosecution of offences with [potential] consequences” (Alberta v Suncor Energy 2016 ABQB 264 at para 28).  The Alberta government appealed.

The Alberta Court of Appeal determined that, even if the internal investigation as a whole was in contemplation of litigation, it did not necessarily follow that every document created and/or collected during the investigation was privileged.

The effect of the Court of Appeal decision is that, where a claim of privilege is challenged, a party seeking to rely on privilege must clearly state and prove the kind of privilege[1] for each individual document or bundle of like documents.  A sufficient description of the document(s) must also be produced in order to establish the evidentiary basis for the privilege claimed (e.g. to establish that the document was created to prepare for reasonably apprehended litigation). Making broad and general claims to all forms of privilege, or as the court put it, attempting to “throw a privilege blanket” over the materials gathered without any particulars will not be enough.

For employers, the decision in Suncor is helpful because it confirms that privilege can be claimed over internal investigation materials.  However, the decision is also a reminder that the onus of proving material is privileged will rest on the employer or party claiming the privilege.  It adds nuance to the steps necessary to establish claims of privilege if they are contested.

In light of this decision, Canadian employers who are carrying out workplace investigations should turn their minds to the possibility of future document production obligations during the investigation process.  Given this, it would be prudent for employers and their counsel to take careful steps to establish solicitor–client privilege by contacting external specialized OHS counsel, and take steps to establish contemplated litigation privilege by ensuring that investigation materials are kept confidential, access is controlled and that they are segregated.  In light of the Court of Appeal decision, additional steps could involve more specifically identifying documents and information over which privilege could reasonably be asserted and materials that are unlikely to be considered privileged (because they were not created or prepared for the dominant purpose of preparing for litigation or receiving legal advice).  For materials over which privilege will be asserted, it would be prudent to scrupulously ensure that the material is handled and used in a manner that is consistent with its privileged nature so as to distinguish it from information prepared for use in day-to-day operations or to comply with statutory obligations.  In this regard, employers may consider conducting parallel investigations – one that is conducted with the predominant purpose of preparing for litigation and/or obtaining legal advice and the other for complying with statutory obligations.  Further, if solicitor‑client privilege will be asserted, the employer should ensure that the information and materials are provided to counsel in order to obtain legal advice.

[1] For example: litigation privilege or solicitor-client privilege.

2. Federal Employer Obligations to Inspect Workplaces Over Which They Have No Control

A recent decision of the Federal Court of Appeal may create challenges for employers in discharging their obligation to conduct periodic inspections of the work place.  The challenges arise because, in Canadian Union of Postal Workers v. Canada Post Corporation (2017 FCA 153 (CanLII)), the majority of the Court determined that Canada Post exercised sufficient control over the work activities of its letter carriers that the work place committee or safety representative is to inspect the delivery routes for hazards pursuant to paragraph 125(1)(z.12) of the Canada Labour Code.

The Court’s decision overturned the decisions made by the Health and Safety Officer (”HSO”) and the trial division of the Federal Court.  Both the officer and the lower court concluded that inspections by the committee or safety representative were not required because Canada Post did not have control over the locations on a delivery route.  For the majority of the Court, the facts established that Canada Post had control over the work activity that was sufficient to trigger the inspection obligation. Further, one of the judges concluded that, through its policies, Canada Post was capable of identifying and resolving hazards encountered by letter carriers on their routes.  In particular, the judge held that Canada Post could ensure that routes and points of call were inspected and that hazards and impediments were identified and rectified even without having direct control over the “workplace”.  The judge acknowledged that this may require Canada Post to change its protocol in order that inspections would be performed by the work place committee rather than relying on letter carriers to identify hazards as they work as was being done before.

The decision stands to have a profound impact on federally regulated employers who have dispersed workforces.  Arguably, the ruling applies to airlines, railways, trucking and transportation companies, and courier and freight companies.  If these employers exercise similar levels of control over their workers, their work place committees could be required to inspect the various locations to which they may travel.  Clearly, an interpretation or requirement of that nature would present pronounced compliance and operational challenges.

While the decision involves the Canada Labour Code and only applies directly to federally regulated employers, provincially regulated employers should not overlook the potential for the decision to impact them.  If control of the physical workplace is not necessary to trigger inspection obligations, a similarly broad approach could be taken by provincial regulators.  In some jurisdictions, such as Ontario for example, employer control is not an element of the definition of workplace.  Rather, a workplace is defined simply by the presence of a worker.  For that reason, this decision could cause provincial regulators to adopt a similar approach based on this decision.

As noted, the Court’s decision was not unanimous.  Indeed, the reasons of the three judges are all different.  One judge supported the decisions reached by the HSO and lower court and the two judges that formed the majority reached their decisions for differing reasons.  Canada Post has sought leave to argue the case before the Supreme Court of Canada, so there is potential that the last word on this case has not yet been written.

3. Managing OHS Prosecutions During Ongoing Criminal Investigations

Since the Bill C-45 amendments to the Criminal Code, serious workplace accidents have attracted the risk of both criminal and OHS investigations and prosecutions.  Increasingly, such events are resulting in charges being laid under both the Criminal Code and applicable OHS legislation.  However, there is a key distinction between OHS and criminal charges: the limitation period.  OHS legislation across Canada has varying limitation periods (the time by which a charge must be laid) but, at most, they are two years in length.  On the other hand, there is no limitation period for a criminal negligence charge under the Criminal Code.  The absence of a limitation period for criminal charges had a unique impact on an Ontario case earlier this year. In R v Campbell, (2017 ONSC 3442), Mr. Campbell was charged with criminal negligence after pleading guilty to an offence under the Ontario Occupational Health and Safety Act (“OHSA”).  The details are set out below and provide a reminder that criminal investigations and charges may proceed and arise at dramatically different points than OHS charges.

On April 17, 2014, Mr. Campbell pleaded guilty, as a supervisor, to a charge under the Occupational Health and Safety Act after a boom truck he was operating toppled over and killed a worker.  He was fined $3,500. The accident happened on June 21, 2012, and, in September 2014 – approximately five months after Mr. Campbell entered his guilty plea in the OHS proceedings and more than two years after the accident – he was charged with criminal negligence causing death under the Criminal Code.  The facts set out in this decision suggest that the criminal negligence charge may have been motivated by dissatisfaction with the penalty imposed on Mr. Campbell.

Mr. Campbell brought an application to stay the criminal charge because of the delay in laying it.  He argued that the delay in moving forward with the charge was highly prejudicial to him.  The court agreed and concluded that it was not reasonable for the Crown to have waited to file criminal charges until the OHSA proceedings were done. The two charges could have proceeded at the same time. Further, the Court determined that the guilty plea under the OHSA could prejudice Mr. Campbell in the pending criminal proceedings that would be dealt with by way of a jury trial.

Citing the accused’s right to life, liberty and security of the person and his right to a fair trial (under Sections 7 and 11 of the Canadian Charter of Rights and Freedoms, respectively), the Court stayed the criminal negligence charges.

This decision should not be taken to mean that criminal charges can never be laid following the completion of an OHSA prosecution. Faced with a more complex set of facts or an incident requiring a more sophisticated investigation, a Court may find a delay in laying charges to be reasonable and justified. In this case the Court found that the Ministry of Labour and the Ontario Provincial Police had concluded within three days of the incident that they had reasonable and probable grounds to lay charges. On that basis, the wait-and-see approach taken by the Crown was unreasonable and a violation of the accused’s Charter rights.

As we are seeing criminal investigations conducted with a greater frequency after serious workplace accidents, this case provides a reminder that it would be prudent, in cases in which the police have been involved, to determine the status of any criminal investigation before finalizing OHS charges.  This is especially true in terms of pleading guilty.  This can be done by liaising with the OHS Crown, criminal Crown, and the police.  If a criminal investigation remains open at the time of making a decision on how to handle OHS charges, then a decision should not be made without close and careful consultation with experienced counsel.

4. Changes for Joint Health and Safety Committees in British Columbia

On April 3, 2017 changes to British Columbia’s OHS Regulation related to joint health and safety committees came into force.

The changes included amendments to the mandatory minimum training requirements for health and safety committee members and worker health and safety representatives; mandatory annual evaluations of joint committee effectiveness; and a clarification of what it means for employers and worker representatives to participate in employer incident investigations.

Specifically, joint committee members and worker health and safety representatives are now required to have minimum levels of instruction in certain prescribed areas. This includes a requirement that any member of a joint committee selected on or after April 3, 2017, must receive eight hours of instruction on topics that include the duties and functions of a joint committee, requirements about accident and incident investigations, and about the requirements for addressing a work refusal on the basis of unsafe work.  Worker health and safety representatives are to receive four hours of training on similar topics.  Employers are obligated to keep records of all instruction and training provided to these individuals.

The amendments now also require employers to ensure that annual evaluations of their joint committees are conducted by either the co-chairs of the committee or a member of the committee they designate, or by the employer or a person retained by the employer.  Whoever performs the evaluation must consider the input of the committee co-chairs.  The evaluation must be in writing and is to consider the effectiveness and functioning of the committee.  Among the criteria to be evaluated are the effectiveness of the rules and procedures in place, the employer’s support for the committee, and whether the committee fulfilled its duties and functions.  The evaluation must be provided to the committee who are required to discuss it at their next meeting and record the discussion in the minutes of the meeting.

Lastly, the amendments set out three additional activities required of employer and worker representatives in carrying out incident investigations.  Namely, the representatives are to assist those carrying out the investigation with gathering information relating to the investigation; analyzing the information gathered; and identifying any corrective actions necessary to prevent recurrence of similar incidents.

5. Bill 30 – Alberta Repeals and Replaces its Key OHS legislation

On December 15, 2017 Bill 30: An Act to Protect the Health and Well-being of Working Albertans, received Royal Assent. The Bill is now law, and its changes mostly take effect on June 1, 2018.  The changes are very significant.  Not only are Joint Health and Safety Committees (or Health and Safety Representatives in smaller workplaces) now the rule instead of the exception, new roles have been introduced (i.e. supervisor) and others significantly changed (i.e. prime contractor).  Bullying and harassment provisions are now explicitly set out. The reporting obligations for employers and prime contractors have also been clarified among other important changes.

These changes will have far reaching cost and operational implications for many employers in Alberta.

Bill 30 comes on the heels of the Alberta Government’s recent overhaul of the Province’s labour and employment standards legislation and its WCB system.   The Government said that a review of Alberta’s OHS system was necessary to ensure Alberta keeps up with the needs of modern workplaces, changing technology and other jurisdictions.  It had been more than 30 years since Alberta OHS legislation underwent a comprehensive review.

The key focus was on workers and their three fundamental rights:

  1. The right to know
  2. The right to participate
  3. The right to refuse dangerous work

Please see our recent publication for more detailed analysis and summary of the changes.

6.  Amendments to Nova Scotia’s OHSA-  Increasing Employer Obligations and Government Authority

Changes to Nova Scotia’s Occupational Health and Safety Act (“OHSA”), which took effect on June 12, 2017, increased employer responsibility for incident reporting, and expanded the remedial tools available to the government to impose more serious consequences for repeat offenders.

The amendments to Section 63 create a twenty-four hour reporting deadline for employers following a workplace accident or fire resulting in serious injury to an employee. Under the previous law, employers had up to seven days to provide a written notice to the Director of Occupational Health and Safety.

The new Section 63 also more clearly defines the types of injuries considered to be serious. Serious incidents include (but are not limited to) those resulting in unconsciousness; loss of sight; asphyxiation or poisoning and any injury that requires admission to the hospital. Previously, what amounted to a “serious injury” was not precisely defined.

Further, the remedial measures available to health and safety inspectors and the OHS Director have been expanded.  Specifically, the Director can now impose multi-site stop work orders (which can be referred to as Stop Operations Orders).  Such orders can be issued if the employer has repeatedly contravened the OHSA or regulations (meaning more than once within the previous three years) or has failed to comply with an order and the OHS officer believes that the same or similar conditions exist at another workplace.  The “stop operations” order must first be approved by the Executive Director of Occupational Health and Safety (or their designate) and must contain the same conditions as the original stop work order.

Another significant new power given to the Director is the ability to apply to the Supreme Court of Nova Scotia for injunctions to compel compliance with orders or to require shutdowns of operations. The use of injunctions in the health and safety context remains relatively rare, and is unique to Nova Scotia, British Columbia, Ontario (but just to enforce compliance with a stop work order), and federally-regulated employers under the Canada Labour Code.

These changes are part of Nova Scotia’s Workplace Safety Strategy; a five-year plan developed by the Workers’ Compensation Board and the Nova Scotia Department of Labour and Advanced Education with the goal of making Nova Scotia the safest place to work in Canada.

The effect of these changes for employers is that workplace procedures will have to be amended to ensure compliance with the notification obligations.  Further, to minimize the risk of a Stop Operations Order, employers would be well-advised to ensure the accuracy of all orders issued.  It may also be more prudent to challenge orders that are factually or legally wrong so that they do not add to the employer’s regulatory history and establish multiple contraventions of the OHSA or regulations that could form the basis for a Stop Operations Order.  That is also important to do in other jurisdictions including British Columbia and, now as a consequence of Bill 30, Alberta.

7. Bill 177 Makes Historic Changes to Ontario OHSA

On December 14, 2017, Bill 177 received Royal Assent and made significant changes to key provisions of the Ontario Occupational Health and Safety Act.  The changes increase the maximum fines that can be imposed on corporations (up to $1.5 million from $500,000) and individuals ($100,000 instead of $25,000), extend the limitation period for charges by incorporating a discoverability requirement (the limitation period won’t start until an inspector first becomes aware of the contravention), and by expanding the requirements to provide notifications to the Ministry of Labour regarding workplace injuries and events.

Our detailed commentary on these changes can be found in our recent OHS and Workers’ Compensation Advisor.

8. The Ontario Ministry of Labour’s Revised Interpretation of “Critical Injury”

On January 20, 2017, the Ontario Ministry of Labour published a clarification of its interpretation regarding the definition of “critical injury” under Regulation 834 of the OHSA. Specifically, the Ministry stated that its position is that the fracture of a wrist, hand, ankle or foot and fractures of multiple toes or fingers are considered critical injuries if they are of a serious nature. Similarly, the amputation of multiple fingers or toes is considered a critical injury if it is of a serious nature.

This clarification is directed at two elements of the definition of critical injury that are set out in Regulation 834.  The specific provision that the “clarification” addresses defined a critical injury to include:

  • the fracture of a leg or arm but not a finger or toe; and
  • the amputation of a leg, arm, hand or foot but not a finger or toe

This clarification of the Ministry’s position is notable because critical injuries trigger employer obligations to notify the Ministry of Labour of the injury; provide a written report to the Ministry of Labour; and preserve the scene of the incident.  The statement of the Ministry’s position provides insight into how the Ministry interprets the definition of critical injury and is an indication of the approach that Ontario employers can expect from Ministry of Labour Inspectors.

We do note that the Ministry of Labour’s interpretation is not law.  It does not represent a change in the legislated definition. Further, the Ministry’s interpretation has not yet been adjudicated by the courts or a tribunal.  Employers should be aware of the Ministry’s stated approach though and consult with counsel when determining whether a particular incident requires notification of the Ministry.

9. Drug & Alcohol Testing – The Latest Developments

The dos and don’ts of drug and alcohol testing policies came to the fore this year.  Decisions of the Supreme Court of Canada, Alberta Court of Appeal and the Ontario Superior Court of Justice demonstrated the extremely complex task that employers face in trying to regulate their workplaces from a health and safety point of view while accommodating for addiction and disability and respecting employee privacy.

Three key cases in particular have helped to clarify the scope of employer rights in regulating their workplaces: 

In ATU the union sought an interlocutory injunction to restrain the implementation of random drug and alcohol testing until a decision was reached concerning the validity of the Toronto Transit Commission’s testing policy.

The testing applied to employees in safety‑sensitive and specified management and executive positions. In contrast to previous decisions concerning random testing, the Court found that oral swabs were capable of detecting impairment from drug use.  This was a key part of the decision.

In determining whether or not to issue an injunction the Superior Court determined that the Policy was subject to the rights and freedoms guaranteed by the Charter, specifically the right to be free from unreasonable search and seizure.  However, the Court clarified that the guarantee under the Charter only protects a reasonable expectation of privacy. In order to assess what was reasonable in these circumstances, the Court considered the negative attitude of employees towards working with individuals who test positive for drugs or alcohol and the procedures and methods that the employer had chosen for random testing. The Court concluded that the methods were minimally invasive.

Further, the Court found that any harm suffered by employees by not issuing the injunction would be compensable in damages. The Court declined to grant the injunction and awarded the TTC $100,000 in costs.

Another solid decision helpful to employers was released by the Alberta Court of Appeal in Suncor.  The case represented the next chapter in the years-long battle between Suncor and Unifor, Local 707A over whether random drug and alcohol testing is a reasonable safety measure.

In 2012, Suncor’s Alberta oil sands operations announced it would begin random-testing its workers in safety‑sensitive jobs and implemented a policy that specified this.  Unifor grieved Suncor’s policy, arguing that it unreasonably infringed workers’ privacy rights. Suncor maintained that there was a pervasive issue with drug and alcohol use at its sites and that the purpose of the policy was ultimately to ensure safety. An Alberta Board of Arbitration allowed the union’s grievance, concluding that Suncor’s policy was unreasonable.  However, that decision was appealed successfully by Suncor to the Court of Queen’s Bench.  The Court of Appeal then upheld the Court of Queen’s Bench decision.

The Court of Appeal decision is not an endorsement of random drug and alcohol testing at Suncor or elsewhere.  Rather, the case confirmed that the decision-making process used by the Board of Arbitration was flawed.  The principal error found to have been made was that, in considering whether or not there was a drug and alcohol problem at Suncor’s workplace, the Board unreasonably narrowed the evidence to consider only those employees in the bargaining unit.

The issue of whether or not Suncor’s random testing program is permissible as a reasonable safety measure was sent back to be heard again by a different arbitration panel. It is unclear how long it will be before a new decision on Suncor’s testing program is made, especially as Unifor has further appealed the decision to the Supreme Court of Canada.  It was also successful in getting an injunction order from the Alberta Court of Queen’s Bench against Suncor, which has the effect of stopping Suncor from implementing its random testing policy until the matter is heard by a different arbitration panel.  As the injunction decision is itself the opposite of what happened in the TTC case, Suncor may well appeal that order.  Stay tuned for further developments in the case.

Ultimately, Suncor demonstrates that random testing may be a justified safety measure where there is evidence of a general problem with drugs and alcohol in the workplace that cannot otherwise be effectively addressed through other reasonable measures (i.e. education, training, supervision and/or other forms of testing and a sound policy). To some, the Suncor arbitration decision appeared to slam the door shut against random testing.  However, the Alberta Court of Queen’s Bench and now the Court of Appeal appear to have confirmed that the door is still open – not wide open but open.

The Suncor decision is particularly significant given that random testing may become an even more important tool for employers with the legalization of recreational marijuana on the near horizon – only about seven months away. Indeed workplaces across the country have been moving quickly to implement detailed policies addressing fitness for duty, including the effects of both legal and illegal drugs in the workplace.  These policies, while undoubtedly important for workplace safety, have been subjected to extreme scrutiny especially with respect to how they affect employee expectations of privacy and grounds of discrimination under human rights legislation.

For example, in Elk Valley the Supreme Court of Canada considered whether or not a health and safety policy regarding drugs and alcohol discriminated against an employee with a drug addiction.  Ultimately, the Court decided that the complainant’s disability (addiction) did not play a factor in the employer’s decision to dismiss him.

Elk Valley had implemented an “Alcohol, Illegal Drugs & Medication Policy” which required employees to disclose dependency and addiction issues.  If an employee failed to disclose, became involved in an accident and subsequently tested positive for drugs, their employment would be terminated. This was dubbed the “no free accident” rule.  Employees who disclosed addictions would not be subjected to repercussions but would be offered treatment.

Mr. Stewart was involved in a workplace accident and post-accident testing revealed that he had cocaine in his system. Having failed to disclose his addiction, Elk Valley terminated his employment in accordance with the Policy.  Mr. Stewart, through his union representative, filed a complaint alleging discrimination in employment on the basis of a disability (addiction) contrary to the Human Rights, Citizenship and Multiculturalism Act.

Both the Alberta Court of Appeal and the Supreme Court of Canada determined that Mr. Stewart was dismissed because he failed to comply with his employer’s policy, not because he was discriminated against.  Moreover, the courts concluded that Mr. Stewart was capable of complying with the policy and that the policy only adversely impacted him because he chose not to disclose his drug use or stop using the drug not because he was in denial about his addiction.

Taken together these cases carry important lessons for employers implementing or carrying out drug and alcohol testing policies.  Employees will not be able to unreasonably rely on the Charter or use addiction as a sword to challenge an otherwise reasonable employer policy.  However, employers must be alert to how their policies interact with and affect legitimate employee expectations to privacy and accommodation.

10. Important Sentencing Developments in Occupational Health and Safety Matters

In the past year there have been a number of important decisions on sentencing for violations of OHS legislation across Canada. These decisions have addressed sentencing principles including the imposition of jail sentences. Furthermore, there have been developments in sentencing for criminal negligence offences arising from workplace accidents.  The developments have been notable and stand to shape and influence sentencing in future matters.

The first matter to touch on this is the decision in Ontario (Ministry of Labour) v. New Mex Canada Inc., (2017 ONCJ 626 (CanLII)).  This is a defence appeal against sentence following guilty pleas by New Mex and two of its directors to charges under the Ontario Occupational Health and Safety Act.  The charges were laid following a fatal incident at New Mex’s warehouse. The charges included failing to provide information, instruction and supervision and failing to ensure that a worker was protected from falling.  The charges against the two directors were for failing, in their capacity as a director, to take all reasonable care to ensure that New Mex complied with occupational health and safety legislation.

The incident leading to the charges involved an employee, who was known to have seizures, fell 12 feet to his death from a raised platform on an order picker.

 After New Mex and the directors pleaded guilty to their respective charges, a sentencing hearing was held in which the Crown and defendants made separate arguments to support their view of the appropriate penalties in the case.  After hearing the arguments, the Justice of the Peace hearing the matter fined the company $125,000 on each of its two charges, thereby imposing a total fine of $250,000 (not including the 25% surcharge). Each director was sentenced to a total period of jail (incarceration) of 25 days, to be served on an intermittent basis and a 12-month period of probation. New Mex and both directors appealed their sentences, though we note that the directors did not appeal the probation.

The appeal court allowed the appeal and varied the sentences. It found that the sentences were significantly outside the range imposed by courts for similar offences and offenders.

Of particular concern was the imposition of incarceration for the directors.  The appeal court clarified that incarceration is more appropriate for defendants with prior convictions for whom fines have not had a deterrent effect.  While noting that the directors demonstrated a lack of care for their employees, the appeal court reiterated that regulatory offences are concerned with attaining public policy objectives not punishing moral blame worthiness.  Ultimately, the appeal court vacated the jail sentences that were imposed on the directors and replaced them with fines of $7,500 on each charge meaning each director was fined $15,000 (not including the surcharge).  The penalty against the corporation was reduced to a total fine of $50,000.

The Crown is seeking to appeal the decision to the Ontario Court of Appeal.  It is not clear if that court will agree to hear an appeal but the final word on this case may not yet have been written.  In the interim, the case provides welcome clarification on when custodial sentences are appropriate and, in reducing the penalty imposed on New Mex, provides a helpful decision on the sentencing range for smaller employers convicted of offences involving a fatality.

The decision in New Mex can be compared with recent cases from Alberta and Nova Scotia in which jail sentences were imposed for violations of OHS statutes.  In May 2017, a Nova Scotia court sentenced Joseph Isnor to a four‑month jail term after he pleaded guilty to an OHS violation.  The charge related to failing to ensure workers were protected from falling when working on a roof but it does not appear that an accident or injury resulted in the charge.  However, Mr. Isnor had numerous prior convictions for the same or similar offences and had already been sentenced to jail for them once – the first custodial penalty imposed under the Nova Scotia Occupational Health and Safety Act.  The Crown believes the jail sentence was imposed by the court because Mr. Isnor was deliberately choosing to put people at risk.  As such, the Isnor case differs from New Mex, in that a jail term was imposed on an individual with a long list of prior convictions that had not been deterred by earlier penalties imposed on him.

In Alberta though, a recent decision imposed a four month jail term on a first‑time offender after he pled guilty to an offence arising from a fatal accident.  The accident occurred during the connection of a sewer line to a house under construction in Edmonton.  As part of that project, Sukhwinder Singh Nagra used a backhoe to dig a deep excavation.  He then directed a 55-year-old worker, who was receiving provincial benefits for a permanent disability (and had been supported by the Bissell Centre, a homeless and outreach shelter) and had no experience or safety training, to enter the excavation.  The excavation collapsed and the worker was killed.

Mr. Nagra was charged with eight offences under the Occupational Health and Safety Act.  He pled guilty to a charge under the general duty provision for failing, as a worker, to take reasonable care to protect the health and safety of other workers.  The facts presented during the guilty plea indicated that the excavation had not been shored and its edges had not been sloped back at all.  In the sentencing hearing that followed his guilty plea, the Crown sought a fine of $40,000 against Mr. Nagra.  However, the court imposed the jail sentence because it believed that a fine was insufficient as the deceased worker was “particularly vulnerable”.

The Isnor and Nagra cases represent the lengthiest jail sentences imposed in Canada for violations of OHS legislation.  They also represent rare or exceptional cases in which jail terms were imposed.  However, they confirm that the courts will impose jail terms where lesser penalties have not deterred the defendant or where the court believes a monetary penalty is insufficient in the circumstances.

11. Criminal Negligence Update

We continue to see an increasing use of the criminal law power to address serious workplace incidents.  2017 saw the imposition of record-breaking penalties and decisions that will help shape the law in this area.

In August, the highest penalty ever imposed against a corporation convicted of criminal negligence, after the Bill C-45 amendments, was imposed on Detour Gold Corporation following its guilty plea to one charge of criminal negligence causing death.  The charge arose after a June 2015 incident in which a worker died as a result of acute cyanide intoxication through skin absorption.  The company was ordered to pay a fine of $1.4 million (plus a 30% surcharge) and a restitution payment to the deceased’s family of approximately $800,000 representing lost income through retirement.

The penalty imposed in the case is a meaningful addition to the relatively few sentencing decisions that currently exist.  It can be contrasted with the $750,000 penalty that was imposed on Metron Construction after it pled guilty to four charges of criminal negligence causing death after four workers were killed on Christmas Eve 2009 when the swing stage they were on collapsed.  Metron was a much smaller company and its matter involved greater loss of life.  Detour is a successful and much larger corporation.

We should also be reminded that the penalty imposed for criminal negligence can be heavily influenced by the particular circumstances of the case.  In R. v. Stave Lake Quarries Inc., a $100,000 fine was imposed on a British Columbia company after a guilty plea to a charge of criminal negligence causing death.  The charge arose after a 22-year-old worker was killed after the dump truck she was operating toppled over on her while she was trying to stop its uncontrolled descent down a hill.

The accident happened in 2007 but charges were not laid until 2015.  The fine imposed was a joint recommendation of the Crown and defence.  It was accepted by the court and appears to have been heavily influenced by the potential remedy, a stay of proceedings, which Stave Lake Quarries could have sought because of the lengthy delay in laying the charges.  Indeed, in accepting the joint submission, the court noted that there were Charter issues and that the guilt of Stave Lake Quarries was not a certainty.  A joint submission is inherently the product of negotiation between the Crown and defence.  That said, it is reasonable to speculate  that the penalty that may have been sought or imposed, if the delay in bringing the charges had not occurred, would have been higher if the risk of the charges being stayed altogether was not present.

In addition to sentencing developments, we also saw advances in the jurisprudence about how criminal negligence is evaluated or determined.  In R. v. Wood, the Ontario Superior Court of Justice determined that Mr. Wood, who was a professional engineer, was not guilty of criminal negligence in respect of the June 2012 collapse of part of the Algo Centre Mall in Elliott Lake, Ontario.  That collapse resulted in the death of two people and injuries to a number of others.  The collapse occurred because structural beams were compromised due to water infiltration.

In finding that Mr. Wood was not guilty of criminal negligence, the court noted that, although Mr. Wood’s inspections of the mall may not have been as robust as they could have been, numerous other professionals also missed or underestimated the extent of water infiltration into the mall.  It also noted that, at the time of Mr. Wood’s inspections (in 2009 and 2012), there was no standard mandating how an engineer was to perform such an inspection.  Finally, the court accepted evidence that, though an engineer ought to have been aware of the extent of the water infiltration, it was conceivable that, in exercising his or her own judgment (described as poor judgment), an engineer could still determine that the infiltration was not a safety hazard.

The court confirmed that proof of mere negligence or the departure from an expected standard is insufficient to establish criminal negligence.  The Crown must also prove that there was wanton and reckless disregard for the lives or safety of others.  The court concluded that the Crown had failed to prove, beyond a reasonable doubt, that Mr. Wood had acted in a way that showed “unrestrained disregard for the consequences” of his behaviour.

The decision confirms that an error in judgment and departures from expected standards do not constitute criminal negligence unless the Crown establishes wanton and reckless disregard for life or safety.  It follows, therefore, that the failure to meet the requirements of OHS legislation, which can represent reasonable steps to be taken to prevent bodily harm, is unlikely to amount to criminal negligence unless there is proof of a marked departure establishing disregard for the consequences that could follow.

12. Due Diligence Commentary in R. v. The Royal Canadian Mounted Police

The Royal Canadian Mounted Police (“RCMP”) was convicted after a trial for failing to comply with its general Canada Labour Code (CLC) duty to ensure the health and safety of its employees (officers on the front line) with appropriate “use of force” equipment and training on the equipment, to protect them from threats from “active shooters”.  The RCMP case involved a prosecution arising out of the tragic murder of three officers and the injury of others in Moncton, New Brunswick, on June 4, 2014.

The RCMP was charged with several offences under Part II of the CLC, specifically section 124, which requires employers to comply with a general duty to “ensure that the health and safety at work of every person employed by the employer is protected”.

While no express regulations or provisions exist in the CLC relating to use of force equipment and training, the New Brunswick Provincial Court found the RCMP guilty of failing to provide its front-line members with appropriate use of force equipment and related user training when responding to an active threat or active shooter event in an open environment.  Although accepted industry standards at the time of the incident did not require provision of the specific “use of force“ equipment alleged to be appropriate, patrol carbines and full body armour, the court found that the standard of care required consideration of other factors such as the seriousness of the potential harm, and likelihood the harm.

Evidence presented over the course of the 24-day hearing revealed that issues with the RCMP’s current weaponry were identified in 2006 and 2007 following inquiries and investigations into officer shootings in Alberta and Saskatchewan in 2005 and 2006. This triggered investigation into the adequacy of the current equipment and the implementation of new, more appropriate equipment.

From 2007 to 2013, the updating of use of force equipment moved through the research, approval and procurement phases. Approval for the equipment in question occurred in 2011. Research had occurred, other issues relating to the use of force equipment, specifically Tasers, arose in the meantime, additional studies proceeded, and there were budgetary issues. Full implementation had not yet occurred at the time of the incident in 2014. Patrol carbines had been provided to certain detachments assessed as having the most need. By June 2014 patrol carbine training was just being undertaken at CFB Gagetown near Moncton and officers were just being advised by email of available body armour.

On the first count of failing to provide appropriate use of force equipment and related training, the Court found that RCMP management should have been aware that the weaponry in use was insufficient to ensure the safety of members engaged with heavily armed assailants. This should have been clear by 2007 and if not then, at the very least management should have been aware of the serious safety risk members faced by 2010 or 2011.   The Court found that due diligence did not require superhuman effort, but it did require a plan that was properly prioritized, resourced, and executed to address known risks to health and safety of members. The rollout was described as lacking in any sense of urgency, apparently due to a focus on the odds of such an event happening, rather than the duty to ensure health and safety of members should it happen.

An important part of the due diligence defence put forth by the RCMP was that the magnitude of the risk must be considered with its frequency. The Court rejected that argument, commenting that “when the risk to the employee is great, due diligence requires a robust and timely response”. The infrequency of the risk did not mean that a “robust and timely” response was not required.

Ultimately, the Court concluded that the approach taken by the RCMP was focused on “the odds of an event such as the Moncton murders ever happening, rather than on their duty to ensure the health and safety of its members should it happen…”.  As a result, it found that due diligence had not been established and determined that the RCMP was guilty of failing to provide members with appropriate use of force equipment.

The RCMP was found not guilty of another count relating to the alleged failure to provide adequate training to both members and supervisory personnel on responding to an active threat or an active shooter event in an open environment, because there was no delay in training being provided once new measures were in place.

The RCMP may be subjected to a fine of up to $1,000,000 under the CLC for this offence.  A sentencing hearing was held November 30, 2017.  No decision had been imposed at the time of this writing.

This case will no doubt receive detailed scrutiny by Canadian police services seeking to determine appropriate use of force measures, procedures, protective equipment and training for members in an environment tragically involving ever-more frequent active shooter events. It also serves as a reminder to all employers that once a serious health and safety risk has been identified, a “robust and timely” response to mitigate the risk is required; also, that delays in addressing that risk can result in some very serious consequences.

13. Developments in Criminal Negligence Update

The Workers’ Compensation Board (WCB) of Prince Edward Island awarded benefits to a woman whose husband died of a heart attack after experiencing bullying at work. The benefits awarded included funeral costs, death benefits and monthly survivor benefits based on a percentage of the deceased’s pensionable salary.

In submissions to the WCB, it was alleged that the worker’s supervisor made “demeaning, conflictual, rude and hostile personal comments, most of which were in the presence of co-workers and clients”. Medical records submitted to the WCB established that the deceased did not have a pre-existing heart condition, but he was treated for a number of concerns during a period in which he was subjected to significant stress at work.

To the extent that this case identifies that benefits may be awarded if an injury or illness arises from workplace bullying, this should remind employers to ensure that their workplace harassment and workplace violence programs have been effectively implemented.

In Ontario there hasn’t been a legal development per se but it appears that the Ministry of Labour is now enforcing the specific requirements of the Bill 132 amendments, which took effect on September 8, 2016.  Those amendments made significant changes to the workplace harassment provisions of the Ontario Occupational Health and Safety Act.  Notably, the amendments included a requirement that an employer conduct an investigation that is appropriate in the circumstances in response to a complaint or incident of workplace harassment.  The Ministry is now enforcing that requirement and is reviewing workplace harassment investigations.  Inspectors are attending and requiring employers to provide all of the materials relating to an investigation in order that they can be reviewed under the auspices of ensuring that an investigation, appropriate in the circumstances, has been carried out.  This has included not only the investigation report, but all notes made by the investigator(s), all witness statements, and all documents reviewed by the investigator(s).

Employers may well be concerned that the kind of information that is required to be produced will not only permit the Ministry to review the investigation process but also the determinations that have been made – something the Ministry has no authority to review.

Our experience has also been that certain Inspectors are requiring employers to detail the specific discipline that has been imposed on perpetrators of workplace harassment to the complainant.  This may cause employers concern because it goes against the traditional confidentiality that is accorded to discipline as that topic is normally considered to be an issue between the involved individual and the employer. Similar inspections have been carried out in Alberta, even before Bill 30 became law and before it takes effect.  They are likely to be more prevalent now that they are explicitly permitted by law.

There are numerous reasons why an employer would not wish to detail the specific discipline imposed on an employee.  In addition to the information being traditionally confidential, the discipline imposed may be the product of a progressive discipline policy such that the actual penalty imposed is not entirely the product of the workplace harassment that was perpetrated.

In light of these ongoing developments, employers should plan their response to these issues before they arise.  Close consultation with counsel is a recommended risk management strategy and a prudent way of developing a response that can advance the employer’s concerns but also balance them against the enforcement risks that can arise if a safety regulator believes that there has not been compliance with a requirement or order.

A tumultuous year it was and another one is expected on its heels as the changes made by legislatures and courts alike are implemented by employers.   Stay tuned for further updates and resources.

*  The authors gratefully acknowledge the assistance and contribution of Krista Antonio, a Student-at-Law in the firm’s Toronto office.

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