OHS Update and Risk Management

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1 Topics to be Covered OHS Update and Risk Management Recent Developments in Health & Safety Law & Enforcement Norm Keith, Partner Deanah Shelly, Associate Statistics Orders, Convictions, Fines Legislation Who can conduct an internal investigation and navigating the dissemination of the findings 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 February 7, Ontario Statistics Ontario Statistics vs 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 3 4 Ontario Statistics vs The number of inspections decreased From a total of 73,204 to 70, ,865 proactive visits 30,339 reactive visits ,308 proactive visits 29,296 reactive visits 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 5 6

2 Legislation: Ontario 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 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)] 7 8 Legislation: Federal 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 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 9 10 Ontario Legislation 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 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 11 12

3 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 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 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. 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) 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) 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

4 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 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 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 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 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 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 23 24

5 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. 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 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 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 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 Risk Management & OHS Due Diligence Steps for PREVENTION 7 1. PRIORITY by senior management to worker safety 2. RISK identification and assessment 3. ELIMINATE or control workplace hazards 4. VERIFY OHS programs and safe work procedures 5. ENGAGE managers and workers in OHS training 6. NOTE and document OHS program compliance 7. TOTAL OHS management system auditing 29 30

6 Norm Keith Partner nkeith@fasken.com Deanah Shelly Associate dshelly@fasken.com 31 32