Canadian Occupational Safety

March/April 2020

Canadian Occupational Safety (COS) magazine is the premier workplace health and safety publication in Canada. We cover a wide range of topics ranging from office to heavy industry, and from general safety management to specific workplace hazards.

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Page 19 of 35

F E A T U R E 20 ADMINISTRATIVE MONETARY PENALTIES ON THE RISE On Jan. 23, 2019, the Forensic Psychiatric Services Commission in Port Coquitlam, B.C. was fined $646,302 by WorkSafeBC for two separate incidents of violence, both where patients with histories of violence attacked and injured medical staff. On June 6, 2019, Canadian Pacific Railway was fined $97,916 by Transport Canada for an incident near Bennett, Alta. where employees entered protected track limits without the authority of the named foreman in effect. On July 12, 2019, ExxonMobil Canada was issued a $40,000 penalty by the Canada-Nova Scotia Offshore Petroleum Board for an incident in which five workers on a drilling rig were almost struck and injured by a chain with swivel and shackle, weighing over 100 kilograms, which fell nearly 18 metres during a lifting operation offshore. employer, so they are outside that protection from the Workers' Compensation Act and, therefore, can be held personally liable for any workplace incidents that may occur. "It's like when an insurance company pays out and then they look to see who else can maybe contribute. 'We have paid for the insurer, who can we find our money from?' The WCB has something similar, says Cristina Wendel, a partner at Dentons in Edmonton. "When the WCB has paid out some benefits, it has the ability to bring a claim against parties who aren't covered, so one you often see are directors because they don't have automatic WCB coverage." The concerning thing that directors should be aware of is the court said directors that don't have personal WCB coverage are going to be exposed to personal liability for workplace incidents, says Wendel. However, there are many factors and tests that need to be applied, so not every director is going to be held personally liable, depending on the circumstances. To prevent this, directors can purchase optional WCB coverage and avoid being sued. "It's something I would say directors should really be looking at under the workers' compensation scheme. They should look to get that. Find out the cost and ask yourself if the cost outweighs the benefits and what are the risks?... In this case, the risks are pretty significant, particularly for directors who are more hands-on," says Wendel, noting that Stewart was involved in both the supervision and the actual installation of the staircase. International Brotherhood of Electrical Workers, Local 1620 v. Lower Churchill Transmission Construction Employers' Association Inc. Case summary: A worker in Newfoundland and Labrador was authorized to take medical cannabis for his osteoarthritis and Crohn's disease. His employer denied him employment on a project in Labrador because his position was safety sensitive and the use of fit sentence. If there is a silver lining, it's the fact that the court clarified and confirmed that an individual's inability to pay a significant monetary penalty is not a reason to give them a jail sentence, Warning says. "If a court were to look at someone and say, 'Well, you're a person of relatively modest means. To impose a penalty in the thousands of dollars on you would be heaping financial misery on you, so I'm going to just send you to jail.' That's not the analysis the court is supposed to engage in. Indeed, the court says it's a legal error to do so," he explains. Warning adds that this is going to be an influential decision for quite some time. "It is perhaps the first detailed consideration of sentencing for regulatory matters the Court of Appeal has engaged in for the better of 30 years." Hall v. Stewart Case summary: The Workers' Compensation Board (WCB) brought a subrogated action against Doug Stewart, the director of an Edmonton construction company, in the name of several workers who were injured as a result of the collapse of a staircase on a project. Ultimately, the Alberta Court of Appeal ruled on March 18, 2019 that the question of whether Stewart could be personally liable for the claimants' injuries should be determined at trial. Issue at hand: The question of directors' personal liability for injuries sustained in a workplace incident. Commentary: Directors are not considered a worker or an cannabis created a risk of impairment on the job site. The worker's union filed a grievance. An arbitrator said that the inability to measure impairment (based on currently available technology and resources) and manage the risk constituted undue hardship for the employer. The case went to the Supreme Court of Newfoundland and Labrador, which ultimately agreed with the arbitrator in its decision on Feb. 22, 2019. Issue at hand: The duty to accommodate a worker who is consuming medically authorized cannabis while working in a safety- sensitive role. Commentary: Brian Johnston, a partner at Stewart McKelvey in Halifax, says this is "one of the first and powerful decisions" dealing with an employer's rights around this issue. "We haven't yet seen a lot of these cases contested. This one was — at arbitration before a highly regarded arbitrator between an employer and a union who clearly put a lot of effort into the case with very good expert and other evidence," he says. Unlike alcohol, cannabis impairment is very individualized and it is extremely difficult to assess whether a person is impaired. Both the arbitrator and the judge went through rigorous reviews of the evidence and came to a very sensible and appropriate conclusion, Johnston says. He adds it's crucial that employees in safety-sensitive positions disclose any use of potentially impairing substances to their employer so that the organization can assess whether or not that authorized medication will prevent the employee from safely and productively doing their job. "Some employers may be tempted with the comfort of, 'Well, gee, the employee has this medical cannabis authorization, so they are good to go.' But, in fact, they have to go to that next step and say, 'This is a safety-sensitive position. What are the potential consequences? And if there is doubt, if there is uncertainty about the safety or productivity of the employee in that role as a result of that, that can be considered as undue hardship," Johnston says. Since the legalization of cannabis, employment lawyers have experienced a flurry of activity from their clients, which saw an additional uptick with the legalization of edibles in October 2019. "Edibles increase the challenges because there's no smell associated with it like you normally would have with smoking," Wendel says. "Employees can be consuming edibles a lot more discreetly, making it a lot harder for employers to recognize some of the signs." The effects of ingesting cannabis last longer compared to when the substance is smoked or vaped — with residual effects lasting up to 24 hours. Wendel regularly reminds her employer clients that just because cannabis is legal doesn't mean it's OK to use at work. Some of her clients in safety-sensitive environments have restrictions in place that ban the use of cannabis within a certain time frame before coming to work and can range from 24 hours to 28 days. These expectations should be clearly laid out in company policies. Keith would like to see more government involvement in this issue by amending occupational health and safety legislation and regulations to explicitly state that a worker cannot come to work under the influence of drugs or alcohol — especially in the construction sector. As it stands now, only offshore oil and gas, commercial scuba diving and the mining regulations in Ontario include this explicit requirement. "When you see a tower crane, that guy could literally just have a joint and go to work… There's nothing that actually says he has broken the safety rules, which is insane," Keith says. "It essentially puts all the responsibility on the employer." Harpell v. Lawtons Drug Store Case summary: Annette Harpell, an employee at Lawtons Drug Store in Antigonish, N.S., brought a complaint to the Nova Scotia Labour Board that she was suffering from repeated harassment and psychological violence at her job. Lawtons responded by pointing out that harassment and bullying was not covered under the province's occupational health and safety legislation. The labour board agreed and dismissed Harpell's complaint. Issue at hand: Legal obligation to protect workers from harassment and bullying. "When the WCB has paid out some benefits, it has the ability to bring a claim against parties who aren't covered, so one you often see are directors." Cristina Wendel, Dentons

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