Ontario Court Clarifies Employers’ Incident Reporting Obligations

Although executives with the Blue Mountain Resort are unhappy and plan to appeal the recent ruling, the Ontario Divisional Court has issued a ruling clarifiying Section 51 of Ontario’s Occupational Health and Safety Act, which outlines the duties of an employer in all critical injury and fatality incidents.

According to Section 51, whenever a person is killed or critically injured from any cause at any workplace, the employer must notify an MoL inspector, as well as all other workplace parties. The employer must then secure the scene until an inspector clears the site, and send the ministry a written report on the incident within 48 hours.

But in the incident that led to the ruling, which occurred in December 2007, a resort guest drowned in an unsupervised pool at Blue Mountain, and the incident was never reported to the MoL. They only learned of it when a Ministry inspector conducted a field visit to the resort in March 2008. When the inspector found out, he wrote an order directing the resort to formally notify the MoL.

Justice Wailan Low, writing for the court, followed an earlier ruling from the Ontario Labour Relations Board (OLRB), disregarding the resort’s argument that notification was unnecessary because the pool was not a workplace, per se, at the time of the incident. The resort had argued that the hazard involved in the guest’s drowning while apparently performing exercises underwater wasn’t likely to affect a worker, and they noted that whenever a guest was involved in a serious incident that could also have affected a worker, Blue Mountain had always been quick to notify the MoL.

In dismissing their argument, Justice Low noted that the OLRB “ought to have given recognition to the fact that [their] facilities are dual use premises – they are both recreational premises and a workplace, and the use may change depending on the circumstances.”

According to legal experts, the court ruling may impact a large number of Ontario workplaces, because it requires all employers to report all fatal and critical injuries that occur at a workplace, even if worker health and safety is in no way involved. The MoL is likely to see a much greater number of notifications from employers from industries such as health care, municipal, retail and other service sectors in which workers interact with the public.

The MoL considers the court’s decision to be consistent with their policy on enforcement of these requirements. They consider the requirement to be a reasonable expectation and in no way burdensome for employers.

The Ontario Ministry of Labour (MoL) issued nine work orders, including two work-stoppage orders, after two miners died underground at Vale’s Stobie mine in Sudbury, Ontario. According to the MoL, the work orders were issued to secure the mine and to make sure workers aren’t exposed to any immediate danger.

Some of the orders dealt with excessive water around ore passes, although the MoL was hesitant to cite that as the actual cause of the accident. Inspectors are investigating the incident to determine if health and safety regulations were followed, and to make sure the workplace is safe.

The two workers, Jason Chenier, 35, and Jordan Fram, 26, both of Sudbury, were working 900 metres underground in an ore pass, a vertical opening where ore is dropped to a lower level for handling, when they were suddenly overtaken by loose rock known as ”muck.”

Coincidentally, just a few days before the accident, Vale was awarded the John T. Ryan Trophy for the sixth time in seven years. The award, given to Canada’s safest metal mine, was presented to them because two of the company’s mines in Thompson, Manitoba, T1 and Birchtree, were tied for the lowest reportable injury frequency per 200,000 work hours. The award is given by the Canadian Institute of Mining every year.

Vale hasn’t set a date for resuming full production at the mine, but they have told workers they can stay home if they want until then, and they’re making counseling available to those who request it. Those who report for work will be provided with other jobs in the meantime.

Last week, the Ontario Ministry of Labour (MoL) issued eight orders to construction company Teranorth Construction & Engineering Limited, based in Sudbury, after a worker was fatally injured in an accident that occurred on June 24.

At the time of the accident, the worker was operating an elevating work platform, or “scissor lift,” below a bridge structure that was under construction as part of a highway expansion project. For some reason, the platform “flipped over,” causing injuries that led to his death. Some witnesses suggested that the platform may have done so because it had been placed on “very uneven ground,” but investigations are ongoing.

The MoL issued a total of eight orders under the provincial Occupational Health & Safety Act to Teranorth, including:
o An order that Teranorth “ensure that the health and safety of workers on a project is protected;”
o An order that no further work was to be conducted with the two Genie lifts presently on the MacKenzie Bridge site until further notice from the MoL;
o An order that the owner of one Genie lift shall provide copies of maintenance records to the ministry;
o An order that Teranorth provide training records related to the elevating work platform that was being used at the time of the accident;
o An order that Teranorth provide training records related to the worker’s fall protection system.
o An order to ensure that the area beneath the bridge structure is undisturbed until advised by the ministry;
o An order that Teranorth take every precaution reasonable in the circumstances for the protection of a worker when working on the underside of the bridge structure while using an elevated work platform on sloped terrain, and:
o An order requiring Teranorth to provide a plan detailing how observations and sealing work will be carried out to the underside of the structure during ductal placement.

Ontario’s Labour Minister used an appearance last week at the Chrysler Assembly Plant in Windsor to announce that the Ministry will continue to send health and safety inspectors into workplaces all over the province as part of a four-month safety blitz with a focus on protecting young workers. The blitz officially kicked off May 1, but it will continue all summer.

He chose the Chrysler plant for his announcement because of its excellent safety record. The plant employs 4,500 people on three shifts, making 1,475 minivans each day. That number includes nearly 400 younger summer replacement workers who, according to statistics, are nearly four times more likely than other workers to be injured on the job, often within their first month of employment. The Chrysler plant has defied those odds, however.

This latest initiative comes as a large number of high school and post-secondary students hit the summer job market, often performing dangerous work for which many may not be prepared. Regardless of their previous experience, or lack of, employers are obligated to protect them.

One key focus of the blitz will be to inform young workers that they have the right to training, the right to safety and hazard awareness, and the right to turn down unsafe work.

The ministry has charged 400 inspectors with conducting this safety blitz and enforcing the Occupational Health and Safety Act. In 2009, 7,527 young people were hurt on the job, with four dying from their injuries. Though that number was down nearly 30% from the previous year, the Ministry feels there is a lot more to do to protect them. Between 2004 and 2009, 466 young workers were critically injured on the job, with 27 of them dying as a result.

A Concord, Ontario-based curtain wall assembler, Zimmcor, Inc., was fined $50,000 last week for two violations of the Occupational Health and Safety Act, as a result of an accident in which a worker was seriously injured.

Workers were attempting to move a cart holding several 22-foot-long aluminum extrusions on January 23, 2009, after that cart became wedged between several others. One worker was positioned between the cart they were trying to move and another cart, and as he pushed on the wedged cart, other workers were pulling. As they did so, the cart tipped over, causing the load to fall on and fracture the pushing worker’s leg. When a co-worker tried to limit the damage by attempting to remove adjacent bundles of extrusions with a forklift, the forklift accidentally touched the cart and more extrusions fell on the injured worker’s leg.

An investigation by the Ministry of Labour determined that the extrusions were not properly balanced or secured on the cart. An inspector examined the workplace on January 26, 2009, and also observed that shields on a double-bladed chop saw were tied with metal holdbacks, which rendered the shields ineffective as a means of protecting workers from the hazards posed by the saw’s moving blades.

Zimmcor Inc. pleaded guilty to failing to ensure that the load being transported, placed or stored would not tip, collapse or fall, and to ensure that the load could be removed or withdrawn without endangering the worker. The company also pleaded guilty to failing to take the reasonable precaution of ensuring that the shields on a double-bladed chop saw were not rendered ineffective by metal holdbacks.

As a result of these guilty pleas, Zimmcor Inc. was fined $45,000 for the count that led to the worker’s injury, and $5,000 for the charge related to the chop saw. The fine was imposed by Justice of the Peace Malik Asad, who also imposed a 25% victim fine surcharge, as required by the Provincial Offences Act. The surcharge is credited to a special provincial government fund to assist victims of crime.

Ontario uniform supplier G&K Services Canada Inc. was fined $60,000 last week for a violation of the Occupational Health and Safety Act after an accident that injured a worker was injured.

The company operates an industrial laundry service in Windsor. As part of the laundry process, clothing is placed into a bag with a drawstring at the bottom. The bag moves vertically along a conveyor, until it hits a sensor at the end, whereupon it is hoisted up into the air.

At the time of the accident, on September 24, 2009, a worker noticed that the drawstring on one of the bags was untied, and he attempted to tie the bag while walking with it along the conveyor. At the time the bag hit the sensor, the worker’s thumb was still entangled in the bag’s drawstring. The bag was then hoisted aloft. As a result, the worker was lifted into the air with the bag, and his thumb was amputated by the force of the moving bag.

A Ministry of Labour investigation found that the emergency stop button on the bag hoist had been placed too high up for a worker to reach in an emergency. G&K Services Canada Inc. pleaded guilty to failing to ensure that an emergency stop button was located within easy reach of the machine operator.

A $60,000 fine was imposed by Justice of the Peace Robert Gay, who also imposed a 25% victim fine surcharge, as required by the Provincial Offences Act. The surcharge is credited to a special provincial government fund to assist victims of crime.

Springside Paving & Construction Limited in Concord, Ontario was assessed a $100,000 fine for an accident that led to the death of a worker on July 13, 2009, after the company pleaded guilty to a violation of Ontario’s Regulations for Construction Projects last month. According to a statement from Ontario’s Ministry of Labour, the company failed, as an employer, to ensure that a signaller assisted a vehicle operator if his view of the intended path of travel is obstructed or if a person may be endangered.

The incident that led to the fine occurred on July 13, 2009, as three workers were replacing an asphalt driveway and re-leveling an interlocking walkway at a residential property in Vaughan, north of Toronto. After disconnecting a trailer from a truck, one worker boarded the vehicle and slowly began reversing the truck toward the work site, and the vehicle ran over and killed another worker.

The company initially faced four charges, but three were dropped when the company pleaded guilty.

According to the MoL, between 2005-2009 a total of 40 workers died after being struck by construction equipment or the material they were handling, the MoL reports. Last summer, the MoL kicked off an enforcement campaign involving construction projects. During that campaign, inspectors issued 2,728 orders, 14.4% of which related to equipment, material handling and general storage. The campaign also led to 158 orders citing equipment maintenance or operation problems, and 76 orders noted improper handling or storage.

In the wake of a report by the Expert Panel on Occupational Health and Safety (OHS), the Ontario Ministry of Labour (MOL) is considering amending both the Occupational Health & Safety Act and Workplace Safety and Insurance Act, in order to implement the recommended move of prevention functions to the MOL from the Workplace Safety and Insurance Board (WSIB).

For decades, the WSIB has had the legal authority to set up and fund safety associations, and over the last 20 years or so, they have taken steps to coordinate their activities and keep their expenses under control. The latest move to that effect came last year, when the WSIB took much greater control over the safety associations than ever before, by bringing them all together into four ‘divisions’ with one overall policy direction. However, they are still struggling to get the associations to cooperate and coordinate on issues such as regulatory functions, enforcement and prevention. Other provinces have created single agencies to cover enforcement, compensation and prevention.

The proposed regulatory amendments will allow the MOL to establish itself as the chief prevention agency, rather than the WSIB; to appoint a chief prevention officer; and to create a new prevention council charged with representing labour, employers and safety experts. Once all of this has been established, the MOL will begin implementing other Expert Panel recommendations, involving more amendments to the OHS Act.

Springside Paving & Construction Limited in Concord, Ontario was assessed a $100,000 fine for an accident that led to the death of a worker on July 13, 2009, after the company pleaded guilty to a violation of Ontario’s Regulations for Construction Projects last month. According to a statement from Ontario’s Ministry of Labour, the company failed, as an employer, to ensure that a signaller assisted a vehicle operator if his view of the intended path of travel is obstructed or if a person may be endangered.

The incident that led to the fine occurred on July 13, 2009, as three workers were replacing an asphalt driveway and re-leveling an interlocking walkway at a residential property in Vaughan, north of Toronto. After disconnecting a trailer from a truck, one worker boarded the vehicle and slowly began reversing the truck toward the work site, and the vehicle ran over and killed another worker.

The company initially faced four charges, but three were dropped when the company pleaded guilty.

According to the MoL, between 2005-2009 a total of 40 workers died after being struck by construction equipment or the material they were handling, the MoL reports. Last summer, the MoL kicked off an enforcement campaign involving construction projects. During that campaign, inspectors issued 2,728 orders, 14.4% of which related to equipment, material handling and general storage. The campaign also led to 158 orders citing equipment maintenance or operation problems, and 76 orders noted improper handling or storage.

In the wake of a report by the Expert Panel on Occupational Health and Safety (OHS), the Ontario Ministry of Labour (MOL) is considering amending both the Occupational Health & Safety Act and Workplace Safety and Insurance Act, in order to implement the recommended move of prevention functions to the MOL from the Workplace Safety and Insurance Board (WSIB).

For decades, the WSIB has had the legal authority to set up and fund safety associations, and over the last 20 years or so, they have taken steps to coordinate their activities and keep their expenses under control.  The latest move to that effect came last year, when the WSIB took much greater control over the safety associations than ever before,  by bringing them all together into four ‘divisions’ with one overall policy direction. However, they are still struggling to get the associations to cooperate and coordinate on issues such as regulatory functions, enforcement and prevention. Other provinces have created single agencies to cover enforcement, compensation and prevention.

The proposed regulatory amendments will allow the MOL to establish itself as the chief prevention agency, rather than the WSIB; to appoint a chief prevention officer; and to create a new prevention council charged with representing labour, employers and safety experts. Once all of this has been established, the MOL will begin implementing other Expert Panel recommendations, involving more amendments to the OHS Act.