T -45 C :

from the editors of
C-45: Answers to Your Frequently
Asked Questions
Volume 7 - Issue 10
Answers to some of the most frequently
asked questions about criminal negligence
and workplace safety.
he last two years have seen a sudden spate of criminal negligence
prosecutions brought against companies and individuals under the law still
unofficially referred to by its original bill number, C-45. So C-45 is now
back in the front of the minds of many safety coordinators, who are once again
Key Dates in the History of C-45 (p. 4)
filled with questions about C-45. So here’s an overview of the changes made by
C-45 At a Glance (p. 5)
C-45, answers to 10 of the most frequently asked questions (FAQs) about them
C-45 Sentencing Factors (p. 6)
Incident Response
Make sure you have enough people qualified
to provide first aid in your workplace.
and a timeline of significant C-45 enforcement developments that have occurred
since the law took effect in March 2004.
Know the Laws (p. 16 & 17)
Interview with Yvonne O'Reilly 7
Meet the Conference Chair of the
OHS Summit.
“who undertakes, or has the authority, to direct how another person does work
OHS Month in Review
Case of the Month
Take an Inventory of the Hazardous
Substances in Your Workplace
ON Company Can Fire Worker for Video
of Dangerous Workplace Prank
Why Your OHS & Wellness Programs
Should Work Together
Dos & Don'ts
Expressly Ban Weapons from Your Workplace
Don't Ignore Workers' Concerns about
Co-Worker's Behaviour
The Insider's goal is to help safety
professionals do their jobs better and
more easily. So tell us what you need!
For example, are you unsure what the
OHS laws require you to do for a certain
hazard? Need help training supervisors
on handling unsafe work refusals?
Share your pressing safety compliance
problems with us by calling (203) 9876163 or emailing [email protected]
Robin L. Barton
C-45 is the name of the bill that made changes to the Criminal Code (Code). One
of the key changes was the addition of Sec. 217.1, which says that every person
Business Case
or performs a task” must “take reasonable steps” to protect that other person
from bodily harm arising out of the work.
continued inside ON PAGE 2
INCIDENT RESPONSE: How to Comply with
First Aid Provider Requirements
orkers are bound to get injured in the workplace no matter how good
your OHS program is. But with any luck, they’ll suffer only minor cuts,
scrapes, bumps and bruises. The OHS laws require companies to have
workers trained in
first aid onsite to
treat such minor
The Law Says: Employers must ensure that there are sufficient
workers in the workplace who are qualified to provide first aid.
Take These 5 Steps to Comply with First Aid Provider Requirements:
handle more serious
1. Determine number and type of first aid providers needed;
injuries and illnesses
2. Ensure designated workers are qualified to be first aid providers;
until workers can
3. Let co-workers know who first aid providers are;
get proper medical
4. Provide first aid kits or first aid rooms; and
treatment. We’ll tell
5. Make sure first aid providers keep records of the treatment they
you what steps to
Tool: Model First Aid Record.
take to ensure that
continued inside ON PAGE 14
Board of Advisors
Andrew Cooper, CHSC
University of Alberta
Edmonton, AB
Cheryl A. Edwards
Heenan Blaikie LLP
Toronto, ON
“Criminal negligence”—that is, the act of doing something forbidden by the law
or omitting to do something one has a legal duty to do when the act or omission
shows “wanton or reckless disregard for the lives or safety” of others—was already
a crime under the Code when C-45 was enacted. By adding the new Section 217.1
duty, C-45 made it possible to hold a company or individual guilty of criminal
negligence for failing to meet the duty to protect a person doing work if the failure
to protect was the result of wanton or reckless disregard for life or safety and caused
death or bodily harm to the worker or a person affected by the work.
C-45 isn’t just about liability. It also deals with the consequences of violations. It
added Sec. 718.21 to the Code, which sets out 10 factors that a court must consider
when sentencing an “organization,” such as a company, that was convicted of
criminal negligence. (See page 6 for a complete list of these factors.)
Norman A. Keith, CRSP
Gowling Lafleur Henderson LLP
Toronto, ON
Ken Krohman
MacKenzie Fujisawa
Vancouver, BC
C-45 FAQs
Fred C. Leafloor, CRSP, CHSC
Safety First Intl. Services
Dartmouth, NS
Here are answers to 10 FAQs about C-45.
David G. Myrol
McLennan Ross LLP
Edmonton, AB
Q:Can You Be Prosecuted for Both Criminal Negligence & an OHS Offence
Yvonne O’Reilly, CRSP
O’Reilly Health & Safety Consulting
Toronto, ON
A:Yes. The concept of “double jeopardy” protects people from being prosecuted
for the Same Incident?
twice for the same crime based on the same facts. But it doesn’t prevent the
government from going after companies or individuals for violations of different
laws for the same event. A wanton or reckless disregard for safety that results in
death or bodily injury may be both an act of criminal negligence under C-45 and
a violation of OHS law. So a defendant could be prosecuted and penalized under
either or both laws.
Wayne Pardy, CRSP
Q5 Systems
St. John’s, NL
Barbara Semeniuk, BSc, CRSP
Purcell Enterprizes
Edmonton, AB
For example, several defendants were charged with criminal negligence in Ontario
for the collapse of a scaffolding platform in which four workers died and one
was seriously injured. They were also charged with OHS violations based on this
Your Plain Language Guide to C-45, OHS & Due Diligence
Managing editor:
Q: Is There a Time Limit for Bringing Criminal Negligence Charges?
A:There’s no “statute of limitations,” or time limit, on criminal negligence charges.
Safety Compliance Insider is published by Bongarde Holdings Inc. and is
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So if a serious safety incident happened on April 1, 2004—the day after C-45
took effect—the Crown could still bring criminal negligence charges based on it
But C-45 isn’t retroactive. That is, C-45 took effect March 31, 2004. So the Crown
may file criminal negligence charges only for serious safety incidents that occurred
after that date.
Q: Which Workplaces Does C-45 Cover?
A: C-45
works differently than OHS law. Most workplaces are subject to the
OHS laws in their particular province or territory. (Federal OHS law applies to
For more safety compliance advice, visit us on the web at www.OHSInsider.com
workplaces in designated industries with national scope,
such as railways, regardless of where they’re located.) In
contrast, the Criminal Code is a national law that applies
across Canada. Thus, C-45 charges can be brought against
any kind of workplace located anywhere in the country.
Q: Does Criminal Negligence Apply Just to Fatalities?
A: No. There are two kinds of criminal negligence charges that
can now be brought in a serious safety incident:
• Sec. 220 applies to anyone who by criminal negligence
causes a death; and
• Sec. 221 applies to anyone who by criminal negligence
causes bodily harm to another person.
For example, in the Ontario scaffolding case mentioned
above, the defendants were charged with four counts of
criminal negligence causing death for the fatalities and one
count of criminal negligence causing bodily harm for the
injured worker who survived.
Q: Does C-45 Apply Only to Death or Injuries Suffered
by Workers?
A: No.
Criminal negligence charges simply require the
defendant to cause death or bodily harm to another
person. So such charges could be brought if, say, a crane
collapses at a construction site and kills a passer-by. In
fact, in a pending BC case, the navigating officer of a ferry
faces criminal negligence charges for the deaths of two
Q: Is Due Diligence a Defence to Criminal Negligence?
due diligence isn’t a defence to criminal
negligence charges in the same way that it’s a defence to
OHS violations. But as a practical matter, proving that you
exercised due diligence makes it impossible to be convicted
of criminal negligence.
Explanation: To prove criminal negligence, the Crown must
show that the company or an individual: 1) violated the duty
to take “reasonable steps” to prevent bodily harm; and 2)
showed wanton or reckless disregard for the safety of others.
If a defendant can prove that it exercised due diligence—that
is, took all reasonable steps to prevent the incident and the
injury or fatality—then it can create reasonable doubt as to
either or both of these elements of the crime. For example,
if a company implemented measures to keep the incident
from happening, it’ll be hard for the Crown to prove that it
acted wantonly or recklessly. Thus, due diligence is, in effect, a
defence to C-45 charges.
Criminal Negligence Charges the Same for
Companies & Individuals?
A: No.
The elements the Crown must prove for a criminal
negligence charge differ depending on whether the
defendant is an individual or an “organization,” such as
a company. For an individual, the government must show
that the individual, in directing how another person does
• Violated his duty to take “reasonable steps” to prevent
bodily harm; and
• Showed wanton or reckless disregard for the lives or
safety of others.
For organizations, the Crown must prove that:
• One or more “representatives,” while acting within the
scope of their authority, committed criminal negligence as
described above for individuals; and
• A “senior officer” departed markedly from the standard
or care that could reasonably be expected to prevent a
representative from committing that offence.
Listen to a Webinar to
Learn How to Manage
C-45 Liability Risk
At OHSInsider.com, you can listen to a webinar
by Norm Keith, one of Canada’s leading OHS
lawyers, on what every employer and safety
coordinator needs to know to minimize the
growing risk of C-45 prosecution for serious
safety incidents. You’ll get the practical “howto” advice you need to greatly minimize the risk
of C-45 liability for yourself, your employer and
other directors, managers and supervisors.
October 2011 © Bongarde
Q: Who’s a “Representative” under C-45?
Key Dates in the
History of C-45
A:The Code defines a “representative” of an organization as
a director, partner, employee, member, agent or contractor
of the organization. Thus, nearly anyone associated with a
company could arguably be considered its representative—
from the lowest worker all the way to the CEO.
It’s important to stress that the word “contractor” is
specifically included in the definition of “representative.” As a
result, you can’t assign or contract out of liability for criminal
negligence to a prime contractor or constructor like you can
for some OHS liability in certain jurisdictions. In other words,
if your contractor engages in conduct that constitutes criminal
negligence, your company could also be on the hook.
Insider Says: For more information on contractors and OHS
liability, see “12 Dos & Don’ts for Dealing with Contractors,
Insider, Sept. 2009, p. 1.”.
Q: Who’s a “Senior Officer” for C-45 Purposes?
noted previously, for a company to be held liable for
criminal negligence, a “senior officer” must depart
markedly from the standard or care that could reasonably be
expected to prevent a representative from committing the
offence. “Senior officers” are a subset of “representatives.”
The Code defines “senior officer” as a representative who:
• Plays an important role in the establishment of an
organization’s policies; or
• Is responsible for managing an important aspect of the
organization’s activities.
In the case of a corporation, this definition would include
a director, its CEO and its CFO. Thus, members of upper
management are considered senior officers for C-45 purposes.
But because the definition is so broad, in some cases, a person
lower down in the corporate hierarchy, such as a plant manager
or project manager could also be considered a senior officer.
Q: Does Insurance Cover Liability under C-45?
A: Many
companies have directors and officers (D & O)
insurance to protect their senior management from liability
when they act on the company’s behalf. But if a company
• March 31, 2004: Bill C-45 takes effect.
• March 3, 2005: Criminal negligence charges against
an Ontario supervisor in connection with a worker’s
death were dismissed when he pleaded guilty to three
OHS violations.
• May 17, 2007: A Québec garage service manager was
charged with criminal negligence after two mechanics
were seriously burned. The case is still pending.
• March 17, 2008: Transpavé, a Québec manufacturer,
pleaded guilty to criminal negligence in connection
with a worker’s death and was fined $100,000, the
first conviction under the amended Criminal Code.
• Feb. 2010: The police charged Millennium Crane
Rentals, David Brian Selvers and Anthony Vanderloo
with criminal negligence after a worker was crushed
to death by a crane.
• March 16, 2010: Authorities in BC charged Karl
Lilgert, the navigating officer of the Queen of the
North ferry, with criminal negligence for the deaths
of two passengers in the ferry’s sinking. This case is
still pending.
• March 25, 2010: The United Steelworkers union
launched a private criminal negligence prosecution
against Weyerhaeuser for a worker’s death in Nov.
• Sept. 2010: In the first C-45 case to go to trial,
a Québec employer was convicted of criminal
negligence for the death of a worker, who was pinned
by a backhoe driven by the employer.
• Oct. 12, 2010: The Ontario police charged Metron
Construction Corp., Joel Swartz, Benny Saigh and
Vadim Kazenelson with criminal negligence for the
deaths of four workers in a scaffolding collapse. This
case is still pending.
• Nov. 2010: In the second C-45 trial, an equipment
operator and foreman were acquitted in Québec on
criminal negligence charges for an incident in which
a train hit a maintenance vehicle, killing a worker and
injuring three others.
• March 2011: The Crown dropped the charges against
Millennium Crane Rentals and the other defendants,
claiming that there was no “reasonable prospect of
conviction based on the evidence we have.”
For more safety compliance advice, visit us on the web at www.OHSInsider.com
officer or director is convicted of criminal negligence for
acts or omissions performed while carrying out his duties
for the company, D & O insurance (or any other insurance
for that matter) probably won’t cover the fine, although it
might cover the legal costs.
The passage of C-45 opened up a new world of potential
liability for companies and individuals for serious lapses in
safety. Although prosecutors have been slow to use this new
tool, the spate of recent criminal negligence cases indicates
that they’re getting more comfortable going after the people
responsible for workplace safety failures in criminal court as
opposed to a regulatory OHS proceeding. So it’s important
that safety coordinators understand how C-45 works so
they can help their companies avoid liability for criminal
1. You can be prosecuted for both criminal
negligence and OHS violations for the same
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Visit www.OHSInsider.com for more information.
Every week, at least one new tool is featured on
www.OHSInsider.com. Here are a few of the recently
featured tools you can download and adapt for your
Model Social Media Policy
2. There’s no time limit on when the government
can bring criminal negligence charges.
Safety Talk on Domestic Violence
Model Cell Phone Use Policy
3. C-45 applies to all workplaces across Canada.
Contractor Pre-Hiring Safety Assessment Checklist.
4. Criminal negligence charges may apply not only
when there’s a fatality but also when someone
has been injured. It also applies to the deaths of
or injuries to anyone—not just workers.
5. Due diligence is essentially a defence to criminal
negligence, although not in the same way as to
OHS violations.
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6. What the Crown has to prove for a criminal
negligence charge depends on whether the
defendant is an individual or an “organization,”
such as a company.
Use Discount
7. The definitions of “representative” and “senior
officer” for C-45 purposes are very broad.
8. You can’t assign or contract out of C-45 liability.
9. Insurance won’t cover your fine for a criminal
negligence conviction.
All Labour Law
Code 4884
Labour Law
October 2011 © Bongarde
C-45 amended the Criminal Code to add Sec. 718.21, which says that a court that sentences an organization
must take into consideration the following factors:
a. Any advantage realized by the organization as a
result of the offence;
b. The degree of planning involved in carrying out the
offence and the duration and complexity of the
c. Whether the organization has attempted to conceal
its assets, or convert them, in order to show that it’s
not able to pay a fine or make restitution;
d. The impact that the sentence would have on the
economic viability of the organization and the
continued employment of its workers;
e. The cost to public authorities of the investigation
and prosecution of the offence;
g. Whether the organization was—or any of
its representatives who were involved in the
commission of the offence were—convicted of a
similar offence or sanctioned by a regulatory body
for similar conduct;
h. Any penalty imposed by the organization on a
representative for his role in the commission of the
i. Any restitution that the organization is ordered to
make or any amount that the organization has paid
to a victim of the offence; and
j. Any measures that the organization has taken to
reduce the likelihood of it committing a subsequent
f. Any regulatory penalty imposed on the
organization or one of its representatives for the
conduct that formed the basis of the offence;
Does Workers’ Comp Cover Accident on Trip with
Work- and Non-Work-Related Purposes?
What Happened
A worker drove from a work camp to a nearby town to pick up company supplies and mail bags. While he was there, he
also engaged in some personal business, such as getting his car washed and eating. He got into an accident on the way
back due to icy road conditions and was injured.
Should workers’ comp cover the worker’s injuries?
Yes. To read the reasons for the Workers’ Compensation Appeals Commission’s ruling, see the fifth case under ALBERTA
on page 10.
For more safety compliance advice, visit us on the web at www.OHSInsider.com
Yvonne O’Reilly: An Interview with the Chair of this Year’s OHS Summit
he Westray mining tragedy, in which 26 workers died in an
explosion at a Nova Scotia coal mine, had a big impact on the
world of workplace safety. The resulting inquiry lead to changes
in Nova Scotia’s and other jurisdictions’ OHS laws and Bill C-45, which
amended the Canadian Criminal Code to make it easier to hold corporate
executives who fail to take steps to protect the lives of their workers
criminally liable. It was also one of the things that drove Yvonne O’Reilly,
an OHS consultant and Conference Chair of the OHS Summit 2011, into
the field of workplace safety.
Even once you think you have a handle on the regulators’
expectations, the next hurdle is getting senior management’s support
to implement those reasonable steps, says Yvonne. To do so, you often
have to overcome what she calls the “silo mentality.” Many managers
see safety as “someone else’s job” and put it in a discrete box, separate
from the rest of the company’s operations, she explains. It’s up to the
safety coordinator to teach them that safety is everyone’s responsibility
with wide-ranging impacts. But educating management on safety’s
“interconnectivity” can be a hard sell, she notes.
Yvonne says that she was riveted by the inquiry and its “dissection of
what went wrong.” It made her realize the importance of a comprehensive
management system that outlines all stakeholders’ accountability. As
a result, she went back to school and achieved a Canadian Registered
Safety Professional designation. For over 10 years, Yvonne has worked in
occupational health and safety, the last seven as the owner and principal
consultant of O’Reilly Health & Safety Consulting, a national consulting
practice based in Ontario.
In her role as an OHS consultant, Yvonne aims to help her clients do
three things:
We recently spoke with Yvonne about the challenges facing safety
coordinators and how the OHS Summit can help them meet those
Challenges for Safety Coordinators
To exercise due diligence, your company has to take all reasonable steps
to comply with the OHS laws. But Yvonne says that one of the biggest
challenges facing safety coordinators is understanding OHS regulators’
expectations as to due diligence—that is, what do they consider
reasonable steps for compliance with the OHS requirements? After all,
your definition of reasonable and the regulator’s may be very different—
and ultimately it’s the regulator’s definition that matters.
1. Achieve their goals for preventing incidents and injuries in the
2. Take the reasonable steps required for compliance with the OHS
laws; and
3. Document their actions so that they can prove they exercised due
diligence if needed.
Her approach is the essence of the theme of this year’s OHS Summit:
“Due Diligence: Defining, Establishing and Demonstrating Your Record
of Compliance.”
For the rest of our interview with Yvonne and her thoughts on
the OHS Summit 2011, go to OHSInsider.com.
Yvonne O’Reilly, CRSP: O’Reilly Health and Safety Consulting; (416)
294-4141; www.ohsconsulting.ca; [email protected]
Current Newsletter Subscribers and OHS Insider Members
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OHS Summit 2011
Due Diligence: Defining, Establishing & Demonstrating Your Record of Compliance
Oct 24th and 25th
Hyatt Regency, Toronto, ON
Conference Chair
Yvonne O'Reilly, CRSP
O'Reilly Health & Safety Consulting
You are invited to participate in Canada’s leading networking and educational conference for OHS
professionals and in-house lawyers. Visit www.ohssummit.ca for more information.
Call 1.800.667.9300 to talk to a Bongarde representative and find out more about the OHS Summit 2011.
October 2011 © Bongarde
Take an Inventory of the Hazardous Substances in Your Workplace
he OHS and environmental laws regulate the handling,
storage, use and disposal of hazardous substances. Best
example: the WHMIS requirements. To ensure that your
company complies with these requirements, you must first
know exactly what hazardous substances are present in your
workplace. The best way to get this information is to compile
a hazardous substance inventory.
Benefits of a Hazardous Substance Inventory
Taking an inventory of the hazardous substances in your
workplace has several benefits:
Shows the “big picture.” An inventory gives you a
complete picture of all of the hazardous substances currently
present in the workplace at a given point in time. You can
then group these substances into the major hazard classes,
such as flammable, corrosive, toxic and reactive, to begin to
see the biggest hazards in your facility.
Identifies training needs. You can use the completed
inventory to develop a compliant WHMIS or hazardous
substance training program or ensure that your current
program covers everything that it should.
Reveals any supply issues. Inventories can help you identify
potential supply problems or inefficiencies and opportunities
to correct these defects. For example, the inventory might
reveal an opportunity to store smaller quantities of a hazardous
substance by consolidating storage locations or to streamline
your ordering process so that a worker can’t inadvertently
order a particular product for which ample supplies already
exist in different storage sites.
Provides an opportunity to consider alternatives.
Conducting a hazardous substance inventory gives you the
chance to consider replacing current products with less
hazardous substitutes to reduce risks to workers and the
How to Conduct the Inventory
You can keep your hazardous substance inventory in almost
any format. (On OHSInsider.com, there’s a Model Hazardous
Substance Inventory Form that you can adapt and use.) To
conduct the inventory, take the following six steps:
Step #1: Put Together Inventory Team
Assemble a team to conduct the inventory, including any
dedicated safety or EHS workers, a production/process
supervisor, a member of the maintenance department and one
or two line workers. If you have a JHSC, you should involve its
members. You could also include members of management,
HR staff and representatives of other major departments in
your company.
Step #2: Divide the Workplace
Hazardous substances are likely to be scattered throughout
your workplace. So divide the facility into several sections
or areas and assign an individual or group to each section,
depending on its size. Provide an inventory form for their use
so that you get the same information from each individual
or group. (On OHSInsider.com, there’s a Model Hazardous
Substance Inventory Form that you can download and adapt.)
Step #3: Instruct Team
Instruct team members on how to conduct the inventory.
For example, explain what kinds of substances they should
be looking for, where to find MSDSs for these substances
and what information to include in the inventory form. Also,
explain what they should do if they encounter a problem, such
as an unlabeled container or a hazardous substance that’s
missing an MSDS.
Step #4: Compile Individual Forms
Compile completed inventories into one master hazardous
substance inventory.
Step #5: Evaluate Information in Inventory
Evaluate the information in the master inventory. For example,
make sure that your WHMIS training program covers all of the
hazards posed by the hazardous substances in the inventory
and that you have current MSDSs for each substance. Also,
consider ways to improve the efficiency of the company’s
ordering process and storage of hazardous substances. And
consider less dangerous or toxic alternatives to some of the
substances you’re presently using.
Step #6: Establish Method for Updating Inventory
Conducting an inventory just gives you a snapshot of the
hazardous substances in your workplace at a given time.
Changes in operations may lead to the elimination of some
hazardous substances—and the introduction of new ones. So
establish a method for ensuring that the inventory is reviewed
and updated at least once a year. In addition, develop a
method for adding new substances the first time they’re used
in the workplace.
For more safety compliance advice, visit us on the web at www.OHSInsider.com
OHS Month in Review
A roundup of important new legislation, regulations, government
announcements, court cases and board rulings
ON Company Can Fire Worker for Video of Dangerous Workplace Prank
When it comes to disciplining workers, the accepted approach is the use of
progressive discipline in which the level of punishment increases each time the
worker commits another infraction, culminating in termination if the problem
continues. As a result, courts and boards generally don’t uphold the firing of
a worker with no disciplinary record at all. But if the worker’s conduct was
particularly egregious, they may rule that immediate termination was justified.
A recent case from Ontario is a good illustration of the kind of conduct that
can result in immediate termination, even for a first offence.
What Happened: Inspired by the TV series Jackass, workers at a construction
site engaged in an escalating series of dares and stunts in the site’s lunchroom.
The culmination: A worker bared his genitals and allowed his scrotum to be
stapled to a wooden plank—all of which was caught on videotape. The “stapling
video” was posted online and soon became infamous in the area’s construction
industry. When the company learned about the video, it fired the worker for
violating its harassment policy, which barred pranks of a sexual nature.
What the Board Decided: The Ontario Labour Relations Board upheld the
worker’s termination even though the incident was his first offence.
How the Board Justified the Decision: The video was shot in the workplace
(although not during work hours) and in the presence of co-workers. Although
the worker wasn’t responsible for posting the video online, he should’ve
known that’s what would happen. And his dangerous conduct violated not
only company policy but also OHS law, which bars workers from engaging
in pranks in the workplace. The Board rejected the worker’s argument that
shows like Jackass had changed “the norms of behaviour,” saying that this
explanation doesn’t justify the conduct or make it acceptable in the workplace.
The Board concluded that permitting his scrotum to be stapled to a wooden
board was inappropriate and “demonstrated a great deal of stupidity.”
To make things worse, the worker’s employer was readily identifiable in
the video. So when it became well known to people in this safety sensitive
industry, it undermined the company’s reputation as a safety conscious
contractor with a highly skilled workforce. In fact, the “stapling video” was the
topic of discussion at a construction industry conference.
The Board found that the pattern of pranks this worker and others had
engaged in could easily lead to more dangerous stunts in a workplace where
safety should be paramount. The company had a duty to ensure a safe
workplace. By firing the worker for this first offence, it clearly and appropriately
demonstrated that it won’t tolerate this kind of behaviour at any of its worksites
[International Union of Elevator Constructors, Local 50 v. ThyssenKrupp
Elevator (Canada) Ltd., [2011] CanLII 46582 (ON LRB), July 28, 2011].
The worker in the ThyssenKrupp case tried to argue that the workplace’s culture
justified and excused his conduct. He said it was an all male environment in
which workers regularly teased each other and engaged in jokes, pranks and
dares. He pointed out that no one had objected when he’d performed his
stunt and, in fact, they cheered him on in encouragement. Rightfully so, the
Board wasn’t impressed with these arguments. The Board made it clear that
this kind of behaviour shouldn’t be tolerated in any workplace, no matter how
much members of the workforce may enjoy it.
Aug. 11: Pregnancy Discrimination Is a Problem
The Saskatchewan Human Rights Commission’s annual report says pregnancy discrimination continues to be a major
concern in workplaces. One in 10 complaints of discrimination at job sites involves pregnancy. The report outlines
one case in which a pregnant worker was told she wouldn’t get any job training because her employer felt it would
be a waste of time. The company never admitted any wrongdoing, but the fired worker received a $5,000 settlement
after the commission investigated.
Trenching Violation Costs
Construction Company $3,200
After a routine inspection, a
construction company pleaded guilty
to violating Sec. 263(1) of the OHS
regulations by failing to ensure a
worker in a trench was protected from
cave-ins or sliding material by means
of cut back or shoring. The court fined
it $3,200 [Allan Construction Co. Ltd.,
Govt. News Release, Aug. 16, 2011].
Aug. 16: New Safety Ads Aimed at Young Workers
WorkSafe Saskatchewan launched a new ad campaign aimed at young people. The Work2Live ads are in malls
across the province and feature as the main character a worker ant. One ad relays the message, “If it feels wrong,
it probably is wrong.” The other ad says, “There's no such thing as a stupid question.”
Company Liable for Pedestrian’s Fall on Construction Debris Left on Sidewalk
A man ruptured his Achilles tendon while walking on a sidewalk in front of an apartment building under construction. He sued the building owner. The
court ruled that the man fell on accumulated construction debris that was on a sidewalk open to the public. Although the owner’s contractor claimed to
work from a “safety/cleanliness perspective,” he had no records of any specific programs in place to ensure safety. Thus, the building owner was negligent
for breaching the appropriate standard of care by letting debris accumulate in foreseeably dangerous circumstances, concluded the court. It ordered the
owner to pay the man over $51,000 in damages [Mielke v. Harbour Ridge Apartment Suites Ltd., [2011] N.S.J. No. 441, Aug. 15, 2011].
October 2011 © Bongarde
Aug. 12: IWH Releases Several New Studies
The Institute for Work & Health released new studies on:
• Creative innovations for workers with arthritis
• How workplace policies affect return to work
• Patient expectations and return to work
• Immigrant experiences after a workplace injury or illness.
Board Rules Against Two Whistleblowers But in Favour of a Third
Three scientists fired by Health Canada sued, claiming they were terminated in
retaliation for raising concerns over food safety, specifically the use of a bovine growth
hormone to enhance milk production in cows. The Public Service Labour Relations
Board dismissed the grievances of two scientists but ordered Health Canada to
reinstate the third. The Board’s written decision isn’t public yet but is expected to be
appealed [Aug. 9, 2011].
CASES cont'd
July 29: OHS Charges Laid in Stage Collapse
A stage collapsed at the Big Valley Jamboree during a severe storm, killing
a woman. Nearly two years later, the government laid 33 OHS charges
against three companies for their roles in the incident. The charges allege,
among other things, that the production company failed to ensure that
the stage and equipment were strong enough to withstand the stresses
imposed by the sudden storm.
Security Company Penalized $92,000 for Guard’s Rape
A security company was fined $5,000 for failing to ensure the safety of a
female guard who was raped by an intruder at a construction site nearly five
years ago. In addition, the court ordered the company to pay $87,000 to a
new program at SAIT Polytechnic for safety training of workers working alone.
The guard’s attacker was convicted and sentenced to eight years’ jail [Garda
Canada Securities Corp., Govt. News Release, July 11, 2011].
Aug. 10: Province Steps up Employment Standards Enforcement
Alberta is stepping up efforts to enforce employment standards, such as
requirements on maternity leave, overtime pay and termination notice.
It’s hiring six new Employment Standards officers and increasing use of
third-party auditors. It has also created a new Employment Standards
Tool Kit for employers to improve awareness of standards and give
employers a clear picture of their rights and responsibilities.
Company Not Liable for Unforeseeable Worker Misconduct
An experienced tire technician inflated a tire on a split rim wheel
assembly known as a “widow maker” without using the restraints
required by company safety policy. The tire exploded, causing serious
head injuries. The company was charged with multiple OHS violations.
The court dismissed all charges, ruling that the company had exercised
due diligence. It provided appropriate training, restraints, hands-on
supervision and communication of safety rules. A worker had reminded
the technician minutes before the incident to use restraints and the
technician said he’d do the work safely. So it was unforeseeable that
he’d act so “irrationally” by doing the work without restraints, concluded
the court [R. v. Fountain Tire (Olds) Ltd., [2011] ABPC 236 (CanLII), July
18, 2011].
Methanol Release Leads to $160,000 Fine & Four Months’ House
A company manager told workers to release flammable wastewater onto
the ground at the back of the company’s property. The next day, a welder
inadvertently ignited the wastewater with a welding torch, causing a fire.
No one was injured. When investigators arrived at the site in response
to an anonymous complaint, the manager denied that the release had
occurred. The company was fined $160,000 under the Environmental
Protection and Enhancement Act for releasing wastewater containing
methanol into the environment and providing false or misleading
information to investigators. The manager also pleaded guilty to these
charges and was sentenced to four months’ house arrest [Western
Biodiesel Inc. and Jason Freeman, Govt. News Release, Aug. 16, 2011].
Apprentice’s Amputated Leg Costs Company $90,000
An apprentice crane operator’s lower left leg was crushed when he stepped
into the moving draw works of a crane he was operating. He’d left his safety
boots in his vehicle and was wearing casual Crocs when the incident occurred.
His leg had to be amputated close to his hip. The company pleaded guilty to
failing to assess a work site and identify existing or potential hazards. The
court fined it $5,000 and ordered it to pay $85,000 to the Alberta Construction
Safety Association to create and implement a hazard assessment course [Agra
Foundations Ltd., Govt. News Release, July 19, 2011].
Injury Suffered in Traffic Accident Was Work-Related
A worker drove from a work camp to a nearby town to pick up company
supplies and mail bags. He got into an accident on the way back due to icy
road conditions and was injured. His workers’ comp claim was denied. On
appeal, the Workers’ Compensation Appeals Commission upheld the claim,
ruling that the accident happened in the course of the worker’s employment.
Although he engaged in some personal business while in town, such as
getting his car washed and eating, his primary reason for making the trip
was work-related [Decision No. 2011-618, [2011] CanLII 48066 (AB WCAC),
July 18, 2011].
Defunct Company Fined Another $10,000 for Failing to Pay OHS
The court fined a company an additional $10,000 for failing to pay a previous
$90,000 creative sentence for OHS violations after a worker was run over and
seriously injured by a bobcat as he was exiting it. The judge said the company
hadn’t show due diligence in attempting to comply with the court order on
its sentence. The company, which has since ceased operation, closed its bank
account last year. But it made it a priority to pay other creditors, noted the
court [Steve’s Oilfield Services (Edson) Ltd., Aug. 8, 2011].
Judge Dismisses Charges in Falling Plywood Case
A judge dismissed charges under the Alberta Safety Code Act against a
construction company after a sheet of plywood fell 44 floors to the ground
from a construction site. The ruling was based on a technicality—that is, a
discrepancy over the version of the building code with which the construction
company was to comply. The company had claimed that it exercised due
diligence and that the plywood didn’t come loose because it wasn’t secured
properly but because of “a very wicked snowstorm” [EllisDon Construction
Services, Calgary Herald, Aug. 9, 2011].
Mining Company Pleads Guilty after Worker Is Run Over by Own Vehicle
A 20-year-old mine worker drove a Toyota Landcruiser into the mine to deliver a piece
of equipment to a co-worker. Part way down the steep ramp, he came upon another
vehicle blocking his way. He stopped his truck, put it into neutral, applied the emergency
brake and walked down the ramp toward the other vehicle. But the emergency brake
failed and his vehicle rolled down the slope, striking him from behind. He died from
internal injuries. The mining company pleaded guilty to two safety violations relating
to the unsafe operation of a vehicle. It has yet to be sentenced [Procon Mining and
Tunnelling, Aug. 3, 2011].
July 22: Push for Protections for Workers
Working Alone
Jimmy Wiebe was working the graveyard shift
alone at a gas station when he was killed by
a lone assailant. Now one of his friends is
pushing for a change to the laws that let a
person work alone overnight. This issue has
been raised in jurisdictions across Canada,
including AB, BC and SK.
For more safety compliance advice, visit us on the web at www.OHSInsider.com
Aug. 11: WorkSafeBC Planning Domestic Violence Guidelines
According to the Vancouver Sun, BC is set to become the second province
(after Ontario) to address domestic violence in the workplace. WorkSafeBC
has been developing a handbook and online training resource that will
help employers recognize the signs and symptoms of domestic abuse
and better understand how to talk about it with a worker in a safe and
supportive manner. The guidelines are the result of a special review panel
on domestic violence convened by the chief coroner last spring.
Must Health Service Accommodate Paramedic by Letting Him Only
A part-time paramedic with multiple sclerosis had decreased sensation in
his fingertips, making him unable to “palpate a pulse.” The health service
wouldn’t let him work as a paramedic, saying being able to feel a pulse was
a bona fide occupational requirement (BFOR). The Human Rights Tribunal
dismissed his discrimination complaint, ruling that although being able to
manually take a pulse was a BFOR, the employer should’ve accommodated
him by letting him work as a driver while being paid as a paramedic. But a
court said the Tribunal failed to consider whether that accommodation was
an undue hardship for the employer. So it sent the case back to the Tribunal
to decide that issue [Emergency Health Services Commission v. Cassidy,
[2011] BCSC 1003 (CanLII), July 26, 2011].
Aug. 8: Forestry Ombudsman Releases Report on Tree Planters
The BC Forest Safety Ombudsman’s report on a group of tree planters
found in unsafe and substandard working conditions at a camp last
July says that issues related to campsite notification, enforcement,
contract qualification, training and the competitive tendering process all
contributed to the situation. The report’s13 recommendations include:
• Review of the current notification requirements for camp operators
• Establishment of a contract qualification process for silviculture
• Creation of a professional standards code for members of the
Western Silvicultural Contractors’ Association
• Development of a shared delegated authority model for in-field
July 27: Female Worker Injury Rates Increase
A WorkSafeBC report shows total injury claims involving female workers
have been steadily climbing over the past 30 years, while men’s injury
claims have fallen. In 2010, 36% of all workplace injuries involved women,
with health care workers and those employed in social assistance leading
the number of female worker fatalities. But young men (age 15 to 24
years) maintain the highest injury rate of all age and gender groups—and
nearly 97% of all workplace fatalities involve male workers.
Sept. 15: New OELs Take Effect
Effective Sept. 15, the Board of Directors of WorkSafeBC approved the
adoption of new and revised American Conference of Governmental
Industrial Hygienists Threshold Limit Values for eight substances,
• Acetic anhydride
• Carbon black
• Ethyl benzene
• Methyl isopropyl ketone
• Soapstone.
Worker Who Threw Wood that Hit Co-Worker Gets ‘Significant
Two workers with a history of friction got into an argument. Later, while the
co-worker was using the jointer, the worker threw a heavy piece of wood
in his direction, hitting him in the legs. The company fired the worker. But
an arbitrator ordered his reinstatement. The worker hadn’t intended to hit
the co-worker. However, by throwing wood around, he committed a serious
safety infraction and was careless about the potential consequences of his
actions, especially when the co-worker was using dangerous machinery at
the time. On the other hand, the worker didn’t have a history of violence
and acknowledged the seriousness of his misconduct. So the arbitrator
concluded that a “significant suspension” was appropriate [BC Door Co.
v. United Steel, Paper and Forestry, Rubber, Manufacturing Energy Allied
Industrial and Services Workers International Union, Local 1-1937 (Boston
Grievance), [2011] B.C.C.A.A.A. No. 99, July 28, 2011].
Bartender Who Quit Not Entitled to Length of Service Compensation
A bartender claimed that after her shift, she was followed in her car and
almost run off the road by a customer whose advances she had spurned
earlier in the evening. She didn’t file criminal charges or ask her employer
to bar him from the pub. When the pub considered hiring the customer, she
told her supervisor she’d try to work with him. But after he started working
there, she abruptly quit. Five months later, she filed a claim for length of
service compensation, arguing that she’d been bullied and forced to quit.
The Tribunal upheld the denial of her claim on appeal. The employer had
done nothing to make the bartender quit. And the customer hadn’t done
anything “untoward” to her while they’d both worked there [Re: Stromquist,
[2011] B.C.E.S.T.D. No. 72, July 5, 2011].
Oct. 1-7: Wellness Week
The government reminded New Brunswickers that Wellness Week will take place from Oct. 1
to 7 this year. Wellness Week is a chance for workplaces, schools and communities to promote
and celebrate wellness by hosting activities and events that address mental fitness and resilience,
healthy eating, physical activity and/or tobacco-free living.
July 25: HSS Launches YouTube
The Department of Health and
Social Services (HSS) launched a
new YouTube Channel, which has
informational videos on public health,
environmental health, social services,
addictions and seniors programs.
Aug. 4: Protect Workers from Giant Hogweed
WorkSafeNB issued a hazard alert on giant hogweed, a noxious weed whose sap can cause
skin irritation, blisters and blindness. When working near or with this hazardous plant, workers
• Wear protective clothing, including waterproof gloves, long sleeve shirts, pants, and eye
protection. Ideally, they should wear a disposable “spray suit” coverall on top of their
normal clothing.
• Avoid touching their eyes or wiping the sap on other parts of their body or clothes.
• If skin comes into contact with the sap, wash immediately with soap and water, avoid
sunlight exposure and seek medical treatment.
• If contact is made with the eyes, flush immediately with water and seek medical
Aug. 24: Legislature Approves Ban
on Cell Phone Use While Driving
The NWT legislature passed a bill
amending the Motor Vehicles Act
to make it illegal to text or talk on
hand-held devices while driving. The
law, which lets people drive with
hands-free devices used in a handsfree manner, is set to take effect Jan.
1, 2012.
October 2011 © Bongarde
CASES cont'd
Aug. 1: Construction Focus of Latest Safety Blitz
The MOL’s August safety blitz focused on hazards involving equipment
used to allow workers access to various locations at construction
projects. Inspectors checked on:
• Worker training on access equipment
• Safe use, inspection and testing of access equipment
• Maintenance records and other documentation
• Rescue and emergency procedures.
OK to Lay off Worker Returning from Medical Leave
A worker was about to return from a lengthy medical leave when his employer laid
him off because of financial problems. He filed a disability discrimination complaint,
which the Human Rights Tribunal dismissed. The worker wasn’t laid off because
he was disabled. The company had lost two key clients and was suffering from the
poor economy. It was in the process of downsizing when the worker was about to
return. In fact, it also laid off three other people and cut the salaries of members of
senior management [Munroe v. Padulo Integrated Inc., [2011] HRTO 1410 (CanLII),
July 27, 2011].
July 27: MOL Releases Updated Guidelines
The MOL released several updated guidelines:
• Guide to the OHS Act
• Guide for JHSCs and Representatives
• Confined Spaces Guideline.
Aug. 10: MOL Launches New Farm Safety Page
The MOL has a new page dedicated to workplace health and safety
resources for farming operations, which contains publications,
guidelines, a sector plan, laws and regulations, and links to other
information relating to farm health and safety.
July 25: Hospital Workers Get Bacterial Infection
Two health care workers contracted Clostridium difficile (C. difficile), a
bacterial infection. An outbreak recently occurred in three hospitals in
the Niagara, ON region. MOL inspectors visited the hospitals and met
with the JHSCs to discuss issues relating to the outbreak. They also issued
a number of orders related to updating measures and procedures for
infection prevention and control.
July 28: Mayor Not Penalized for Talking on Cell While Driving
The police won’t charge the mayor of Toronto after he acknowledged
talking on his cell phone while driving. No charges have been pursued
against other motorists who admitted after the fact to driving while
talking on the phone and equal treatment will be given to the mayor,
said a police spokesperson.
Not a Reprisal When Discipline Occurs Before Exercise of Protected
A worker filed a reprisal complaint under the OHS Act, claiming that
he’d been disciplined for raising safety concerns about the company’s
general operations and his relationship with some supervisors. The
Labour Relations Board dismissed his complaint, ruling that because
the only employment consequences about which he specifically
complained occurred before he invoked any right under the Act, they
can’t have occurred because he exercised such rights [Dubuc v. Ontario
(Community Safety and Correctional Services), [2011] CanLII 46615 (ON
LRB), July 29, 2011].
Board Refuses to Suspend Order Requiring Foot Protection
An MOL inspector ordered a store to ensure that all workers exposed
to the risk of a foot injury wore appropriate foot protection. The store
asked the Labour Relations Board to suspend the order because it
already required workers who operate pump jacks to wear safety toe
caps. The Board refused. As the inspector noted, other workers in the
receiving area and who handled stock were also exposed to foot injuries
and so should have to wear appropriate foot protection, too [Dollarama
LP v. Marcelo, [2011] CanLII 46599 (ON LRB), July 22, 2011].
Transfer of Worker Being Stalked Wasn’t a Disability
A worker at a liquor store who’d been harassed and stalked by a
customer was transferred to a store outside the city at her request.
When her co-workers learned the reason for her transfer, they raised
concerns that working with her endangered their own health and safety.
She filed a complaint, claiming that the employer and her co-workers
had discriminated against her based on a disability (general anxiety
disorder). But the Human Rights Tribunal dismissed her complaint.
There wasn’t sufficient evidence that she was disabled under the law or
that she’d requested the transfer as an accommodation for her alleged
disability—she asked for the transfer so it would be harder for the stalker
to find her [Crowley v. Liquor Control Board of Ontario, [2011] HRTO
1429 (CanLII), July 29, 2011].
Harassment Complaint Based on Blog Could Proceed
A group of managers at a detention centre filed a complaint against their employer
for failing to provide a workplace free from harassment by not addressing a blog
by correctional officers that contained offensive and slanderous material directed
at them. The employer asked the Grievance Board to dismiss the complaint but it
refused. The managers raise a viable argument that the blog’s content created a
poisoned workplace that the employer failed to address as was its duty, explained
the Board [Lee v. Ontario (Ministry of Community Safety and Correctional Services),
[2011] O.P.S.G.B.A. No. 11, July 21, 2011].
Company Could Fire Electrician for Intentionally Smashing Motor
A company fired an electrician for taking a motor and smashing it to the ground three
times. He challenged his termination. But the arbitrator ruled that it was justified.
Although the electrician didn’t have a disciplinary record, the evidence indicated
that he was difficult to work with and manage. He complained a lot and questioned
everything, including changes to his shift. He would go missing for an hour or
more. And co-workers didn’t want to work with him. So while the arbitrator felt
some sympathy for the worker, it concluded he was largely “the author of his own
misfortune” [Ya Ya Foods Corp. v. National Automobile, Aerospace, Transportation
and General Workers’ Union of Canada, Local 462 (Kagan Grievance), [2011] O.L.A.A.
No. 331, July 18, 2011].
Company’s Treatment of Pregnant Security Guard Was Discriminatory
Within minutes of a security guard‘s telling the company’s sole officer that she
was pregnant, he removed her from the schedule for “health and safety reasons”
and told her to go on short term disability. Because these benefits didn’t cover her
expenses, she got other employment, including office work for another security
company. When the company found out she was working for a competitor, it fired
her. The Human Rights Tribunal ruled that the company and officer had discriminated
against the guard because of her gender by treating her based on stereotypes and
unsupported assumptions about what pregnant women could and couldn’t do. The
Tribunal ordered the defendants to pay her $20,000 in damages in addition to lost
wages. It also ordered all management personnel to get human rights training and to
create a written policy on pregnant workers [Graham v. 3022366 Canada Inc. (c.o.b.
Response Safety Security & Investigation), [2011] O.H.R.T.D. No. 1472, Aug. 5, 2011].
Yarn Maker Fined $75,000 for Partial Arm Amputation
A worker for a yarn manufacturer opened the cover of a machine used to create
yarn and found excessive fibres. When he tried to remove them, his finger got caught.
His arm was drawn into the machine and partially amputated. The manufacturer
pleaded guilty to a guarding violation and was fined $75,000 [Waterloo Textiles Ltd.,
Govt. News Release, Aug. 17, 2011].
$55,000 Fine Imposed in Elevator Incident
Two crews were working in adjacent elevator shafts with the upper crew taking apart
a temporary platform in one shaft while the lower crew cleaned the bottom of the
other shaft. A member of the upper crew dropped part of a support post and it
struck a worker from the lower crew, injuring his arm. The employer pleaded guilty
to failing to ensure that materials were moved in a manner that didn’t endanger a
worker. The court fined it $55,000 [Kone Inc., Govt. News Release, July 27, 2011].
Pipe Contractor Fined $50,000 after Gas Leak Causes Fire
Workers for a pipeline contractor were installing a new natural gas line into a
distribution facility. Other workers in the facility heard a gas leak and evacuated
the project. The gas ignited, resulting in a fire. An MOL investigation found that the
exposed pipe was pressurized with natural gas while workers were present but not
all workers were given this information. The contractor pleaded guilty and was fined
$50,000 [Robert B. Somerville Co. Ltd., Govt. News Release, July 25, 2011].
Workers Injured in Collapse of Steel Beams
While erecting a steel structure, two workers were standing on beams when the beams
collapsed. They fell about five meters to the ground and sustained minor injuries. The
company pleaded guilty to failing to ensure that the beams were adequately braced
to prevent any movement that would affect their stability or cause collapse. The court
fined it $55,000 [Spencer Steel Ltd., Govt. News Release, July 22, 2011].
For more safety compliance advice, visit us on the web at www.OHSInsider.com
CASES cont'd
Aug. 22: WHSCC Releases Statement on Handling Personal Information
To meet the requirements of the new Personal Health Information Act, the
WHSCC released a privacy statement to describe the way it handles personal
health information and a privacy notice to explain why personal information,
including health information, is collected, used or disclosed.
Supervisor & Auto Repair Shop Face OHS Charges for Worker’s
The government charged an auto repair shop and supervisor with three
OHS violations after a worker was pinned under a vehicle that was
being repaired. He suffered serious injuries to his back and ribs. The
company is accused of failing to maintain an OHS program; provide
proper instruction, training and supervision; and ensure that safe work
procedures were followed. The supervisor was charged with failing to
provide proper instructions about the precautions necessary to protect
workers [E-R-L Enterprises Ltd., Govt. News Release, Aug. 2, 2011].
Mine Penalized $80,000 for Worker’s Broken Foot & Ankle
An attachment tore away from a dryer, causing the equipment and hoist
to fall. As a result, a worker suffered broken bones in his ankle and foot.
The employer pleaded guilty to failing to ensure that the hoist was operated
appropriately and to provide the information, instruction, training and
supervision necessary to ensure workers’ health and safety. The court fined it
$60,000, ordered it to pay $20,000 to Threads of Life and required a company
official to present the details of a safety case currently being developed by
the company to an OHS conference [Wabush Mines, Govt. News Release,
July 26, 2011].
Asbestos Violations Cost Construction Company $13,000
After an investigation into the demolition of a former hospital, a construction
company pleaded guilty to failing to take all necessary measures to minimize
workers’ exposure to airborne asbestos and ensure that appropriate
measures were taken to prevent pollution of the general environment by
asbestos dust. The court fined the company $10,000 and ordered it to pay
$3,000 to the Department of Government Services for public OHS education
[Kelloway Construction Ltd., Govt. News Release, July 28, 2011].
Association Between Worker’s Disease and Chemicals Made It
A fuel truck driver claimed that he’d developed non-Hodgkin’s lymphoma
from exposure to chemicals at work, including gasoline, solvents, fuel
oil and benzene. His workers’ comp claim was denied due to lack of
scientific evidence linking his condition to chemical exposure. But the
review commissioner reversed this decision, ruling that there were
studies indicating “statistically significant associations” between nonHodgkin’s lymphoma and solvent exposure. The court upheld the
commissioner’s decision as reasonable. It’s “inappropriate to reject a
claim solely because the science has not progressed to the point where
one can say, to a scientific certainty,” that the injury was caused by
employment-related exposure, explained the court [Iron Ore Company
of Canada v. Newfoundland & Labrador (Workplace Health, Safety and
Compensation Review Division), [2011] NLTD 103 (CanLII), July 21, 2011].
Aug. 9: Bus Driver Not Fired for Writing While Driving
Transit officials said the bus driver who was caught filling out
paperwork while driving a bus was disciplined but won’t be fired.
A passenger caught the distracted bus driver on video as he drove
and filled out forms. At one point, he used his knees to help steer
the bus. The video, which was posted on YouTube, received nearly
July 18: City Charged with Safety Violations for Chlorine Release
A maintenance worker at a recreational facility was filling containers
of chlorine and hydrochloric acid in the pool’s filter room. He got
confused about the contents of each container and inadvertently
poured the acid into the chlorine tank, discharging chlorine gas and
triggering the facility’s evacuation. Prosecutors charged the City of
Summerside with four OHS violations, including failing to issue
adequate instruction, training and supervision to workers to ensure
their safety and ensure a worker was wearing protective respiratory
Aug. 11: Guides on Workplace Violence & Working Alone
The WCB has revised its Guide to Working Alone Regulations and
Guide to the Prevention of Workplace Violence. These guides provide
up-to-date information on what the law requires, including risk
assessments, resources for developing policies and procedures, and
practical tips on staying safe on the job.
July 19: Stage Company Involved in Two Collapses
The Montréal-based company that owned the stage that collapsed at
the Ottawa Bluesfest was the focus of a 2009 safety probe after another
one of its stages came crashing down in bad weather. No one was
injured. After a two-month investigation, the company was cleared
of any wrongdoing by the province’s workplace safety commission,
which said the collapse was the result of faulty manufacturing and
the company had “taken all necessary precautions.”
July 20: No Charges for Worker’s Burns at French Fry Plant
The WCB won’t lay charges against Cavendish Farms after a worker
suffered serious burns. He was standing by a valve on a fryer when
hot oil shot out, burning his neck, back, shoulders and forearms.
The Board concluded that the company had taken every reasonable
precaution before the incident. In addition, it had gone above and
beyond what was recommended to ensure that similar incidents
didn’t happen again, including relocating the valve to a remote
location and installing shields.
Aug. 12: WCB Policies Revised
The following WCB policies have been amended (Details about
the revisions are included in the History section at the end of each
• Benefit of Doubt (POL-62)
• Emergency Callout of Workers (POL-127)
• Employer Registration (POL-19 )
• Interjurisdictional Trucking - Alternative Assessment (POL-142).
July 30: Public Says Bus Drivers Are Using Cell Phones
According to the Montréal Gazette, the Société de Transport de
Montréal received 189 complaints about cell phone use by bus
drivers from members of the public during an eight-month period.
But the STM has refused to say how many routes or drivers were
involved in the incidents complained about, never mind which routes
or drivers. Nor would it say how many drivers have been disciplined
over the past year for driving while using a hand-held device.
Aug. 21: 12 Die in Plane Crash
A charter jetliner carrying 15 people crashed into a hill while
approaching the runway in Resolute Bay. Twelve people were
confirmed dead; two adults and a young child survived and are
receiving medical treatment. By coincidence, the crash occurred as
an annual massive military exercise was being conducted with the
focus on responding to a mock air disaster as well as a marine
accident. The participating helicopters and medical technicians
were quickly deployed to respond to the real thing.
October 2011 © Bongarde
First aid provider requirements continued FROM PAGE 1
your company complies with the requirements for so-called
“first aid providers.”
Go to the Insider's online partner website,
www.OHSInsider.com, to download a model first aid
record that you can adapt and give to first aid providers
to record the treatment they give workers.
Defining Our Terms
The OHS regulations use the terms first aider, first aid
provider and first aid attendant to describe someone
qualified and trained to provide first aid in the workplace.
To keep things simple, we’ll use the term “first aid provider”
to refer to such workers.
In addition, this article covers general first aid requirements
under OHS laws, not those pertaining to specific industries,
such as forestry and construction, or hazards, such as
confined spaces or working alone.
All jurisdictions address first aid in their general OHS regulations,
a separate first aid regulation or, in ON and QC, a regulation
under the workers’ comp law. In addition to covering first aid kits
and rooms, these regulations typically cover:
• When a workplace needs one or more first aid providers;
• How many first aid providers are required and with what level
of training;
• Their duties; and
• The records they must make of the first aid they provide.
We’ll discuss each of these areas below.
In general, all workplaces must have first aid providers
whose duties typically include providing first aid to injured
and ill workers, accompanying these workers when they’re
transported from the workplace for medical attention
and supervising the first aid room, if the workplace has
one. Although first aid provider requirements vary slightly
by jurisdiction, taking the following steps will ensure
compliance regardless of where in Canada your company
is located:
Step #1: Determine Number & Type of First Aid
Providers Required
Pretty much every workplace must have at least one first
aid provider who has had basic first aid training. The exact
number and type of first aid providers needed is largely
based on:
• The number of workers in the workplace;
• The nature and extent of the hazards in the workplace;
• How long it
For example, workplaces with large workforces that
perform high risk activities likely need multiple first aid
providers who have high levels of first aid training. And even
a small workplace with medium to low risk activities may
need a highly trained first aid provider if it’s in a “remote
location,” that is, one that would take emergency medical
responders more than a few hours to reach.
Many OHS laws include detailed charts on the number of
first aid providers, first aid kits and first aid rooms various
kinds of workplaces need and the level of training the first
aid providers require. To determine in which category your
workplace falls, conduct an assessment of the workplace
that considers the above factors as well as the types of
injuries likely to occur and then consult your jurisdiction’s
OHS law.
Step #2: Ensure First Aid Providers Are Qualified
Once you’ve determined how many first aid providers your
workplace needs, ensure that you have enough workers
who are qualified as first aid providers. There are three
types of qualifications workers must meet to be first aid
Personal. Some jurisdictions limit which types of people
can be first aid providers. For example, in BC, a “first aid
attendant” must be at least 16 years old and physically and
mentally capable of safely and effectively giving first aid,
for example, strong enough to provide CPR effectively and
doesn’t faint at the sight of blood.
For more safety compliance advice, visit us on the web at www.OHSInsider.com
Job position. It’s important that first aid providers be
available as soon as possible to provide first aid when
needed. So their “regular” job can’t interfere with being
a first aid provider and they must be easy to contact. For
example, in New Brunswick, employers must ensure that
a worker who’s designated a first aid provider doesn’t
perform work that’s likely to affect his ability to administer
first aid; in BC, employers can’t assign a first aid attendant
jobs that will interfere with his ability to get and respond to
requests for first aid. So a worker who’s frequently off-site
wouldn’t make a good first aid provider.
Training. Qualified first aid providers need two kinds of
• First aid training. Workers must get first aid training from
accredited and approved first aid training providers.
In some cases, the laws even spell out exactly what
topics that training must cover. There are several kinds
of first aid training, from basic or standard training to
emergency training. The type of training your workers
need will depend on the assessment you did of the
workplace and its hazards and the requirements of your
jurisdiction’s OHS law. When workers pass their training,
they’ll be issued first aid certificates that indicate the
type of training they’ve successfully completed, such as
“Level 2” or “Emergency First Aider.”
• Training on workplace first aid policy. You’ll also need
to train designated first aid providers on the company’s
first aid policy and procedures and its emergency
response plan and their role(s) in such plans.
Step #3 Identify First Aid Providers for Co-Workers
Workers need to know who to go to if they or a co-worker
get injured or sick. So the OHS laws generally require
employers to post in the workplace the names of first aid
providers, their locations and their qualifications.
Step #4: Provide Necessary First Aid Equipment
Employers must furnish the supplies first aid providers
need to treat workers in the form of first aid kits and, in
some cases, first aid rooms. The regulations often specify
the contents of these kits and require them to be easily
accessible in the workplace.
Insider Says: For more information on first aid rooms, see
“First Aid: What Are an Employer’s Legal Obligations?, Jan.
2008, p. 1, which includes a checklist of the items a first aid
room should contain.
Have you seen the new
Video Learning Center
on OHSInsider.com?
Step #5: Make Sure First Aid Providers Keep First
Aid Records
Employers are required to keep records of first aid treatment
(sometimes called first aid registers). In most cases, the
first aid provider will be the one completing these records,
which generally include:
• The treated worker’s name;
• The name of the first aid provider who treated him;
• The injury or illness the worker suffered;
• When and how the injury or illness occurred;
• When the worker reported the injury or illness;
• The type of first aid treatment provided; and
• Whether the
The first aid provider should complete the record as soon
as possible after finishing treatment of the injured or ill
worker and he should sign it. Employers may be required
to retain these records for two years (Fed), three years (AB,
BC) or five years (MB, NB, NL, NS, SK). (The chart on pages
16 and 17 spells out the first aid record requirements in
each jurisdiction.)
Go to the Insider's online partner website,
www.OHSInsider.com, to download a model first aid
record that you can adapt and give to first aid providers to
record the treatment they give workers.
Having an adequate number of qualified first aid providers
can literally mean the difference between life and death
for injured workers. So it’s critical that you ensure that
your company complies with the requirements for first
aid providers to safeguard workers’ health and safety and
avoid liability for OHS violations.
October 2011 © Bongarde
Here are the requirements for first aid records in the OHS laws in each jurisdiction:
1. A first aid attendant who renders first aid must
complete and sign a first aid record providing:
a. the date and time of the reporting of the injury
or illness;
b. the full name of the injured or ill worker;
c. date, time and location of the occurrence of the
injury or illness;
d. a brief description of the injury or illness;
e. a brief description of first aid rendered;
1. Employers must record every acute illness or injury
that occurs at the work site in a record kept for that
purpose as soon as practicable after the injury or
illness is reported.
2. The above record must include the following:
a. the worker’s name;
b. name and qualifications of the person giving
first aid;
c. a description of the illness or injury;
d. the first aid given to the worker;
e. date and time of the illness or injury;
f. date and time the illness or injury was reported;
g. where at the work site the worker got ill or
injured; and
1. Employers must maintain at the workplace, in
a form acceptable to the Board, a record of all
injuries and exposures to contaminants covered by
the OHS regulations that are reported or treated.
f. a brief description of the arrangements made
for the treatment or transportation of the
injured or ill worker; and
g. the names of any witnesses.
2. The employer must keep the first aid record for
two years from the date of the entry.
OHS Regs., Part XVI
3. Anyone with access to first aid records must keep
the information in them confidential subject to
injury reporting obligations [Sec. 16.13].
h. the work-related cause of the illness or injury,
if any.
3. Anyone with access to first aid records must keep
the information in them confidential subject to
injury reporting obligations [Sec. 16.13].
4. The person with custody of these records must
ensure that no one but the worker has access to
the worker’s record unless:
a. the record doesn’t identify the worker;
b. the worker has given written permission for
disclosure to the person; or
c. access, use and disclosure is required by law
[Sec. 184].
3. First aid records must be kept confidential and
not disclosed except as permitted by the OHS
regulation or another law [Sec. 3.19].
OHS Code 2009, Part 11
OHS Reg.
2. Employers must keep these records for at least
three years.
Employers must ensure that any illness or injury suffered by a worker in the course of his duties is promptly
recorded and retain the record for five years from the date it’s made [Sec. 5.7].
1. A first aid provider must prepare a written record
that sets out:
a. the name of the injured or ill worker;
b. a description of the injury or illness;
c. the treatment and care provided;
d. a description of the incident and date of
e. the name of the person providing emergency
care; and
f. the date the record was made.
1. Employers must ensure that every first aid kit or
first aid room has an approved register in which is
recorded the particulars of first aid treatment given
to or sought by a worker while at work and of any
case referred for medical attention, including:
a. the full name, age and occupation of the worker;
b. nature of the injury or illness;
c. a short description of the cause of the injury or
d. nature of the work the worker was engaged in
when he was injured or became ill, including
date and time;
e. treatment given, including date and time;
2. The above record must be made as soon as
practicable after the injured or ill worker has
received care.
3. Employers must retain these records for five years
after the date on which they’re made [Sec. 10].
f. disposition of the case, i.e., whether the worker
returned to work, was sent home or to a doctor
or hospital and the means of transportation, if
g. signature of the person making the entry; and
h. at a later time, if necessary, total time lost,
time on restricted work activity and whether a
workers’ comp claim was filed.
2. Employers must retain first aid registers for at least
five years from the date of the last entry [Sec. 10].
For more safety compliance advice, visit us on the web at www.OHSInsider.com
Workplace Safety and Health
Reg., Part 5
First Aid Reg.
OHS First Aid Regs.
Continued from previous page...
1. When a worker is injured, employers must
complete an accident report stating:
a. the worker’s name;
b. date and time of the injury;
c. date and time the worker reported for
d. names of any witnesses;
e. a brief description of the treatment rendered;
f. the signature of the employer and the first aider
or first aid attendant who treated the worker.
2. Employers must maintain a permanent record of
injuries sustained by workers that contains the
above information [Sec. 65].
When a first aid attendant administers first aid to
an injured person at a worksite, the employer of the
injured person must maintain a record for five years
after the date of the injury that includes:
1. the injured person’s name;
2. date and time of the injury;
3. location and nature of the injuries;
4. time when first aid was administered;
5. the first aid treatment provided;
6. name of the first aid attendant; and
7. name of the person to whom the injury was
reported [Sec. 8].
Employers must keep a record of all accidents as
described by an injured worker, including:
1. the date and time of occurrence;
2. the names of any witnesses;
3. nature and exact location of the worker’s
injuries; and
4. date, time and nature of the first aid treatment
given [Sec. 5].
Employers must ensure that all injuries are recorded in the first aid record book [Sec. 9.10].
1. A first aider giving first aid to a worker must
complete a report containing:
a. the first aider’s name;
b. the worker’s name;
c. time and description of the injury or sickness;
d. type of first aid given.
2. The first aider must give the report to the employer
of the establishment or to the principal contractor
on a construction site, who must keep it in a
register reserved for that purpose [Sec. 15].
1. Employers or contractors must ensure that each
first aid station has a first aid register in which is
a. each first aid treatment administered to a
worker while at work; and
b. each case referred for medical attention.
2. Employers or contractors must retain first aid
registers no longer in use for at least five years
from the date on which they ceased to be used
[Sec. 57].
Employers must maintain at the work site a written
record of all injuries, including:
1. the injured worker’s name;
2. date and time of the injury;
3. date and time of reporting;
4. a brief description of how the injury occurred;
5. names of any witnesses;
6. a brief description of the nature of the injury
and the location on the worker’s body;
7. a description of the treatment rendered;
8. injured worker’s signature, when possible; and
9. first aid attendant’s signature [Sec. 8].
One of the many benefits of membership to www.OHSInsider.com is free
access to webinars. And if you can’t catch the webinar live, you can still watch
the presentation online. Some of our recent webinars address:
Minimizing OHS Risk When Using Contractors
Managing the Overweight Workforce
How to Prevent Social Media Harassment in the Workplace
Workplace Drug & Alcohol Testing
Psychological Safety & the Law in the Canadian Workplace.
General Safety Regs., Part III
OHS First Aid Regs.
First Aid Requirements Reg.
(under the Workplace Safety
& Insurance Act)
OHS Regs., Part 9
First Aid Minimum Standards
Reg. (under the Workers’
Compensation Act)
OHS Regs., Part 9
Minimum First Aid Regs.
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October 2011 © Bongarde
Why Your OHS and Wellness Programs Should Work Together
n most workplaces, the OHS program operates independently
of the wellness program—if the company even has a
wellness program. Typically, a safety coordinator runs the
OHS program while the HR director oversees the wellness
program and there’s little, if any, coordination between the
two. But the authors of an article recently published in the
Journal of Occupational and Environmental Medicine (JOEM)
make the case that there’s a symbiotic relationship between
these programs and that running them together is more
effective and leads to greater improvement in workers’ overall
health and safety. Here’s a look at their argument.
The Problem
The authors of the JOEM article note that OHS and wellness
programs cover a wide range of functions and goals,
Assessing worker health status;
Addressing personal health risks;
Recognizing and treating injury or illness early;
Implementing job safety initiatives;
Developing a health and safety culture;
Preventing disabilities;
Assisting workers in returning to work after illnesses
and injuries; and
Implementing behavioural health and environmental
safety initiatives.
As diverse as these activities are, they share common goals:
promoting workers’ overall health and preventing workplace
injuries and illnesses.
But the organizational attitudes toward each type of program
differ. OHS programs are viewed as a “necessary evil” required
for compliance with OHS laws; wellness programs are seen
as an unnecessary “bonus” for workers. Similarly, workplace
injuries are taken more seriously than workers’ overall health
issues. For example, the authors note that when a worker
gets hurt on the job, work often shuts down so a root-cause
analysis can be done to identify and address the cause of
the injury. In contrast, if a worker has a heart attack on the
job, work generally continues uninterrupted and it’s unlikely
anyone would investigate the cause of the incident. Thus,
wellness programs don’t get the respect and commitment
from management or workers that they need to be effective.
The authors also point out that disturbing health-related
trends, such as an increase in chronic conditions (diabetes,
heart disease), and an aging workforce are increasing health
costs for employers. Meanwhile, the cost of workplace injuries
and illnesses on companies also continues to increase. Thus,
there’s clearly a need to improve the effectiveness of both
OHS and wellness programs.
A Proposed Solution
The authors propose a new approach to address this
disconnect between workplace safety and wellness:
“workplace health protection and promotion.” They argue
that this approach will enhance the overall well-being of the
workforce by more closely integrating health promotion (that
is, wellness) and health protection (that is, workplace safety)
activities along a continuum. In this model, health promotion
initiatives contribute dynamically to improved personal safety
in addition to enhancing personal health; occupational safety
initiatives contribute dynamically to improved personal health
in addition to enhancing personal safety.
There’s evidence of ties between wellness and workplace
safety that suggests an integrated approach is more effective
at reducing injuries and illnesses and improving workers’ overall
health. For example, studies have shown that factors such as
good physical condition, absence of chronic illness and good
mental health are associated with low occupational injury
rates. Conversely, it has been shown that workers with certain
adverse health risk factors such as obesity, sleep deprivation,
poorly controlled diabetes, smoking and drug or alcohol abuse
are more likely to sustain workplace injuries than those without
such risks. Researchers have also found a statistically increased
risk for accidental death in obese workers and determined that
hearing loss and poor eyesight are associated with injuries on
the job.
The authors acknowledge that their workplace health
protection and promotion approach isn’t novel. In fact, the
integration of workplace safety and wellness programs is being
touted by various workplace safety organizations such as the
US National Safety Council, NIOSH, the American College of
Occupational and Environmental Medicine, the International
Labour Organization, the UK’s National Health Service and the
EU’s Safety and Health at Work Strategy.
For more safety compliance advice, visit us on the web at www.OHSInsider.com
The new integrated models these groups are promoting
include the following common elements:
Building a “whole life” approach to health and safety,
which combines both on-the-job and off-the-job
aspects in a unified vision that leads to a true “culture
of health”;
Stressing the importance and connection of overall
health and wellness to safety outcomes; and
Recognizing the evolution in the nature of workplace
hazards and including this awareness in the development
of health strategies.
The basic theory underlying the JOEM article is that a healthier
workforce can be a safer workforce and vice versa. Thus, the
idea is to morph your workplace’s safety culture into a more
inclusive and broader “culture of health.” You can achieve
better integration of workplace safety and wellness in your
workplace and thus better protect workers by:
Implementing programs that recognize the interactions of
safety, environment and health;
Creating a climate in which workers believe that the
company cares about their health and safety;
Building a culture in which a health and safety mindset
becomes a “24/7” way of thinking; and
Promoting an off-the-job health and safety focus that
becomes as important as—and overlaps with—the onthe-job health and safety focus.
Insider Says: For more information and tips on how to integrate
workplace safety and wellness programs, see a guide for employers
released by California, The Whole Worker: Guidelines for Integrating
Occupational Health and Safety with Workplace Wellness Programs.
And on OHSInsider.com, you can download an OHS and Wellness
Program Integration Checklist to help guide the integration process
in your company.
Workplace Health Protection and Promotion: A New Pathway
for a Healthier—and Safer—Workplace, Pamela A. Hymel et
al, Journal of Occupational and Environmental Medicine, June
Why Focus on General Health Issues in the Workplace?
There are many reasons why companies should focus on general health issues in the workplace, including:
• Workplace programs can reach segments of the population who may not have access to health information
in other settings;
• Workplaces concentrate groups of people together who share a common purpose and culture;
• The work environment can be used to advocate for and provide access to healthy lifestyles;
• Communicating with workers is straightforward due to pre-established and well-organized communication
• Workplaces provide social and organizational supports;
• Organizational hierarchies enable the introduction of procedures, practices and norms as to health;
• The workplace’s physical environment can be used to affect health behaviours, such as healthy food
options in the cafeteria, ergonomic office design, encouraging the use of stairways, etc.; and
• Financial and other incentives can be used in the workplace to gain participation in programs.
October 2011 © Bongarde
Expressly Ban Weapons
from the Workplace
Include language in your company’s workplace
violence and harassment policy that expressly bars
workers—and visitors—from bringing weapons
to work and from possessing and using weapons
in your workplace. The policy should also include
a broad definition of “weapon” that covers items
such as knives, hand guns, stun guns, rifles, box
cutters and police-type batons. And make sure to
post signs at entrances to the workplace as well as
inside stating that weapons are banned.
Banning weapons won’t eliminate the risk of
workplace violence, of course. Workers who intend
to commit premeditated acts of violence are unlikely
to be deterred by a rule saying they can’t bring
weapons to the workplace. But a weapons ban
can help minimize the harm posed by spontaneous
attacks and prevent angry confrontations from
escalating into deadly encounters. Workers who
lose their temper at work don’t need a weapon to
commit an act of violence. For example, an irate
worker could still punch his supervisor or even use
an everyday object, such as a wrench, stapler or
even a chair, as a make-shift weapon. However,
such incidents would be much worse if the attacker
had brought a "real" weapon to work.
Workers’ Concerns about
 Don’t Ignore
Co-Worker’s Behaviour
If a worker comes to you or a supervisor with concerns about a co-worker’s
behaviour, don’t just ignore or downplay these concerns. Try to determine if
they’re valid and if there’s an issue with the co-worker that needs to be addressed.
Ignoring concerns once they’ve been brought to your attention lets the problem
get worse and increases the likelihood that an incident will occur—and that you
may be held responsible for it.
That’s what happened at an Ontario paper mill. A worker inadvertently hit a coworker in the head as he was flipping a heavy sheet of paper being spun from a
reel. The two men got into a screaming match, during which the co-worker chestbumped the worker and challenged him to settle things in the parking lot. The
company fired the co-worker. But an arbitrator ruled that an 11 months’ unpaid
suspension was enough punishment. The co-worker had been trained on the
company’s violence policy, which his conduct violated. But the other worker’s
conduct incited the co-worker and exacerbated the incident.
The arbitrator was also critical of the paper mill, particularly the co-worker’s
supervisor. The co-worker had raised concerns about the worker’s behaviour and
“odd demeanour” to his immediate supervisor, describing the worker as passiveaggressive, really distant and tense. But the supervisor did nothing to address these
concerns. As a result, frustration built up between the two workers, resulting in
the physical altercation.
Bottom line: The incident could have been avoided if the supervisor had
responded appropriately when alerted to the worker’s unusual behaviour,
concluded the arbitrator. And because the company shared some of the blame
for the incident and considering all the circumstances, it could only suspend the
co-worker for conduct that might have otherwise warranted termination [Georgia
Pacific Canada Inc. v. Communications, Energy and Paperworkers Union of Canada,
Local 192, [2011] CanLII 18182 (ON L.A.), March 28, 2011].
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