Can You Spot the Safety Violation?See page 15 for the answer...

IN THIS ISSUE

RETURN TO WORK: The 7 Principles for Successful RTW 6

CASE OF THE MONTH: How Much Information Does a Company Needto Defend Itself from OHS Violations? 8

MONTH IN REVIEW: Fines, New Laws & Cases 9

TEST yOUR OHS I.Q.: Does Worker’s Comp Cover MedicalMarijuana Used to Treat Pain from Compensable Injury? 12

WHMIS 2015: How Does It Compare to the US Version of GHS? 13

SPOT THE SAFETy VIOLATION: Snowy Roofs & Fall Protection 15

DOS & DON’TS:Adequately Protect Workers when Machine Guards Must Be Removed 16

THE INSIDER’S 12th DUE DILIGENCE SCORECARD:

Recent Cases Involving the Due Diligence DefenceOnce again, it’s time to focus on the all-

important topic of due diligence. Having a good understanding of the due diligence defence is critical to understanding compliance with the OHS laws. Safety professionals who have a solid grasp of the factors courts consider when deciding whether a company—or an individual—exercised due diligence and how they analyze those factors will be more successful in ensuring that their companies take all reasonable steps to protect workers’ health and safety and comply with the OHS acts and regulations.

For the 12th year, the OHS Insider’s annual Due Diligence Scorecard includes reported safety cases from across Canada that involve the due diligence defence. This year’s edition includes cases decided since Sept. 2015. As always, we start with a brief review of some basic facts about due diligence, and then summarize the facts and decisions in the cases. The Scorecard itself begins on page 2.

DUE DILIGENCE 101Here’s a quick overview of some basic facts about the due diligence defence:

�� There are two kinds of due diligence: reasonable steps—the type most commonly argued—and reasonable mistake of fact;

�� Due diligence is a defence—that is, it must be proven by a company or individual charged with an OHS violation on a balance of probabilities once the prosecution has proven that violation beyond a reasonable doubt;

�� Anyone charged with a violation of the OHS laws, including organizations, government agencies or companies and individuals such as corporate executives, owners, supervisors and workers, can raise a due diligence defence;

�� The due diligence defence applies to violations of not only the OHS laws but also environmental and other so-called “regulatory” laws, such as traffic safety laws. (See the sidebar on p. 5 for an example of the due diligence defence in an

FeatuRe: the Insider ’s 12th annual Due Diligence Scorecard

NOVEMbEr 2016Volume 12, Issue 11

www.OHSINSIDEr.COM

A SAFETYSMART SERVICE

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AbOUT USOHS Insider is published by Bongarde Holdings Inc. and is intended for in-house use only – commercial reproduction is a violation of our copyright agreement.

This publication is designed to provide accurate and authoritative information on the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting or other professional services. If legal or other expert assistance is required, the services of a competent professional should be sought.

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environmental prosecution.) It may also apply when a company has been issued an administrative penalty or safety compliance direction;

�� Courts consider various factors when evaluating a due diligence defence, most notably foreseeability, preventability, control and degree of harm; and

�� Although due diligence isn’t technically a defence to criminal negligence or so-called “C-45” or Westray charges, proving that you exercised due diligence makes it nearly impossible to be convicted of criminal negligence.

THE SCOrECArDThis year, we found nine safety prosecutions decided since Sept. 2015 involving a company’s due diligence defence. (Last year’s Scorecard had 14 cases.) Remember: The Scorecard doesn’t reflect all of the safety prosecutions in a given period of time. That’s because most prosecutions of OHS violations are resolved when the company or individual pleads guilty. In such cases, the due diligence defence is never raised and analyzed. In addition, many court decisions in safety prosecutions that do go to trial aren’t reported or published.

In this year’s Scorecard, the defendants (who were all companies this year):

�� Won in one case from Saskatchewan; and

�� Lost in eight cases from BC, NS and ON.

For each of the cases in this year’s Scorecard, we tell you what happened, whether the company won or lost and how the court, tribunal or board analyzed the due diligence defence. And next month, in Part 2, we’ll explain the lessons you can learn from these cases and use to evaluate and improve your own OHS program.

COMPANY wINSSK: Saskatchewan Power

What Happened: A foreman at a coal-fired power plant was very concerned about a buildup of ice in a culvert near the utility shop. He raised his concerns with his superiors, but they didn’t believe the ice was a serious problem and told him to leave it alone. But the foreman decided to address the issue himself by placing a “tiger torch” in the culvert to melt the ice. He then asked a worker who’d be driving by the culvert to check on the torch. The worker did so and saw that the torch had gone out. When the worker relit it, there was a fireball that burned his face, fingers, hand and arm. As a result, the plant was charged with four safety violations, including providing inadequate training and supervision.

Ruling: The Provincial Court of Saskatchewan acquitted the power company, ruling that it had exercised due diligence.

Analysis: The trial court found that, in general, safety was important to the company. For example, the company had specific work procedures, including one for “hot work,” which would include work involving use of a tiger torch. The foreman had been properly trained on all safety procedures and had followed them in the past. But the foreman didn’t follow the hot work procedures when using the tiger torch. And in fact, he specifically defied instructions not to address the culvert issue. In addition, it wasn’t foreseeable that the worker, who’d only been an employee for 10 months, would use the tiger torch—a rarely used piece of equipment—and so need training on it. So the court concluded that the company had exercised due diligence as to all charges.

R. v. Saskatchewan Power Corp., [2016] SKPC 2 (CanLII), Jan. 29, 2016

COMPANY LOSES

BC: WCAT-2015-03747

What Happened: During an inspection of an employer’s plant, an occupational safety officer found an accumulation of wood dust in the packaging room. In some areas, the dust was 4-6 inches deep. The accumulation of dust was due to

Insider Says: Go to the OHS Insider’s Due Diligence Compliance Centre for more information on this concept, including:

�� Answers to 6 FAQs about due diligence;

�� Understanding the reasonable mistake of fact form of the defence;

�� 10 due diligence traps to avoid; and

�� Industry standards and due diligence.

DUE DILIGENCE SCOrECArD Here’s a synopsis of nine cases decided since Sept. 2015 in which a court,

tribunal or board had to evaluate a company’s due diligence defence.

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a leak that had been patched with duct tape and a torn boot on the pellet screen outfeed. The dust accumulations were in contact with potential ignition sources and thus posed the risk of serious injury or death to workers—especially given that the building’s emergency exit was located directly below the hazard area. And the dust accumulations had been present for two to three days. As a result, the employer was issued an administrative penalty for a high risk violation. It appealed.

Ruling: The BC Workers’ Compensation Appeals Tribunal upheld the penalty, ruling that the employer hadn’t exercised due diligence.

Analysis: The employer argued that it had an effective wood dust control program that educated workers on the importance of wood dust control and the actions to take to address accumulations of dust. It claimed that the dust accumulations found during the inspection were unforeseeable. But the Tribunal found that the employer didn’t have an effective overall program to ensure compliance with the combustible dust requirements under the OHS laws. Given the levels of dust in the room, these areas were either missed during cleaning, the cleaning schedule wasn’t adequate or the workers and supervisors weren’t attentive or responsive to this hazard. And in light of the fact that the employer had been issued the same violation three other times within the prior two years, the Tribunal wasn’t persuaded that the employer had taken all reasonable steps to avoid these dangerous dust accumulations.

WCAT-2015-03747 (Re), [2015] CanLII 95187 (BC WCAT), Dec. 11, 2015

BC: WCAT-2016-00094

What Happened: Occupational safety officers saw a roofing company’s worker on the sloped roof of a house about 18 feet above the ground. He was throwing roofing materials into a garbage bin below. Although the worker was wearing a fall protection harness, it wasn’t attached to an available lifeline. When one officer asked the company’s owner why the worker wasn’t tied off, the owner told the officer to ask the worker himself because he wasn’t “their baby sitter.” The worker said he’d disconnected so he could remove some debris from the roof and disentangle his rope. But he also later said his shoulder strap was down because he had a sunburn. The officer issued the roofing company an administrative penalty for violations related to fall protection, training and supervision, which it appealed.

Ruling: The BC Workers’ Compensation Appeals Tribunal upheld the penalty, ruling that the roofing company hadn’t exercised due diligence.

Analysis: The Tribunal acknowledged that the roofing company had taken some steps to ensure compliance with the fall protection requirements—but it hadn’t taken all reasonable steps. For example, the workers said they only

received “informal training.” The company couldn’t provide any documentary evidence of what training was provided, when it was provided and which workers received it. And that training appeared to miss important elements, such as how to prevent harness lines from getting entangled. In addition, because this worker had previously failed to wear fall protection, the company should’ve more closely supervised him, observed the Tribunal.

WCAT-2016-00094 (Re), [2016] CanLII 17383 (BC WCAT), Jan. 12, 2016

BC: WCAT-2016-00178

What Happened: A driver for a trucking company was trying to unload a trailer full of crushed rock but the trailer gate was stuck. As he was trying to unstick the gate, the load of rock released unexpectedly. The driver was buried up to his chest and suffered fatal injuries. During an investigation of the incident, it was discovered that the driver was likely impaired by morphine or heroin at the time. This impairment contributed to two errors in judgment he made, which resulted in the tragic incident. The Workers’ Compensation Board concluded that the company had violated its duty to provide proper training and supervision to its workers. Among other things, the company had inadequate procedures for ensuring that workers weren’t under the influence of drugs or alcohol. The Board issued the trucking company an administrative penalty, which it appealed.

Ruling: The BC Workers’ Compensation Appeals Tribunal upheld the penalty, ruling that the trucking company hadn’t exercised due diligence.

Analysis: The company argued that the driver was clearly impaired and thus at fault for the incident. But the Tribunal said it’s difficult to understand how an effectively supervised worker could be permitted to operate a truck in that condition in the first place. Trucking is a safety-sensitive business. Drug impairment in this industry endangers both workers and the general public. So supervising drivers to ensure that they aren’t impaired is critical. But other than a statement in the company’s safety manual that impairment was prohibited and could result in termination, the company appeared to have left the issue up to its drivers, concluded the Tribunal.

WCAT-2016-00178 (Re), [2016] CanLII 18124 (BC WCAT), Jan. 21, 2016

BC: WCAT-2016-00528

What Happened: An occupational safety officer saw workers and a supervisor for a construction and roofing company on a 3.12 pitch roof with no fall protection in place. They were about six feet from the roof’s edge, which was about 15 feet above the ground, with no barriers in place to prevent them from falling. In addition, an extension

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ladder positioned against the roof was tall enough to contact power lines attached to the house if the ladder fell sideways. As a result, the company was issued an administrative penalty for fall protection and ladder safety violations. The company appealed.

Ruling: The BC Workers’ Compensation Appeals Tribunal upheld the penalty, ruling that the company hadn’t exercised due diligence.

Analysis: Although the company claimed that it provided adequate training and supervision as to fall protection, it had gotten numerous orders and administrative penalties over a two year period, noted the Tribunal. It also didn’t have a documented safety program and failed to provide sufficient evidence of its training plans or schedules, fall protection plans, monitoring of workers, toolbox talks or other attempts to exercise due diligence. Moreover, it was significant that a supervisor was on the roof and aware that workers near the edge didn’t have fall protection.

WCAT-2016-00528 (Re), [2016] CanLII 17767 (BC WCAT), Feb. 22, 2016

NS: Southwest Construction

What Happened: During an inspection of a large residential construction site, an OHS inspector saw an opening in a floor for an elevator. The opening didn’t have guardrails but did have caution tape around it. If a worker fell through that opening, he’d fall more than three metres. The inspector also saw a carpenter working on his knees, laying plywood within feet of this opening. Although the carpenter was wearing a fall restraint harness, his rope was too slack to provide adequate protection if he fell through the opening. As a result, the prime contractor was issued administrative penalties relating to guardrail and fall protection violations, which it appealed.

Ruling: The Nova Scotia Labour Board upheld the penalty, ruling that the prime contractor hadn’t exercised due diligence.

Analysis: The Labour Board found that the unprotected opening posed a foreseeable risk to the nearby carpenter. Although it was the job of a subcontractor to install guardrails around this opening, the prime contractor had overall charge of safety on the project. And the prime contractor did take steps to ensure safety at the site, such as having a safety manual and an on-site safety officer, who did daily site inspections. But it appeared that certain safety provisions weren’t strictly enforced. For example, guardrails had been in place around the opening but were taken down—and there was no evidence as to why or when that happened. Thus, the prime contractor didn’t exercise due diligence to prevent the violations for which the administrative penalties were imposed.

Southwest Construction Management Limited (Re), [2016] NSLB 129 (CanLII), April 14, 2016

NS: Red Apple

What Happened: An OHS inspector inspected a retail store that used a conveyor to move inventory from one level to the other. The conveyor had been in use at the store for 18 years. The inspector saw that the conveyor lacked protection at three pinch points, where a worker’s clothing, hair or other body part could get caught and dragged into the moving machinery. So he issued the store a compliance order, requiring it to ensure that all pinch points on the conveyor were guarded, and imposed a $500 administrative penalty, which the store appealed.

Ruling: The Nova Scotia Labour Board upheld the penalty, ruling that the store hadn’t exercised due diligence.

Analysis: Based on photos of the conveyor, it was apparent that a worker with long hair or loose clothing could become entangled in the equipment, with very serious consequences. The fact that there hadn’t been any safety incidents or injuries, or near misses involving the conveyor and these pinch points wasn’t evidence of due diligence, explained the Board. The store simply never considered the possibility that it was operating potentially unsafe equipment, which it should’ve given the age of the conveyor. The store argued that it had never been brought to its attention that the conveyor wasn’t in compliance with the OHS laws. But if you own and operator a conveyor, said the Board, you have a legal duty to know the law that applies to such devices and to comply with it.

Red Apple Stores Inc. (Re), [2016] NSLB 138 (CanLII), April 21, 2016

ON: Wal-Mart

What Happened: An empty wooden pallet lay on the floor in the receiving area of a store and in an aisle that led to an emergency exit. A worker was unloading a full pallet from a truck onto a pallet jack. While walking backwards, he tripped on the empty pallet, fell and hit his head on stacks of items. The worker complained of a headache and called in sick the next day. He never returned to work and died two weeks later. The store was charged with failing to ensure the floor was kept free of obstructions, hazards and accumulations of refuse, snow or ice. It argued that it had exercised due diligence and that the worker was at fault for not “exercising ordinary prudence.”

Ruling: The Ontario Court of Justice convicted the store, ruling that it hadn’t exercised due diligence.

Analysis: An empty skid shouldn’t have been left on the floor of the receiving area because it posed a risk that someone might trip over it. Because the aisle where this skid was left was a “major thoroughfare in the back room” and a path to an emergency exit, it was especially critical that this area be kept clear of obstructions. Although the store pointed to its safety sweep program and clean-as-you-go policy, it didn’t produce the receiving area logs, which would show either the diligent sweep of this area or the

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failure to do so as well as the presence or absence of obstructions. Without this logbook for the receiving area, there was no direct evidence on which the court could conclude that that program and policy were actually implemented in that particular area. As to the store’s blaming of the worker, the court explained that “if it were a perfect world and all employees were always prudent and careful,” there would be no need for the OHS laws. And this worker didn’t have a history of failing to work safely.

Ontario (Ministry of Labour) v. Wal-Mart Canada Corp., [2016] ONCJ 267 (CanLII), May 6, 2016

ON: Advanced Construction

What Happened: A worker was operating a backhoe at a construction site for the extension of a subway line. A drill rig on a platform, which was owned and operated by a subcontractor, fell over and crushed his backhoe, killing him. The drill rig also fell on an excavator operated by another worker, who was so badly injured that he couldn’t work for almost three years. The Ontario Ministry of Labour charged the subcontractor with OHS violations related to its failure to provide a proper platform for the drill rig.

Ruling: The Ontario Court of Justice convicted the subcontractor, finding that it hadn’t exercised due diligence.

Analysis: The Crown argued that the platform the subcontractor provided wasn’t adequate because the soil base couldn’t withstand the weight and pressure of the drill rig. In response, the subcontractor said it was reasonable for it to provide the drill rig manufacturer’s specifications to another company and rely on that company to identify the soil’s bearing capacity and confirm that the soil met those specifications. But the court found that sending the specifications to that company was only a reasonable first step to ensuring that the platform was adequate. To exercise due diligence, the subcontractor had to follow up and confirm that the soil’s bearing capacity had been identified and was adequate for the drill rig, which it didn’t do. In fact, there was no evidence that the subcontractor took any other steps to confirm that the platform could support the drill rig. The court also noted that although the subcontractor did have a good safety record, a thorough written safety policy and documented daily safety meetings, proof of its general safety policy and methods didn’t establish that it exercised due diligence as to the design of the drill rig platform and the soil’s bearing capacity.

Ontario (Ministry of Labour) v. Advanced Construction Techniques Ltd., [2016] ONCJ 482 (CanLII), Aug. 3, 2016

the Due Diligence Defence in an environmental ProsecutionAs noted, due diligence is a defence not only in OHS prosecutions but also in prosecutions for other kinds of offences, including violations of environmental law. Here’s an example of such a case.

What Happened: A company’s licences authorized it to engage in commercial fishing in particular zones on Lake Erie. The licences required the company to submit complete and accurate Daily Catch Reports (DCRs), which were signed by the vessel’s captain. Based on warrants, the Ministry installed a tracking device on a company vessel and later searched the ship while it was at dock. Officers seized three logbooks written by the ship’s captain. A review of the logbooks revealed deficiencies when the logbook entries were compared to the DCRs. And based on information from the tracking device, the Ministry determined that several of the DCRs submitted by the captain contained false and misleading information. As a result, the company was charged with violating provincial and federal fishing laws and regulations. The trial court acquitted the company, so the Crown appealed.

Ruling: The Ontario Superior Court of Justice overturned the acquittals and convicted the company, ruling that it hadn’t exercised due diligence.

analysis: The appeals court explained that the due diligence defence requires a company to prove that it had in place a proper system to ensure compliance with the terms and conditions of its licences and that it took all reasonable steps to ensure that the system operated properly. The trial judge erred by failing to consider what a proper system would consist of and what system the company could’ve reasonably put in place to ensure compliance with its licences, concluded the appeals court. In fact, there was no evidence that the company had any system in place to address compliance with the requirement for accuracy and completeness of records. One of the company’s directors met each year with the captain to review the terms of the licences and then merely asked the captain whether he was complying and accepted his positive responses without question. In short, the director and company “did little or nothing to ensure accurate and complete records were being kept,” said the appeals court. The director simply left compliance entirely to the captain’s “good judgment,” although he knew the captain had a lengthy history of non-compliance, including violations for misreporting in DCRs. And there was no evidence that the director stressed to the captain that there would be serious consequences if he failed to comply with the terms of the licences.

The trial court had concluded that there was little or nothing more the company could’ve done but “provide a sharp pencil, log book and DCR book.” But the appeals court said “that sets the bar far too low” and applies an incorrect standard to the company’s conduct. At a minimum, a proper system would entail the following steps:

�� Semi-annual meetings with the captain to review in detail the terms and conditions of the company’s licences;

�� A copy of the licences’ terms and conditions should be kept in both the office and on the vessel in a prominent location;

�� Periodic random reviews of the logbook by the owner for completeness;

�� Periodic random comparisons of the information in the logbook with that on the DCRs to ensure the information corresponds;

�� A system for the imposition of warnings and discipline up to and including termination for non-compliance or repeated non-compliance; and

�� A requirement that another crew member initial the daily entries in the logbook to verify the information recorded.

The appeals court concluded that there’s no question that the owner of a vessel must, to a large degree, trust the vessel’s captain. But that trust can’t be blind. There must be a system of oversight by which the vessel’s owner can reasonably ascertain that the terms of its license are being met [R. v. Pisces Fishery Inc., [2016] ONSC 618 (CanLII), Jan. 26, 2016].

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A fter workers have suffered an injury or illness, employers have a duty to help them return to work

(RTW) and eventually to the jobs they held before they got hurt or sick. But successful RTW can be hard to achieve. That’s why researchers at the Institute for Work & Health (IWH) conducted a systematic review of the RTW studies published since 1990 to compile a comprehensive summary of the most effective workplace-based RTW interventions. As a result of this review, the IWH identified several elements contributing to a successful RTW. Here’s a look at the seven principles the IWH researchers developed based on those elements.

7 rTw PrINCIPLESThe IWH review focused on duration and costs of work disability, and workers’ quality of life. Overall, the review found that workplace-based RTW interventions have positive impacts on duration and costs but only weak evidence they had a positive impact on workers’ quality of life. Based on the findings of this review (and other research that was current in the years after the review), the IWH developed these seven principles for successful RTW:

1. The workplace has a strong commitment to health and safety, which is demonstrated by the behaviours of the workplace parties.As the old saying goes, “Actions speak louder than words.” Research evidence has shown that it’s behaviours in the workplace that are associated with good RTW outcomes, including:

�� Senior management investment of company resources and people’s time to promote safety and coordinated RTW;

�� Labour support for safety policies and RTW programs, such as by including RTW job placement practices in policies and procedures and/or the collective agreement; and

�� Commitment to safety issues as the accepted norm across the organization.

2. The employer makes an offer of modified work to injured/ill workers so they can return early and safely to work activities suitable to their abilities.A key employer duty in terms of RTW is accommodating returning workers based on any restrictions imposed by the injury or illness, such as limits on how much they can lift or how long they can stand. But arranging appropriate

accommodations requires many considerations because inappropriate or awkward modifications can contribute to the breakdown of the RTW process. Ideally, you should strive to return a worker to his own work area where the environment, people and practices are familiar. In some cases, such as when RTW planners are having difficulty creating an appropriate modified job, the IWH review suggests that it may be helpful to employ the services of someone with ergonomics expertise.

3. RTW planners ensure the plan supports the returning worker without disadvantaging co-workers and supervisors.RTW planning is more than matching the injured worker’s physical restrictions to a job accommodation. Planning must acknowledge RTW as a “socially fragile process” where co-workers and supervisors may be thrust into new relationships and routines, found the researchers. If others are disadvantaged by the RTW plan, it can lead to resentment towards the returning worker, rather than cooperation with the RTW process.

For example, the injured worker may have to deal with co-workers who resent having to take over some of his work and so feel that the worker has managed to get an “easier” job. And supervisors may be required to fulfill production quotas despite accommodating a returning worker and may not have the effort that such accommodation requires fully acknowledged. Workplaces that create individual RTW plans that anticipate and avoid these pitfalls will probably have better outcomes.

4. Supervisors are trained in work disability prevention and included in RTW planning.The IWH review identified supervisors as important to the success of RTW due to their proximity to the worker and their ability to manage the immediate RTW work environment. Educating managers and supervisors in areas such as safety training or participatory ergonomics was also found to contribute to successful RTW. Discussions with workers and supervisors who participated in interactive workshops at an OHS conference reinforced that, when supervisors are completely left out of the RTW planning process, they feel ill equipped to accommodate returning workers. One study reported positive results from a program in which supervisors were given ergonomics and safety training, and taught how to be positive and empathetic in early contact with workers, as well as how to arrange accommodations, follow up and solve problems on a regular basis.

RETURN TO WORK:

the 7 Principles for Successful RtW

Insider Says: For information on an employer’s general RTW duties, see How to Comply with Return to Work Requirements.

Insider Says: For more on the importance of co-workers, see RETURN TO WORK: The Role of Co-Workers in a Successful RTW Program.

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5. The employer makes early and considerate contact with injured/ill workers.Early contact is a core component of most disability management programs and thus associated with better RTW results. Contact within the first week or two is only a guideline as the actual time-frame may vary depending on the worker’s specific situation. Ideally, the worker’s immediate supervisor should make the contact because it helps him feel connected to his workplace and colleagues. This conversation should show that the employer cares about the worker’s well-being and not involve issues such as discussing injury causation or blame. Also, if the worker feels that the contact is a reflection of the employer’s concern about finances—and not his health—it can poison the RTW process. Lastly, the worker’s general perception of the workplace and its concern for workers will influence how he responds to employer contact. Bottom line: Early contact is most successful when it builds on a work environment characterized by a shared sense of goodwill and confidence. (Use this Return to Work Contact Log to document these conversations.)

6. Someone has the responsibility to coordinate RTW.Studies covered in the review described successful RTW programs as involving a RTW coordinator whose responsibility it was to coordinate the RTW process. The coordination role may be performed by someone within the company or someone external. In either case, this coordination role involves:

�� Providing individualized planning and coordination that’s adapted to the worker’s initial and on-going needs;

�� Ensuring that the necessary communication doesn’t break down at any point; and

�� Ensuring that the worker and other RTW players, including co-workers, supervisors, managers, healthcare providers, disability managers and insurers, understand what to expect and what’s expected of them.

7. Employers and healthcare providers communicate with each other about the workplace demands, as needed, and with the worker’s consent.The IWH review found that contact between workplaces and healthcare providers reduced work disability duration. Depending on the circumstances, the healthcare providers involved might include physicians, chiropractors, ergonomists, kinesiologists, occupational therapists, physiotherapists and nurses. These providers can play a significant role in the RTW process because the injured worker is often looking to his healthcare provider(s) for information about his condition and for RTW advice. Thus, the more these players understand the worker’s job and the workplace’s ability to provide accommodation, the

better able they are to advise the worker and participate in informed RTW decision making.

In straightforward situations, such as where the worker’s return is uncomplicated, contact may not be necessary; in other cases, it should happen. But you must get permission from the worker for this contact to proceed. The degree and nature of the contact between the workplace and healthcare providers can vary depending on individual circumstances, including:

�� A paper-based information exchange, such as the employer sending information on job demands and/or work accommodation options to the family doctor;

�� A telephone conversation about work and job demands; and

�� A workplace visit by a healthcare provider to view the work activities and converse directly with the supervisor or employer.

In some cases, a healthcare provider may be involved in delivering a fully integrated clinical and occupational approach to RTW, including medical assessment, follow up and monitoring, plus jobsite evaluations and ergonomic interventions. Employers who have difficulty contacting physicians or feel that physicians delay RTW may end up second-guessing the worker’s doctor when making judgments about the worker’s recovery and ability to RTW. So family physicians who don’t have time to consult with the workplace or make a workplace visit may benefit from having other rehabilitation and occupational health professionals act as a “bridge” between the workplace and healthcare system, such as by providing the physician with succinct and essential information about the worker’s job and workplace to assist with RTW planning.

INSIDER SOURCE“Seven ‘Principles’ for Successful Return to Work,” Institute for Work & Health, Ontario, CA, originally published in 2007 (revised in 2014)

Insider Says: For more on the role of supervisors in RTW, see Using Supervisors to Improve the Return-to-Work Process, Part 1 and Part 2.

at a GLaNCe: 7 Principles for Successful RtW1. The workplace has a strong commitment to health and safety, which is

demonstrated by the behaviours of the workplace parties.

2. The employer makes an offer of modified work (also known as work accommodation) to injured/ill workers so they can return early and safely to work activities suitable to their abilities.

3. RTW planners ensure the plan supports the returning worker without disadvantaging co-workers and supervisors.

4. Supervisors are trained in work disability prevention and included in RTW planning.

5. The employer makes early and considerate contact with injured/ill workers.

6. Someone has the responsibility to coordinate RTW.

7. Employers and healthcare providers communicate with each other about the workplace demands, as needed, and with the worker’s consent.

CASE OF THE MONTHHow Much Information Does a Company Need to Defend Itself from OHS Violations?

In the board game “Clue,” you don’t win by just identifying the murderer. You must spell out certain details of the

faux crime—that is, Colonel Mustard in the library with the candlestick. Similarly, in a safety prosecution, the Crown can’t simply accuse a company or individual of violating the OHS laws. The government must provide certain information about the alleged violations, such as the sections of the law or requirements the defendant allegedly violated, and where and when these violations occurred. But exactly how much detail must the Crown provide in the so-called “particulars” so that the accused can adequately defend itself? A court in Alberta recently responded to a request by a defendant for the dismissal of an OHS prosecution based on insufficient particulars in the charges. Here’s a look at its ruling.

THE CASEWhat Happened: During welding at a shut in sweet gas well, an uncontrolled fire occurred. A welder sustained injuries, which required him to stay more than two days in the hospital. As a result, a company was charged with six violations of the OHS laws as both a contractor and prime contractor. It asked the court to dismiss the charges, arguing that they were “so devoid of particulars” that they were defective on their face and that, because of the lack of particularity, it was “prejudiced in its ability to make full answer and defence.”

What the Court Decided: The Provincial Court of Alberta dismissed the application, ruling that the charges were sufficient as drafted.

The Court’s Reasoning: The court noted that each of the counts specified a particular date and a general location. Other than those particulars, the wording of the charges was taken from the OHS laws. That is, the charges were worded in the statutory language creating the offence. For example, Count One said, “On or about the 7th day of October, 2012, at or near Grande Prairie, Alberta, being a contractor directing the activities of an employer involved in work at a work site, did fail to ensure, as far as it was reasonably practicable to do so, that the Occupational Health and Safety Act, Regulation and the Adopted Code were complied with in respect of the work site, contrary to section 2(5) of the Occupational Health and Safety Act, R.S.A. 2000, Chapter 0-2, as amended.”

The court explained that the law requires the prosecution to provide “sufficient detail of the circumstances of the alleged offence to give to the accused reasonable information with respect to the act or omission to be proved against him and to identify the transaction referred to.” But the

charges themselves aren’t necessarily the only source of this information for the defendant. The prosecution is also required to provide additional information to a defendant in the form of disclosure. The court concluded that, in assessing the sufficiency of the charges, “the disclosure regime should not be ignored.”

As to this specific case, the company had an incident that was investigated by OHS authorities, who then determined whether charges under the OHS laws were merited. The current charges are the result of that process. Thus, the company “almost certainly knows what transaction is referred to in the counts.” In addition, through disclosure, it’ll know all the evidence in the Crown’s possession. So the court concluded that it’s difficult to understand how the company is “prejudiced in its ability to make full answer and defence, even when the charges make use of the statutory language.” (Note that despite this ruling, the Crown voluntarily agreed to amend the charges to provide more details) [R. v. ConocoPhillips Canada Resources Corp., [2016] ABPC 176 (CanLII), Aug. 11, 2016].

ANALYSISIt’s only fair that a company or individual know what it’s accused of doing—or failing to do—so that it can properly defend itself in an OHS prosecution. The need for particulars is especially critical if the defendant is simply charged with violating the so-called “general duty” clause as opposed to a specific requirement in the OHS laws. But as the court noted in Conoco, the charges themselves are not the only source of information a defendant has on the accusations. And a defendant can’t feign ignorance when, in reality, it knows exactly what incident or event is at the heart of the safety violations it faces. 8

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FEDERAL

LAWS & ANNOUNCEMENTSaug. 8: Funding announced for environmental Projects in atlantic CanadaThe government announced over $2 million in grants and contributions funding for environmental projects in Atlantic Canada, including:�� Through the Atlantic Ecosystems Initiatives Funding Program, $1.3 million was awarded

to eight projects that focus on water quality, habitat and biodiversity, and the impact of climate change

�� The Gulf of Maine Initiative awarded more than $700,000 to four projects to maintain a healthy ecosystem.

CASES$70,000 Penalty Imposed for PCB ViolationsA company was convicted of violating the federal PCB Regulations and failing to comply with an Environmental Protection Compliance Order by the continued use of, and failure to store or send for destruction to an authorized facility, equipment containing polychlorinated biphenyls (PCBs) at concentrations in excess of those permitted. The court ordered it to pay $70,000 to the Environmental Damages Fund [1526806 Ontario Inc., Govt. News Release, Aug. 3, 2016].

Dry Cleaner & Owner Penalized $10,000 for PeRC ViolationsWhen enforcement officers inspected a dry cleaner, they found six 10-litre barrels containing PERC residue, which had been in storage for three years. Under the PERC regulations, the owner or operator of a dry cleaner must have all of its PERC residue transported to a waste management facility no less than once every 12 months. Samples from each barrel confirmed that all six contained PERC at concentrations ranging from 24,600 parts per million (ppm) to 503,000 ppm. The dry cleaner and its owner were each ordered to pay $5,000 to the Environmental Damages Fund after pleading guilty to one offence each under the CEPA 1999 [Executive Cleaners and Donald Pattison, Govt. News Release, Aug. 5, 2016].

ALBERTA

LAWS & ANNOUNCEMENTSaug. 9: WCB Statistics Show Increase in Farming Workers’ Comp ClaimsNew WCB statistics show an increase in workers’ comp claims in the agriculture industry so far this year. The Board approved 143 farming claims from Jan. 1 to July 2, 2015, but approved 356 such claims for the same period in 2016. Of those claims:�� Two were for fatalities�� 147 involved time away from work�� 88 were for sprains or strains

�� 76 were for superficial wounds�� 62 were for open wounds �� 43 were for fractures, dislocation or nerve

damage.CASESCompany Penalized More than $100,000 after Worker Is Injured by exploding tireA worker was in the process of inflating a new 16-inch tire on a 16.5 inch rim when the tire exploded. The tire/rim struck the worker in the head, causing a serious injury. A company pleaded guilty to an OHS violation for the incident. The court fined it $5,000 and ordered it to pay $97,750 to the Alberta Motor Transport Association for the development of an entry level shop safety course [Kavanaugh Investments Ltd., Govt. News Release, July 4, 2016].

BRITISH COLUMBIA

LAWS & ANNOUNCEMENTSaug. 19: Climate Leadership Plan unveiledThe government unveiled its Climate Leadership Plan, which it says will reduce net annual GHG emissions by up to 25 million tonnes below current forecasts by 2050. The plan’s initial 21 action items include:�� Making electric vehicles more affordable �� Making buildings more energy efficient�� Targeting sequestration opportunities in forests and emission reductions in natural gas

production and processing.

CASESInjured Worker’s Discrimination Complaint DismissedA worker for a dairy facility injured his shoulder and was out of work for almost three years when his employer fired him. The worker sued for disability discrimination. The employer argued that it had accommodated him to the point of undue hardship. The Human Rights Tribunal dismissed his claim. The worker argued that the employer failed to accommodate him by not offering him a clerical/administrative position such as a data entry clerk after he completed a computer course. But there was evidence that providing such a position didn’t provide him with a reasonable accommodation, said the Tribunal. For example, the worker himself said typing and writing exacerbated his pain. The Tribunal concluded that based on the employer’s ongoing cooperation in trying to accommodate the worker as requested by WorkSafeBC, his physical limitations and the lack of evidence that he wanted to return part-time, there was no reasonable prospect that his complaint would succeed [Barker v. Vitalus Nutrition, [2016] BCHRT 88 (CanLII), July 13, 2016].

Female Painter in Menopause Could Pursue Disability Discrimination ClaimA female painter sued her employer, supervisor and an executive for discrimination, claiming that new clothing requirements were discriminatory as they had an adverse effect on her due to her menopause symptoms. The defendants asked the court to dismiss her complaint. The Human Rights Tribunal refused to do so. The new clothing policy required all maintenance workers to wear long wool pants and a shirt over a long-sleeve cotton undershirt, both of which must be tucked into pants at all times. These clothes caused the painter to experience overheating, a racing heart, excessive sweating and wobbly legs. She requested an accommodation to the policy and provided a doctor’s note. The employer let her wear a different kind of clothes but they still made her too hot. It refused any further accommodations. The employer didn’t explain the need for the new clothing policy or why it couldn’t further accommodate the painter. And because the painter’s menopause symptoms were interfering with her ability to fulfill a normal function of life (that is, perform her job), her condition could arguably be considered a disability under the law [Cloakey v. Rio Tinto Alcan, [2016] BCHRT 111 (CanLII), Aug. 11, 2016].

MANITOBA

CASESLack of asbestos Control Plan Costs Company $13,050A worker was assigned to apply spray foam insulation to the ceiling of a commercial business. Before applying the new insulation, the company owner told the worker to remove the existing insulation. While doing so, a significant amount became airborne, which caused the worker to have trouble breathing. He expressed his concerns to the owner but wasn’t satisfied with the owner’s response. So he contacted the Workplace Safety and Health Branch and an officer immediately issued a Stop Work Order. An analysis of the existing insulation determined that it contained a significant concentration of asbestos. The employer pleaded guilty to failing to ensure that an asbestos control plan was developed to prevent asbestos-containing material from becoming airborne in the workplace and was fined $13,050 [EcoLogic Spray Foam Insulation, Govt. News Release, July 14, 2016].

NEW BRUNSWICK

CASESShop teacher’s Refusal to Work Due to Class Size Wasn’t JustifiedA shop teacher refused to work, claiming that the class size of 17 students put his health and safety in danger. A health and safety officer investigated the refusal and concluded that it wasn’t warranted. The teacher appealed. But the Appeals Tribunal found that there wasn’t sufficient evidence to overturn the officer’s conclusion. The OHS laws don’t have any specific limits on class sizes, including shop classes. The collective agreement set a limit of 29 students per class in general, while the school board recommended 18-22 students per shop class. In addition, union representatives, including JHSC representatives, believed that the teacher didn’t have reasonable grounds for refusing to work. The Tribunal also noted that it was agreed that the teacher ultimately had the authority to manage the activities of the students to ensure his safety as well as the safety of the students [20168017 (Re), [2016] CanLII 57012 (NB WCAT), Aug. 31, 2016]. 9

Month in ReviewNovember 2016 | OHSInsider.com

NEWFOUNDLAND & LABRADOR

CASESMechanic Could Sue employer for Injuries under Workers’ Comp exceptionA mechanic was assigned to repair a construction company’s truck, which was placed on blocks. While he was working on it, it rolled off the blocks and crushed his lower body, causing grievous injuries. The mechanic sued the company, relying on an exception under the workers’ comp law for injuries caused by “use of a motor vehicle.” The Commission ruled that this exception didn’t apply because repair and maintenance don’t constitute “use” and so the lawsuit was barred. On appeal, the court overturned this decision, ruling that it was unreasonable. Numerous cases have held in the context of workers’ comp and insurance law that the term “use” includes activities that are normally related to the motor vehicle’s purpose, such as repair and maintenance. Thus, the court found that because the mechanic’s injury arose as a result of “an accident involving the use of a motor vehicle” in the course of his employment, he was entitled to pursue his lawsuit against the employer by virtue of the exemption [Warford v. Weir’s Construction Ltd., [2016] CanLII 52444 (NL SCTD), Aug. 15, 2016].

Fatal electrical Incident Results in Charges against Roofing CompanyTwo workers died and three others suffered various injuries resulting from an electrical contact. As a result, a roofing company was charged with three safety offences, alleging that it failed to provide a safe workplace and equipment that’s without risk to the workers; to maintain a safe distance from conductors; and to get assurance from the owner of the power system when a safe distance from the conductors can’t be maintained [Dunrite Roofing Ltd., Govt. News Release, Aug. 15, 2016].

NORTHWEST TERRITORIES

LAWS & ANNOUNCEMENTS

Sept. 6: New OHS Program Guide for Small Businesses availableThe WSCC has published the Occupational Health and Safety Program Guide for Small Businesses. This guide explains what businesses with less than 20 employees need and why. It describes how such businesses can build their programs, and includes samples and templates that can be customized for each business.

NOVA SCOTIA

LAWS & ANNOUNCEMENTSSept. 1: 2017 Workers’ Comp Rates announcedWCB Nova Scotia announced its rates for 2017. Although the average rate is holding steady for the 13th year at $2.65 per $100 of assessable payroll, about 58% of employers will pay less than they did last year. In addition, a small number of employers are surcharged, meaning their cost experience is at least three times higher than their industry average for at least four consecutive years.

CASESOrder for Letting Workers Within 6 Metres of Power Lines Is upheldA company was hired by a building owner to install a new roof. Because the power line into the building was near the roof, the company needed a Clearance Report from the utility before its workers could work in the area of the power line. But before the utility issued this report, the company owner ordered workers to start work on the roof, believing they wouldn’t be at risk. An OHS inspector saw that workers were less than six metres from the power lines. Because the foreman didn’t know the voltage of the lines, the inspector issued a compliance order and $2,000 administrative penalty, which the company appealed. The Labour Board upheld the order and penalty. It explained that the law is clear and strict—when the voltage of a power line isn’t known, a minimum safe distance of six metres must be maintained. The foreman on site didn’t know what voltage the power lines into the building carried. And a worker was standing less than six metres from those lines. Plus, no Clearance Report had been issued at that point [Island Sheet Metal & Roofing Limited (Re), [2016] NSLB 218 (CanLII), Aug. 15, 2016].

NUNAVUT

LAWS & ANNOUNCEMENTSaug. 5: Part of airport Closed to Remediate MouldAfter heavy rainfall in late July, mould was discovered in the roof of the Iqaluit International Airport’s security area. The mould was found inside the ceiling cavity, and it didn’t pose a risk to the safety and well-being of employees or passengers. The affected area will be sealed off and evacuation ventilation will be installed to prevent any indoor air quality problems during remediation.

ONTARIO

LAWS & ANNOUNCEMENTSaug. 12: Code of Practice on New Workplace Harassment Requirements Released The MOL released a Code of Practice to Address Workplace Harassment under Ontario’s OHS Act. The Code of Practice address the province’s new workplace harassment requirements, which took effect on Sept. 8, 2016. Although employers aren’t legally required to comply with the Code, those who do will be considered by the Ministry to have complied with the harassment provisions.

Nov. 8: Deadline for Comments on Review of environmental Bill of RightsThe MOE is reviewing components of the Environmental Bill of Rights, which protects the environment by ensuring that the public is informed, engaged and consulted on matters of environmental significance. As part of this review, the ministry is seeking public feedback on select parts of the EBR through a discussion guide, which includes questions to help you consider particular aspects of the EBR and environmental rights. Comments may be submitted until Nov. 8, 2016.

CASESSubcontractor Didn’t exercise Due Diligence as to Drill Rig Platform’s StabilityA worker died when a drill rig owned and operated by a subcontractor fell over and crushed his backhoe as well as an excavator operated by another worker, who was badly injured. The MOL charged the general contractor and the subcontractor with OHS violations. The contractor pleaded guilty; the subcontractor went to trial on charges that it failed to provide a proper platform for the drill rig. The subcontractor argued that it was reasonable for it to provide specifications to another company to identify the soil’s bearing capacity as required by the manufacturer. But the subcontractor had to follow up and ask if that company had identified the soil’s bearing capacity as adequate for the drill rig, which it didn’t do. The court noted that the subcontractor did have a good safety record, a thorough written safety policy and documented daily safety meetings. However, proof of its safety policy and methods doesn’t establish that it exercised due diligence as to the design of the drill rig platform and the soil’s bearing capacity. And there was no evidence that it took any steps to confirm that the platform could support the drill rig. So the court convicted the subcontractor [Ontario (Ministry of Labour) v. Advanced Construction Techniques Ltd., [2016] ONCJ 482 (CanLII), Aug. 3, 2016].

Conviction for Failure to Physically Block a Machine upheld on appealAt a sawmill, an industrial saw was turned off and locked out for maintenance. While the machine was shut down, a supervisor found a piece of metal in it and decided the saw blades needed to be changed. The machine was locked out but the hydraulics were kept on during blade change. After a worker completed the change, he went to the field control box to close the side-heads, unaware that the supervisor was in that area. As the side-heads closed, they crushed the supervisor’s left arm. The sawmill was convicted of failing to block the machine to prevent movement and was fined $48,000. It appealed. The appeals court upheld the conviction and fine. The trial court found that “blocking” meant some physical component intended to prevent movement, which was reasonable in the context of laws to protect workers [Ontario (Ministry of Labour) v. McKenzie Lumber Inc., [2016] ONCJ 533 (CanLII), Aug. 31, 2016].

Robot Incident Results in $270,000 Fine for Parts ManufacturerA supervisor for a manufacturer of metal auto parts was made aware of a problem with a robot cell. He instructed a maintenance worker to fix the tooling and overheating electrode in the cell. Thinking the matter could be quickly fixed, the worker entered the robot cell through the light curtain and without locking out power to the robot. While positioned on a railing by the conveyor belt, he felt the robot pressing his back and causing serious and permanent injury. After a trial, the manufacturer was convicted of three violations. The court found that maintenance workers were expected to make a judgment call about how to fix the equipment—if it was a “quick fix,” the practice was to not follow LOTO and if it was a longer job, then lockout/tag out would be done. The court fined the manufacturer $270,000 [Matcor Automotive Inc., Govt. News Release, Aug. 17, 2016].10

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Youth Services agency Fined $125,000 after Workers are attackedAt a youth centre facility, a worker who’d recently started working on the detention and custody unit for boys was directing a youth to return to his room for the night. The youth became agitated, entered the staff office and repeatedly struck the worker. A co-worker intervened in the assault. Both workers suffered physical and psychological injuries. The youth services agency pleaded guilty to failing to provide information, instruction and supervision to protect a worker from workplace violence or the risk of violence from a resident and was fined $125,000 [Kinark Child and Family Services, Govt. News Release, Aug. 16, 2016].

Death of Worker Hit by Concrete Block Costs Farm Owner $18,000Farm workers building a bridge were trying to place a concrete block, which weighed over 2,800 pounds, onto an existing concrete pad at the top of a ravine. The farm owner used a tractor equipped with lifting forks to raise the concrete block using a chain and fabric strap. As the concrete block was being lowered, the chain slipped off the forks and the block began rolling down the ravine’s slope. A worker who was below the tractor couldn’t get out of the way and was killed instantly. The farm owner pleaded guilty to failing to ensure that a concrete block was moved in a safe manner and was fined $18,000 [Murray Bering, Govt. News Release, Aug. 29, 2016].

two Workers Injured in Separate Conveyor IncidentsMill workers were injured in two separate incidents involving moving conveyor belts. In one incident, a worker was performing maintenance on a feed conveyor, which moves coarse ore from outside to a bin inside the mill. The cold weather caused the conveyor belt to lose contact with the head pulley, resulting in the belt slipping. To fix the problem, workers used a propane-fed torch to heat the pulley while the conveyor was in operation. The worker was setting up to use the torch when he tripped and fell backwards onto the conveyor; his clothing was pulled into the rotating head pulley. He suffered multiple injuries and required surgery. Just three weeks later, a worker was adjusting and unplugging a conveyor system water spray bar while the conveyor was in operation. He was pulled into a rotating pinch point, suffering extensive injuries and also requiring surgery. The MOL found the conveyors didn’t have proper guards to prevent contact with accessible pinch points. The company pleaded guilty to violating the Mines and Mining Plants Regulation and was fined a total of $75,000 [Mohawk Garnet Inc., Govt. News Release, Aug. 19, 2016].

$70,000 Penalty Imposed for PCB ViolationsA company was convicted of violating the federal PCB Regulations and failing to comply with an Environmental Protection Compliance Order by the continued use of, and failure to store or send for destruction to an authorized facility, equipment containing polychlorinated biphenyls (PCBs) at concentrations in excess of those permitted. The court ordered it to pay $70,000 to the Environmental Damages Fund [1526806 Ontario Inc., Govt. News Release, Aug. 3, 2016].

Wind turbine Manufacturer Hit with a $60,000 FineA worker for a manufacturer of wind turbine towers was bending one of the “skirts” that, when connected together, form a wind turbine tower. During the bending operation, he stepped onto the bending machine and inside the rolled skirt to make final measurements before welding. The two ends of the skirt that were butted against each other suddenly moved, trapping part of his body and causing multiple injuries. The MOL investigation found that the incident took place because the skirt wasn’t blocked to prevent movement. The company pleaded guilty and was fined $60,000 [CS Wind Canada Inc., Govt. News Release, Aug. 19, 2016].

PRINCE EDWARD ISLAND

LAWS & ANNOUNCEMENTSaug. 5: WCB Policies amendedThe following WCB policies have been amended:�� Physiotherapy Services

(POL-26)�� Weighing of Evidence

(POL-68)�� Chiropractic Services

(POL-25).

QUéBEC

LAWS & ANNOUNCEMENTSaug. 9: Worker Dies in entanglement IncidentA worker for a plastics manufacturer climbed a ladder to retrieve a plastic strip in a rotating mechanism when he got entangled between the machine’s two rollers. His hand became stuck and his entire arm up to his mid-chest went through the rollers. Although he was rushed to the hospital, he died from his injuries.

aug. 9: Zoo Worker Seriously Injured in Lion attackAt Québec’s Granby Zoo, a worker was performing the morning preparation routine in the lion den when one of the three lions attacked her. A co-worker sprayed the lion with water from a hose and managed to keep the animal away from the injured worker. She was taken to the hospital in stable condition, but with severe injuries, including a cervical fracture. The zoo is investigating the circumstances of the attack.

SASKATCHEWAN

CASESDiscrimination to Fire alcoholic Care assistant for Coming to Work DrunkA Continuing Care Assistant at a long-term special care home was fired after she arrived to work a night shift while intoxicated. The union argued that the assistant was an alcoholic suffering from a relapse at the time and the employer should’ve accommodated her rather than firing her. The employer argued that even if the assistant had an alcohol addiction, her showing up for work drunk, in the circumstances, was culpable misconduct deserving of discipline. The arbitrator agreed that seeing to the needs of residents, while under the influence of alcohol, severely jeopardized their safety and the safety of everyone in the care home. But there was adequate proof the assistant had a disability, that is, an addiction to alcohol. And the employer was aware of her addiction. Also, her attendance at work while under the influence of alcohol was totally attributable to her disability and thus non-culpable. So the arbitrator concluded that the employer discriminated against her by firing her for her disability and failing to accommodate her [Canadian Union of Public Employees, Local 4777 v. Prince Albert Parkland Health Region, [2016] CanLII 48150 (SK LA), July 27, 2016].

Defendants May Challenge environmental Order they’re accused of ViolatingA company that operated a hazardous waste transfer station was issued an Environmental Protection Order on the grounds that it was improperly storing hazardous substances and waste dangerous goods in such a way that was causing or may cause an adverse effect on the environment. When it failed to comply with the Order, a court convicted the company and its sole director. They appealed, arguing that the trial judge erred in refusing to let them challenge the Order’s validity in their prosecution. The appeals court agreed and ordered a new trial. The environmental law under which the Order was issued doesn’t provide for an independent adjudicative tribunal or any review to balance public interests against individual rights. So the grounds of attack and avenues of review available to the defendants were limited. And given the severity of the penal consequences and the potential for criminal liability accruing to a director, the defendants should’ve been given a chance to challenge the validity of the underlying order in defence of the charge [R. v. Envirogun Ltd., [2016] SKQB 258 (CanLII), Aug. 8, 2016].

Car Dealership Fined $35,000 after Worker’s arm Is BrokenA worker at a car dealership was trying to repair an overhead door when an anchor bracket became loose. The door came down on his forearm, causing several fractures. The dealership pleaded guilty to violating Sec. 25(2)(b) of the OHS regulations and was fined $35,000 [Jubilee Ford Sales (1983) Ltd., Govt. News Release, Aug. 25, 2016].

two Companies Fined for Separate Safety IncidentsThe government announced guilty pleas and fines in separate safety incidents:�� A tractor with a crane came in contact with an overhead high-voltage line, killing a

worker walking beside the tractor. A construction company was fined $23,800 for failing to ensure that no worker works and no equipment or powered mobile equipment is used or operated with the minimum distance from any exposed energized electrical conductor [Darcy Rask Construction Inc., Govt. News Release, Sept. 2, 2016]

�� A worker got trapped under a trencher while installing irrigation pipes. His employer pleaded guilty to failing to ensure that a unit of powered mobile equipment wasn’t moved when a worker may be endangered by that movement. It was fined $32,200 [C. & F. Installations Company (1984) Ltd., Govt. News Release, Sept. 2, 2016].

YUKON TERRITORY

LAWS & ANNOUNCEMENTSJuly 28: updated Management Plan for elk ReleasedThe Yukon Fish and Wildlife Management Board and Environment Yukon released an update to the Management Plan for Elk. The plan is a framework to guide elk management and focuses on free-ranging elk, which includes an estimated 200 elk in the Takhini Valley and 60 elk in the Braeburn area.

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Month in ReviewNovember 2016 | OHSInsider.com

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SITUATIONA worker in Alberta is hurt on the job when his vehicle rolls over. His workers’ comp claim for neck and shoulder injuries is approved. However, these injuries cause him muscle spasms, pain and depression. He tries standard pain medications, but they provide only short term relief. These drugs also cause him to suffer side effects, such as nausea, fatigue, diarrhea and constipation—and they reduce his ability to concentrate. So his treating physician and a pain specialist authorize him to use medical marijuana. The marijuana reduces his pain and irritability, and allows him to sleep better and engage in more daily activities, improving his quality of life. But his workers’ comp request for coverage for the use of medical marijuana is denied.

qUESTIONShould Alberta workers’ comp cover the worker’s medical marijuana?

A. No, because medical marijuana is illegal in Canada.

B. No, because workers’ comp doesn’t cover any medication.

C. Yes, because the worker first tried conventional aids to treat the pain from his compensable injury without success.

D. Yes, because the worker’s doctor authorized its use.

ANSwErC. Medical marijuana should be covered because it alleviated the pain from his compensable injury and standard treatment was ineffective.

EXPLANATIONThis hypothetical is based on a decision of the Alberta Workers’ Comp Appeals Commission, which found evidence sufficiently demonstrating that the use of medical marijuana was a reasonable and necessary medical aid for the treatment of a worker’s compensable injuries. The Commission noted that Alberta’s workers’ comp policies state that non-standard or experimental treatment will be compensable when:

�� Other “conventional medical aid has been tried or at least considered and found to be medically inappropriate”;

�� The evidence indicates it has a positive health effect in helping the worker get back to work;

�� The benefits outweigh the risks; and

�� It can be provided legally in Canada.

In this case, the worker tried or considered all other conventional medical aids and found them to be medically inappropriate to treat his pain caused by injuries he’d suffered on the job. The Commission found that there was sufficient evidence to indicate that the use of medical marijuana has a positive health effect “that is part of a comprehensive work return or rehabilitation

program.” And the worker can legally get medical marijuana from an accredited source. So the Commission ruled that the medical marijuana treatments were compensable.

wHY wrONG ANSwErS ArE wrONG A is wrong because medical marijuana isn’t illegal in Canada. Although marijuana’s illegal for general recreational use, a physician may legally authorize a patient’s use of marijuana for medical conditions, including pain management. So here, because the worker’s treating physician and a pain specialist authorized him to use marijuana to treat his pain, he’s legally allowed to possess and use it for medical purposes.

Insider Says: For more information on the legality of medical marijuana and its impact on the workplace, watch this recorded webinar and read Medical Marijuana in the Workplace: Risks for Employers.

B is wrong because workers’ comp does, in fact, cover medications. Workers’ comp generally covers the cost of medical aid and reasonable methods of treatment for compensable conditions or injuries and their health effects. Sec. 1(p) of Alberta’s Workers’ Compensation Act, for example, specifically defines medical aid to include drugs. Here, the worker’s neck and back pain and muscle spasms were caused by a compensable injury. Therefore, medication to treat pain and other symptoms caused by those injuries is compensable.

D is wrong because a doctor’s authorization of the use of medical marijuana doesn’t always mean such use is compensable. Workers’ comp laws and policies don’t generally cover unconventional treatments such as marijuana simply because a physician issues a prescription. They may impose additional requirements for such treatments to be paid for by workers’ comp. For example, Sec. 21 of BC’s Workers’ Compensation Act says the workers’ comp board can adopt rules as to what types of healthcare it’ll cover. And BC workers’ comp policies indicate that the board has ultimate authority to determine the need for and sufficiency of medications based on factors including—but not limited to—patient preference and a doctor’s prescription. In this case, Alberta policy requires other treatments to be ineffective and for the benefits of the unconventional treatment to outweigh its risks. This worker tried other standard treatments for his pain to no avail and got the most relief from marijuana. It’s those factors, in addition to his physician’s authorization, that render the use of medical marijuana compensable here.

Insider Says: For a discussion of two cases in which workers’ comp appeals resulted in opposite conclusions regarding compensation for medical marijuana prescriptions, see “Winners & Losers: Does Workers’ Comp Cover Medical Marijuana?” Sept. 2013, p. 10.

SHOW YOUR LAWYERDecision No.: 2014-1174, [2015] CanLII 1059 (AB WCAC), Jan. 19, 2015

TEST yOUR OHS I.Q.:

Does Worker’s Comp Cover Medical Marijuana used to treat Pain from Compensable Injury?

13

November 2016 | OHSInsider.com

The final Hazardous Products Regulations (HPR) implement the GHS in Canada in the form of WHMIS 2015. The

goal of the GHS is to standardize the labels and safety data sheets (SDSs) for hazardous substances across countries to eliminate or reduce confusion and compliance challenges, and better protect workers worldwide. But despite this goal, the versions of GHS adopted in each country aren’t necessarily identical. So here’s a look at the differences between WHMIS 2015 and the US’s version of GHS.

GHS IN THE USThe US adopted GHS first. Its final Hazard Communications Standard (2012) (HazCom 2012 or HCS 2012) was published in March 2012 and took effect in May 2012. Compliance was phased in, with several key compliance deadlines already having past. For example, employers had until Dec. 1, 2013 to train workers on the new label elements and SDS format. And employers had until June 1, 2016 to update alternative workplace labeling and hazard communication programs as necessary, and provide additional worker training for newly identified physical or health hazards.

CANADA V. USBecause of the proximity and trade relations between Canada and the US, a key objective of the implementation of the GHS in Canada was to create a system that allowed for compliance with Canadian and US requirements through the use of a single label and SDS for each hazardous product. Although the governments of the two countries worked to keep variances to a minimum, there are some differences that were necessary to maintain the current level of protection for workers or due to the requirements of the respective legislative frameworks.

The chart below, which is based on one created by Health Canada, shows the key variances between WHMIS 2015 in Canada and HazCom 2012 in the US. Note that, under Canada, all references to specific sections refer to the HPR.

Insider Says: Remember that the passing of the federal HPR and amendments to related federal acts was only the first step in implementing GHS in Canada. Because of the nature of OHS regulation in Canada, each province and territory must also amend its own OHS laws accordingly for WHMIS 2015 to truly become the law of the land in Canada. This regularly updated chart tracks the progress the jurisdictions have made in implementing WHMIS 2015, the key dates you should know about and the impacts on employers.

WHMIS 2015:

How Does It Compare to the uS Version of GHS?

KEY VARIANCEREQUIREMENTS

Canada United States

Language requirements for labels and SDSs

Labels and SDSs must be in both English and French (Sec. 6.2(1)).

This information may appear either on a single bilingual SDS or on two separate unilingual documents that constitute one bilingual SDS. The same applies to labels (Sec. 6.2(2)).

Labels and SDSs must be in English.

Supplier identifier

A Canadian supplier identifier must appear on the label and SDS (Sec. 3(1) and item 1(d) of Schedule I).

A Canadian distributor may omit the name of the initial supplier if it lists its own name, address and telephone number instead (Sec. 5.8). A Canadian importer may retain the name of the foreign supplier instead of using its own identity only if the hazardous product is imported for use in its own workplace (Sec. 5.9).

The name, address and telephone number of the manufacturer, importer or other responsible party must appear on the label and SDS.

The responsible party need not have a US address; however, the telephone number must be a US number.

Continued on p. 14

WHMIS 2015 Symbols

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KEY VARIANCEREQUIREMENTS

Canada United States

Mixture containing a Category 2 carcinogen at a concentration between 0.1 - 1.0%

All mixtures containing a carcinogenic ingredient (whether Category 1 or 2) at a concentration of 0.1% or more are required to have label as well as an SDS (Secs. 8.6.3 and 8.6.4).

All mixtures containing a carcinogenic ingredient (whether Category 1 or 2) at a concentration of 0.1% or more are required to have an SDS.

All mixtures containing a Category 1 carcinogen at 0.1% or more or a Category 2 carcinogen at 1% or more must have a label.

Mixtures containing a Category 2 carcinogen at a concentration between 0.1% and 1% are not required to have a label—that is, a label warning is optional for such mixtures.

Physical Hazards Not Otherwise Classified (PHNOC)/Health Hazards Not Otherwise Classified (HHNOC) vs. Hazards Not Otherwise Classified (HNOC)

Label elements are required for PHNOC and HHNOC (Sec. 3(1)(d)).

For mixtures that contain an HHNOC ingredient at a concentration of 1% or more, information relating to the HHNOC ingredient, including its chemical name and concentration or concentration range, must be disclosed on the SDS (item 3(2) of Schedule I).

No label elements required for HNOC.

For a mixture that contains an HNOC ingredient at a concentration of 1% or more, there’s no requirement to disclose the chemical name or concentration of the HNOC ingredient on the SDS.

Biohazardous Infectious Materials (BIM)

A hazard class for BIM is included and products that meet the criteria for this class must be appropriately labelled. Also, besides the standard SDS, there is a requirement for an appendix that provides information specific to the BIM (Sec. 4(3), subpart 11 of Part 8 and Schedule 2).

There’s no hazard class for biohazardous infectious materials because these materials in the workplace aren’t regulated by HazCom 2012.

Water-Activated Toxicants

Supplemental hazard statement required on the label and SDS indicating that, in contact with water, the product releases gases that are fatal/ toxic/harmful if inhaled (Sec. 3(1)(f)).

A supplemental hazard statement is required on the SDS if substances that, upon contact with water, release a toxic gas are present in the workplace in such a manner that workers may be exposed under normal conditions of use or in a foreseeable emergency.

Updating of SDSs and labels

Suppliers and importers are allowed a period of 90 days to update SDSs with new data and 180 days to update labels.

If a hazardous product is sold or imported within 90 days after significant new data became available, the new data isn’t required to be included on the SDS as long as a written notice providing the new data and the date upon which it became available is transmitted to the purchaser of the product, or obtained or prepared where the product is imported (Sec. 5.12).

The above also applies to labels, except that the corresponding period of time is 180 days.

Chemical manufacturers, importers, distributors and employers are allowed a period of 3 months to update SDSs with new information and 6 months to update labels.

There’s no requirement for a written notice providing the significant new information for importation or sale occurring within the 3 month or 6 month period.

Labels on multi-container shipments

When a hazardous product is packaged in more than one container, each container must be fully labelled, unless:

a. the small capacity container (≤ 100 mL) exemption applies (Sec. 5.4(1)); or

b. one of the outer container exemptions applies (Sec. 5.2).

Only the innermost container must be labelled. The outer container doesn’t need to be labelled.

Labels on kit outer containers

Outer container of a kit (containing at least two different hazardous products) must be labelled.

An exemption permits reduced information on the outer container label, as long as a special statement referring the user to the individual product labels for signal words, hazard statements and precautionary statements is provided on the outer container label (Sec. 5.3).

Only the inner containers must be labelled. The outer container of a kit doesn’t need to be labelled.

Key variances between WHMIS 2015 in Canada and HazCom 2012 in the US. Continued from p. 13

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November 2016 | OHSInsider.com

SPOT THE SAFETy VIOLATION:

Snowy Roofs & Fall Protection

These workers are properly dressed for the weather but what safety equipment

should they also be wearing?

In many industry sectors, falls from heights, such as roofs, are one of the most common safety hazards. And

in the winter, when roofs are covered in snow and ice, falls are even more likely. So it’s especially critical at this time of the year that you ensure that workers use appropriate fall protection when on snowy or icy roofs.

The workers in this picture are clearing snow from a roof in Boston. They’re all properly dressed for the winter weather, covering their faces and wearing hats and gloves. But what they’re not wearing is any fall protection. And given how close they are to the roof’s edge, they could easily slip on the snow and fall over the unguarded edge as they toss snow from their shovels.

9 SNOw rEMOVAL qUESTIONSA hazard alert from OSHA recommends that you plan ahead by answering these questions:

1. Can snow be removed without workers going onto the roof?

2. Are there any hazards on the roof that might be hidden by the snow and need to be marked so that workers can see them (such as skylights, roof drains, vents, etc.)?

3. How should the snow be removed, based on the building’s layout, to prevent unbalanced loading?

4. What are the maximum load limits of the roof and how do they compare with the estimated total weight of snow, snow-removal equipment and workers on the roof?

5. What tools, equipment, protective devices, clothing and footwear will workers need?

6. What type of fall protection will be used to protect workers on roofs and other elevated surfaces?

7. What training will workers need to work safely?

8. How will mechanized snow removal equipment be safely elevated to the roof?

9. How will you protect people on the ground from snow and ice falling off the roof during removal operations?

And here are tips workers should follow when they do clear snow and ice from roofs:

�� Clear as much of the snow as possible from the ground first.

�� Never spray water on the roof to try to clear the snow—it’ll just freeze and create additional problems. Instead, use a de-icing chemical.

�� Never work on a roof in the winter—even a flat roof—unless fall prevention (such as covers, screens, railings or guardrails) is in place or you’re using adequate fall protection equipment (such as a full-body harness, lanyard, connectors and appropriate anchorage points) and slip-resistant footwear.

�� Be wary of any skylights or other openings in the roof that may be hidden by the snow. (For example, a worker in Wisconsin was clearing snow from a flat roof when he stepped on an unguarded skylight buried in the snow and fell to the concrete floor 14 feet below. He died from his injuries.) And never sit on, lean against or step on a skylight lens or any covering placed over such a hole.

Go to OHSInsider.com to download a PDF or Word version of this Spot the Safety Violation, which you can print out and use to train workers.

And on the Spot the Safety Violation page, you’ll find many of these unique training tools on topics ranging from confined spaces and machine guarding to ladder safety and respiratory protection.

Send us Your Pictures!Do you have pictures of safety hazards, such as machinery without guards, or workers engaged in unsafe conduct, such as working at heights without fall protection? Send them to us at SafetyPhotos@SafetySmart.com and we may use them in a future Spot the Safety Violation.

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OHS Insider: 103 Eastside Oroville Road Oroville, WA 98844 USAwww.OHSInsider.com

OHS Insider: #102-501 Main Street Penticton, BC V2A 9A6 CANADA 1-800-667-9300

DOS & DON’TS:

adequately Protect Workers when Machine Guards Must Be Removed

A ll Canadian OHS regulations have requirements for guarding machinery and equipment to protect workers

from coming into contact with nip hazards, pinch points, etc. One of the key machine guarding rules is that you should bar workers from removing guards. But sometimes it’s necessary to remove a guard. For example, the guard may prevent workers from accessing a part of the machinery that’s broken or the guard itself may be broken and need to be repaired or replaced. In such circumstances, the OHS regulations permit the removal of guards—provided that alternate safety protections are in place, such as locking out the machinery or using a spotter. If you remove a guard—even for a necessary reason—and let workers continue to use the unguarded machinery without adequate protections, workers could get injured or even killed.

Look what happened in the factory of an Ontario plastic bottle manufacturer. A temporary worker was removing bottles from the end of a blow mould machine. The machine had a moving part that should’ve been guarded. But the guard had broken and been removed from the machine while it was repaired. Unfortunately, the manufacturer didn’t install another guard or implement other safety measures in the meantime. The worker came into contact with the moving machine part and was fatally injured. The manufacturer pleaded guilty to failing to ensure that a machine with a moving part that could endanger a worker was equipped with a guard to prevent access. The court fined it $100,000 [CRS Plastics Ltd., Govt. News Release, Aug. 19, 2015].

Insider Says: The OHS Insider has additional resources on machine guarding, including:

� Machine guarding requirements under the OHS laws

� How to choose an appropriate guard

� A Machine Guarding Checklist

� How to troubleshoot machinery.