International Day of Mourning a reminder to keep employees healthy and safe

By: Miriam Anbar | Published in The Lawyer’s Daily >>

Years ago, employees used to take on safety-sensitive jobs such as mining or railroad work knowing that there was a risk to their health or safety and assuming the risks inherent with that occupation. In recent years there has been a shift in both mentality and legislation in terms of safety on the job in Canada.

In 1992, 26 miners were killed in an underground explosion at the Westray Mine in Plymouth, N.S. A public inquiry was held to determine the cause of the explosion and the report indicated that there were multiple reasons for it, ranging from lack of safety training for the miners to mismanagement of the mine. It was the Westray disaster that led to significant changes in Canadian law for incidents of workers dying on the job. In March 2004, Parliament passed Bill C-45, also known as the Westray Bill, imposing criminal liability on corporations and executives that fail to ensure a safe workplace.

Also, every April 28 since 1991, workers across Canada honour people killed or injured on the job in a National Day of Mourning.

Today there is a shared responsibility system for workplace safety. Employers are expected to maintain a safe workplace and employees are required to work safely on the job. This involves policies on legislation and regulations, procedures, employee training and education, joint health and safety committees (or representatives) and updated workplace signage (to name a few) on any and all safety matters.

In Ontario, the Occupational Health and Safety Act, 1990 (OHSA) provides clear requirements for accidents or incidents that occur in the workplace. The OHSA addresses all things health and safety related such as: Workplace Hazardous Materials Information System (WHMIS); workplace harassment under Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016; and Bill 168, Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) 2009.

In recent years, negligent managers and supervisors have received jail sentences and/or heavy fines for health and safety related violations.

In 2009, four Toronto construction workers died and one worker was seriously injured in a scaffolding collapse at a Toronto apartment building. In 2016, their project manager, Vadim Kazenelson, was held criminally liable for the deaths of the workers who died while under his supervision. In its decision, the court applied the Westray Bill, sentencing Kazenelson to three and a half years in prison for four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm.

The legislation is clear that anyone who has the authority to direct how another person does or performs work or tasks has a legal obligation to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task(s).

Bill 177, the Stronger, Fairer Ontario Act (Budget Measures), 2017 amended many pieces of legislation, including changes to the OHSA. The most significant change is related to fines imposed for health and safety violations. Effective December 2017, fines for corporations have increased to a maximum of $1.5 million, and fines for individuals or unincorporated businesses have quadrupled and are now a maximum of $100,000.

Employers and managers alike would be wise to be proactive and informed of their legal obligations to ensure healthy and safe workplaces.

Key takeaways for employers:

  • Perform a workplace assessment to identify risks before incidents or accidents occur.
  • Perform due diligence. Employers must take every reasonable precaution to ensure the safety of their workers and to foresee all unsafe conditions or acts. This also means employers are required to take precautions to prevent accidents that can reasonably be anticipated.
  • Investigate any and all incidents that are brought forward to ensure prevention of reccurrence.
  • Review programs and policies annually — this is a legislated requirement if there are five or more employees working in the organization.
  • Document everything (not just official accident reports; a.k.a. Form 7s).
  • Train staff on all the aforementioned policies so they know their responsibilities in terms of workplace safety.
  • It is also critical that managers and leaders in the organization undergo effective training.
  • Ensure you have up-to-date, mandatory posters and other signage placed in prominent locations in the workplace.

Miriam Anbar is an employment lawyer at  Rodney Employment Law where she handles a broad spectrum of workplace matters, including wrongful dismissals, employment standards, workplace investigations, human rights and occupational health and safety. E-mail her hereLegal & HR assistant Lisa Cavuoti assisted with the research and writing of this article.

Photo Credit /  sasacvetkovic33 ISTOCKPHOTO.COM

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