Courts across Canada have been imposing record high fines and sending business owners, managers and supervisors to jail for Occupational Health and Safety (OH&S) contraventions. The Courts have also made it clear that it will be appropriate in some cases to impose a fine which has the effect of bankrupting an employer. A Court has also held that the Ministry of Labour itself could be liable to accident victims for damages resulting from negligent inspections.
- On the Crown’s successful appeal in the Christmas Eve scaffolding case,
- A review of one frightening Ontario case where the Court suggested that jail time may become the “new norm” for supervisors convicted in fatality cases,
- The impact of the recent Elliott Lake decision which allowed a class action to proceed against the Ministry of Labour relating to negligent safety inspections, and
- Strategies for responding to this unprecedented level of enforcement.
For example, on the subject of the Ministry of Labour being potentially liable for negligent safety inspections, conference participants will find out that, from time to time judges comment and decide on matters affecting employment law in the context of cases which at first blush have nothing to do with employment. One recent judicial decision in a claim arising from the tragedy at Elliot Lake should be noted by employers as it may have an impact on how workplace health and safety inspections and investigations are conducted in the future.
Quinte v Eastwood Mall is a class-action proceeding arising out of the collapse of the Algo Centre Mall in in June 2012. The decision covers a variety of preliminary matters and challenges to the case as pleaded by the representative plaintiffs, who were two owners of a business in the mall, one of whom was injured in the collapse.
This judgment was not a final judgment, and did not actually determine whether the plaintiffs’ claim against any of the myriad of defendants was valid. Nonetheless, the judge’s commentary and decision is relevant to all employers with responsibilities under the occupational health and safety and worker’s compensation regimes.
In particular, the Court dismissed a motion by the Ontario Ministry of Labour to have the case against it dropped. Additionally, the Court held that persons with Employment Standards Act and workers’ compensation claims could continue to participate in the lawsuit.
This decision will likely have significant consequences for workers, employers and the Ministry. Under WSIA, workers are barred from suing their own employer (and most other employers) for negligence arising out of a workplace accident. However, since the Ministry (like most public sector employers) is a “Schedule 2” employer under the WSIA, most private sector employees are not impeded by the WSIA from pursuing a claim for negligence.
Assuming that this decision is not overturned by a higher Court, we anticipate that the pre-accident inspection activity by the Ministry will be subject to significant scrutiny from counsel for injured workers and that the Ministry may find itself as the defendant in any number of personal injury cases in the future. You can read the full text of this article here.
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