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  • Employer-sponsored holiday parties: What are you liable for?

    Your guests have arrived and it’s time to give the toast! Are you ready to celebrate? December is undoubtedly the most festive month of the year. It’s a great opportunity for employers to thank their employees for the services rendered during the year, but also for employees to interact with their colleagues in a relaxed atmosphere. With the parties just around the corner, it’s a good time to remind employers that maintaining the health, safety and dignity of all participants is crucial when organizing such events. Even in these happy times, the employer’s obligation to ensure the health and safety of employees extends beyond normal work hours and outside the regular work premises. Here are some tips to help you celebrate in a happy, respectful and safe atmosphere for all. Moderation is always in good taste First, preventing undesirable situations begins with controlling the consumption of alcohol and other substances that can cause impairment. As psychoactive products that directly and quickly affect brain function, excessive alcohol or cannabis consumption is certainly the main factor that can lead to misdemeanour during holiday parties. When employees participate in employer-sponsored activities, they attend as part of their job: they thus have the same status that they do when at work within the company1.  Consequently, employers retain their management and leadership powers during social events. Thus, they can sanction any misconduct committed during a social event. In order to limit alcohol consumption and reduce the risk of incidents, employers may, in particular: Distribute a limited number of alcohol vouchers; Stop serving alcohol a few hours before the event ends; Limit the open bar formula, if you have one, to a predetermined schedule. As for the use of cannabis and cigarettes, including e-cigarettes, it’s worth remembering that your guests must respect the smoking ban in or near the premises. Harassment prevention Though the movement concerning harassment has prompted employers to increase their efforts to prevent sexual misconduct in the workplace, the Act respecting labour standards already obliged employers, since 2002, to take reasonable action to prevent psychological harassment and, whenever they become aware of such behaviour, to put a stop to it2. Employers are not exempt from this obligation when they invite employees to a social event. A safe trip back home At the party’s end, employers should make sure their employees get home safely by providing ways to travel other than getting behind the wheel, including: Providing taxi vouchers to prevent road accidents caused by impaired driving; Reimbursing employee travel expenses; Encouraging employees to contact organizations offering driver services. Company holiday parties have become a must. Beyond employer obligations and responsibilities, such festivities are a great opportunity for employees to forge ties with their colleagues outside the more rigid work environment and for employers to show their appreciation and thank their employees. Happy festivities to all!   Association internationale des machinistes et des travailleuses et travailleurs de l'aérospatiale, district 140, section locale 2309 et Servisair (Avo Minassian), D.T.E. 2009T-448; Nettoyage de drains A. Ducharme (2000) inc. et Syndicat national des travailleuses et travailleurs de l’environnement (F.E.E.S.P.-C.S.N.), D.T.E. 2001T-1030. Sec. 81.19 A.L.S.

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  • New developments regarding the criminal negligence of employers

    On August 31, 2017, the Ontario Court of Justice sentenced1 Detour Gold Corporation (“Detour Gold”) to pay a fine of $2,625,333 after it pleaded guilty to a charge of criminal negligence causing the death of an employee. Facts Detour Gold has operated an open pit mine near the Ontario-Québec border since 2013. In April 2015, the company tried several times to have a leach reactor repaired after noticing some leaks. On June 3, 2015, a Detour Gold millwright, Denis Millette, was assigned to repair a defective joint on the reactor. While doing the repair, the employee was exposed to sodium cyanide, a highly toxic substance used in the mining industry to extract gold from ore, that had leaked out from the reactor. The employee became ill and died. The autopsy results showed that his death was caused by sodium cyanide poisoning. On April 21, 2016, the company was charged with criminal negligence causing death under the Criminal Code,2 as well as with 15 counts under the Ontario Occupational Health and Safety Act.3 The company subsequently pleaded guilty to the criminal negligence charge in exchange for the charges under the Occupational Health and Safety Act being withdrawn. Decision The Court sentenced Detour Gold to pay a fine of $1.4 million, a victim fine surcharge of 30% ($420,000), and restitution to the deceased employee’s family in the amount of $805,333, the equivalent of the earnings he would have received until he retired. In its reasons, the Court found several instances of negligence on the part of Detour Gold, in particular, that the employee had had no training or information that would have enabled him to identify the signs of cyanide poisoning, the company had not ensured that the employee was wearing appropriate personal protective equipment, there was no clean-up procedure for sodium cyanide spills, and no one knew how to identify and treat cyanide poisoning. Referring to the recent judgments in Stave Lake Quarries Inc.4 and Metron Construction,5 the Court was of the opinion that the fine had to be significant, so that businesses would not view it as the ordinary cost of doing business,6 despite the fact that no criminal or penal charges had ever been filed against Detour Gold and the company had been experiencing deficits since it began operating in 2013. This $1,400,000 fine is the largest fine imposed on a company convicted of criminal negligence causing death.7 Note that six charges relating to violations of the Ontario Occupational Health and Safety Act8 are still pending against three Detour Gold supervisors. Other recent cases We would also draw your attention to several recent decisions in criminal negligence cases involving employers. In its decision dated October 27, 2016, in Stave Lake Quarries,9 the Provincial Court of British Columbia accepted the parties’ joint recommendation and sentenced the employer to pay a fine of $100,000, plus a victim fine surcharge of $15,000, following the death of an employee. The facts reveal that while carrying out a procedure on her second day on the job, an employee driving a truck used to haul rocks failed to use the parking brake when she stopped the truck. The air brakes failed and the employee died when the truck rolled over. In that case, the employer pleaded guilty to the charge of criminal negligence, primarily because it had failed to provide a rigourous system for hiring, training, and supervising. In another case, on July 21, 2017, the Court of Québec sentenced10 Century Mining Corp. to pay a fine of $200,000 for criminal negligence causing bodily harm, despite the fact that the company had declared bankruptcy in 2012. In that case, an employee doing drilling in a mine was crushed by a heavy truck; he suffered serious injuries and was blinded. The company was convicted of failing to identify the real risks in the situation and failing to inform the truck driver that drilling was underway. On the other hand, Ressources Métanor Inc.was acquitted11 on December 8, 2017, of criminal negligence causing death. A charge had been filed against the company as a result of an accident involving three employees who drowned in 2009 when the elevator car they were in descended to a level of the mine that was underwater. The facts revealed that the probes used to activate high water alarms had been disconnected and that a bolt in one of the pipes used to carry water underground was defective. In spite of those deficiencies, the Court found that Ménator’s officers had not shown wanton or reckless disregard. While certain deficiencies observed in the operations were contrary to the Act respecting occupational health and safety (“AOHS”),12 the evidence did not reveal that any person or organization was responsible for disconnecting the probes. We are also awaiting two criminal negligence decisions in the near future, in R. v. Fournier13 and R. v. CFG Construction inc.14 We would note that in 2016, in Fournier, the Superior Court of Québec dismissed15 the application for judicial review and, as did the judge who presided over the preliminary inquiry, allowed the charges of criminal negligence and involuntary manslaughter to proceed to trial. In that decision, the Superior Court concluded that a workplace death resulting from a violation of the AOHS could serve as the basis for an order to stand trial on a charge of manslaughter under the Criminal Code. We will be following this case with interest, because a conviction of an employer on a manslaughter charge resulting from a violation of occupational health and safety legislation would be a first. Conclusion Since Bill C-4516 was enacted in March 2004, making it easier to bring criminal negligence charges in cases involving workers’ health and safety, the number of convictions of employers has risen and the sentences imposed have skyrocketed. It is in employers’ interests to consider these court decisions as one more reason to enhance their prevention measures in order to ensure compliance with the applicable occupational health and safety legislation and thus fulfil their general duty to take appropriate measures to avoid injuries resulting from doing a job or performing a duty.   R.  v. Detour Gold,C.J.O., No. 0511-998-164537 / 0511-998-5380 (sentence August 31, 2017). Criminal Code, RSC 1985, c. C-46, sections 219 and 220. Occupational Health and Safety Act, RSO 1990, c. O.1. R. v. Stave Lake Quarries Inc., 2016 BCPC 377. R. v. Metron,2013 ONCA 541: see our comments on this decision here. See page 15 of the decision: “The fine must also be significant enough to not be considered as a simple cost of doing business”. We would note that in Metron, the employer was sentenced to pay a fine of $750,000. Charges against each of the supervisors for failing to supervise the employee and not ensuring that he was wearing personal protective equipment. Supra, note 5. R. v. Century Mining Corp., C.Q., No. 615-01-021168-136 (sentence July 21, 2017). R. v. Ressources Métanor inc., C.Q., No.625-01-003393-149 (conviction December 8, 2017). Act respecting occupational health and safety, CQLR c. S-2.1. R. v. Fournier, No. 500-01-088108-136. R. v. CFG Construction inc., No. 200-01-175428-139. Fournier v. R., 2016 QCCS 5456. An Act to amend the Criminal Code (criminal liability of organizations), Assented to on November 7, 2003, 2nd Sess., 37th Parl. (Can.). See our comments at the time on the passage of this bill here.

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  • Investing in the health of your employees - a wise decision! The legal issues to consider

    Numerous studies confirm that the poor health of workers, among other things caused by the increasingly sedentary nature of positions and the illnesses associated with this, will ultimately result in significant costs for businesses related to: Absenteeism; Compensation for work-related injuries and illnesses and occupational health and safety prevention measures; and Resulting losses in productivity Many companies have attempted to remedy the situation by adopting programs that involve the installation of physical fitness rooms in the workplace. However, this solution, while commendable, does raise some legal issues for employers. Issues related to the use of sports facilities in the workplace The main issue facing a company when it makes sports facilities available to its employees is its potential liability in the event of an accident. The company’s liability The company must be prudent and diligent and take all reasonable precautions to prevent accidents, because if there has been any negligence or fault on its part, it could be held liable for such incidents. For example, the company could be held civilly liable for injuries suffered by an employee as the result of a defect in or poor maintenance of the exercise facilities made available to employees. The following are examples of some reasonable measures that a company could adopt to reduce its exposure to liability: Ensure that the facilities are safe and properly maintained; Provide employees with relevant information regarding the use of facilities; Require that employees complete a physical activity readiness questionnaire The risk of an event occurring while using the facilities may be compensable by the CNESST A worker injured while using sports facilities in the workplace can file a claim with the CNESST. Generally, the case law recognizes that an activity carried out in the context of a privilege granted by the employer constitutes a personal action for which the worker accepts the risks as well as the liability. However, some activities, while seemingly personal, may be recognized as being an accident occurring in the course of employment where the circumstances demonstrate a “connection” between the activity in question and the employment, or a “usefulness related to the worker’s activity and the accomplishment of his work”. Obviously, each case is unique and must be assessed on its particular facts. The following are a few practical recommendations that will allow an well-informed employer to limit its risks: It must be made clear to employees that the use of the employer’s sports facilities is voluntary, personal and not compulsory; The employer or its representatives should not exert any pressure on employees to use the facilities; Employees must be forbidden from using the facilities during paid working hours or while they are under the employer’s authority; Subject to very specific cases, the good physical condition of workers need not be assessed by medical examinations. Detail to consider It would be wise to inform insurers of the use of sports facilities in the workplace. Insurers can then assess the effects of such an activity on existing insurance coverage and propose any changes which may be required Conclusion Employers should not resist or impede the implementation of programs aimed at employee well-being or fitness. However, due to the risks inherent in such activities, employers should conduct an initial analysis of the conditions in which such programs should be implemented and put in place. The members of Lavery’s labour and employment law team would be pleased to assist you along the way

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  • Reminder to employers : The deadline for complying with certain regulatory provisions for safe asbestos management expires June 6, 2015

    In Quebec, it is possible to find materials and products containing asbestos in civil engineering works, construction materials, facilities and equipment in all types of buildings, whether industrial, commercial, public or residential. According to various sources, the need to adopt new standards on safe asbestos management arose particularly due to the fact that a significant number of buildings in Quebec dating back to the end of the 1980s may contain asbestos and are probably in need of renovation. In addition, several statistical studies have shown that the majority of cases of death due to occupational diseases recognized by the CSST for workers aged 45 and up were caused by asbestos.1 It is in the context of this factual backdrop that the Regulation to Amend the Regulation Respecting Occupational Health and Safety and the Safety Code for the Construction Industry2 came into force on June 6, 2013. It provides for the addition of sections 69.1 to 69.17 to the Regulation Respecting Occupational Health and Safety3 (the “RROHS”) and, among other things, introduces new standards for safe asbestos management in order to reduce workers’ exposure to asbestos dust. In view of the approaching two-year deadline of June 6, 2015 given to employers to comply with their obligations for locating flocking and heat insulating materials,4 the purpose of this article is to provide a brief overview of employers’ requirements under these new provisions of the RROHS. It should also be noted that the failure to comply with a provision of the Act Respecting Occupational Health and Safety5 (the “AROHS”) or any of its regulations can lead to regulatory liability.6 OBLIGATIONS RELATING TO FLOCKING AND HEAT INSULATING MATERIAL Under the new RROHS provisions, the employer, whether a tenant or owner of the workplace, is required to inspect every building built prior to February 15, 1990 to locate flocking, and every building built prior to May 20, 1999 to locate heat insulating material containing asbestos.7. “Flocking” is a mixture of friable materials which is sprayed over a surface, while “heat insulating material” is used as an insulator to cover a facility or equipment in order to protect against fire or to prevent heat loss.8 Flocking and heat insulating materials are presumed to contain asbestos in a concentration of at least 0.1%.9 The employer may however rebut this presumption by submitting verifiable documentary information or a sampling report in accordance with the criteria contained in the RROHS.10 Thus, the employer must conduct an initial inspection of flocking and heat insulating materials containing asbestos by June 6, 2015, and further inspections every two years thereafter, unless an exception applies.11 Such an inspection requires a [TRANSLATION] “careful examination” of the workplace.12 Where flocking or heat insulation material contains asbestos or is liable to produce asbestos dust emissions, the employer must, while taking into account the degradation and dispersal factors, remove it, enclose it entirely in a permanent structure resistant to fibres, coat it with or soak it in a binder, or cover it with materials resistant to fibres.13 REQUIREMENTS RELATING TO MATERIALS AND PRODUCTS CONTAINING ASBESTOS Since June 6, 2013, prior to undertaking any work that is liable to produce asbestos dust emissions, the employer must check for the presence of asbestos in the materials and products likely to contain it, unless it can show that the work to be carried out is not liable to produce asbestos dust emissions, specifically by means of verifiable documentary information or a sampling report.14 Depending on the availability of information, the employer must also check for the presence of asbestos when purchasing those materials or products.15 We note however that the RROHS states that gypsum panels and joint compounds manufactured after January 1, 1980 are presumed not to contain asbestos.16 Where an interior finish likely to contain asbestos may emit dust because of its state, the employer must repair it or remove it, taking into account the degradation and dispersal factors.17 The employer must also take the necessary measures to control asbestos dust emissions before undertaking work on materials or products containing asbestos, including flocking and heat insulating material. In this respect, the Safety Code for the Construction Industry requirements apply.18 Finally, the employer must train and inform the workers of the risks, prevention and safe working methods relevant to the work to be done prior to undertaking work liable to produce asbestos dust emissions.19 REQUIREMENTS RELATING TO RECORDING AND DISCLOSURE OF INFORMATION In addition, since June 6, 2013, the employer must keep a register containing the entries and documents required by the RROHS (including information on the inspection dates of the building, the location of flocking and heat insulating material, the nature of the work previously done and type of asbestos sampled) and make it available to the workers in the establishment and their representatives.20 As well, the employer must disclose the relevant entries in the register to any person who will be doing, or plans to do, work that could produce dust emissions, and that person must inform the workers who are likely to be exposed to asbestos dust.21 CONCLUSION Since this article only provides a brief overview of the new requirements for safe asbestos management, we would encourage employers to seek out additional information on these requirements, should they feel it is necessary. The authors are available to answer your questions. For any employers who may not yet have implemented these new requirements, they should act quickly in order to decrease the risk of facing potential regulatory liability in this regard. Lavery will keep you informed of any further significant developments. _________________________________________ 1 See, in particular, Équipe des études et analyses, Service de la statistique et de l’information de gestion, CSST, Portrait des lésions professionnelles chez les travailleurs de 55 ans et plus 2002-2011, March 2014, p. 34, online: http://www.csst.qc.ca/publications/200/Documents/DC200_1049_1web.pdf (site consulted April 21, 2015), “[TRANSLATION] A more detailed examination of occupational disease-related deaths between 2002 and 2011 demonstrates that 81% of such cases are due to asbestos (873 deaths)” and Équipe d’analyse, Service de la statistique, CSST, Portrait des lésions professionnelles chez les travailleurs de 45 ans et plus 1999-2008, May 2010, p. 38, online: http://www.csst.qc.ca/publications/200/Documents/DC200_1049web1.pdf (site consulted April 21, 2015), “Over the course of the last ten years studied, occupational disease-related deaths are mainly caused by asbestos (at least 7 out of 10 cases).” 2 (2013) GOQ II, 1999. 3 CQLR c S-2.1, r 13 (“RROHS”). 4 Regulation to Amend the Regulation Respecting Occupational Health and Safety and the Safety Code for the Construction Industry, supra, note 2, section 6. 5 CQLR c S-2.1 (“AROHS”). 6 We are referring, in particular, to section 236 of the AROHS. 7 RROHS, section 69.3. See also section 56 of the AROHS. 8 RROHS, section 69.1. 9 Ibid,, sections 69.2, 69.4 and 69.6. 10 Ibid,, sections 69.4 and 69.7. 11 Ibid,, section 69.8. 12 Commission de la santé et de la sécurité du travail, «Amiante», Foire aux questions (question 15), online: http://www.csst.qc.ca/prevention/theme/amiante/Pages/foire_aux_questions.aspx (site consulted April 21, 2015). 13 RROHS, section 69.9. 14 Ibid,, section 69.11. 15 Ibid. 16 Ibid,, section 69.10. 17 Ibid,, section 69.13. 18 Code de sécurité pour les travaux de construction, RLRQ c S-2.1, r 4; RSST, article 69.14. 19 RROHS, section 69.15. 20 Ibid,, section 69.16. 21 Ibid,, section 69.17.

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  • A corporation receives a hefty fine and two of its officers face jail time for violations of the Ontario occupational health and safety regulations

    On January 13, 2015, New Mex Canada Inc. ("New Mex"), an Ontario corporation and employer in that same province, was sentenced to pay a fine of $250,000 while two of its officers each received 25-day prison terms after pleading guilty to several offences under the Ontario occupational health and safety legislation and regulations. The proceedings were instituted following a workplace accident in which a worker died after a fall. On January 18, 2013, the worker in question was moving merchandise in the workplace. He was operating a combination forklift/operator-up platform known as an order picker. The platform had been modified with an additional platform, supported by the forks of the vehicle, on which the worker was standing. The second platform had no guard rail and the employee was not wearing any fall protection equipment. The worker was found dead on the floor as a result of a blunt force trauma to the head. An investigation by the Ontario Ministry of Labour revealed that New Mex had committed several offences. In particular, the warehouse employees had received no occupational health and safety training, nor had they been provided with any fall protection equipment, contrary to the requirements of the applicable regulation.1 Ontario's Occupational Health and Safety Act2 provides for the possibility of a maximum prison sentence of 12 months for anyone who fails to comply with any of the provisions of the Act or the associated regulations. This decision clearly shows that the Ontario authorities are determined to enforce the penalties set out in occupational health and safety legislation. Recall that prison sentences are not included among the penalties set out at sections 236 and 237 of Quebec's Act respecting occupational health and safety.3 In addition, according to various recently published press releases, the Ontario Federation of Labour is putting pressure on authorities to file criminal negligence charges under the Criminal Code4 in addition to the aforementioned convictions in this case. Generally speaking, the penalties for a criminal negligence conviction are much more severe than the penalties under provincial legislation, reflecting the inherent seriousness of such an offence. An individual charged with criminal negligence causing death is liable, among other things, to imprisonment for life,5 while, for organizations, there is no limit to the amount of the fine for which they may become responsible.6 Lavery will keep you informed of further significant developments on this subject. _________________________________________ 1 Industrial Establishments, RRO 1990, Reg 851, s 85. 2 RSO 1990, c O.1, s 66. 3 CQLR c S-2.1. 4 RSC 1985, c C-46. 5 Ibid, s 220(b). 6 Ibid, s 735.

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  • A pregnant worker’s right to benefits in the event of preventive withdrawal pursuant to section 36 of the AROHS does not apply to a business under federal jurisdiction: Éthier v. Commission des lésions professionnelles

    This decision of the Superior Court of Québec addresses a pregnant worker’s right to preventive withdrawal where said worker is employed by a business under federal jurisdiction.1 In this case, questions of constitutional jurisdiction were raised and the Superior Court confirmed that article 36 of the QuébecAct Respecting Occupational Health and Safety2 (the “Act”) is not applicable to businesses under federal jurisdiction. As a result, a worker who exercises her right to cease to perform a job pursuant to the Canada Labour Code (the “Code”)3 is not eligible to receive income replacement benefits, regardless of the fact that the federal scheme does not provide for the payment of such benefits.THE FACTSMs. Éthier works for the Canadian National Railway Company (“CN”), a business under federal jurisdiction. In August 2011, while she was pregnant, she filed an application with the Commission de la santé et de la sécurité du travail (“CSST”) under the “[TRANSLATION] For a Safe Maternity Experience Program”. Subsequently, due to her condition, a doctor recommended that she be assigned tasks posing no physical risk to her or, failing that, that she be preventively withdrawn as of the 20th week of her pregnancy. Her employer informed her that it could not modify her job and could not reassign her to other tasks. Consequently, Ms. Éthier availed herself of the preventive withdrawal option available to pregnant women under sections 132, 205 (a) and 205.1 of the Code. Subsequently, the CSST informed Ms. Éthier that she was not eligible for the preventive withdrawal program under the Act, since the program does not apply to businesses under federal jurisdiction. Therefore, the CSST notified her that she was not entitled to income replacement benefits under section 36 of the Act. Ms. Éthier sought review of this decision and, subsequently, appealed the decision rendered by the CSST’s Administrative Review Division before the Commission des lésions professionnelles (“CLP”). The two bodies having dismissed her requests, Ms. Éthier requested that the Superior Court review the decision rendered by the CLP.4THE SUPERIOR COURT DECISIONThe Superior Court must determine whether the compensation system provided for under the Act respecting industrial accidents and occupational diseases5 (“ARIAOD”) is, pursuant to section 131 of the Code, constitutionally applicable to a pregnant worker employed by a business under federal jurisdiction and who exercises a right of preventive withdrawal. Section 131 of the Code reads as follows:“131. [Compensation under other laws precluded] The fact that an employer or employee has complied with or failed to comply with any of the provisions of this Part may not be construed as affecting any right of an employee to compensation under any statute relating to compensation for employment injury or illness, or as affecting any liability or obligation of any employer or employee under any such statute.”Before the Superior Court, Ms. Éthier claimed that a pregnant employee working for a business under federal jurisdiction must be entitled to the same benefits as a pregnant employee working for a business under provincial jurisdiction and, therefore, must be able to receive an income replacement benefit allowing her to exercise her right of preventive withdrawal. She claimed that section 131 of the Code is an interjurisdictional reference to the provisions of the ARIAOD which entitle the employee of a business under federal jurisdiction to an income replacement benefit. The Superior Court confirmed the CLP’s decision and rejected Ms. Éthier’s appeal. Citing the Supreme Court of Canada’s decision in Bell Canada v. Québec (CSST),6 the Superior Court refused to depart from well-established jurisprudence according to which the Act does not apply to businesses under federal jurisdiction. Section 131 of the Code makes no reference to the ARIAOD or the Act. In order to be applicable, an interjurisdictional reference must be clearly defined. As well, the wording of section 132 of the Code, which provides for the right of a pregnant worker to cease performing her tasks if she believes that, due to her pregnancy or the fact that she is nursing, continuing any of her current tasks may pose a risk to her health or to that of the fetus or child, gives the worker a unilateral right to cease carrying out her tasks. At face value, this provision is inconsistent with any form of income replacement benefit under a provincial plan. Even on an expansive interpretation of section 131 of theCode, there is no clear interjurisdictional reference to the provisions of the ARIAOD which provide for the compensation of the pregnant employees of a federal business.OUR OBSERVATIONSDevelopments in this matter are still ongoing since the Court of Appeal of Québec granted Ms. Éthier leave to appeal the Superior Court’s decision on April 16, 2014. The Court of Appeal was seized of the following questions, which would be new and which had not previously been the subject of debate before either the Court of Appeal or the Supreme Court of Canada:a) Do the legislative amendments made to the Code since 1993 and the decisions of the Supreme Court of Canada in Canadian Western Bank v. Alberta,7 Tessier Ltée v. Québec (CSST),8 Québec (Attorney General) v. Canadian Owners and Pilots Association,9 Marine Services International v. Ryan10 and Martin v. Alberta (Worker’s Compensation Board)11 justify a review of the principle according to which sections 36, 40, 41 and 42 of the Act are not applicable to a federal business?b) Does section 131 of the Code constitute an interjurisdictional reference providing for the compensation of a pregnant or nursing worker pursuant to section 36 of the Act and the ARIAOD even if she is employed by a business under federal jurisdiction?These questions would be of “[TRANSLATION] general interest to all employees of businesses under federal jurisdiction.”12For their part, CN, the CSST and the Attorney General of Québec consider that the jurisprudence established by the Supreme Court in Bell Canada13 is still the authority and that sections 33, 36, 37 and 40 to 45 of the Act are not applicable to businesses under federal jurisdiction.Lavery will keep you informed of the result of this appeal._________________________________________1 2014 QCCS 1092 (“Éthier”) (application for leave to appeal granted) (C.A., 2014-04-16), 2014 QCCA 793). Note that as of July 16, 2014, no decision had been rendered in this case by the Court of Appeal.2 CQLR c. S-2.1 (the “Act”).3 RSC 1985, c. L-2 (the “Code”).4 Éthier v. Canadian National Railway, 2013 QCCLP 4672.5 CQLR c. A-3.001 (“ARIAOD”). This plan applies to preventive withdrawal by virtue of sections 36 and 42 of the Act.6 [1988] 1 S.C.R. 749, p. 801 (‘‘Bell Canada’’).7 2007 SCC 22.8 2012 SCC 23.9 2010 SCC 39.10 2003 SCC 44.11 2014 SCC 25.12 Éthier v. Compagnie de chemins de fer nationaux du Canada, 2014 QCCA 793, par. 2.13 Supra, note 6.

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  • Right to refuse to work and preventive withdrawal: the Dionne v. Commission scolaire des Patriotes case

    In Québec, the objective of the Act Respecting Occupational Health and Safety1 (the “Act”) is the elimination, at the source, of dangers to the health, safety and physical well-being of workers. Recently, the Supreme Court of Canada rendered a decision in the Dionne v. Commission scolaire des Patriotes2 case concerning the right that the Act confers on a worker to refuse to work if he3 has reasonable grounds to believe that it could expose him to a threat to his health, safety, or physical well-being or would expose another person to a similar danger4. This unanimous decision of the judges of the Supreme Court of Canada clarifies the scope of the right of a pregnant woman to refuse to work where she faces job insecurity, in this case, given her status as a part-time supply teacher. A PREGNANT WOMAN TO REFUSE TO WORK WHERE SHE FACES JOB INSECURITY, IN THIS CASE, GIVEN HER STATUS AS A PART-TIME SUPPLY TEACHER. A PREGNANT WORKER’S RIGHT TO REFUSE TO WORK AND PREVENTIVE WITHDRAWAL: LEGAL CONCEPTS In the more specific example of a pregnant worker, the Act provides for the option of a preventive withdrawal where said worker provides her employer with a certificate attesting to the fact that her working conditions may be physically dangerous to her unborn child or to herself due to her pregnancy.5 In this particular case, the pregnant worker may request to be reassigned to other duties involving no such danger and that she is reasonably capable of performing. If the employer does not or cannot comply with the request, the pregnant worker may exercise her right of refusal to work until she is reassigned to duties that are compatible with her condition or until the date of delivery.6 A worker on preventive withdrawal is deemed to be at work and retains all the benefits attached to her regular position prior to her reassignment to other duties or her work stoppage.7 She is also entitled to full compensation for the first five working days of her work stoppage and, subsequently, receives 90% of her net salary for days where she would normally have worked, had she not been in preventive withdrawal.8 In these situations, income replacement benefits are provided to workers by the Commission de la santé et de la sécurité du travail (the “CSST”). THE FACTS In 2006, Ms. Maryline Dionne was a supply teacher who was added to the Commission scolaire des Patriotes’ (the “School Board”) list of supply teachers. A collective agreement requires the School Board to use the teachers on this list when replacement teachers are needed, leaving the selection of said replacements to the School Board’s discretion. Once on the list, Ms. Dionne worked frequently such that in 2006, she worked nearly full-time. In September 2006, she learned she was pregnant. Shortly thereafter, her doctor informed her that she was vulnerable to catching a contagious virus which could harm her fetus. As this virus can be spread by groups of children, her doctor completed two certificates prescribing preventive withdrawal and reassignment, confirming that her workplace also posed a risk to her health. Ms. Dionne forwarded the certificates to the CSST, which informed her that she would be eligible for preventive withdrawal on the day when she would be “called to work by [her] employer to carry out a contract”.9 Ms. Dionne received several offers from the School Board to substitute teach in November 2006, all of which she accepted. She was never reassigned to any other tasks. The CSST rendered a decision declaring that Ms. Dionne was entitled to receive income benefits related to her preventive withdrawal. This decision was appealed by the School Board to the Commission des lésions professionnelles (“CLP”), with the CLP setting aside the decision rendered by the CSST.10 In its decision, the CLP held that since Ms. Dionne was unable to enter the school due to the risks it posed to her health, she was incapable of performing the supply teaching work and no contract of employment could be formed. More specifically, the CLP held that Ms. Dionne’s condition prevented her from performing the tasks necessary to form a contract of employment within the meaning of the Civil Code of Québec (“CCQ”).11 Consequently, she could not be considered to be “a worker” within the scope of the Act nor was she entitled to preventive withdrawal and the resulting benefits. The Superior Court confirmed the decision of the CLP.12 The Court of Appeal upheld this decision, although there was a dissent.13 THE DECISION OF THE SUPREME COURT OF CANADA Basing itself on the objectives and the context of the Act, the Supreme Court of Canada allowed Ms. Dionne’s appeal. In its decision, the Court reiterated that the objective of the Act is the elimination, at the source, of dangers to the health, safety and physical well-being of workers.14 After reviewing the principles applicable to the right of refusal set out in the Act, the Court indicated that the right to refuse to perform dangerous work must not be considered to be a refusal to fulfil an employment contract but, rather, as “the exercise of legislative protection”.15 The Act being of a law of public order, this right to refuse to perform work is automatically incorporated into any contract of employment.16 The Act therefore protects pregnant women in two significant ways: it protects their health by substituting safe tasks for dangerous ones, and it protects their employment by providing financial and job security.17 The Court recognizes that in order to qualify as a ‘‘worker” within the meaning of the Act, there must be a “contract of employment”. Since this concept is not defined in the Act, the Court refers to the definition of a contract of employment provided for at article 2085 of the CCQ. In the case of Ms. Dionne, does the presence of a health risk in the workplace constitute an obstacle to the formation of an employment contract? The CLP was of the view that since Ms. Dionne could not enter the workplace to teach, the essential element of the performance of the contract was missing and, as a result, no contract of employment could be formed. According to the Supreme Court, this decision is unreasonable. The concept of “worker” set out in the Act must be distinguished from the concept of a “contract of employment” as set out in the CCQ. There are several indications of the legislative intention to reach a much broader group of workers than that contemplated by the “employee” of the CCQ. The requirement of the performance of work must be interpreted in order to give meaning to the right of refusal provided for by the Act. According to the Court, this requirement shall be respected even if, following the formation of the contract, the worker withdraws from the workplace for health and safety reasons; at that point, the Act deems the employee to be “working”.18 Consequently, when Ms. Dionne accepted the School Board’s offer to work as a supply teacher, an employment contract was formed and she became a worker in accordance with the definition of that term in the Act. It was not her pregnancy but rather the dangerous workplace that prevented her from carrying out her work, and that in turn triggered her statutory right to substitute that work with a safe task or to withdraw.19 The refusal to perform a dangerous task is not a refusal to fulfil the employment contract; it is the exercise of a statutory right under the Act. Protective reassignment is not an obstacle to the formation of an employment contract. The CLP’s decision had the “anomalous” effect of putting certain women in the untenable position of having to choose between entering into an employment contract and protecting their health and safety or the health and safety of their fetus. OUR OBSERVATIONS This decision will likely have major repercussions on workers who have casual status and employers in Quebec’s education sector. The expansive and liberal interpretation given by the Supreme Court of Canada to the rights and protections set out in the Act has the effect, notably, of extending the grounds for workers’ right of refusal compensation to which such workers are entitled when they are offered a job, regardless of whether or not these workers can in fact perform the work. Therefore, when an employer makes a job offer, the worker may accept it and then refuse to perform the work, citing a risk to her health, safety and well-being. _________________________________________ 1 CQLR c. S-2.1 (the “Act”). 2 2014 SCC 33 (‘‘Dionne’’). 3 For the purposes of convenience, in this text, the masculine is used to refer to both men and women. 4 The Act, section 12. 5 Id., section 40. See also Regulation respecting the certificate issued for the preventive withdrawal and re-assignment of a pregnant or breast-feeding worker, CQLR c. S-2.1, r. 3. 6 The Act, section 41. 7 Id., section 14 and 43. 8 Id., section 36. 9 Id., par. 10. 10 Commission scolaire des Patriotes v. Dionne, 2008 QCCLP 3215. 11 LRQ, c C-1991, article 2085 (‘‘CCQ’’). 12 Dionne v. Commission des lésions professionnelles, 2010 QCCS 1550. 13 Dionne v. Commission scolaire des Patriotes, 2012 QCCA 609. 14 The Act, section 2. 15 Dionne, supra, note 2, par. 22, citing Bell Canada v. Québec (CSST), [1988] 1 S.C.R. 749, p. 801. 16 The Act, section 4. 17 Dionne, supra, note 2, par. 30. 18 Id., par. 38. 19 Id., par. 43.

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  • Notice to employers under federal jurisdiction: amendments to the Canada Labour Code will take effect on October 31, 2014

    On December 12, 2013, A second act to implement certain provisions of the budget tabled in Parliament on March 21, 2013 and other measures1 (“Bill C-4”) received royal assent. Bill C-4, which consists of more than 300 pages, proposes a significant number of legal amendments, some of which relate to the Canada Labour Code2 (“CLC ”). On June 18, 2014, the amendments were set to take effect on October 31, 2014.3 According to a consultation paper issued by the Government of Canada, the amendments regarding Part II of the CLC , entitled “Occupational Health and Safety”, are intended in the following context: Over 80% of refusals to work in the last 10 years – from 2003 to 2013 – have been determined to be situations of no danger, even after appeals. By clarifying the definition of “danger” employees and employers will be better able to deal with health and safety issues through the Internal Responsibility System.4 The amendments made by Bill C-4 concern, in particular, changing the definition of the term “danger”, the abolition of “health and safety officers” as well as changes to the process applicable to investigations relating to the right to refuse to work (section 128 of the CLC ) or to complaints made under section 127.1 of the CLC (an employee who believes on reasonable grounds that there has been a violation of Part II of the CLC or that there is likely to be an accident or a disease arising out of, linked with or occurring in the course of employment). Well in advance of its enactment, several labour unions reacted to Bill C-4, alleging in particular that it compromises the rights of workers regarding workplace health and safety matters, even going so far as to state that the proposed amendments could lead to increased injury and health risks. Currently, section 122 of the CLC defines the concept of “danger” as follows: “danger” means any existing or potential hazard or condition or any current or future activity that could reasonably be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected, or the activity altered, whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity, and includes any exposure to a hazardous substance that is likely to result in a chronic illness, in disease or in damage to the reproductive system. It is interesting to note that this definition of danger follows the amendments to Part II of the CLC enacted in September 2000.5 In the course of this legislative amendment, the concept of “danger” was changed to include potential dangers as well as the conditions or activities, present or future, which could reasonably result in injury or illness. Such amendments were made to “improve” the previous definition of “danger”, which was “believed to be too restrictive to protect the health and safety of employees”6: [...] According to the jurisprudence developed around the previous concept of danger, the danger had to be immediate and present at the time of the safety officer’s investigation. The new definition broadens the concept of danger to allow for potential hazards or conditions or future activities to be taken into account. [...]7 Therefore, it is interesting to note that the amendments made by Bill C-4 appear to, in some way, remove these additions in order to re-establish a concept of “danger” that more resembles the one which existed prior to the legislative amendments in the year 2000. In fact, the new definition of “danger” in section 122 of the CLC provided by Bill C-4 now reads as follows: “danger” means any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered.8 As a result, the danger must be reasonable rather than “existing or potential”, as well as “be an imminent or serious threat to the life or health of a person exposed to it”, as opposed to “likely to cause injury or illness”. It is therefore possible that after Bill C-4 is enacted, the jurisprudential interpretation of the concept of “danger” established over the past ten years will be modified. The term “danger” also appears in section 128 of the CLC regarding the right of an employee to refuse work that he considers to be dangerous; this provision will need to be interpreted in light of the new concept of “imminent or serious threat to the life or health of a person exposed to it” once Bill C-4 is enacted. The burden of employees who wish to invoke a right of refusal will thereby be changed, given that the exercise of their right will depend on the presence of a situation that could reasonably result in an imminent or serious threat to their life or their health, as opposed to a reasonable and objective possibility that a risk will materialize.9 As well, Bill C-4 abolishes the concept of “health and safety officer”.10 Currently, Part II of the CLC sets out the procedures to follow when a complaint is made regarding occupational health and safety.11 At a certain stage, these complaints are referred to health and safety officers for investigation. As a result, the removal of said officers, as well as the additional amendments contained in Bill C-4, will result in changes to the investigation process related to these complaints. It will henceforth be a matter of an internal investigation between the employer and employee and if the internal investigation does not lead to a resolution of the complaint, it will be referred directly to the Minister of Labour.12 The impact of removing health and safety agents still remains, in our opinion, to be seen. However, we should point out that in the Order Fixing October 31, 2014 as the Day on which Division 5 of Part 3 of the Act Comes into Force,13 under the section entitled “Implications”, the text mentions that: […] These changes will reinforce the internal responsibility system to improve protection for Canadian workers and allow the Labour Program to better focus its attention on critical issues affecting the health and safety of Canadians in their workplace. The amendments will also help improve the quality and consistency of decisions being made by the Labour Program […]. It is also a matter of granting the Labour Program discretionary power and greater flexibility so that it can exercise its functions at “optimum efficiency”. Finally, the Order specifies that “the Minister will have the authority to decline to investigate refusals to work which can be more effectively dealt with under another act or which are deemed to be trivial, frivolous, vexatious, or made in bad faith.” Lavery will keep a close watch on the implementation of the changes that Bill C-4 will bring about after it comes into force on October 31, 2014 as well as their impacts in the short-, mid- and long-term, and will keep you informed of any significant trends. _________________________________________ 1 SC 2013, c.-40. 2 RSC 1985, c. L-2. 3 Order fixing October 31, 2014 as the day on which Section 5 of Part 3 of the Act comes into force, C.P. 2014-13, TR/2014-52 (Gaz. Can. II). 4 Government of Canada, Department of Finance Canada, ‘‘Bill C-4’’, Economic Action Plan 2013 Act, No. 2 - Part 3 - Various Measures: Division 5: Canada Labour Code, online: < http://www.fin.gc.ca/pub/c4/7-eng.asp > (site consulted on July 23, 2014). 5 An Act to amend the Canada Labour Code (Part II) in respect of occupational health and safety, to make technical amendments to the Canada Labour Code (Part I) and to make consequential amendments to other Acts, SC 2000, chapter No. 20. 6 Welbourne and Canadian Pacific Railway Company (March 22, 2001), decision No. 01-008, par. 17. 7 Id. 8 Bill C-4, section 176 (2). 9 Laroche v. Attorney General of Canada, 2013 FC 797, par. 60. 10 Bill C-4, section 176 (1). 11 W e refer in particular to sections 127.1 (8) and 129 of the CLC. 12 Bill C-4, sections 179 and following. 13 Supra, note 3, page 1758.

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  • Criminal negligence: The Court of Appeal of Ontario increases to $750 000 the fine imposed on Metron Construction Corp.

    On September 4, 2013, the Ontario Court of Appeal ordered Metron Construction Corporation (“Metron”) to pay a fine in the amount of $750 000 for criminal negligence causing death.1 After Metron pled guilty to the offence, the trial judge ordered the company to pay a fine of $200 000. This case was the result of the collapse of a swing stage from the 14th floor of a building on December 24, 2009 which resulted in the death of a supervisor and three employees.According to the Ontario Court of Appeal, the fine which Metron was ordered to pay by the trial judge was manifestly unfit. We are of the opinion that the following aspects of the decision are particularly noteworthy. The Use of Health and Safety Case LawAccording to the Court of Appeal, the trial judge placed too much emphasis on the case law dealing with fines in the context of occupational health and safety offences (penal provisions). In so doing, the trial judge failed to consider the higher degree of moral blameworthiness associated with a criminal conviction. In addition, the intrinsic seriousness of the offence of criminal negligence causing death must be considered. Lastly, since Metron pled guilty to this offence, it could not subsequently try to diminish its liability and distance itself from the actions of the supervisor, its representative, by relying on his corporate rank or his level of management responsibility. The Company’s Ability to PayThe section of the Criminal Code related to fines for organizations does not impose any maximum amount and does not require the court to consider the company’s ability to pay.2 The ability to pay may be considered in determining the punishment but does not constitute a prerequisite for the imposition of a fine. In Metron’s case, the economic viability of the enterprise was not a determining factor necessary to establish the appropriate fine and too much emphasis had been placed on Metron’s ability to pay.The Court of Appeal concluded that a $200 000 fine did not reflect the gravity of a guilty verdict for criminal negligence causing death, the particular circumstances of the case, or the serious consequences for the victims and their families. The negligence of the supervisor, and thus Metron’s criminal responsibility, was “extreme”. A fine in the amount of $750 000 was more appropriate.This judgment of the Ontario Court of Appeal is the first of an appellate court on the subject. It is particularly enlightening as to the criteria which must guide the courts in determining the appropriate punishment for criminal negligence in the context of an occupational accident. It is also the highest fine imposed on an enterprise guilty of criminal negligence causing death, the previous record being $100 000.3For more details on the trial level judgment, please see our publication by clicking here._________________________________________  1 R. v. Metron Construction Corporation, 2013 ONCA 541. 2 Criminal Code, R.S.C. 1985, c. C-46, section 735. 3 R. v. Transpavé inc., 2008 QCCQ 1598.

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