Unimin Canada Ltd v United Steelworkers, Local 5383. 2017 CanLII 31794 (Ont LA). USWA Local 862 v Canadian General Tower Ltd. [2003] OLAA no 801. Vu, Uyen. Ottawa Proposes Corporate Killing Law. Canadian HR Reporter. July 14, 2003, p. 1. Workers Health & Safety Centre. Resources. Accessed February 2018. https://www.whsc.on.ca/Resources/ Publications/WHMIS-Resources. Workplace Safety and Insurance Act, 1997. SO 1997, c 16, Schedule A. York Condominium Corp No 163 v Robinson, 2017 ONSC 2419. RELATED WEBSITES http://www.ccohs.ca/oshanswers/psychosocial/violence. html The Canadian Centre for Occupational Health and Safety (CCOHS) website contains an extensive list of questions and answers on workplace violence issues. https://www.labour.gov.on.ca/english/hs/topics/ workplaceviolence.php The Ontario Ministry of Labour website contains resources to help employers develop policies and programs to prevent and address workplace violence and harassment. REVIEW AND DISCUSSION QUESTIONS 1. Ontario's health and safety legislation is based on an internal responsibility system. Explain this term. In your opinion, is it an effective approach to ensuring safety in the workplace? Give reasons for your answer. 2. Name and explain the three core worker rights under Ontario's OHSA. 3. What are the responsibilities of certified members of a JHSC? 4. Explain the due diligence defence. What steps can employers take to establish this defence? 5. You are the human resources manager in a small manufacturing firm. An operations supervisor, Habrim, comes to you with a problem. The plant has just started working on a rush order from a major customer and now one of his production workers (Bruce) has refused to work because he says that his machinery is unsafe. Habrim checked the machine and it looked safe to him. He then contacted the Ministry of Labour to further investigate the refusal but he is wondering whether, in the meantime, he can get another employee to work on the machine that Bruce says is unsafe. Advise Habrim by explaining to him what the law requires in these circumstances. 6. Thompson, an experienced operator of the bar bundler packager at ABC Steel Co., noticed that bars had fallen into the basement of the packager. Contrary to his training and the employer's safety protocol, Thompson did not lock out the machine. Instead, he placed the machine on automatic and entered the basement area. To get there, he had to push open a self-closing swing gate which displayed a sign warning that the packager had to be "locked out" before entry. Similar signage was on the guard rail fence. Nonetheless, Thompson continued into the basement area; within moments, he was crushed to death by a movable portion of the bundler. The employer was charged with breaching section 25 of the Industrial Establishments regulation under the OHSA, which requires machines with hazards to have a guard to prevent access to the pinch point-the point where moving machinery parts are strong enough to pull someone in and injure them. The employer argued that it had done everything reasonable in the circumstances-employee training, a gate that closed automatically, and ample signage. It claimed that it is impossible to foresee and therefore guard against "reckless" employees who do the totally unexpected-even a locked gate would not have deterred a "determined and intentioned" employee like Thompson. On the basis of these facts, answer the following questions: a. Is this a strict liability offence? If so, does the Ministry of Labour have to prove anything or does the entire burden of proof lie with the employer? b. The employer may avoid liability if it shows that it exercised due diligence in attempting to carry out its duties. What is the standard of proof in making out a due diligence defence: "beyo d a reasonable doubt" or "on a balance of probabilities"? Research what these two different standards of proof mean. c. In light of all the circumstances, in your view did the employer exercise due diligence in the steps it took to protect employees from this hazard? If not, what additional steps should it have taken? Unimin Canada Ltd v United Steelworkers, Local 5383. 2017 CanLII 31794 (Ont LA). USWA Local 862 v Canadian General Tower Ltd. [2003] OLAA no 801. Vu, Uyen. Ottawa Proposes Corporate Killing Law. Canadian HR Reporter. July 14, 2003, p. 1. Workers Health & Safety Centre. Resources. Accessed February 2018. https://www.whsc.on.ca/Resources/ Publications/WHMIS-Resources. Workplace Safety and Insurance Act, 1997. SO 1997, c 16, Schedule A. York Condominium Corp No 163 v Robinson, 2017 ONSC 2419. RELATED WEBSITES http://www.ccohs.ca/oshanswers/psychosocial/violence. html The Canadian Centre for Occupational Health and Safety (CCOHS) website contains an extensive list of questions and answers on workplace violence issues. https://www.labour.gov.on.ca/english/hs/topics/ workplaceviolence.php The Ontario Ministry of Labour website contains resources to help employers develop policies and programs to prevent and address workplace violence and harassment. REVIEW AND DISCUSSION QUESTIONS 1. Ontario's health and safety legislation is based on an internal responsibility system. Explain this term. In your opinion, is it an effective approach to ensuring safety in the workplace? Give reasons for your answer. 2. Name and explain the three core worker rights under Ontario's OHSA. 3. What are the responsibilities of certified members of a JHSC? 4. Explain the due diligence defence. What steps can employers take to establish this defence? 5. You are the human resources manager in a small manufacturing firm. An operations supervisor, Habrim, comes to you with a problem. The plant has just started working on a rush order from a major customer and now one of his production workers (Bruce) has refused to work because he says that his machinery is unsafe. Habrim checked the machine and it looked safe to him. He then contacted the Ministry of Labour to further investigate the refusal but he is wondering whether, in the meantime, he can get another employee to work on the machine that Bruce says is unsafe. Advise Habrim by explaining to him what the law requires in these circumstances. 6. Thompson, an experienced operator of the bar bundler packager at ABC Steel Co., noticed that bars had fallen into the basement of the packager. Contrary to his training and the employer's safety protocol, Thompson did not lock out the machine. Instead, he placed the machine on automatic and entered the basement area. To get there, he had to push open a self-closing swing gate which displayed a sign warning that the packager had to be "locked out" before entry. Similar signage was on the guard rail fence. Nonetheless, Thompson continued into the basement area; within moments, he was crushed to death by a movable portion of the bundler. The employer was charged with breaching section 25 of the Industrial Establishments regulation under the OHSA, which requires machines with hazards to have a guard to prevent access to the pinch point-the point where moving machinery parts are strong enough to pull someone in and injure them. The employer argued that it had done everything reasonable in the circumstances-employee training, a gate that closed automatically, and ample signage. It claimed that it is impossible to foresee and therefore guard against "reckless" employees who do the totally unexpected-even a locked gate would not have deterred a "determined and intentioned" employee like Thompson. On the basis of these facts, answer the following questions: a. Is this a strict liability offence? If so, does the Ministry of Labour have to prove anything or does the entire burden of proof lie with the employer? b. The employer may avoid liability if it shows that it exercised due diligence in attempting to carry out its duties. What is the standard of proof in making out a due diligence defence: "beyo d a reasonable doubt" or "on a balance of probabilities"? Research what these two different standards of proof mean. c. In light of all the circumstances, in your view did the employer exercise due diligence in the steps it took to protect employees from this hazard? If not, what additional steps should it have taken?