Bill 160 update

On March 3, 2011, the Ontario government introduced Bill 160, an act to amend the Occupational Health and Safety Act (OHSA) and the Workplace Safety and Insurance Act (WSIA).  The Bill’s primary intent is to remove from the WSIA (and, thus, from the Workplace Safety and Insurance Board) oversight for health and safety certification and training. There is also the intent in the Bill to create a Prevention Council and a Chief Prevention Officer under the OHSA, although details are scant about what those would be expected to accomplish and how they would be funded (currently, certification and training is funded by WSIB).

One interesting proposed amendment to the WSIA would see WSIB paying construction workers for their time off work while fulfilling the requirements to become certified under the OHSA.

On March 29, the Bill passed Second Reading, entirely unedited, and was referred to the Standing Committee on Social Policy. Interestingly, the Second Reading vote was 73-6 in favour of the Bill as written, which means 28 MPPs didn’t show up for the vote.

The Standing Committee is empowered to study and report on all matters relating to the mandate, management, organization or operation of the ministries and offices which are assigned to it as well as the agencies, boards and commissions reporting to such ministries and offices. Any proposal from a member of this Committee must be adopted by at least two-thirds of the members of the committee, excluding the Chair. The Committee currently has nine members, six of whom are Liberal MPPs.

Posted by Paul Harris

An honest lawyer

A court case in England might have provided the high point for honesty among legal professionals.

A young man in Bristol was out drinking with his friends one evening in February and apparently had a bit too much. As a lark, his friends stripped him of his clothes and dressed him in just a t-shirt and fishnet stockings. He was later arrested and pleaded guilty to using threatening, abusive, or insulting words and behaviour. At the time of his arrest, he was also clutching a purse.

But his honest lawyer gave the magistrate reason to smile. He stood before the court and said, ”My client is an idiot – and on the night in question he was a drunken idiot.”

The idiot was fined £100, and was ordered to pay a £15 victim surcharge and £85 costs.

There must be some kind of award for his lawyer.

Posted by Paul Harris

You need to be prepared even if you aren’t in Japan

It was Friday March 11 and I was sitting at a client’s workplace. The TV was on and tuned to CNN.  News feeds from Japan’s largest earthquake were the main topic and probably will be for for some weeks to come.

It made me realize just how fragile we are as human beings.  I just so happened to be working with my client who mentioned that May 1–7 is “Emergency Preparedness Week”.

Here is some helpful information I found.

Emergency Preparedness Week (EP Week) is an annual event that takes place each year during the first full week of May. This national event is coordinated by Public Safety Canada, in close collaboration with the provinces and territories and partners.

During Emergency Preparedness Week, activities are organized across Canada to raise awareness of the importance of having an emergency kit; making an emergency plan; and identifying risks in the region. These three simple steps can help Canadians prepare for all types of emergencies.

Every Province has specific guidelines to follow. For more information, visit www.emergencymanagementontario.ca/

BE PREPARED

Emergencies can happen at anytime and occur anywhere, often without warning. An emergency can force you to evacuate your neighbourhood or confine you to your home or workplace. It can leave you without basic services such as water, gas, electricity, or a working telephone. Are you prepared?

Although Ontario has effective emergency management legislation and programs, individuals and families play a vital role in preparing for times of crisis when emergency services and other government resources may be strained. It is important that individuals and families prepare to take care of themselves for at least three days.

Individuals and families are best able to cope when they have taken the time to prepare before an emergency happens. Follow the links below for addition information.

Watch our Be Prepared Video
Be Prepared at Home
Be Prepared at Work
Be Prepared in the Car
People with Disabilities/Special Needs
Be Prepared for Specific Emergencies

Mark Wood, CRSP

Private investigators can help protect companies from fraudulent WSIB claims PART 1

Today many employers are willing to take a stand against workplace fraud but lack the resources to deal with these sensitive issues.  Issues most likely to plague the workplace are fraudulent Workplace Safety Insurance Board (WSIB) claims, flagrant absenteeism, drug and alcohol abuse, theft and racial/sexual harassment.

The most costly issue for employers can be suspicious WSIB claims. Whether an employee is truly unable to return to work may be an issue. WSIB claims can seriously affect the premiums employers must pay.  Moreover, WSIB has placed a heavy obligation on both the employer and the employee to facilitate a return-to-work program.  Failure to comply can result in serious financial penalties.

Employers can become aware of suspicious claims in a number of ways.  Perhaps the most common occurs when an employee’s absence is much longer than anticipated.  This can be accompanied by an apparent reluctance on the part of an employee to co-operate with the employer.

A second common source of suspicion can be comments from third parties (e.g. co-workers) that the claimant has been seen engaging in activities inconsistent with the injury.

What can a company do when red flags surrounding a claim create suspicion?  The services offered by a private investigator can effectively reduce workplace fraud.  But beware, suspicion alone, albeit grounded, is not sufficient to engage the services of a private investigator.  The following guidelines should be strictly followed before surveillance services are requested:

  • Were other alternatives considered before surveillance was ordered?
  • Were there reasonable grounds for suspecting fraudulent conduct by the employee?
  • Was the employee’s disciplinary record taken into consideration?
  • Would the video surveillance contravene any terms of the collective agreement?
  • The surveillance must be carried out with as little intrusion as possible and must not infringe on the employee’s right to dignity.

Part 2 of this blog will cover the private investigator’s role in a WSIB investigation.

Please visit our website for more information about the services we provide.

http://irgcanada.com/our-services

Appeal Court decides Independent Owner Operator Truck Drivers must be counted for meeting obligation to form JHSC

Section 9(2)(a) of the Occupational Health and Safety Act (“Act”) in Ontario requires a joint health and safety committee (“JHSC”) at a workplace at which 20 or more workers are “regularly employed”. The Court of Appeal for Ontario (“Court”) recently decided that this includes independent owner operator truck drivers, who are not “employees” but self-employed individuals.  United Independent Operators Limited (“UIOL”) is a load broker who operates out of Woodbridge Ontario. They have 11 office employees and anywhere from 30 to 140 independent owner operator truck drivers contracted to do hauling, depending on the time of the year.

The Ministry of Labour (“MOL”) became involved when a truck driver who was contracted by UIOL, was crushed between his truck and that of another UIOL truck driver, causing a broken pelvis and two broken legs. The accident occurred at the worksite of a UIOL customer.  The MOL formed the view that the UIOL contravened the Act by failing to establish and maintain a JHSC.  UIOL disputed the order because they only had 11 full time employees and the truck drivers were not in an employment relationship. Nevertheless, they complied with the order by establishing and maintaining a JHSC. Despite this, the MOL still laid charges for failing to have such a committee in July 2004, when the truck driver was injured.

In finding that the UIOL was not required to establish and maintain a JHSC, the trial judge relied heavily on a case called 526093 Ontario Inc. (c.o.b. Taxi Taxi), [2000] O.O.H.S.A.D. No. 98 (QL) (“Taxi Taxi”), which was a decision of the Ontario Labour Relations Board (“OLRB”). That OLRB decision determined that “regularly employed” was held to apply only to workers who have a traditional employment relationship. As might be expected, the MOL appealed.  The Ontario Court of Justice dismissed the Appeal and agreed with the conclusions found in the Taxi Taxi decision.  Once again, the MOL appealed.

The Court felt that the appeal court judge’s reasoning in limiting the meaning of “regularly employed” was a little too narrow and inconsistent with the objectives, purpose and legislative scheme of the Act.  Because the Act is a remedial, public welfare statute intended to guarantee a minimum level of protection for health and safety of workers, it is to be interpreted generously rather than narrowly.  Recall that the Act in Ontario defines a “worker” very broadly and this definition is not limited to traditional employees but any “person who performs work or supplies services for monetary compensation” and this includes both dependent and independent contractors. Truck drivers at UIOL are therefore “workers” within the meaning of the Act.

Next the Court reviewed whether or not the truck drivers were “regularly employed”.  These terms individually or combined are not defined in the Act.  When legislative provisions are not defined, Courts will often turn to the “ordinary” meanings of the words to be interpreted.  This is why the appeal court started with the dictionary definition of “employed”. However, the Court of Appeal took a critically different starting point. They began with the Act’s definition of “employer”, which like “worker” is very broad and inclusive. “Employer” is defined as “a person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services”.  The Court of Appeal determined that the “Taxi Taxi” decision was wrongly decided and inconsistent with the definitions of “worker” and “employer” in the Act.  Finally, the Court also commented on the Brewers Retail case which dealt with employees at “dispersed” workplaces such as retail outlets and warehouse locations in Sarnia. The Court held that just as a dispersed workplace is not a reason to deny workers the benefit of a JHSC, neither is the absence of a “traditional” employment relationship.

This decision is very important for the truck driving industry in Ontario as well many others which regularly ‘employ’ (interpreted very broadly to be consistent with remedial and protective provisions of the Occupational Health and Safety Act) independent or dependent contractors.  All should establish and maintain JHSC’s in Ontario counting both their “traditionally employed employees” and also, all of their regularly contracted independent or dependent contractors or owner operators.

Link to the court decision.

Cézanne Charlebois, Charlebois Associates

Bill 160 will change health and safety delivery in Ontario

On March 3, 2011, Minister of Labour Charles Sousa introduced Bill 160, an act to amend the Occupational Health and Safety Act (OHSA) and the Workplace Safety and Insurance Act (WSIA).  At this point, it has only undergone First Reading so there may be a long road ahead before it might become law. Since Ontario is facing a provincial election in October this year, it might die on the order paper before an election ever occurs.

The gist of the Bill is to remove from the WSIA (and, thus, from the WSIB) oversight for health and safety certification and training.

There is also the intent to create a Prevention Council and a Chief Prevention Officer under the OHSA although details are scant about what those would be expected to accomplish.

One interesting proposed amendment in the WSIA would see WSIB paying construction workers for their time in regard to fulfilling the requirements to become certified under the OHSA – sort of compensation for learning how to help others not get injured and need compensation themselves.

Since those certification and training matters will no longer be provide by WSIB, does that mean employers can expect to see lower premiums?

Posted by Paul Harris

Daylight savings can be dangerous

Every year on the second Sunday in March, the majority of Canadians and Americans turn their clocks ahead an hour for a much welcomed extra hour of daylight, and in the process they sacrifice precious minutes of sleep. So goes the start of Daylight Saving Time (DST), which continues until the first Sunday in November.

Based on analysis of a U.S. Bureau of Labor Statistics database that tracks how Americans use their time, employees on average get 40 minutes less sleep on the Sunday night of the switch to DST. That loss of sleep may not seem like much but a study by Michigan State University researchers has found that the Monday following the switch to DST can be a particularly dangerous one. These researchers analyzed information from the U.S. National Institute of Occupational Safety and Health database of mining injuries from 1983-2006. Their research showed that there were 5.7% more workplace injuries and 67.6% more work days missed due to injuries on the first Monday following DST than on other days.

This research suggests that less sleep may increase both the incidence and severity of injuries. The increased danger isn’t just confined to the workplace. The Insurance Corporation of British Columbia (ICBC) reports a higher driving risk the first Monday after DST. According to statistics averaged from 2005-2009, on the Monday following the start of DST, car accidents increased 23%.

Perhaps not surprisingly, people have a much easier time adjusting to the switch back to standard time. The same rates of accident and injury do not occur on the Mondays in November when people gain an hour.

So, as the second Monday in March approaches, pay extra attention to employee schedules, sleep, and safety, because as the statistics show, the gains in daylight with DST may come at a human cost.

Tips to ease the effects of the switch to DST

Rest up: Go to bed earlier to get your usual amount of sleep so you can be well rested and alert.

Defer the dangerous: Schedule particularly hazardous work later in the week (where possible) after employees have had more time to adjust their sleep schedules.

Plan ahead: Give yourself extra time to drive to and from work, especially during the Monday commute, to avoid a potential accident.

Step up the safety: Take extra safety precautions and assign extra safety monitors on days following the switch to DST to help avoid potential workplace injuries before they occur.

More information

Read the study: Changing to Daylight Saving Time Cuts Into Sleep and Increases Workplace Injuries (PDF), American Psychological Association

Get smart driving tips for Daylight Saving Time, Insurance Corporation of British Columbia

Posted by Mark Wood

WSIB adjudicator refuses to reconsider even with undeniable proof she is wrong

Recently, one of our clients presented WSIB with videotape evidence that a
 worker was not where he claimed to be. Since he said he had sustained an
 accident at that location, you might think the fact he wasn’t there at all 
was pretty compelling evidence.

Not for this Eligibility Adjudicator. The video camera used is motion
 activated so nothing is recorded until there is a vehicle or person entering
 the camera’s view. On the video, we see vehicles coming and going 
throughout the day but not one vehicle coming or leaving the company yard 
during the time when the worker claimed the accident occurred. Apparently,
 for her, proof of absence means the same as absence of proof.

The Eligibility Adjudicator refuses to even consider the video evidence as 
demonstrating that the worker was “not in the course of his employment” and
 says that she will not even review an expert report from an investigations
 company explaining that there is no vehicle entering or leaving the premises, 
and how “motion activated” recording works. She insists she has made up her
 mind, and that the expert report can be presented at an appeal. It does not 
matter to her that an Appeal will likely take up to 12 months to be heard.

Apparently this Adjudicator is unfamiliar with WSIB Policy 11-01-02, which 
states in part: “As an inquiry system (rather than an adversarial system),
the WSIB gathers relevant information, weighs evidence, and makes decisions.
The WSIB’s decisions and practices must be consistent with the provisions of 
the Act and the rules of natural justice.” It seems to me that 
incontrovertible proof ought to be considered ‘relevant information’ and 
that ‘natural justice’ would require the evidence be used as part of the
 decision-making process.

Not only should this claim be not allowed, the worker should be considered for section 149 charges.

What is really most stunning here is the Eligibility Adjudicator’s admission 
that, really, she can’t be bothered – she’s made up her mind and that’s all 
there is to it.

Posted by Cézanne Charlebois

WSIB fails to apply law about CPP benefits

Section 43 of the Act describes how benefit entitlement is to be calculated. Within that, section is the following text:

(5) The calculation of the amount of the payments is subject to the following rules:

2. The amount described by clause (2)(b) must reflect any disability payments paid to the worker under the Canada Pension Plan or the Québec Pension Plan in respect of the injury.

This seems to be a clear statement of the legislature’s intent – in law, as you know, the word ‘must’ is not negotiable. That is, if a compensable injury also attracts benefits under the Canada (or Québec) Pension Plan, then WSIB benefits are to be offset by an equal amount.

WSIB Case Managers routinely and regularly, almost without fail, do not take CPP/QPP payments into account when calculating WSIB payments. Indeed, they regularly tell employers or their representatives that they don’t ask the worker if s/he has applied, or suggest to the worker that they should. We fail to see how the Board can accurately apply the law if Case Managers are choosing to overlook the necessity of pursuing possible CPP/QPP confirmation from workers who appear likely to qualify for those benefits.

WSIB Policy 18-01-13 states:

Loss of Earnings (LOE)
The Workplace Safety and Insurance Act provides:
When calculating LOE benefits, the amount of net average earnings the worker is able to earn in suitable and available employment or business after the injury must reflect any disability payments paid to the worker under the Canada Pension Plan (CPP) or the Quebec Pension Plan (QPP) in respect of the injury.

Future Economic Loss (FEL)
The Workers’ Compensation Act provides:
When calculating FEL benefits and determining the amount of net average earnings the worker is able to earn in suitable and available employment after the injury, the WSIB must have regard to any disability payments the worker may receive for the injury under the Canada Pension Plan (CPP) or the Quebec Pension Plan (QPP).

[Note we haven’t added the emphasis – that’s the way it is in the published policy. We presume, therefore, the Board of Directors (who approve policies) really mean it.]

It matters. For Schedule I employers, they are bearing at least part of a burden that the Act says they should not. For Schedule 2 employers, they are paying the full freight for WSIB ignoring its own legislation.

Posted by Paul Harris