Sometimes a swimming pool is just a swimming pool

In 2007, a guest at Blue Mountain Resorts died while swimming in an unattended pool at the resort.

The Ontario Ministry of Labour issued orders against the employer for failing to report this death under subsection 51 (1) of the Occupational Health and Safety Act.

The employer argued that they should not be required to report the death of a guest in a swimming pool, because the pool was not a “workplace” and there was no “worker” even present when this tragic accident occurred.

The Ministry of Labour disagreed and issued orders against the employer.

Throughout Ontario, employers were stunned when both the OLRB and the Divisional Court upheld the orders of the MOL.

With the Dofasco case in 2007, the Court of Appeal told us that “due diligence” required employers to literally have eyes on the backs of their heads as they contemplated even the “rogue and defiant worker” in their legal responsibilities.

The Blue Mountain decisions by the MOL, the OLRB and the Divisional Court resulted in a shuddering wave of resignation by employers.

The Court of Appeal for Ontario has thankfully restrained and limited the broadening reach of the MOL in saying that their interpretation of this section “would make virtually every place in the province of Ontario (commercial, industrial, private or domestic) a “workplace” because a worker may, at some time, be at that place“.

They set aside the decisions of the Divisional Court and the Board.

This is great reading for employers! Read the Court of Appeal for Ontario decision.

Does Bill 160 threaten worker safety

In a recent three-quarter page Toronto Star advertisement, the Canadian Union of Public Employees (CUPE) and the Ontario Compensation Employees Union (OCEU) have complained that the government’s proposed legislation, Bill 160, will endanger Ontario’s workers. Using some selective statistics, the joint advertisement claims that injuries and deaths have decreased since WSIB assumed responsibility for prevention in 1998.

It also claims that Bill 160 would represent an unfair tax load for some employers, apparently ignoring the present unequal burden of prevention costs.

The advertisement also suggests the Ministry of Labour – who is responsible for the Occupational Health and Safety Act – might not be the best place to locate prevention services. Noting that the whole point of the OHSA is to create workspaces that minimize or eliminate work injuries, it is not altogether easy to follow this logic.

It is hard to escape the fear of job losses at the WSIB as the main thrust behind this advertisement. That might be a legitimate and justifiable concern, but from our reading of the proposed legislation, we fail to see the peril that this legislation might introduce to the workplace.

It should be remembered that when Bill 99 created the WSIB, there was great fanfare in the announcement that the new Board would function as ‘an insurance company’. Responsibility for rehabilitation was off-loaded because that was not the proper job of an insurer, we were told. So it might seem to be ironic that when we are in the midst of rehabilitation services returning to the WSIB, they are losing prevention services – something else that never really seemed to jive with being ‘an insurance company’.

Posted by Paul Harris

Ontario files consolidated OHSA regulation governing confined spaces

On March 29, the government of Ontario filed amendments to Regulation 632/05 – which is not even scheduled to come into force until July 1, 2011. The newly introduced regulation (O. Reg. 95/11) consolidates the confined space requirements already found in other regulations into the upcoming Regulation 632/05. This affects specific rules already in effect for mines and mining plants, healthcare and residential facilities, industrial establishments, and construction projects.

However, the amended Regulation 632/05 maintains the distinction between confined spaces provisions for construction projects and those that apply in other workplaces.

Contact Workplace Health and Safety Network for any assistance required in preparing for the new rules.

Posted by Paul Harris

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

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