Closing the Gap Between Denial and Reality on April 28

Every year on April 28 employers and workers are asked to remember the workers who have lost their lives in the course of their employment. Many employers shudder at this conscious awakening of a nicely suppressed fear and many workers’ do exactly the same.

April 28th is about waking up that shudder and letting it out. It is truly an excellent opportunity to close that gap between denial and reality.

Employers and workers are often lulled into complacency by an “accident-free” history. The price for the wake-up call is very high.

Emotional connection to the impact of workplace injuries and lives lost is a powerful motivator to enhance safety and promote your IRS.

What can you do?

  1. Go to the excellent and informative CCOHS site and either download or request some copies of the poster (above).  http://www.ccohs.ca/events/mourning/poster.html
  2. Ask your Joint Health and Safety Committee to select a few workers whose lives have been lost and ask them to do a brief presentation or find a moving video to present to the whole team on April 28th.
  3. If feasible, provide a brief period of time off to attend this presentation.
  4. Have them link this exercise to your overall health and safety goals.
  5. Employers can also encourage their JHSC and their team to participate in the Steps for Life – Walking for Victims of Workplace Tragedy on Sunday May 1, 2011 (in most communities).  http://www.stepsforlife.ca

Posted by Cézanne Charlebois

WSIB Adjudicator sees the light

In a blog posted here March 9 by Cézanne Charlebois, we advised of an adjudicator who refused to reconsider her entitlement decision, even in the face of incontrovertible proof that the worker had fabricated a story. There was video evidence and telephone records to prove that he was not where he claimed to be – in fact, nowhere near it – when he alleged to have sustained a workplace injury. He simply could not have injured himself as he claimed. This information had already been provided to the adjudicator by the employer, but she refused to consider it or to reconsider once she had made her ruling.

The employer felt so strongly about this injustice that they incurred the expense of hiring a lawyer. They, as we, also believed the worker needed to be held accountable for what was clearly an attempt to misrepresent.

We made a detailed submission to WSIB and we are pleased to report that the adjudicator relented and agreed to reconsider her decision. Further, the evidence presented was so persuasive that she reversed her initial ruling and has withdrawn WSIB entitlement from this worker.

In our eyes, the worker is guilty of violating s.149 of the Workplace Safety and Insurance Act and should face charges accordingly. That fight is still to come, but we have the satisfaction of knowing that his employer is not facing the costs of what amounted to a fraudulent claim.

Posted by Paul Harris

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

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

Employer in Ontario wins Appeal against Human Rights Tribunal

The Divisional Court found numerous deficiencies in both the “reasons” and “the process” of an HRTO Hearing that found that the employer had been discriminatory in a number of ways. These deficiencies were so significant, that it was “not possible to say that this was a fair hearing, nor that the findings of discrimination were reasonable”. In one instance, the Divisional Court stated that the HRTO’s finding was simply based on a “bald conclusion that is unsupported by any factual findings”. The now overturned October 7, 2009 HRTO decision found that the employer’s policies for dress code and rules for using the microwave were discriminatory. The Adjudicator also found that employer’s method of discipline was discriminatory and the employer failed to properly accommodate her religious attire. Finally, the Adjudicator also concluded that given all of this other discrimination that occurred, some degree of “discrimination” must have contributed to the dismissal itself. The employer no longer has to pay the $36,000 award and the employee is ordered to pay $10,000 in damages. The case is remitted back to the Tribunal for another hearing. The decision as a “whole is fatally flawed”, “patently unreasonable” and should be set aside. The entire decision will be enjoyable for employers to read.

Link: Divisional Court Decision

Link: HRTO Decision

Posted by Cézanne Charlebois

First time WSIAT has ever been overturned by the Divisional Court in Ontario

In Amin v WSIAT [2009] O.J. No. 4715 the Divisional Court finally reversed the first WSIAT ever. Unfortunately, this case illustrates the tremendous challenges faced by employers especially as they relate to “probationary” employees who are not performing well.  The worker had only been employed for 11 days and was a probationary employee. The worker had been given notice (the first mistake by the employer) by the company that they were going to terminate him for poor performance and for mis-representing his experience. Shortly after that on June 5, 2004 (unknown and unreported to the employer) the worker sought medical attention for pain in his right hand, arm and back. His employment was terminated on June 9, 2004 prior to any form or WSIB claim being filed.  He received full LOE benefits for almost two months following his termination until August 5, 2004 and then appealed the denial of ongoing LOE past August 5, 2004.  Four years later,  after working 11-days, the worker claimed that he was still feeling the effects of the gradual disablement type injury that he sustained and for this reason, he indicated that he was unable to find employment. He spent his time tending to his children, and giving advice to new immigrants.

The WSIAT Reconsideration Decision dated July 17, 2008 (390/08R) revealed that this worker had reported another injury of right sided back pain in 2003 (before his employment with the accident employer) on his second day on a job where he was sorting light metal parts weighing not more than five or six pounds in total and wherein the worker complained the job was too fast paced and was repetitive work.  His claim was denied.  “As I reviewed this matter for reconsideration, I found the description of events by the worker to be strikingly similar to the present claim-works for a very short period, complains that the work is too fast paced and repetitive, does not involve heavy products, and does not report an injury to his employer” see para [25] of WSIAT Decision No. 390/08R.

This case reminds employers to:

  • Do an intensive and thorough background check on every employee;
  • Quickly, make the decision to terminate (without notice) during the probationary period when it becomes apparent that an employee has mis-represented his or her skill level;
  • Have written documentation to verify performance issues on a daily basis for probationary employees;
  • Seek out the advice of a lawyer who specialize in management side workers’ compensation law  to conduct Independent Medical Examinations (IME) or a disability related surveillance investigation to assist with decision making by adjudicators, Appeals Resolution Officers and Divisional Court Justices.

There is absolutely no medical evidence to substantiate any ongoing impairment in this case and a whole lot of medical resources were wasted trying to verify this workers’ continuity of subjective complaint (which is not one of the criteria for entitlement in workers’ compensation).  Both the WSIAT Panel and the Divisional Court appeared to reluctantly admit that the worker did sustain a minor repetitive strain injury over a very short period of time.  However,  the Divisional Court allowed the worker’s appeal and referred the matter back to another WSIAT Panel because the end date for LOE benefits was not substantiated by evidence (just like the worker’s complaints for the following four years).  This should have been established by the Case Manager long before it went to WSIB Appeals Branch, WSIAT and the Divisional Court.   An application for leave to appeal to the Court of Appeal was dismissed on February 3, 2010. And the application for leave to appeal to the Supreme Court of Canada was dismissed on June 3, 2010. We are certainly looking forward to how the new WSIAT Panel will determine the date on which the worker’s injury is no longer work-related.

Link: WSIAT Decision 390/08 (now overturned)

Link: Ontario Superior Court of Justice – Divisional Court Decision

Posted by: Cézanne Charlebois