Resources: Health + Safety
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Jail Sentences for Worker Fatalities: Will They or Won’t They?
October 2019
Most employers are aware that the health and safety of their workers is one of the most important considerations on a worksite. Across Canada, warnings have been issued to employers and their directors that accountability for workplace accidents and especially fatalities is increasing. However, in the recent decision of Ontario (Labour) v. New Mex Canada Inc., 2019 ONCA 30, the Ontario Court of Appeal upheld a lower court‘s decision to overturn two jail sentences for directors following a workplace fatality.
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Jail Sentences for Worker Fatalities: Will They or Won’t They? -
A Most Canadian Caper: The Tale of the Vaping Zamboni Driver
August 2019
The legalization of cannabis has and will continue to affect a great number of things in our country — from policing to residential leasing to the air quality. Notwithstanding this significant shift in public policy, the legalization of cannabis has not impaired the rights of employers in this country to insist that employees report for work unimpaired by the use of drugs. The legalization of cannabis has also brought about more stringent restrictions on driving after using cannabis. This would presumably also apply to operating a Zamboni.
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A Most Canadian Caper: The Tale of the Vaping Zamboni Driver -
Sober Second Thought Key to Proving Reasonable Cause for a Drug Test
August 2019
Drug and alcohol testing has become both more common, and more accepted, in safety sensitive workplaces. When an employee’s appearance, behaviour, speech, motor skills, or body odour suggest recent drug or alcohol use, an employer will have reasonable cause to require a drug and/or alcohol test to determine whether it is safe for the employee to be at work. When an employee is involved in an accident or a near miss, post-incident drug and alcohol testing is appropriate to rule out impairment as a cause of the safety incident.
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Sober Second Thought Key to Proving Reasonable Cause for a Drug Test -
Employee’s Desire to Return to Work After Extended Medical Leave Not Enough to Trigger Duty to Accommodate
July 2019
In Katz et al. v. Clarke, 2019 ONSC 2188, the plaintiff had been hired by the defendant in 2000 as a front store manager. He had gone on sick leave due to a disability in July 2008 and had not returned to work after that. He had been disabled by two falls which had occurred outside the workplace and injured his knee and leg. As a result of the injuries, the plaintiff required a crutch and brace on a permanent basis. He received both short-term disability (“STD”) and long-term disability (“LTD”) benefits.
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Employee’s Desire to Return to Work After Extended Medical Leave Not Enough to Trigger Duty to Accommodate -
Terminating Post-Train Wreck? Let’s Talk Training — Failure to Train Someone Other than Plaintiff Can Erode Just Cause for Dismissal
July 2019
Richard Tymko was discharged from employment when the train on which he was working as a switchman derailed in the internal rail yard of a pulp mill in northern British Columbia. His employer, 4-D Warner Enterprises, terminated his employment because it alleged he failed to tell his co-worker, the trackmobile operator, to apply the train’s brakes and that caused the derailment.
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Terminating Post-Train Wreck? Let’s Talk Training — Failure to Train Someone Other than Plaintiff Can Erode Just Cause for Dismissal -
Advancing Unfounded Just Cause Defence Leads To Large Damages Award
May 2019
The B.C. Supreme Court’s recent decision in Bailey v. Service Corporation (Canada) ULC, 2018 BCSC 235 highlights the perils of advancing unfounded just cause allegations and a court’s willingness to sanction such conduct with substantial aggravated and punitive damages awards.
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Advancing Unfounded Just Cause Defence Leads To Large Damages Award -
Combative Conduct in the Workplace and the Duty to Inquire
April 2019
Tomasz Rutkowski, a unionized painter in the employer’s engineering department, filed a human rights complaint against his employer concerning its treatment of him in dealing with his mental disability. In Rutkowski v. Westin Bayshore Hotel and another, 2018 BCHRT 235, the B.C. Human Rights Tribunal (the “Tribunal”) dismissed the complaint.
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Combative Conduct in the Workplace and the Duty to Inquire -
Safety v. Privacy: Finding the Balance with Video Surveillance
March 2019
Arbitrator Ken Saunders’ recent decision in Lafarge Canada Inc. v. Teamsters, Local Union No. 213 (In-Cab Camera Grievance), [2018] B.C.C.A.A.A. No. 51 (Saunders) is instructive for employers considering the use of video surveillance in their workplace.
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Safety v. Privacy: Finding the Balance with Video Surveillance -
BC Court of Appeal Confirms High Standard for Mental Distress Damages
January 2019
An employee who believes they have been wrongfully dismissed from their employment can seek damages in court for both the fact of their dismissal and the manner in which they were dismissed. In Cottrill v. Utopia Day Spas and Salons Ltd., 2018 BCCA 383, the Court of Appeal affirmed that there remains a high threshold in British Columbia for plaintiffs seeking mental distress damages.
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BC Court of Appeal Confirms High Standard for Mental Distress Damages -
An Employer’s Duty to Provide a Discrimination-Free Workplace
November 2018
A recent B.C. Human Rights Tribunal decision serves to remind employers of their duty to provide a discrimination-free workplace.
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An Employer’s Duty to Provide a Discrimination-Free Workplace