When Unsafe Work is Criminal

Lawyers often say that law touches every area of life, but employment is an area of life that touches many different types of law. It’s one of the things that I find so fascinating about my work: a policy can be perfectly acceptable under labour law, but what about human rights? Health and safety? Privacy? Because of how important the workplace is to our daily lives, it’s a place where different regimes stack and layer on top of one another.

Metron Construction adds another legal regime to the mix, one that I don’t normally see in my day-to-day work: criminal law.

The Tragedy

Many Torontonians still remember watching news stories about the Metron Construction tragedy in 2009. Six construction workers were working at the fourteenth storey of a high-rise construction site, when the swing stage they were standing on collapsed. Only one man was wearing fall protection and escaped unharmed. Of the other five workers, four plunged to their deaths; the fifth miraculously survived the fall, suffering serious injuries.

As if it were even possible, the story gets worse.

There should never have been six people on the swing stage. It was designed to hold only two people at a time. That may be why there were only two fall-arrest harnesses between the six workers, instead of one per person as there should have been, which could have saved their lives. All of the workers were recent immigrants to Canada from Eastern Europe or Central Asia.

Oh, and it happened on Christmas Eve.

It was an event that shook people’s faith. Torontonians see their city, and Canadians see their country, as places where this sort of thing should not be allowed to happen. They’re right.

On the legal side, it was time to bring in the big guns.

The Charges

To understand what makes this case different from most cases involving workplace injuries, we have to look at the normal regime that governs workplace safety.

The Occupational Health and Safety Act (OHSA) in Ontario, and its equivalents in the other provinces, impose a number of duties on employers, general contractors, supervisors, workers and others to ensure that work is done safely. The duties range from the very specific (a guardrail must be between 91 and 107 centimetres, or 36 to 42 inches, above the floor) to the very general (employers must take all precautions reasonable in the circumstances to protect workers). A breach of these duties can lead to charges being laid.

We call these “quasi-criminal” charges, because they come from (in this case) safety regulations rather than the Criminal Code, but the process is fairly similar to the criminal one. Charges are laid, disclosure is given, the accused pleads guilty or not guilty, the prosecution has to prove its case beyond a reasonable doubt, and if the defendant is found guilty, the judge imposes a sentence.

A few years before the Metron event, however, the Criminal Code was amended to make it easier to prosecute companies for criminal offences having to do with worker safety. That was what made the Metron case different. The two regimes, OHSA and criminal, were applied at once.

So while the president of the company was pleading guilty to four OHSA charges (as part of a plea bargain that saw criminal charges withdrawn and allowed him to avoid jail time), the company itself was pleading guilty under the Criminal Code, to criminal negligence causing death. There was no plea bargain with the company, so the prosecution and the defence argued over the sentence in front of a sentencing judge.

As the judge, how do you decide what a fine should be in a case like this? Since the new Criminal Code provisions had rarely been applied before, there were few places for the judge to turn for guidance. The judge ended up relying on the fines that were imposed in similar cases under the OHSA, and also considering a number of other factors, including the company’s ability to pay.

The result? A fine of $200,000. Some public outrage. And an appeal by the prosecution to the Ontario Court of Appeal.

The Metron Construction Decision: Not in Kansas Anymore

The Court of Appeal released its decision in R. v. Metron Construction Corporation on September 4, 2013. The message: just because it’s a workplace safety incident doesn’t mean that we should use OHSA sentences. Criminal negligence is one of the most serious offences in the Criminal Code, and a sentence has to reflect that fact.

For one thing, if similar OHSA offences attracted fines between $115,000 and $425,000, then a criminal fine ought to be even higher. At the very least, it shouldn’t be toward the bottom of the range, like the original $200,000 fine was.

For another, once the Criminal Code is involved, you don’t need to worry as much about whether your fine is going to bankrupt the company. Those kinds of thoughts may make a lot of sense when you’re trying to enforce safety regulations – it kind of defeats the purpose if you bankrupt the company you were trying to regulate. But the Criminal Code is different. It’s not about regulation, it’s about public standards of behaviour. The purposes of a sentence include denouncing criminal activity and deterring other companies from doing the same. The company’s ability to pay should be taken into account, but it is far from the be-all and end-all.

In short, when you’re a corporation charged with a serious criminal offence, you should expect to face serious criminal sentencing. In the words of the Court, “The respondent was convicted of a very serious offence.  It is a different and more serious offence than those found under the OHSA.” We are not, so to speak, in Kansas anymore.

The Bottom Line

The company’s fine was increased from $200,000 to $750,000, and a statement was arguably made: companies had better be diligent about worker safety, because if they’re not, they have more than just the OHSA to worry about.

Some may argue that the fine was still not high enough. I’m not so sure. It certainly seems to me that the new fine was more appropriate than the old one, but $750,000 for a relatively small company strikes me as sufficient to drive home to other corporations that worker safety is important. Sadly, with an after-the-fact punishment, encouraging other companies to pay attention to safety is the best that we can really hope for.

And while many will say that the company president ought to have served jail time, the fact is that the supervisor whose negligence was most to blame for the tragedy has already served a much harsher sentence. He was one of the four who died on the swing stage.

Which just drives home what, for me, is the real point. For all of our talk about denunciation and deterrence, the facts on the ground make the entire sentencing analysis ring a bit hollow. Four people are dead, and no matter what fine we impose, it is not going to bring them back. The vast majority of the companies that I work for take pride in their health and safety programs, and would find the incident appalling, and that is what matters. It is the four deaths in and of themselves that ought to make us pay closer attention to workplace safety, not the fine that attaches to them.

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Life Into Fiction: Writing and Swing Dancing

At the outset, I promised that this blog wouldn’t be only about law. I do have another employment law entry in the works, on the Ontario Court of Appeal’s recent decision on the Metron Construction tragedy (Torontonians will remember the workers who plummeted to their deaths on a faulty swing stage on Christmas Eve, 2009). Today, though, I feel compelled to turn to the other two interests that I intended to use this blog for: creative writing and swing dancing. I want to talk about both in the same post.

Yes, that means what you think it means.

Ever since I started dancing more than a decade ago, I’ve wanted to write a novel about the experience. The prospect is at once enticing and overwhelming. How do you leave one of your greatest passions untouched, unshared? But at the same time, how do you confine one of the most important parts of your life to a printed page? How do you turn life into fiction?

Fantasy makes that easy. With Gateways, I’ve written a story that takes place in a different world. Yes, the characters need to be human, the plot realistic, the players’ actions and reactions believable, but fantasy still carries with it an enforced separation. You don’t worry, when a fountain of shimmering light is cascading among two lovers kneeling in a magical cavern, whether you’ve strayed too far into the autobiographical. Debates over the fate of the New Empire’s colonies may have similarities with the settlement negotiations I engage in all the time, but there is an important difference in character.  

Writing about college students in Kingston, Ontario is more immediate. If it’s less epic, that only makes it more personal. That may be why I’ve never been able to write more than three or four pages of swing dance fiction. Lately, I’ve been thinking of trying again.

The problem is that swing dancing doesn’t translate well into fiction. It’s just too happy. Novels thrive on conflict and drama, while swing is about letting go of cares, losing yourself in the music. It’s about open, welcoming communities. Fun and laughter. Awe and joy. The petty differences that sometimes arise between organizers just don’t cut it as drama that people would actually get invested in reading.

I’m sure lots of other dances have that joyful character, but you don’t see stories about that. Dance movies are usually driven by perfectionism, competition, or both. A classic plot is the girl admitted to the Intense Academy of Dance Intensity, where the teachers are mean and the classmates are meaner. She has to work herself harder than she’s ever worked before without losing her old friendships, her sense of self, or that guy who keeps getting better-looking as the movie goes on. The climax is a performance or audition, where she bravely throws away everything the school has taught her and gives a brilliant performance from her heart, with Mr. Suddenly-Attractive watching secretly from the balcony.

It may be a great story, but it’s not a swing dance story. In a swing dance story, you spend the entire movie hugging lots of people, clapping while others dance, changing your shirt because you sweat too much, and trying to figure out how many times you can really afford to go to Rochester in the same year. Even if you set the story at a dance competition, your characters are still going to spend more time dancing socially, drinking, and posting updates on Facebook than they will training or competing.

So I came to the realization that if I ever want to write a story about swing dancing, the first step will be to make sure it’s not about swing dancing.

Swing can be a backdrop. It can be a setting, a world, the thing that draws the characters together. It can almost be a character itself, in the sense of a mirror that shows you who the other characters are in the way they relate to it. It can even be a plot point, or two or three, the syncopated beat of a song, hesitating before pulling the reader forward to the next breath. 

What it can’t be is the focus. The focus has to be on the characters, and the characters have to have their own stories outside of the dance, out in what some of us like to call the real world.

I’ve spent a lot of time over the last few days thinking about what those stories might be. The ideas are circulating in my mind. I have some great characters, and more and more jolts of plot and story. In fact, the entire ending sequence — which is always the first thing you need to map out — is taking some significant shape. It’s enough to make me wonder whether such a story might actually work.

There’s a lot more I could say about this idea, but let’s save some fodder for future posts. Besides, nobody likes spoilers, right? 

But I don’t want to get any hopes up. The vast majority of fiction writing projects that I start never get finished. Even Gateways was abandoned more than once along the way, before I decided to pick it up, dust it off and keep it going.

Just as important, Gateways is going to be my major writing project for some time. I really think it’s a great story that you’ll all want to read once it’s ready, and that is coming closer — I just heard today that I should expect to receive comments from my editor within the next week. But it’s nice to have another project percolating. It’s nice to know that there is a story, a story that’s kind of but not really about dancing, that’s bursting to be told.

Persons Quotes

We are one month away from Persons Day! That is the anniversary of the 1929 release of one of the most famous judicial decisions in Canadian history, the one that confirmed that, for the purposes of the Canadian Constitution, women are considered to be “persons.”

A couple of years ago, I gave a speech about the Persons Case at two small swing-dance-related events, and in honour of Persons Day 2013, I plan to post an updated version of that speech here on October 18. As I was thinking about that, I realized that I had never actually read the entire case from beginning to end, so a couple of days ago I did so. I was so excited about it that I thought I would share some of its best quotes with you.

1. Probably the most famous quote to emerge from the decision, at least in legal circles: “The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits. The object of the Act was to grant a Constitution to Canada.”

2. A lesser-known line that is quickly becoming one of my favourites; the continuing relevance to today’s debates (see: marriage equality versus the “traditional” definition of marriage) is striking: “Customs are apt to develop into traditions which are stronger than law and remain unchallenged long after the reason for them has disappeared. The appeal to history therefore in this particular matter is not conclusive.”

3. You have to love judges who don’t mince words: “The exclusion of women from all public offices is a relic of days more barbarous than ours . . .”

4. And, of course, the bottom line: “The word “person” as above mentioned may include members of both sexes, and to those who ask why the word should include females, the obvious answer is, why should it not?”

Dean Mayo Moran to review AODA

The Dean of the law school I attended, Mayo Moran (University of Toronto Faculty of Law), has been appointed to carry out a review of the Accessibility for Ontarians with Disabilities Act (AODA). I think she’s a great choice.

The AODA is legislation aimed at making Ontario accessible to people with disabilities. It does this in a somewhat unusual way: the main thing that the AODA does is to provide for committees to be created, and it is the committees who create the actual regulations (called “accessibility standards”) which organizations will have to follow. The committees must include representatives of disabled persons, industry, and government.

Although the legislation was passed in 2005, the first standard (relating to Customer Service) only came into force in 2010 for the public sector, and 2012 for the private sector. Three other standards have been drafted (Employment, Information/Communication, and Transportation), but only very small parts of them are currently in force. The rest of the standards are going to gradually take effect between 2014 and 2017, though, so companies should be reading up now on their responsibilities, and planning how they will comply.

It will be interesting to see what Dean Moran concludes about how the system so far has been working, and how those conclusions will affect the implementation of the existing standards or the development of new ones. I’ll try to check back in once she releases her report.

As a final note, I’ve actually just agreed to provide AODA training to a construction association in November. I did something similar for a different association about a year ago. Looking forward to it!

What would happen if an employer tried to ban religious symbols at work?

Imagine that an employer wanted to forbid its employees to wear religious symbols at work. Not all religious symbols, of course. Only “large” or “ostentatious” ones. What would happen?

The issue would fall under human rights legislation, which, in Ontario, is the Human Rights Code (the “Code”). The Code prohibits discrimination based on a number of protected characteristics, including religion (“creed”), in a number of social areas, including employment. Would the Code protect employees from this type of policy?

The Code would certainly come into play if the employer’s rule deliberately targeted employees based on their religion. But let’s assume that isn’t the case. Let’s assume the employer’s motivation is not anti-religion, but just to impose a reasonable dress code, to ensure that its staff have a professional appearance and portray the desired image to their customers. Under this dress code, all sorts of head coverings and jewelry are prohibited, not just religious ones. What would happen then?

Interference with a Sincere Religious Belief

The employer’s rule might still be discriminatory if it negatively affects somebody in a way that is linked to his or her religious beliefs. So the first question to ask is whether the individual employee has a sincere religious belief that he or she must wear the religious symbol. Many Christians, for example, wear a crucifix not because they believe their religion requires them to do so, but just because it is meaningful to them to express that part of their identity. The Code would probably not protect those people.

That said, it’s important to bear in mind that the question of a sincere religious belief is subjective. It doesn’t depend on what a  priest, rabbi or imam says the religion requires, but on what the individual believes.

The next question we would ask is whether the rule actually interferes with the person’s religious beliefs. The Ontario Divisional Court found in a 2011 case that an employer had not discriminated against a Muslim woman when it ordered her not to wear a particular hijab, which in the employer’s view looked unprofessional. The reason was that the employer had allowed her to wear other styles of hijab, and – the key point – those other hijabs were religiously acceptable to the employee. As a result, the employer’s rules still allowed the employee to practice her religion in a way that conformed with her sincere beliefs.

Similarly, an employer could probably require Jewish employees to wear small black yarmulkes (skullcaps) instead of more “ostentatious” ones – but only if the small black ones were acceptable according to the sincere religious beliefs of the individual employees.

The Duty to Accommodate

In our hypothetical, however, the employer’s dress code prohibits all sorts of head coverings and jewelry. Chances are that this type of rule would interfere with some employees’ religious beliefs.

Even so, that isn’t the end of the story. Even if the dress code is discriminatory, the employer can try to justify it as a “bona fide occupational requirement” – a rule that is truly required as an essential part of the employee’s job. The question to be asked is whether the employee’s religious beliefs can be accommodated without causing “undue hardship.” If so, the employer must modify the rule to accommodate the employee’s needs. If not, then the rule is allowed to stand.

What would constitute undue hardship when it comes to religious symbols? A couple of cases are illustrative. In one, an employer forbade a Sikh man from working because he was unable to wear a hard hat over his turban. A labour arbitrator upheld the employer’s decision, noting that the employer’s safety rule requiring hard hats was legitimate and necessary. In another case, a Sikh man was unable to wear a protective face mask, because it did not seal properly over the beard which his religion prevented him from shaving. Again, the employer was not required to excuse the employee from the safety rule, but it did have to try to find him a position that did not require the mask.

These cases show that interfering with worker safety is likely to be undue hardship. The Code will generally not excuse an employee from a workplace rule, even a discriminatory rule, where safety is at stake. But safety requirements are the only circumstances I have found in which an employer has successfully justified a rule that interferes with religious dress. While it is possible that other concerns could rise to the level of undue hardship, they would have to be just as compelling as physical safety. It is unlikely, for example, that a mere desire to make some customers feel more comfortable would make the cut.

Which is as it should be. The entire point of Canadian diversity and respect for human rights is that a person’s cherished beliefs, the things that make up his or her identity, should not be sacrificed merely because they may cause some discomfort.

Our hypothetical employer should keep that in mind.

And One More Thing

On the other hand, if wearing religious symbols in the workplace were contrary to law, an employer could almost certainly forbid its employees from doing so.

Suppose, for instance, that a provincial government were to pass a law forbidding certain employees from wearing religious symbols. Any employer covered by the law would probably be justified in enforcing that rule on its own employees. Even though the rule is discriminatory, it would cause undue hardship for the employer if it altered the rule and allowed religious symbols to be worn, because that would require the employer to break the law.

As a result, affected employees would not have much recourse under human rights legislation. They would have to challenge the underlying law itself, under the Canadian Charter of Rights and Freedoms.

But there’s no point even getting into that, because no provincial government would ever consider passing that kind of a law.

. . . I mean, they wouldn’t, right?

Right?

Disclaimer: This blog post is intended to provide readers an update on the law along with the author’s personal reflections. Nothing in this post or in the comments should be taken as legal advice or as creating a lawyer-client relationship. For more information or to inquire about obtaining legal advice, please see the Contact and Links section of this site.

The Alcohol Consensus

I wanted to kick this blog off with something that we’ll all be excited about. So today’s subject will be alcohol!

Drug and alcohol testing doesn’t normally make the news unless professional athletes are involved. As a result, we tend to think of testing as an issue of cheating versus fair play, as it is when we’re talking about Lance Armstrong and Alex Rodriguez. But what if we’re talking about an average employee in an industrial workplace? In that case, drug and alcohol testing engages a much more delicate conflict: safety versus privacy.

The Bottom Line

The Supreme Court of Canada has recently held that even in a dangerous workplace, an employer is not normally permitted to engage in random alcohol testing of employees. However, random testing may be permitted if there is a demonstrated problem with alcohol abuse in the workplace, which is significant enough to warrant overriding employees’ privacy interests in the circumstances, and cannot be addressed through less intrusive means.

The Supreme Court’s decision still allows employers to require alcohol testing for employees in safety-sensitive jobs if there are reasonable grounds to believe the employee is impaired, or if there is a safety incident, accident or near miss where alcohol testing may be necessary to determine the cause.

The decision does not deal with random drug testing, or with non-union workplaces, but the same principles most likely apply.

The Analysis

There’s a Clear, Overwhelming Consensus. We Just Can’t Agree on What It Is.

Here’s what I find amusing about the Supreme Court’s decision in Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. (“Irving”), released on June 14, 2013. The case turned on whether an arbitration board had properly applied earlier case law. Both the majority decision (6 judges) and the dissent (3 judges) agreed that there was a clear, overwhelming consensus in that earlier case law. The majority upheld the board’s decision because it followed the consensus. The dissent would have overturned the board’s decision because it failed to follow the consensus. So it seems that the Supreme Court judges couldn’t reach consensus on what the consensus was.

What’s interesting about all of the judges’ reasoning is that arbitration boards aren’t legally required to follow previous arbitration decisions, the way judges must follow the decisions of earlier judges. The Supreme Court is now saying that nonetheless, arbitration decisions can be overturned if they depart from the existing consensus without a reasonable justification for doing so. Which makes a lot of sense, because it’s good for everybody to be able to predict how a future arbitrator might act. But it does seem to make arbitration more formal and court-like, with all the good and bad that goes along with that.

You don’t want to hear about the increasing formalization of the labour arbitration system, though. You want to hear about alcohol! So let’s move on to . . .

Safety Versus Privacy: The Alcohol Consensus

There may not be a consensus on what the consensus is, but there at least seems to be a consensus that the consensus includes the following principles.

Drug and alcohol testing is a balancing act. Forcing an employee to give you a urine or saliva sample, or even a breath sample using a breathalyser, can be a serious violation of personal privacy. On the other hand, showing up drunk to a dangerous workplace – heavy machinery, toxic chemicals, risks of electrocution – can put both the employee and his or her colleagues at risk. As a result, the question in each case is whether the safety interest outweighs the privacy interest.

For employees in safety-sensitive jobs, an employer may require alcohol testing if there is reasonable cause to suspect the employee is impaired, or if a safety incident, accident or near miss has occurred and the employer needs to learn whether alcohol was a contributing factor. In these situations, the safety concern outweighs the privacy concern.

Random testing, on the other hand, is generally not allowed. However, it might be allowed where there is a history of alcohol problems in the workplace, and means other than random testing have not been successful to address them.

What Do We Mean by a History of Alcohol Problems?

This is where the consensus (or, at least, the consensus on what the consensus is) breaks down.

The dissenting judges in Irving say that random alcohol testing is permitted in a dangerous workplace if there is evidence of alcohol problems in the workplace. In Irving, there had been about 8 alcohol-related incidents in a 15-year period, which clearly constituted evidence of a problem. The arbitration board, however, refused to permit random testing because the employer had failed to provide evidence of a significant or serious problem. According to the dissent, the board imposed a higher standard on the employer than the law demanded.

The first time I read the decision, I agreed with the dissent. None of the case law talks about needing a “significant” or “serious” problem before random testing is allowed. In a highly dangerous workplace with some kind of alcohol problem, it doesn’t make sense that an employer would have to wait until a real injury happens before it can take action.

But on a reread, I have come to appreciate the approach of the majority. They return to the principle that underlies all of the various consensuses (consensi?): a balancing between safety and privacy. They are not actually saying that random alcohol testing can never be imposed in the absence of a “significant” or “serious” alcohol problem. What the majority are saying is that in the particular circumstances of the Irving case, the evidence about safety concerns just wasn’t compelling enough to override employee privacy rights.

What the Supreme Court of Canada is saying is that in every case, the safety benefits of testing must be balanced against the effects on employee privacy. And that’s hard to argue with.

Disclaimer: This blog post is intended to provide readers an update on the law along with the author’s personal reflections. Nothing in this post or in the comments should be taken as legal advice or as creating a lawyer-client relationship. For more information or to inquire about obtaining legal advice, please see the Contact and Links section of this site.   

Legal Gateways

**Please note this blog is no longer being updated. I hope you will visit my new site at http://www.briangottheil.com**

 

My name is Brian Gottheil, and I am a labour and employment lawyer in Toronto, Canada.

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I’m also a lot more than that: I am the author of Gateways, a fantasy novel that will be self-published within the next year, and the president of Toronto Lindy Hop, a non-profit organization dedicated to promoting swing dancing in Toronto and enriching the dance experience.

I intend for Legal Gateways to be my professional blog, broadly defined to cover all three of my professional and semi-professional activities: law, writing and dance. I hope to attract readers who are interested in each of these fields, and with some luck, to get the dancers interested in law and vice versa.

The title of the blog reflects the fact that the legal side is going to be the primary focus. To tell you a bit more about my qualifications: I have been practicing exclusively in the area of labour and employment law since 2010 with the leading global law firm of Norton Rose Fulbright, representing both unionized and non-union employers with respect to virtually any legal issue that arises in the workplace. I have a keen interest in mediation and dispute resolution, and in addition to successfully settling numerous cases on behalf of my clients, I have had the opportunity to act as a pro bono mediator for a dispute between a charitable foundation and its outgoing executive director. I’ve also been involved in major litigation concerning emerging human rights and constitutional issues.

I want to go into greater depth with some of these issues than other law blogs do. The format will start with a bottom-line summary for those readers who want to pick up the headlines on new legal developments that may concern them or their businesses. But I am also concerned with legal literacy — with people’s understanding of the law and the legal system — and I want the blog to be educational as well as merely informative. While labour and employment law will be the focus, I also intend to pick out and analyse other legal issues that are making the news. For example, in other forums in the past, I have written on the Superior Court decision that upheld the eviction of the Occupy Toronto protesters, and on the Ontario Court of Appeal decision in the Rob Ford conflict of interest case.

I’ll be briefer, for the moment, about writing and dance. As writing goes, suffice it to say that the title Legal Gateways doesn’t refer only to my intention to educate about law and the legal system. It’s also a play on Gateways, the title of my forthcoming novel. The manuscript of the novel is complete and is now in the hands of a very capable professional editor. I will keep you up to date on its progress. For dance, to get a better sense of the not-for-profit organization of which I am the president, check out Toronto Lindy Hop’s website and Facebook page.

Thanks for reading, and I look forward to exploring these gateways with all of you.