Mr Adrian Miedema

Adrian Miedema

Updates

Litigation

Court of appeal decides WSIB fraud requires wilful act
Canada | 04 December 2018

The Workplace Safety and Insurance Board (WSIB) recently prosecuted three workers who were receiving WSIB benefits for failing to report a material change with respect to their benefit entitlement. The WSIB argued that it was not required to prove that the workers had intended to defraud the board. However, the Ontario Court of Appeal disagreed and held that to obtain a conviction for failing to report a material change, prosecutors must prove something akin to tax evasion or fraud.

Administrative driving suspension not just cause to dismiss assistant fire chief
Canada | 02 October 2018

An assistant fire chief recently won a wrongful dismissal suit after he was fired for receiving a 90-day administrative driving prohibition for impaired driving while off duty. The court held that the assistant fire chief's off-duty conduct was not incompatible with the faithful discharge of his duties or otherwise prejudicial to the interests or reputation of the fire department and awarded him five months' salary as provided for in his employment contract.

Court finds lawyer's communications and conduct during harassment investigation were not privileged
Canada | 18 September 2018

An Ontario court has permitted an employee to refer in her statement of claim for constructive dismissal and bad faith to the communications and conduct of the company's lawyer in respect of a sexual harassment investigation. The court held that the discussions and conduct of the lawyer with respect to the investigation did not relate to a litigious dispute, but rather to the company's statutory obligation to investigate claims of sexual harassment under the Occupational Health and Safety Act.

Owner of electrical contracting firm held personally liable for its C$430,000 regulatory fine
Canada | 11 September 2018

In what appears to be a novel regulatory decision, the Ontario Court of Justice recently held the owner of an electrical contracting firm personally liable for its regulatory fines after he transferred assets out of the company following a fatal incident. In a rather scathing decision, the judge held that the owner had put his own assets at risk by blurring the lines between himself and the company.

Class action claiming gender harassment dismissed as only arbitrator had jurisdiction
Canada | 04 September 2018

A group of female police officers has lost its bid to bring a class action in the courts for gender discrimination and harassment. The officers had claimed systemic gender-based discrimination and harassment by male members of the police force. However, the court held that it had no jurisdiction over the class action because the claims should have been brought at arbitration.

Safety manager wins wrongful dismissal suit having not failed to complete assigned tasks
Canada | 28 August 2018

An Alberta safety manager recently won C$28,000 in damages after he was fired by his employer. The employer argued that the employee had quit or, in the alternative, that there was just cause for dismissal. The court held that the employee, who had three-and-a-half years of service and an annual salary of C$82,000, was entitled to four months' pay in lieu of notice.

Court declines to quash bid ban imposed by city on paving company
Canada | 07 August 2018

A recent Ontario court decision illustrates the serious business implications that Occupational Health and Safety Act compliance issues or disputes can have on a company. The court held that although the city of Sudbury had initially breached its obligation of procedural fairness when imposing a bid ban on paving company Interpaving, it had "cured" that breach through its reconsideration and process, which gave Interpaving full opportunity to be heard.

Occupational health and safety charges in fatality case dismissed for delay
Canada | 31 July 2018

An Ontario appeal judge has upheld the dismissal of Occupational Health and Safety Act charges against employees due to delay. The charges followed the death of a mining employee from cyanide intoxication by way of skin absorption. The total delay – from the laying of the charges to the last day scheduled for trial – was 21 months, which exceeded the 18-month presumptive delay ceiling set out by the Supreme Court of Canada in Jordan.

Distracted by mobile phones: forklift operators guilty of occupational health and safety offence
Canada | 17 July 2018

Two forklift operators were recently found guilty under the Occupational Health and Safety Act for using mobile phones while sitting on their forklifts. The court held that "operating or using" a forklift includes sitting on a forklift even when it is stopped and turned off, as other workers and forklifts may be nearby and put at risk by the operator's distraction and inattention to their surroundings while using a mobile phone. Further, the employer had clearly prohibited the use of mobile phones in the warehouse.

Court fines out-of-business company that did not defend health and safety charges C$1.3 million
Canada | 24 April 2018

An Ontario court recently fined a defunct mining company that went out of business in 2016 C$1.3 million under the Ontario Occupational Health and Safety Act after it found the company guilty on six charges following the deaths of two workers. This is one of the largest Occupational Health and Safety Act fines in Ontario history. However, the company did not defend the Ministry of Labour prosecution.

Possession of small amount of marijuana was just cause to fire employee
Canada | 13 March 2018

The Newfoundland and Labrador Court of Appeal has upheld the firing of a unionised millwright who was caught with a small amount of marijuana in his pocket before boarding a helicopter that would transport him to an offshore platform. The labour arbitrator found that the employee likely knew that he possessed the marijuana, but had forgotten about it and not checked his pockets carefully. Although the Newfoundland Supreme Court set the arbitrator's decision aside, the appeals court restored it.

Jail term upheld on appeal in criminal negligence case against Metron project manager
Canada | 27 February 2018

The Ontario Court of Appeal recently upheld the criminal negligence conviction and jail term imposed on a project manager for Metron Construction. The charges arose from an incident in which four workers fell to their death and a fifth sustained permanent injuries after a swing stage collapsed. This case has sent a message to employers and supervisors that criminal negligence charges – in addition to Occupational Health and Safety Act charges – are a real possibility after serious workplace accidents.

Appeal court upholds C$5.3 million combined fine in Sunrise Propane case
Canada | 13 February 2018

An Ontario court has upheld a combined fine of more than C$5.3 million, plus a 25% victim fine surcharge, against Sunshine Propane Energy Group, a related company and two corporate directors following explosions at a propane facility in 2008, which resulted in the death of one worker. The court held that the explosions were a foreseeable event given that an untrained employee had been left in charge and that his actions after the explosions showed his lack of training.

Appeal court holds that fact of accident alone is not enough to convict
Canada | 06 February 2018

The Newfoundland and Labrador Court of Appeal recently held that a trial judge was wrong to find a city guilty of Occupational Health and Safety Act charges solely because an accident had occurred in which a worker died. It held that the trial court should have gone further and analysed each charge separately. The decision is a welcome reminder that prosecutors cannot simply rely on the fact that an accident took place to obtain a conviction.

Court of Appeal holds general duty clause can impose higher obligations than regulatory requirements
Canada | 30 January 2018

The Ontario Court of Appeal recently held that the Ministry of Labour can prosecute employers under the general duty clause of the Occupational Health and Safety Act where the charges impose greater obligations than those set out in the regulations under that act. Ministry of Labour inspectors will likely consider using this decision to issue compliance orders or charges under the general duty clause even where regulations deal with the specific safety issue at hand, but do not apply in the particular case.

When is a release effective to bar a safety-related complaint?
Canada | 09 January 2018

The Saskatchewan Court of Appeal recently ruled that a release signed by a terminated employee barred her complaint against her employer under occupational health and safety (OHS) legislation. The court stated that after the occurrence of a so-called 'triggering event', which provides a worker with the right to file a complaint under the legislation, that right becomes personal to the worker. Where a worker has given a release in respect of a personal right, the validity of the release must be reviewed.

Court dismisses health and safety charge given due diligence
Canada | 12 December 2017

An Ontario court recently dismissed an Occupational Health and Safety Act charge in a fatality case, finding that the employer had established due diligence. The court decided that the worker had deviated from the standard practice that he and other workers had followed on previous occasions. While no training courses were available for the task in question, the employer was entitled to rely on the experience of the worker.

Appeal court upholds C$270,000 fine when Ministry of Labour and company agreed on C$180,000
Canada | 26 September 2017

In a recent Ontario appeal decision, the court upheld a C$270,000 fine, despite the Ministry of Labour prosecutor and defence counsel agreeing that a C$180,000 fine would be appropriate. The case illustrates that, particularly in cases of serious injury to a worker which offends the court, there is always a risk that the court will impose a fine that is greater than the amount that the Ministry of Labour prosecutor wanted.

Citing unfairness: court throws out criminal negligence charge against boom truck operator
Canada | 15 August 2017

The Ontario Superior Court of Justice recently considered a criminal negligence charge against a boom truck operator who pleaded guilty to an Occupational Health and Safety Act charge in a case involving a workplace fatality. The police's act of laying criminal charges after the operator had pleaded guilty constituted a breach of the sense of fair play, an act which offends the community. The court therefore stayed the criminal negligence charge, citing a breach of the Canadian Charter of Rights and Freedoms.