Proposed Standard for Psychological Health and Safety in the Canadian Workplace
A new and surprisingly complex Canadian Standards Association (CSA) Standard may be arriving at and impacting Canadian workplaces soon. A proposed Standard has been developed, setting out optimistic goals and processes for achieving "psychological health and safety" in the workplace. Policies, procedures, hazard identification, incident investigation and monitoring activities may be required, in addition to all of the existing steps being taken to develop and manage occupational health and safety systems.
The CSA, which develops standards for business, industry, government and consumers, released the draft Standard on November 1, 2011 for a period of public consultation which ended on January 6, 2012. The final Standard, which is expected to be published in early 2012, is intended to provide organizations with the necessary tools and guidance to achieve "measureable improvements in psychological health and safety" for Canadian employees and prescribes specific steps for employers to take to develop and maintain psychologically healthy and safe workplaces. As currently drafted, the steps prescribed and obligations imposed by the Standard are significantly broader than those currently imposed on employers under occupational health and safety and human rights legislation and the breadth of the Standard raises concerns about its viability for Canadian employers.
For an introduction to and analysis of the Standard, please see Heenan Blaikie's OHS & Workers' Compensation Update "National Standard for Pscyhological Harm and Safety in the Candian Workplace Released".
Canadian Association of Pension Supervisory Authorities Releases Pension Plan Governance Guidelines
On November 15, 2011, the Canadian Association of Pension Supervisory Authorities (CAPSA) released two Guidelines on pension plan governance. These Guidelines outline the expectations relating to the investment of pension plan assets, as well as best practices when developing and adopting a funding policy for pension plans that provide defined benefits.
Guideline No. 6: Pension Plan Investment Practices Guideline provides a variety of prudent investment principles that plan administrators should bear in mind when managing investments. In this Guideline, CAPSA encourages plan administrators to assess their current investment practices to ensure prudent practices are in place. The focus of the Guideline is to ensure that plan administrators have a robust, process-oriented decision-making framework in place within which investment management activities are conducted.
Continue Reading...Every Person Counts When Reporting Accidents in Ontario
A skier suffers a broken arm. A student is knocked unconscious during class. A patient dies in hospital. While sad and unfortunate, such incidents did not generally attract an obligation to report to health and safety authorities. That is no longer the case following the decision of the Ontario Divisional Court in Blue Mountain Resorts (pdf).
In this case, a patron drowned in an unsupervised indoor swimming pool at the Blue Mountain resort. No Blue Mountain workers were in the pool area at the time and the drowning was not reported to the Ministry of Labour ("MOL") because it did not involve a worker. During a field visit, a MOL inspector learned of the drowning and issued an order requiring Blue Mountain to report the fatality based on subsection 51(1) of the Occupational Health and Safety Act ("OHSA"), which requires a constructor or employer to make a report to the MOL "[w]here a person is killed or critically injured from any cause at a workplace". The Ontario Labour Relations Board ("OLRB") upheld the order on appeal and Blue Mountain filed an application for judicial review.
Continue Reading...Supreme Court Narrows Constitutionally Protected Collective Bargaining Rights
On April 29, 2011, the Supreme Court of Canada released its decision in Ontario (Attorney General) v. Fraser holding that the Agricultural Employees Protection Act, 2002 ("AEPA"), which created a new and distinct industrial relations regime for agricultural workers, was constitutional. Fraser makes it clear that the guarantee of freedom of association in section 2(d) of the Canadian Charter of Rights and Freedoms (the "Charter") does not require the enactment of a particular model of industrial relations or a particular model of collective bargaining.
The majority decision determined that the Court of Appeal had significantly overstated the scope of collective bargaining rights that are protected by section 2(d) of the Charter. Based on a much narrower approach to collective bargaining under the Charter, the majority concluded that the AEPA satisfies the applicable constitutional requirements because it provides agricultural workers in Ontario with a meaningful process by which they can pursue workplace goals. Justices Rothstein and Charron concurred in the result reached by the majority, but for quite different reasons. They would have reversed the Supreme Court's earlier decision in BC Health Services on the grounds that the decision, which established that section 2(d) of the Charter includes limited protection for collective bargaining, was wrongly decided and that the majority decision maintained an unworkable distinction between the process of collective bargaining and collective bargaining outcomes.
Fraser must be viewed as a significant retrenchment from the broad reasoning in BC Health Services. The Supreme Court emphasized that section 2(d) of the Charter requires that employees' associations be able to participate in a meaningful workplace process with an employer, which includes the right to make representations to the employer and to have those representations considered by the employer in good faith. In the Supreme Court's words, only legislation that "makes good faith resolution of workplace issues between employees and their employer effectively impossible" will violate section 2(d). Also notable is the Supreme Court's rejection of the Ontario Court of Appeal's determination that BC Health Services requires lawmakers to enact a particular labour relations model or specific statutory requirements in order to comply with section 2(d) of the Charter.
For more information on the decision, please see Heenan Blaikie's Labour and Employment in the News, "Ontario v. Fraser - The Supreme Court of Canada Significantly Narrows the Scope of the Constitutional Protection of Collective Bargaining" (PDF)
New Obligations on Employers to Meet Needs of People with Disabilities
Starting January 1, 2012, private sector employers in Ontario must comply with the Accessibility Standards for Customer Service, the first of what will ultimately be five standards under the Accessibility for Ontarians with Disabilities Act. This first standard will require businesses that provide goods or services to:
- Develop policies, practices and procedures about how the business will provide goods and services to the disabled;
- Provide "accessibility" training to staff that deals with the public as well as to internal policy makers who participate in developing the business's policies regarding access to the goods and services by the public;
- Allow disabled persons who are accompanied by service animals (e.g., a guide dog) or a support person to have access to the premises of the business; and
- Provide a public notice of any temporary disruptions that affect access to goods or services by disabled persons.
Private sector businesses with twenty or more employees face additional requirements, on reporting, avenues for feedback from disabled persons, and proof of compliance. For more information, please see Heenan Blaikie's Labour and Employment in the News, "Ontario Announces New Obligations for Meeting the Needs of People with Disabilities" (pdf).
Saskatchewan Plans to Overhaul Human Rights Systems
The Saskatchewan government has introduced Bill 160, An Act to Amend The Saskatchewan Human Rights Code (pdf), to reduce inefficiency, delay, and complexity in the human rights system. If passed, the Bill would, among other things, phase out the Saskatchewan Human Rights Tribunal, which currently hears human rights complaints referred to it by the Saskatchewan Human Rights Commission, and require complaints to be heard in court.
Under the new system, the Commission will have the power to require mediation of all complaints. If, in the Commission's opinion, the complainant refuses a reasonable settlement offer, the Bill would give the Commission the power to dismiss the complaint. If the complaint is not resolved through mediation, the Commission may apply to the Court of the Queen's Bench for a hearing of the complaint. The Tribunal would only hear complaints filed prior to the Bill coming into force.
The Bill must still pass second and third reading and will be considered again when the provincial legislature reconvenes on March 7, 2011.
Ontario Government Freezes Minimum Wage
The Ontario government has announced that it will freeze the minimum wage rate at $10.25 per hour in 2011 after seven consecutive years of increases. Despite the minimum wage freeze, Ontario still has the highest provincial minimum wage rate in Canada.
Independent Contractors Count in Determining if Joint Health and Safety Committee Required
The Ontario Court of Appeal has ruled that independent contractors must be counted when determining if an employer has met the threshold number of employees required to establish a Joint Health and Safety Committee ("JHSC") under the Ontario Occupational Health and Safety Act ("OHSA").
In Ontario (Labour) v. United Independent Operators Limited (pdf), United Independent Operators Limited ("United") was charged with failing to ensure that a JHSC was established and maintained at its workplace. United operated as a load broker and retained independent truck drivers to perform work. It argued that it was not required to establish a JHSC because its independent contractors were not "regularly employed" and section 9 of the OHSA only required an employer to establish a JHSC where 20 or more employees are "regularly employed". The Court of Appeal rejected this argument and found that independent contractors are "regularly employed". The Court noted that making a distinction between traditional and non-traditional employment relationships would deprive workers in non-traditional relationships of the protections afforded by a JHSC and would be contrary to the purposes of the OHSA.
Report Recommends Changes to Ontario's Occupational Health and Safety Regime
The Expert Advisory Panel, which was appointed to review Ontario's occupational health and safety system, has released its report containing 46 recommendations. Among other things, the report calls for:
- The creation of a new Prevention Organization within the Ministry of Labour;
- Amendments to the Occupational Health and Safety Act to allow co-chairs of Joint Health and Safety Committees to submit written safety recommendations to employers;
- Mandatory training for health and safety representatives;
- Mandatory health and safety awareness training for all workers and supervisors;
- Mandatory entry-level training for construction workers;
- Mandatory fall protection training for workers working at heights, and
- A review of enforcement tools available to inspectors, including establishing administrative monetary penalties.
Nova Scotia to Merge Six Labour and Employment Boards
Bill 100, the Labour Board Act, which will merge Nova Scotia's six labour and employment boards, received Royal Assent on December 10, 2010. The Labour Relations Board, the Civil Service Employee Relations Board, the Highway Workers' Employee Relations Board and the Correctional Facilities Employee Relations Board will merge in early 2011, followed by the Occupational Health and Safety Appeal Panel and the Labour Standards Tribunal later in the year.