Friday, 20 December 2013

OLRB affirms "Workplace" to be defined broadly

In a recent decision, the Ontario Labour Relations Board (OLRB) has affirmed the proposition that the definition of “workplace” under the Occupational Health and Safety Act (OHSA) should be read broadly.

In Hydro One Networks Inc. v. Power Workers Union[1] the OLRB was left to grapple with a dispute regarding the jurisdiction of a Ministry of Labour (MOL) inspector to issue requirements and orders under the OHSA. In that case, certain Hydro One trucks were en route to work locations. The trucks were required to enter a Ministry of Transportation (MTO) inspection area. The inspection station was staffed by an MTO inspector, but an MOL inspector also happened to be present at the inspection site.

As a result of her dealings with the Hydro One workers and with the vehicles, the MOL inspector issued a “requirement” under s. 54(1)(c) of the OHSA requiring that Hydro One provide certain documentation relating to the vehicles. On a separate subsequent date the MOL inspector issued an “order” under s. 57(1) of the OHSA requiring that safety issues regarding the safe operation of the step system and aerial lift bucket of the trucks be addressed.
Hydro One fought the inspector’s requirements and order, arguing that because the inspector issued these directives before the trucks were at the destined work site, the inspector didn’t have jurisdiction to issue either the requirements or the order. In other words, Hydro One asserted that the inspector only had jurisdiction at the workplace where the truck and equipment were meant to be used, and didn’t have jurisdiction where the trucks were en route to the workplace. While conceding that the trucks could be defined as a “workplace” under the OHSA, Hydro One argued that the aerial lift bucket could not be considered a “workplace” when it was not being used and when the truck was being used merely for the transport of employees.

The union and the MOL disputed the employer’s proposition that the trucks had to be at the worksite in order for the MOL Inspector to have jurisdiction, asserting that there is no statutory requirement that such requirements and orders must be issued at the workplace.[2] However, given that the very breadth of the definition of “workplace” under the OHSA was at issue in this case, the Board did not find it necessary to deal with this element of the case. Rather, the Board set to the task of dealing with the concept of “workplace” under the OHSA.

“Workplace” is a defined term under s. 1(1) of the OHSA: 

“workplace” means any land, premises, location or thing at, upon, in or near which a worker works.   

The parties agreed that “workplace” is a fluid concept under the OHSA, one that may change to accommodate a variety of workplaces. A workplace may be mobile and both parties agreed that the trucks are a “workplace” under the definition in the OHSA. The employer, however, sought to advance a nuanced definition of “workplace”, contending that the vehicles are workplaces when they are being used to transport workers to and from the worksite, but only insofar as the vehicles are being used for that purpose.  The employer argued that the truck, but not the aerial bucket and its apparatus, is the “workplace.” The employer asserted that the aerial bucket and its apparatus could only be a “workplace” when in use.  And since they weren’t in use for work issues when the trucks were at the MTO inspection station, they were not “workplaces” under the jurisdiction of the MOL inspector at the time the requirements and order were issued.[3] The vehicles were workplaces but not their equipment – and therefore, the MOL inspector didn’t have jurisdiction.

The Board recognized the absurdity the employer’s position of separating the workplace into two (i.e. separating the trucks and their equipment) would lead to. It would require an MOL inspector who was aware of safety concerns with equipment on employer vehicles to essentially abstain from issuing any requirements or orders relating to this equipment until it was at the “workplace” where it was intended to be used. This is to say that the inspector would basically have to follow the vehicles with the faulty equipment to their destination before the inspector could make any requirements or orders concerning the flawed equipment. Putting a stop to this absurdity, the Board ruled that the vehicles and their equipment are one workplace:

There can be no issue of the appropriate nexus to worker safety in the instant case, the equipment in question is part of the vehicle that the employee is driving, it is the same equipment that the same employee is en route to using at the intended location[4]. 

Having regard to the foregoing and whether or not an order (request) must be issued at the workplace in the fashion advocated by the employer (a proposition I neither endorse nor reject), I am satisfied that the instant order and requests were issued at the workplace[5].

The OHSA is a public welfare statute, which the Ontario Court of Appeal has affirmed must be given a broad interpretation[6]. In refusing to delineate between a workplace vehicle being used by workers and the equipment attached to that vehicle, the Board complied with the ONCA’s judgment and rightly protected the safety of workers and upheld the importance of public welfare. The Board rejected the crux of the employer’s argument with this artful dismissal:

It is difficult to see how the spectre of inspectors, whether by stealth or in ‘hot pursuit’, following derelict equipment along highways and thoroughfares and unable to intervene until the inspector, the equipment and the employee in question are all at the 'proper' workplace is consistent with the rational administration and effective enforcement of the legislated workplace safety scheme.[7]

As a result, the employer’s appeal of the jurisdiction of the MOL inspector to issue the requirements and order in relation to the vehicles and equipment was dismissed.

[1] 2013 CanLII 67867 (ON LRB) [Power Workers Union].
[2] Ibid at para 9.
[3] Ibid at paras 28-31.
[4] Ibid at para 41.
[5] Ibid at para 42.
[6] See R v Timminco Ltd (2001), 54 OR (3d) 21 (CA) at para 27.
[7] Power Workers Union, Supra 1 at para 40.

Thursday, 19 December 2013

Who Protects the Protectors of the Public Interest?

Remember back in 2006 when Stephen Harper’s Conservatives rode to power on promises of transparency and accountability? Given all that’s happened since 2006, it’s hard to remember the days when the Conservatives represented the shining promise a future filled with integrity. Even for those of us who remember that past, it seems somehow more distant than 2006 – a piece plucked from the annals of history rather than the headlines of yesterday.

When the Conservatives took power, one of their early achievements was ushering in the Public Servants Disclosure Protection Act (PSDPA) in 2007[1]. The purpose of the Act was laudable, being as it were an Act designed to offer protections to whistleblowers. Through these protections, the Act was supposed to encourage (or at least not discourage) whistleblowers. But does it work? Are whistleblowers encouraged, or is it all so much lip service? Unfortunately, whether by design or by accident, the fact is that the Act falls well short of its goals.

The preamble to the Act states there is a need to balance two principles: the employees’ right to freedom of expression and the employees’ duty of loyalty to his or her employer. While balance is a pivotal aspect of employment law, the question occasioned by the balancing of these two principles is clear: where’s the public interest? Where does that factor? As public servants, the overriding principle must be the interest of the public, not of employers. To have otherwise is to create a recipe for trouble, to hand an employer carte blanche to engage in all manner of behaviour. To have otherwise is to open the door to abuses of power and to ignore the fact that a public servant’s main loyalty should, nay must, be to the public. Under the PSDPA, so long as it can be shown that the employee’s duty to the employer should be paramount, no whistle may rightly be blown.

Under the PSDPA we saw the creation of the Office of the Public Sector Integrity Commissioner (OPSIC). The role of OPSIC is to protect those who would blow the whistle on corruption. The whole idea of greater accountability in government hit a snag from the get-go, when OPSIC’s first Commissioner, Christiane Ouimet, failed to find any cases to investigate. In a cruelly ironic twist, the sole case of whistleblowing found during Ms. Ouimet’s term as Commissioner was an auditor general’s investigation into abuses in OPSIC, abuses which happened on Ms. Ouimet’s watch.  Ms. Ouimet resigned and a subsequent review of OPSIC files found numerous whistleblowing cases that had been rejected by OPSIC when they should have been accepted.
The situation with OPSIC is not uncommon, and it has wrought devastating results on workers. Recent years are replete with examples of workers who blew the whistle on an employer in the interests of serving the greater good of the public interest. Just as common are examples of these same workers being penalized for their loyalty to the public good.

Jack Dalgliesh was a Manitoba bureaucrat and accountant. He had over 20 years of experience as an accountant and was eager and willing to do his best for the public interest. When he uncovered an investment fund that was bound to fail, threatening investors with heavy losses, he spoke out. The only problem: the fund was being pushed by the provincial government at the time. Mr. Dalgilesh’s warnings were not appreciated. Rather than being thanked for his loyalty to the public interest he was punished for his lack of loyalty to the government. He was relegated to a “non-job” where he had few duties and almost no communication with the public. In essence he was silenced.

In relegating Mr. Dalgelsih to “non-job”, the wasted staggering amounts of taxpayer money. As Mr. Dalgelish himself has stated in a message to the Canadian Taxpayers Federation: “I may have worked at most 10 days a year for roughly $93,000 or $94,000 a year.” Not only was Mr. Dalgelish punished for his whistleblowing, the public was also quite literally made to pay[2].

More recently Edgar Schmidt, a lawyer in the Legislative Services Branch of the federal Department of Justice, has become embroiled in the political minefield that is whistleblowing. One year ago, Schmidt boldly brought a claim against the Ministry of the Attorney General alleging, amongst other things, that his own ministry had failed in its lawful duty to properly review the constitutional compliance of draft legislation. One day after serving this claim, Schmidt’s superiors contacted him to advise that his action had got him a suspension without pay.

Mr. Schmidt no longer has his job at the Legislative Services Branch. Where he had been earning between $120,000 and $160,000 per year, he now lives on a reduced pension, waiting for the case to go to trial sometime within the next 6 months[3].

David Hutton, executive director of the Federal Accountability and Initiative for Reform (FAIR), a group which strives to promote integrity and accountability of governmental authorities by helping to protect from reprisals any employee who blows the whistle on unethical behaviour, has commented on Mr. Schmidt’s case:

This case really shows the lack of support for government lawyers who are faced with very serious ethical problems … The government should have an office of professional responsibility where [government lawyers] can go and get ethical advice and where they or members of the public or anybody else can make a complaint about the conduct of a govern­ment lawyer.

It might be surprising that the accounts noted above are happening, and that they continue to happen. What is thankfully unsurprising, is that there are still brave men and women willing to stand up and speak out for what’s right, even against a system that is inherently flawed and that offers little hope of fulfilling its duty to protect workers. The stain of corruption has never been easily lifted and accountability has never been anything but hard won.

Workers who blow the whistle continue to do the public a great service and, one must assume, are committed to continue on in the public interest, come what may. And this leads to a positive outlook in the longterm. The more workers willing to stand up, the less ability employer’s will have to isolate and punish them for doing so. At some point it’s reasonable to believe the workers willing to blow the whistle will reach critical mass, at which point the theory of diminishing returns will come into play and it will become impossible for employers to mete out reprisals without suffering reprisals in turn. The workers who blow the whistle are merely upholding the law under the PSDPA. It’s time for the government to step up and do more to protect the workers who are protecting the Canadian public.