1 Health & Safety Legislative UpdateCUPE MB Health & Safety Conference 2015

2 Health & Safety Legislative UpdateCriminal Conviction for Bill C-45 Violation (Westray Bill) Upper Big Branch Mining Disaster New PTSD Legislation in Manitoba Ontario looks to follow Manitoba’s Lead…almost! SAFE Work Student Program Is Your Workplace Prepared for Terrorism? The Federal Right to Refuse

3 Bill C-45 Conviction

4 Bill C-45 Conviction BackgroundIn a historic case, a construction company boss has been sentenced to three-and-a-half years in jail for an incident in which four workers died and another was critically injured after falling 13 storeys from a scaffold outside a Toronto apartment building on Christmas Eve

5 Bill C-45 Conviction Why is this conviction so historic?The guilty party, Vadim Kazenelson, aged 40, was found guilty in June 2015 of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm Health and Safety advocates call this conviction historic and sends a strong message Why is this conviction so historic?

6 Bill C-45 Conviction The jail sentence is the first of its kind since the federal government passed Bill C-45 in March The law added a section to the Criminal Code that imposed criminal liability on organizations and individuals that don’t take reasonable steps to prevent their workers from being injured or killed on the job.

7 Bill C-45 Conviction It took eleven years of workers dying on the job before there was finally a conviction for negligence In reality, it took twenty-three (23) years since the Westray Mining Disaster The legislation was known as the “Westray Bill,” named after the May 1992 coal mining disaster in Plymouth, N.S., where 26 workers died in a methane gas explosion

8 Bill C-45 Conviction As a result of the disaster, there was enough public outcry to invoke a public inquiry as to why it happened The public inquiry concluded five years later that the mine’s ventilation system was “woefully inadequate” and that the mine’s management had flouted safety regulations. The report also blamed the Nova Scotia government for its attitude of “apathy and complacence” when it came to enforcing the rules.

9 Bill C-45 Conviction In the Westray case, two mining bosses and the company were initially charged with criminal negligence causing death and manslaughter, but those charges were later dropped when the Crown concluded there was no chance of conviction. There was no chance to convict because there was no legislation that could bring a conviction Thus, the genesis of the Westray Bill

10 Bill C-45 Conviction However, until the Kazenelson conviction, workers advocates have been frustrated by the lack of “teeth” within the legislation Since Bill C-45 passed almost 12 years ago, there have been eight cases with charges under the new criminal code provisions, according to Canadian Centre for Occupational Health and Safety. Of those, only Kazenelson has faced jail time for the death of a worker on his watch.

11 Bill C-45 Conviction What constitutes negligence in this case?The men who died when their swing bridge broke in half at the Kipling Ave. apartment building on Christmas Eve 2009 were immigrants from Ukraine, Uzbekistan and Latvia. Alesandre Bondarevs, 25, Aleksey Blumberg, 33, Vladimir Korostin, 40, and site supervisor Fayzullo Fazilov, 31, were killed in the fall. None was attached to a safety line.

12 Bill C-45 Conviction Was Kazenelson’s conviction the only penalty levied? No Metron Construction was ordered to pay a $750,000 fine after pleading guilty to criminal negligence causing death in 2012. It was the highest fine in Canadian history for criminal corporate liability.

13 Bill C-45 Conviction Furthermore:The company’s owner, Joel Swartz, was also ordered to pay $112,500 after pleading guilty to four violations of the Occupational Health and Safety Act. The company that manufactured the swing stage, Ottawa-based Swing N Scaff Inc., was fined $350,000 and Patrick Deschamps, one of the company’s directors, was fined $50,000.

14 Bill C-45 Conviction The Judge’s Reasoning behind the sentencingIn passing his sentence, Justice Ian MacDonnell noted that Kazenelson was not part of the original decision to have six workers high above ground with only two lifelines. Fazilov made that call earlier in the day, the judge said.

15 Bill C-45 Conviction The men who were killed all knew they were running risks, he added, but their boss still should have corrected things. “Mr. Kazenelson did nothing to rectify the situation,” MacDonnell said. The judge noted that Kazenelson, a Russian-born veteran of the Israeli military, had no prison record and is “hardworking, conscientious and safety-minded.” He added that the father of three has shown real remorse and is unlikely to commit a crime again.

16 Bill C-45 Conviction Kazenelson also had a reputation of being a boss who would fire workers for safety infractions, MacDonnell said. Still, a stiff sentence was needed to denounce the crime and deter others from committing similar offences, MacDonnell said. Kazenelson has appealed his sentence and is out on bail; the Crown is not opposing the move pending his appeal of the sentence, which means Kazenelson could remain free for the foreseeable future. He has been out on bail since his arrest. Information courtesy of thestar.com

17 Upper Big Branch Mining DisasterHow does America Treat Similar Corporate Negligence? The 2010 Upper Big Branch disaster, twenty-nine (29) coal miners died during a single incident This was the greatest mining disaster in the U.S. since 1970

18 Upper Big Branch Mining DisasterFormer chief executive of Massey Energy Company, Donald Blankenship, was charged for multiple violations of safety rules and deceit of federal inspectors that ultimately led to the fatalities Indicted on four criminal counts by a federal grand jury, Blankenship faces a maximum of 31 tears’ of imprisonment

19 Upper Big Branch Mining DisasterExtent of Blankenship’s Alleged Negligence He is being personally held responsible for the hundreds of safety violations at the mine the 28 months leading up to the explosion This includes failing to ventilate coal dust and methane, which are highly explosive substances; and Not properly watering down equipment to prevent sparks that could lead to explosions

20 Upper Big Branch Mining DisasterBlankenship was also charged with deceit for devising a plan that workers had in place to warn underground miners when federal safety inspectors made surprise visits With the use of various code words, miners underground were given the sign to cover up violations that were being committed. Ultimately, these violations lead to an explosion that killed the miners

21 Upper Big Branch Mining DisasterThis lead to the 2011 federal investigation which concluded that the explosion was preventable The company was issued 369 citations for their wrong doing Blankenship is said to have looked away from hundreds of violations in order to produce more coal…to make more money Investments to improve safety were cut and twice regulators found the mine operator was calibrating methane monitors every three (3) months as opposed to the regulated 31 days

22 Upper Big Branch Mining DisasterTwo (2) subordinates of Blankenship, including a former superintendent of the Upper Big Branch mine have pleaded guilty in criminal cases In April 6, 2016, Blankenship was sentenced to one year in jail and was fined $250,000 He was acquitted of the felony charges of lying about the safety practices at Upper Big Branch Mines

23 Upper Big Branch Mining DisasterThe cost of the settlement for the corporate criminal liabilities was $208 million Blankenship was given a $27.2 million severance package upon his departure from Massey Energy Information courtesy of SafetySmart Today

24 New PTSD Legislation in ManitobaOn January 1, 2016, Bill 35, The Workers Compensation Amendment Act (Presumption re: Post-Traumatic Stress Disorder) came into effect in Manitoba Essentially, Bill 35 amends the province’s Workers Compensation Act (WCA) to recognize post-traumatic stress as a work-related occupational disease

25 New PTSD Legislation in ManitobaBill 35 states: “if a worker is exposed to a traumatic event or events of a type specified in the Diagnostic and Statistical Manual of Mental Disorders (aka DSM IV) as a trigger for post- traumatic stress disorder, and is diagnosed with post- traumatic stress disorder by a physician or psychologist, the post-traumatic disorder must be presumed to be an occupational disease the dominant cause which is the employment, unless the contrary is proven”

26 New PTSD Legislation in ManitobaPreviously, workers had the burden of proving to the Workers Compensation Board that the dominant cause of their PTSD was exposure to work trauma The new presumption that PTSD is an occupational disease, which will apply to all claims filed after January 1, 2016

27 New PTSD Legislation in ManitobaWhat is Unique about this legislation? The amendments are unique because they extend not only to emergency responders, but to all workers who are exposed to a traumatic event. These events can include:

28 New PTSD Legislation in ManitobaActual or threaten of death Serious Injury Sexual Violation

29 New PTSD Legislation in ManitobaPrevious bills in Alberta and Nova Scotia limited the scope to first responders: EMT’s Firefighters Police Officers Peace Officers Manitoba’s new legislation has no such limitations Information courtesy of Lancaster House Publishing

30 Ontario Looks to follow Manitoba’s lead…almost!On February 6th, 2016, Ontario was poised to introduce legislation that would see PTSD included as a "presumptive" occupational illness for first responders Currently, Ontario already recognizes a list of cancers as presumptive illnesses for firefighters. If a firefighter is diagnosed with a cancer on the list, it's automatically presumed to be an occupational illness.

31 Ontario Looks to follow Manitoba’s lead…almost!But police and paramedics aren't covered by presumptive legislation, and PTSD is not recognized as a presumptive illness for any worker. In Ontario, the main concern appears to be the cost any new legislation would impose on municipal governments The Executive Director of the Association of Municipalities of Ontario points out that for half of Ontario's 444 municipalities, a one-per-cent tax increase generates less than $50,000.

32 Ontario Looks to follow Manitoba’s lead…almost!But arbitrated settlements added up to $112 million more for police and $72 million more for fire departments across Ontario in alone. Opponents argue that the WSIB (Workplace Safety and Insurance Board) claims for PTSD or other mental illnesses can give rise to significantly longer periods of loss-of-earnings benefits As well, municipalities pay dollar-for-dollar the cost of a claim, plus an administrative fee to the WSIB. In 2014, the administration rate was per cent of benefit costs.

33 Ontario Looks to follow Manitoba’s lead…almost!Was there similar opposition in Manitoba? Yes there was William Gardner, chair of the Manitoba Employers Council argued that presumption will lead to more PTSD misdiagnoses because it would be used as a catch-all for mental health conditions "It's one thing to presume a diagnosis of PTSD is work-related. It's another thing to presume that a mental health disorder is PTSD."

34 Ontario Looks to follow Manitoba’s lead…almost!Advocates for the legislation argue: “Why is there a different criteria for mental stress? ... If a worker was to file a claim for shoulder tendinitis due to repetitive strain, the claim for tendinitis would be allowed if the evidence supported a causal relationship between the nature of the job duties and the diagnosis. Why, then, is it different than if you file a claim for mental stress due to exposure to workplace stressors? It should be the same test."

35 Ontario Looks to follow Manitoba’s lead…almost!As Cheri DiNovo, a Toronto MPP put it: "It's a matter of dignity. You can't fake PTSD any more than you can fake cancer.“ Information courtesy of the Ottawa Citizen

36 SAFE Work Student ProgramThe SAFE Work Student Program focuses on rights and responsibilities and principles of hazard recognition in the workplace The program focuses on the follow topics:

37 SAFE Work Student ProgramSAFE WORK – An Attitude Rights and Responsibilities for Safety and Health Hazard Recognition and Control Injury Prevention Employment Standards

38 SAFE Work Student ProgramThe program also contains: Worksite Safety Observation Student Safety Observation Form Preparation for a Job Interview Health and Safety Check List for Worksite Placements Student Orientation Check List Additional Resources About Safety and Health 10 Questions to Ask an Employer

39 SAFE Work Student ProgramWhat are the overall goals of the program? Raise young worker awareness about workplace hazards and ways of preventing occupational injuries and illnesses Raise young worker awareness about their rights on the job and the resources available to help them Encourage young workers to become active participants in creating safe and healthy work environments

40 SAFE Work Student ProgramThe SAFE Work Student Program focuses on rights and responsibilities and on principles of hazard recognition in the workplace. Through repetition and practice, students develop the confidence they need to ask the right questions and to speak up when they feel they need more instruction to complete a task safely. As well, they will develop skills to recognize, evaluate and control hazards.

41 SAFE Work Student ProgramYoung workers will ultimately transfer this employable safety skill to their jobs as they enter the workplace.

42 SAFE Work Student ProgramThe program will use the hazard recognition principles in the SAFE strategy: S - Spot the hazard (Recognize), A - Assess the risk (Evaluate), F - Find a safer way (Control), E - Everyday - to provide a framework for consistent and effective instruction in safety and health. Over time, the intent is that students will become personally aware of hazards and able to monitor their own safety and health in the community and in the workplace.

43 SAFE Work Student ProgramWhy is this SAFE Work Student Program so important? More than 50% of young workers’ work-related incidents happen during their first six months on the job. Males under 25 are more likely to be injured on the job than any other group of workers. Two young workers were killed on the job in 2001 (they were 16 and 19 years old). A 20-year-old was killed on a construction site early in 2003.

44 SAFE Work Student ProgramEvery hour at least one young worker was injured in a workplace incident. Almost 7,000 young workers filed a claim with the Workers Compensation Board in That’s 23 young workers injured every working day in Manitoba. Job safety may not be something you think about; however, injuries can affect you for the rest of your life. As a result, we will be thinking about potential worksites and that being safe on the job is an important aspect of maintaining and enjoying a long work career as well as a fulfilling life.

45 SAFE Work Student ProgramAre young workers at a greater risk to get injured and hence, the need for the SAFE Work Student Program? Young workers: Tend to think they are invincible (it won’t happen to me) and tend to take risks Are not always aware of the risks of their jobs or what they need to do to protect themselves

46 SAFE Work Student ProgramMay be eager to impress an employer, may not report unsafe conditions May not ask questions for fear of losing their job or appearing incapable Lack experience and are unfamiliar with workplace/machinery/equipment Generally insufficient training

47 SAFE Work Student ProgramDon’t understand/recognize the dangers Don’t understand their rights and responsibilities

48 SAFE Work Student ProgramWe have always schooled of children the basic skills that will enable them to succeed in whatever career they have chosen through the basics: Literacy Logic Practical skills

49 SAFE Work Student ProgramBut what we have not done until recently is school our children on how to work safe and to know your rights The SAFE Work Student Program is ground-breaking in this approach because it provides students with a mechanism to acquire these skills prior to entering the workforce The program is long overdue and will provide a safety cultural that can only reduce workplace injuries and fatalities

50 Is Your Workplace Prepared for Terrorism?

51 Is Your Workplace Prepared for Terrorism?The risk of terrorist attacks is something that every employer should consider and prepare for In most places, a terrorist attack is very remote… But this does not mean that the workplace is safe Disgruntled workers, while not “terrorists” in theory, can be capable of performing terrorist behaviours

52 Is Your Workplace Prepared for Terrorism?What is Terrorism? Terrorism is the use of force intended to influence or bring about a course of action that furthers a political or social objective Terrorism is designed to create panic, disrupt security and communication systems, destroy property Kill or injure innocent people

53 Is Your Workplace Prepared for Terrorism?What would terrorists target? Terrorist often target high-traffic areas such as airports and shopping malls Generally, these occur in large cities such as Paris, New York and Brussels But the recent San Bernadino attack demonstrates that city size is not the only factor

54 Is Your Workplace Prepared for Terrorism?Tactics Used by Terrorists Bombings Arson Hi-Jacking Kidnapping Chemical Warfare

55 Is Your Workplace Prepared for Terrorism?Which Employers would be at Risk? Government Organizations Utilities High Profile International Corporations Religious Based Institutions

56 Is Your Workplace Prepared for Terrorism?How to Protect Ourselves? Workers should have training in: Evacuation Procedures How to respond to bomb threats and other threats, including who to call What to do if you spot suspicious vehicles, packages or people

57 Is Your Workplace Prepared for Terrorism?Be aware of your surrounding at all times, particularly in high-target areas Two or more ways out of your building to increase chances to getting to safety Know the locations of emergency exits and stairways (Note: never use elevators in an emergency)

58 Is Your Workplace Prepared for Terrorism?Many workplaces have protocols for dealing with dangerous situations in their workplaces For examples, schools have Lockdown Protocols when there is a risk to the students and staff in a school Although terrorism is hardly a new threat to society, the frequency of occurrences is growing rapidly Therefore, terrorism, while the possibility may be remote in your community does not mean we she remain unaware of the problem Information courtesy of Compliance & Risk Management, Emergency Preparedness

59 The Federal Right to RefuseIn 2014, The Harper Government passed Bill C-4. Bill C-4 reads: “Danger means any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered”

60 The Federal Right to RefuseObjections to Bill C-4 By changing the definition of danger, workers will need to argue that a “serious” health effect would be incurred by performing a task or using the equipment The previous law did not require such evidence Serious offers space for interpretation that can be used against workers

61 The Federal Right to RefuseThe change of this definition also removes the prevention of exposure to hazardous substance that is likely to result in chronic illness, and in disease or damage to the reproductive system as a result of the hazard This could mean that, for example, exposure to chemicals that could cause cancer would not be a reason to refuse work because it is not an imminent risk; It is a long term risk

62 The Federal Right to RefuseFortunately, one of the first thing the new Trudeau Government did was revert Bill C-4 to its previous version, which reads:

63 The Federal Right to Refuse“Danger” means any existing or potential hazard or conditions or any current or future activity that could reasonably be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected, or the activity altered, whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity, and includes any exposure to a hazardous substance that is likely to result in a chronic illness, in disease or in damage to the reproductive system

64 The Federal Right to RefuseWhile the law only had an effect on workers in federal jurisdictions, the reversal is significant to workers in all jurisdictions as the quashing of Bill C-4 will hopefully stymie other regions, such as Saskatchewan from seeking similar legislation CAUTION: Do not be surprised if the Pallister Government in Manitoba does not try enact similar legislation in Manitoba

65 Health & Safety Legislative UpdateQuestions?

66 Health & Safety Legislative UpdateThank You!