Bill C-45 Criminal Negligence

Posted by Johannes Schenk on April 24th, 2008 — Posted in Employment Law, Labour Law

See R. c. Transpavé inc. 2008 QCCQ 1598, for a $100,000 fine against an employer for criminal negligence in the workplace.

Employer Liabiltiy for Workplace Accident

Posted by Johannes Schenk on April 24th, 2008 — Posted in Employment Law, Labour Law

The case of R. v. Dofasco Inc., 2007 ONCA 769, is a succinct read on employer liability for workplace accidents.

The case concerns Dofasco’s failure to ensure the statutorily mandated placement of a guard on a piece of steel rolling equipment.

The case deals with a number of important issues:

Standard of Review

The interpretation of the statute is a question of law to be considered on a correctness standard.

The Meaning of a “Guard”

Guard means guard, as in something fixed onto the machine that keeps a worker from getting inadvertent access to the danger presented by that machine. Not a safety procedure or some external unattached device available to the worker.

The Worker’s Contributing Conduct

The worker’s conduct in failing to follow company procedure, short of intentionally spiting the employer, is not a defence to the employer’s failure to comply with the statute.

Due Diligence

Defences of taking reasonable steps or a mistaken belief that reasonable steps had been taken will not be a defence where the steps taken and subsequent mistaken belief do not track the underlying statutory requirement.

Testing for Ethanol Impairment

Posted by Johannes Schenk on April 17th, 2008 — Posted in Employment Law, Human Rights Law, Labour Law

While we are on the issue of drug testing, the Supreme Court of Canada has come out with a very important decision dealing with evidence to the contrary in impaired driving cases, R. v. Gibson, 2008 SCC 16.

The case deals with straddle evidence and a rebuttable presumption on blood alcohol levels. As a former pharmacology grad student I have often watched in frustration as defendant’s experts give evidence that would not pass muster in an undergrad lab course. This decision is somewhat of a relief because it sets straight the meaning and utility of post consumption testing for elimination rates. These concepts are important to anyone administering a drug and alcohol discipline program, running grievances or doing human rights work in this area. They are well beyond the scope of a simple post.

Having said that, Madam Justice Charron states the following:

[3] As I will explain, it is my view that in all cases straddle evidence merely constitutes an attempt to defeat the statutory presumption itself and, as such, does not tend to show that the accused’s blood alcohol concentration did not exceed the legal limit at the time of the alleged offence within the meaning of s. 258(1)(d.1). I also conclude, on the basis of the undisputed scientific fact that absorption and elimination rates vary continuously, that post-offence testing of the accused’s own elimination rate

will rarely, if ever, add anything of value to the expert opinion evidence and, for obvious policy reasons, should not be encouraged, let alone required.

[4] It is undisputed that the human body absorbs and eliminates alcohol over time, and that absorption and elimination rates vary, not only from person to person, but also from time to time for the same individual, depending on a number of factors, some of which concern the person’s digestive process at the relevant time. It is therefore impossible to ascertain the precise rate at which the accused was metabolizing alcohol at the time of the alleged offence. Parliament can be assumed to have known that blood alcohol levels are subject to these inherent variations. Yet, it saw fit to implement the presumption. The legislative scheme must be interpreted in this context.

[5] Because absorption and elimination rates continually vary, it is readily apparent that a breathalyzer reading of 95 mg, for example, may not reflect the actual concentration of alcohol in the accused’s blood at the time of the alleged offence — it would depend on the rate at which the particular accused is metabolizing the alcohol during the relevant time period on the day in question. Yet, it can be no defence for an accused to say that the actual alcohol concentration at the material time may have been less than the legal limit based on this variable alone. To admit such a defence would obviously fly in the face of the presumption itself. It is because of these inherent variations in absorption and elimination rates that the presumption of identity is needed in the first place. In order to facilitate proof of the offence, the presumption treats all persons as one person with a fixed rate of elimination and absorption.

Imperial Oil Random Drug Testing

Posted by Johannes Schenk on April 17th, 2008 — Posted in Employment Law, Human Rights Law, Labour Law

Last year I had referred to Arbitrator Picher’s decision on Imperial Oil’s drug testing policy that ruled that random testing for cannabis impairment using a mouth swab was not acceptable.

The review of that decsion has now made its way through the Ontario Court on Judicial Review and has been upheld in Imperial Oil Limited v. Communications, Energy & Paperworkers Union of Canada, Local 900, 2008 CanLII 6874 (ON S.C.D.C.)

It would appear that any debate on random drug testing in Canada is now over even where the testing can show a present state of impairment.

Non-Statutory Professional Associations

Posted by Johannes Schenk on April 16th, 2008 — Posted in Employment Law, Professional Discipline

There are two main types of professional associations. Those that exist on the basis of legislation and those that exist on some other basis. Usually there is a Society Act and series of bylaws that dictate internal conduct in the latter category of professional association.

Chaudhary v. The Canadian Society of Respiratory Therapists
, 2007 BCSC 467, gives a useful summary and analysis of the legal envelope regarding disciplinary proceeding in non-statutory type professional associations.

The action of such bodies are subject to a contractual analysis that borrows heavily on administrative law fairnes and procedural concepts. Judicial review in the context of a contract.

In this case, in particular, the Court held that the discipline body could not discipline former members on the basis of changes that the Society had made to the scope clauses of its bylaws.