Canadian Employment Law Today

March 5, 2014

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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CANADIAN EMPLOYMENT LAW TODAY Published by Canadian HR Reporter, a Thomson Reuters business 2014 11 to report the accident to WorkSafeBC, the province's workers' compensation board. Arrow reported the accident about fi ve hours after it occurred. The next day, WorkSafeBC offi cers ar- rived at the site to begin their own in- vestigations. On Jan. 25, 2010, a WorkSafeBC of- fi cer issued a report citing B.C. Hydro for allowing the accident scene to be disturbed and not reporting it, since it was the owner of the worksite and an employer related to the worksite. B.C. Hydro challenged the report, arguing Arrow was the employer responsible for the worksite and it ensured the contrac- tor would report it in a timely manner. B.C. Hydro also said it did what it could to preserve the accident site for the in- vestigators, but it had to restore electri- cal service as quickly as possible. A review offi cer cancelled the cita- tion for disturbing the accident site but confi rmed the order for failing to notify WorkSafeBC of the accident. The ob- ligation to report the accident wasn't restricted to employers whose workers were involved, said the review offi cer, but an employer that had a "signifi cant connection to the worksite" should also do so to ensure a timely notifi cation. Unsatisfi ed, B.C. Hydro appealed to the B.C. Supreme Court. The court found the review offi cer's dismissal of the argument that B.C. Hydro instructed Arrow to report the ac- cident and therefore negated the need for both to report was reasonable. "Since all that was required was a telephone call to the board, the simul- taneous obligation to report did not im- pose unreasonable duplication of effort or expense and (the act) does not excuse the failure to do so," said the review of- fi cer supported by the court. However, the court found the origi- nal offi cer and the reviewing offi cer ad- opted an interpretation of the reporting requirement that was too broad. Though it was reasonable to interpret the defi - nition of "employer" as not limited just to the employer of the injured worker, in this case B.C. Hydro was not an em- ployer with a reporting obligation, said the court. The legislation specifi ed the differ- ence in duties between the owner of a worksite and an employer on the work- site, and an owner is not obligated to report an accident, said the court. Other than ownership, B.C. Hydro's connec- tion to the worksite and the accident was because its workers provided "co- operation and assistance" at the scene. It should not be penalized for its ac- tions, said the court. "B.C. Hydro submits, and I agree, that the interpretation of (the act) adopted by the board in this case would, if allowed to stand, have a chilling effect on any employer who was considering whether to assist, as a good Samaritan, in the rescue of an unrelated worker," said the court. "I agree with the submission of B.C. Hydro that before an employer can be found to have a reporting obligation under (the act), that employer must, at a minimum, either be the employer of the injured worker, or must be an em- ployer whose workers are at a multiple- employer workplace within the meaning of (the act) at the time of the accident." The order for B.C. Hydro to report the accident was remitted to the Work- SafeBC review division for reconsidera- tion. See British Columbia Hydro and Power Authority v. British Columbia (Workers' Compensation Board), 2013 CarswellBC 4010 (B.C. S.C.). Flu, strep throat not disabilities: Tribunal An employee who had the fl u and strep throat — which prevented her from tak- ing training — did not have a disability requiring accommodation, the Ontario Human Rights Tribunal has ruled. Candace Burgess was a registered massage therapist who designed and ad- ministered examinations for candidates seeking certifi cation as registered mas- sage therapists by the College of Mas- sage Therapists of Ontario (OSCE). She performed these duties from 2004 to 2011 with one-year contracts renewed on an annual basis. A condition of each con- tract was to attend a mandatory training program for examiners held each year. The training was mandatory for ex- aminers because the certifi cation exams involved different scenarios upon which candidates were assessed, and each year new scenarios were developed. Examin- ers attended the training to learn and understand the scenarios and ensure they all had a common understand- ing so candidates were consistently as- sessed and graded. In 2012, Burgess once again signed a one-year contract to be an examiner. The two-day mandatory training ses- sion was scheduled for April 16 and 17, 2012. On April 15, Burgess contacted the OSCE to tell them she was in bed with the fl u and may not be able to make it to the training. The next morning, she called again to say she wouldn't be able to come, but she hoped to make it on the second day. Later that day, the OSCE contacted Burgess to inform her that since she was unable to attend the man- datory training, her 2012 contract was being cancelled. Burgess fi led a human rights com- plaint, arguing the decision to cancel her contract was an act of discrimination on the basis of disability and the OSCE had a duty to accommodate her. She point- ed out there were two occasions when the OSCE allowed an examiner to miss the mandatory training: once when a replacement was needed quickly after the training had already taken place, and once when an individual the OSCE considered a strong potential examiner wasn't available to take the training. In the latter situation, the OSCE provided individual training to the candidate. Burgess pointed out she was diag- nosed with strep throat the day after the training, which could be potentially seri- ous if not treated. The tribunal noted the OSCE consid- ered its mandatory training as "funda- mentally important" and it was key to establishing "consistent and objective measures for the testing of candidates who wish to become registered massage therapists." This training program was developed in good faith and was consid- ered critical to ensuring fair and consis- tent testing, said the tribunal. The tribunal found there was no evi- dence it was undue hardship for the OSCE to train examiners individually if they were unable to attend the training — and there were in fact two occasions where it did so. Though this was not a "preferred option" for the OSCE, it was unlikely it would be unable to provide such training, said the tribunal, particu- larly to someone like Burgess who had years of experience already. The OSCE was unable to prove that attending the training sessions was a bona fi de re- quirement to be an examiner. However, this didn't mean the OSCE had to accommodate Burgess. The tribu- nal found there was no duty to accom- modate because Burgess' illness was not a disability under the Ontario Human Rights Code. Whether Burgess had the fl u or strep throat, these were "common- place, transitory ailments" that did not create barriers to participate in society, said the tribunal. "While having these conditions did result in (Burgess) taking an action with signifi cant effect for (her), they are of a commonplace nature such that to con- sider them a disability would have the effect of trivializing the code's protec- tions," said the tribunal. The complaint was dismissed. See Burgess v. College of Massage Therapists of Ontario, 2013 HRTO 1960 (Ont. Human Rights Trib.). Continued from page 1 MORE CASES COMPILED BY JEFFREY R. SMITH

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