Concerning the Presence of Mould in
the Workplace
Presentation Materials to the CALL
Conference
Edmonton, Alberta June
2004
John R. Carpenter
Jo-Ann Kolmes
Background
For
some time a large number of the Nurses on the Renal Health Unit (Unit 27)
Foothills Medical Centre in Calgary had been experiencing chronic health
complaints. Reports were made, an expert was consulted and the employer
undertook some modifications to the ventilation system but the reported symptoms
persisted. The United Nurses of Alberta on behalf of their members undertook to
pressure the employer to deal with the complaints. The employer refused to
undertake a collaborative investigation of the concerns. The Union therefore
asked that an indoor air quality expert retained by the Union be permitted
access. The employer refused.
Initially the
nurses were not prepared to refuse work and file imminent danger complaints
under the Occupational Health and Safety Act. The Union therefore filed an
application/complaint arising from Section 2 of the Act. The provision that is
outlined below outlines the respective responsibilities of employers, workers
and others in respect to health and safety. It provides among other things that
the employer shall ensure, as far as it reasonably practicable the health and
safety of the workers. The premise of the application was that the employer
had failed to meet its obligations under the Act when it refused to agree to
access for the Union’s indoor air quality
expert.
The short version of what followed is
that the Union’s application was refused but the Alberta Workplace Health
and Safety Officers in response nonetheless created an experts committee that
would investigate. This committee consisted of experts appointed by the
employer, the nurses union and another union that was now involved and by AWHS.
The Committee began its work but quickly became a problem for AWHS and was disbanded.
The employer was directed by AWHS to continue. The U.N.A. brought an application
for judicial review of the decision to disband the committee and an interlocutory
application for access for its expert to inspect the work the employer indoor
air quality and remediation experts that had been ordered to continue the work.
The Alberta Court of
Queens Bench granted the Union’s application. The investigation confirmed
the continuing presence of toxigenic mould on the unit. The Nurses were now
willing to file complaints of imminent danger although they were not prepared
to leave their patients. A complaint was filed. The employer and AWHS denied
the existence of an imminent danger. An Appeal was launched to the Occupational
Health and Safety Council.
Before the appeal
was heard the employer announced a $5 million relocation and renovation to Unit
27 that was to begin almost immediately. The employer denied that its
announcement was related to the health concerns of the nurses, which it
continued to deny. As a result the judicial review of the initial decision to
disband the technical committee and the appeal to the Council were adjourned and
have not been heard.
Excerpts from the Judicial Review Brief for
the Court of Queen’s Bench
1. The central issue in this litigation is the right of
workers to be fully involved when there are health and safety issues in the
workplace. The case is about transparency in the process of investigation and
remediation of unhealthy or unsafe conditions in the workplace.
2. The World Health Organization guidelines for
occupational health and safety contain principles including:
Recognition of employees’ own interest in
occupational health and safety.
Cooperation and collaboration on an equal basis
by employers and workers.
Right to participate in decisions concerning
one’s own work.
World Health Organization Global Strategy on
Occupational Health for All, pages 32 – 33, TAB 1, (http://www.who.int/oeh/OCHweb/OCHweb/OSHpages/GlobalStrategy/GlobalStrategy.htm
and
http://www.who.int/oeh/OCHweb/OCHweb/OSHpages/OSHDocuments/GlobalStrategy/Global)
Adverse
health symptoms reported by RNs from Unit 27 and adjacent
areas
3. Michelle Senkow, currently President and previously
Vice-President of UNA, Local #115, has received reports from RNs who have worked
and are working on Unit 27 and adjacent areas of adverse health symptoms
including (Affidavit of Ms. Senkow, para. 14):
chest pains
tightness of chest
shortness of breath
sore throat
coughing
respiratory problems
hoarseness
loss of voice
spontaneous nosebleeds
eye irritation
blisters, rashes, hives
headaches
numbness
fatigue
insomnia
tingling of lips, mouth, face
chronic runny nose
4. Ms. Senkow has received reports from RNs that
(Affidavit of Ms. Senkow, para. 15):
symptoms develop within a short time of
commencing work on Unit 27,
for some RNs, symptoms subside during days off
and reappear when they are back on Unit 27,
other RNs have had continuing health
problems,
some RNs continue to remain off
work,
some RNs are worried that their health problems
will be long-lasting or permanent.
5. Ms. Senkow has also received information that
(Affidavit of Ms. Senkow, para. 13:
there are RNs currently off work from Unit 27
because of health problems and that they have been told by their physicians that
they cannot work on Unit 27;
other employees including RNs and management
are being accommodated on other units because they cannot work on Unit
27;
staff have left Unit 27 of their own accord
because of health problems on Unit
27.
UNA complaints of unhealthy and
unsafe working conditions
6. Ms. Senkow became aware of a history of health and
safety concerns on and in the area of Unit 27 (Affidavit of Ms. Senkow, paras.
16 – 18 and Exhibit 2).
7. On or about October 2, 2002, Ms. Senkow prepared a
Report Form to the Professional Responsibility Committee, established pursuant
to the Collective Agreement between UNA and the Employer, reporting ongoing
concerns re safety of staff and patients on Hemo I (on Unit 27), raising the
issue of environmental concerns, and making recommendations including an
investigation and relocation of patients and staff (Affidavit of Ms. Senkow,
paras. 19 – 20 and Exhibit 3).
8. On or about October 25, 2002, the Employer received a
Chemical Analysis Report from Enviro-Test Laboratories which reported the test
results of sampling done at the request of the Employer on and in the environs
of Unit 27 (Affidavit of Ms. Senkow, Exhibits 9, 10). The results showed the
presence of the following toxigenic fungi/mould in air samples:
Aspergillus
Penicillium
Stachybotrys
9. These results were not reported fully and
transparently to staff. On November 1, 2002, the Employer issued to staff a “Unit 27 IAQ Investigation Update” stating
(Affidavit of Ms. Senkow, Exhibits 4, 10):
What has happened over the last
week?
...
• Results of mould sampling were received.
Infection Prevention & Control was involved in interpretation of results.
The results demonstrate:
• Mould present in outdoor air samples is
significantly higher than indoor samples suggesting effective filtration on the
ventilation system.
• Some mould types were identified in indoor air
samples that were not present in outdoor samples – although these were
found at very low levels.
10. UNA made further requests of the Employer for an
independent environmental assessment and for collaboration between the Employer
and UNA in conducting an investigation. The Employer refused the requests.
(Affidavit of Ms. Senkow, paras. 22 – 43).
11. The reasons given by the Employer for rejecting the
UNA request included the nature of the problem and the capability of the
Employer to deal with the problem (Cross-Examination on Affidavit of Dr.
Waddell, page 14, lines 14 – 18).
12. In the time period that UNA made requests that the
Employer collaborate in retaining an independent expert, the Employer did not
direct its own employees to conduct an indoor air quality assessment
(Cross-Examination on Affidavit of Dr. Waddell, page 18, lines 4 – 6).
13. On Sunday, March 30, 2003, Ms. Senkow became aware
that an area of Unit 27 had been surrounded by orange plastic. Ms. Senkow had
not received any notification from the Employer that any concerns had been
identified or that any work was being done. Ms. Senkow made inquiries and was
informed that, among other things, plumbers had been there to “fix the
mould found in the bathroom” (Affidavit of Ms. Senkow, paras. 44 – 47).
14. On March 31, 2003, UNA filed a complaint with AWHS
that, among other things, RNs and other employees working on and in the area of
Unit 27 of FMC were experiencing adverse health problems, that the Employer was
not ensuring, as far as reasonably practicable, the health and safety of RNs and
other employees on and in the area of Unit 27, that work is being carried out in
a manner that is unhealthy and/or unsafe, and there is a danger to the health
and/or safety of workers on Unit 27 (Affidavit of Ms. Senkow, para. 49 and
Exhibit 16).
15. On April 11, 2003, UNA informed AWHS that according
to the information provided to UNA, 62 RNs working on or near Unit 27 were
reporting adverse health symptoms (Affidavit of Ms. Senkow, para. 61 and Exhibit
1). Ms. Senkow provided a list summarizing the symptoms reported by each RN. In
response to a request for information by Dr. Karpluk for AWHS, UNA reported in a
letter dated May 28, 2003, that, to its knowledge, the total number of RNs on
Unit 27 is 103, and the total number of RNs working on or near Unit 27 who have
reported health concerns to UNA relating to air quality is 68 (Affidavit of Ms.
Senkow, para. 125 and Exhibit 64). Ms. Senkow provided an updated list
summarizing symptoms reported by RNs.
16. The Affidavits of D.W. and C.N., filed in this
matter, also describe some of the adverse health symptoms being experienced by
RNs working on or near Unit 27.
Technical
Committee set up by AWHS
17. On or about April 17, 2003, AWHS set up a Technical
Committee “to address indoor air quality concerns” on Unit 27, and
asked UNA to identify one technical representative for the proposed committee
(Affidavit of Ms. Senkow, para. 71 and Exhibit 27).
18. While maintaining its complaint and its rights to
take any steps necessary to safeguard the health and safety of RNs in the
workplace, UNA named Ms. Karen Rollins as its technical representative to the
committee (Affidavit of Ms. Senkow, para. 72 and Exhibit 28).
19. The Technical Committee, including Ms. Rollins,
carried out investigative functions including sampling, a walk-through, and
review of reports (Affidavit of Ms. Rollins, paras. 10 – 114, and Exhibits
thereto).
20. Test results from sampling conducted by the
Technical Committee reported the presence of mould, and specifically toxigenic
moulds including Stachybotrys, Aspergillus, Penicillium (Affidavit
of Ms. Rollins, paras. 33, 49, 57 – 70, 112, and Exhibits 7, 9,
11, 12, 18).
21. AWHS proceeded with a meeting of the Technical
Committee on June 20, 2003, with the attendance of two of the parties (Ray Caddy
of the Employer and Brian Stevens of AUPE), but not Ms. Senkow (Affidavit of Ms.
Rollins, para. 85). Ms. Senkow had not been given notice of the June 20 meeting
(Affidavit of Ms. Senkow, para. 103).
22. At the meeting of the Technical Committee of June
20, 2003, the Technical Committee was informed that mould had been found in the
Tech Room, AR213, in the environs of Unit 27 of FMC (Affidavit of Ms. Rollins,
paras. 88, 91).
23. At the meeting of June 20, 2003, AWHS presented an
action plan for the Technical Committee including (Affidavit of Ms. Rollins,
para. 88):
• Interviews with staff (nurses, maintenance
personnel, contractors, project managers)
• Testing for VOCs
• Testing for particulates
• More testing and visual inspection of Unit 27 to
find a possible source of mould
• Testing and remediation of Tech Room AR213
mould. The Committee was informed that there had been a recently identified
water leak, mould had been found along baseboard accompanied by a musty
odour.
• Review maintenance records
• Review history of renovations
• Facilitate Dr. Karpluk’s gathering of
information about health symptoms. Encourage staff to see physicians and have
their records released to Dr. Karpluk
• Discuss Terms of Reference.
24. At the Technical Committee meeting of June 24, 2003,
it was decided that Ms. Rollins could take part along with the technical
representative of the Employer in gathering samples during the Tech Room mould
remediation (Affidavit of Ms. Senkow, para. 106; Affidavit of Ms. Rollins, para.
109).
25. The Technical Committee meeting of June 24, 2003,
ended up being the last meeting of the Technical Committee (Affidavit of Ms.
Rollins, para. 10).
UNA excluded by AWHS
and the Employer from mould investigation and
remediation
26. On July 9, 2003, Ms. Rollins received an e-mail from
AWHS stating that “it is the responsibility of the Calgary Health Region
to carry out all the testing and provide results to the Committee for
review” (Affidavit of Ms. Rollins, para. 121 and Exhibit
23).
27. On July 10, 2003, AWHS met with the Employer, in the
absence of any representative of UNA, and agreed with the Employer that the
Employer would provide an Action Plan to AWHS by August 12, 2003 (Record, log
notes July 10, 2003). Neither the meeting nor the agreement was disclosed to
UNA by AWHS at the time.
28. Instead, on July 11, 2003, Ms. Rollins was simply
told by AWHS that she was not “invited to attend” the investigation
and remediation of mould in the Tech Room of Unit 27, and that Ian Wheeler, the
technical representative of the Employer on the Technical Committee would take
the samples (Affidavit of Ms. Rollins, para. 122).
29. Without the participation of Ms. Rollins, on or
about July 12, 2003, the Employer carried out removal of materials from the Tech
Room in the vicinity of Unit 27 and spraying of sealant over areas said to
contain mould in the Tech Room (Affidavit of Ms. Senkow, Exhibit
56).
30. On July 15, 2003, Ms. Senkow sent an e-mail to AWHS
stating, “Full transparency and participation of committee members is
necessary. The process which occurred this past weekend, July 12, 2003 is not
the procedure the committee had established the testing and remediation to
occur” (Affidavit of Ms. Senkow, para. 116 and Exhibit
55).
31. UNA has received no laboratory report relating to
the materials removed or sprayed in the Tech Room in the vicinity of Unit 27 of
FMC.
AWHS letter that the task of the
Technical Committee had been completed
32. On August 21, 2003, UNA received a letter from
counsel for AWHS that the task of the Technical Committee had been completed and
that it is the responsibility of the Employer to identify the source of mould
and remediate. The letter also informed that AWHS had met with the Employer and
had requested an action plan detailing how the mould source would be identified
and remediated (Affidavit of Ms. Senkow, para. 122 and Exhibit
60).
33. A similar letter was sent by AWHS to members of the
Technical Committee on September 3, 2003 (Affidavit of Ms. Rollins, para. 126
and Exhibit 25).
34. Ms. Rollins deposes that the work of the Technical
Committee had not been completed, and that the IAQ investigation of Unit 27 is
not complete (Affidavit of Ms. Rollins, paras. 127 – 132).
Application for judicial
review
35. On September 10, 2003, the Applicants filed an
application for judicial review, the within matter in Action No. 0301-14221,
seeking, among other things:
(a) an Order in the nature of certiorari quashing
or setting aside the decision of AWHS ending the functioning of the Technical
Committee, and
(b) an Order that an expert retained by UNA, Prof. Tang
Lee, should be granted access to the premises of FMC to conduct a comprehensive
indoor air quality (“IAQ”)
investigation.
UNA excluded from Employer
Action Plan approved by AWHS
36. On September 18, 2003, UNA received a fax dated
September 15, 2003, from the Employer attaching a proposed action plan and
requesting UNA feedback (Supplementary Affidavit of Ms. Senkow, para. 3 and
Exhibit A).
37. On September 23, 2003, UNA sent a letter to the
Employer setting out concerns with the proposed action plan and attaching a
document prepared by Ms. Rollins entitled “Components of a Comprehensive
Indoor Air Quality Investigation.” The letter was copied to AWHS.
(Supplementary Affidavit of Ms. Senkow, para. 5 and Exhibit C).
38. The September 23, 2003, letter from UNA to the
Employer also stated:
... we are also very concerned about transparency,
accountability and staff/union input in the investigation of these serious
occupational health issues. We have already been through a number of
experiences in relation to Unit 27 that have left us with a concern to be fully
involved. The proposal as presented does not meet our concerns in relation to
involvement, transparency and accountability.
39. UNA received a copy of a letter and attachment dated
October 1, 2003, from Cam Waddell, MD, of the Employer, to Brad Jackson,
Southern Region Manager of AWHS providing the Employer’s mould
investigation and remediation plan for Unit 27 of FMC (Supplementary Affidavit
of Ms. Senkow, para. 10 and Exhibit G).
40. The Employer’s letter of October 1, 2003,
refers to renovations of Unit 27 Hemo I being scheduled for late 2003 into early
2004. UNA had had no prior notice or information from the Employer of any
planned renovation to Unit 27 Hemo 1 (Supplementary Affidavit of Ms. Senkow,
para. 11).
41. The October 1, 2003, letter from the Employer does
not provide for any participation or input by UNA.
42. The letter refers to a “communication plan
intended to inform staff and unions of the status of the work conducted on Unit
27.” The letter refers to:
1. Circulation of a written report prepared by Dr.
Wheeler that reviews the previous investigative actions and air sampling results
from Unit 27.
2. Regular written progress reports.
3. Staff forums that outline the progress of the project
and allow staff the opportunity to ask questions and provide
feedback.
4. Circulation of a final report prepared by Dr. Wheeler
that will be prepared at the completion of the investigation.
43. The majority of the communication in this “communication plan” involves communication from the Employer; there
is only limited opportunity for staff to communicate to the Employer. The
October 1, 2003, letter from the Employer does not state how often these forums
will occur, or whether the “feedback” contemplated will be in
sufficient time to make a difference in investigation or remediation being
conducted by the Employer.
44. On or about October 10, 2003, UNA received a copy of
a letter dated October 7, 2003, from Brad Jackson, Southern Region Manager of
AWHS to Dr. Cam Waddell, Office of the Medical Director, FMC & Portfolio of
Services of the Employer (Supplementary Affidavit of Ms. Senkow, para. 17 and
Exhibit H). The letter from Mr. Jackson stated, among other things, that he had
reviewed the Mould Investigation and Remediation Plan for Foothills Hospital
Medical Centre, that the overall Plan and the Standards referred to are
appropriate, and that the Communication Plan is “strongly supported by
our department.”
Notice of motion for
interlocutory relief
45. On October 20, 2003, the Applicants filed a Notice
of Motion seeking interlocutory relief pending the hearing of the application
for judicial review. The interlocutory application was heard on November 6,
2003. Horner J. gave an oral decision on November 12, 2003 (transcript at
TAB 2) including that:
- CHR shall preserve materials on or in the environs of
Unit 27 of FMC which are determined by Certified Industrial Hygiene Consulting
Ltd. as having or as potentially having mould or other toxigenic
contaminants;
- Ms. Rollins, as the representative of UNA, is
authorized to enter upon the premises of the Special Services Building of
FMC;
- Ms. Rollins is authorized to observe the
implementation of the Mould Investigation and Remediation Plan for FMC, a copy
of which is attached as TAB G to the Supplementary Affidavit of Michelle Senkow,
as may be amended, including any investigation by Certified Industrial Hygiene
Consulting Ltd. on and in the environs of Unit 27 of FMC;
- Ms. Rollins is authorized to take samples on and in
the environs of Unit 27 of FMC, as she determines to be necessary, all such
samples to be obtained on prior notice to CHR.
(i) Toxigenic
mould
46. The adverse health and safety effects of indoor air
contaminants, including toxigenic mould, is being increasingly recognized. As
stated by Prof. Tang Lee in his Affidavit filed in this matter (paras. 10 – 12):
Certain types and certain concentrations of
mould should not be in the indoor environment.
Prolonged or acute exposure to these types of
moulds in an enclosed environment could be harmful.
Documented adverse human health effects
associated with prolonged exposure to toxigenic, pathogenic or allergenic moulds
include but are not limited to:
Asthma attack; respiratory problems; eye irritation;
throat irritation; nasal irritation; coughing and wheezing; hoarseness; skin
irritation; headache; nausea; diarrhea; fever; fatigue; reduced mental
capacity.
Within the building industry and the insurance
and health care sectors, there is knowledge now of the health effects of
prolonged exposures to certain moulds. Currently there are over 10,000 cases
in the US involving toxigenic moulds and about 30 cases in Canada.
47. Prof. Lee was invited in 2000 – 2001 by the
judges and support staff of the Alberta Court of Appeal to investigate the air
quality in the Court of Appeal building in Calgary. Judges and staff working in
this building had been ill for almost 10 years, and the mitigation measures as
recommended by other consultants had not been successful. In some cases, the
mitigation measures that had been taken had aggravated the health symptoms of
individuals. Prof. Lee’s air quality investigation team discovered the
presence of toxigenic moulds and several other air contaminants that had eluded
other consultants. After the issuance of his team’s investigation report,
the premises of the Court of Appeal building were vacated. The building was
closed on January 19, 2001. (Affidavit of Prof. Lee, para. 2.)
48. Other examples of measures taken in relation to
exposure to toxic moulds in public buildings are described in the Affidavit of
Prof. Lee (paras. 4 – 5).
49. The publications of AWHS advert to the
problem:
Workplace Health and Safety Bulletin, September 2003,
page 6, Exhibit F to the Affidavit of Prof. Lee:
According to current legislation, an employer is
expected to ensure that workers do not experience adverse health effects
resulting from mould exposure....
Workplace Health & Safety, Biological Hazards,
October 2001, page 1, Exhibit G to the Affidavit of Prof. Lee:
Individuals exposed to abnormally high levels of moulds
may sometimes experience adverse health effects. These include allergic
reactions, infections or toxic effects. Common symptoms of toxic effects
include headache, abnormal fatigue, nausea, eye and respiratory irritation and
aggravation of asthma or allergies. ...
50. The report of the Federal-Provincial Committee on
Environmental and Occupational Health, Fungal Contamination in Public
Buildings: A Guide to Recognition and Management (Ottawa, June 1995) states
at page iii (Exhibit C to the Affidavit of Prof. Lee):
The health implications of the fungal contamination of
indoor air have become an issue of increasing concern in recent
years.
51. The United States Environmental Protection Agency
publication Mold Remediation in Schools and Commercial Buildings
(Washington, D.C., June 2001 (Exhibit E to the Affidavit of Prof. Lee)
states:
Page 1:
Concern about indoor exposure to mold has been
increasing as the public becomes aware that exposure to mold can cause a variety
of health effects and symptoms, including allergic reactions.
Pages 39 – 40:
When moisture problems occur and mold growth results,
building occupants may begin to report odors and a variety of health problems,
such as headaches, breathing difficulties, skin irritation, allergic reactions,
and aggravation of asthma symptoms; all of these symptoms could potentially be
associated with mold exposure.
All molds have the potential to cause health effects.
Molds produce allergens, irritants, and in some cases, toxins that may cause
reactions in humans. The types and severity of symptoms depend, in part, on
the types of mold present, the extent of an individual’s exposure, the
ages of the individuals, and their existing sensitivities or allergies.
52. The New York City Department of Health & Mental
Hygiene Guidelines on Assessment and Remediation of Fungi in Indoor
Environments (Exhibit D to the Affidavit of Prof. Lee), states (at 1.1
Health Effects):
Inhalation of fungal spores, fragments (parts), or
metabolites (e.g., mycotoxins and volatile organic compounds) from a wide
variety of fungi may lead to or exacerbate immunologic (allergic) reactions,
cause toxic effects, or cause infections. ... Illnesses can result from both
high level, short-term exposures and lower level, long-term exposures. The most
common symptoms reported from exposures in indoor environments are runny nose,
eye irritation, cough, congestion, aggravation of asthma, headache, and
fatigue.
53. Symptoms including headaches, breathing
difficulties, skin irritation, eye irritation, cough, fatigue, allergic
reactions, and aggravation of asthma symptoms have been reported for a
considerable period of time by close to 70% of RNs working on or near Unit 27
(Affidavit of Ms. Senkow, paras. 11 – 15, and Exhibits 1,
64).
54. Moulds considered as potentially toxigenic
(including Stachybotrys, Aspergillus, and Penicillium
commune) have been reported in the testing conducted by the Technical
Committee on and in the environs of Unit 27 in the period April – June
2003 (Affidavit of Ms. Rollins, paras. 57 – 70, 112 - 114; Exhibits 11,
12, 18).
(ii) Obligations under the
Occupational Health and Safety
Act
55. Occupational health and safety legislation is for
the protection and benefit of workers, and sets out obligations of employers not
only in relation to the workers, but also to the state.
N.A. Keith, Canadian Health and Safety
Law (Aurora: Canada Law Book, looseleaf) at 1:10, pages 1-8.1 – 1-8.2,
and at 3:70 (TAB 2).
R. v. Manchester Plastics, [1989] O.J.
No. 384 at pages 1 – 2 (Div. Ct.) (TAB 3):
This Act, The Occupational Health and Safety Act, by its
words deals with the same thing, that is, concern about the welfare of the
individual, vis-à-vis hazards in the workplace. In my view, this Act,
The Occupational Health and Safety Act, although it’s said that the
Charter of Rights and Freedoms is the sovereign piece of legislation in Canada,
this Act in some respects is more important than the Charter. This Act should
be called the Charter of Life and Limb, and its purpose is the protection not
only of the workers but of management; of anyone who is in the working place.
It is in my opinion a very important piece of legislation.
See also:
Bell Canada v. Quebec (Commission de la
santé et de la sécurité du travail) (1988), 51 D.L.R.
(4th) 161 at 205 (S.C.C.)
R. v. Tech-Corrosion Services Ltd.,
[1986] A.J. No. 40 at page 4 (Q.B.), applied in R. v. General Scrap Iron and
Metals Ltd., [2001] A.J. No. 1282 (Prov. Ct.).
R. v. Grant Forest Products Inc., [2002]
O.J. No. 3374 (C.J.) at para. 50:
Its purpose is to protect and promote the health [and]
safety of vulnerable workers that are at the mercy of the working conditions
created by their employers.
Ontario (Ministry of Labour) v. MacMobile
Welding & Contracting Inc., [2002] O.J. No. 3699 at para. 34 (Ct. of
Justice – (Provincial Offences Court)).
56. The Occupational Health and Safety Act,
R.S.A. 2000, c. O-2 (in force January 1, 2002) (the “Act”) (excerpts
at TAB 4), sets out the obligation on employers to “ensure, as far
as it is reasonably practicable for the employer to do so,” the health
and safety of the workers engaged in the work of that employer (s.
2(1)).
57. The Act also provides for the responsibility of
workers for their own health and safety:
2(2) Every worker shall, while engaged in an
occupation,
(a) take reasonable care to protect the health and
safety of the worker and of other workers present while the worker is working,
and
(b) co-operate with the worker's employer for the
purposes of protecting the health and safety of
(iii) the worker,
(iv) other workers engaged in the work of the employer,
and
(v) other workers not engaged in the work of that
employer but present at the work site at which that work is being carried
out.
...
58. Worker participation in occupational health and
safety protection is vitally important, and is a key principle of occupational
health and safety. As stated by N.A. Keith in Canadian Health and Safety
Law, TAB 2, at 3:70:
Although the central goal and thrust of occupational
health and safety legislation and regulations is to ensure, improve and enhance
the health and safety of workers in the workplace, Canadian health and safety
law has not ignored the important role that workers themselves have in
establishing and maintaining a healthy and safe workplace. Workers have legal
duties and responsibilities to protect themselves and others at their place of
work.
Most Canadian jurisdictions place clear, direct and
specific legal duties on workers for their occupational health and safety, and
recognize that workers have a vital role in the internal responsibility
system.
59. The “internal responsibility system” is
the dominant concept in the development of occupational health and safety law,
and has been defined as “a system, within an organization, where everyone
has direct responsibility, for health and safety as an essential part of his or
her job” (N. Keith, Canadian Health and Safety Law, at 1:50, TAB
2).
60. As noted above, the World Health Organization has
set out key principles for occupational health and safety,
including:
Recognition of employees’ own interest in
occupational health and safety.
Cooperation and collaboration on an equal basis
by employers and workers.
Right to participate in decisions concerning
one’s own work.
Right to know and principle of
transparency.
Continuous follow-up and development of
occupational health and safety.
World Health Organization Global Strategy on
Occupational Health for All, pages 32 – 33, TAB
1.
61. The Workplace Safety and Health Division of the
Manitoba Department of Labour & Immigration stated in its Guidelines for
the Investigation, Assessment, & Remediation of Mould in Workplaces
(March 2001) at page 11 (TAB 5):
Lines of communication between building occupants,
workplace health and safety officials, building managers and owner, employers,
union representatives, and safety and health committee representatives should be
established as soon as health complaints related to indoor air quality are
received. Steps for investigation of the source of the problem should be
presented and agreed to by all parties involved. If fungal contamination
is detected, discussions should occur on the health hazards and remedial
measures to be carried out. Individuals involved in the investigation and
remediation should have received appropriate training as required by the
Workplace Safety and Health Act and WHMIS. Building occupants should be kept up
to date during the investigative, remedial, and follow-up stages. Detailed
information on effective communication strategies for dealing with indoor air
quality problems is available. (Emphasis added.)
62. The Act confers powers on AWHS to remedy unhealthy
or unsafe conditions, including the following (TAB 4):
inspection, production of
records, sampling, testing, interviewing (s. 8),
orders to remedy unhealthy or unsafe
conditions, where the officer is of the opinion that work is being carried out
in a manner that is unhealthy or unsafe, or where the officer is of the opinion
that a person is not complying with this Act, the regulations or the adopted
code (s. 9),
orders that work be stopped, where the officer
is of the opinion that a danger to the health or safety of a worker exists (s.
10),
orders requiring that an employer regularly
inspect the work site for occupational hazards (s. 25).
(vi) Order sought: a declaration
or Order that the Applicants are entitled to retain Prof. Lee to conduct an IAQ
investigation on and in the environs of Unit 27.
63. The Applicants seek an Order or declaration that,
having filed a complaint with AWHS that the Employer is not complying with its
obligations under s. 2(1) of the Act, they are entitled or authorized to retain
Prof. Tang Lee to conduct an IAQ investigation on and in the environs of Unit.
27, and that the Employer is required to facilitate such IAQ investigation.
There are three alternative grounds on which such declaration or Order may be
founded:
- statutory rights under s. 2(2) of the
Act,
- an inspection order pursuant to Rule 468 of the Rules
of Court, or
- the duty of fairness.
A. Access to investigate
pursuant to statutory rights under s. 2(2) of the Act
64. The Applicants submit that s. 2(2) of the Act
provides workers with a statutory right to have an expert retained by them
investigate a health and safety complaint at the workplace, and that employers
are required to facilitate such investigation. A right to such investigation
would be complementary to any inspection or investigation ordered or conducted
by an Officer pursuant to the Act.
65. The Applicants submit that such right is of profound
importance in a context where:
- there are serious health and safety
problems,
- the workers do not have confidence that the employer
is doing everything reasonably practicable to determine the cause of the health
and safety problems,
- there has been a lack of full and accurate
communication to workers,
- there has been a lack of transparency,
- the workers do not have confidence that AWHS is
conducting or requiring an investigation that will adequately determine the
cause of the health and safety problems.
66. The Westray Mine Public Inquiry, Justice K. Peter
Richard, Commissioner, showed that the occupational health and safety regulators
have not always sufficiently protected the health and safety of
workers.
- http://www.gov.ns.ca/enla/pubs/westray/contents.htm
67. The purpose of the Act is therefore best fulfilled
if it is confirmed that workers have the statutory right pursuant to s. 2(2) to
retain their own expert to investigate a health and safety complaint, that
employers be required to facilitate the exercise of such statutory right, and
that AWHS Officers exercise their decision-making under the Act in consonance
with that right.
1) Section 2(2) of the Act
68. The Act provides (TAB X):
2(1) Every employer shall ensure, as far as it is
reasonably practicable for the employer to do so,
(a) the health and safety of
(i) workers engaged in the work of that employer,
and
(ii) those workers not engaged in the work of that
employer but present at the work site at which that work is being carried out,
and
(b) that the workers engaged in the work of that
employer are aware of their responsibilities and duties under this Act, the
regulations and the adopted code.
2(2) Every worker shall, while engaged in an
occupation,
(a) take reasonable care to protect the health and
safety of the worker and of other workers present while the worker is working,
and
(b) co-operate with the worker’s employer for the
purposes of protecting the health and safety of
(i) the worker,
(ii) other workers engaged in the work of the employer,
and
(iii) other workers not engaged in the work of that
employer but present at the work site at which that work is being carried
out.
2) The principles of statutory interpretation support
the rights of workers to have their own expert investigate a health and safety
concern.
69.
- general principle of purposive
interpretation
- Interpret act
- social welfare legislation
- purpose as set out in decisions
- Keith text
- Hansard indicates purpose
- Gale report
- WHO documents
- other documents
- note the cooperation section under the act is separate
from the protect own health and safety section
- note that CHR is conducting the investigation under
the auspices of AWHS; if that is possible pursuant to s. 2(1) and the
inspection/order powers of the Act, workers should have a concomitant
right
John R. Carpenter/ Jo-Ann
Kolmes
Chivers
Carpenter
June 2004
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