TORONTO WORKERS’ HEALTH & SAFETY LEGAL CLINIC http://www.workers-safety.ca/

April 2015. Vol. 23 No.2.

1

newsletter

Clinic’s participation with University of Toronto

Faculty of Applied Science and Engineering: 1

Multidisciplinary Capstone Design Course

Helmet impact forces

Air contaminant measurement

Engineering Strategies & Practice Course

Fermentation reactor

Fume hood & glove panel

Safe chemical transfer with a gastight syringe For several years our Clinic has participated as a “client” for groups of first year students in the University of Toronto Engineering Strategies & Practice Course, and we continue to be pleased to do this. Also, over the past academic year, we have similarly participated for fourth year students in the Multidisciplinary Capstone Design Course. Our participation in these student projects is a kind of outreach that is unique for a community legal clinic. And, we hope that the workplace health & safety projects allow the students to meet issues they wouldn’t otherwise have encountered. Copied below are the two poster summaries displayed at a Showcase held on the U of T campus, 30 March 2015, for the fourth year students. And also, some illustrations, etc. from the three first year students’ projects, presented on campus 27 April 2015.

in this issue: Vol. 23 No.2. April 2015. page

Clinic’s participation with University of Toronto

Faculty of Applied Science and Engineering:

• Multidisciplinary Capstone Design Course.

• Helmet impact forces

• Air contaminant measurement

• Engineering Strategies & Practice Course

• Fermentation reactor

• Fume hood & glove panel

• Safe chemical transfer with a gastight syringe.

1

2

3

4

5

6

● Case & Comment:

Bastien v Pro-Hairlines. OLRB. 7

● Clinic not to co-locate. 8

●in the press –

●Young workers listening to union pitch. 9

●Formaldehyde in floors. 9

●Dangerous Trains, Aging Rails. 9

●US chemical regulations.. 9

●Gold mining hazards. 9

●automotive safety. 10

● facebook. twitter. 10

●data added to http://www.workers-safety.ca/ 10

●notes. 11

●for future issues. 11

●publication data. 12

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2015 03 22. U of T.pdf

2015 03 22. FinalReportH&S1 HELMET IMPACT FORCES.pdf

2015 03 24. U of T.pdf

2015 03 24. POSTER HELMET IMPACT FORCES.pdf

2015 03 24. Project description.pdf

TORONTO WORKERS’ HEALTH & SAFETY LEGAL CLINIC

April 2015. Vol. 23 No.2. 3

2015 03 23. U of T.pdf

2015 03 23. Floorplanner - APS490Y Showcase.pdf

2015 03 23. APS490 - Final Deliverable - H&S2 - 2015.pdf

2015 03 23. Showcase_H&S2_APS490.pdf POSTER Air Contaminant Measuring.

2015 03 23. VICTORIA UNIVERSITY CAMPUS MAP.pdf

TORONTO WORKERS’ HEALTH & SAFETY LEGAL CLINIC

April 2015. Vol. 23 No.2. 4

Safety design for a fermentation reactor – after consideration of the worker fatalities at

Filsingers. 23456

2015 04 15. []1[] U of T fermentation reactor .pdf

2015 04 15. []2[] U of T fermentation reactor .pdf

TORONTO WORKERS’ HEALTH & SAFETY LEGAL CLINIC

April 2015. Vol. 23 No.2. 5

Safety design for Fume Hood and Glove Panel -- after consideration of the worker fatality from

trimethylsilyldiazomethane at Sepracor Canada, Windsor, Nova Scotia.7

TMSD CAS 18107-18-1 114.22 g/mol

2015 04 10. []1[] U of T Fume Hood -- Glove Panel.pdf

2015 04 10. []2[] U of T Fume Hood -- Glove Panel.pdf

TORONTO WORKERS’ HEALTH & SAFETY LEGAL CLINIC

April 2015. Vol. 23 No.2. 6

Safety design for chemical transfer with a gastight syringe – after consideration of the

worker fatality at UCLA. 8 9

tert-butyllithium 1,1-dimethylethyl lithium CAS 594-19-4 64.055 g/mol. 10 11 12

2015 04 28. []1[] U of T Chemical transfer design .pdf

2015 04 28. []2[] U of T Chemical transfer design .pdf

TORONTO WORKERS’ HEALTH & SAFETY LEGAL CLINIC

September 2013. Vol. 21 No.4. 7

Case & comment -- 1

Bastien v Pro-Hairlines Decision of the Ontario Labour Relations Board

Linda Vannucci 2

“… was threatened with arrest were she to set foot on the premises …”

In Bastien v Pro-Hairlines,1 the OLRB recently ruled that a hair salon employee was fired as a reprisal for calling a Ministry of Labour inspector. The Vice-Chair found that the Complainant “was threatened with arrest were she to set foot on the premises of Pro-Hairlines; she was denied her final paycheque; she was denied the opportunity to collect EI by the Employer’s bogus claim that she was self-employed and its refusal, in total disregard of federal legislation to issue an ROE to which she was entitled. The Complainant was no longer self-sufficient, as a direct result of the Employer’s conduct and suffered loss of self-esteem as she was forced to rely on her father for the basic necessities of food and shelter. Such economic dependence was humiliating for the Complainant. The

psychological and mental distress she suffered was compounded by the lingering physical effects of the serious electric shock she had sustained due to the hazardous conditions at the workplace for which the Employer was responsible. The Complainant’s sense of loss of dignity and self-respect can be laid directly at the feet of the Employer, acting through Mr. Vasiliades who throughout the dismissal process acted in a manner that was unfair and in bad faith, being both untruthful, misleading and unduly insensitive.” The Clinic had argued that Ms. Bastien was entitled to, in addition to lost wages, damages for mental distress as a direct result of the manner in which she was dismissed. The Employer acted unjustly and in bad faith in dismissing her. The argument was successful and compensation in the

form of aggravated damages in the amount of $7 500 was awarded in addition to lost wages by reason of the Employer’s violation of OH&S Act Section 50. This is not the first time damages have been requested. The Clinic first sought mental distress damages on a Section 50 Application at the OLRB when representing an injured worker who had lost part of his finger due to a lack of guard on a table saw at a small kitchen manufacturing company in Peterborough. After recovering from his injury, the worker noted that the table saw still lacked proper guarding and refused to work. As a result, he was fired. In that case, re Proctor & Whitler Industries, 1992,2 the OLRB ordered $500 in mental distress damages and decided that in the proper circumstances a remedial order of the OLRB

TORONTO WORKERS’ HEALTH & SAFETY LEGAL CLINIC

April 2015. Vol. 23 No.2. 8

could include damages for mental distress. In Bastien, the OLRB firmly grounded its jurisdiction to grant remedial orders to OHSA reprisal victims by referring to the development of common law and in leading Supreme Court decisions such Wallace v. United Grain Growers3 and Honda v Keays4 In these cases the Supreme Court held that where an employer engages in conduct that is unfair or in bad faith in the

course of the dismissal, for example, makes untruthful misleading or unduly sensitive statements such as to cause undue mental distress, then an award of aggravated damages would be appropriate. Thanks to the Clinic, the OLRB awarded wage loss damages from the date of dismissal until the date of hearing, which is the norm in these matters. However, the decision then noted that because it is difficult to

secure employment during the holiday season, it is appropriate to award an additional six weeks lost wages. In total, Ms. Bastien is due $16 659 lost wages and aggravated damages of $11 500 for a total of $28 159 plus interest at 1.3%. The Clinic is currently seeking enforcement of the OLRB order via the Superior Court of Ontario by way of a Writ of Seizure and Sale.

Clinic to not go with co-location plan. 1

At a special meeting, called for the purpose, our Clinic’s Board decided, 11 February, to not join with the several other speciality Clinics that are planning to relocate to a single office cluster. This LAO-encouraged co-location has kept all of the Toronto speciality Clinics busy in decision-making activity for ~2 years. There has also been expensive consultants’ activity. At its meeting, 25 June 2014, our Clinic’s Board motioned to “… approve in principle a commitment to participating in the Co-location Project…”2 However, at its meeting, 11 February 2015, the Board, having considered then-recently received documents,34 had “… concerns focused on the financial implications and risks in this arrangement …“5 Prominently, there was a DRAFT6 of a letter from LAO that avoided giving a definitive financial commitment to the would-be co-locators if one or more of them failed to contribute to the co-locate rent. Even if that failure were to be blameless, the remaining Clinics would be caught for the rent remainder. House-of-cards-type collapse could follow. 7 It also became apparent that the once-thought-of financial savings of co-location may have been something of a mirage. However Clinics that would be co-locating, and LAO, see value in it even if it does not save much money. Several Clinics, including ours, have eventually opted to not be included, for a variety of reasons; others appear to be still pondering various alternatives; it is still unclear as to what eventually will

TORONTO WORKERS’ HEALTH & SAFETY LEGAL CLINIC

April 2015. Vol. 23 No.2. 9

happen. Notice has been sent to the other Clinics of our decision.8 The LAO financial consequences that might, or might not, be visited on us remains unknown. This table is as best we can figure out from changing & changeable situations; don’t rely on it other than as a general indicator:

Clinics to be co-locating not undecided Advocacy Centre for Tenants Ontario Advocacy Centre for Elderly Community Legal Education Ontario

Canadian Environmental Law Association Injured Workers Consultants HIV & AIDS Legal Clinic (Ontario) Toronto Workers’ H&S Legal Clinic Income Security Advocacy Centre ARCH Disability Law Centre

Industrial Accident Victims Group of Ontario Justice for Children and Youth

Landlords Self-Help Centre

9

in the press – 10

In The Globe and Mail : “EMPLOYMENT Young workers listening to union pitch / Rate of unionization across Canada is up slightly due to growing number of part-time members.” 11

In The New York Times : “Homeowners Try to Assess Risks From Chemical in

Floors.” 12 13 Formaldehyde CAS 50-00-0

Also in The New York Times : “Challenge to Lumber Liquidators’ [formaldehyde]

Tests [in wood flooring] / A [California] suit questions the credentials of labs testing for carcinogen. ” 14 15 In The New York Times : “Dangerous Trains, Aging Rails / Every day tons of oil

moves over poorly regulated bridges [in USA],” 16

Also in The New York Times : “Safety Regulations Issued for [US] Trains Carrying Oil.” 17

Also in The New York Times : “How to best Strengthen Chemical Regulations.” 18

In THE NEW YORKER : “LETTER FROM PERU / TEARS OF THE SUN / The

gold rush at the top of the world.”19 “… mercury poisoning …”20 “… The mine kills both

quickly and slowly. …”21 22 23 24 25 26 27

TORONTO WORKERS’ HEALTH & SAFETY LEGAL CLINIC

April 2015. Vol. 23 No.2. 10

Also in THE NEW YORKER : “DEPT. OF TRANSPORTATION / THE

ENGINEER’S LAMENT / Two ways of thinking about automotive safety.”28 29

http://www.workers-safety.ca/ 30

https://www.facebook.com/pages/Toronto-Workers-Health-and-

Safety-Legal-Clinic/226662537458898?fref=ts

https://twitter.com/TWHSLC 2015 03 24 09 05. tweets history.csv

data added to http://www.workers-safety.ca/ 31 documenting Clinic’s law reform advocacy, etc.

http://www.workers-safety.ca/ Home page Main Menu Publications Downloads 2015 04 28. []1[] U of T Chemical transfer design .pdf 2015 04 28. []2[] U of T Chemical transfer design .pdf 2015 04 15. []1[] U of T fermentation reactor .pdf 2015 04 15. []2[] U of T fermentation reactor .pdf 2015 04 10. []1[] U of T Fume Hood -- Glove Panel.pdf 2015 04 10. []2[] U of T Fume Hood -- Glove Panel.pdf 2015 03 22. U of T.pdf 2015 03 22. FinalReportH&S1 HELMET IMPACT FORCES.pdf 2015 03 24. U of T.pdf 2015 03 24. POSTER HELMET IMPACT FORCES.pdf 2015 03 24. Project description.pdf 2015 03 24 09 05. tweets history.csv 2015 03 23. U of T.pdf 2015 03 23. Floorplanner - APS490Y Showcase.pdf 2015 03 23. APS490 - Final Deliverable - H&S2 - 2015.pdf 2015 03 23. Showcase_H&S2_APS490.pdf POSTER Air Contaminant Measuring. 2015 03 23. VICTORIA UNIVERSITY CAMPUS MAP.pdf 2015 03 20 02 52. Home Page.pdf 2015 03 20 02 53. Publications.pdf 2015 2014 course -- H&S law & policy & physics & chemistry 2015 03 15. course outline -- H&S law & policy & physics & chemistry l .pdf 2015 03 12. []1[] R v New Mex information.pdf 2015 03 12. []2[] R v New Mex information.PDF 2015 02 09. e-mail co-location.pdf 2015 02 09. 2015 02 06_SCLCCO_OFFER TO LEASE_70 University Avenue.pdf 2015 02 09. 2015 02 06_SCLCCO_Offer to Lease_155 University.pdf 2015 02 09. SCLCCO_Co-operative ByLaws_v4_2015_02_06.pdf 2015 02 09. SCLCCO_Co-operative agreement_v4_2015_02_06.pdf 2015 02 09. SLCM_Case for Investment_v4.1.pdf 2015 02 11. co-location Board minutes.pdf 2015 02 13. co-location e-mail.pdf

TORONTO WORKERS’ HEALTH & SAFETY LEGAL CLINIC

April 2015. Vol. 23 No.2. 11

NOTES: 32

1Clinic’s participation with University of

Toronto Faculty of Applied Science and

Engineering:

• Multidisciplinary Capstone Design Course.

• Helmet impact forces

• Air contaminant measurement

• Engineering Strategies & Practice Course.

• Fermentation reactor

• Fume hood & glove panel. 2 newsletter -- 2012 09 Vol.20 No.5 page 6. 3 newsletter -- 2012 08. Vol.20 No.4 pages 14. 4 Vol. 20 No.3, mid- July 2012, pages 4. 5 Vol. 20 No.2, July 2012, pages 5 & 6. 6 Vol. 20 No.1, April 2012, pages 14, “case & polemic — [R v Filsinger’s Organic Foods] — confined space & asphyxiating gas —” 7 newsletter -- 2011 10. Vol.19 No.2 page 12. 8 Michael Torrice & Jyllian Kemsley, “DEAL REACHED OVER LAB DEATH / PROSECUTION : UCLA professor Patrick Harran to complete community service, pay fine,” C&EN, 30 June 2014, page 4. 9 See in this newsletter 2013 10. Vol21 No5 page 11. 10 1,1-dimethylethyl Lithium (CH3)3-C-Li CAS 594-19-4 64.055 g/mol. 11 http://en.wikipedia.org/wiki/tert-butyllithium 12 newsletter 2014 07. Vol.22 No.3.pdf page 14.

1Bastien v Pro-Hairlines - OLRB – case report. 2 Opinions expressed here are the writer’s, who is the Clinic’s Lawyer-Director. She may be contacted: VannucL@lao.on.ca 1 Brenda Bastien v. 817775 Ontario Limited (Pro-Hairlines). Ontario Labour Relations Board. 2014 CanLii 65582. 2 re Proctor and Whitler Industries Limited [1992] OLRB Rep, July 875. 3 Wallace v. United Grain Growers Limited [3 SCR 701]. 4 Honda Canada Inc. v. Keays [2008 2 SCR 362]; 2008 SCC 39.

1 Clinic not to co-locate. 2 2014 07 Vol.22 No.3 pages 12 & 13. 3 2015 02 09. e-mail co-location.pdf 2015 02 09. 2015 02 06_SCLCCO_OFFER TO LEASE_70 University Avenue.pdf 2015 02 09. 2015 02 06_SCLCCO_Offer to Lease_155 University.pdf 2015 02 09. SCLCCO_Co-operative ByLaws_v4_2015_02_06.pdf 2015 02 09. SCLCCO_Co-operative agreement_v4_2015_02_06.pdf 2015 02 09. SLCM_Case for Investment_v4.1.pdf 4 “LAO to Speciality Clinic Co-Op (Feb 6'15 draft)” is

not available here. It is a “DRAFT” of a letter that would be addressed to each would-be “Participating Clinic,” from a senior LAO executive, 06 February 2015. It is not available here because it is labelled

“PRIVATE & CONFIDENTIAL.” “PRIVATE” to whom, and why “CONFIDENTIAL” are not explained. Apparently, no publishable policy statement from LAO is available on the question of guaranteeing relief from rent liability of remaining Clinics of failed co-locators. 5 2015 02 11. co-location Board minutes.pdf 2015 02 13. co-location e-mail.pdf 6 See note above re “DRAFT.” 7 See note above re “DRAFT.” 8 2015 02 13. co-location e-mail.pdf 9http://www.legalaid.on.ca/en/contact/contact.asp?type=scl

10in the press –

11Young workers unionization. Thandiwe

Vela, “EMPLOYMENT Young workers listening to union pitch / Rate of unionization across Canada is up slightly due to growing number of part-time members,” The Globe and Mail, REPORT ON BUSINESS, Toronto, 05 August 2013, page B3.

12 formaldehyde. http://en.wikipedia.org/wiki/Formaldehyde 13 Arron Kessler & Rachel Abrams, “Homeowners Try to Assess Risks From Chemical in Floors,” The New

York Times, 11 March 2015, page B9.

14Formaldehyde in wood flooring. Rachel Abrams, “Challenge to Lumber Liquidators’

[formaldehyde] Tests [in wood flooring] / A [California] suit questions the credentials of labs

testing for carcinogen,” The New York Times, 18 April2015, page B3. 15 See also Rachel Abrams, “A Quarterly Loss at Lumber Liquidators After Consumer Flooring Complaints / Falling Share Prices on a substantial wave of bad news,” The New York Times, 30 April 2015, page B2.

16 Rail safery. Marcus Stern, “Dangerous

Trains, Aging Rails / Every day tons of oil moves over poorly regulated bridges [in USA],” The New York Times, OP-ED, 12 March 2015, page A25.

17 Oil-carrying trains. Jad Mouawad,

“Safety Regulations Issued for [US] Trains Carrying Oil,” The New York Times, 18 April2015, page B3.

18 Chemical regulations. Editorial, “How

to best Strengthen Chemical Regulations,” The New York Times, 18 March 2015, page A22.

19 Gold mining hazards. William Finnegan,

“LETTER FROM PERU / TEARS OF THE SUN / The gold rush at the top of the world,” THE NEW

YORKER, 20 April 2015, pages 5465. 20 Page 56. 21 Page 60. 22 http://www.newyorker.com/magazine/letter-from-peru

23http://www.newyorker.com/business/currency/whos-to-blame-for-perus-gold-mining-troubles 24 http://en.wikipedia.org/wiki/La_Rinconada,_Peru 25 newsletter -- 2011 10. Vol.19 No.2 page 13. 26 Norimitsu Onishi, “In a Rush to Find Gold, Indonesians Defy Dangers,” The New York Times, 08 July 2011, pages A4 & A11. 27http://www.nytimes.com/2011/07/08/world/asia/08indo.html?ref=norimitsuonishi http://www.nytimes.com/

28 Automotive safety. Malcolm Gladwell,

“DEPT. OF TRANSPORTATION / THE ENGINEER’S LAMENT / Two ways of thinking about

automotive safety, ”THE NEW YORKER, 04 May 2015, pages 4655. 29 See also Christopher Jensen, “Ford Recalls Nearly 600,

000 Vehicvles Over Steering and Stalling Problems,” The New York Times, 30 April 2015, page B2.

30 facebook twitter.

31data added to http://www.workers-safety.ca/

32

for future issues: ●Maquila. www.maquilasolidarity.org

●Canadian federal OH&S

inspections.* ●US Chemical Safety & Hazard

Investigation Board.

●topic revisited—Ministry of

Labour library. **

●book review: Occupational Health & Safety–Theory, Strategy & Industry Practice, 2nd Edition. ***

* David Macdonald, Success is No Accident / Declining

Workplace Safety Among Federal Jurisdiction Employers, CANADIAN CENTRE for POLICY ALTERNATIVES, Ottawa K1P 5E7; 27 April 2010; ISBN 978-1-897569-88-7 http://www.policyalternatives.ca/ http://www.policyalternatives.ca/publications/reports/success%E2%80%89%E2%80%89no%E2%80%89accident http://www.policyalternatives.ca/sites/default/files/uploads/publications/reports/docs/Success%20Is%20No%20Accident_0.pdf “Report blasts federal workplace inspection,” Canadian Occupational Health & Safety News, 03 May 2010, Vol.33, No.17,

pages 1 & 2.

**See in this newsletter Vol. 15 No.4.

***LexisNexis http://www.lexisnexis.ca/bookstore/bookinfo.php?pid=2089

TORONTO WORKERS’ HEALTH & SAFETY LEGAL CLINIC

April 2015. Vol. 23 No.2. 12

Published by: Toronto Workers’ Health & Safety

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