Canadian Safety Reporter

October 2018

Focuses on occupational health and safety issues at a strategic level. Designed for employers, HR managers and OHS professionals, it features news, case studies on best practices and practical tips to ensure the safest possible working environment.

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2 Canadian HR Reporter, a Thomson Reuters business 2018 CSR | October 2018 | News An inspection of the training tower revealed it to be infested with pigeons, rats, owls and weasels after months of disuse. It was considered to be "in an unsanitary condition," so several firefighters — including Cof- fin — were assigned to clean the tower before it could be used as a training facility. Coffin and the other fire- fighters cleaned out the tower by drilling holes in it and then flushing it out with water from fire hoses. The water and debris washed out through the tower's doors and the holes. Following the cleaning, the tower was put to use in training exercises. More than one year later, on June 6, 2011, Coffin was part of a training exercise at a different location that involved extin- guishing a fire in a vehicle. Soon after the exercise, Coffin began experiencing problems seeing out of his left eye. The condition worsened and Coffin went to see several ophthalmologists. Exposed to infection during cleaning assignment After several examinations, Cof- fin was diagnosed with histo- plasmosis, an infectious disease of the eye. There was no treat- ment that could halt the loss of vision in Coffin's left eye or pre- vent it from happening in his right eye as well if it spread. Coffin filed a Report of Ac- cident or Occupational Dis- ease with the New Brunswick Workplace Health, Safety and Compensation Commission (WHSC) that indicated his vi- sion problems were the result of the vehicle fire training exercise in June 2011. However, his claim for benefits was denied on the basis that the medical evidence didn't link his eye condition with his employment. Coffin ap- pealed and the appeals tribunal approved his claim for benefits on March 12, 2014, after he pro- vided medical reports that sug- gested the source of the eye in- fection may have been in pigeon droppings that were in the train- ing tower Coffin helped clean in 2010. In February 2015, Coffin sued the city, the fire department safe- ty committee, and various em- ployees of the city for aggravated damages and loss of future earn- ings, claiming he had wanted to refuse the cleaning work be- cause it wasn't part of his job du- ties, but he had relented and did the work. The city applied to the WHSC to determine if his legal action was prohibited because compensation for his condition was covered by the province's workers' compensation regime. The WHSC found that Cof- fin's action couldn't proceed be- cause Coffin and the individuals involved were in the course of their employment when Cof- fin contracted the infection and were bound by the New Bruns- wick Workers' Compensation Act, which prohibited legal ac- tion for such matters. The ap- peals tribunal agreed with the decision and dismissed Cof- fin's appeal, which Coffin then brought to the New Brunswick Court of Appeal. Coffin claimed that bad faith on the part of the employer — he claimed his job was threatened if he didn't carry out the cleaning work and the fire chief was aware of the dan- ger posed by the unsanitary conditions — wasn't covered by workers' compensation legisla- tion and he had tried to refuse the unsafe work. Bad-faith conduct included in workers' compensation The Court of Appeal noted that B.C.'s Workers' Compensation Act specifically prohibited legal action outside of its umbrella for any accidents that occurred in the course of employment and bad faith conduct was included in the definition of "accident," which included "wilful and in- tentional acts." "The significance of the inclu- sion of 'wilful and intentional' acts cannot be disregarded or explained away," the Court of Appeal said. "Had the legisla- tive assembly intended to limit the application of the immunity from suit provisions to acts of good faith, it could easily have done so." The court also found the fire chief believed the tower was safe to clean and there was no evi- dence to the contrary, so there was no bad faith on the chief 's part, even if it could have been a basis for a legal action outside of the workers' compensation regime. As for Coffin's claim that he wanted to refuse what he be- lieved to be unsafe work, the Court of Appeal found he lacked credibility. The court accepted that Coffin expressed concern over cleaning the tower, but he didn't refuse to do the work. He may have done the work under protest, but that didn't mean he couldn't have exercised "his free will." Even if Coffin felt his job would be threatened if he didn't carry out the task assigned to him, the province's Occupa- tional Health and Safety Act provided him with protection from reprisals and a clear right to refuse the work. The evidence showed that neither Coffin nor the other firefighters assigned to clean the training tower felt the risk was significant enough to elevate their concerns and both the WHSC and the appeals tribunal had found this, said the Court of Appeal. "New Brunswick has seen fit to provide protection to an employee who, on reasonable grounds, refuses to do any work they believe 'is likely to endanger his health or safety,'" the court said. "Mr. Coffin may well have been concerned, complained, and protested, but the facts clearly establish he did not refuse to carry out the task assigned." Coffin's appeal for damages for his eye condition and loss of future earnings was dismissed. For more information see: • Coffin v. Marin et al., 2018 CarswellNB 307 (N.B. C.A.). Firefighter < pg. 1 Infection in eye came to light one year after exposure Credit: Shutterstock/N-studio

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