The Royal Ottawa Health Care Group was recently fined $75,000 for violating the Occupational Health and Safety Act (“OHSA“).
This decision stems from a series of events at Brockville Mental Health Centre. Starting in August 2014, multiple nurses were assaulted in various ways by patients over the span of a couple of months. Finally, in October 2014 a nurse was stabbed by a patient with a pen. The nurse, who had been escorting the patient to the bathroom when the patient lashed out, sustained serious injuries and the Ministry of Labour was notified of the incident.
The Royal Ottawa Health Care Group, which operates Brockville, was found guilty of failing to reassess the risks of workplace violence and to ensure policies and programs continue to protect workers (section 32.0.3(4) of the OHSA).
Because non-compliance with the OHSA is a provincial offence, the Ontario Court of Justice imposed a fine of $75,000. The court also added a 25% victim surcharge that goes into a provincial government fund to assist victims of crime.
You can read the Court Bulletin about this case here.
If you are wondering what you can do to make sure you don’t end up in the shoes of the Royal Ottawa Health Care Group, here is the takeaway:
Don’t simply provide violence policies / procedures and put them on the shelf, never to be seen again. Dust those policies off at least once a year and even more often when the need arises, as it did in this case.
We also advise involving your health and safety representative or joint health and safety committee in the process; ask them to review the policy and hold a staff meeting about ideas on how to improve the violence policies / procedures, if necessary. More involvement by workers in drafting and revising these types of policies means more compliance and adherence to those policies.
The same principles apply to your other policies, such as harassment, health and safety, sexual harassment, etc. For more blogs about your obligations under the OHSA, click here.
Please note that the information provided herein should not be considered legal advice and is provided for informational and educational purposes only. If you need advice about your obligations as an employer under the OHSA, or need help coming up with and implementing a new office policy manual, please contact me (Ljubica Durlovska), Jonathan Borrelli, David Mayzel or Michael Carabash. We are your legal dental team.
As promised, here is your first of five weekly blogs to help you prepare for the Goodlife Toronto Marathon.
Before we begin, please note these three very important points:
1) Get your doctor / physician’s approval before attempting the race or any related training.
2) Take it easy and listen to your body – if you feel pain, dizziness or fatigue, stop exercising and consult a doctor.
3) Any advice I give you in these blogs does not supplement the advice that a doctor, coach or certified personal trainer will give you, so listen to them first!
Now that we have gotten that out of the way, welcome to Week #1 of your training! My tips are based on my 25 years as a runner, which includes the instruction of running clinics.
1) Once you obtain approval from your doctor, pick an event that you can realistically prepare for. All beginners should only attempt either the 5km run or 5km walk.
2) You need a relatively new pair of running shoes, no more than a few months old or lightly used.
3) When buying shoes, be sure to know what type of shoe best suits you — neutral (most people, and most running shoes on the market, are this type), stability (for people whose feet roll inward or “pronate” moderately) or motion control (for people whose feet pronate severely). Specialty stores like Running Free, The Runners Shop and the Running Room have employees that can help assess your foot type, but you can do it yourself using the “Wet Foot test” here:
4) Avoid the “barefoot” minimalist running shoes. In my opinion, these shoes are not ideal for most runners in general, particularly beginners.
5) Have exercise clothing that is made of lighter polyester material intended to stay “dry” during workouts e.g. Nike Dri Fit, Cool Max, Adidas Climacool, etc. The shorts should be ones that help prevent chaffing. Avoid running in cotton, especially in warm weather.
6) You need a basic digital watch with a stop watch option. One with a count-down timer and/or a heart rate monitor is a big bonus. Some people run with their Iphones and Ipods, I personally do not recommend this for beginners as they are a distraction and potential safety hazard.
7) Train outdoors as much as possible – an indoor track or treadmill can be used for the odd workout in case of inclement weather.
8) As a safety pre-caution, map out your run or walk training routes ahead of time and keep your family informed of your training routes.
9) Avoid training on back-to-back days. One rest day in between training sessions is ideal.
10) Core and flexibility exercises (such as yoga) are a great complement to your training.
Week 1 – 5km Run
1) Your very first workout should be a continuous walk for 45 minutes. What is the point of this? The average person can easily cover more than 3km during a 45 minute walk.
2) Take the next day off, and then begin your first running workout. Run 1 minute, walk 2 minutes, and repeat 10 times.
3) Take another day off, and then do your second running workout. Run 1 minute, walk 2 minutes, and repeat 10 times. Pick up the pace slightly when you walk.
4) When running, pace yourself evenly at roughly 60-70% effort (with 100% being a sprint) so that you are able to talk clearly while running. The walk breaks should be a continuous walk – keep moving as much as possible.
5) Keep an upright posture and run normally – do not exaggerate your strides or attempt to sprint.
6) Stretch immediately after each workout. You can find many running specific stretch routines on YouTube or other websites.
Week 1 – 5km Walk
1) Dedicate approximately one hour for each training session.
2) Warm up with a light walk for a few minutes. Walk a moderate to brisk pace for 10 minutes, then walk slowly for 1 minute. Repeat 3 times.
3) Take a day off.
4) Your next two workouts will be the same as the first, except add an additional 5 minutes of brisk walking at the end.
5) Be sure to pace yourself – walking workouts are not as easy as they look. Use your first set as a warm-up and build up to a brisk pace. If you feel any pain in your shins, back or leg muscles, slow your pace.
6) Do not try to imitate Olympic race walkers – your walk should be a normal power walk with upright posture and regular arm and leg movement.
7) Stretching is recommended after each training session.
10km, Half-Marathon and Full Marathon
Participation in any of these distances should be for experienced runners only. For those who would enter these events today, here is a break down of my recommended minimum fitness requirements for each distance:
10km: You have a) completed a 6km run or longer, and b) are able to run 20 minutes without walking or stopping.
Half Marathon: You have a) completed a 16km run or longer, and b) are able to run 5km without walking or stopping.
Marathon: You have a) completed at least one 30km practice run, and b) can run 10km at a tempo pace (70-80% effort) without walking or stopping.
If you do not meet any of these minimum requirements, consider switching to a shorter distance for May 1st.
For those who are attempting these distances, I assume you have already been training for some time now and are following an advanced training program. Therefore, I will only provide tips to complement your current training in future blogs.
Stay tuned for more training tips!
I’m talking about contra proferentem – or in other words, “interpretation against the draftsman.” Read more
Run with DMC will begin in a big way, as DMC LLP will have our very own tent near the finishing area of the Goodlife Toronto Marathon for our first event.
So what is so special about having our own tent at the finish line, you might ask? The short answer is, it is a rare luxury in a race like the Goodlife Toronto Marathon, one of the largest road races in Southern Ontario. With thousands of registered participants in this event each year, the finish line area can get very crowded, very quickly. Our tent will provide you with a private meeting area, an escape from the crowd and our own set of refreshments.
In most large running events, such tents are normally reserved for “VIP” guests such as celebrities, elite athletes and / or sponsors. At the Goodlife Toronto Marathon event, all those who join us will get this “VIP” treatment.
I invite you to join us for this unique experience. Here is what you need to know about participating:
Why is DMC LLP doing this?
Because we enjoy running events – and we want you to join us for this one!
What date and time is the Goodlife Toronto Marathon?
Sunday, May 1, 2016, with the first race starting at 7:30am.
Where will our tent be located?
Near the finish line, which will be located between Lakeshore Blvd. and Remembrance Drive in front of the old Ontario Place.
How long are the races?
You have a choice of a 5km run, 5km walk, 10km run, half marathon (21.1km) and full marathon (42.2km).
I have never ran before. Will I be able to run in this event? And which event should I choose?
The only person who should judge whether you can run or not is your doctor or physician, so please get clearance from your doctor or physician before training. Once you get the go-ahead from your doctor, I recommend either the 5km run or 5km walk. For most people, a 5km walk is about an hour of walking at a casual pace. Completing a 5km run is also feasible if you beginning training within the next week (see future blogs for training tips). I strongly discourage beginners from entering the 10km, half marathon or full marathon distances – these should only be attempted by experienced runners.
Can I bring my family and children?
Yes, you can – bring them along to cheer you on, or better yet, have them register as participants! For our private tent, just let us know the names of your family members and we will add them to our guest list. In terms of the race itself, please note that only registered participants are allowed to 1) run or walk on the course, and 2) access the enclosed finishing chute area at the finish line.
Can I walk part or all of the race?
If you wish to walk an entire distance, register for the 5km walk. For the other races, you may take walking breaks on the course, but walking the entire course is not practical as there are time limits for completion.
I am a slow runner. Can I enter the 5km walk and run part or all of it?
Please do not do this, as it is not fair to those who are treating this as a walking-only race. If you plan to do any running, enter the 5km run instead.
How do I enter? What are the registration fees? What are the rules? Do I need to sign a waiver? Where do I park?
Answers to all the above questions can be found at: www.torontomarathon.com
What rewards do you get from participating in this event?
Material items include a finisher’s medal, t-shirt, a “goodie bag” and free samples and information at the marathon expo on race weekend. Other rewards include improved fitness, assisting charitable causes, networking and the “race experience”.
Please e-mail Michael Carabash at email@example.com if you are interested in joining us on May 1st!
You may already know that the Ontario Health and Safety Act (the “OHSA“) makes it mandatory that every Ontario workplace, including all dental offices, have policies and procedures in place regarding workplace violence and harassment [sections 32.0.2(1) and 32.0.6(1) respectively]. But did you know that these policies must contain, among other things, definitive procedures for dealing with workplace violence [section 32.0.2(2)] and harassment [section 32.0.6(2)]? One of these procedural requirements is a system / structure for investigating complaints of violence and harassment.
For most dentist employers, the investigative process is both new and daunting. If you are in a situation where you may have to undertake an investigation you may have questions ranging from “who should investigate” to “what questions should be asked”. Having guidance on how to proceed with a workplace investigation may be invaluable to you – so that is what I will try to do for you here, including providing you with workplace investigation DOs and DON’Ts.
Complaints that may trigger the investigative process can come from any number of sources: employees, patients, suppliers, anonymous complaints, etc. Additionally, the duty to investigate may be triggered if you, the employer, become aware of workplace violence, harassment or other serious breach of office policies through means other than a complaint, such as social media, observing an incident or overhearing others’ comments.
When receiving a complaint you should gather as much information as possible about the incident in order to make appropriate decisions about whether to investigate and to what extent. If possible, have the complainant put their grievance in writing or alternatively, take very good notes while the complaint is being described to you and have the complainant sign a copy of those notes.
Once the complaint is obtained, remind the complainant of their duty to keep matters confidential and advise them that their interest will be protected as much as possible (for example, any retaliatory behaviour towards the complainant on the part of the respondent will not be tolerated).
Whether the duty to investigate is triggered depends on the seriousness of the complaint and the specific facts of each case. However, I recommend you take every complaint seriouly because not taking a complaint seriously may land you in hot water.
- accept written, verbal, anonymous or any other complaints
- take complaints seriously
- consider whether the duty to investigate is triggered
- remind complainant about their duty of confidentiality
- be sensitive towards the complainant’s emotional state as it may have taken a lot of courage to come forward with the complaint
- dismiss complaints off hand because you don’t think they have merit
- question the complainant’s credibility before you’ve hand a chance to investigate
- advise the complainant to “take it like a man” or to “play nice with others” – this may only serve to isolate them more and make them feel poorly about coming to you with their complaint
The answer to whether you should take any immediate action even before the investigation begins depends on several things:
To the extent that the complainant or others may be in danger (whether perceived or real), it may be prudent to suspend the respondent with pay during the investigation. Beware of putting the complainant or respondents on suspension without pay because that could be construed as an imposition of disciplinary action before a determination of guilt has been made.
Ask yourself if there are any other precautions you could / should take in order to prevent further harm or deterioration in the relationship of the complainant and the respondent. For example, if you have multiple dental practices, will one of the parties be willing to work at the other practice for the duration of the investigation? Can their shifts be split up in such a way as to avoid them being in the same place at the same time?
Often times, complainants take stress leave either immediately before or soon after they lodge the complaint – in such a situation, you must allow the complainant time to recover and when they are ready, to participate in the investigative process. Failure of a complainant to participate because they are not able to (physically or mentally) is not cause for termination or other sanctions, and should not result in the investigator drawing a negative inference because of the absence.
- consider what issues / policies are in question and how they may impact the individuals or the workplace
- ask if anyone is in danger (immediate or otherwise)
- suspend staff without pay prior to investigating the complaint
- punish or draw negative inferences from a complainant’s going on sick leave before / after lodging the complaint
When preparing for the investigative process, there are several issues you must address:
Many dentists believe that an investigation conducted by the dentist themselves or the dentist in conjunction with the office manager is always the best (and it is certainly the most cost effective). However, depending on the facts of the complaint, the issues at hand, and the level of involvement of the dentist and the office manager, internal investigators are not always the best choice.
Possible choices of investigator include: the dentist, the office manager, other management-level employees, designated investigation team, external investigator (non-legal), external investigator (legal), etc.
Your choice should be made having consideration towards the following:
It should also be noted that two investigators may be better than one. Two investigators decreases the perception of bias while ensuring that there is always a witness during interviews and other fact-gathering processes.
Not all investigations should be treated / conducted in the same manner. Investigations that involve serious and criminal or quasi-criminal allegations such as theft, fraud, serious violence, embezzlement etc. will require a harder approach, whereas allegations of harassment may call for a “softer” approach as there may be subtle relationship and other nuances between co-workers which you may have to be sensitive about.
In order to be effective, an investigator (whether that is you or anyone else) must:
It is imperative that the respondent be given either a copy of the written complaint or sufficient particulars of the complaint in order to be able to respond. Failure to do so may result in an unfair investigation and a lack of procedural fairness, which could land you in hot water! In the case of C.R. v Schneider National Carriers, Inc., 2006 CanLII 532 (ON SC) the justice found that the complainant, C.R., having been summoned to a meeting without being provided with the particular facts of the complaint and merely asked to respond to general topics, was denied a careful and thorough investigation resulting in Schneider being found to have terminated him unjustly and having to pay termination costs of about $16,000.
Where a staff member makes a complaint but asks that they remain anonymous, you are certainly put in a tough situation. However, your response should be that you will do your best not to reveal their identity, but you may have to divulge information that would point to the complainant, so you cannot (and should not) promise anonymity.
In order to ensure that rumours and drama do not infect your office, you must stress the importance of confidentiality to the respondent and anyone else who is given notice and summoned to an interview as a witness in the investigative process. Due to the sensitive nature of workplace investigations, it should be stressed to the parties involved that failure to keep the matters discussed confidential may result in discipline up to and including termination.
- consider your options about who should investigate and how many investigators should be charged with the task
- ensure the investigator possesses all the attributes of an effective investigator
- conduct the investigation in the most appropriate manner
- provide the respondent with enough information to respond
- advise parties of their obligation to maintain confidentiality
- assume you, as the dentist employer, are the best person to conduct a workplace investigation
- promise complainants or other parties anonymity
When preparing your investigation plan, ensure that you follow all of your office policies / procedures, including conducting the investigation in a timely manner. Doing so will go a long way to structuring your investigation fairly and eliminating the perception of bias.
When conducting interviews, make sure you speak with the appropriate individuals, including the complainant, the respondent, witnesses and anyone else who may have knowledge of the facts leading to the complaint. Before interviewing any witnesses or other material persons, assure them that they will be protected from retaliation regarding their evidence.
Gather all relevant documentation, including e-mails, notes, written statements, accounting documents, etc. Also, be sure to make excellent notes on the steps taken during the investigation as well as the oral evidence obtained during interviews.
Parties called on to be interviewed may in some cases request representation (whether that be a support person or a lawyer). You are by no means obligated to allow a representative, but you should be aware that disallowing representation may drive a wedge between you and the interviewee, so it may be more effective to allow the representative but ensure that they are only there for support and all answers are coming directly from the party being interviewed.
During the investigation and fact-gathering process, maintaining trust and remaining neutral is very important. Parties will only give you information if they believe they can trust you will be impartial in making your findings.
- investigate the complaint in a timely manner
- conduct interviews with the complainant, respondent and any witnesses or other people who may have knowledge of the facts
- allow parties to bring a representative to the interview, so long as they are informed of the limited role of the representative
- remain neutral and impartial
- sidestep the office policy on how investigations will be conducted – even if doing so will save you time / money
- forget to tell interviewees that they will be protected from retaliation regarding the evidence they give
Once you’ve gathered all the evidence and done your interviews, it is time to weigh the evidence and make a decision. Reviewing the office policy on workplace violence and harassment may be helpful again at this juncture so you can decide, based on the evidence, if a violation of the policies has occurred.
Where oral / written evidence from any of the parties is contradictory, you may have to make an assessment about each person’s credibility – who was more believable and why.
When assessing the evidence, you should understand that the standard of proof you must apply is the civil one: “balance of probabilities”. For example, ask yourself the following question after gathering the evidence: “on the balance of probabilities, did the hygienist make unsolicited and unwarranted comments to the receptionist such that those comments constituted harassment according to our office policy?” If the answer is YES, based on the facts and statements gathered, then that is a signal that you should take some disciplinary measures towards the hygienist.
It should be noted however that in instances of very serious allegations (sexual harassment, theft, fraud, etc.), due to the implications of a negative finding after an investigation, there may be a need to be much more thorough and the standard of proof may need to be raised in order to ensure the respondent is treated fairly.
Once a decision is made, you have the hard task of deciding what, if any, disciplinary actions you will take against any of the parties. The only advice I can give you here is that the discipline should be proportionate to the crime. Whenever you are inclined to dole out discipline, ask yourself “can the same effect be achieved or the same message be sent to the offender or remainder of the staff by giving them a different / less harsh punishment?” If the answer is yes, then you should reassess the punishment.
- review the office policy manual one last time
- weigh evidence impartially and apply the correct standard of proof
- dole out discipline which is proportionate to the infraction
- make a decision based on your feelings or what’s most economical for the practice
- allow anything other than the facts to sway your decision
Once a decision has been made, it is prudent to prepare a final report to place in the staff files (even if it is a short or bullet point memo).
It is not necessary to provide the final report to the complainant or the respondent, if it will only serve to antagonize the parties, but it is a good idea to advise each of the parties of the following, in writing:
Where serious disciplinary action may be taken against the respondent, consider giving him/her an opportunity to respond to the final written decision of the investigator.
- draft a written memo about the investigation and the outcome
- provide the parties with a written statement about the outcome of the investigation
- provide the respondent with one last chance to respond to the findings
- assume the parties will know the outcome of the investigation
- breach confidentiality when advising parties about the outcome of the investigation
Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice, contact me (Ljubica Durlovska), David Mayzel or Michael Carabash. We are your legal dental team.
David Mayzel is your legal risk manager. He is a trained courtroom lawyer and has spent many years resolving disputes both in and out of court. He knows how to prepare documents and execute transactions in a way that avoids or mitigates legal risks. He can be reached at 416.528.5280. or firstname.lastname@example.org.
Michael Carabash is your business law adviser. He is an entrepreneur at heart who helps you see the big legal picture. He drafts clear and effective agreements that protect your rights while promoting your interests. He can be reached at 647.680.9530. or email@example.com.
Ljubica Durlovska is your transition lawyer. She helps you with staff and associates, maintaining your corporation, and other business matters. She can be reached at 416.443.9280, extension 206 or firstname.lastname@example.org.
Jonathan Borrelli is your employment lawyer. He helps you with staff and associates matters, including hirings, terminations, switching staff to written contracts and resolving disputes. He can be reached at 416.443.9280, extension 204 or email@example.com.
Benjamin Kong is an experienced business law clerk. He assists David and Michael with corporate matters and purchase / sale transactions. He can be reached at 416.443.9280, extension 207 or firstname.lastname@example.org.
Julie Whitehouse is an experienced business law clerk. She assists David and Michael with corporate matters and purchase / sale transactions. She can be reached at 416.443.9280, extension 203 or email@example.com.
David, Michael, Ljubica, Jonathan, Ben and Julie are a truly dynamic team. Their diverse knowledge, skills, and experiences will help you get the best deal possible while promoting your interests and protecting your rights. You can read dentist testimonials here.