An increasing enterprise risk for corporations, both large and small, public and private, is the prospect of health and safety liability. Governments across Canada are increasingly turning to prosecutions as an important means of enforcing health and safety standards. Fines have risen dramatically, with trial penalties as high as $900,000.
There are at least three typical legislative provisions in health and safety statutes across Canada that can cause a risk of liability for employers: the training of supervisors, the instruction and training of workers, and obligations under general duty clauses.
Training of supervisors
The first obligation on an employer that may be a source of legal liability is the failure to have a properly trained and competent supervisor. Ontario legislation, for example, requires that every supervisor
“(a) is qualified because of knowledge, training and experience to organize the work and its performance;
“(b) is familiar with this act and the regulations that apply to the work; and
“(c) has knowledge of any potential or actual danger to health or safety in the workplace.”
A case under this provision resulted in Shell Canada Products Ltd. being charged with four offences under the Occupational Health and Safety Act (OHSA), relating to a fire and related injuries and burns to an employee of Shell in the vicinity of the lab building at the Sarnia Manufacturing Centre.
The accident occurred when a lab analyst employed by Shell went outside the lab building to exchange an oxygen cylinder. This task was routinely performed when the pressure became low on the lab testing equipment. When the analyst opened the valves, a fire began in the manifold piping from the cylinder and the injuries occurred.
The lab building at Shell’s facility had a piping system outside the building to facilitate helium, hydrogen, and other gases that are used in the testing of refinery products in the lab.
Shell has a procedure that normally provided for engineering input into plant changes prior to the actual commencement of the work. In the case of the installation of the piping system, the procedure of getting engineering input did not take place.
At trial, the court made a finding of fact that the accident would have been avoided had the procedure at the Sarnia Manufacturing Centre been followed. Further, in an agreed statement of fact, Shell admitted that the piping system had not been cleaned or tested with any inert gas by maintenance workers or anyone after installation and prior to use.
The court held that the company was lacking in the areas of instruction and supervision. There was a breakdown in the understanding of what was proper procedure from operations management and focal points through to the maintenance employees who installed the system. As a result, Shell was convicted of the charge relating to the requirement of have a supervisor who was a competent person, under the OHSA. Shell was fined a total of $175,000, together with a 20 per cent victim surcharge.
Training and instruction of workers
The second area of liability is providing proper training and instruction of workers. Ontario’s Occupational Health and Safety Act, section 25(2)(a) states that “...an employer shall provide information, instruction and supervision to worker to protect the health and safety of the worker.” Under that provision, St. Mary’s Corp. was charged with failing to provide information, instructions and supervision for the protection of a worker when a conveyor belt was shut down prior to undergoing repairs.
A worker, attempting to repair a conveyor belt, was injured. The company provided no instructions on how to repair the conveyor belt in this situation. Although a booklet existed regarding safe work practice no one evaluated workers to see if they were following the instructions. The defendant company did not present any meaningful due diligence defense and they were blind to any danger or harm to by not ensuring they met their obligations under the OHSA. In the result the company was convicted.
In the third area of liability, a recent court decision was a prosecution under the general duty clause that requires an employer to take “...every precaution reasonable in the circumstances for the protection of a worker.”
R. v. Cooper’s Crane Rental
, a worker fell to his death because he was not provided with adequate safety equipment to prevent his fall from 13 feet off a crane. The worker was involved in dismantling the crane when the accident occurred. The worker, his co-workers, and the company were following industry practice when the workers did not use any fall-arrest equipment. The evidence indicated that guardrails to protect workers from the type of accident that occurred in this case were not practical or feasible.
Evidence was presented that showed there was no industry standard that considered the use of safety equipment relating to this type of hazard, nor was it mentioned by the Ministry of Labour inspector. This was an unusual kind of accident that had never been seen or contemplated before. The court concluded that as this accident was an extraordinary event that requires measures beyond reasonable precautions, the prosecution had not proven its case, and the matter was dismissed.
Interestingly, in only one of the three case examples was the company able to prove due diligence. Due diligence requires a comprehensive occupational health and safety management system; that in turns includes competent supervision, providing training and instruction to the workers, and taking every reasonable precaution in the workplace for the health and safety of workers. With a company ensuring that those elements are present, the risk of accidents, prosecution and employer liability are greatly reduced.
Norman Keith is a partner with Donahue & Partners in Toronto. He can be reached at (416) 943-3388.