On Aug. 8, 2000, a fatal accident occurred at an Irving Oil refinery in New Brunswick. As a result of that accident the Workplace Health and Safety Compensation Commission (WHSCC) commenced an investigation.
The officer assigned to investigate the accident suspected that a leveling cylinder from a man lift was the cause of the accident. He removed the cylinder and had it taken for testing to CFM Custom Fabricators and Machinists in Saint John, N.B.
At CFM a number of tests were performed on the cylinder under the direction of the investigator and the shop’s hydraulic manager. Further testing was required but a part needed to be ordered from the manufacturer to complete the testing.
While awaiting the part, the cylinder was put in a plastic-type tote box. Four locks were placed on the box through the handles, two placed by CFM’s hydraulic manager and two placed by the investigator. The cylinder was left at the CFM premises pending arrival of the part.
Irving Oil was concerned about the test that the investigator was planning referred to as “testing to destruction” (although the cylinder is not completely destroyed). There were a number of “stakeholders” who had an interest in the outcome of the investigation and the need to maintain the evidence including the manufacturer, the distributor, the lessee and lessor of the cylinder, the project contractor and the owner.
A meeting was held with all stakeholders, including the WHSCC to discuss the establishment of a centrally-located process for the control of information. Believing it had agreement by all the stakeholders on this process, Irving Oil made the decision, without consulting the WHSCC, to move the cylinder to its premises.
While the investigator was on holidays he was informed by CFM that Irving Oil had removed the cylinder from its premises. The investigator immediately presented Irving Oil with a written order for the return of the cylinder, with which Irving Oil complied. There was no evidence that the box containing the cylinder had been opened while in the possession of Irving Oil. The box was then placed in a newly constructed exhibit locker at the office of the WHSCC.
Irving Oil was charged under the Occupational Health and Safety Act with failing to comply with section 33 of the Act. Section 33(a) provides that no person shall “obstruct or delay an officer in the exercise of his powers or duties under this Act or the regulations.” In order to establish an “obstruction” the Crown must prove that there was an actual obstruction or other act of interference within the contemplation of s. 33 of the Act, that it was intentional, and that the officer was lawfully engaged in the exercise of his powers and duties under the Act.
In determining whether there was an actual obstruction, the Court looked at case law dealing with this issue. Previous cases held that obstruction could include either some positive act or an omission to do something which one is legally obliged to do. Furthermore it is the purpose of the obstruction, not its result, which goes to the offence of obstruction. The fact that the positive act or omission did not prevent the officer from exercising or completing his duty is not a defence.
After reviewing the evidence, the Court concluded that each of the elements for an obstruction charge had been met. The removal of the cylinder from CFM without authorization was obstruction. Prior to its removal the cylinder was being held pursuant to an investigation under the Act and the company retained possession of the cylinder until it was ordered to return it to the investigator’s possession.
The act of obstruction under the Act is a strict liability offence, meaning that the Crown is not required to prove intent. Intent is implied. The accused has the opportunity to defend on the basis of due diligence – to establish on a balance of probabilities that the actions giving rise to the obstruction took place without its approval and that all reasonable care was taken to prevent the commission of the offence.
In this case Irving Oil argued that its actions were not done for the benefit of Irving Oil but rather to aid the investigator by maintaining the continuity of the cylinder. The Court did not accept this argument given that Irving Oil put its own set of locks on the box containing the cylinder, thereby hindering the investigator’s ability to access the box.
Having found Irving Oil guilty of committing an offence under the Act, the Court then addressed the issue of quantum of damages. Although Irving Oil’s interference did not ultimately affect the investigation, the Court recognized the importance of such legislation.
By creating the offence the Legislature is indicating that persons who interfere with the work of investigators will be sanctioned in order to protect the confidence of the public when a regulated activity is being investigated. It is important to send a message to other companies, that interference in investigations will not be tolerated, regardless of the magnitude of the obstruction.
For these reasons the Court ordered damages in the amount of $10,000.
For more information:
• R. v. Irving Oil Ltd., 2001 NBPC 23 and R. v. Irving Oil Ltd., New Brunswick Provincial Court, Nov. 7/01.
The officer assigned to investigate the accident suspected that a leveling cylinder from a man lift was the cause of the accident. He removed the cylinder and had it taken for testing to CFM Custom Fabricators and Machinists in Saint John, N.B.
At CFM a number of tests were performed on the cylinder under the direction of the investigator and the shop’s hydraulic manager. Further testing was required but a part needed to be ordered from the manufacturer to complete the testing.
While awaiting the part, the cylinder was put in a plastic-type tote box. Four locks were placed on the box through the handles, two placed by CFM’s hydraulic manager and two placed by the investigator. The cylinder was left at the CFM premises pending arrival of the part.
Irving Oil was concerned about the test that the investigator was planning referred to as “testing to destruction” (although the cylinder is not completely destroyed). There were a number of “stakeholders” who had an interest in the outcome of the investigation and the need to maintain the evidence including the manufacturer, the distributor, the lessee and lessor of the cylinder, the project contractor and the owner.
A meeting was held with all stakeholders, including the WHSCC to discuss the establishment of a centrally-located process for the control of information. Believing it had agreement by all the stakeholders on this process, Irving Oil made the decision, without consulting the WHSCC, to move the cylinder to its premises.
While the investigator was on holidays he was informed by CFM that Irving Oil had removed the cylinder from its premises. The investigator immediately presented Irving Oil with a written order for the return of the cylinder, with which Irving Oil complied. There was no evidence that the box containing the cylinder had been opened while in the possession of Irving Oil. The box was then placed in a newly constructed exhibit locker at the office of the WHSCC.
Irving Oil was charged under the Occupational Health and Safety Act with failing to comply with section 33 of the Act. Section 33(a) provides that no person shall “obstruct or delay an officer in the exercise of his powers or duties under this Act or the regulations.” In order to establish an “obstruction” the Crown must prove that there was an actual obstruction or other act of interference within the contemplation of s. 33 of the Act, that it was intentional, and that the officer was lawfully engaged in the exercise of his powers and duties under the Act.
In determining whether there was an actual obstruction, the Court looked at case law dealing with this issue. Previous cases held that obstruction could include either some positive act or an omission to do something which one is legally obliged to do. Furthermore it is the purpose of the obstruction, not its result, which goes to the offence of obstruction. The fact that the positive act or omission did not prevent the officer from exercising or completing his duty is not a defence.
After reviewing the evidence, the Court concluded that each of the elements for an obstruction charge had been met. The removal of the cylinder from CFM without authorization was obstruction. Prior to its removal the cylinder was being held pursuant to an investigation under the Act and the company retained possession of the cylinder until it was ordered to return it to the investigator’s possession.
The act of obstruction under the Act is a strict liability offence, meaning that the Crown is not required to prove intent. Intent is implied. The accused has the opportunity to defend on the basis of due diligence – to establish on a balance of probabilities that the actions giving rise to the obstruction took place without its approval and that all reasonable care was taken to prevent the commission of the offence.
In this case Irving Oil argued that its actions were not done for the benefit of Irving Oil but rather to aid the investigator by maintaining the continuity of the cylinder. The Court did not accept this argument given that Irving Oil put its own set of locks on the box containing the cylinder, thereby hindering the investigator’s ability to access the box.
Having found Irving Oil guilty of committing an offence under the Act, the Court then addressed the issue of quantum of damages. Although Irving Oil’s interference did not ultimately affect the investigation, the Court recognized the importance of such legislation.
By creating the offence the Legislature is indicating that persons who interfere with the work of investigators will be sanctioned in order to protect the confidence of the public when a regulated activity is being investigated. It is important to send a message to other companies, that interference in investigations will not be tolerated, regardless of the magnitude of the obstruction.
For these reasons the Court ordered damages in the amount of $10,000.
For more information:
• R. v. Irving Oil Ltd., 2001 NBPC 23 and R. v. Irving Oil Ltd., New Brunswick Provincial Court, Nov. 7/01.
