Labour board rules fishing vessel must complete hazard assessment
A Nova Scotia fishing vessel must have a hazard assessment report completed on its equipment for the vessel can be considered safe following an injury to a crew member from a severed cable, the Nova Scotia Labour Board has ruled.
The Compass Rose II is a fishing vessel operated by Yarmouth Sea Products, a fishing company based in Yarmouth, N.S. The vessel is used for scallop fishing and contains a fishing system featuring cables and other equipment on board.
On June 7, 2015, a cable was severed while the Compass Rose II was at sea. The incident seriously injured a crew member, who had to be taken by helicopter to hospital. Following the incident, Yarmouth Sea Products continued to use the boat for scallop fishing.
A provincial occupational health and safety officer inspected the Compass Rose II on July 5, about one month after the incident. The officer interviewed the captain and several crew members and was told breaks in the cable happened frequently. None of the crew could say whether the boat’s cable or the rest of its equipment met safety standards and no-one could show any records of maintenance or safe work procedures.
Officer ordered hazard assessment report
The officer determined that there could be a risk to the health or safety of the boat’s crew, so he ordered "a report from a suitably qualified and knowledgeable expert" to confirm the vessel conformed to the standards set out in the Nova Scotia Occupational Health and Safety Act and its regulations, as well as "good professional practice." The report was required to assess the hazards of all the equipment in the boat’s scallop fishing system, including the hoist, rigging hardware and safety devices available. The assessment was to be conducted by a professional engineer registered in Nova Scotia and provided by July 17.
Three days before the due date for the hazard assessment report, Yarmouth Sea Products wrote to the officer through its legal counsel. The company stated that it couldn’t proceed without knowing what information the officer had been relying upon when he determined there was a risk. It also advised that the Compass Rose II "had been modified and operated smoothly and effectively in the fishery after the incident of June 7th."
Yarmouth Sea Products also complained that the situation was further complicated by the fact the officer ordered the report to be completed by an engineer. The company had consulted an engineer, but the engineer was unable to complete the assessment and file a report by the July 17 deadline due to other commitments.
In response to the company’s letter, an extension to the deadline for the hazard assessment report was granted to Aug. 15. Shortly thereafter, Yarmouth Sea Products filed an appeal based on its argument that requiring an engineer to complete the report made it more difficult. The company argued that "the order was arbitrary in dictating that the assessment be carried out by a registered engineer when there were other professionals "knowledgeable in the fishing industry who are more qualified than any known professional engineer in the province of Nova Scotia in preparing a hazard assessment report." It further noted that it had consulted with an engineer who was prepared to work on the hazard assessment but could not do so until after the deadline.
The company also said the province didn’t have jurisdiction because its industry fell under the auspices of the federal Steamship Inspection Act. It sought a dismissal of the officer’s order or, in the alternative, a stay of the order to comply until the officer provided the information the company had requested regarding the information the officer used to base his risk assessment.
Yarmouth’s appeal to the labour board further argued that "there are no risks at the present beyond the ordinary risks associated with fishing activities in this fleet and in fishing in general in respect to the operations of the Compass Rose II." It reiterated that the boat had been operating without any problems since the June 7 incident and it was no different than other vessels operating in the industry at that time.
The deadline was extended once more to Aug. 28, but no further extension was granted after that, as the officer had grounds to believe there may be a risk to worker safety.
The labour board noted that there was no evidence Yarmouth Sea Products had actually retained an expert — licensed engineer or not — other than the one it had consulted with. The company’s letter to the officer didn’t say when the engineer had been consulted, nor if any investigation had been started. The company seemed to indicate that it was waiting for the information it requested from the officer so it could proceed with a report only if "the scope of what was required was narrowed down and defined," said the board.
"This then was not a case where an employer had made or was making efforts to comply with an assessment order, but was unable to comply with a deadline because the expert who had been retained needed more time in which to complete his or her report," said the board. "It was rather a case where the employer simply objected to the need for such an assessment."
The board found any prejudice in the order for the assessment report "weighed in the favour of the crew members on board the vessel." Given that cables had broken in the past and in one case had led to a serious injury, this was a good thing. There was no reason to lessen the requirements just because they inconvenienced the company, said the board in dismissing the company’s request for a stay of the order.
"To say that there are experts better able than professional engineers to provide an assessment does not speak to the need for a report," said the board. "Nor does it speak to the question of whether the OHS officer had reasonable grounds for believing that there ‘may’ be a hazard, which is the basic requirement for an order (under the act)."
For more information see:
Yarmouth Sea Products Ltd. and Nova Scotia (Director of Occupational Health and Safety), Re, 2015 CarswellNS 793 (N.S. Lab. Bd.).
