To repair or not to repair?

Fixing problems after an incident won’t be viewed as admission of guilt: Lawyer

After a safety incident occurs in the workplace, employers looking to rectify the unsafe area or policy may be concerned that implementing any changes may lead to increased liability.

But fixing problem areas won’t lead to increased liability, though it may lead to some serious questions, says Loretta Bouwmeester, a partner at Heenan Blaikie’s labour and employment practice group in Calgary.

"The courts won’t hold a post-accident or incident-fix against an employer as an admission of guilt, but what they will do is look at it and say, ‘Does this show that they may not have taken all the reasonable steps before the incident to prevent it,’" she says.

The courts will look to make sure an employer did its due diligence to protect the safety of its workers ahead of the incident, says Adrian Miedema, a partner with Dentons Canada in Toronto.

"For example, the installation of a guard after an accident will likely not be an admission that a guard should have been in place, but it will be relevant to whether the employer — before the accident — took all reasonable steps to ensure that the machine was properly guarded," Miedema says.

Bouwmeester tells her clients that just because an accident has happened, it doesn’t necessarily mean something was wrong with what was in place ahead of the incident.

"The way we say it is just because you enhance your safety system with more or new information, doesn’t mean that it was deficient before," she says.

In the courts

In July 2009, Glen Gallinger was killed when wood shavings from the silo he was emptying piled on top of his truck, burying him inside. Gallinger would later die in the hospital.

Gallinger’s employer, Bradford, Ont.-based Reliable Wood Shavings, made procedural changes after Gallinger’s death to prevent similar accidents from happening in the future. When the Ontario Court of Justice delivered its decision on the case in September 2013, the judge said he could not consider those changes when determining to what degree Reliable Wood should be liable.

"I believe that I can look at post accident conduct in assessing what was reasonable in all of the circumstances," Justice Peter Bourque wrote in his judgment. "What I cannot do is treat them as an admission of liability."

Think changes through

Bouwmeester recommends employers take some time to think over any changes before making a move.

"You want to make sure that when you implement a change, you don’t create a secondary hazard or a new hazard," she says.

One of Heenan Blaikie’s clients made a safety improvement within its operations that ended up killing a worker.

"A court found our client not guilty, but ultimately the piece of equipment had been introduced to make the workplace safer," she says.

After a workplace accident occurs, employers would be best to hear what safety regulators recommend, Bouwmeester says.

"Whatever jurisdiction you’re in — whether it’s the Department of Labour in Ontario or Occupational Health and Safety in Alberta or WorkSafeBC in British Columbia — you’ll get orders after an incident where there’s been a serious accident or fatality and they’ll often make an obligation to make some fixes," she says.

Proper policies

Bailey Harris, a labour and employment lawyer with TDS law in Winnipeg, echoes Bouwmeester’s suggestion. Safety regulators may require improvements be made to safety policies ahead of anything else.

"I think the biggest thing that employers need to do better is ensure that they have procedures in place," Harris says.

"If you don’t have the right policies, they’re going to ask that you do that and you might need to do that before you even get a green light for the stop work order to be lifted."

Safety comes first

Besides waiting for directions from the regulators, Harris says she would advise clients to do whatever necessary to ensure the safety of workers.

"I think generally speaking, our advice would be, yes, go ahead and do whatever it is you need to make your workplace safer because you are now aware that there are these additional risks," she says.

"But, the only caveat to that would probably be that they make sure that they understand that it in theory could be open to the Crown if something were to proceed to trial to argue that this is evidence you didn’t have something in place that you should have."

Miedema agrees.

"The question is usually not whether to implement the fix, but how to do it in a way that maximizes safety while minimizing legal risk," he says.

As long as an employer is adhering to the occupational health and safety regulations for the jurisdiction it is located in, then the employer doesn’t have much to be concerned about.

Employers can start by referencing the regulator’s websites to make sure they have all the proper procedures in place, says Harris.

"It specifically speaks to policies that they need to have in place and that will probably trigger their mind (about what they’re missing)," she says. "Once they do that, they’re in a far better position in the event if something bad were to happen."

Accidents inevitably happen, Harris says.

"Some thing are completely unforeseeable and you can’t do anything different to prevent them and that’s different," she says.

"But having the appropriate policies in place is a critical starting point and that’s something that a lawyer can provide assistance with or — on a broad brush approach — workplace safety and health (regulators) can help with.

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