1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar

Voluntary Global Standard for Occupational Health and Safety Coming Soon

In August, the International Organization for Standardization(“ISO”), the world’s largest global developer of voluntary international standards, approved the creation of a project committee who will develop an international standard for occupational health and safety management systems (“OHSMS”).   

The ISO states that the OHSMS standard is intended to provide governmental agencies, industry and other organizations with an effective, usable guidance for improving worker safety around the world.  One of the primary objectives of the new global standard is to create an international framework for OH&S best practices and help prevent and reduce work-related injuries, diseases, and deaths worldwide. 

While the global standard will not be mandatory in Canada unless expressly adopted into Canadian law, the OHSMS standard may assist employers who opt to implement it in demonstrating that they have taken reasonable steps to ensure the health and safety of its workforce and could be of assistance where an employer is seeking to make out a due diligence defence. 

The first meeting of the project committee is scheduled to be held from October 21-25, 2013 in London, United Kingdom. Stay tuned.

By Lindsay Mullen  and Jennifer Shepherd

 

Voluntary Global Standard for Occupational Health and Safety Coming Soon

Alberta’s Highest Court Dismisses Employer’s Appeal in Calf-Roping Case: Agrees that Trial Judge’s Verdict was Unreasonable

Alberta’s Highest Court Dismisses Employer’s Appeal in Calf-Roping Case: Agrees that Trial Judge’s Verdict was Unreasonable

The Alberta Court of Appeal recently released its decision in R v XI Technologies Inc., 2013 ABCA 282 and held that the employer had not met its obligations under Alberta’s occupational health and safety laws when it failed to identify and eliminate the safety risk to its employees in the operation of a faulty calf-roping machine at a client appreciation event.  

Facts

A fatal accident took place during a western-themed client appreciation event hosted by the employer when one of its employees (N.S.) was struck in the head by a lever attached to a calf-roping machine.  The calf-roping machine was rented by the company as part of the day’s entertainment.  However, the supplier had delivered the machine late and without an operator or appropriate instructions.  The employees were left with the task of figuring out how the ride was to be operated and they soon realized that the machine was not functioning properly.  The hinge hook which released the “calf” for party-goers to “lasso” failed to automatically detach.  As a result, the employees determined that the hinge hook would have to be released manually.  N.S. went to unlatch the hinge hook to release the calf when the calf prematurely launched and caused a steel level to strike the employee in the head.  This injury ultimately led to N.S.’s death. 

Prior Rulings

The employer was charged with two counts under the Occupational Health and Safety Act, RSA 2000, c. 0-2, for failing to ensure (1) the health and safety of its employees and (2) that all equipment used at the worksite would safely perform the function for which it was intended or designed.

Following trial, the employer was acquitted on both counts.  Of note, the supplier of the calf-roping machine was also charged with violating the OHS Act, however, the charge was quashed and a new prosecution could not be commenced due to the expiry of the statutory limitation period.  

The Crown appealed the trial judge’s not guilty verdict to a summary conviction appeal judge, who allowed the appeal and entered convictions on both counts.

In response, the employer successfully applied to the Alberta Court of Appeal for leave to appeal the summary conviction judge’s reversal of the verdicts. 

The issues before the Albert Court of Appeal were whether the summary conviction appeal judged erred in finding that the trial judge’s verdict was unreasonable based on a proper view of the facts and whether he misapplied the foreseeability test. 

The Alberta Court of Appeal’s Decision

As to the question of unreasonable verdict, the Alberta Court of Appeal concluded the employer had not been duly diligent. It upheld the summary conviction appeal judge’s ruling that the risk of harm was evident in that the calf-roping machine had been malfunctioning throughout the day, there were visible marks on the machine to indicate that the lever would be propelled with considerable force and that the malfunctioning of the ride created additional hazards, such as requiring the employee to manually reach into the machine which put the employee’s head in close proximity to the lever. 

With respect to foreseeability, the panel held that it was apparent to a reasonable person that there was danger in having to manually reach into the machine to remove the hinge hook.  The employer failed, however, to identify the hazard and failed to take the necessary corrective action to eliminate it.   As such, the employer had not made out a due diligence defence.  The verdict to acquit was therefore unreasonable.

Under Alberta OHS laws, employers are required to assess the workplace to identify hazards and then, once identified, either take steps to eliminate the hazard or if not possible due to legitimate business needs, take steps to minimize and reduce those hazards.  The Alberta Court of Appeal held that the employer failed to both identify the hazard and take the necessary corrective action to eliminate it.  As the calf-roping machine was not in any way necessary to the employer’s business, this meant the hazard was to be eliminated by not using the calf-roping machine at the party at all.  In fact, the Alberta Court of Appeal admonished the employer for even considering to use a machine that no one knew how to operate, without its own operator or a set of instructions and commented that this spoke “volumes as to the lack of its due diligence in this matter”. 

R v XI Technologies Inc., 2013 ABCA 282

Written by Lindsay Mullen  and Jennifer Shepherd

 

 

 

 

 

 

Alberta’s Highest Court Dismisses Employer’s Appeal in Calf-Roping Case: Agrees that Trial Judge’s Verdict was Unreasonable

Case Update: Alberta’s Highest Court Hears Appeal in Calf-Roping Fatality Case – Decision Reserved

In December 2012, we posted a blog outlining the Alberta Court of Queen’s Bench decision in R v. Technologies Inc. 2012 ABQB 549 in a fatal accident case involving the use of a “calf roping” machine at a Stampede party event hosted by XI Technologies Inc. (“XI”) in 2007.  A software developer who was helping operate the machine was struck in the head by a steel lever and later died from his injuries. 

The Court of Queen’s Bench overturned two “not guilty” verdicts holding that the employer had not raised a successful due diligence defence and that the preventative measures which were adopted by the employer to respond to the hazard were inadequate considering the risk such that the machine ought to have been removed from service.  XI had been granted permission from Alberta’s highest court, the Court of Appeal, to appeal those convictions.    

The Alberta Court of Appeal heard argument on June 13, 2013.  The Decision was reserved.  We expect that the Court of Appeal’s reasons will be of significant importance to employers as we anticipate that the law in respect of the degree of hazard analysis and identification that must be taken and the corresponding level of precautions or preventative steps that must be implemented will be clarified.

Stay tuned.

This article was written by Lindsay Mullen and Jennifer Shepherd.

 

 

 

Case Update: Alberta’s Highest Court Hears Appeal in Calf-Roping Fatality Case – Decision Reserved

Lack of Remorse a Key Factor in Decision to Levy Hefty Fine in Non-Fatal Accident Case

Earlier this year we posted a blog surveying the trend in 2012 for Courts to levy increased fines in non-fatal accident cases. Recently in R v. Canadian Consolidated Salvage Ltd. (Clearway Recycling), 2013 ABPC 120, this trend continues with the Alberta Court levying a fine of $100,000 (not including the mandatory victim fine surcharge) against Canadian Consolidated Salvage Ltd. (Clearway Recycling) (“Canadian Consolidated”) in a case involving a worker’s fall from a second story mezzanine that left the worker with serious (but non-fatal) injuries.

At trial, the Court held that it was “abundantly clear” that Canadian Consolidated had not complied with its obligations under the Occupational Health and Safety Act (the “Act”) in that it had no safety plans, safety documentation, hazard assessment, emergency response plan or fall protection procedures in place for any of its work sites. The Court further commented that the attitude displayed throughout trial by the principals of Canadian Consolidated evidenced a complete disregard for the health and safety of its workforce. In the result, Canadian Consolidated was convicted of five offences under the Act.

In its decision on sentencing, the Court highlighted that a principled approach must be used in constructing an appropriate penalty and considered the following factors: Nature of the Victim, Impact on the Victim, Degree of Negligence, Compliance with the Regulatory Regime, Remorse, Prior Record, Industry Context or Standards, Economic Impact, and Reasonable Foreseeability.

In applying these factors, the Court held that a significant fine was warranted in this case considering the lack of any effort made by the organization to meet its obligations under the Act, the fact that the principals of Canadian Consolidated “never appeared to show any interest” in respect of safety compliance and that this ultimately led to a very serious injury to one of its workers. That the corporate officers did not display any remorse was also cited as a key factor in justifying the hefty penalty in this case.

Of note, the Court considered the effect a significant fine would have on the financial status of the organization and confirmed that higher fines will be justified where the degree of negligence is high or the result of the breach is serious in order to ensure that the fine has a deterrent effect on the organization as well as on the corporate community as a whole. It further confirmed that while evidence of the financial status of the company will be relevant in determining the appropriate sentence, ability to pay should not reduce a sentence that is proportionate to the offence. As such, the Court held that $100,000 was appropriate and made no concessions for Canadian Consolidated’s financial status.

This case is indicative of the current trend for increased fines, regardless of whether the accident results in death, particularly where the organization blatantly disregards its health and safety obligations under the Act and the principals of the organization are not, in the Court’s view, sufficiently repentant. It not only underscores the importance of ensuring compliance with the Act but also confirms that the Court will be interested in the attitude of the organization’s corporate officers towards the health and safety of its workforce when imposing a sentence.

For more information see: R v. Canadian Consolidated Salvage Ltd. (Clearway Recycling), 2013 ABPC 120

This article was written by Lindsay Mullen and Jennifer Shepherd.

Lack of Remorse a Key Factor in Decision to Levy Hefty Fine in Non-Fatal Accident Case

No More Skillful Scheduling of Contractors: Clarification of When a Prime Contractor is Required

In November 2012, we posted a blog regarding Bill 6, The Protection and Compliance Statures Amendment Act, 2012, introduced to the Alberta legislature to amend three Acts, including the Occupational Health and Safety Act as part of an ongoing effort by the provincial government to hold employers (and those responsible for work sites) accountable for the health and safety of their business operations. Bill 6 received Royal Assent on December 10, 2012. As a result, one key amendment now in force is Section 3(1) of the Occupational Health and Safety Act, which deals with the prime contractor.

Prior to the amendment, the legislation was worded in a way which suggested that a prime contractor was only required if two or more employers were involved at the work site at the same time. Due to the wording, some site owners were able to bypass the prime contractor obligation by skillfully crafting a work schedule so that no more than one employer was present at a work site at the same time.

The amendment strikes out the words “at the same time” in an effort to clarify that a prime contractor is required for a work site whenever there are two or more employers whose work activities are interrelated and/or have a health or safety impact on each other, even though they may not be present at the work site together.

For more information see: http://humanservices.alberta.ca/documents/OHS-Act-Amended-LI031.pdf

 

No More Skillful Scheduling of Contractors: Clarification of When a Prime Contractor is Required

Escalating Penalties: Alberta OHS Convictions For 2012 – What Can Employers Expect For The Year Ahead?

A person who contravenes Alberta’s Occupational Health and Safety Act, Regulations or Code is liable, for a first offence, to a fine of not more than $500,000 or imprisonment for a term not exceeding 6 months and, for a second or subsequent offence, to a fine of not more than $1 million or imprisonment for a term not exceeding 12 months.

In 2012, Alberta Courts imposed penalties for Occupational Health and Safety legislation violations in nine cases. Of the four cases involving fatalities, penalties against companies (including fines, alternative penalties and victim surcharges) ranged from $250,000 to nearly $1.5 million. Three of the four cases had penalties at the lower end of this range. The penalties for the five cases involving serious injuries ranged between $70,000 and $85,000, displaying an upward trend from prior years for fines in non-fatal cases.

The year 2012 represented the first time that a case achieved fines reaching the $1 million mark, and demonstrating a willingness by the court to render penalties dramatically increased from historical amounts for penalties in cases involving fatalities. The case of R. v. Perera Development Corp., Action No. 100171909P1, June 4, 2012, involved a dump truck driver who was fatally injured after removing debris from an excavation site when a 15 metre high wall of dirt and rock collapsed on him, crushing him inside of the cab of the truck. The prosecution charged two related companies as employer and/or prime contractor with numerous OHS violations, arguing that they cut corners to complete the construction project, despite having identified (but ignoring) a serious hazard associated with an improperly shored up wall of the pit. A Judge of the Alberta Provincial Court convicted the employer and prime contractor of multiple violations, deciding that they failed to exercised due diligence. The court expressed astonishment that two experienced construction companies would leave a steep 50 foot wall without any shoring whatsoever. Describing their conduct as “egregious and outrageous,” the court noted that reasonable steps could have been taken to properly shore up the wall for relatively small amount of money compared to the overall cost of the project. The court concluded that although the companies had some safety procedures in place at the site, their systems were inadequate. The court fined Perera Development Corporation a total of $1.25 million plus a 15% victim surcharge. The court also fined Perera Shawnee Ltd. a total of $900,000 plus a 15% victim surcharge, for a total of $2,472,500 in penalties arising from the incident.

The trend continues. On January 24, 2013, SSEC Canada Ltd. was sentenced to a $1.5 million penalty, which was comprised of a $200,000 fine and a $1.3 million payment to the Alberta Law Foundation to be used to support an outreach and education program. The conviction arose as a result of a guilty plea by SSEC Canada Ltd. to three charges under Alberta’s Occupational Health and Safety Act relating to the failure of the employer to ensure, as far as reasonably practicable, the health and safety of workers. The circumstances giving rise to the incident related to the work being performed on large metal storage tanks, which work had fallen behind schedule. In order to expedite progress, SSEC Canada proposed revised construction whereby the tanks’ walls and roofs would be built at the same time. The prime contractor agreed to the revisions, but said the work should be done under its own construction management team which would supervise quality control and safety. Despite this direction, SSEC Canada began work using the new method before the prime contractor’s team arrived on site, and even though the procedures had not yet been certified by a professional engineer. On April 24, 2007, about three weeks after SSEC Canada began using the new method, a roof collapsed when the wire cables holding it up snapped after being kinked and torqued in high winds. Two workers were crushed by falling steel and five other workers were injured.

It is noteworthy that in both the Perera and SSEC Canada cases, the circumstances involved fatal incidents where the hazards were specifically identified, but the implementation and following of proper safety measures were deliberately bypassed.

For more information see: http://humanservices.alberta.ca/working-in-alberta/6752.html

Escalating Penalties: Alberta OHS Convictions For 2012 – What Can Employers Expect For The Year Ahead?

Addressing Workplace Hazards: Law to be Clarified by Alberta’s Highest Court

The Alberta Court of Appeal has agreed to hear an employer’s appeal of a judgment of the Court of Queen’s Bench which overturned acquittals, by a Provincial Court judge, of two charges under the Alberta Occupational Health and Safety Act.

A fatal incident occurred involving a “calf roping machine” at a Stampede Week party event hosted by the employer in 2007. A young software developer who was helping to operate the machine was struck in the head by a steel lever and later died from the injuries. Following an investigation into the incident, the employer was charged with failing to ensure, as far as it was reasonably practicable to do so, the health and safety of its worker and failing to ensure that all equipment used at the work site would safely perform the function for which it was intended or designed.

We recently posted an update of this case describing the appeal decision in R. v. XI Technologies Inc., 2012 ABQB 549. The Court of Queen’s Bench overturned the two “not guilty” verdicts of the trial judge. On the evidence, the trial judge found that the employer had raise a successful due diligence defence and found the employer “not guilty” of the charges. The trial judge concluded that while the employer had identified certain hazards arising out of the operation of the calf roping machine, which was not functioning properly at the time, the employer had put in place operating procedures which diminished the risk to the point that a reasonable person would conclude that it was safe to continue with operating the machine in accordance with the adopted procedures. The Crown appealed and the verdicts were overturned. The appeal court disagreed, found the verdict of the trial judge to be unreasonable, and found that on the evidence due diligence on the part of the employer could not be established. The appeal court judge found that the preventative measures adopted by the employer to respond to the hazard were not adequate to address the risk and, as such, the machine ought to have been placed out of service.

In late November, the employer applied to certify that an appeal lies to the Alberta Court of Appeal on the basis that the case involves a question of law of sufficient importance to justify a further appeal. In granting leave to appeal, Justice O’Brien confirmed that the two-part test was met by the employer, which required that the appeal would involve a question of law as well as and a matter that was of sufficient public importance to warrant an appeal.

Justice O’Brien agreed that an issue of law is raised where there is an issue of whether a verdict is reasonable and can be supported by the evidence. Most notably, Justice O’Brien confirmed that an issue of law arises with respect to an employer’s legal obligations regarding hazard identification and preventative steps; in particular, clarification in the law is required as to where the employer may draw a line in the risk versus hazard analysis in determining what preventative steps are reasonable in circumstances where the harm may be likely but minor versus where the harm is extremely unlikely but may result in serious consequences. This question involves the proper interpretation and application of the concepts of “risk” versus “hazard” and how they relate to foreseeability. In this regard, reference was made to the appeal court judge’s interpretation and application of the Ontario Court of Appeal’s decision in R. v. Rio Algom (1988), 66 OR (2d) 674 with respect to the test of whether a reasonable person would have foreseen the potential danger. From this, Justice O’Brien granted leave to appeal because he considered that the extent to which an employer may rely upon operating procedures to mitigate an identified risk was a matter of general public importance.

The decision of the Alberta Court of Appeal in this matter is expected to be of significant importance to employers as we expect the law will be clarified in relation to specifying the degree of hazard analysis and identification that must be taken and the corresponding level of precautions or preventative steps that must be implemented.

The Reasons for Decision regarding the application to certify that an appeal lies to the Court of Appeal is found at R. v. XI Technologies Inc., 2012 ABCA 368.

Stay tuned.

Addressing Workplace Hazards: Law to be Clarified by Alberta’s Highest Court

Alberta Employers and Workers Who Violate Alberta’s Safety Laws Face Stiffer Penalties

Bill 6, The Protection and Compliance Statutes Amendment Act, 2012 was recently introduced to the Alberta legislature, and will amend three Acts, including the Occupational Health and Safety Act and the Safety Codes Act, as part of a continuing effort by the provincial government to hold employers accountable for the health and safety of their business operations.

The Occupational Health and Safety Act sets out the rules which pertain to the health and safety of workers. Notable amendments to the OH&S Act relate to the introduction to administrative penalties. Employers, prime contractors, contractors, suppliers or workers who have failed to comply with a provision of the OH&S Act, Regulations or Code or an Order issued by an OH&S officer will be subject to an administrative penalty not exceeding $10,000, which amount can accumulate on a per day basis in the case of an ongoing failure to comply. Prior to the amendment, to enforce compliance with OH&S law, an officer had the authority to issue an Order. However, if the Order was not complied with, the only available option was to pursue a prosecution.

The Safety Codes Act applies to fire protection and applies to the design, manufacture, construction, installation, operation and maintenance of buildings, electrical systems, elevating devices, gas systems, plumbing and private sewage disposal systems and pressure equipment. Notable amendments include: the introduction of a three year limitation period for prosecution of offences under the Act, rather than relying upon the six months available under the Provincial Offences Procedures Act; increasing the maximum potential fine for a first offence from $15,000 to $100,000; and increasing the maximum potential fine for a second or subsequent offence from $30,000 to $500,000.

For more information see:

http://alberta.ca/acn/201210/331568EFCD3BB-FC73-31BB-D22CBF161ED087A5.html

Alberta Employers and Workers Who Violate Alberta’s Safety Laws Face Stiffer Penalties

Leave to Appeal to Alberta’s Highest Court Sought in “Calf Roping Machine” Fatality Case

Recently we posted an update of this case describing the appeal decision in R. v. XI Technologies Inc., 2012 ABQB 549. The appeal court overturned the two “not guilty” verdicts of the trial judge in relation to the fatal incident involving a “calf roping machine” at a Stampede Week party event, held at a hotel. A young software developer who was helping to operate the machine was struck in the head by a steel lever and later died from the injuries.

The employer was charged with two offences under the Alberta Occupational Health and Safety Act for failing to ensure, as far as it was reasonably practicable to do so, the health and safety of the worker and for failing to ensure that all equipment used at the work site would safely perform the function for which it was intended or designed.

On the evidence, the trial judge found that the employer had raised a successful due diligence defence and found the employer “not guilty” of the charges. The Crown appealed and the verdicts were overturned. The appeal court disagreed and found that on the evidence, due diligence on the part of the employer could not be established.

The employer is now asking that Alberta’s highest court consider this case and clarify the law as to the defence of due diligence. The application for leave to appeal is scheduled to be heard by the Alberta Court of Appeal on November 22nd.

Stay tuned.

Leave to Appeal to Alberta’s Highest Court Sought in “Calf Roping Machine” Fatality Case

“Calf Roping Machine” Fatality Case: Appeal Court Overturns “Not Guilty” Verdict, Finds that Potential Source of Danger was Foreseeable

This post follows a previous post of November, 2011, discussing the trial decision in R. v. XI Technologies Inc., 2011 ABPC 313.  That case involved a tragic incident at a company’s off-site Customer Appreciation Party during Stampede Week in 2007. The event, held at a hotel, included a “calf roping machine” activity that was suggested by the party planner retained for the event. A young software developer who was helping to operate the machine was struck in the head by a steel lever and later died from the injuries.

The employer faced two charges under the Alberta Occupational Health and Safety Act for failing to ensure, as far as it was reasonably practicable to do so, the health and safety of the worker and for failing to ensure that all equipment used at the work site would safely perform the function for which it was intended or designed.

The trial judge found the employer “not guilty” of the charges because it had raised a successful due diligence defence. The Crown appealed.

In his Reasons for Judgment on the appeal, the Alberta Court of Queen’s Bench judge held that while the trial judge correctly articulated the test for due diligence, including the fact that the analysis required an examination of foreseeability, in applying the evidence to the applicable tests, the trial judge made palpable and overriding errors in relation to her verdicts on both charges. The appeal judge allowed the appeal on both counts and entered convictions against the employer.

As to the ”general duty” charge, the appeal judge disagreed with the trial judge who concluded that the accident was not foreseeable. He instead found that the evidence “clearly shows that the potential danger of being struck by the lever upon premature release while reaching into the machine was a ‘reasonable prospect’”. He stated that the question is not whether the employer could foresee the accident happening in the way that it did happen, but whether a reasonable person would have foreseen the potential source of danger. He concluded that it was not the fact that the calf roping machine was operating improperly which attracted liability but, rather, it was the decision of the employer to allow its use to continue at the party once the potential danger associated with the method of loading the calf was known. The appeal judge concluded that a reasonable employer would have placed the calf roping machine off to the side and hung an “out of order” sign on it.

As to the second count regarding the alleged failure of the employer to ensure that the calf roping machine would safely perform the function for which it was intended or designed, the appeal judge disagreed with the trial judge’s conclusion that the company did all that it could do to ensure that the equipment would safely perform its function, having made clear its expectation that the professional event planner would arrange for only safe activities and the company depended on the planner’s expertise to provide only safe entertainment activities for its customers. The appeal judge did not have sympathy for the trial judge’s distinction between the circumstances of the employer in this case - a small family owned Technology Company – as compared to “the larger industrial enterprises typically before the courts as a result of industrial accidents.” Instead, the appeal judge stated that any reliance that the employer had placed upon the party planners became unrealistic once the issues with the lever were noted. As well, he held that a reasonable employer would have ensured that instructions and a demonstration on how to properly use the equipment were received to ensure that the employees were using the calf roping machine in a correct manner rather than handing an unfamiliar machine over to its untrained employees to operate.

This decision following appeal reinforces the high onus placed on employers by occupational health and safety legislation to reasonably ensure a safe and healthy working environment, including the requirement for proactive conduct on the part of the employer when hosting parties or client events, even at locations away from the employer’s workplace, which involve activities outside of the course and scope of the employer’s usual operations.

Alberta v. XI Technologies Inc., 2012 ABQB 549 (CanLII)

“Calf Roping Machine” Fatality Case: Appeal Court Overturns “Not Guilty” Verdict, Finds that Potential Source of Danger was Foreseeable

Sentencing of Contractor with Minor Role in Project: Deterrence is Key but Size Matters

This post follows a previous post of June 22, 2012, discussing the case of an independent contractor who had been working amongst a group of other parties on the demolition of a few buildings in downtown Nipawin, Saskatchewan when he snagged a gas riser with his backhoe. This led to the line being pulled from the main which in turn caused gas to seep into through the ground and pool in the basement of a nearby butcher shop. Shortly thereafter the gas was ignited by a piece of machinery in the basement and an explosion occurred killing two people and seriously injuring five others. The contractor was found guilty of two Occupational Health and Safety Act violations. Following a sentencing hearing, the Saskatchewan Provincial Court fined the contractor $28,000 total in fines and surcharges.

The Court held that the “Kienapple” principle, which prohibits multiple convictions for the same act, did not apply because there was more than one wrongful act in this instance. Had the “Kienapple” principle applied the Court would have stayed one of the counts. In coming to its conclusion the Court found that there was an additional element in one offence that was not contained in the other. The Court characterized the offence under count 1 as involving a “lack of a physical act of hand digging to expose a riser,” whereas count 2 dealt with “doing the complete undertaking, including the digging of the gas line, in an inappropriate fashion” (emphasis added).

In this instance counsel disagreed over which sentencing provisions in the Act applied. Specifically at issue was whether the Court had made a causal link between the actions of the contractor and the death and serious injury that occurred. If it had, the maximum penalty under the Act was $300,000. In the absence of a causal link the maximum penalty under the Act was $10,000 for a first offence. The Court found that it was “abundantly clear” that there was a causal link between each count and the corresponding loss of life and serious injury that occurred; therefore the maximum penalty that the contractor was facing was $300,000.

In assessing the appropriate sentence for the contractor in this case, the Court affirmed that the primary objective of these types of offences is to protect employees and the general public. Following previous jurisprudence, the Court opined that such objectives are best achieved by focusing on general deterrence as the main sentencing principle. The Court also acknowledged other sentencing factors that it would apply. Notably, of these factors, the size and sophistication of the contractor’s business was taken into consideration by the Court. The Court noted that the contractor’s only direct “employee” was the contractor himself; he occasionally brought other individuals in for a job, as he did in this case. The Court described the business as a “mom and pop” operation, noting that the contractor’s primary occupation was farming. The Court was concerned that a “significant fine would essentially wipe out the business”.

The Court also found the fact that the contract resulted in little profit to the contractor had no relevance in sentencing. Aggravating factors weighing against the contractor included the inherent risk and danger involved in the operation, as well as the contractor’s high degree of fault. In the Court’s view, there was a “distinct lack of care in conducting the entire operation” and a “general lack of supervision”.

The Crown sought a fine in the range of $35,000 and the contractor’s position was that a fine of $1,000 or $2,000 would be appropriate. After considering the factors outlined above, among others, the Court found that a global fine of $20,000 plus a surcharge of forty percent was appropriate in the circumstances. The Court was presented with prior jurisprudence that outlined a range of fines from $6,000 to $35,000, which places this case in the average to higher end of the spectrum.

R. v Riemer, 2012 SKPC 119 (CanLII)

 

Sentencing of Contractor with Minor Role in Project: Deterrence is Key but Size Matters

Contractor with Minor Role in Project Cannot Blame Others for Explosion: Saskatchewan Provincial Court

An independent contractor was working amongst a group of other parties on the demolition of a few buildings in downtown Nipawin, SK when he snagged a gas riser with his backhoe. This led to the line being pulled from the main which in turn caused gas to seep into through the ground and pool in the basement of a nearby butcher shop. Shortly thereafter the gas was ignited by a piece of machinery in the basement and an explosion occurred killing two people and seriously injuring five others. The contractor was found guilty of two Occupational Health and Safety Act violations.

The Court confirmed that an independent contractor has a duty under the Act to conduct his work, insofar as is reasonably practicable, in a manner that ensures that he and the other workers are not exposed to risks to their health and safety. The Court held that, although the outcome may have been changed if some of the other parties who had more control over the project had acted differently; it was not the outcome that was the focus of the charge, but rather the creation of the risk. The Court found that the contractor was familiar with the possible consequences of snagging the gas line and had the time to locate the riser by hand, using a shovel, instead of a big piece of machinery like the backhoe. Even though there were other parties involved in managing the procedures after the snag occurred, it was the contractor who created the risk by his own independent actions. He “failed to establish that there was no better practical means than was actually used to satisfy the onus upon him in this case”.

The significance of this case is that it confirms that occupational health and safety law is not only concerned with the actions of the party with the most control or primary responsibility over a worksite or project. Where a party has some control over the work being performed, he must carry out his duties in accordance with the Act and ensure that the work is being conducted in a safe manner.

R v Riemer, 2012 SKPC 6 (CanLII)

Contractor with Minor Role in Project Cannot Blame Others for Explosion: Saskatchewan Provincial Court

New Enforcement Tool: Alberta Government Considering Establishing an Administrative Penalties System for OHS Violations

The Alberta government is considering establishing an Administrative Penalty System (APS) for occupational health and safety infractions. The OHS Policy and Program Development Branch of Alberta Human Services, in collaboration with the OHS Council, have developed a draft proposed APS.

The current initiative is intended to expand the range of compliance enforcement tools for OHS breaches. The option of an APS would involve monetary penalties, authorized in law, and levied by administrative action (a government body) rather than judicial action (charges/prosecution in the courts). This system would allow a penalty to be applied when there is a creation of a risk of harm or any non-compliance.

Alberta Human Services states that the APS is intended to assist in the prevention of actual harm on Alberta worksites before incidents take place. An administrative penalty would be issued based on an OHS Officer’s observations, together with a consideration of information regarding a worksite. Relevant considerations would, under the proposed APS, include: degree of risk of harm; gravity or seriousness of the contravention; degree of willfulness/negligence contributing to the contravention; and any history of non-compliance. These considerations would determine whether the issuing of an administrative penalty is warranted and, if so, the amount of the penalty.

The Alberta Government has asked for input from employers, workers, contractors, OHS professionals, and suppliers by completing an on-line survey by July 31, 2012. The draft proposal will then be submitted to the Minister of Human Services for his consideration.

For more information see: http://employment.alberta.ca/SFW/14764.html

 

New Enforcement Tool: Alberta Government Considering Establishing an Administrative Penalties System for OHS Violations

Sabotaging Drugs and Alcohol Testing Just Cause for Termination: Alberta Arbitrator Finds

A worker who carelessly moved a heavy toolbox with a forklift causing it to fall and break was correct to immediately report the incident; however, he refused to submit to a drug and alcohol testing. According to the company’s Drug and Alcohol Policy, a worker may be asked, based on reasonable grounds, to submit to drug and alcohol testing following an incident.

The worker underwent drug and alcohol testing the following day. His test results were diluted and inconclusive. Two days of testing followed. At the lab, the worker’s behaviour was abusive, obnoxious, aggressive and offensive.

The worker acknowledged that he set out to sabotage the test results. The arbitrator had no difficulty in finding that no company should have to tolerate the type of conduct displayed by the worker. The worker destroyed the trust and respect which is essential in an employment relationship. Not only was some discipline warranted for the worker’s carelessness in moving the toolbox, but his insolent and insubordinate behaviour following the incident by refusing immediate testing in addition to his behaviour at the lab justified the termination of his employment. 

Finning (Canada) v International Association of Machinists and Aerospace Workers, Local Lodge 99, 2012 CanLII 12066 (AB GAA), http://canlii.org/en/ab/abgaa/doc/2012/2012canlii12066/2012canlii12066.html

Sabotaging Drugs and Alcohol Testing Just Cause for Termination: Alberta Arbitrator Finds

Judge Quashes Charge on a Technicality

Radar’s Rentals owned a mechanical calf-roping ride and supplied it to XI Technologies Inc. for a company event during the Calgary Stampede. An employee of XI Technologies Inc. was fatally injured while operating the ride and the owners of the equipment and supplies was charged for violating section 2(4) of the Occupational Health and Safety Act.

Section 2(4) of the OH&S Act is a general provision which requires suppliers to comply with the provisions of the OH&S Act, Regulations and Code. The offence alleged was that Radar’s Rentals failed, pursuant to section 12(1)(b) of the Regulations to ensure that equipment they supplied would safely perform the function for which it was intended or designed.

However, section 12(1) of the Regulations specifically imposes duties upon an employer in relation to the equipment. The charge, incorporating as it does the particulars which refer to duties upon employers, does not disclose an offence known to the law against a supplier. The obligation to provide equipment in a safe operating condition is placed upon the supplier under section 2(3) of the OH&S Act. Radar’s Rentals was not, however, charged with violating that provision.

Because the charge was incorrect, the court quashed the charge filed and could not substitute the correct charge. The Crown Prosecutor’s office was out of time to recharge the supplier with violating section 2(3) of the OH&S Act.

R. v 402485 Alberta Ltd. (Radar’s Rentals), 2011 ABPC 91,
http://canlii.org/en/ab/abpc/doc/2011/2011abpc91/2011abpc91.html

Judge Quashes Charge on a Technicality

Policy Violation Was Just Cause for Dismissal: Employee was thoroughly aware and educated on the policy – Alberta Arbitrator Rules

An Alberta arbitrator ruled that a company had just cause to immediately terminate the employment of a lead mechanic for a Lockout/Tag Out Policy violation because of the exceptional lengths the company had gone to in order to maintain a high level of safety in the plant.

On the day of the incident, a lead mechanic, with seven years of service with the company, was called to the shrink wrapper area and reported that it was not working and that the trunnion wheel had snapped. As the same problem had occurred previously, the mechanic knew that the gear box had to be replaced. He locked out the machine and replaced the gear box. The mechanic later received a call that the shrink wrapper was still not functioning properly. Rather than following the company’s Lockout/Tag Out Policy, the mechanic returned with a rag to clean the oil off the trunnion wheel. He held the rag on the trunnion wheel intending to clean off the oil while the wheel rotated. A jagged edge on the inside part of the rotating wheel caught the rag and flipped the mechanic’s right hand. His thumb nail was removed on impact. The mechanic immediately reported the incident, a workplace investigation followed and the worker was terminated for cause.

The mechanic claimed that he was wrongfully dismissed. The arbitrator concluded that the mechanic was well-versed on the plant safety policy, as well as the expectations of the company and the consequences for failing to follow the Policy at the time of the incident. Moreover, given his experience and position as a mechanic leader, and bearing in mind the emphasis of the company on the importance of observing safety procedures, the arbitrator found it difficult to understand why the mechanic did not follow the Policy on the day of the incident. A deliberate and conscious decision to ignore the Policy was made and can only be viewed as an act of defiance which undermined the confidence and trust of the company. The arbitrator ruled that the just cause termination was justified.

A key point from this case is that if a company policy is relied on for an employee’s termination, the company must ensure that employees are thoroughly aware of company policies and the consequences that may result from a violation.

Lamb-Weston v United Steelworkers of America (Local Union 6034), 2011 CanLII 82275 (AB GAA),
http://canlii.org/en/ab/abgaa/doc/2011/2011canlii82275/2011canlii82275.html

Policy Violation Was Just Cause for Dismissal: Employee was thoroughly aware and educated on the policy – Alberta Arbitrator Rules

Alberta OHS Convictions Nearly Double in 2011, $310,000 Median Fine for Fatality

In 2011, the number of Alberta occupational health and safety prosecutions with penalties imposed nearly doubled from the previous year to 20 from 11. The total penalties of more than $3.4 million included fines, alternative penalties and victim surcharges.

The penalties for cases involving fatalities ranged between $30,000 and $431,250, with a median penalty of nearly $310,000. All sentences were the result of guilty pleas.

Most of the 20 cases involved creative sentences with alternative penalties. In 2002, Alberta’s Occupational Health and Safety legislation was amended to allow for creative sentences allowing for funds to be directed to training or education programs that promote workplace health and safety.

For more information see: http://employment.alberta.ca/whs-prosecutions

Alberta OHS Convictions Nearly Double in 2011, $310,000 Median Fine for Fatality

Stay of OHS Charges in 2009 Alberta Stage Collapse

On August 1, 2009, just as Hollywood actor, Kevin Costner, was getting ready to take the main stage with his band at the Big Valley Jamboree, plow winds in excess of 100 kilometres per hour contributed to its collapse. One concert-goer was killed and more than a dozen others were injured.

On July 29, 2011, charges were laid against Premier Global Production Company Inc., 107372 Alberta Ltd. and Panhandle Productions Ltd. Altogether, the three companies faced 33 charges under Alberta’s Occupational Health and Safety legislation. The charges primarily related to the failure to ensure, as far as it is reasonably practicable, the health and safety of workers. In the case of Premier Global, it was also accused of failing to ensure equipment was of sufficient size, strength and design and made of suitable materials to withstand the stresses imposed on it during its operation and to perform the function for which it is intended or designed and a failure to ensure that rigging was of a sufficient breaking strength.

After the charges were laid, the Crown Prosecutor received additional information which ultimately lead the Crown to determine that “there was no reasonable chance of conviction” against any of the three companies and, therefore, all charges were stayed.

The staying of charges (as opposed to a dismissal) means that the Crown is able to reactivate any or all of the charges with one year should new evidence come forward. For more information see: http://www.ohscanada.com/news/no-chance-of-conviction-in-2009-alberta-stage-collapse-crown/100843527 and http://employment.alberta.ca/SFW/6751.html

Stay of OHS Charges in 2009 Alberta Stage Collapse

Alberta Posting Employers’ Safety Records Online

The Alberta government is now posting employers’ safety records online.  Alberta has launched an open-to-the-public website showing companies’ lost-time claims, estimated number of workers, lost-time claim rates, number of fatalities (from motor vehicle accidents, workplace incidents and occupational diseases), back to 2005.

The website also posts industry and province-wide lost time claim rates, which allow readers to compare companies’ safety performance.  Further, the website identifies whether a company has a Certificate of Recognition (which certifies that the company’s health and safety management system has been evaluated by a certified auditor and meets a provincially-recognized standard).

The information currently available online is basic in nature, and does not include details of any particular incident or actual investigation reports or safety Orders. However, it is likely that the level of detail will increase in future, allowing the public to ultimately see information describing the nature and extent of any specific safety concerns or issues.

For more information see:  http://alberta.ca/acn/201110/314444B4C2E33-AA65-16AC-E96BCBABAF831048.html

Alberta Posting Employers’ Safety Records Online

Foreign Company with No Alberta Presence Cannot Avoid Occupational Health and Safety Charges – Even Where Improperly Served

Foreign Companies doing business in Alberta are not immune to answering charges regarding workplace safety, even where the foreign entity itself has no presence in the province.

The majority of the Alberta Court of Appeal has ruled that the Chinese employer of two oil sands employees who were killed in a workplace accident in 2007 must face trial for alleged safety violations.

Sinopec Shanghai Engineering Company Ltd., a Chinese corporation, was retained by a Canadian oil and gas company to construct storage tanks at an oil sands extraction facility in Fort McMurray. Since the Canadian oil and gas company wished to deal with a Canadian entity, Sinopec Shanghai incorporated a subsidiary, SSEC Canada Ltd. On April 24, 2007 an accident occurred at the facility, which resulted in the death of two employees. Following an investigation, the Canadian oil and gas company, SSEC Canada and Sinopec Shanghai were all charged with violating sections of Alberta’s Occupational Health and Safety Act.

In order to trigger the jurisdiction of the Provincial Court of Alberta over the defendants, each corporation had to be properly served with the Information in Alberta. Although the Canadian oil and gas company and SSEC Canada have a presence in Alberta, Sinopec Shanghai had no employees and little effective presence. A process server served Calgary resident, Helen Wang, with the Informations (charging documents) for both SSEC and Sinopec Shanghai. Ms. Wang was an employee of SSEC. While Ms. Wang accepted service of SSEC’s Information, she did not accept the Information relating to Sinopec Shanghai. She was never asked what she did with the paper, nor was she asked whether she advised any representative of Sinopec Shanghai that service been attempted. However, a lawyer for Sinopec Shanghai made a conditional appearance to contest service of the Information.  While the dissenting reasons by Justice Slatter concluded that the criminal law recognizes conditional appearances to contest service, the majority of the Court disagreed.

While the majority of the Court of Appeal agreed that the service on Ms. Wang was ineffective, they noted the involvement of Sinopec Shanghai’s lawyer. The majority preferred the reasoning of the Ontario Court of Appeal to the effect that a distinction is to be made between matters that relate to jurisdiction of a court to try an offence and those that related to procedural defects in service.  In this case, service was curable because counsel for Sinopec Shanghai had made an appearance before the Provincial Court to argue that service was not effective. Sinopec Shanghai’s appearance, through counsel, resulted in its attornment to the jurisdiction of the Provincial Court, notwithstanding counsel’s protestations otherwise.

Accordingly, international organizations that do not have a presence in Alberta but conduct business here despite limited presence will not be able to avoid potential responsibility for workplace safety violations.

As a result of the strong dissenting reasons, this case may end up at the Supreme Court of Canada. Stay tuned.

R. v. Sinopec Shanghai Engineering Company Ltd., 2011 ABCA 331

Foreign Company with No Alberta Presence Cannot Avoid Occupational Health and Safety Charges – Even Where Improperly Served