Occupational Health and Safety – Due Diligence Health and Safety – Due Diligence April 17, 2013 Ptdb April 17, ... • Due diligence defence available in all health and safety

Occupational Health and Safety – Due Diligencey g

April 17, 2013P t d b April 17, 2013Presented by:Rebecca Saturley

© 2013 Stewart McKelvey. All rights reserved. Not to be copied or used in whole or in part without the express written consent of Stewart McKelvey

OVERVIEW

• Due Diligence: Can it ever be established?

• Update on Administrative Penalties

• New CSA Standards of Note

© 2013 Stewart McKelvey all rights reserved4 2013 Construction Seminar

DUE DILIGENCE

Strict Liability

• Crown must only prove that defendant committed prohibited act.

• Crown not required to prove mental element (i.e., intent, knowledge, etc.)


DUE DILIGENCE

• Due diligence defence available in all health and safety prosecutionsprosecutions.

• Legally and morally improper to convict a person of an offence when they have taken all reasonable precautionsoffence when they have taken all reasonable precautions to ensure compliance with the legislation.


DUE DILIGENCE

Factors Used to Evaluate Due Diligence

• Gravity of potential harm• available alternatives

Lik lih d f h• Likelihood of harm• Degree of knowledge expected of accused• Underlying causes outside control of accusedUnderlying causes outside control of accused• Should special expertise have been used• Did accused have ability to control conducty


SCORECARDLOSERS

Linamar Holdings (2011: ONCJ)• Worker electrocuted while troubleshooting machine no• Worker electrocuted while troubleshooting machine – no

longer able to work.

Takeaways?Takeaways?• Training on procedures – should not be general, to be

effective must be “machine specific”.e ec e us be ac e spec c

• Policies were not being followed by the company.

• Signage and warnings not developedSignage and warnings not developed.


SCORECARDLOSERS

Reid & DeLeye Contractors (2011: ONCJ)• Scaffolder lost balance fell and broke his arm and• Scaffolder lost balance, fell and broke his arm and

elbow.

Takeaways?Takeaways?• “culture of discretion” allowed to develop.

Constructor not vigilant about enforcing safety rules and• Constructor not vigilant about enforcing safety rules and didn’t take steps to ensure safety program’s effective operation.


SCORECARDLOSERS

Canadian Consolidated Salvage Ltd. (2012: ABPC)• Day labourer supplied through third party on second day ofDay labourer supplied through third party, on second day of

work, seriously injured in fall from wall of derelict plant.

Takeaways?y• No safety plans• No safety documentation• No hazard assessment• No emergency response plan or procedures• No evidence of safety training or meetings with employees• No evidence of safety training or meetings with employees


SCORECARD WINNERS

Robwell Constructors (2011: SKPC)• Worker fatally injured while trying to clear 10” pipe of iceWorker fatally injured while trying to clear 10 pipe of ice

using compressed air and pipe flew into air.

Takeaways?Takeaways?• Evidence showed that dramatic movement of pipe could

not have been reasonably expected.

• All reasonable steps to ensure worker safety in place: proper supervision, trained and experienced workers.


SCORECARD WINNERS

Fountain Tire (2011: ABPC)• Experienced tire technician inflated tire on split rim wheel p p

assembly called “widow maker” with no restraints required by company’s safety policy. Tire exploded and worker suffered serious head injuries.j

Takeaways?• Proper training and hands-on supervision providedProper training and hands on supervision provided.• Unforeseeable that this experienced technician would

act “irrationally” by not using restraints in face of well-k i kknown risks.


ADMINISTRATIVE PENALTIES UPDATE

Administrative Penalties

• Approximately 4000-6000 administrative orders issued per year

• 24% of those orders lead to an administrative penalty

• Most recently, 95% were issued to employers. y y


ADMINISTRATIVEPENALTIES UPDATE

• In 2011 – 2012 total fines amounted to $683,133 for a total of 996 penalties Here’s the breakdown sincetotal of 996 penalties. Here s the breakdown since inception:

Fiscal Year # of Penalties Issued Total Amount of FinesFiscal Year # of Penalties Issued Total Amount of Fines

Jan 2009‐2010 61 $37,000

2010‐2011 1154 $701,300

2011‐2012 996 $683,133

2011‐2013 424 $337,076$ ,


ADMINISTRATIVEPENALTIES UPDATE

Under Review

Administrative penalties have been in place for 3 years, and it is now time to review and identify areas that could be strengthened We want to make sure thatbe strengthened. We want to make sure that administrative penalties are having the intended impact as we work together to improve safety for all Nova S iScotians.


NEW CSA STANDARDS

New CSA Standards – Mental Health

• Applicable to any organization, but not law – voluntary standard intended to provide framework for employers to implement a documented and systemic approach to aimplement a documented and systemic approach to a psychologically healthy and safe workplace, but could mean “best practices”.


NEW CSA STANDARDS

This means three things for employers:

• Develop a “Psychological Health and Safety Management System” (PHSMS)

• Implement the PHSMS

• Monitor and investigate events where psychological g y gillness or injury has occurred (in addition to monitoring ‘traditional’ workplace injuries).


BIG PICTURE TAKEAWAYS

• Identification of all actual and potential OHS hazards;

• Assessment of risk of exposure of workers to hazards identified – periodic meaningful reviews;

• Elimination of hazards or implemented controls where necessary, to minimize risk of exposure to hazards;

• Communication of hazards, risks and controls to workers, committee and management;


BIG PICTURE TAKEAWAYS

• Monitoring of workers, work practices and workplace (equipment, machinery, facilities);( q p , y, );

• Corrections to unsafe work practices and remedies for hazardous situations;

• Discipline of worker if in violation of their legal duties or OHS policy or procedure;

• Documentation of all of the abovementioned steps and actions;

• Education on critical OHS developments.


QUESTIONS


These materials are intended to provide brief informational summaries only of legal developments and topics of general su a es o y o ega de e op e ts a d top cs o ge e ainterest. The materials should not be relied upon as a substitute for consultation with a lawyer with respect to the reader’s specific circumstances. Each legal or regulatory situation is different and requires review of the relevant facts and applicable law. If you have specific questions related to these materials or their application to you, you are encouraged to consult a member of

fi t di d f ifi l l d i l ti tour firm to discuss your needs for specific legal advice relating to the particular circumstances of your situation. Due to the rapidly changing nature of the law, Stewart McKelvey is not responsible for informing you of future legal developmentsfor informing you of future legal developments.


Documents

Occupational Health and Safety – Due Diligence Health and Safety – Due Diligence April 17, 2013 Ptdb April 17, ... • Due diligence defence available in all health and safety