Occupational Health and Safety Due Diligence

Transcription

1 Occupational Health and Safety Due Diligence Presented by: Rebecca Saturley April 17, Stewart McKelvey. All rights reserved. Not to be copied or used in whole or in part without the express written consent of Stewart McKelvey

2 OVERVIEW Due Diligence: Can it ever be established? Update on Administrative Penalties New CSA Standards of Note Construction Seminar

3 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.) Construction Seminar

4 DUE DILIGENCE Due diligence defence available in all health and safety prosecutions. Legally and morally improper to convict a person of an offence when they have taken all reasonable precautions to ensure compliance with the legislation Construction Seminar

5 DUE DILIGENCE Factors Used to Evaluate Due Diligence Gravity of potential harm available alternatives Likelihood of harm Degree of knowledge expected of accused Underlying causes outside control of accused Should special expertise have been used Did accused have ability to control conduct Construction Seminar

6 SCORECARD LOSERS Linamar Holdings (2011: ONCJ) Worker electrocuted while troubleshooting machine no longer able to work. Takeaways? Training on procedures should not be general, to be effective ec e must be machine specific. c Policies were not being followed by the company. Signage and warnings not developed Construction Seminar

7 SCORECARD LOSERS Reid & DeLeye Contractors (2011: ONCJ) Scaffolder lost balance, fell and broke his arm and elbow. Takeaways? culture of discretion allowed to develop. Constructor not vigilant about enforcing safety rules and didn t take steps to ensure safety program s effective operation Construction Seminar

8 SCORECARD LOSERS Canadian Consolidated Salvage Ltd. (2012: ABPC) Day labourer supplied through third party, on second day of work, seriously injured in fall from wall of derelict plant. Takeaways? No safety plans No safety documentation No hazard assessment No emergency response plan or procedures No evidence of safety training or meetings with employees Construction Seminar

9 Robwell Constructors (2011: SKPC) SCORECARD WINNERS Worker fatally injured while trying to clear 10 pipe of ice using compressed air and pipe flew into air. 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 Construction Seminar

10 Fountain Tire (2011: ABPC) SCORECARD WINNERS Experienced tire technician inflated tire on split rim wheel assembly called widow maker with no restraints required by company s safety policy. Tire exploded and worker suffered serious head injuries. Takeaways? Proper training and hands-on supervision provided. Unforeseeable that this experienced technician would act irrationally by not using restraints in face of well- known risks Construction Seminar

11 ADMINISTRATIVE PENALTIES UPDATE Administrative Penalties Approximately administrative orders issued per year 24% of those orders lead to an administrative penalty Most recently, 95% were issued to employers Construction Seminar

12 ADMINISTRATIVE PENALTIES UPDATE In total fines amounted to $683,133 for a total of 996 penalties. Here s the breakdown since inception: Fiscal Year # of Penalties Issued Total Amount of Fines Jan $37, $701, $683, $337, Construction Seminar

13 ADMINISTRATIVE PENALTIES 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 that administrative penalties are having the intended impact as we work together to improve safety for all Nova Scotians Construction Seminar

14 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 a psychologically healthy and safe workplace, but could mean best practices Construction Seminar

15 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 illness or injury has occurred (in addition to monitoring traditional workplace injuries) Construction Seminar

16 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; Construction Seminar

17 BIG PICTURE TAKEAWAYS Monitoring of workers, work practices and workplace (equipment, machinery, facilities); 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 Construction Seminar

18 QUESTIONS Construction Seminar

19 These materials are intended to provide brief informational summaries only of legal developments e e and topics of general e interest. 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 our firm to discuss your needs for specific legal l 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 developments Construction Seminar