January/February 2003

Whose Line Is It Anyway?

By Dean Jobb

NOVA SCOTIA OH&S OFFICER David Walsh was on his way to inspect a sawmill one sunny winter morning when he came upon a work crew at a highway intersection north of Halifax. The crew was using a boom truck to replace an overhead traffic light and the arm was close to overhead wires -- too close, Walsh thought.

"When I saw the set-up, I got very alarmed, very quickly, for obvious reasons. I was worried that someone was going to get electrocuted," he recalls. Walsh pulled over and began asking questions. What voltage were those wires carrying? Who was responsible for ensuring the boom stayed clear of them?

No one, it turned out. A crew from the provincial Department of Transportation and Public Works was on site to control traffic, but signal maintenance had been contracted out to a private firm, Black and MacDonald Ltd. "The reaction I got from the transportation official was, 'Well, it's not my problem, it's the other guy's problem'," Walsh says. "And that's a position that we don't accept."

Walsh issued a stop-work order. Repositioning the boom truck away from the power line enabled the job to be completed. It was later discovered that the wires carried 14,400 volts. Had the boom touched them, Walsh says, "the results would probably have been lethal" for the operator. Both the contractor and the transportation department were charged under Nova Scotia's Occupational Health and Safety Act.

Black and MacDonald Ltd. pleaded guilty to allowing an employee to work within three metres of live wires without taking proper precautions, and was fined $5,000. The department went to trial and was convicted last September 30 under section 15(a) of the OH&S Act, which requires a "constructor" -- defined in the act as a party that undertakes or contracts another to work on a project -- to take "every precaution that is reasonable in the circumstances to ensure the health and safety of persons at or near a project."

Judge John MacDougall of Nova Scotia's provincial court issued a written ruling that provides insights into the due diligence required of anyone who hires a contractor to complete specific tasks -- often a murky area of oh&s law.

"The defence was essentially that all [the department] really had to do was contract out the work and through their tendering process ensure that, on paper, the subcontractor had a good safety policy," says Richard Hartlen, the Windsor, Nova Scotia lawyer who prosecuted the case. "Judge MacDougall said that's not enough ... That's pretty relevant, particularly in an era where the government is contracting out more and more services."

Two years ago, the department called for tenders to carry out the maintenance work then being done by its Lights and Signals Division. Black and MacDonald won, on the strength of what the judge described as "an impressive submission," and a contract was signed in March, 2000.

"On paper," the judge wrote, Black and MacDonald outlined a safety plan that appeared reasonable. "However, the evidence leads to no other conclusion than that it is irrelevant with respect to the installation of the traffic light standard."

The boom truck operator, a man with 25 years' experience, testified it was not his job to check the voltage, even though he was the person at greatest risk of electrocution. "His cavalier approach to this particular job appears to be consistent with that of his employer," the judge observed.

Conspicuously absent from the contractor's safety strategy was the practice -- developed when the department did the work in-house -- of bringing an electrician on-site before such installations, to evaluate the hazard posed by power lines and to contact the utility for information or assistance, if necessary.

"Since TPW [Transportation and Public Works] was aware of the potential hazard, it cannot hide behind [Black and MacDonald's] naked promise to carry out the work reasonably and legally," Judge MacDougall ruled. "TPW has a responsibility and the resources to ensure the system is implemented and monitored."

To ensure steps are taken to avoid overhead wires, he said, the department need only require the contractor to submit a hazard report by fax or e-mail. Under the contract, all maintenance work must be approved in advance, affording the department an opportunity to ensure precautions are followed on each job.

The department was fined $5,000, with the money earmarked to promote public awareness of safety issues.

The lesson, Walsh contends, is simple. "You can't contract out of your liability." His advice to those hiring contractors? "Make your contract conditional on the fact that there's certain performances. You want these people, when they come to your site, to abide by the laws, but most importantly, you want to be able to audit that yourself, to ask the questions ... and keep a record of who you've given direction to."

Dean Jobb is a freelance writer in Halifax.

Back to contents