Know Your Surroundings

Canada — with its distinctive attribute of sea to sea to sea — demands a sharp eye from employers looking to stay on the right side of occupational health and safety requirements found in various jurisdictions.

Indeed, a recent conviction in Ontario speaks to the legal challenges that may arise for employers whose operations cross borders. Lockerbie & Hole Eastern Inc., the Ontario arm of Edmonton-based Lockerbie & Hole, was fined $250,000 on September 29 after pleading guilty to violating Ontario’s Occupational Health and Safety Act in connection with the death of an employee two years earlier, the Ministry of Labour (MOL) reports.

Specifically, Lockerbie & Hole Eastern did not have any record to demonstrate the deceased worker had received “detailed training” on its electrical lockout policy, and the policy made reference to requirements in Alberta, not Ontario, where the workplace was located.

It’s an example that offers employers some helpful reminders, say legal observers. “It is important for an employer to show all steps that it has taken to maintain a safe workplace, including training on any policy,” says Noella Martin, a partner at Wickwire Holm in Halifax. And it’s no less important to ensure a company policy is adapted to the requirements of the particular jurisdiction where the work is being done, Martin adds.

ON GUARD

Back in October of 2007, Lockerbie & Hole Eastern was hired by SNC-Lavalin Power Ontario Inc. to provide general site services for the construction of an electrical plant in Toronto. An apprentice electrician was installing temporary lighting when the worker came in contact with the taps of a live transformer within a 600-volt electrical panel and was electrocuted, notes a bulletin from the MOL. (SNC-Lavalin Power Ontario was later also fined for breaching Ontario’s OH&S Act.)

The experience of Lockerbie & Hole Eastern, Martin says, illustrates that an employer “needs to be on guard” at all times to ensure safe work procedures are current and accurately reflect the legislative demands of the work being done.

Martin says she finds it “quite surprising” the Crown emphasized the company’s reliance on out-of-province legislation in light of the fact that few differences on lockout requirements would likely exist between Ontario and Alberta.

Jamie Alyce Jurczak, an associate at Taylor McCaffrey LLP in Winnipeg, says “being able to demonstrate, with a paper trail, the specific nature of the training, the frequency of the training, and the employees’ understanding of the training are all important aspects of proving [employer] due diligence.”

Key in any such defence is an employer’s ability to prove “the nature of the risk that the worker is specifically exposed to has been assessed and the control measures [have] been communicated,” notes Norm Keith, a partner at Gowling Lafleur Henderson LLP in Toronto.

However, Martin and Keith both agree that demonstrating training has occurred is sometimes easier said than done. Martin points to the construction industry. A lot of training sessions “are essentially in the context of a toolbox meeting,” she says, less formal gatherings that typically do not include requirements for workers to sign off on the training received.

Still, Keith advises having workers certify in writing that they have received specific training can save headaches for employers should they later need to mount a due diligence defence. “Due diligence is as much or more about what you can prove as opposed to what people actually knew or were supposed to do,” he suggests.

Referencing regulatory requirements in safe work procedures is not “absolutely critical,” says Keith, but is “advisable and, on balance, preferable.” If a company goes to the trouble of citing specific requirements, though, it should ensure that these are appropriate to the jurisdiction in which the work is being carried out, he adds.

Martin offers a word of caution for employers with operations in different provinces who may be tempted not to reference regulatory requirements. Doing so may result in policies that are “less meaningful” and overly generic, she says, adding that citing specifics gives workers direction as to where they can go for additional information.

While differences in various provincial requirements “may appear minor, they may be more significant than anyone realizes, and may be the difference between compliance and noncompliance,” Jurczak suggests.

An intriguing hypothetical situation remains: If Lockerbie & Hole Eastern had been able to prove the deceased was trained on its lockout procedures, would it still have been called to task for referencing Alberta requirements?

It’s a question the MOL declines to entertain. William Lin, a ministry spokesperson in Toronto, says it cannot “speculate about what convictions would or could have occurred.”

Martin, who is unaware of any similar court cases in Nova Scotia, says it may be worthwhile for a company to fight OH&S Act charges — arguing due diligence — if its only fault was citing out-of-province legislation. That, of course, is assuming the local and out-of-province requirements are “substantively similar,” she emphasizes.

Dan Birch is editorial assistant of OHS CANADA.

———

…the policy made reference to requirements in Alberta, not Ontario, where the workplace was located.