It is commonplace for companies and supervisors across Canada to
be charged and convicted with respect to health and safety
offences. But the same doesn't necessarily hold true for health
and safety managers. In R. v. Della Valle, the Provincial Court
of Nova Scotia recently convicted and fined a health and safety
manager. This individual is now the second health and safety
manager to be convicted of an occupational health and safety
Mr. Della Valle was the occupational health and safety
coordinator of the Cape Breton Island Housing Authority, which owns
and maintains several housing units. After concerns were raised by
an employee, testing was done on vermiculite insulation found in
the attics of some of the housing units.
Mr. Della Valle came into possession of a written report which
confirmed the presence of asbestos in the insulation material, and
which outlined measures to protect maintenance workers and
occupants within the housing units. Mr. Della Valle gave a copy of
the report to and discussed it with two maintenance supervisors,
and then assumed the matter would be addressed. Six months later,
the matter again came to the attention of Mr. Della Valle, when he
learned that no steps had been taken to address the concerns
outlined in the report.
Mr. Della Valle was charged under the Occupational Health
and Safety Act of Nova Scotia for failing to take every
precaution in the circumstances to protect the health and safety of
employees and other persons at or near the workplace. He was found
guilty after trial.
Reasoning of the Court
The Court said that its task was to consider what responsibility
existed for Mr. Della Valle and then determine whether the
responsibility was exercised in the manner required by law. The
Court concluded that Mr. Della Valle had general responsibility for
health and safety matters within the organization. While he was not
engaged in hands-on repairs and maintenance, this did not diminish
his responsibility for health and safety matters in the broader
The Court determined that although Mr. Della Valle reported the
matter to two of the maintenance supervisors, he should have
reported the findings from the report to his supervisor, the
Director of the Cape Breton Island Housing Authority. He also did
not advise any other management personnel, the employees, contract
employees or the joint health and safety committee. Finally, he did
not follow-up to determine if the measures that had been
recommended in the report were actually being implemented.
While Mr. Della Valle was not paid at the level of top managers,
the organizational chart put him at the top level reporting to the
Director. As such, he occupied a unique position within the
organization and his role, as set out in his job description and
considered in the context of the legislation, was to promote a safe
and healthy workplace.
What the Supervisor Should Have Done
Mr. Della Valle, the Court said, should have:
immediately notified his supervisor (the Director) of the
contents of the report. In this regard, the Court expressed
surprise that the Director was not informed of the situation for
more than six months;
followed-up with the supervisors to determine whether and to
what extent they had acted on the recommendations. Theirs and
others' response should have involved notification to tenants,
physical modification of the premises, use of specialized
equipment, advice to employees and contractors and attendant
attended and reported at one of the monthly joint occupational
health and safety committee meetings about the presence of asbestos
in the units; and
instigated a form of hazard assessment for any worker activity
which might involve an employee of the Housing Authority entering
the attic or disturbing the insulation from below.
The lack of any of these actions resulted in the Court
concluding that Mr. Della Valle had failed to establish due
diligence. Mr. Della Valle was fined $1,000 for failing to protect
workers and members of the public. This was in addition to the
$10,000 that the Department of Community Services had been fined
after it pled guilty in 2009 to failing to protect workers and
members of the public.
Given the similarity of occupational health and safety
legislation across the country, it will not be surprising to see
other provinces' courts adopt similar standards. Employers
should ensure that their health and safety managers understand
their personal responsibilities in this regard.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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