Canada: Cox And Palmer Regional Construction Group Newsletter Spring 2015

Occupational Health & Safety Legislation: How Safe is Safe Enough?

Overview

On May 21, 2013 Chris Boyle, an employee of R.D. Longard Services Limited ("Longard"), died on the job after being electrocuted.  Longard was charged under the Nova Scotia Occupational Health and Safety Act.  The charges included not taking every reasonable precaution for the health and safety of Mr. Boyle.  By decision dated April 17, 2015, Judge Anne Derrick found Longard guilty.  Sentencing is to take place later. 

The main issue Judge Derrick was called upon to address was whether Longard had taken sufficient safety steps with respect to its employees and the particular job in question. 

Background

Longard is a commercial and residential electrical services company.  Mr. Boyle was an experienced journeyman electrician who was trusted to work independently and whose past record indicated he was very safety conscious for both himself and fellow employees.  Mr. Boyle and other employees of Longard had, in 2012, taken certain courses through the Nova Scotia Construction Safety Association.  In the months prior to the accident Mr. Boyle was in the process of developing a safety policy manual for Longard. 

The job in question involved the installation of the electrical service for a retail space in the Bayer's Lake Industrial Park near Halifax.  The contract documents anticipated some work being done outside of normal working hours to allow the electricity to be deactivated in the building so as to minimize inconvenience to other tenants.

On May 21, 2013 Mr. Boyle went to the job site with one other Longard electrician as well as a student from the Nova Scotia Community College who was on an unpaid work term with Longard.  For reasons which Judge Derrick found unknown, the electricity to the area in question was not deactivated prior to Mr. Boyle and the others beginning their work in the area.  Mr. Boyle was aware of this.  During the course of the work Mr. Boyle was electrocuted and died soon thereafter. 

Longard was subsequently charged with two offences:

  1. Failure to take 'every precaution reasonable in the circumstances to provide such information, instruction, or supervision' as necessary to the health and safety of Mr. Boyle; and
  2. Failure, to 'ensure that an electrical installation was serviced, repaired, or dismantled, in accordance with the latest version of CSA standard, CSA C22.1, Canadian Electrical Code Part I, Safety Standard for Electrical Installations'.

Longard Defence

Longard pleaded not guilty to the charges.  It put forward a due diligence defence.  It argued that it should not be responsible for Mr. Boyle's electrocution because he was a very experienced journeyman electrician and it was not reasonably foreseeable that such an experienced, responsible electrician would work on a live electrical system. 

Decision of the Court

Judge Derrick rejected the defence put forward by Longard.  She ruled that Longard's simple reliance on Mr. Boyle's experience and strong safety record was insufficient to meet the obligations placed on the company by the Occupational Health and Safety Act.  At the time of Mr. Boyle's death, Longard did not have in place a formal safety program.  Although Mr. Boyle was working on one leading up to the time of his death, Longard did not have in place a written safety manual. 

Judge Derrick reviewed the applicable provisions in the Occupational Health and Safety Act.  She stated that the "foundational principle" of the Act is the "Internal Responsibility System" which mandates shared responsibility by employees and employers for the health and safety of persons at the workplace.  She held that under the Act, Longard had a responsibility to "create and maintain" a safe workplace separate and apart from the obligations upon Mr. Boyle to work safely.

Judge Derrick noted and accepted that Longard had taken certain steps to create a safe work environment for its employees.  The question that she needed to answer was whether these were enough. 

Judge Derrick concluded that Mr. Boyle's decision to work on the job without first de-energizing the premises was a "tragic, fatal miscalculation".  However, she went on to rule that this miscalculation did not absolve Longard of responsibility for its obligations under the Act

Her Honour concluded that the actions of Longard did not meet the requirements of the Act.  She stated:

"The company took a completely hands-off approach to Mr. Boyle's work:

  • it had no safety program, no manual, no policies;
  • it provided no training to its junior employees;
  • it relied exclusively on Mr. Boyle's experience and commitment to safety; and
  • it provided no supervision." 

Judge Derrick contrasted this situation with a Court decision from Alberta in which the company was found to have met its obligations with respect to workplace safety.  In that matter the company had:

  • "Implemented a safety policy that was "exhaustive and kept up to date";
  • created a safety manual that was designed specifically for its workers and which was provided to them to review and sign;
  • conducted "tailgate" safety meetings that were held and recorded; and
  • conducted a pre-project hazard assessment that involved a safety orientation."

Judge Derrick concluded that the defence of due diligence had not been made out and Longard was therefore guilty as charged. 

Conclusion

This decision and the guilty finding against Longard further reinforce the necessary and mandatory requirement to implement, maintain, and oversee a robust safety policy.  In the absence of such a policy, injury or death to an employee, even an experienced and safety conscious employee, can result in charges which will be difficult to defend.  

Although there are differences in the various Occupational Health and Safety Acts in the four Atlantic Canadian provinces, the basic principles and responsibilities are the same.  As such, this decision is relevant and applicable throughout Atlantic Canada.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Peter C. Rumscheidt
 
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