Failing to be safe at work and the consequences!!

 I can't tell you how many times I have been out for a walk or going for a drive and come across what I suspect is as common as the Canada Geese in the park.  What would be so common when it comes to Occupational Health and Safety.

The above images were taken by me in the City of Edmonton from the street.

I don't understand why someone would risk there lives by not wearing a harness and fall restraints.  In Alberta it is required by anyone working at height (3m or more) Alberta OHS Code 154.

154(1)

An employer must ensure that if a worker is working from or on a fixed ladder or climbable structure at a height of 3 metres or more and is not protected by a guardrail, continuous protection from falling is provided by

(a) equipping the fixed ladder or climbable structure with an integral fall protection system that meets the requirements of

(i) CSA Standard Z259.2.4-15, Fall arresters and vertical rigid rails,

(i.1) CSA Standard Z259.2.5-17, Fall arresters and vertical lifelines, or

(ii) ANSI/ASSE Standard Z359.1‑2007, Safety requirements for personal fall arrest systems, subsystems and components,

or

(b) an alternate fall protection system.

 Now before anyone comments that I did nothing.  I can tell you that I did do something and have called Alberta OHS on numerous occasions when it comes to safety violations and I have seen the outcome in some cases be very strict on enforcement but I have also seen the other side when nothing is done.  

You can go through facebook and see a number of roofing companies that have pictures of roofers being unsafe (no Harness, no fall restraint, not even a spotter) yet use them as advertising on the same page - they say safety is our first priority.

I have been told my pictures can not be used as they can't be validated.  I am also a professional photographer and have had my images used in court for accident investigations.  There is a simple way to see when the image was created and what time, but the investigator wasn't interested.

That is beside the point.  I care about workers I call OHS because the situation is unsafe, that life and limb is at risk, I have watched the inspector joke around with the workers and leave, nothing happening, they put on the harness but not the fall restraint or put it on until he left.  Workers lied telling the inspector that they took them off just to move around, yet I had images spanning an hour (the time it took to show up).  But nothing came of the event and everyday I can call in and report roofers working without fall restraints above 3m, and nothing appears to happen.  Enforcement of OHS has to improve, it can't be a bother but should be a priority.

But it's not just Roofers, I have see construction workers, working aloft without a restraining Barrier on the floor they were working and not wearing fall restraints.

What's the big deal!!!!

Employers need to understand that if the employee is injured or dies as a result of not having the proper safety equipment in place or as a result of knowledge that the work is being done unsafe and not acting upon it, or provides safety equipment that has not been properly maintained or is damaged (or fails to provide Safety equipment), they may be subject to penalties outside of OHS.  This also includes that all safety functions of any piece of equipment shall be maintained in full working order.  

In the case below the brakes on a piece of heavy equipment were not properly maintained and were found to be defective, causing the driver to lose control of the vehicle and be killed, it was also learned during the investigation that the employer was aware of the defects.

A recent decision in the Quebec Court of Appeal, ( CFG Construction inc. v. R., 2023 QCCA 1032 ) found that the employer was guilty of causing death by criminal negligence after applying the 3 essential elements of negligence:

1. Conduct, either an action or an omission to fulfill a duty, displaying reckless disregard for the lives or safety of others (actus reus);
2. Manifesting a significant and conspicuous departure from the standard of conduct expected of a reasonable person in similar circumstances, demonstrating objective foreseeability of bodily harm (mens rea); and
3. Resulting in the death of a human being 

In doing so the court also reviewed a number of Statutes including the Criminal Code and (the Westray Law) sections 217.1 as well as 219(1).  This is critical as this is what moved the incident from OHS to a Criminal Act by a person, and opens the door for executive and management to be charged as well. There were also a number of other statutes under the Transportation act and Quebec Health and Safety at Work act sect 51.  Expert Testimony at Para 63

[63] Professor Roach describes the salient points of this legislative reform:

In late 2003, Parliament enacted Bill C-45, which amended the Criminal Code to provide a new regime to determine when corporations and other organizations were guilty of criminal offences, and its provisions took effect at the end of March 2004. The Bill also provided a new punishment regime to allow courts not simply to fine corporations, but also to place them on probation in an attempt to ensure that the offences were not repeated. This new regime is a fundamental change to corporate criminal liability in response to corporate misconduct that led to the death of twenty-six miners in the Westray Mine disaster, as well as events such as the Enron scandal.

The new regime replaces the common law concept of a directing mind with a new and broader statutory concept of a senior officer, which now includes those who are responsible for managing an important aspect of the corporation’s activities. At the same time, the new regime retains the idea that a senior officer of the corporation must be at fault before that person’s fault can be attributed to the corporation for either a negligence or a subjective fault offence under the Criminal Code. The new provisions do, however, allow an organization to be found criminally liable for crimes of negligence because of the aggregate actions of more than one of its representatives and the aggregate or collective fault of more than one of its senior officers. It does not go as far as vicarious liability for the fault of all employees or for fault that inheres in the corporation as an organization including “corporate culture,” as opposed to only including the senior officers of the corporation.

The new regime also lends some structure to the Criminal Code by providing a separate provision for determining organizational liability for criminal offences of negligence and for criminal offences of subjective fault. It also builds on the parties provisions of the Criminal Code by tying organizational liability to individuals in the organization being a party to the specific offence. This underlines the reality that in many cases both individuals within the organization and the organization itself may face criminal charges[34].

In its review, although there was a breach by requesting access to some documentation that in the format the request was made would have made it outside of the case, the court found that the information could have been obtained by a different application without question (via a Production order), the information obtained would have been obtained anyways, in other words the information would have been available except for the vapplication that was made.

In the end the court of appeals found that the court had addressed all of the necessary requirements of the law and the decision of the originating court was reasonable, and did not lie outside of what another reasonable person with like knowledge and information could have concluded. That there was no error in law and the originating court did not apply an inordinate amount of emphasis on the result of the act but did correctly on the fault that caused the result.

The employer and its representatives were fined $345,000 and a 3 year probationary period.  Which in my opinion, they got off light, had they been driving the vehicle and the vehicle killed a non-employee they would be going to jail.

This should be a reminder to employers that even minor repairs and maintenance can be cause to charged under 217.1 of the criminal code in the event of serious injury or death and other areas of the criminal Code could also be used in the case of Negligence under 219(1).

It is also a reminder to employees to do their inspections, and ensure the equipment is in proper working order, if it is not or the maintenance records are not up to date, you have the right to refuse unsafe work.  If the vehicle or piece of equipment is not working as it is supposed shut it down and report it.  If you believe it is unsafe refuse to continue working with the equipment. In the case above the employer attempted to place the blame on the employee for not refusing. 

The Role and Responsibility of Health and Safety Legislation is to ensure every employee gets home at the end of the day without injury or worse doesn't come home at all.