Don’t Let this Happen to You
Recent Developments in Occupational Health &Safety Law
Recent legislative changes and case law give employers good reason to pay closer attention to occupational health and safety legislation and its application to their workplaces.
Individuals and organizations in Canada can be charged under either provincial or territorial legislation or the Criminal Code of Canada for OHS violations. Fines for convictions under the Criminal Code can be unlimited in amount. In Alberta, violation of OHS legislation can now give rise to similarly disastrous financial results.
Employers, contractors, suppliers and workers in Alberta can take steps to protect themselves from charges and, if charged, to defend themselves from OHS convictions. Lessons from some recent court decisions involving a family-owned Calgary business highlight the importance of a due diligence approach to ensuring worker safety.
In 2013 and 2014, Alberta’s occupational health and safety (OHS) legislation was amended to provide for administrative penalties and individual tickets. Administrative penalties of up to $10,000 per day may be imposed for breaching or otherwise failing to comply with occupational health and safety legislation or directives.
OHS officers also have the power to ticket individual workers and employers for contravention of Alberta’s OHS legislation. Tickets range between $100 and $500.
Lessons from the Courts
Recent OHS case law indicates that having a polished and professional safety manual and training regimen is not enough. Employers in particular are being called upon to engage proactive and creative means to stem unsafe work practices, injuries and deaths at work sites through Alberta.
Historically, employers whose workplaces were generally considered to be low-risk from an OHS perspective have not expended substantial resources in assessing workplace health and safety or their compliance with the provincial OHS legislation.
However, in R. v. XI Technologies Inc. (R. v. XI Tech), 2013 ABCA 282, the Alberta Court of Appeal confirmed the conviction of a family-owned business for the death of one of its workers at a customer appreciation event. The Court of Appeal in R. v. XI Tech went on to suggest that the employer in that case – an office-based software and related technology developer – failed miserably in any meaningful effort to engage a duly diligent approach to ensuring worker safety.
At trial, XI Tech had been acquitted. On appeal to the Court of Queen’s Bench, it was convicted for failing to have taken all steps reasonably practicable to address a foreseeable danger, which danger resulted in its worker’s tragic death. XI Tech had no prior OHS convictions and had made a substantial donation to the University of Calgary following the death of its worker in 2007. It was sentenced in 2013 to pay $275,000, inclusive of the mandatory 15% victim surcharge, for the two counts of which it was convicted under Alberta’s OHS legislation.
The upper court decisions in R. v. XI Tech provide some important lessons to all employers as well as a clear warning to those that operate traditionally low-risk work sites. At a minimum, the case suggests that to avoid charges or conviction, all employers must:
- Not rely excessively on third party representations, warranties or assurances about the safety of materials, equipment or processes to be used by the employers’ workers;
- Ensure all equipment and materials entering their work site(s) include manufacturer specifications and instructions, which are made known to supervisors and workers;
- Require immediate reporting of any “near misses”, no matter how trivial; and
- Prevent use of equipment, materials or processes involved in “near misses” until a qualified supervisor is notified and directs that work may resume.
The key lesson from R. v. XI Tech is that a proactive, due diligence approach to workplace health and safety is a must for all employers. If you would like to learn more regarding developments in this area of law or about how to bolster or develop due diligence in your workplace(s), one of our OHS lawyers would be pleased to assist you.