Due diligence needed with Occupational Health and Safety Act charges: Lawyer

Construction firms can be charged with occupational health and safety violations even when there are no accidents, and the courts take a dim view of companies whose safety policies only meet the bare minimum requirements, says a lawyer who defends employers.

Ryan Conlin, a lawyer for Stringer Brisbin LLP, emphasized that companies charged under the Ontario Occupational Health and Safety Act (OHSA) usually need to demonstrate due diligence when defending themselves in court.

“What courts want is that you’re walking the walk,” he said before an audience of about 200 at a presentation at Partners in Prevention, a conference and expo produced by Health and Safety Ontario.

“In almost every trial, the defendant is able to bring in a nice looking health and safety policy and might be able to bring in some evidence that individuals were trained on it, but can they really bring in evidence of a safety culture? That is ultimately what a court is going to be looking for.”

OHSA charges are easier for prosecutors to prove than criminal charges, because the Crown only has to prove the act occurred and the onus is on the defendant to demonstrate the firm had exercised due diligence.

In order to show due diligence, an employer would need to show they do more than just the bare minimum with their safety inspections, Conlin said.

“One of the biggest cultural gaps I see is, employers say, ‘We have a committee doing inspections, is that not enough? We’ll do the bare minimum that the law requires.’ I always respond to that, ‘Do you pay everyone in your workplace minimum wage? Probably not.’”

Conlin’s sessionwas titled “Lessons Learned: Key Steps to Improve your OHS Program.” Also presenting was Yvonne O’Reilly, principal of O’Reilly Health and Safety Consulting.

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O’Reilly audits employers’ safety programs and told conference attendees about common problems she finds. One “regular gap” she finds is with safety committees.

“How many members do I have? Have they gone through a selection process? Are there terms? Are they given support to do monthly inspections? Are they documenting their monthly inspections?”

She also looks for a “full spectrum” of training on hazardous materials.

Many employers want to handle Workplace Hazardous Materials Information System (WHMIS) with a “quick fix,” such as computer-based learning, she said.

“But they don’t look at, have the individuals been told about the chemicals they are specifically using? What information are you giving them about the chemicals in your workplace?”

She also checks to ensure they make all the required reports after incidents occur.

“In construction, for example, near misses have to be reported,” she said. “It still kind of surprises me how many people don’t realize feedback they have to give and how quickly.”

Conlin noted provincial regulators across the country are sending inspectors out to workplaces at random to conduct inspections, and some of his clients have been issued as many as 300 orders from a single visit.

“If you see people that are in high risk hazards are more likely to result in charges than just simply orders,” he said.

“Just because no one has been injured does not mean that you are not going to end up in court and in fact fines in Ontario for serious, high risk hazards with no accident can easily range as high as $60,000 or $70,000 when you have particularly serious issues.”

Conlin gave one example of how an employer defended itself using due diligence.

Rochon Building Corp. was working on a retail store in Whitby, east of Toronto, when a supervisor rented a skid steer. When his sleeve got caught on a control, the shovel landed on another worker’s foot.

The employer was charged with failing to appoint a competent supervisor to operate the skid steer.

“It doesn’t sound good, but the employer had a good story to tell,” Conlin said.

Rochon was able to establish that the supervisor was highly experienced in operating skid steers, that it had a written policy against wearing loose fitting clothing and they could prove the policy had been provided to the supervisor.

Before hiring the supervisor, Conlin said, Rochon did a reference check, specifically on his occupational health and safety record, with his previous employer.

“Part of his compensation was tied to his occupational health and safety performance,” Conlin said.

“How many of your organizations could say the same?”