Suppose that, despite your best efforts, there’s an incident in your workplace. You’d like to take measures to fix the problem and prevent similar incidents from happening in the future. But if you, say, install additional safety equipment or modify your safety policies and procedures after an incident, can those actions be used as evidence against you?

Take the recent death of luger Nodar Kumaritashvili during a training run for the Winter Olympics in Vancouver. Officials from the International Luge Federation and the Vancouver 2010 organizing committee said their investigation “found no indication the accident was caused by deficiencies in the track,” blaming Kumaritashvili’s inexperience for the tragedy.

However, they made alterations to the supposedly safe track anyway, shortening the run, altering the angle of the ice at corner 16 and raising the ice wall in front of the metal girder that Kumaritashvili’s body had struck. They claim that the changes were made “to deal with the emotional components of the athletes, to alleviate, as best as possible, the traumatic experience of this tragic event.” But does the fact that officials made these changes indicate that the track was, in fact, unsafe before? Should these changes have been made earlier when other lugers raised concerns about the track’s speed?

Subsequent Repairs in the OHS Context

Here are two cases in which courts were asked to decide whether  remedial measures taken by a company after a safety incident should be allowed as evidence of the company’s guilt before the incident.

COMPANY WINS

FACTS: Frozen hamburger patties got stuck in the nitrogen tunnel part of a production line at a Saskatchewan meat packing plant. A worker reached into the tunnel to remove the stuck patties.  Her hand got caught when her engagement ring snagged on the conveyor belt.  The worker lost two fingers when she pulled her hand free. In response to the incident, the plant made improvements to the production line to prevent similar incidents in the future. The prosecutor charged the plant with improper supervision under Section 57(b) of the OHS Act and asked the court to let it present evidence of the subsequent improvements to the production line to show the plant’s guilt.

DECISION: The Saskatchewan court refused the prosecutor’s request.

EXPLANATION: The court said that evidence of the plant’s subsequent improvements to the production line couldn’t be used against the plant to determine its guilt or innocence. The court relied on language from an 1869 case from England stating that “people do not furnish evidence against themselves simply by adopting a new plan in order to prevent the recurrence of an accident.” Letting the prosecution use post-incident improvements as evidence of guilt “would be barbarous,” it said. It would be the same as saying that, “because the world gets wiser as it gets older, therefore it was foolish before”

[R. v. CIC Foods Inc., [2004] SKPC 77 (CanLII), July 14, 2004].

COMPANY LOSES

FACTS: While a company was repairing a ship, a fire broke out on a conveyor belt where the company’s workers had been working. The ship’s owner sued the company for not following proper welding and fire safety practices and procedures. The ship’s owner asked the company to describe the fire safety practices and procedures it adopted after the fire. The company refused. So the ship’s owner asked the court to force the company to give it the requested information.  

DECISION: The Ontario court granted the ship owner’s request.

EXPLANATION: The court explained that evidence of remedial measures taken after an incident  isn’t generally allowed to be used against a company on the theory that companies may be discouraged from taking remedial measures for fear that doing so will later be used against them. But the court rejected that theory, saying it’s unlikely that a company would do nothing—and risk further incidents—simply out of fear that doing something might be used against it later.  So the ship’s owner had a right to evidence of any changes the company made to its fire safety practices and procedures [Algoma Central Railway v. Herb Fraser and Associates Ltd., [1988] O.J. No. 1849, Nov. 29, 1988].