2006: The Year In Compliance

Intensification of Enforcement, New Laws & the Return of C-45

Quote of the Year: “In a nation as advanced as Canada, it’s hard to believe that more than 900 workers die on the job each year.”
Robert M. Griffin, president and CEO of the Canadian Standards Association

Griffin’s quote serves as the perfect backdrop for a retrospective on OHS compliance in 2006. It’s not simply that the remark came in the course of one of the year’s key developments—the unveiling of new Canadian safety systems management standard CSA Z1000-06. Griffin’s quote also furnishes a plausible explanation of what’s behind the biggest compliance story of 2006: the continued intensification of OHS enforcement.

There’s no sugar-coating it. For whatever reason, Canadian employers are doing a poor job of protecting their workers against health and safety hazards at the workplace—at least compared to their counterparts in other industrial nations. So should it really come as any surprise that companies and their safety coordinators are feeling the heat from regulators and prosecutors? Like we did for 2005, the Insider would like to look at what happened in 2006 and try to put things into perspective. Here are what we think are the most significant stories of 2006. We’ve also handed out our awards for accomplishments, both positive and dubious.

THE 4 BIGGEST STORIES OF 2006

1. The Crackdown Continues
At the beginning of 2006, the big story was the C-45 fizzle. But the intensification of “traditional” OHS enforcement activity—inspections, fines, orders and prosecutions—more than made up for the lack of C- 45 prosecutions. The continuation of this trend was the most significant development of 2006.

More Prosecutions: The step-up in OHS enforcement started in 2003 and has gained steady momentum since then. Not surprisingly, the original epicenter was Ontario. But now it has become a national phenomenon. Inspections, prosecutions and convictions are up all across Canada—most notably in Alberta, BC, Nova Scotia and Saskatchewan.

Higher Fines: Not only are companies more likely than ever before to be inspected and prosecuted, but they are also facing the prospect of ever higher penalties if they’re found liable. Examples:

• In October, Alberta fined a construction company $345,000 for a worker’s fatal fall, the highest fine ever against an employer in Alberta for an OHS violation.
  
• In March, an Edmonton paint factory was fined $75,750 after a worker suffered a serious machine injury. At the time, it was the largest fine ever levied against an employer for a non-fatal injury. Just a month later, the record was tied by an Alberta oilfield operator after a welder got hurt in an explosion. The record didn’t last long. In July, a masonry contractor was fined $125,750 for a non-fatal incident caused by a scaffolding violation.
  
• In the spring, PE increased the potential maximum fine for an OHS violation by 500 percent—from $50,000 to $250,000.
• Last year, there was only one fine as high as $300,000 in Ontario. So far this year, there have been at least three.

Different Defendants: It’s not just employers who are feeling the heat. OHS prosecutions against supervisors and workers are also on the rise:

• In February, an Ontario worker was fined $10,000 for his part in a co-worker’s fatality;
  
• An Edmonton oil drilling worker was fined $4,150;
  
• Ontario has laid OHS charges against supervisors at least six times this year; and
  
• Even Saskatchewan got into the act, fining a supervisor $2,860.

The Lesson: Even without C-45, the pressure of traditional enforcement will make OHS compliance an imperative in the months to come.

2. New Laws Change the Hazard Landscape
Regulatory pressure is coming not just from the officials who enforce the laws but the ones who create them. A number of important new health and safety laws were enacted or took effect in 2006. Many of these laws addressed traditional hazards such as machine safety, scaffolding, hoists and such. The most notable example: the Ontario confined spaces regulations, which took effect on September 30.

But the crop of new 2006 laws included regulations covering workplace hazards not addressed in traditional OHS laws. Secondhand smoke is the most notable example. In 2003, Nova Scotia became the first province to ban smoking in indoor places, including workplaces. On May 31, indoor smoking bans went into effect in the two biggest provinces, Ontario and Québec. In other provinces where such laws were already on the books, 2006 witnessed the first prosecutions for indoor smoking offences.

Two years previously, Québec took the lead in making psychological harassment a workplace hazard. In 2006, courts started ruling on actual complaints under that law for the first time. The other significant “new” workplace hazard making headlines in 2006 was avian influenza. Although it spawned no regulations, the risk of pandemic prompted at least three provinces—BC, MB and ON—to publish guidelines clarifying what employers should do to safeguard their workers (and their businesses).

The Lesson: The advent of new regulations and re-interpretation of old ones will force safety coordinators to make changes on the fly and render standard compliance formulas obsolete.

3. Canadians Get Their Own Home-Grown Safety Standard
There are lots of voluntary standards for safety management. So the publication of another one isn’t big news. But CSA Z1000 isn’t just another standard. It’s the first standard tailored specifically for Canadians. That’s important because when it comes to health and safety, Canada isn’t just another country. It’s built upon the Internal Responsibility System and the allocation of responsibility among workplace stakeholders, including workers, supervisors and management.

The new CSA standard incorporates this uniquely Canadian ethos. As such, it is likely to be more attractive to Canadian safety professionals than standards from the U.S., U.K. and international organizations. And, although it’s a voluntary standard, CSA Z1000 is likely to be seen as a best practice benchmark that’s referenced in determining if a company met its due diligence obligations.

The Lesson: All Canadian companies will need to at least consider CSA Z1000 as part of their liability management strategy. And while you don’t necessarily need to adopt it, you do need to document why you think you can take “reasonable steps” without it.

4. The Resurrection of C-45
You know those horror movies where the supposedly slain monster springs back to life? C-45 had a similar moment in 2006. After almost two years, a company has finally been prosecuted for criminal negligence under the law. The case is from Québec and involves a machine fatality. Labour unions actively lobbied prosecutors to bring the case. But the fact that no individual corporate defendant has been charged has left them disappointed. Nevertheless, the case is the first “real” C-45 prosecution (the 2005 prosecution of Ontario supervisor Domenico Fantini was an aberration) and thus will bear serious watching.

The Lesson: C-45 is not dead.

Conclusion
Here are five things the Insider expects to happen in 2007:

• OHS inspections, prosecutions and fines will continue to rise not only in Ontario but in all provinces;
  
• Workers’ assertion of privacy rights under PIPEDA and provincial privacy laws will complicate incident investigations, processing of workers’ compensation claims and other OHS management functions;
  
• Ontario will push the envelope and start fining employers for ergonomic violations even though there are no ergonomic standards in its OHS regulations;
  
• C-45 will remain largely dormant as prosecutors await the outcome of the Québec case; and
  
• Other provinces will lay charges against safety directors—regardless of what happens in the Nova Scotia Dearing case.

THE INSIDER OHS AWARDS FOR 2006

CASE OF THE YEAR:
The C-45 prosecution of Transpave for criminal negligence in connection with the death of a worker in a machine incident in Québec. The company has apparently been charged with disabling the machine’s optic security device, failure to inspect and lack of adequate safety supervision.

RUNNER-UP: The Ontario case in which the president of a steel company was charged as a supervisor with a machine guarding violation. He pleaded guilty and was fined $3,500 [Quality Machine & Metalworks Inc., Govt. News Release, July 20, 2006].

THE WHAT ARE YOU WAITING FOR AWARD: Goes to Alberta and PE for still not applying the protections of their OHS laws to farm workers and agricultural operations.

THE WORST EXCUSE FOR REFUSING WORK: The paper company worker’s claim that it was too dangerous to wear a hardhat in a space packed with dangerous machinery and flying debris because head protection restricted his visibility [Duplessis & Forest Products Terminal Corp., [2005] C.L.C.A.O.D. No. 58, Dec. 23, 2005].

BEST DECISION BY A JUDGE: Justice Marion Lane of the Ontario Court of Justice who ruled that an HVAC contractor’s following of a longstanding industry standard wasn’t due diligence. Even though people in the industry had been following the standard for years without incident, the standard had serious safety flaws and was bound to result in an injury eventually [R. v. Modern Niagara Toronto Inc., Ont. Ct. of Justice, April 24, 2006].

WORST DECISION BY A JUDGE: Goes to the Ontario arbitrator who ruled that a water bottling plant was wrong to terminate a security guard for leaving the plant unattended at night with the doors unlocked because the guard wasn’t being “bad on purpose” [Montour v. Byrne, 2006 CanLII 27494 (ON L.R.B.) Aug. 4, 2006].

MOST PROGRESSIVE NEW SAFETY LAW: To the New Brunswick workers’ compensation demerit system.

THE TRAGEDY OF THE YEAR: The death of two mine workers and two paramedics as a result of exposure to hydrogen sulphide gas in the Sullivan Mines in British Columbia. Few episodes from 2006 did as much to remind safety professionals of what impels them to do what they do.