How to Avoid Personal Liability for Your Company’s Safety Violations
Health and safety charges are being laid in increasing numbers against companies, corporate directors, supervisors and even workers. But, so far, one group has managed to stay out of the dragnet: safety coordinators. To some extent, this omission isn’t too surprising. After all, the OHS laws don’t mention safety coordinators. And, until recently, no Canadian prosecutor had successfully held one personally liable for a company’s safety violation.
But then came the Dearing case. In 2007, Nova Scotia became the first province to successfully prosecute a safety coordinator for a safety violation. This case, which ended with the safety coordinator’s guilty plea, set off a wave of panic among safety professionals who feared that it was the start of a new prosecutorial trend targeting safety coordinators. Although those fears have so far proven to be unfounded, safety coordinators shouldn’t be lulled into thinking safety charges couldn’t be brought against them.
How serious is the threat of prosecution and what can safety coordinators do to protect themselves against it? This article will provide some practical answers. With help from Ryan J. Conlin, a Toronto OHS lawyer, we’ll explain how safety coordinators could be held personally liable for safety violations and what lessons can be learned from the Dearing case. We’ll also give you three strategies to minimize your risk of personal liability for your company’s safety violations. Also, there’s a model clause you can adapt and add to your employment contract as well as a model job description that you can adapt and use.
WHAT THE LAW SAYS
What law says that a safety coordinator can be personally liable for a health and safety offence? The first and most obvious place to look for a source of personal liability for safety coordinators would be in the OHS laws. These laws impose safety-related duties on owners, contractors, employers, supervisors and even workers. But they don’t mention safety coordinators. Their omission from the list of workplace stakeholders who have safety responsibilities seems to suggest that safety coordinators can’t be charged with OHS offences, right? Wrong.
2 Ways a Safety Coordinator Can Be Liable
The Dearing case makes it quite clear that safety coordinators can still face health and safety charges even though there’s nothing in the OHS laws that expressly imposes liability on them. Conlin explains that there are at least two theories on which a safety coordinator could be held liable for a safety offence:
1. The safety coordinator is a “supervisor” under OHS laws. Many provinces impose specific safety responsibilities on supervisors. The definition of “supervisor” varies from jurisdiction to jurisdiction but typically includes individuals with control over the workplace or authority over workers. If safety coordinators had such control or authority, they could be prosecuted as a supervisor for a safety violation. Even though safety coordinators typically don’t supervise workers directly, Conlin warns that certain powers traditionally associated with supervisory authority, such as the power to discipline workers, may be enough to make a safety coordinator vulnerable to being charged as a supervisor under OHS laws.
2. The safety coordinator has “control” under C-45. Even though OHS laws are the primary source of liability, safety coordinators could also be charged for safety violations under other laws. The most obvious risk would be the potential for a criminal negligence charge in connection with a workplace fatality or injury under C-45. Explanation: C-45 (Section 217(1) of the Canadian Criminal Code) requires a person who “undertakes, or has the authority, to direct how another person does work or performs a task to take reasonable steps” to protect against bodily harm arising from the work.
Safety coordinators typically have at least some control over how work is carried out. But although in theory the prosecution of a safety coordinator under C-45 is possible, in practice it’s “extremely unlikely,” says Conlin. For one thing, the failure to take “reasonable steps” must be wanton and reckless to constitute criminal negligence under C-45. And most safety violations simply don’t meet this standard. A run of the mill safety violation generally isn’t committed wantonly or recklessly. However, if a safety coordinator commits an egregious violation, he could face criminal negligence charges under C-45. Conlin suggests that a C-45 prosecution would be possible if, say, a serious injury or fatality resulted from an obvious safety hazard that a safety coordinator missed or deliberately ignored during a workplace inspection or audit. Another obvious target for prosecutors would be a safety coordinator who developed an OHS system that didn’t comply with basic OHS standards, such as fall protection or machine guarding requirements.
Insider Says: For a more detailed discussion on the possible ways safety coordinators could be held personally liable for a company’s OHS violations, see Insider, Vol. 2, Issue 1, p. 1.
LESSONS FROM THE DEARING CASE
Now that we’ve described the legal backdrop that could result in personal liability of a safety coordinator for a safety violation, let’s put the Dearing case in perspective. The case was the result of a fatality that occurred during the dismantling of an old steel mill in Sydney, NS. A worker was crushed to death after a 680-kg steel beam being lifted by a crane broke loose from its hoist and hit the worker in the head. Instead of filing charges against the company or senior management, prosecutors charged the company’s safety manager, Bernard Dearing, as an “employer” with failing to “establish and maintain a written occupational health and safety program” under the NS OHS Act.
The case was resolved rather anti-climactically when, on May 8, 2007, Dearing pleaded guilty to a “technical” violation—developing the site safety plan without consulting the company’s JHSC as required by the Act. The judge fined Mr. Dearing $1,000, but noted that his actions didn’t cause the tragedy. Even the prosecutor acknowledged that Dearing’s offence was an administrative error and not directly related to the incident.
In the wake of the Dearing case, the courts haven’t been flooded with prosecutions against safety coordinators. Conlin believes, as do many safety experts, that the case is an aberration and in many ways, a “red herring,” particularly the approach of charging Mr. Dearing as an “employer.” It got a lot of attention simply because such prosecutions are so rare. But Conlin says that there is at least one lesson to be learned from Dearing: You never know when and under what circumstances a prosecutor will charge a safety coordinator with a safety violation. So don’t get a false sense of security and assume that what happened to Bernard Dearing could never happen to you. Safety coordinators are no longer flying under the radar. Sooner or later, prosecutors were bound to “discover” them. That’s what happened in Dearing. And it’s bound to happen again.
Another lesson from Dearing is that as long as prosecutors have the will, they also have the legal tools they need to charge a safety coordinator with a safety violation. Whether it’s by interpreting the traditional OHS laws—such as, by treating the safety coordinator as a supervisor—or resorting to new ones, such as C-45, prosecutors could be able to find a way to hold a safety coordinator liable.
3 STRATEGIES FOR MINIMIZING YOUR LIABILITY RISKS
As they say, the best defence is a good offence. So even if the risk of prosecution is relatively remote, like other professionals, safety coordinators should be proactive and take steps now to protect themselves from liability. Of course, the best way to reduce your liability risk is to simply do your job as safety coordinator well—that is, set up and implement an OHS system that complies with the OHS laws and effectively protects workers from injuries and illnesses. But despite your best efforts, safety incidents may still happen. So here are three strategies for minimizing your risk of personal liability for such incidents.
Strategy #1: Document, Document, Document
If you work for a company that doesn’t invest adequately in safety and constantly rejects safety recommendations, it may be only a matter of time before incidents occur. If those incidents lead to prosecution, your personal liability will depend on whether you can prove that you gave the appropriate safety information and recommendations to the people in the company with the power to act on them. For safety coordinators to prove that they did so, they’ll need to show that they:
It would be hard to hold a safety coordinator who could prove these things personally liable for a company’s safety violation. That’s why Conlin recommends that you create a paper trail detailing your communication of safety-related information and issues to the people in the company with the power to address those issues—especially if management ignores your recommendations, he adds. He suggests that, at a minimum, you should document the following:
Strategy #2: Make Sure Your Job Description Is Accurate
Somewhere, whether in your employment contract or employee handbook, there should be a description of your job as safety coordinator. Prosecutors and courts might rely on this job description to determine whether to hold you responsible for safety violations committed by your company. For example, the job description could help prosecutors determine:
So it’s very important that your job description accurately describes your actual functions, responsibilities and limits on your authority. It should also specifically state whether you’re a “supervisor” under your jurisdiction’s OHS law. We have a model job description that you can adapt and use in your employment contract or other company document. (Check with your company’s lawyer about adapting the model job description.)
But make sure your job description “reflects the realities of the situation,” warns Conlin. Liability is based on what a safety coordinator actually does, not what the job description says he does. And although a court may consider your job description, it’s not binding. So even if your job description specifically states that you’re not a supervisor, the court may still treat you as one if your actual daily duties reflect those of a supervisor.
Insider Says: Some safety coordinators may be supervisors as well, particularly in small companies where everyone wears several hats. If you’re in that situation, make sure that your job description accurately reflects these dual duties—and that you comply with your jurisdiction’s duties for supervisors, if its OHS law spells out specific duties for supervisors.
Strategy #3: Get Company to “Indemnify” You
To paraphrase Robert Burns, the best laid plans of mice and men often go astray. Despite all your efforts as safety coordinator, safety violations or incidents may still occur. If you end up being charged as a result, you want the company to “indemnify” you—that is, defend you and hold you harmless. This request is reasonable since such a prosecution or other legal proceeding will stem from your duties as safety coordinator and thus your work on the company’s behalf, says Conlin.
So Conlin suggests that you try to get the company to agree to include an indemnification clause in your employment contract. This clause, like our model clause, should require the company to do two things:
Conlin says that although an indemnification clause is good to have, it shouldn’t be a deal breaker for most safety coordinators. But he adds that the more senior you are, the more important such a clause is. If you’re the regional OHS manager in charge of safety management for several corporate facilities or the corporate safety compliance officer, he says it’s more likely that prosecutors will go after you. So an indemnification clause is more important for those types of safety coordinators than for the run-of-the-mill safety coordinator.
Conclusion
It’s safe to say that the Dearing case did not usher in a new era of prosecutions against safety coordinators. Conlin says that the case is, to be blunt, “bizarre.” The facts and resulting plea are very unusual. It wasn’t the type of case that screamed out for the prosecution of a safety coordinator. In fact, the technical violation that Dearing committed had nothing to do with the fatality.
But maybe that’s why the case is important. Although nobody saw it coming, the case did happen. And it would be naïve to think that it will never happen again. No one knows what goes on in the minds of regulators and prosecutors. So trying to guess what kinds of cases might lead to a prosecution of a safety coordinator is in many ways a futile exercise. And Conlin notes that prosecutors these days, at least in Ontario, seem to be more reluctant in general to drop charges against individuals and let the company take the bullet. Instead, they prefer to go after both companies and individuals for safety violations.
Bottom line: Although prosecutions against safety coordinators aren’t likely to become a regular occurrence, the threat of such prosecutions remains a real one. So if you’re a safety coordinator, you need to recognize the risk that you could be prosecuted at any time for a safety violation. The good news is that as long as you do your job professionally, maintain your commitment to protecting the health and safety of your workers and take the risk management strategies described in this article, you’re highly unlikely to become the next Dearing.
INSIDER SOURCE
Ryan J. Conlin: Stringer Brisbin Humphrey, 110 Yonge St., Ste. 1100, Toronto, ON M5C 1T4; (416) 862-1616; RConlin@sbhlawyers.com.
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