Workers from an HVAC contractor pressurized pipes with nitrogen gas to check for leaks before installing a cooling system. A welder wrongly believed the test was over and the pipes were no longer depressurized. As he bent over a pipe, a sudden release of gas caused a metal coupling to blow off and hit him in the face, causing serious injuries. The company was found liable for a safety violation because it didn’t have a procedure for depressurizing pipes—it simply relied on workers to follow the same procedure they learned while they were in their apprenticeship [R. v. Modern Niagara Toronto Inc.].
THE PROBLEM
Hiring experienced workers or tradesmen who’ve gone through an apprenticeship and don’t need to be trained from scratch can be a good strategy. But companies can’t simply rely on workers to use the procedures they learned in their apprenticeship as a substitute for developing safety procedures that address the specific hazards and conditions of their own workplaces. The Modern Niagara case illustrates the risks of taking shortcuts in developing appropriate safety procedures and protocols.
THE EXPLANATION
OHS laws require employers to develop safety procedures that are appropriate for the hazards in their workplace, train workers to use those procedures and monitor the effectiveness of the procedures and whether workers are actually following them. This duty applies to all hazards in the workplace, including those for which workers have learned “industry standard” procedures during their apprenticeship training. The fact that workers have already been trained on a basic procedure for performing a particular task isn’t enough; each company has a duty to develop its own procedure that’s suitable for the hazards and conditions of the particular workplace.
The company in Modern Niagara learned this lesson the hard way. During their apprenticeship, steamfitters and plumbers were taught how to do gas pressurization tests for leaks in new installations, such as the test performed in this incident. The company simply assumed that workers would follow these procedures and didn’t bother to develop any procedures of its own for pressurizing/depressurizing pipes. In fact, the company’s OHS consultant testified that “neither he nor the company had ever put their minds to the need for any further procedure.”
The problem with the company’s approach, explained the appeals court, was that the procedures workers learned during an apprenticeship covered only part of the process—that is, the mechanics of putting on and discharging gas tests. They didn’t address important safety issues, such as measures to prevent tampering and who puts the test on, who monitors it and who discharges it. They also didn’t deal with more modern methods of communicating the fact that a gas test was taking place to other workers, such as through signs, tags and lockouts, added the court. In short, the court found that implicit in the requirement that a company develop safety procedures is the idea that each company must direct its mind to a specific issue or hazard and set out all the necessary steps for addressing that issue or hazard at its own workplace.
THE LESSON
Although the company in Modern Niagara had a general safety policy and held “tool box talks” and safety audits, as to gas pressurization tests, it didn’t develop site-specific procedures or do anything else to supplement workers’ apprenticeship training. The irony in the Modern Niagara case is that after the incident, the Ontario MOL issued a stop work order barring the company from using compressed gas until it had developed a detailed written procedure for gas pressurization tests. Management then developed a comprehensive procedure that considered the relevant circumstances and was intended to make the process as “fool-proof” as possible. As the appeals court noted, “There is no reason why such a procedure could not have been devised prior to the accident.”
You and your fellow officers and directors must ensure that our company doesn’t wait until a safety incident to ensure that it has adequate safety procedures in place. As the appeals court explained in Modern Niagara, to prove due diligence, the company will need to show that it has:
SHOW YOUR LAWYER
R. v. Modern Niagara Toronto Inc., [2006] ONCJ 336 (CanLII), April 24, 2006
Loading ...
