An employer’s primary duty under the OHS laws is to take all reasonable steps to ensure the health and safety of its workers. But suppose a safety incident occurs that didn’t endanger any workers but did put members of the public outside of the workplace at risk. Could the employer be held liable for violating a duty under the OHS laws? Or does an employer’s duty to protect apply to workers only and not to members of the general public as well? That’s the argument a company made in a recent case from the Yukon. Here’s a look at the court’s response to that argument.
What Happened: The Yukon Department of Community Services (Department) hired a contractor to build a roadway extension. The contractor in turn hired a licensed blaster to conduct explosive blasts to remove rock along the route. After conducting some 18 blasts without incident, the blaster conducted the largest blast, which showered a nearby trailer court with flyrock ranging from pebble-sized pieces to ones weighing 22 kg. One destroyed a shed; another crashed through a trailer’s roof, landing in the living room. A tenant who was outside had to run for cover. Luckily, no one was injured or hurt. But the Department, the contractor, a supervisor and the blaster were charged with OHS violations. The blaster pleaded guilty; the rest went to trial.
What the Court Decided: The Yukon Territorial Court convicted the Department, contractor and supervisor.
How the Court Justified the Decision: Before the court could get to the defendants’ due diligence defences, it had to address the contractor’s argument that the OHS law imposes a duty on employers to safeguard their workers only—not the general public. Because there was no evidence that the blast endangered any workers, it should be acquitted. The court rejected this narrow interpretation of the OHS laws. Although the primary purpose of the OHS laws is to safeguard workers, it’s secondary purpose is to safeguard members of the public who may be impacted by what goes on in the workplace, explained the court. For example, there are references in the OHS laws to “hazards to workers and any other person” (emphasis added). There are also requirements that clearly apply to hazards to the general public, such as requirements to cover sidewalks near construction sites, regulations on the transport of explosives on public roads and requirements setting minimum distances between blasts and roads or buildings. Lastly, the specific duty imposed on a blaster is “not to permit any work that may jeopardize the safety of any person” (emphasis added). The court concluded that it’s no answer to OHS violations to simply say that “my activities didn’t endanger my workers; they only endangered the general public.”
The court also found that the defendants didn’t exercise due diligence. The risk to the trailer court from a large blast was foreseeable. Maps provided to the contractor clearly showed how close the trailer court was to the road. But the blaster never saw these maps and, as a result, miscalculated the distance. Had he known the correct distance, the blast would have been handled differently. For example, sand or blasting masts could have been used to contain the flyrock or smaller blasts could have been made. The contractor could have warned the residents of the trailer court of the blast or even evacuated them. Finally, the court noted that the defendants were aware of a prior blasting incident on this road that caused a rock to go through the roof of a trailer in this same trailer court and so should have used “an extra degree of vigilance” when blasting in that area [Director of Occupational Health and Safety v. Government of Yukon,  YKTC 42 (CanLII), May 11, 2010].
The OHS laws are what’s called “public welfare” laws, which the court in the Yukon case noted should be interpreted broadly and liberally. Clearly, a safety coordinator’s first priority—and the company’s first priority—should be taking steps to protect workers. But you can’t turn a blind eye when jobs or activities in the workplace could injure or kill people outside the workplace by blithely shrugging and saying, “Not my problem.” The Yukon case makes it clear that the safety of members of the general public is, at least to some extent, your problem.