Law of the Year
Bill 16, the Traffic Safety (Distracted Driving) Amendment Act, 2010, took effect Sept. 1. It bars drivers from reading, writing or attending to personal hygiene or grooming and holding/using hand-held, portable communication/entertainment devices, such as cell phones, laptops or MP3 players, while driving.
Other Notable Regulatory Changes
In Jan., Alberta Occupational Health and Safety released new forklift health and safety best practice guidelines that cover:
- Relevant laws
- Key elements of an OHS program for forklifts
- Hazard assessment
- Worker training and competency
- Management, supervision and internal responsibility
- Safe operating procedures
- Equipment maintenance and modification
- Facility design
- Preventing injuries to muscles, joints and bones.
In June, the government released best practice guidelines for employers and workers in the healthcare industry to improve health and safety. Volume 4 is on assessment and control of physical hazards.
In July, stricter guidelines took effect for companies to keep their Certificate of Recognition and stay eligible for annual workers’ comp rebates and able to bid on certain projects.
In May, four more cancers—prostate, breast, skin and multiple myeloma—were added to the list of cancers with presumptive workers’ comp coverage for full-time firefighters.
Amusement Ride Safety
In March, the government implemented new rules on amusement ride safety after an incident at the Calgary Stampede in 2010. For example, owners must keep on-site inspection reports from all jurisdictions in which an amusement ride has operated for five years and complete an owner and Alberta Safety Codes Officer checklist for each ride.
Case of the Year
AB Case Demonstrates that Due Diligence Defence Can Work
An oil company hired a crane company to lift a piece of oilfield equipment and an independent supervisor to coordinate and supervise the lift. A rigger was killed during the lift when he stepped on the “grasshopper” linkage to free a stuck sling and was hit in the head. The crane company was charged with two OHS violations, but the Alberta Provincial Court ruled that the crane company had exercised due diligence and dismissed both charges. No one involved in the lift knew that the rigger was going to step on the grasshopper—it was a spontaneous action in response to the stuck sling. The court described the tragedy as “one of the bizarre and unimaginable accidents that are rare” [R. v. Procrane Inc.,  ABPC 28, Jan. 26, 2011].
Top 5 Penalties
A worker died after being struck in the head by the rear door of a vacuum tank. The company was convicted of two OHS violations and fined $200,000 for each [876434 Alberta Ltd., Govt. News Release, Nov. 15, 2010].
A worker died when he was struck by a heavy slab of ice while using steam to clear ice that had formed on pipes. The company pleaded guilty to one violation of the OHS Act. The court fined it $10,000 and ordered it to pay more than $250,000 to develop a new course at Keyano College, $100,000 to bursaries and scholarships in the worker’s name and $1,500 to the worker’s family [Syncrude Canada, Canadian Press, Feb. 21, 2011].
A worker fell from scaffolding and died. His employer pleaded guilty to violating Sec. 323 of the OHS Code 2009 on the application of CSA standards to scaffolding work. The court fined it $345,000 [Westcan Stucco Wire Ltd., Govt. News Release, Sept. 11, 2011].
A company manager told workers to release flammable wastewater onto the ground at the back of the company’s property. The next day, a welder inadvertently ignited the wastewater with a welding torch, causing a fire. The company was fined $160,000. A manager who lied to officials about the incident also pleaded guilty and was sentenced to four months’ house arrest [Western Biodiesel Inc. and Jason Freeman, Govt. News Release, Aug. 16, 2011].
A worker was seriously injured after falling approximately 25 metres when the portal crane he was operating partially collapsed. The employer pleaded guilty to an OHS violation. The court fined it $10,000 and ordered it to pay $90,000 to the Alberta Forest Products Association for the development of a training program on portal cranes [Gordon Buchanan Enterprises Ltd., Govt. News Release, Aug. 22, 2011].
Other Notable Cases
Company Not Liable for Unforeseeable Worker Misconduct
An experienced tire technician inflated a tire on a split rim wheel assembly without using the restraints required by company safety policy. The tire exploded, causing serious head injuries. The company was charged with multiple OHS violations. The court dismissed all charges, ruling that the company had exercised due diligence. It provided appropriate training, restraints, hands-on supervision and communication of safety rules. A worker had reminded the technician minutes before the incident to use restraints and the technician said he’d do the work safely. So it was unforeseeable that he’d act so “irrationally” by doing the work without restraints, concluded the court [R. v. Fountain Tire (Olds) Ltd.,  ABPC 236 (CanLII), July 18, 2011].
Company Not ‘Employer’ of Contractor’s Worker
A company’s policy barred contractors from bringing workers onsite unless they passed a drug test. A contractor’s worker tested positive for marijuana and wasn’t allowed onto company property. The worker sued the company for discrimination. The Human Rights Panel ruled that the company was the worker’s “employer” under the human rights law but didn’t discriminate. On appeal, the court ruled that the company was not the worker’s employer—he had no contract with it, didn’t report to it, wasn’t paid by it and it didn’t direct his work. Thus, the company had no duty to the worker under the human rights law [Lockerbie & Hole Industrial Inc. v. Alberta,  A.J. No. 2, Jan. 11, 2011].
AB Company Penalized $92,000 for Failing to Protect Guard from Rape
A female security guard who’d only been doing security work for two weeks was raped while working alone. The security company pleaded guilty to violating the OHS Act in the first prosecution in Alberta where a company was charged under the OHS laws after a worker working alone was the victim of a crime [Garda Canada Security Corp., Calgary Herald, Feb. 23, 2011]. In July, the court fined the company $5,000 and ordered it to pay $87,000 to a new program at SAIT Polytechnic for safety training of workers working alone [Govt. News Release, July 11, 2011].
Judge Dismisses Charges in Falling Plywood Case
A judge dismissed charges under the Alberta Safety Code Act against a construction company after a sheet of plywood fell 44 floors to the ground from a construction site. The ruling was based on a discrepancy over the version of the building code with which the construction company was to comply [EllisDon Construction Services, Calgary Herald, Aug. 9, 2011].
Company Penalized $90,000 for Torch Incident that Burned Worker
A worker was using an oxy-acetylene torch to cut a steel plate when the flame punctured a hose. Hydraulic fluid sprayed into the flame, creating a fire. He was seriously burned. The company pleaded guilty to a safety violation and was ordered to pay a $5,000 fine and $85,000 creative sentence to SAIT’s Health and Safety Kiosk Program [Beck Drilling and Environmental Services Ltd., Govt. News Release, Dec. 8, 2010].
Apprentice’s Amputated Leg Costs Company $90,000
An apprentice crane operator’s lower left leg was crushed when he stepped into the moving draw works of a crane he was operating. He’d left his safety boots in his vehicle and was wearing Crocs when the incident occurred. His leg had to be amputated close to his hip. The company pleaded guilty to failing to assess a work site and identify existing or potential hazards. The court fined it $5,000 and ordered it to pay $85,000 to the Alberta Construction Safety Association for the creation of a hazard assessment course [Agra Foundations Ltd., Govt. News Release, July 19, 2011].
Crane Company Fined $80,000 for Boom Truck Incident
A boom truck operator was lifting a load of roof trusses when they came into contact with a roof frame. As the load was being pulled off the roof, it bounced, causing the crane to jerk and tip the boom truck. The load fell and landed in the house’s front yard, while the boom crashed through the roof of an adjacent house. No one was injured. The crane company pleaded guilty to violating the OHS Regulation and was fined $80,000 [Arrow Crane Ltd., Govt. News Release, Jan. 24, 2011].
Worker Pinned Against Auger by Track Hoe Boom
When a track hoe operator moved his track hoe boom, it struck a worker and pinned him against an augering machine, causing serious injuries. The company pleaded guilty to a safety violation. The court ordered it to pay a $5,000 fine and $70,000 to the Southern Alberta MedicAir Society, Helicopter Air Lift Operation [864899 Alberta Ltd. o/a KCB Excavating and Calgary Tunnelling & Horizontal Augering Ltd., Govt. News Release, Dec. 3, 2010].
Worker’s Crushing Costs Employer $75,000
An operator was crushed and held against a concrete pillar by a finger assembly that had retracted while he was under the machine performing maintenance. His employer pleaded guilty to failing to secure equipment and materials that could injure a worker. The court fined it $5,000 and ordered it to pay $70,000 to the Hinton Fire/Rescue Department [West Fraser Mills Ltd., Govt. News Release, April 18, 2011].
Employer Penalized $75,000 for Worker’s Arm Amputation
A backhoe operator suffered serious injuries, including the loss of his right arm, while working on a rotating drill pipe. His employer pleaded guilty to an OHS violation. The court fined it $2,500 and ordered it to pay $72,500.00 to the University of Alberta’s OHS Certificate Program to facilitate delivery of two courses, including one on risk management and communication [Watts Projects Inc., Govt. News Release, April 27, 2011].
Amputation of Worker’s Fingers Leads to $70,000 Penalty
A worker operating a plastics extruder got his hand caught in a feeder, resulting in the amputation of three fingers and a thumb. The company pleaded guilty to an OHS violation. The court fined it $5,000 and ordered it to pay $65,000 to NAIT to be used for an entrance bursary to the OHS program and to buy lab equipment for the OHS program [AT Plastics Inc., Govt. News Release, March 2, 2011].
Company Penalized $65,000 after Worker Fell from Warehouse Roof
A worker was using a wheelbarrow to dump gravel from a warehouse’s roof when he fell 8.53 meters and sustained serious injuries. The company pleaded guilty to a fall protection violation. The court ordered it to pay a $5,000 fine and $60,000 creative sentence to the OHS Program at the Southern Alberta Institute of Technology [Charlton & Hill Ltd., Govt. News Release, Jan. 19, 2011].
Company Director Penalized $30,000 for Worker’s Death from Toxic Gas
While a worker was attempting to remove an orifice plate inside a group separator building at a sour gas production facility, he caused a sour gas release from the equipment and was fatally overcome by the toxic gas. The company’s director pleaded guilty to violating the OHS Act. The court fined him $1,000 and ordered him to pay $29,000 to Hilltop High School for an OHS program in the worker’s memory [Eugene Hausauer, Govt. News Release, Jan. 24, 2011].
Companies Fined a Mere $15,000 for Three-Year-Old’s Death
A couple, their son and daughter were walking down the street when they were struck by a bundle of steel that the wind blew from the roof of a construction project. The three-year-old daughter died; the husband and son were injured. Two companies pleaded guilty to violating the Alberta Safety Codes Act. The court imposed the maximum fine—$15,000. But officials called this penalty “woefully inadequate.” Workplace safety investigators looked into the incident but no OHS charges were laid. Had a worker been killed by the sheet metal—rather than a bystander—the maximum penalty would have been $500,000 and/or six months of jail time for a first offence [Calgary Herald, Feb. 10, 2011].