YK Court Confirms Duty under OHS Laws to Protect Non-Workers
The purpose of the OHS laws is to ensure the safety of workers. But workers aren’t the only people who could be endangered by conditions or actions in a workplace. For example, someone could be hurt while walking by a construction site if improperly secured materials fell off of scaffolding. In that event, could the employer be held liable for the passerby’s injuries under the OHS laws? The issue of whether an employer’s duties under the OHS laws extend beyond workers and to members of the general public arose in a recent case from the Yukon. Here’s a look at the court’s decision on this issue.
What Happened: For a road extension project, the Yukon Department of Community Services (Department) hired a contractor, who in turn hired a licensed blaster to conduct explosive blasts to remove rock along the route. When the blaster conducted the largest blast, a nearby trailer court was showered with flyrock ranging from pebble-sized pieces to ones weighing 22 kg. One rock 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. Fortunately, no one was injured. But the Department, the contractor, a supervisor and the blaster were charged with OHS violations. The blaster pleaded guilty; the rest went to trial. The Yukon Territorial Court convicted the Department, contractor and supervisor, who appealed.
What the Court Decided: The Yukon Supreme Court upheld the convictions of the contractor and supervisor, ruling that they had a duty to protect the general public. (It overturned the government’s conviction on unrelated grounds.)
How the Court Justified the Decision: The contractor and supervisor argued that the OHS laws are there to protect workers—not the general public. Because there was no evidence that the blast endangered or harmed any workers, they should be acquitted. The appeals court agreed that the OHS law’s primary purpose was the protection of workers. But it disagreed with the narrow interpretation that those are the only people the law protects. The court explained that “public welfare” laws, such as the OHS law, should be interpreted broadly and liberally. And as the trial court had pointed out, there are references in the OHS laws to “hazards to workers and any other person” (emphasis added) and requirements that clearly apply to hazards to non-workers, such as requirements to cover sidewalks near construction sites and requirements setting minimum distances between blasts and roads or buildings. The court concluded that the duties under the OHS laws aren’t “limited to situations where workers are endangered or injured but rather require that work is performed without undue risk to anyone.” The whole purpose of the OHS law is to promote safe work practices at all times, including ensuring safety for members of the public who are near the workplace, ruled the court [R. v. Government of Yukon,  YKSC 47 (CanLII), June 11, 2012].
In agreeing with the trial court, the appeals court was very critical of the defendant’s position, saying it would be a “perverse interpretation” of the law to allow a defence that essentially says “my activities didn’t endanger my workers; they only endangered the general public.” So don’t expect a lot of sympathy if someone is injured or killed outside the workplace by a hazard from within the workplace and you respond with a callous, “Not my problem.” The Yukon case makes it clear that, at least to some extent, the safety of non-workers is your problem.
This additional duty doesn’t mean you need to completely overhaul your OHS program. In fact, many of the steps you already take to protect workers will also protect visitors, members of the general public and other non-workers. But you should assess any hazardous activities in your workplace that could impact the world outside the site’s four walls (so to speak) and implement safety measures to eliminate or minimize any danger to non-workers.
OHS Insider Resources
For more information on protecting non-workers, go to the OHS Insider to learn how to create a visitor safety policy, including a model policy, and for a discussion on an Alberta case involving the death of a young girl who was walking by a construction site.