Year-End Compliance Briefing: Nova Scotia 2018 OHS Year In Review
February 16: WCB eliminates the rule requiring workers to get an audiogram within 5 years of leaving employment to qualify for noise-induced hearing loss benefits (Policy 1.2.5AR1: Occupational Hearing Loss) in response to a Nova Scotia Court of Appeals ruling striking down the 5-year rule as unfair.
July 5: A new law gives victims of cyberbullying and revenge porn the right to go to court to sue for money damages and get protection orders banning contact with persons who publish intimate images of them without consent.
August 14: WCB data show that for the sixth quarter in a row, loss-time injury rates are decreased in frequency but increased in duration. In other words, workers are getting hurt less often but taking longer to recover when they do, a trend which would continue in the next quarterly report released by WCB in the fall.
October 3: The government launches a new agency called the Office of Workplace Mental Health to help employees and managers access mental health and wellness resources on a confidential basis.
October 26: New workers’ comp rules establishing the presumption that post-traumatic stress disorder (PTSD) is work-related when suffered by frontline and emergency response workers officially take effect.
Nova Scotia 2019 Workers’ Comp Rates
|2019 Average Assessment (per $100 assessable payroll)||2019 Maximum Assessable Earnings||2018 Average Assessment (per $100 assessable payroll)||2018 Maximum Assessable Earnings||2019 Filing Deadline|
Top 3 Reported OHS Fines in Nova Scotia
|Rank||Total Fine||Defendant||Trigger Incident||Violation(s)|
|1||$89,500||JD Irving Limited operating as the Truro Sawmill||Worker killed after being hit by loader while crossing pedestrian bridge||Failure to ensure lift truck is designed, constructed, maintained, inspected, and operated in accordance with
CSA B335, “Safety standards for lift trucks”
|2||$55,250||Aecon Construction Group Inc., operating as Aecon Atlantic Group||Falling swing stage outrigger seriously injures worker of third party contractor||Failure, as constructor, to take every precaution reasonable in the circumstances to ensure
health and safety of persons at or near a project
|3||$40,750||Chris Andrew Hubbard||Worker descending scaffold falls 30 feet to his death||Failure, as employer, to ensure equipment and components are erected, installed, assembled, used, handled, stored, adjusted, maintained, repaired, inspected, serviced, tested, cleaned and dismantled in accordance with manufacturer’s specifications|
TOP 3 CASES
Here’s a summary of what OHSI voted the 3 most significant OHS cases decided in Nova Scotia in 2018.
- Employer Can’t Blame Worker for OHS Violation
After spotting safety violations at a road closure, the OHS inspector issued a pair of orders to the contractor in charge of traffic control at the site, one ordering it to post the required Road Closed signage and the other requiring implementation of a proper Traffic Control Plan. The contractor asked the Labour Board to set both orders aside. While acknowledging the violations, the contractor blamed them on the Temporary Work Signaller employee and claimed it used due diligence to comply with the rules. But the Board didn’t buy the contractor’s attempts to “shift the blame” to the employee. As employer, the contractor had “overarching” responsibility for safety on the site. And the fact that the signage problem was present hours before the OHS inspector even happened on the scene cast doubt on its overall supervision over the workers and the site [McLeod Safety Services Ltd. (Re), 2018 NSLB 36 (CanLII), March 20, 2018].
- Supervisor Says Fall Protection Is Unnecessary but Board Doesn’t Buy It
An OHS inspector issued a $250 administrative monetary penalty to a supervisor after observing 2 of his workers on the roof of a 2-storey building wearing safety harnesses not secured to an anchor point. While acknowledging that the workers were 7 metres above the ground, the supervisor contended they were in no danger of falling and didn’t need to be attached because of the slope and perimeter of the roof and underfoot protection. The Labour Board upheld the penalty. Accepting the supervisor’s argument would “require a re-writing of the regulations” mandating that fall protection be used by workers at risk of falling 3 metres or more [Nutter (Re), 2018 NSLB 157 (CanLII), Nov. 14, 2018].
Editor’s Note: Why wasn’t the employer charged? Answer: The inspector determined that the crew had the appropriate fall protection equipment and received proper training and instruction how to use it.
- Constructor Found Liable for Swing Stage Outrigger Fall
This long running case began in 2013 when the outrigger of a swing stage fell as it was being moved from a penthouse roof and hit a construction worker on the ground 4 floors below. The victim survived but suffered catastrophic injuries. The construction manager, Aecon Construction, was charged as constructor with among other things failing to ensure that the swing stage and its components were properly disassembled, secured or stored. We weren’t the constructor, we didn’t commit a violation and even if we did, we exercised due diligence, Aecon contended. But the court rejected all 3 arguments. 1. Aecon was the constructor because it had control over work at the project including disassembly of the swing stage; 2. Aecon committed an OHS violation because the evidence clearly showed that the outrigger was improperly disassembled and not safely secured; and 3. Aecon fell short of the all-reasonable-steps required for due diligence because it failed to meet OHS requirements, industry standards or its own safety policies in moving the outrigger from the penthouse roof [R. v. Aecon Construction Group Inc., 2018 NSPC 22 (CanLII), June 25, 2018].