The ability of Canadian mining companies to demonstrate the requisite level of due diligence following a workplace incident is of paramount importance. So what should mining companies do? Firstly, occupational health and safety systems need to be looked at closely to see if there are any shortcomings. Problems may lie with the system itself in that it does not meet the requirements of the current law. Alternatively, the system may be satisfactory but there could be a failure to implement and deploy it appropriately. To assess where an OHS system stands, it is helpful to ask the following questions.
Do your written policies and procedures meet the laws of the jurisdiction where the work is being performed?
Provincially regulated companies should be particularly mindful of the material differences between regulatory requirements in the various Canadian jurisdictions. For example, subject to the satisfaction of a number of requirements, a worker in Saskatchewan may work alone at the working face of an underground mine. In contrast, in Alberta only a worker who is conducting very specific tasks at a working face (sampling, testing or inspecting) may work alone, and workers are prohibited from producing coal while working alone at a working face in an underground mine.
Are your policies and procedures being clearly communicated to employees?
The development of comprehensive written policies and procedures that comply with law is a key component of an effective safety system. However, the production of such documents alone is likely not enough to prove due diligence. It must be shown that the information in the policies was communicated clearly and effectively to employees and was implemented through training (see for example: R v Procrane Inc. (Sterling Crane), 2011 ABPC 28; R v RD Longard Services Ltd., 2015 NSPC 20; R v.
Saskatchewan Power Corporation, 2016 SKPC 002; R v. Spruce Products Ltd., 2015 MBPC 40; and R v Lonkar Well Testing Ltd., 2009 ABQB 345). It is also critical that supervisors understand and implement progressive discipline policies for employee infractions of OHS policies and procedures.
Are your policies and procedures current?
Once appropriate written policies and procedures have been developed, they need to be updated on a regular basis. Consider when your policies were last revised and who within your organization is tasked with monitoring the changing requirements of the applicable OHS regulator. One practical tip is to subscribe to the free electronic update services offered by most regulatory bodies. Examples include the Ontario Ministry of Labour email alerts, the Alberta Labour OHS updates, and the WorkSafeBC update enews.
Are you placing undue reliance on adopted policies?
Following a merger or acquisition there needs to concerted effort to avoid a situation whereby workers must rely on a mishmash of policies from predecessor companies that have little or no common thread. Be wary of reliance on adopted written policies and procedures from a predecessor without appropriate consideration.
Don’t assume that they meet the requirements of law or are accurate.
Are you placing undue reliance on industry standards?
An employer should be wary of relying solely on accepted industry standards. Accepted industry standards may not meet the current requirements of the law and unquestioned reliance on them may result in an inability to demonstrate reasonable care (see for example: R. v. General Scrap Iron & Metals Ltd., 2003 ABQB 22).
Are you placing undue reliance on third-party safety audits?
Beware safety audits without substance and third-party consultants who are simply checking boxes. Impressive scores on external safety audits are relatively meaningless in the context of a due diligence defence if the audit itself did not identify potential regulatory breaches or areas of material concern.
Close attention to these matters will ideally result in mining operations in which the risks to workers are readily identified and addressed. In the unfortunate circumstance that a mine site incident should occur, a properly designed and implemented OHS system will help to establish that the mining company exercised due care in relation to the safety of its workers.
SIMON FOXCROFT is a partner in Bennett Jones’ Edmonton office and spent time as in-house counsel for a Canadian coal mining company.