Canadian Mining Journal

Feature

Worker safety and the courts

Advances in mine safety take many forms. Two recent court decisions demonstrate a willingness to enforce the Occupational Health and Safety Act (OHSA) and its regulations by imposing jail terms against those who violate the legislation....



Advances in mine safety take many forms. Two recent court decisions demonstrate a willingness to enforce the Occupational Health and Safety Act (OHSA) and its regulations by imposing jail terms against those who violate the legislation. Although the convictions did not arise in the mining industry, the decisions apply equally to mining employers.

The decisions make clear that mine safety may be compelled through the imposition of jail terms against supervisors, officers and directors of organizations where health and safety compliance is proven to be deficient.

The decisions

In January 2015, two company directors of New Mex Canada Inc. were each sentenced to 25 days in prison after pleading guilty to safety violations that led to the death of a warehouse worker. Those violations included failing, as directors, to take reasonable care that the corporation complied with the OHSA and its industrial regulations. In addition to the jail terms imposed, both directors were ordered to take a health and safety course. The corporation employing the workers pleaded guilty to other offences giving rise to a fine of $250,000, to which a victim fine surcharge of $62,500 was applied.

In November 2013, the court in R. v. Roofing Medics Ltd. and Paul Markewycz, sentenced the supervisor of a roofing company to 15 days in jail following the death of a worker on a construction project. A fine of $50,000 was imposed on the company, to which a victim fine surcharge of $17,500 was applied. Both accused were convicted of offences relating to the use of fall-arrest systems. In addition, the company was convicted of failing to comply with statutory reporting obligations after the accident and Mr. Markewycz was convicted of furnishing a Ministry of Labour inspector with false information.

Of particular interest in the decision are the following comments by the sentencing judge:

The major reason a jail sentence is necessary…is to deter others from ignoring the legislated fall protection requirements. Others in the industry must pause to consider that…they may go to jail if one of their employees does not use [safety protection]…Since the industry has not been able to accomplish prevention to date, it is appropriate for the Court to send a message that offenders will be dealt with harshly.

Lessons learned

Both decisions serve as reminders that it is not only corporate employers that face liability for breaches of the OHSA and its regulations. Supervisors, officers and directors of mining companies face equal liability should they fail to comply with their obligations pursuant to the legislation.

As a result of the movement towards imposing jail terms, those employed in the mining industry, including those who do not hold traditional ‘safety roles,’ should be more aware than ever of their obligations under the OHSA. This may prove especially challenging for officers and directors, who may not have direct oversight in the day to day operations of an organization.

Achieving compliance, avoiding liability

Supervisors, officers and directors should review the OHSA and its regulations, including the Mines and Mining Plants regulation (“Regulation”).

When an individual lacks a sufficient understanding of the obligations imposed by the OHSA and its regulations, specialized expertise should be sought out. Notably, it would be inappropriate to delegate one’s health and safety obligations to that expert. Rather, the expert should serve to educate and inform those with statutory responsibilities for health and safety.

Board meeting minutes and health and safety committee reports should be regularly reviewed and acted upon, to ensure that identified health and safety deficiencies are corrected. Board of Directors should request regular reporting concerning health and safety compliance, so as to remain informed about incidents that may require corporate attention.

All workplace parties should be trained in the basic requirements of the OHSA and its regulations. This is especially important in light of recent amendments to the OHSA which made training mandatory for workers and supervisors (including those employed by mining companies).

Organizations should be prepared to support their supervisors, officers and directors by ensuring that appropriate monetary and non-monetary resources are dedicated to health and safety compliance. Recommended steps include, but are not limited to, creating and promoting health and safety policies and programs; safety training; monitoring the workplace for ongoing compliance with the OHSA and its regulations; and correcting identified health and safety deficiencies.          


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