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Safety pros not safe from prosecution, says expert

By Mari-Len De Guzman
| www.cos-mag.com

Safety managers have been urged to revisit their roles andresponsibilities within their company in light of what is seemingly anincreasing trend among prosecutors to pursue personal charges against safetymanagers in workplace health and safety-related cases. 

The caution came from Toronto lawyer Cheryl Edwards, partnerwith Heenan Blaikie and leader of the firm’s national occupational health andsafety (OHS) and WSIB practice group. Edwards was among the speakers at theCanadian Society of Safety Engineering’s Education Day event held in Torontothis week.

Edwards cited a 2008 conviction of Richard Dearing by theNova Scotia Provincial Court after pleading guilty to several charges thatresulted from the death of a worker at Zoom Developers Private Ltd., thecompany that hired Dearing to be its safety manager in 2004. Details of thecase indicate that Dearing was not on-site at the time of the accident and thatthe corporation, Zoom Developers, was not charged.

“The Nova Scotia Ministry of Labour was very creative in itscharge. Who knows, maybe the Ontario Ministry of Labour will be creative aswell,” said Edwards.

 

Over the last two years, the Ontario Ministry of Labour hasbeen “increasingly less willing to withdraw personal charges againstindividuals” and has been seeking severe fines and/or jail terms againstsupervisors, managers, officers and directors of a corporation involved in aworkplace accident, she said.

The Toronto lawyer also noted that in the past, while theministry typically comes out with a long list of people or entities to chargeas a result of a workplace accident investigation, personal charges againstsafety managers were usually withdrawn after reasonable resolutions have beenmet.

“For reasons unknown to us, this trend seems to have come toa halt,” Edwards said.

Edwards recommended that safety practitioners evaluatewhether their role as safety manager in the company was merely an advisorycapacity or if they actually exercise supervisory authority over workers.Either way, they should ensure that their specific roles are clearly stated ontheir job description, she added.

Safety managers should also seek indemnification policy withtheir employer, which would provide them reasonable support for OHS-relatedprosecution and other litigation, Edwards said.

“Indemnification policy can set out circumstances in whichcorporate support, representation, payment of penalties will be provided,” shesaid, adding that the Ontario Business Corporations Act sets out specificcircumstances for corporate indemnification.

  

CSSE president Eldeen Pozniak said that while safetyprofessionals have always been open to liability under the civil court system,seeing that move further into the occupational health and safety legislation is“a great concern.”

“I believe it’s a real issue that we have to acknowledge nowand we definitely have to take further consideration in what we do as a safetyprofession and what we do as an individual within the profession, as well.”Pozniak said. “Gone are the days when we could give a little bit of advice hereand there, throw a few things out and think that would be fine.”

As more safety professionals potentially become targets for regulatoryenforcements, the CSSE will be stepping up efforts to provide its members withthe right information and support, she said. “It’s a concern for CSSE in (termsof) what information and support we can provide our membership so that they cango out there well-informed, so they can go out there and be protected.”

Pozniak said the CSSE is currently undertaking competencystudies for the health and safety profession, which includes informing membersabout their legal obligations and what can happen if they don’t fulfill thoseresponsibilities.

Dylan Short, manager of advisory services, corporateunderwriting and safety and training at Toronto-based Markel Insurance Company,said his firm has always been cognizant of the legal implications for him as amanager of people and his background as a safety practitioner.

“Where an individual, if they have been given the scope ofresponsibility to effect changes for safety in the workplace, then I canunderstand why and how they would be charged (in court),” Short said. “But ifthey don’t have that scope of responsibility and they stay in a position wherethey know there are problems and they are not addressing any of them, I can seethem being charged inclusive of the corporation.”

However, Short does not believe that the legislation is “setup to penalize” a person or a safety manager who is actively working towardsworkplace safety but not getting corporate support or who is not authorized toimplement those changes. “It’s a difficult thing to do because you have theindividual who is responsible for it, but is not empowered.”

Should safety managers find themselves in such a situation,Short said they need to “make a personal decision whether or not they want towork for a company that doesn’t allow them to carry out what their professionalmandate is.”

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