Presented by Chevreau Consulting Limited (CCL)Graham Chevreau, CRSP, C. ChemWww.chevreau.cagchevreau@sentex.net519-635-0574

There’s been an accident!

1. Call 911?2. Is it a critical accident?3. How do you know?4. Who must be notified? When?5. Who will investigate – MOL, POLICE, JHSC?6. What reporting must be completed?7. Who will deal with the Media? the employees? The Family?8. What about the scene?

Regulation 834 – Critical Injury DefinedPage 339,

For the purposes of the Act and the Regulations, “critically injured” means an injury of a serious nature that,

a) Places life in jeopardy;b) Produces unconsciousness;c) Results in substantial loss of blood;d) Involves the fracture of a leg or arm, but not a finger or a

toe;e) Involves the amputation of a leg, arm, hand, or foot, but

not a finger or toe;f) Consists of burns to a major part of the body; org) Causes the loss of sight in an eye.

Orders will usually be issued the same day as the MOL investigates

OHSA Section 61 – Appeals of Orders“An appeal to an order may be made within 30 days after the making of the order”

There are four possible responses to a MOL order:There are four possible responses to a MOL order: Comply;Comply; Negotiate;Negotiate; Appeal;Appeal; Ignore (Non-Compliance - expect prosecution)Ignore (Non-Compliance - expect prosecution)

OHSA Section 69 - Limit on Prosecutions

MOL has one year after the date of the incident to initiate legal action.

Typically it will be very close to 12 months after an accident that MOL delivers notice of legal action.

Part IX (Offences and Penalties)Section 66 (Penalties)

66 (1) Penalties – Every person who contravenes or fails to comply with,

A provision of this act or the regulations; An order or requirement of an inspector or a Director;

or an order of the minister. Is guilty of an offence and on conviction is liable to

a fine of not more than $25,000 or to imprisonment for a term of not more than twelve months, or to both”

Penalties Arising from ChargesPenalties Arising from Charges

CRITICAL INJURY – PenaltiesCRITICAL INJURY – Penalties

66 (2) If a corporation is convicted of an offence under subsection (1) the maximum fine that may be imposed upon the corporation is $500,000 and not as provided therein.

66(3) Defence – On a prosecution for a failure to comply with,

(a) subsection 23(1);

(b) clause 25(1)(b), (c) or (d), or (c) subsection 27(1),

It shall be a defence for the accused to prove that every precaution reasonable in the circumstances was taken.

In any trial involving charges under OHSA, the Crown must prove all of the elements of the offence beyond a reasonable doubt. That is the Crown must prove:◦ that the party charged has contravened or failed to comply with a

specific provision of OHSA, or◦ That the party charged has contravened or failed to comply with a

specific Regulation, or an order, or◦ That the party charged has contravened or failed to comply with a

requirement of an inspector.

Section 66 (3) of OHSA “On a prosecution for a failure to comply with 23(1) [duties of a constructor], 25 (1) (b) (c) (d) [duties of an employer] or subsection 27(1) [duties of a supervisor] it shall be a defence for the accused to prove that every precaution reasonable in the circumstances was taken.

Under this “reasonable care” (or due diligence) defence, the accused may be acquitted by proving, on a balance of probabilities, that all reasonable care was taken to avoid the particular event giving rise to the prosecution.

There are actually two branches to the defence of due diligence.

The first is the “reasonable care” branch – which is the most common.

The second is REASONABLE BELIEF IN A MISTAKEN SET OF FACTSUnder this branch, an accused may be acquitted by proving that it

believed in a mistaken set of facts that, if true, would render the prohibited act or omission innocent. This branch of the defence applies only in cases of mistake of fact, not a mistake about or misunderstanding of the law.

OHSA Section 25,2(j) requires that each employer who has more than 5 employees…..”prepare and review at least annually a written occupational health and safety policy and develop and maintain a program to implement that policy”

 

Key Court Measures for Due Diligence:

1.0 A good working Knowledge of OHSA and applicable Regulations ;2.0 Knowledge of workplace hazards;3.0 Ongoing Action to Correct Hazards;4.0 Written Health and Safety Policies and Procedures;5.0 Orientation and Training;6.0 Supervisory Coordination, monitoring and communication;7.0 Enforcement with Discipline;8.0 Documentation

Step 1 – Knowledge of Legal ObligationsComplete up-to-date knowledge of relevant, applicable OHSA and

regulatory requirements. Codes, standards, Guidelines.

A good working occupational health and safety (OHS) knowledge is expected of senior management, middle managers and supervisors;

OHS knowledge is reflected by verification of training, workplace documentation, and written policies and procedures.

Of particular importance are written roles and responsibilities for senior management, managers, supervisors and workers;

Performance evaluations that tie H&S to job performance is particularly important.

Step 2 – Knowledge of Hazards

Ongoing assessment of the workplace for actual and potential workplace hazards.

Means to assess hazards include: Job Hazard Analyses (JHAs), Task Hazard Analyses (THAs); workplace inspections; incident/accident investigations; WSIB information; external audits.The Job Hazard Analyses and Task Hazard Analyses are the heart of

any H&S Program. Policies, procedures and training requirements all must address the significant workplace hazards.

Step 3 – On-going action to correct hazards can be demonstrated.

Corrective action includes workplace inspections and documented corrective actions; remedial measures demonstrated through preventative maintenance records, workplace changes based on identified concerns, repairs based on inspections or audits. Corrective action can also be demonstrated by ongoing improvements to safe working procedures, policies, and practices based on hazard assessments.

Step 4 – Written Policies and Procedures

Written, up-to-date policies and procedures for all hazardous activities at the workplace. These policies and procedures should be available and communicated to employees as necessary. The policies and procedures must, of course, meet or exceed applicable regulations, guidelines, standards, etc.

Step 5 – Orientation and Training

Training of senior management, supervisors and workers – training needed depends on the scope of each workers job.

A health and safety training matrix is particularly important to demonstrate an effective H&S Program

Orientation Training – for new and transferred workers; Job-specific Training – the greater the hazard, the more

comprehensive the training should be; Supervisory follow up to confirm that training is understood and is

followed. Retraining must be provided as necessary based on the hazards.

Step 6 – Supervisory Coordination, Monitoring, and Communication

Ongoing supervisory coordination and monitoring with appropriate frequency based on risk. This means that the higher the risk the more frequently something should be monitored. Monitor for compliance with policies and procedures.

Communication – 2 way communication between supervision and workers is very important. Communication about changes in the workplace – equipment, processes, people.

Step 7 – Enforcement with Discipline

Enforcement of policies, procedures and rules with discipline. Consistent, significant discipline for significant safety contraventions.

Step 8 – Documentation

Notes, records, documents in support of all other 7 steps is essential. Some notable documents:◦ Training records with agendas, and training outline;◦ Sign-offs of rules, procedures,;◦ Audits, and hazard assessments;◦ H&S training matrix;◦ Documentation of safety talks;◦ Records of Discipline.

Key Court Measures for Due Diligence:

1.0 A good working Knowledge of OHSA and applicable Regulations ;2.0 Knowledge of workplace hazards;3.0 Ongoing Action to Correct Hazards;4.0 Written Health and Safety Policies and Procedures;5.0 Orientation and Training;6.0 Supervisory Coordination, monitoring and communication;7.0 Enforcement with Discipline;8.0 Documentation

Friday January 23, 2009: 25-person company rolls out their new health and safety program.

In developing their H&S program, the president and the H&S consultant completed formal written job hazard analyses for each job description.

The highest hazard identified during the completion of the JHAs was for truck drivers raising their trailer boxes in the vicinity of high tension wires;

As a control measure for this hazard, affected employees received training in the proper procedures for raising their trailer boxes – such as the need to inspect the area, the need for a spotter if an OH wire was in close proximity, and the proper procedure to follow in the event of electrical contact. All workers who attended the training were required to sign an attendance sheet.

All employees were provided with an employees manual, and were given an orientation on Company rules and pertinent policies and procedures. All employees signed off that they had understood and would comply.

(a) DUMPING – When dumping your truck and trailer they must be in straight alignment (no jack knifing); (b) POWERLINE CLEARANCES – as noted in Ontario Regulation 851, Section 60(1) under the Occupational Health and Safety Act (OHSA) [refer to most current regulation] the following clearances from power lines over 750 volts must be maintained for any vehicles, cranes, or equipment: 3 meters for 750 volts to 150,000 volts; 4.5 meters for 150,001 volts to 250,000 volts; 6 metres for 250,001 volts and over. (c) Spotter – as noted in Regulation 851, Section 60(2) where a vehicle crane or similar equipment is operated near a live power line, and it is possible for any part of the vehicle, crane or similar equipment or its load to make contact with the live power line (a) a worker must be stationed within the view of the operator to warn when any part of the equipment is approaching the minimum distance from the live power line. If there is no one on-site to spot, call dispatch immediately and do not attempt to dump the load on your own.

Thursday February 5, 2009:

Experienced driver puts box of truck up into 13,800 volt wires in site yard. Driver hears loud bang, then climbs out of cab and steps on ground while holding onto the trucks Grab Rail. Driver cannot let go of grab rail, and dislocates shoulder. Also receives minor electrical burns on feet and hands. Apart from the dislocated shoulder and minor burns, driver is OK.

Tires Burned Holes in the Ice

1.0 A good working Knowledge of OHSA and applicable Regulations - Reg. 851 OH

clearance

2.0 Knowledge of workplace hazards - JHAs & THAs;

3.0 Ongoing Action to Correct Hazards - Workplace Inspections and monitoring by

supervisors;

4.0 Written Health and Safety Policies and Procedures - H&S Manual with procedures;

5.0 Orientation and Training - Initial and on-going training relevant to jobs;

6.0 Supervisory Coordination, monitoring and communication - regular H&S talks and

meetings;

7.0 Enforcement with Discipline - documented cases of safety discipline;

8.0 Documentation - training certificates, training material,

attendance sheets, test results.

No CHARGES LAID! No Legal Fees Incurred!

Minimal business disruptions!

Have a nice day!