volume 7 - issue 4 machinery & equipment: april 2011

Many workers use some sort of “power” tools—that is, hand tools with an electrical, pneumatic, hydraulic or other external power source—on the job. Examples

of commonly used and potentially dangerous power tools include power drills, nail guns, pressure washers and chain saws. The OHS laws typically set safety requirements for the use of such tools. One of the best ways to protect workers from power tool hazards is through a power tool program. We’ll tell you how to develop such a program for your workplace and the elements your program should contain.

APRIL 2011

Volume 7 - Issue 4

HAZARDOUS SUBSTANCES: COMPLYING WITH REACH SAFETY DATA SHEET REQUIREMENTS

MACHINERY & EQUIPMENT: PROTECTING WORKERS FROM POWER TOOL HAZARDS

R EACH (the Regulation for Registration, Evaluation, Authorisation and Restriction of Chemicals), a European Union (EU) law that took effect on June 1, 2007, is designed to streamline and improve the regulation of

chemicals in the EU. For example, it requires industries to use a classifi cation and labelling system to create Safety Data Sheets (SDSs) to communicate information about the environmental and health risks of the chemicals they sell, import, export or distribute so that people, including workers, can safely use products containing these chemicals.

Why should Canadian companies care about a European law? Because REACH

FEATURES

REGULARSMember Profi le 6Kevin Laventure of Unitech Electrical Contracting Inc.

Test Your OHS I.Q. 7What Should You Say When an Inspector Requests Your Incident Report?

Brief Your CEO 8How Courts Determine Whether Companies Exercised Due Diligence

OHS Month in Review 9Case of the Month 9AB Case Shows that Due Diligence Defence Can Actually Work

Lawscape 19Paying JHSC Members

Winners & Losers 20When Is Workers' Misconduct a Bar to Workers' Comp Claims?

CONTINUED INSIDE ON PAGE 14

Machinery & Equpment 1How to protect workers from the hazards posed by power tools.

Know the Laws of Your Province (p. 4)What the Law Says (p. 5)

Hazardous Substances 1Ensure that your company complies with the requirements for REACH safety data sheets.

What the Law Says (p. 16)Model Form (p. 17 & 18)

TALK TO USThe Insider's goal is to help safety professionals do their jobs better and more easily. So tell us what you need! For example, are you unsure what the OHS laws require you to do for a certain hazard? Need help training supervisors on handling unsafe work refusals? Share your pressing safety compliance problems with us by calling (203) 987-6163 or emailing [email protected]

Robin L. BartonEditor

CONTINUED INSIDE ON PAGE 2

EXECUTIVE SUMMARYThe Problem: Canadian companies that sell certain hazardous chemicals or mixtures containing those chemicals in Europe must comply with a European law called REACH.

The Law Requires You to: Provide a safety data sheet (SDS) for designated chemicals and chemical mixtures.

3 Things to Do: Determine if you need to create REACH-compliant SDSs; 1. Create an SDS that includes required information in the 2. required format; and Update SDSs when necessary.3.

Tools: REACH Safety Data Sheet Template

InsiderInsider

from the editors of

www.OHSInsider.com

EXECUTIVE SUMMARYThe Law Says: Employers must protect workers from hazards posed by the use of power tools, such as electrical shock, musculoskeletal injuries and getting caught in a pinchpoint.

Implement a Power Tool Program that Includes: Guidelines on selecting the proper power tool for the job;1.

Safe work procedures for the use of power tools;2.

Rules for power tool inspection and maintenance; and3.

Training for all workers who use power tools on the job.4.

Tools: Handouts for workers on chain saw safety and safely using tools powered by compressed air

SAFETY COMPLIANCE INSIDER

BOARD OF ADVISORSAndrew Cooper, CHSC

University of Alberta Edmonton, AB

Cheryl A. Edwards Heenan Blaikie LLP

Toronto, ON

Norman A. Keith, CRSP

Toronto, ON

Ken Krohman MacKenzie Fujisawa

Vancouver, BC

Safety First Intl. Services

Dartmouth, NS

David G. Myrol McLennan Ross LLP

Edmonton, AB

Yvonne O’Reilly, CRSP O’Reilly Health & Safety Consulting

Toronto, ON

Wayne Pardy, CRSP Q5 Systems

St. John’s, NL

Barbara Semeniuk, BSc, CRSP Purcell Enterprizes

Edmonton, AB

2

For more safety compliance advice, visit us on the web at www.OHSInsider.com

HOW TO COMPLY

Common hazards posed by power tools include:

Electrical hazards, such as frayed or damaged electrical cords, hazardous connections and improper grounding;

Flying objects, such as debris and dust generated by tools that can get into a worker’s eyes or cut his skin;

Point of operation hazards from moving parts that can amputate fingers or cut skin; and

Musculoskeletal injuries, such as back strain or hand-arm vibration syndrome.

The OHS regulations of all Canadian jurisdictions require employers to protect workers who use power tools from these kinds of hazards. (See the box on page 5 for more on what the OHS laws say.) Although the OHS laws don’t specifically require power tools programs, implementing such a program is an effective way to ensure that your company complies with the requirements spelled out in the regulations.

4 Key Components of ProgramLike all safety programs, power tool programs should be in writing. The key components of an effective power tool program are:

Tool selection. Using the wrong power tool for the job can endanger workers. For that reason, the OHS laws bar the use of some kinds of power tools in certain circumstances. For example, New Brunswick’s OHS Regulations bar the use of powder actuated tools to fire a fastener into cast iron, glazed brick or tile, marble, granite, slate, glass or any other unusually hard or brittle material. And power tools that emit sparks are generally banned from confined spaces containing potentially combustible atmospheres. In addition, certain tools might require specific safety features or designs, such as double insulation if they’re electrically powered or foam or rubber grips if they cause vibrations to the hands and arms.

So it’s important that you ensure that the right power tools are available to workers based on the jobs they’ll be used for and the hazards posed. Also consider the tool and how it’s designed. Thus, for example, choose lighter models of a tool that you expect employees to hold for extended periods of time.

EDITOR: ROBIN L. BARTON

MANAGING EDITOR: GLENN S. DEMBY, ESQ.

LAYOUT: TRACY BRIGHTMAN

PRESIDENT AND CEO: ROB RANSOM

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Your Plain Language Guide to C-45, OHS & Due Diligencewww.OHSInsider.com

POWER TOOL HANDOUTS:Go to the Insider's online partner website, www.OHSInsider.com, to download handouts for workers on the

safe use of chain saws and compressed air tools.

3

April 2011 © Bongarde

Use of tools. The core of your program will be safe work procedures for the use of power tools. You’ll likely need two sets of procedures: general procedures for all power tools and procedures for each specifi c kind of power tool used.

General safe work procedures for all power tools should cover:

Guarding and other safety devices;

Lockout requirements, when applicable;

Types of PPE to be worn and under what circumstances;

Cord control—that is, ensuring that the cords (and hoses) to power tools don’t become trip-and-fall hazards and are kept away from sharp edges, heat sources and chemicals that could damage them;

Electrical hazards;

Dress code—including prohibitions on loose clothing (particularly sleeves), long hair and jewellery that can get caught in power tools;

Proper use of tools under both OHS regulations and the manufacturer’s recommendations and instructions; and

Storage of tools after use.

Safe work procedures for specifi c types of power tools will also need to cover both OHS requirements and manufacturer’s specifi cations for each tool.

Inspection and maintenance. At a minimum, workers, a supervisor or another competent person familiar with power tools, their design and how they work should briefl y inspect all tools prior to and following each use, looking for defects or damage. The OHS laws require any tool that malfunctions or appears to be damaged to be marked as defective and taken out of service so that it isn’t accidentally used until it’s repaired and/or certifi ed as safe for re-use. In addition, consider assigning a worker or a team of workers to perform more formal and intensive inspections and maintenance of all power tools on a regular basis.

Tools also need to be properly maintained. For example, require workers to clean and, if necessary, lubricate their power tools after each use. And make sure that power tools are properly stored when not in use so they don’t get damaged. For instance, electrical power tools should always be stored someplace dry.

Training. The OHS laws require workers who use power tools to get proper training. For example, Sec. 13.11 of the federal OHS Regulations says that every worker must be “instructed and trained by a qualifi ed person appointed by his employer in the safe and proper inspection, maintenance and use” of all tools that he’s required to use. The other jurisdictions have similar requirements.

In general, power tool training should cover:

General safe work procedures;

Safe work procedures for the specifi c kinds of power tools the worker will use on the job;

Procedures for reporting damaged tools; and

Inspection and maintenance of tools.

As with any safety training, you must document the power tool training provided to workers and take steps to verify that the training was effective, such as by quizzing

POWER TOOL HANDOUTS:Go to the Insider's online partner website, www.OHSInsider.com, to download handouts for workers on chain saw safety and safely

using tools powered by compressed air.

safetyposter.com

4


KNOW THE LAWS OF YOUR PROVINCE

RELEVANT SEC. OF THE OHS LAW

Here are the key sections of your jurisdiction’s OHS law that apply to power tools:

OHS Regs., Part XIII (Tools & Machinery)FEDAB

OHS Reg., Part 12 (Tools, Machinery & Equipment)BC

MBWorkplace Safety and Health Reg.:

a. Part 7 (Storage of Materials, Equipment, Machines & Tools)b. Part 16 (Machines, Tools & Robots)

NBOHS Regs. 2009:

NL

General Safety Regs., Secs. 168 to 199 (Explosive-actuated Tools)NT/NUOccupational Safety General Regs.:

a. Part 6 (Lock-out)b. Part 8 (Mechanical Safety)

c. Part 9 (Tools)NS

Industrial Establishments Reg.:

a. Secs. 36 & 37 (Explosive actuated fastening tools)b. Sec. 38 (Hand-held nailing guns & similar tools)

c. Sec. 39 (Chain saws)d. Sec. 44 (Electrical tools)

Construction Projects Regs.:

a. Secs. 93-95 (Equipment, general)b. Secs. 117-121 (Explosive actuated fastening tools)

c. Secs. 195.1-195.3 (Electrical tools)ON

OHS Regs.:a. Part 28 (Explosive-Actuated Tools)

b. Part 29 (Hand Tools & Portable Power Tools)c. Part 30 (Mechanical Safety)

PE

Reg. on Occupational Health and Safety, Division XXII (Hand Tools & Power Tools)QC

a. Sec. 139 (Lockout)b. Sec. 142 (Air-actuated fastening tools)

c. Sec. 143 (Explosive-actuated fastening tools)d. Sec. 144 (Airless spray units)

SK

OHS Regs., Part 4 (Hand Tools & Power Driven Portable Tools)YT

OHS Code 2009, Part 25 (Tools, Equipment & Machinery)

OHS Reg., Part IX (Tools)

a. Sec. 88 (Safe machinery & equipment)b. Sec. 92 (Unsafe tools & equipment)c. Sec. 105 (Powder actuated tools standards)

d. Sec. 106 (Powder actuated tool use)e. Sec. 107 (Limitations on use of powder actuated tools)f. Sec. 111 (Pneumatic nailing & stapling tools)

OHS Regs.:

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5


Every jurisdiction’s OHS laws require employers to take precautions to protect workers from the hazards posed by power tools. They typically include:

General requirements. The OHS regulations often include requirements that apply to all power tools. Examples: Defective power tools that are unsafe for use must be marked as defective and taken out of service until they’re fixed and safe for use; power tools must be used in accordance with the manufacturer’s instructions; and workers must be trained in the safe use and operation of all power tools and wear proper PPE when using them.

Tool-specific requirements. In addition, OHS regulations of most jurisdictions include requirements for specific kinds of power tools, such as:

Actuated fastening tools—that is, tools that use a pneumatic, hydraulic, explosive or electric source of energy to force, propel or discharge a fastener, such as nail or staple guns. They’re sometimes called powder-actuated or explosive-actuated tools;

Pneumatic power tools;

Handheld saws, such as chain and brush saws;

Grinders;

Pressure washers; and

Airless spray units.

Voluntary StandardsOHS regulations sometimes require employers to ensure that power tools comply with the requirements of designated voluntary standards, such as those from the Canadian Standards Association (CSA). Examples of power tool standards adopted by the OHS laws:

CSA Standard C22.2 No. 71.1-M89, Portable Electric Tools;

CSA Standard Z166, Explosive Actuated Fastening Tools;

CSA Standard CAN3-Z62.1-M85, Chain Saws; and

ANSI A10.3-1995, Safety Requirements for Powder-Actuated Fastening Systems.

WHAT THE LAW SAYS

workers or making them demonstrate the techniques taught in the lesson. In addition, workers should be periodically retrained on a regular basis and whenever new power tools, safety devices or significant changes affecting how the tools are used are introduced to the workplace.

THE BOTTOM LINEOnce you’ve developed and implemented a power tool program in your workplace, you can’t rest on your laurels. You must regularly evaluate the program’s effectiveness, such as every year, and update it when necessary. For example, you might need to re-visit your selection of tools and safe work procedures if incidents involving certain tools occur, depending on the findings of the investigation into the incident’s cause. Remember that hazards are constantly shifting and, as with any other safety program, power tool safety demands that you stay on top of changing conditions and make the safety adjustments necessary to meet them.

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MEMBER PROFILE

In 2007, the OHS program at Calgary-based Unitech Electrical Contracting Inc. was in need of constant management in order to stay current with the fast changing regulations and legal requirements. It

needed full time attention. In 2008, just a year later, that same safety program earned a Trailblazer Award from the Alberta Construction Safety Association. How did this remarkable turnaround happen? In large part, it was due to the efforts of Kevin Laventure, the company’s national construction safety officer.

Retired Cop Turned Safety ProfessionalA former police officer, Kevin joined the workplace safety profession about seven years ago. Keith Brooke, Unitech’s CEO, hired him about three years ago to bring the growing company’s OHS program “into the 21st century,” says Kevin. Brooke had been running the program himself, explains Kevin, but he didn’t have the time and needed someone to focus on safety. Brooke’s mandate to Kevin: “Make the company safety program cutting edge, a leader in the construction industry.”

Kevin’s first task was to evaluate the existing program. He found several issues. For example, the company’s PPE was getting older and some was out of date. Plus, workers weren’t using it. And although the company had a safety manual, no one knew where to look for safety information when they needed it.

Some of the improvements Kevin made:

Better PPE. Kevin persuaded the company to buy new PPE, from fall protection harnesses to eye protection. For example, he’d determined that cut hands was the most common workplace injury in the company. So he bought workers Kevlar gloves. No, they weren’t cheap. But no worker has cut his hand since they started using the new gloves.

Updated safety manual. Workers needed to “take the safety manual off the shelf and use it,” says Kevin. “It’s great to have a well written and current safety manual, but if no one ever looks at it what purpose does it serve?” So he updated the manual and made it required reading for workers.

Engaging toolbox talks. The company conducted toolbox talks before Kevin was hired. But they were delivered by the site foreman and tended to be boring. So he made them more engaging, using PowerPoint presentations and videos. In addition, the company began to quiz workers after the talks to see if they were paying attention. The results go into their personnel files. And workers who do poorly must retake the quiz.

Training certification cards. Kevin tracks the training each worker has taken and who needs a refresher. He then issues workers cards on a ring that indicate the kinds of training they’ve received. Workers carry the rings onsite so that contractors, inspectors, etc. can easily see their training history.

Safety initiatives. Kevin wasn’t satisfied with ensuring that the company’s OHS program met the minimal legal requirements. So he developed safety initiatives that went beyond what the law required. For example, all workers at Unitech now get first aid training—not just

those legally required to get such training. In addition, the company brings automated external defibrillators (AEDs) to all of the construction sites at which it works, even though such equipment isn’t required under Alberta’s OHS law.

How did Kevin convince management to not only invest in safety but go beyond the legal requirements—and during a recession no less? Kevin says, “My hat’s off to the CEO [Brooke], who gave me carte blanche.” Management was committed to improving workplace safety and willing to increase its safety spending even while other companies were cutting their safety budgets. When he explained, for instance, the cost of the Kevlar gloves as compared to the cost to the company of hand injuries, management backed the investment. They could see long-term and understood that buying cheap equipment now would cost them more down the road, he says. As for investing in AEDs, Kevin convinced management that implementing an AED program would improve the company’s image and demonstrate its commitment to safety.

The workers’ initial reaction to Kevin’s improvements was mixed and there was some resistance at first. But as he kept workers informed as to why the company was making these changes, more people bought into them. Now, workers appreciate the new OHS program, saying the company should’ve implemented it years ago, says Kevin. The OHS program gives workers a “sense of pride” in the company, he adds. Although we’re generally a subcontractor on the majority of our job sites, our site safety standards go beyond those of some major contractors, explains Kevin. Other workers on the sites take notice of the difference and comment. And our workers are quick to accept the recognition.

The improved OHS program has benefited the company in other ways. Kevin says Unitech is now sought out by contractors specifically because of its strong safety program, making it more competitive. In fact, other companies now come to him for advice on how to improve their own safety programs.

The goal Kevin was given when he started at Unitech was to make the company’s OHS program an example, to set the safety standard for the rest of the industry. And it appears that he has succeeded. “The secret to success is first, you have to have everyone on board from administration on down and then be forward thinking all the time,” says Kevin.

Kevin Laventure of Unitech Electrical Contracting Inc.

DO YOU KNOW SOMEONE WHO DESERVES RECOGNITION?

Do you know someone who deserves recognition for his or her safety efforts? Examples: A worker who came up with a novel solution to a tricky safety problem, a member of management whose strong backing of safety initiatives has reduced injuries or incidents in your workplace or a safety coordinator who has gone above and beyond when it comes to protecting workers. If so, tell us about that person and maybe the Insider will do a profile on him or her. Send use your nominee’s name, company, position and contact information as well as a brief description of why he or she deserves recognition to Robin L. Barton at [email protected].

7


What Should You Say When an Inspector Asks for Your Incident Report?

SITUATIONA forklift tips over and drops containers of hazardous substances. The forklift driver is hurt. And the containers break open and spill the substance all over the ground. You report the incident as required by the province’s OHS and environmental laws. You then investigate the incident and create an internal report on it, including what happened, a frank assessment of the cause and the steps the company should take to prevent similar incidents in the future. An OHS official comes to your workplace to investigate the incident and asks for a copy of your incident report.

QUESTIONHow should you respond to the inspector’s

request?

“I’ll give it to you only if you have a search warrant.”A.

“Let me speak to corporate counsel and I’ll get back to you as B. soon as possible.”

“Sure, here it is.”C.

“What investigation report?”D.

ANSWERB. You should explain that you first need to discuss the request with the company’s lawyer and will promptly

get back to the inspector.

EXPLANATIONSThis scenario is one in which many companies find themselves after a safety incident. Aside from being required by law, conducting an internal investigation of safety incidents is necessary to determine what went wrong and what corrective actions are necessary to prevent recurrence. And you’ll generally create a written internal report based on that investigation. But government OHS officials looking into the incident may want to see that report either to determine whether to charge your company for the incident or, if they’ve already decided to lay charges, to search for evidence to use in the prosecution.

Responding to an official’s request for your internal incident report is tricky. On one hand, you don’t want to voluntarily give the government evidence that might harm the company in a prosecution. On the other hand, refusing to turn over the report could lead to obstruction charges—against you and the company. And the fact is that you may not have to turn over the report.

For example, you don’t have to disclose the report if it’s “privileged.” In addition, the official’s right to the report may depend on whether he’s conducting an inspection or an investigation. The problem is that deciding whether a document is privileged and whether the government is inspecting or investigating are complicated legal issues that you need a lawyer’s input to resolve. Because you’re in no position to make these determinations—especially on the fly—the best response to an OHS official who requests your internal incident report is to politely explain that you first need to consult with the company’s lawyer and will get back to the official as soon as you can. In most cases, officials will accept that response.

WHY WRONG ANSWERS ARE WRONG A is wrong for two reasons. First, OHS officials have broad authority to enter premises, ask questions and request documents related to a company’s safety compliance without a search warrant. Second, by refusing to turn over the report unless the official has a search warrant, you’re taking a confrontational approach and make it more likely that the official will hit you with obstruction charges.

C is wrong because you could be undermining your company’s defences down the road if it’s charged with safety violations based on the incident. Yes, this response will certainly protect you from obstruction charges. But in protecting yourself, you could be turning over information that could hurt your company—and that may not need to be disclosed to the government.

D is wrong because lying to officials as to the existence of the report could very well lead to obstruction charges. Although you shouldn’t advertise the report’s existence, you also shouldn’t lie about or conceal it. In other words, if an OHS official asks point blank whether you have an incident report and you do, don’t pretend otherwise. (Of course, you don’t have to volunteer that information if the official doesn’t ask.)

TESTYOUR I.Q.I.Q.OHSOHS

Insider Says: For more information on incident reports, see “Internal Incident Investigations: Using ‘Privilege’ to Keep Sensitive Safety Records Confidential,” Aug. 2006, p. 1; and “Surviving OHS Investigations: What to Do When OHS Officials Demand Your Incident

Reports,” Feb. 2010, p. 1.

8


BRIEF YOUR CEOA monthly safety briefing to educate management

How Courts Determine Whether Companies Exercised Due Diligence

Waterfowl died after landing on an Alberta oil company’s tailing pond containing hazardous substances, including bitumen. The company was convicted of violations under federal and Alberta environmental law for failing to store a hazardous substance so that it didn’t come into contact with animals. The court rejected the company’s due diligence defence, ruling that it failed to take all reasonable steps to prevent waterfowl from

contacting the hazardous substances [R. v. Syncrude Canada Ltd.].

THE PROBLEMA company charged with violating an OHS or environmental law can avoid liability by showing that it exercised “due diligence”—that is, took all reasonable steps to comply with the law and prevent the violation. One of the best ways to make informed decisions about the specific measures required to establish due diligence is to review what other companies did right and wrong in actual court cases in which due diligence was the main issue. The Syncrude case is an excellent example of what courts look at in deciding if a particular company exercised due diligence. Although the case involves environmental violations, courts use the same type of analysis for OHS violations.

THE EXPLANATIONDue diligence is a concept, not a specific formula. The question of whether a defendant exercised due diligence gets answered one case at a time on the basis of the specific facts involved. But what all due diligence cases have in common are the factors the courts look at to evaluate a company’s due diligence defence. All of these factors played a role in the Syncrude case, including:

Gravity of the effect. The more severe the potential harm from non-compliance, the greater the efforts a company must make to prevent it. The court said that severe contamination with bitumen has deadly consequences for waterfowl and even relatively mild contamination can have serious long-term adverse consequences.

Complexity of compliance. Experts at the trial testified that deterring birds from the tailings pond is complex, requiring a high level of expertise. For example, the pond in question was the size of about 640 football fields and located under major migratory flyways. The court concluded that the company needed expertise to effectively manage the risk to wildlife. But the team that was overseeing the bird deterrence program had no formal training in managing wildlife.

Preventive system. The company had planned to implement a system to deter birds using sound cannons and human effigies

starting April 1, depending on the weather and arrival of birds. But when the birds landed on the pond on April 28, the sound cannons hadn’t yet been deployed on the pond’s perimeter. In addition, the company didn’t have enough cannons to space them 240 metres apart as called for by its plan.

Alternative solutions. The court found that there was “no real industry standard for bird deterrence.” But it noted that oversight of the bird deterrence system by people with appropriate training, more comprehensive written procedures and earlier implementation of the system were “reasonable and feasible alternatives” to the company’s approach.

Foreseeability. The company argued that the incident was unforeseeable because unusual weather conditions prevented it from deploying its bird deterrence system earlier. But the court wasn’t swayed. Adverse weather in early April isn’t uncommon. Plus, bad weather makes it more likely that birds will land. So the company should have anticipated that bad weather might occur and deployed the deterrence system earlier.

Bottom line: The court concluded that the company didn’t establish a proper system to ensure that wildlife wouldn’t be contaminated in the tailings pond or take reasonable steps to ensure the effective operation of that system.

THE LESSONAs the court in Syncrude said, companies aren’t required to show that they took all possible steps to avoid liability or to “achieve a standard of perfection or show superhuman efforts.” They are, however, required to prove that they have proper OHS systems and that they took all reasonable steps to ensure the effective operation of those systems. Thus, you and your fellow officers and directors must ensure that the company has an OHS system that works effectively to comply with all workplace safety requirements and adequately protect workers.

SHOW YOUR LAWYERR. v. Syncrude Canada Ltd., [2010] ABPC 229 (CanLII), June 25, 2010

9


OHS MONTH IN REVIEWA roundup of important new legislation, regulations, government

announcements, court cases and board rulings.

CASE OF THE MONTHAlberta Case Shows that the Due Diligence Defence Can Actually Work

When a safety incident occurs, the first instinct is to blame the company. Although this reaction is understandable, it’s not always fair. The due diligence defence is intended to ensure that companies get a chance to prove their innocence and aren’t automatically held liable simply because an incident has occurred. However, the defence fails much more often than it succeeds, as confirmed by the results of each year’s Due Diligence Scorecard. But every year, a few cases come down that remind us that due diligence really is a viable defence. The most recent of these due-diligence-reaffirming cases occurred at the end of January. It was decided in a province where employers have had unusually high rates of success in arguing due diligence in recent years—Alberta. Here’s a look at the case and why the due diligence defence worked.

THE CASEWhat Happened: An oil company hired a crane company to lift a piece of oilfield equipment and an independent supervisor to coordinate the work and supervise the lift. The crane operator and a rigger, who were employed by the crane company, set up the crane for the lift, which involved raising and connecting a “grasshopper” linkage to the “doghouse” of an oilfield drilling structure. Two oil company workers secured the grasshopper’s yoke pin to the doghouse. But they didn’t secure it with a safety pin. After the lift was complete, the rigger was removing the sling when it got caught on the grasshopper. The rigger stepped on the lower section of the grasshopper to free the sling. The grasshopper came down, striking the rigger in the head and killing him. The crane company was charged with two OHS violations for failing to ensure the health and safety of the rigger.

What the Court Decided: The Alberta Provincial Court ruled that the crane company had exercised due diligence and dismissed both charges.

How the Court Justified the Decision: The court said the incident happened because the grasshopper wasn’t secured with a safety pin. It was the responsibility of the oil company workers to insert that pin. The grasshopper appeared to be secure but wasn’t. The crane operator and rigger didn’t know that the safety pin hadn’t been engaged and they couldn’t see whether it had been installed. So they relied on directions

from the supervisor, with whom they’d worked before without incident. But although it was ultimately the supervisor’s responsibility to ensure that the safety pin was in place, he was also unaware that it was missing.

In addition, no one involved in the lift knew that the rigger was going to step on the grasshopper—it was a spontaneous action in response to the stuck sling. The court concluded that this tragedy was “one of the bizarre and unimaginable accidents that are rare.” So it ruled that the crane company had taken all reasonable, practicable steps under the circumstances to ensure the rigger’s safety [R. v. Procrane Inc., [2011] ABPC 28, Jan. 26, 2011].

ANALYSISWhy did the company in Procrane succeed in its due diligence defence when so many others have failed? The court described the company’s safety program as “exemplary” and fully supported by the company’s president. It also listed the various facts that supported the company’s due diligence defence:

The crane operator and rigger were experienced workers who’d worked with both the oil company and supervisor before without any safety issues;The crane company had a safety manual and a safety training program;The crane operator and rigger had attended all relevant safety training as well as the safety meeting for the lift;The rigger was wearing a safety helmet at the time of the incident;The crane used for the lift was appropriate for the job; andThe crane company had performed all required hazard assessments before the lift.

So although it would be easy to conclude that the due diligence defence only works in theory and never in practice, the Procrane case should provide solid reaffirmation that maintaining an effective safety program will help your company minimize the risk of liability under OHS laws.

FEDERAL

LAWS & ANNOUNCEMENTSJan. 25: New PPE Standard for Emergency Workers AnnouncedThe federal government announced Canada’s first national standard for PPE for front-line emergency workers, such as firefighters, police and paramedics, in the event of a chemical, biological, radiological or nuclear incident. The standards were developed by the Canadian General Standards Board and CSA.

Feb. 9: Transportation Safety Board Releases Report on Helicopter CrashThe Transportation Safety Board released its final report on the fatal 2009 crash of Cougar Flight 91 off the coast of NL. Key recommendations:

Remove the “extremely remote” provision from the rule requiring 30 minutes of safe operation following the loss of main gearbox lubricantAssess the adequacy of the 30 minute main gearbox run dry requirement for Category A transport helicoptersBan commercial operation of Category A transport helicopters over water when ocean conditions don’t permit safe ditching and evacuationRequire mandatory supplemental underwater breathing apparatus for all occupants of helicopters on overwater flights who are required to wear a Passenger Transportation Suit System.

10


LAWS & ANNOUNCEMENTSJan. 20: Results of Workers’ Comp Surveys ReleasedThe WHSCC released the results of its 2010 employer and injured worker surveys. Highlights:

71% of employers and 72% of injured workers rated the Commission as effective in providing services

70% of employers and 58% of workers were mostly or completely satisfied with their overall experience with the Commission

More than 80% of employers and 65% of workers believed the Commission was fair to employers.

Jan. 24: Government Urged Residents to Get Flu VaccinesThe government reminded residents that the seasonal flu shot was available throughout the province. Residents with chronic illnesses and those over age 65 were also encouraged to receive the one-time pneumococcal vaccine, which prevents pneumonia complications from influenza. In addition, the government launched its Clean, Cover & Contain Campaign to increase awareness of the importance of practising good hygiene to prevent influenza.

NL PE

LAWS & ANNOUNCEMENTSFeb. 8: New Fact Sheet on Shoulder Tendonitis AvailableThe WCB released a new fact sheet on shoulder tendonitis, which explains what it is, how it’s diagnosed and treated, and related work restrictions and accommodations.

ALBERTA

LAWS & ANNOUNCEMENTSFeb. 9: New Safety Bulletins ReleasedThe government released two safety bulletins on:

Purging of fired heater coils using steam

Animal services workers safety precautions.

Jan. 31: Three Safety Incidents in Four DaysThe province experienced three workplace safety incidents in four days:

An industrial crane driver was travelling on the highway when the crane slid off the road and over an embankment. The driver died from his injuries.

Two days later, a 20-year-old worker was taken to the hospital with unknown injuries after a collision between a forklift and a vehicle in the company yard.

The roof of an automotive shop collapsed due to snow. Fortunately, there were no injuries to the few people inside.

Jan. 31: Trial Starts on Worker’s Death at Office PartyA Calgary man was killed after being struck by a lever from a cow roping ride during an office Stampede party. His employer was charged with violating the OHS Act for failing to protect a worker. At the trial, defence counsel argued that the company shouldn’t be liable for what happened at a company party, calling the worker’s death “the result of a bizarre and freakish chain of events that no one could have foreseen.”

Jan. 28: Worker Killed at School Construction ProjectConstruction on a new elementary school turned deadly when a 23-year-old man was killed. He was in the basket of an aerial working platform when a joist released and struck him. He died of his injuries at the scene. A stop-work order was issued for the construction project. Police turned the investigation over to OHS officers.

CASESCompanies Fined a Mere $15,000 for Three-Year-Old’s DeathA couple, their son and daughter were walking down the street when they were struck by a bundle of steel that the wind blew from the roof of a construction project. The three-year-old daughter died; the husband and son were injured. Two companies pleaded guilty to an Alberta Safety Codes Act charge of allowing an unsafe condition on the worksite. The court imposed the maximum fine—$15,000. But officials called this penalty “woefully inadequate.” Workplace safety investigators looked into the incident but no OHS charges were laid. Had a worker been killed by the sheet metal—rather than a bystander—the maximum penalty would have been $500,000 and/or six months of jail time for a first offence [Calgary Herald, Feb. 10, 2011].

Company Not ‘Employer’ of Contractor’s WorkerA company’s policy barred contractors from bringing workers onsite unless they passed a drug test. A contractor’s worker tested positive for marijuana and wasn’t allowed onto company property. The worker sued the company for discrimination. The Human Rights Panel ruled that the company was the worker’s “employer” under the human rights law but didn’t discriminate. On appeal, the court ruled that the company was not the worker’s employer—he had no contract with it, didn’t report to it, wasn’t paid by it and it didn’t direct his work. Thus, the company had no duty to the worker under the human rights law [Lockerbie & Hole Industrial Inc. v. Alberta, [2011] A.J. No. 2, Jan. 11, 2011].

AEI Doesn’t Have to Provide Documents Relating to Workplace FatalityA worker was killed when his truck was crushed by a heavy haul truck driven by a co-worker. When the victim’s family learned that a cell phone had been found in the heavy haul truck, they filed a freedom of information request with Alberta Employment and Immigration (AEI) for the cell phone records and information on the driver’s training and experience. AEI provided the family with some information but not everything requested, citing privacy concerns. The Information and Privacy Commissioner concluded that AEI didn’t have custody or control of the driver’s cell phone records and so didn’t have to provide them. In addition, disclosure of the driver’s training and experience records would be an unreasonable invasion of a third person’s privacy and thus AEI didn’t have to provide those documents [Order F2010-018, [2011] A.I.P.C.D. No. 4, Jan. 12, 2011].

Crane Company Fined $80,000 for Boom Truck IncidentA boom truck operator was lifting a load of roof trusses when they came into contact with a roof frame. As the load was being pulled off the roof, it bounced, causing the crane to jerk and tip the boom truck. The load fell and landed in the house’s front yard, while the boom crashed through the roof of an adjacent house. No one was injured. The crane company pleaded guilty to violating the OHS Regulation and was fined $80,000 [Arrow Crane Ltd., Govt. News Release, Jan. 24, 2011].

Company Penalized $65,000 after Worker Fell from Warehouse RoofA worker was using a wheelbarrow to dump gravel from a warehouse’s roof when he fell approximately 8.53 meters and sustained serious injuries. The company pleaded guilty to violating Sec. 139(1)(a) of the OHS Code (mandatory fall protection for workers working at elevations above three metres). The court ordered it to pay a $5,000 fine and $60,000 creative sentence to the OHS Program at the Southern Alberta Institute of Technology [Charlton & Hill Ltd., Govt. News Release, Jan. 19, 2011].

11


BRITISH COLUMBIA

LAWS & ANNOUNCEMENTSFeb. 1: Changes to OHS Regulations Took EffectAmendments to the following parts of the OHS Regulation took effect on Feb. 1, 2011:

Part 1 (definition of qualified registered professional)Part 4 (definition of late night hours)Parts 4 and 26 (avalanches)Parts 1, 4 and 20 (notification of utilities)Part 4 (wire rope guardrails and prior approval)Part 8 (leg protection)Parts 4, 6, 8, 9, 12, 23 and 31 (respirator protection factors)Part 9 (alternate procedures)Part 12 (swing arm restraint)Part 13 (swing stages and prior permission)Part 15 (standards for slings)Part 16 (warning signal device)Part 19 (minimum clearance—electrical safety)Parts 5, 6 and 30 (biohazardous agents).

Feb. 7: Orders Issued to Mental Health Facilities after Violent IncidentsWorkSafeBC issued nine separate orders to two mental health facilities, criticizing the failure of Vancouver Island Health Authority to protect the staff’s safety. The orders were in response to incidents in which a violent patient severely beat a psychiatric nurse. The same patient assaulted other nurses after that incident. Another patient was removed and transferred to a corrections facility, where he then assaulted a corrections officer.

Feb. 2: WorkSafeBC Launches OHS App for iPhonesWorkSafeBC just launched a new app that lets you search and browse the OHS Regulation, policies, guidelines and WCB standards on your iPhone. Because it loads directly onto your phone, you can access this information even if there’s no cell service available, such as on a ferry, at a construction site or in the basement of a building.

CASESProvincial OHS Regulations Apply to Ships that May Fish in International WatersThe owners of various commercial fishing vessels challenged orders issued to them under BC’s OHS Regulations, claiming that that those laws didn’t apply to them. The court disagreed, ruling that the fishing operations were provincial undertakings because they were based in BC, where the boats were maintained, the catch was unloaded and workers were hired and lived. The fact that the vessels may sometimes have caught fish outside of BC’s borders didn’t make them international fishing operations over which the federal OHS laws have exclusive jurisdiction [Jim Pattison Enterprises Ltd. v. BC (Workers Compensation Board), [2011] BCCA 35 (CanLII), Feb. 2, 2011].

Company Must Pay Nearly $229,000 for Exploiting Tree PlantersA forestry company was ordered to pay 57 tree planters who endured horrendous labour conditions at work camps, such as dirty drinking water, squalid living conditions and a lack of food, nearly $229,000, including back wages, overtime and vacation pay as well as compensation for poor conditions. The company’s owners were also fined $3,500 for violations of the Employment Standards Act [Khaira Enterprises, Khalid Mahmood Bajwa and Hardilpreet Singh Sidhu, Vancouver Sun, Jan. 24, 2011].

LAWS & ANNOUNCEMENTSFeb. 1: New Psychological Harassment Requirements Took EffectAn amendment to Manitoba’s Workplace Safety and Health Regulation took effect that expands the term

“harassment” to include psychological harassment, such as bullying, intimidation and humiliation. Employers must modify their existing harassment policies and procedures to reflect the expanded definition of harassment and retrain workers and supervisors accordingly. (Click here for a Model Psychological Harassment Policy you can adapt for use in your workplace.)

Jan. 31: Construction Safety Incentive Program Made PermanentThe WCB announced today that its Construction Health and Safety Incentive Program is permanent after a three-year evaluation. The program now offers a 10% reduction in WCB assessment rates for construction firms that earn Certificate of Recognition certification and meet other criteria. Since the pilot program was introduced in 2007, the time loss injury rate in the construction industry has dropped from 8.8 per 100 full time equivalent workers in 2007 to 6.9 in 2009.

MANITOBA

CASESArbitrator Rules Against University on Claims of Racism, HarassmentAn arbitrator criticized the management of University of Manitoba’s carpentry shop for allowing racism, homophobia and belittling behaviour toward workers, including the repeated use of a racial epithet toward a black worker. The arbitrator said the university breached its obligation to ensure a safe, healthy and respectful workplace and ordered it to write apologies and provide compensation of $1,000 each to several workers [The Canadian Press, Feb. 1, 2011].

Health Agency Fined $65,000 for Worker’s Entanglement in Washing MachineA worker at a health agency’s laundry facility reached into an industrial washing machine and was pinned between the hopper and the metal door opening as the washer continued its programmed cycle. He suffered soft tissue injuries to the side of his head, including a cut to his left ear that required stitches, and to his left forearm. The health agency pleaded guilty to failing to provide an optional metal hopper attachment to prevent a worker from coming into contact with moving parts. It was fined $65,000 [Winnipeg Regional Health Authority, Jan. 13, 2011].

Company Fined $24,050 for Fall Protection ViolationsA worker working on a residential roof wasn’t wearing fall protection when he fell approximately 12 metres to the concrete driveway below. He broke both heels and ankles, and fractured his L3 vertebrae. The company was fined $24,050 for failing to provide the worker with the necessary fall protection systems [Clint Todd Contracting, Govt. News Release, Jan. 27, 2011].

NB

LAWS & ANNOUNCEMENTSFeb. 8: Accommodation Booklet for Workers AvailableWorkSafeNB released a booklet for workers on frequently asked questions about accommodations.

Jan. 31: Carpenter Dies in Fall from Scissor LiftWorkSafeNB issued a hazard alert after a carpenter died in a fall from a scissor lift to a cement floor. He and a co-worker had been using the lift to install sheets of drywall. Because the drywall sheets were 12’ long, the end guardrail was removed to accommodate them. The carpenter fell from the unguarded end of the platform.

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ON

TARIO

CASESSupervisor Fined $15,000 for Disturbing Incident SceneA foreman directed a worker to put a concrete formwork panel into place. The worker used a crane to move the panel. But as it was being set down, it shifted and came free of its rigging, falling onto the foreman and killing him. An MOL investigation found that the panel could have been rigged to the crane in a more stable fashion and that a supervisor had disturbed the incident scene before the police arrived. The concrete company pleaded guilty to failing to ensure the panel was safely moved and was fined $95,000. The supervisor pleaded guilty to the same offence as well as disturbing the scene of a workplace incident before being given permission by an inspector. He was fined $15,000 [Able Concrete and Bryan Cher, Govt. News Release, Feb. 9, 2011].

Trucking Company Not Guilty for Having US-Compliant DocumentationAt an inspection station, an inspector found that a truck was missing a safety placard on the front of the trailer. In addition, the documentation for the goods being transported, which came from Michigan, complied with US but not Canadian transportation of dangerous goods standards. The court convicted the trucking company for not having a placard but acquitted it on the documentation charge. The TDG Regulations permit dangerous goods to be transported into or through Canada with documents that comply with US regulations under specified conditions, which applied here [R. v. Quik X Transportation Inc., [2011] ONCJ 9 (CanLII), Jan. 7, 2011].

Employer Retaliated Against Worker for Refusing to Work without Proper PPEA worker had a half-face respirator that was supposed to protect him from inhaling paint fumes. But the mask was in disrepair and didn’t provide adequate protection. He refused to paint until he had a new mask. He was suspended for two weeks without pay and given two disciplinary warnings. The Labour Relations Board rejected the employer’s argument that it had disciplined the worker for his poor attitude. It ruled that the discipline was “heavy handed” and in retaliation for the worker’s justified work refusal [Haines v. Cameron Steel Inc., [2011] CanLII 2238 (ON L.R.B.), Jan. 19, 2011].

Pregnant Teacher Can Take Sick Leave to Avoid Exposure to RubellaA pregnant teacher didn’t have an immunity to rubella, which was prevalent in her school. Thus, continuing to teach there would have put her at serious risk of getting the disease and endangering her unborn baby. She wanted to take sick leave but the school refused because she wasn’t actually sick. An arbitrator ruled that there are some situations in which a teacher who isn’t currently sick should be permitted to take sick leave and this was one of them. Essentially, the teacher’s lack of rubella immunity was a physical disability in these particular circumstances that required accommodation [Waterloo Catholic District School Board v. Ontario English Catholic Teachers’ Association, [2011] CanLII 2974 (ON L.A.), Jan. 20, 2011].

Failure to Use PPE Warranted Job Change but Not TerminationA worker was fired for failing to wear a stainless steel safety glove while operating a chine saw. The union argued that although discipline was warranted, termination was excessive. The arbitrator ordered the company to reinstate the worker but to a different position with less OHS risks. The worker had been warned before about removing his PPE. However, he was an otherwise excellent worker and had shown remorse for his violation. But because of his continual problems using the required safety gloves, moving him to a position that didn’t require their use was appropriate, concluded the arbitrator [Cargill Ltd. v. United Food and Commercial Workers Canada, Local 175, [2011] CanLII 1599 (ON L.A.), Jan. 12, 2011].

Nuclear Plant Fined $80,000 for Worker’s Head InjuriesA worker for a subcontractor doing construction at a nuclear power generation plant was hit on the head by an electrical panel dropped by a plant electrician from a catwalk. He sustained minor head injuries. The plant pleaded guilty to failing, as a constructor, to ensure that the work area was protected by signs warning workers of the overhead danger and was fined $80,000 [Bruce Power Inc., Govt. News Release, Jan. 25, 2011].

Worker Falls from Ladder and Suffers Fatal Cut from Window PaneA worker replacing a window at an apartment building cut a hole in it from the inside and reached through to pry it out of the frame. The ladder he was on slipped and he fell, hitting his arm on the sharp edge of the window pane and suffering a severe cut. He died from his injuries. The MOL’s investigation concluded that the worker wasn’t wearing protective clothing and the sharp edge of glass in the window pane wasn’t covered to protect him. The window company pleaded guilty to a safety violation. The court fined it $70,000 [Ely’s Glass Company Ltd., Govt. News Release, Feb. 4, 2011].

LAWS & ANNOUNCEMENTSFeb. 14: Interim Prevention Council to Implement Safety ImprovementsOntario appointed an interim prevention council to help improve workplace health and safety in the province by implementing the key recommendations from the Dean Panel.

Feb. 1: Loading Dock Safety Blitz BeganOntario’s MOL inspectors targeted hazards in shipping and receiving areas at industrial and healthcare workplaces in February. The Ministry also created a downloadable poster that highlights loading dock safety practices. (Click here for the Insider’s Loading Dock & Warehouse Training Tool Kit.)

Feb. 1: One Year Anniversary of Ban on Cell Phone Use While DrivingOne year ago, police began enforcing the ban on hand-held cell phone use while driving. Since it became law through the end of 2010, 45,975 tickets were issued to drivers caught breaking the law—about 138 tickets a day. The distracted driving law makes it illegal for drivers to talk, text, dial or email using hand-held cell phones or communication and entertainment devices while driving. It also bars the viewing of display screens unrelated to driving, such as laptop computers or DVD players.

Feb. 11: Minimum Wage to Stay the Same in 2011The Ontario minimum wage rate will stay at $10.25 per hour in 2011, the highest provincial minimum wage in Canada. Ontario’s minimum wage has increased by 50%, with annual increases in the last seven years.

Jan. 26: MOL Releases Tools to Combat Slips and FallsSlips, trips and falls constitute nearly 20% of all workplace injuries. So preventing these injuries should be a key part of workplace safety. The MOL has created a downloadable poster and fact sheet that highlight common slip and fall hazards and workplace rights and responsibilities.

Jan. 28: Bus Driver to Be Disciplined for Texting while DrivingA passenger took a photo of a Toronto bus driver texting behind the wheel. At the time, the bus was carrying about 30 people and moving at 50 km an hour. According to a Toronto Transit Commission spokesman, the driver has been identified and will face disciplinary action.

Jan. 17: Employment Information Available in Multiple LanguagesOntario’s Employment Standards Information Centre (1-800-531-5551) now provides service in 23 languages, from Arabic to Vietnamese. Residents can contact the call centre to ask about employment standards, filing a claim and where to find more information. Ontarians can also get information on their employment rights and responsibilities from the ministry’s multilingual resource portal at ontario.ca/employmentrights.

Jan. 19: New Process for Filing Employment Standards ClaimsA new process for filing employment standards claims took effect on Jan. 19. You must use the new claim form as the previous version will no longer be accepted. The MOL has created a new

“Claim Kit” for workers to use and two web-based videos, which are available in multiple languages.

13


SASKATCHEWAN

LAWS & ANNOUNCEMENTSJan. 19: Gold Mine Worker RescuedA worker at a gold mine had been trying to dislodge some rocks in the crushing room when the rocks shifted, trapping him against equipment for 10 hours. Rescuers were eventually able to scoop the ore around his legs in pails and remove it in small loads. The worker didn’t suffer any apparent injuries. Mine inspectors were notified of the incident and operations were temporarily suspended as officials tried to determine its cause.

CASESOHS Charges Against Utility ‘Stayed’ in Fatal ExplosionNearly three years ago, a natural gas explosion killed two people after a track hoe struck a gas line riser. As a result, the utility and the track hoe operator were charged with OHS violations. But the Ministry of Justice just “stayed,” that is, suspended, the charges against the utility because there was “no reasonable likelihood of conviction.” The Crown prosecutor said that there was no standard best practice for physically guarding natural gas risers and they couldn’t prove that the utility failed to exercise due diligence. However, the Crown is continuing its case against the self-employed track hoe operator. And the charges against the utility could be brought back within a year [SaskEnergy, Govt. News Release, Feb. 9, 2011].Aide’s Grabbing of Co-Worker’s Wrists Warranted Suspension—Not FiringAs a health aide was about to enter a resident’s room, a co-worker grabbed a towel from the linen cart he was using. He asked her to give the towel back. When she refused, he tightly grabbed her right wrist and then her left. She dropped the towel, which he picked up. After the co-worker complained, the aide was fired. An arbitrator ruled that although discipline was warranted for the incident, termination was excessive. The aide was a long time employee with a clean disciplinary record, who acknowledged that his conduct was wrong and cooperated with the investigation. The incident, although serious, was the result of horseplay gone awry. Thus, a three-month suspension without pay was appropriate, concluded the arbitrator [Saskatchewan Assn. of Health Organizations v. CUPE, Local 3967 (Montgomery Grievance), [2011] S.L.A.A. No. 1, Jan. 13, 2011].

CASESPower Company Fined $450,000 for Environmental ViolationA breach of a power company’s dike caused sediment to empty into Strutt Lake and the Snare River system. The company pleaded guilty to violating the Fisheries Act by allowing sediment to be deposited into waters frequented by fish. The court fined it $450,000 [Northwest Territories Power Corp., Govt. News Release, Jan. 24, 2011].

LAWS & ANNOUCEMENTSJan. 18: 2011 Is the National Year of Road Safety2011 was designated the National Year of Road Safety in Canada. In the Northwest Territories, the Department of Transportation’s Drive Alive program will continue initiatives to improve driver, passenger, cyclist and pedestrian safety, including campaigns to:

Reduce the number of people who use cell phones while drivingIncrease the number of drivers and passengers using properly fitting seat belts and child restraintsChallenge residents to avoid driving when their judgment’s impaired by fatigue, alcohol and drugsStress the need to drive at a speed appropriate for road and weather conditions, particularly in bison country.

NTNS

LAWS & ANNOUNCEMENTSApril 1: Technical Safety Act & Regulations Take EffectOn April 1, the Technical Safety Act become law. New regulations covering boilers and pressure equipment, fuel safety, crane operators, power engineers, standards, general matters and fees also took effect on that date. The government consolidated various related safety requirements into one new act and regulations. In addition, the regulations were updated to reflect current industry practices.

CASESNo Proof Hospital Renovation Made Doctor SickA surgeon leased space in a hospital. During renovations near his space, dust was released into the air. The surgeon sued the hospital, claiming that he’d gotten sick from exposure to heavy metals in the dust and was forced to retire. The trial court concluded that the hospital did have a duty to carry out the renovations so as not to unreasonably endanger the surgeon’s health. But it concluded that the surgeon didn’t prove that the renovation dust contained heavy metals or that it made him sick. And the appeals court upheld this decision [MacIntyre v. Cape Breton District Health Authority, [2011] NSCA 3 (CanLII), Jan. 18, 2011].

LAWS & ANNOUNCEMENTSFeb. 21: Tuberculosis Outbreak ContainedThe Department of Health and Social Services reported that everyone in Deline has been screened for tuberculosis and all current cases of the disease are being treated. Seven cases of TB were reported in Deline in 2010 and there have been 31 latent cases of the disease discovered in Deline to date. Symptoms of TB include persistent coughing, fatigue, night sweats and coughing up phlegm and blood.

NU

QUÉBEC

LAWS & ANNOUNCEMENTSFeb. 3: Poultry Worker Dies in Bus AccidentA bus transporting workers in the poultry industry flipped into a ditch after the driver lost control of it. A Guatemalan man onboard died from his injuries after being trapped under the vehicle. The driver was treated for nervous shock.

CASESLandscaper Found Guilty of Criminal Negligence in Worker’s DeathIn a decision from the Court of Québec, a landscape contractor was found guilty of criminal negligence under the changes made to the Criminal Code by Bill C-45. He was operating a backhoe, when its brakes failed and he collided with a worker, who died. Experts confirmed that the vehicle was 30 years old, very poorly maintained and that the brakes were completely non-functional. The Court concluded that, in neglecting to perform maintenance on the backhoe, the contractor markedly departed from the standard of care expected of a prudent and diligent person [R. v. Scrocca, 2010 QCCQ 8218 (CanLII), Sept. 27, 2010]. Click here for more information.

LAWS & ANNOUNCEMENTSJan. 31: Safety Inspector Sues over Web Post on CompetencyA Yukon safety inspector is suing the CBC for publishing what he says is a malicious and professionally damaging attack on its web comment board that has affected his “ability to work in this community.” He filed the claim after someone posted a long comment on a story about workplace safety charges laid against Procon Mining and Tunnelling for a worker’s death. In the comment, the person said that Yukon health and safety inspectors are “unqualified to investigate let alone recommend charges be laid against contracting companies such as Procon” and names this inspector and another man.

YT

14


applies to not only manufacturers and importers located in the EU but also manufacturers that make their products available to consumers in the EU. So if your company sells, exports or distributes any of the designated chemicals or chemical mixtures in Europe, it must comply with REACH. This article explains what Canadian EHS coordinators need to know about SDS requirements to keep their companies in compliance with REACH.

HOW TO COMPLY

The box on page 16 explains how the REACH law works and who and what it covers. Safety coordinators need to know about the SDS requirements. Specifically, there are five questions you need to be able to answer to ensure your company’s compliance:

1. When Is an SDS Required?

The basic rule is that suppliers of substances and preparations, including manufacturers, must provide an SDS to their customers when supplying a designated dangerous substance or preparation. Suppliers must also provide an SDS when supplying substances that are classified as persistent, bio-accumulative and toxic (PBT) or very persistent and very bio-accumulative (vPvB), or preparations containing such substances.

2. What Information Must the SDS Include?

The information provided in an SDS must be consistent with that given in a chemical safety report, when one is required. When is a chemical safety report required? All manufacturers and importers of chemicals must identify and manage the risks linked to the substances they manufacture and market. But they don’t all have to prepare chemical

safety reports. If manufacturers and importers produce or import substances in quantities greater than or equal to 10 tonnes/year, then they must perform chemical safety assessments to determine and demonstrate the safe use of a substance and include that information in a chemical safety report. They must also register with the ECHA and provide that report.

3. What Is the Appropriate Format for an SDS?

An SDS has to be supplied in the official languages of the countries in the EU in which the substance or preparation is placed on the market. The SDS should use a “16-point” format, based on GHS recommendations, that has the following headings:

Identification of the substance/mixture and 1. the company/undertaking;

Hazard identification/assessment; 2.

Composition/information on ingredients; 3.

First aid measures; 4.

Fire fighting measures;5.

Accidental release measures; 6.

Handling and storage; 7.

Exposure controls/PPE;8.

Physical and chemical properties; 9.

Stability and reactivity; 10.

Toxicological information; 11.

Ecological information; 12.

Disposal considerations; 13.

Transport information; 14.

HAZARDOUS SUBSTANCES CONTINUED FROM PAGE 1

Insider Says: Exposure scenarios are used to assess the exposure to chemicals of humans and the environment and to identify the appropriate risk management measures. When exposure scenarios are developed as a result of conducting a chemical safety assessment, those scenarios must be attached to the SDS and passed down the supply chain. By doing so, the supplier informs his customer of the risk management measures that are

implemented or recommended for safe use of the substance.

REACH SAFETY DATA SHEET TEMPLACE:Go to the Insider's online partner website, www.OHSInsider.com, to download the REACH-compliant SDS template on pages 17 and 18 that you can use to create SDSs for chemicals your company sells,

distributes or exports to the EU.

15


Regulatory information; and 15.

Other information.16.

4. When Must an SDS Be Updated?

An SDS must be updated if:

New data become available on hazards or which may affect the risk management measures;

The substance’s classifi cation is new or revised;

An authorisation is granted or refused; or

A restriction is imposed.

Any new or revised classifi cation, including any changes of specifi c concentration limits or M-factors for substances, should be included in Sections 2, 3 and 15. The full text of a new hazard statement should go in Section 16. You’ll also need to review the other sections of your SDS to ensure they’re consistent with the information on which the new or revised classifi cation is based.

Example: You may have generated or identifi ed new information about the physical, health or environmental hazards of your substance or mixture as part of the classifi cation process. So review the information provided in Sections 9, 11 and 12 and include any appropriate new or updated information.

5. What Is the Deadline for Compliance with SDS Requirements?

There are two key deadlines for meeting SDS requirements:

Dec. 1, 2010: After this date, all sections of required SDSs must be completed. When a company doesn’t have the necessary information for a section, it must state in the SDS that this information isn’t available; and

June 1, 2015: All SDSs must be updated or rewritten to include information on mixtures.

For substances or mixtures that don’t require reclassifi cation under the REACH process, existing SDSs will be valid until Nov. 30, 2012 for substances and May 31, 2017 for mixtures.

BOTTOM LINEComplying with Canadian OHS and environmental laws is complicated enough. But for many companies, compliance obligations don’t stop at the border. Canadian companies may also have to comply with the OHS and environmental laws of other countries, especially if they sell or export hazardous substances to those countries. REACH is an example of a foreign law that impacts Canadian companies that sell certain chemicals or chemical mixtures to members of the EU. Although ensuring compliance with REACH’s requirements may seem like yet another burden for EHS coordinators, the good news is that some of the requirements, such as those for SDSs, are similar to requirements your company is already fulfi lling.

REACH SAFETY DATA SHEET TEMPLACE:Go to the Insider's online partner website, www.OHSInsider.com, to

download the REACH-compliant SDS template that appears on pages 17 and 18.

safetyposter.com

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REACH replaces about 40 laws across the EU. Some related laws, such as OHS laws for workers handling chemicals, haven’t been replaced by REACH and so continue to apply. The law also created the European Chemicals Agency (ECHA) to centrally coordinate and implement the overall process.

REACH applies to approximately 30,000 “substances”—that is, chemical elements and their compounds in their natural state or obtained by any manufacturing process. If two or more substances are mixed together forming a mixture or a solution, the term “preparation” is used. There are a few exceptions to the REACH requirements, including radioactive substances, waste and polymers. A few substances are exempted from some of the requirements when other equivalent legislation applies, such as substances used in medicinal products.

One of the key steps in the REACH process is communication in the supply chain. Suppliers of substances must pass on information on the health, safety and environmental properties and safe use of their chemicals to their downstream users through an SDS or other means. The communication requirements of REACH ensure that not only manufacturers and importers but also downstream users have enough information to use chemical substances safely. Downstream users may be:

Formulators of preparations, such as paints, glues, detergents, plastics or rubbers;

Users of chemicals, such as oils, lubricants and antifoams, in industrial processes;

Professional users, such as car repair shops and cleaners; or

Producers of items, such as electronic components, computers, toys or cars.

Distributors and consumers aren’t considered downstream users under REACH. But distributors must ensure that safety information is provided with the substances they sell and pass on relevant information within the supply chain.

Annex II of REACH spells out the requirements for SDS preparation and dictates when an SDS is needed, the language, formatting, etc. The REACH requirements for SDSs are modeled on—but not necessarily identical to—the second revision of the Globally Harmonised System of Classification and Labelling of Chemicals (GHS). (For more on the GHS, see Insider, May 2009, p. 1.)

WHAT THE LAW SAYS

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REACH SAFETY DATA SHEET TEMPLATE

1 IDENTIFICATION OF THE SUBSTANCE/MIXTURE AND OF THE COMPANY/UNDERTAKING1.1 Product Identifier

Issue Date:

Version number: Supersedes/Cancels:

MODEL FORM

1.2 Relevant identified uses of the substance or mixture and uses advised against

1.3 Details of the supplier of the substance or mixture

1.4 Emergency Telephone

2 HAZARDS IDENTIFICATION2.1 Classification of the substance or mixture [CLP classification]

2.2 Label elements

2.3 Other hazard information:

3 INFORMATION ON THE INGREDIENTS3.1 Substances

3.2 Mixtures

4 FIRST AID MEASURES4.1 Description of first aid measures

4.2 Most important symptoms and effects, both acute and delayed

4.3 Indication of immediate medical attention and special treatment needed

5.3 Special protective actions for fire-fighters

6 ACCIDENTAL RELEASE OF MATERIAL6.1 Personal precautions, protective equipment and emergency procedures

6.2 Environmental Precautions

6.3 Methods and material for containment and cleaning up

7 HANDLING AND STORAGE7.1 Precautions for safe handling

7.2 Conditions for safe storage, including any incompatibilities

7.3 Specific end uses

8 EXPOSURE CONTROLS / PERSONAL PROTECTION8.1 Control parameters

8.2 Exposure controls

8.3 Environmental exposure controls

9 PHYSICAL AND CHEMICAL PROPERTIES9.1 Information on basic physical and chemical properties

5 FIRE-FIGHTING MEASURES5.1 Extinguishing media

5.2 Special hazards arising from the substance or mixture

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REACH SAFETY DATA SHEET TEMPLATE CONT'D.

MODEL FORM

10.4 Conditions to Avoid

10.5 Incompatible materials

10.6 Hazardous decomposition products

11. TOXICOLOGICAL INFORMATION11.1 Information on toxicological effects

12. ECOLOGICAL INFORMATION12.1 Toxicity

12.2 Persistence and degradability

12.5. Results of PBT and vPvB assessment

14.3 Transport hazard class(es)

14.5 Environmental hazards

14.6 Special precautions for user

15. REGULATORY INFORMATION15.1. Safety, health and environmental regulations/legislation specific for the substance or mixture

14.7 Transport in bulk according to Annex II of MARPOL73/78 and the IBC Code

15.2 Chemical Safety Assessment

16. OTHER INFORMATION

10.3 Possibility of hazardous reactions

12.3 Bioaccumulative potential

12.4. Mobility in soil

14.4 Packing group

14.2 UN Proper Shipping Name

14. TRANSPORT INFORMATION14.1 UN Number

13. DISPOSAL CONSIDERATIONS 13.1 Waste treatment methods

12.6. Other adverse effects

10 STABILITY AND REACTIVITY10.1 Reactivity

10.2 Chemical stability

9.2 Other information

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BRAND NEW!

LAWSCAPE: PAYING JHSC MEMBERSEMPLOYERS MUST PAY

JHSC MEMBERS:RELEVANT SEC. OF

THE OHS LAWFor all JHSC functions, including meetings, preparation and travel, at the

member’s regular or premium rate depending on the collective agreement or, if there’s no agreement, the employer’s policy.

Canada Labour Code, Secs. 135.1(10) and (11)FED

For time to attend and prepare for meetings and perform other JHSC functions.

Workers’ Compensation Act, Sec. 134(2)BC

OHS laws don’t address payment of JHSC members.AB

For all time spent carrying out JHSC functions at regular or premium rate. Workplace Safety & Health Act, Sec. 40(11).MBFor time spent in JHSC meetings and attending required JHSC educational

programs at their rate. OHS Act, Sec. 14.1(6)NB

Salary and other benefits while they’re engaged in a JHSC meeting. OHS Act, Sec. 40NL

For time spent performing any JHSC function at their regular rate. Safety Act, Sec. 7(6)NT/NUFor time performing JHSC functions and attending training at their

applicable rate.OHS Act, Sec. 30(6)NS

For time preparing for and attending meetings and performing other JHSC functions at their regular or premium rate as may be proper.

OHS Act, Sec. 9(35)ONFor time attending meetings, taking required training and performing JHSC functions at their usual salary and benefits for such time, without change.

OHS Act, Sec. 25(11)PE

For participating in JHSC meetings and other work, including training. An Act Respecting Occupational Health & Safety, Secs. 76 and 91

QC

Salary and other benefits for conducting meetings and performing other JHSC functions.

OHS Regs., Secs. 48(1)(b) and 48(2)SKFor time JHSC members spend in meetings and performing other JHSC

functions. OHS Act, Sec. 12(14)YT

N/A


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When Is Workers’ Misconduct a Bar to Workers’ Comp Claims?

injuries caused solely or primarily because of a worker’s own “wilful misconduct.” So what constitutes wilful misconduct? Here are two cases in which a workers’ comp board or commission had to decide whether to deny a claim because of a worker’s wilful misconduct.

CLAIM DENIEDFACTSA worker at a group home was assigned to supervise a client who had a history of acting out physically and of escalating behaviour. When the client refused to go to school, the worker forced him to go. He was disruptive at school and was asked to leave. The worker went to the school but instead of bringing the client home, he took the client back into the school. The client began acting aggressively. Rather than leave the area, the worker confronted the client, who then assaulted him. The

DECISIONThe BC Workers’ Compensation Appeals Tribunal denied the claim, ruling that the injury was caused by the worker’s wilful misconduct.

EXPLANATION In determining whether a worker’s injury was the result of wilful misconduct, the Tribunal looked at whether the worker was aware of a rule and knowingly chose to break it. In this case, the worker had reviewed and signed off on the risk assessment book for the client, which detailed the rules for dealing with him. For example, the rules said not to force the client to do anything he didn’t want to do. So the worker shouldn’t have forced the client to go to school. And the rules required the worker to leave the area when the client began acting out physically. Instead of leaving, the worker confronted the client. The worker not only failed to follow these rules, but also argued that the rules didn’t “work in the real world.” The Tribunal concluded that if the worker had followed the detailed rules for dealing with this client, the assault would never have happened. Thus, but for the worker’s “serious and wilful misconduct,” he wouldn’t have been injured. WCAT-2008-01404, [2008] CanLII 33554 (BC W.C.A.T.), May 12, 2008

CLAIM APPROVEDFACTSA worker was driving a tractor trailer containing chemicals to a customer for delivery. As he made a left turn at an intersection, the truck overturned, spilling the chemical on the roadway. The police issued the worker a ticket for careless driving. No other vehicles were involved in

claim.

DECISIONThe Appeals Commission for Alberta Workers’ Compensation approved the claim, ruling that the injury wasn’t caused by the worker’s wilful misconduct.

EXPLANATION The employer argued that the worker’s serious and wilful misconduct

accident, which resulted in his injuries. It claimed that the worker had been speeding and driving unsafely. But the Commission disagreed. There was no evidence that the worker was speeding. And although he got a ticket for careless driving, there was no evidence he was convicted of that charge. There’s no question that the worker deliberately made the left turn. But there was nothing to suggest that he deliberately disregarded safety when doing so. Thus, his behaviour in relation to the accident didn’t constitute serious and wilful misconduct, concluded the Commission. Decision No. 2010-542, [2010] CanLII 38710 (AB W.C.A.C.), July 7, 2010

WINNERS & LOSERS