Earlier this year, the Provincial Court of Saskatchewan examined the alleged safety failings of a Crown Corporation’s supervisor and employees in R v Saskatchewan Power Corporation, 2016 KPC 002. The case involved the unauthorized use of a torch in the workplace. SaskPower successfully raised the defence of due diligence and was acquitted on all four charges brought against it under The Occupational Health and Safety Act, 1993 and The Occupational Health and Safety Regulations, 1996. The case is an important one for employers and we expect it will have implications for OHS prosecutions brought under the recently enacted Saskatchewan Employment Act.
At a production meeting involving SaskPower management and the supervisor of the utility crew in question, the supervisor mentioned doing something about an ice accumulation in a culvert under the road leading to a cooling tower. Management did not think the ice was a hazard. The supervisor was told not to address that task and was not authorized to deal with the ice accumulation.
The supervisor proceeded to address the ice accumulation in any event by placing an ignited tiger torch attached to a propane tank near the ice mass and wrapping a tarp around the end of the culvert to trap the heat. The torch was left unattended. Later, the supervisor told a worker to check the torch and ensure it was still lit. When the worker checked the torch, the flame was out and he re-lit it. He did this twice. On the second occasion, a fireball burnt the worker’s face, fingers, hand and arms, seriously injuring the worker and requiring hospitalization. SaskPower was ultimately prosecuted and the Court considered SaskPower’s responsibility in relation to four charges under the OHS Act and Regulations for: a) failure to properly train its workers; b) failure to ensure proper and competent supervision of a place of employment; c) failure to control or eliminate all or potential sources of ignition where an explosive atmosphere exists; and d) failure to ensure the health, safety and welfare at work of all of the employer’s workers.
At trial, the Crown was able to prove the underlying acts complained of. It then fell upon SaskPower to raise the defence of due diligence to avoid conviction by proving on a balance of probabilities that it took all reasonable care to avoid the result or that it held a reasonable belief in a set of circumstances that would render its acts or omissions innocent. The Court considered s. 61 of the OHS Act, the vicarious liability provision (now s. 9-8 of the SEA). In summary, that provision deems “any act or neglect on the part of a manager, agent, representative, officer, director or supervisor of the accused” to be “the act or neglect of the accused.” Importantly, the Court confirmed that the provision did not take away the employer’s/accused’s ability to raise a defence of due diligence.
The Court found that SaskPower had successfully demonstrated due diligence on each count. In particular, SaskPower had made significant attempts to impress on its employees that safety was a critical part of their work and had established a work procedure focused on avoiding harm to its workers which was designed to avoid incidents like this one. Further, work orders were required for scheduled work, and morning tailboard meetings were held to discuss what work was to be done, who would do it and how it would be done safely. Following those tailboard meetings, workers assigned to a task were required to complete a safety and risk hazard assessment form. In the context of this case, the Court found that no work order to deal with the ice accumulation work was obtained, no “hot work” permit was sought and no safety and risk hazard assessment form was completed by the supervisor or the worker at any time even though such protocols were put in place for the safety of SaskPower employees.
With respect to the supervisor, the Court held that SaskPower provided the supervisor with everything he needed to know to avoid the incident. Although more safety training could have been provided, on a balance of probabilities, SaskPower took all reasonable care to train the supervisor to avoid the type of incident that injured the worker. With respect to the worker, the Court held that the “tiger torch” was used infrequently and SaskPower could not have reasonably expected the worker to use that tiger torch on the day of the incident. Therefore, training the worker on this tool did not form an essential part of SaskPower’s duty to train its workers.
Overall, the case demonstrates that the defence of due diligence is a viable defence in the context of OHS prosecutions. An employer does not need to be perfect. Rather, it needs to take reasonable care to ensure adequate safeguards are in place to prevent against reasonably foreseeable hazards. Further, the availability of the due diligence defence is not impacted by the vicarious liability provisions of Saskatchewan’s OHS legislation.