Following the deaths of two employees who were doing electrical testing on a dam, the Court of Québec[1] has found Hydro-Québec guilty of having directly and seriously compromised the health, safety or physical well-being of a worker[2].

The employees died when a gate was opened and water flowed into the turbine where they were working. This opening was caused by the activation of the winch connected to the gate (winch 73). The opening of the gate was an unintentional result of the activation of another winch (winch 71) used to open another gate. The investigation showed that this was caused by poor maintenance on winch 73, and in specific, insufficient lubrication of the drive shaft.

According to the Court, the contributing fault of the subcontractor who had repaired winch 73 a few months earlier could not exclude Hydro-Québec’s liability if the latter had done or omitted anything that could incur its liability. In addition, pursuant to the Act respecting occupational health and safety[3], an employer has a duty to provide safe equipment and to ensure it is kept in good condition, even though a third party may have supplied equipment that is in bad condition.

The Court concluded that the evidence revealed a number of omissions on the part of Hydro Québec in its relations with its subcontractor. Thus, contrary to the usual procedure, the repair of the winches had been contracted to a company that was not ISO-certified. Moreover, Hydro-Québec had not observed its own internal policies designed to make up for the lack of certification in terms of supervision and quality control of the subcontractor’s work.

Furthermore, the subcontractor’s reporting obligations to Hydro-Québec were less stringent than they were in previous calls for tenders. Finally, when the winch was returned to Hydro-Québec, the latter’s technician had had it lubricated twice, but the work proved to be substandard and poorly supervised.

The Court recalled that an employer may be absolved if it can establish that it exercised reasonable care, that is, it had taken [TRANSLATION] "every precaution to prevent the violation" and done [TRANSLATION] "everything necessary for its safety measures to function properly". The Court found that the employer must be proactive and not rely on the experience and knowledge of its workers or subcontractors. The employer must take concrete and proactive steps for every foreseeable situation it may face. It must also ensure that its own internal policies are followed.

The Court concluded that, in this case, Hydro-Québec had not exercised reasonable care.

This Court of Quebec judgment was appealed on September 22, 2008. We will be sure to keep you informed as to how the appeal unfolds.