Fines under Alberta's Occupational Health and Safety Act (OHSA) hit an unprecedented high in 2008. The Upstream Oil and Gas (UOG) industry was one of the industries targeted. Moreover, a recent court decision against a well services company may have eased the task of the Crown in securing convictions in cases where a worker has been injured.
According to Alberta Workplace Health and Safety (WHS), the provincial ministry responsible for enforcing Alberta's OHSA, 2008 was the third consecutive year that record penalties have been imposed.
In 2007 there were only 12 completed prosecutions under the OHSA, with fines totalling $1,720,000. In 2008 this number almost doubled to 22 completed prosecutions. But the more formidable statistic is the amount of total fines levied in 2008 - a whopping $5,073,000 - an increase of 294% from the previous year. Also worth noting is the increase in the average fine per completed prosecution, which went from $143,000 in 2007 to $230,590 in 2008.
These numbers are a product of several factors. First of all, there have been more OHS officers enforcing Alberta's OHS laws and more crown prosecutors handling OHS files. Further, "creative sentencing" provisions under the OHSA allow judges to direct portions of fines to organizations that will improve health and safety standards for Albertans. Judges have been taking advantage of this opportunity. In 2008, 88% of all fines went to organizations like STARS (air ambulance service), Red Deer College, Northern Alberta Institute of Technology, and the University of Alberta. Perhaps most importantly, Alberta's work-related fatality rate has not seen a significant improvement since 2003. This has garnered a great deal of public concern and media attention, especially in both of Alberta's major newspapers, the Calgary Herald and the Edmonton Journal. As a result, WHS may be feeling increased pressure to ensure that employers are deterred from unsafe practices. Whatever the reasons, the latest prosecution statistics are eye-opening to say the least.
There is no end in sight to this trend. WHS' Targeted Employer Program, which has been in place and has been successful since 2002, will be continuing in 2009. This program identifies employers who have injury frequency and severity rates higher than the provincial average and subjects them to a certain number of proactive inspections by an OHS officer within a 12-month period. Orders are the likely result of these inspections if any contraventions of Alberta's OHS laws are identified. In 2007/2008 the Targeted Employer Program resulted in more than 5,000 inspections and the issuance of more than 3,000 orders. Of these, 1,357 inspections and 644 orders related to employers in the UOG industry. The UOG industry continues to be targeted in 2009.
Because the UOG industry is being closely monitored by WHS, it is more important than ever for employers in this sector to ensure that supervisors and workers, who will likely have contact with an OHS Officer, are properly equipped to handle an inspection or an investigation. It is these supervisors and workers who may unnecessarily incriminate their employers, or the contractors and prime contractors that have hired them. Providing this training is a new focus of Gowlings OHS Practice Group in Calgary.
Not only has the likelihood of a visit by an OHS Officer increased, along with the likelihood of orders being issued as a result of these visits, but a recent Court of Queen's Bench decision may have increased the ease with which WHS is able to obtain convictions under the "general duty clause" of the OHSA. The general duty clause requires employers "to ensure, as far as it is reasonably practicable to do so, the health and safety of workers".
Prosecutions under the OHSA commonly include allegations of a "specific" nature, such as the failure to provide fall protection equipment, along with an allegation that the general duty clause has been contravened. This can lead to suspicions that the general duty is being used as a "catch all" or as insurance, in case the Crown is unable to prove the "specific" offences beyond a reasonable doubt, or if the employer is able to establish due diligence in relation to the specific offences.
The general duty clause was considered in the decision of R. v. Rose's Well Services Ltd., issued in January 2009. In Rose, the defence argued that, based on the wording of the general duty clause, the Crown must establish the failure to take all reasonable steps, a standard equivalent to negligence. Generally, this would involve specific allegations by the Crown as to the manner in which the defendant's OHS Management System was inadequate. The Crown would then be obligated to establish this inadequacy beyond a reasonable doubt. The Crown argued that the accident itself established the offence, requiring the onus of proof to shift to the defendant to establish due diligence. The Court of Queen's Bench endorsed the notion that "the Crown may stop at the facts of the incident" as proof of the offence.
Rose represents the first appellate decision to endorse the notion that the accident itself establishes an offence under the general duty clause and that the Crown must establish no specific failure or act on the part of the employer to ensure, as far as it was reasonable and practicable to do so, the health and safety of a worker. This may result in more difficult and time-consuming defences to these charges and increase the expense and uncertainty for employers.
All of this recent OHS activity in Alberta raises a very important question that all employers should be asking themselves: "Are we in compliance with Alberta's OHS laws?"
Complying with Alberta's OHS laws minimizes the risk of having work-related incidents, which significantly decreases the likelihood of being targeted by WHS. This further decreases the likelihood that orders will be issued or a prosecution will be commenced. It has become more important than ever to invest in OHS proactively, in order to prevent the human, economic and legal costs associated with work-related incidents, rather than deal with the uncertainty of a prosecution and the skyrocketing fines under Alberta's OHSA. The Gowlings OHS Practice Group in Calgary is committed to assisting clients in this endeavour.