It may now be commonplace to see supervisors charged under occupational health and safety legislation, but it is extremely rare to see a safety manager convicted.
But that is just what happened last month in Cape Breton, Nova Scotia. James Della Valle, Safety Coordinator for the Cape Breton Housing Authority, was convicted as an employee and fined $1,000 for failing to protect workers and members of the public.
In the fall of 2005, Della Valle received a report detailing positive test results for asbestos in the attic insulation of a housing complex under renovation. The report called for, among other things, the immediate sealing of the contaminated areas and careful and safe removal of the insulation.
Della Valle passed the report along to two of his supervisors and assumed the issue would be taken care of. He did not relay the positive asbestos results to any other management personnel including his direct supervisor, the Director of the Housing Authority. He also did not warn any of the employees working at the site (including sub-contracting trades) of the potential hazard, nor did he advise the project’s Joint Occupational Health and Safety Committee. Most importantly, Della Valle failed to follow-up with his two supervisors to see if the measures recommended in the report had in fact been implemented. Evidence presented at trial showed that the two maintenance supervisors did nothing about the asbestos report, despite being asked by workers at the site if there was asbestos in the insulation.
The report eventually came to light after a persistent electrical subcontractor reported his fears of asbestos to his supervisor who in turn advised the Director of the Housing Authority. In the meantime however, renovation work continued, exposing both workers and members of the public to the hazardous material for several months.
In convicting Della Valle, the court held that his job, as set out in the job description, was to promote a safe and healthy workplace. Thus, Della Valle’s failure to follow-up on the report with his two supervisors, and to advise senior management of the presence of asbestos, constituted a failure to protect workers and members of the public under the OHS Act.
The Department of Community Services pled guilty in 2009 in relation to same matter. The Department was fined $10,000 for failing to protect workers and members of the public.
This is only the second conviction of a “safety employee” anywhere in Canada for occupational health and safety related charges. In 2007, Bernard Richard Dearing pleaded guilty and was fined $1,000 for unilaterally developing a site safety plan without consulting the company’s JHSC, as required by Nova Scotia’s OHS Act. In that case, a worker was crushed to death after a 680-kg steel beam being lifted by a crane broke loose from its hoist and hit the worker in the head. The fatality occurred during the dismantling of an old steel mill.
Whether or not prosecuting and penalizing safety coordinators furthers the purpose of OH&S legislation, or somehow contributes to workplace accident prevention, remains to be seen. Nevertheless, companies and their safety personnel may have to accept that they could be potential targets for OH&S prosecution.
