Safety Update

Safety Update: The DEARING CASE: Maybe not so "endearing" for Safety Coordinators

In 2007, Nova Scotia became the first province to successfully prosecute a safety coordinator for a safety violation. A recent article published by Safety Compliance Insider, "Taking the Blame", Vol5 (2), p1]; discusses the 2007 Dearing case and the impact on safety coordinators, lessons learned and mitigating the risk against similar prosecutions.

The case ended rather anti-climactically when the safety coordinator, Dearing, pleaded guilty to a "technical" violation-i.e. developing a site safety plan without consulting the company's Joint Health and Safety Committee (JHSC) as required by the Act. The judge fined Mr. Dearing $1,000, but noted that his actions didn't [directly] cause the tragedy.

Even though the Insider refers to the outcome of the case as "bizarre" and unusual; it does say that to think this could not happen again would be naive. The Dearing case makes it quite clear that safety coordinators can still face health and safety charges even though there is no OH&S law that expressly imposes liability. Ryan J. Conlin, a partner with Stringer Brisbin Humphrey, Management Lawyers, explains in the article that there are at least two theories on which a safety coordinator could be held liable for a safety offense:

1. The safety coordinator is a "supervisor" under OH&S laws.
2. The safety coordinator has "control" under Bill C-45.

The article discusses three strategies to mitigate a safety coordinator's potential liability, which we will attempt to summarize below:

Strategy #1: Document, Document, Document

If your organization does not document suggested corrective actions, recommendations and more importantly why corrective actions or recommendations are not implemented - BEWARE! Should an incident occur and lead to prosecution, a safety coordinator's personal liability will depend on whether or not he/she can prove the safety information and recommendations were provided to persons in the company with the power to act.

Strategy #2: Make Sure Your Job Description Is Accurate

If you are a safety coordinator ensure your job description is accurate. Prosecutors and courts might rely on this job description to determine your responsibility/accountability. For those of you that subscribe to the insider you can find a "model job description" by clicking here.

Strategy #3: Get Company to "Indemnify" You

In the article Conlin says, "Despite all your efforts as safety coordinator, safety violations or incidents may still occur. If you end up being charged as a result, you want the company to "indemnify" you-that is, defend you and hold you harmless. This request is reasonable since such a prosecution or other legal proceeding will stem from your duties as safety coordinator and thus your work on the company's behalf". For those of you that subscribe to the insider you can find a "model clause" by clicking here.

Bottom line: Although prosecutions against safety coordinators aren't likely to become a regular occurrence, the threat of such prosecutions remains a real one. So if you're a safety coordinator, you need to recognize the risk that you could be prosecuted at any time for a safety violation. The good news is that as long as you do your job professionally, maintain your commitment to protecting the health and safety of your workers and take the risk management strategies described in this article, you're highly unlikely to become the next Dearing.

eCompliance.ca has been subscribing to the Safety Compliance Insider since 2006 and we have found it to be a valuable resource to ensure we as an organization stay attuned and updated to trends, cases and changes in Canadian safety laws, rules and regulations. This excerpt has been used and published with the express permission of the Safety Compliance Insider. For more information on the Safety Compliance Insider click here.

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eCompliance provides information about topical OH&S issues to assist existing and potential customers to cope with their own OH&S needs. It is not intended to be legal information or legal advice. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.