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Newfoundland and Labrador




by:
Ruth E. Trask
Stewart McKelvey - St. John's Office

 
August 9, 2013

Previously published on Summer 2013

Legislative changes

Amendments to the Canada-Newfoundland and Labrador Atlantic Accord Implementation Newfoundland and Labrador Act will establish a new occupational health and safety regime in offshore areas of Newfoundland and Labrador.

While the amendments are not yet in force, they will become law on a future date through proclamation and so industry leaders should take proactive measures to ensure compliance when they do take effect.

What do these amendments do? The amendments include the following changes:

  • Provincial labour ministers and the federal minister of natural resources (in consultation with the federal minister of labour and Transport Canada) are enacting brand new regulations for offshore occupational health and safety. The Canada-Newfoundland and Labrador Offshore Petroleum Board ("C-NLOPB") will administer these regulations.
  • Workers in transit to or from offshore platforms will be covered by this regime.
  • The C-NLOPB will be authorized to disclose information related to occupational health and safety to the public.
  • Occupational safety officers, conservation officers, chief safety officers and chief conservation officers are no longer appointed by the C-NLOPB. Rather, the board makes recommendations to both the provincial and federal ministers, who then make a joint designation.
  • Occupational health and safety officers will have increased enforcement powers, including the powers of inspection and investigation, warrant provisions and order measures in case of dangerous situations.
  • Owners of offshore facilities are responsible for facilitating and funding inspectors' visits to and from the facility, including transportation, accommodations and meals.
  • Potential financial liability for owners of offshore oil installations has been increased. This includes liability for the full cost of remediation of petroleum product spills or discharges and any expenses incurred by government agencies in responding to a spill or discharge.
  • Corporate liability is explicitly established for offences under the legislation.
  • There is no requirement to prove that a person intended to commit an offence by making false statements or entries or destroying, falsifying or mutilating reports. Any such action constitutes an offence, regardless of the intent of the individual.
  • There is now a defence for any person who establishes that he or she exercised due diligence to prevent the commission of an offence.
  • An auditing and evaluation committee is to be established for the C-NLOPB with the purpose of ensuring that the officers and employees of the board act in accordance with management systems and controls established by the board.

Employers involved in offshore petroleum activities are encouraged to review Part III.1 - Occupational Health and Safety to become familiar with the new occupational health and safety regime prior to its coming into effect at some point in the future, as yet unannounced.

Recent cases

In June 2012, a Newfoundland and Labrador paving company was fined $50,000 in a tragic workplace accident which occurred on a highway near St. John's in the summer of 2009. A paving company was charged under the Newfoundland and Labrador Occupational Health and Safety Act ("the NL OHS Act") after a flagperson was killed when he was run over by an excavator. The company was found guilty at trial.

Evidence at trial suggested that the flagperson had been previously warned to stay clear of heavy equipment while it was operating. The warnings were not communicated to management and no further action was taken to remedy the problem. The court noted that although the company had a safety program, workers - who often bear a significant risk of physical harm - did not know enough about the safety program and the precautions they should take to maintain their personal safety. This lack of education extended to both the excavator operator, who did not conduct an adequate check of his surroundings before moving, and the flagperson, who stood too close to the excavator.

The company was fined $25,000 for failing to conform with proper traffic control procedures, specifically failing to provide either a third flagperson or a two-way radio for proper communication; $10,000 for failure to properly educate workers in safe work practices; and ordered to pay an additional $15,000 to educate employers and workers in the safe conduct of flagpersons' activities.

In an unreported June 2012 decision, R. v. Country Ribbon Inc., an employer was fined $20,000 for failing to ensure that workers and supervisors were made familiar with health and safety hazards at the workplace and failing to ensure that each piece of equipment was used following safe work practices. In that case, the worker had suffered a partial amputation of a hand while cleaning a machine.

One of the highest penalties assessed against an employer for an occupational health and safety violation in Newfoundland and Labrador was in R. v. Wabush Mines, an unreported 2011 decision.

In that case, a worker suffered broken bones in his foot and ankle when an attachment tore away from a dryer resulting in equipment and a hoist falling on him. The employer, a multi-time offender under the NL OHS Act was charged for failing to ensure that the hoist was operated in accordance with appropriate standards and failing to provide the information, instruction, training and supervision necessary to ensure the health and safety of workers.

The employer pleaded guilty and was fined $60,000 plus a victim surcharge, ordered to make a $20,000 contribution to Threads of Life and to present to a health and safety conference.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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