• Nova Scotia
  • August 9, 2013 | Author: Mark D. Tector
  • Law Firm: Stewart McKelvey - Halifax Office
  • Legislative changes

    Amendments to the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation (Nova Scotia) Act received proclamation and will come into force on a future date.

    These amendments mirror recent changes discussed in the Newfoundland and Labrador section of this newsletter and will apply to offshore workplaces as well as employees in transit to or from offshore workplaces. The changes provide provincial occupational health and safety officers with increased enforcement powers, including the power to inspect and investigate, warrant provisions and order measures in case of dangerous situations and generally provide provincial occupational health and safety regulatory authority.

    Changes include:

    • 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.
    • Establishes corporate liability for offences under the legislation.
    • Requires development of written occupational health and safety policies and review procedures.
    • Allocates responsibility and duties of all workplace parties including the duties of owners, interest holders and corporate officials.
    • Directs that occupational health and safety committees be established and provides those committees with specific duties and obligations.
    • Provides employees with the right to refuse work where there is reasonable cause to believe the work activity constitutes a danger to the employee or another individual.
    • Provides rights to pregnant or nursing employees.
    • Allocates responsibility to workplace parties to facilitate inspectors' visits to and from the facility, including suitable transportation, accommodations and meals.
    • Prohibits disturbance of the scene of a workplace incident that results in serious injury or death to an individual except for the purpose of providing medical attention (or assistance) to prevent further injuries or damage or loss.
    • Sets forth a review and appeal process.
    • Sets forth a due diligence defence.

    Employers involved in offshore petroleum activities should review the amendments and become familiar with the new occupational health and safety regime prior to its coming into effect at some point in the future.

    New Nova Scotia Occupational Health and Safety Act (the "NS OHS Act") regulations came into effect on June 12, 2013. The new Workplace Health and Safety Regulations combine previous regulations and provide new definitions and standards, including adopting visibility standards for clothing. A more comprehensive review of these changes can be found at our recent employer update. The new regulations are the first step in a move toward consolidation of all occupational health and safety regulations under one regulation.

    Nova Scotia introduced administrative penalties regulations in January 2009. Government sources say that there are approximately 4,000-6,000 administrative orders issued per year and that about 24 per cent of those orders lead to an administrative penalty. Most recently, 95 per cent were issued to employers. In 2011 - 2012 total fines amounted to $683,133 for a total of 996 penalties.

    The government is currently reviewing its administrative penalty process and we anticipate there will be changes to the existing process in the near future.

    Recent cases

    The most recent case law out of Nova Scotia is in relation to administrative penalties. Prior to the 2012 Nova Scotia Court of Appeal decision in Guild Contracting Specialties (2005) Inc. v. Nova Scotia (Occupational Health and Safety Appeal Panel), 2012 NSCA 94, the Labour Board ("the Board") reviewing appeals took the position that the right to appeal was limited to the amount of the fine and it had no authority to consider the underlying reasons that the fine was issued, unless the employer first appealed the compliance order itself.

    The Nova Scotia Court of Appeal found this to be an unreasonable approach that essentially changed what are strict liability offences under the legislation into absolute liability offences by eliminating the possibility for employers to raise a due diligence defence. More on the Guild Contracting decision can be found in our blog Nova Scotia OHSA Administrative Penalty Appeals - Due Diligence is back!

    On May 15, 2013 the Board released its decision in Lafarge Canada Inc. v. Director of Occupational Health and Safety, a situation where there was an inconsistent date in the Notice of Administrative Penalty. In an earlier decision, Kelly Rock Ltd.(Re), the Labour Board revoked a Notice of Administrative Penalty where there was a discrepancy of one month, plus inconsistencies in the file numbers cited on both documents. In Kelly Rock, the Board reasoned that these discrepancies were more than mere technicalities. The date was required by regulation to be included in the Notice of Administrative Penalty. Where the date was uncertain, no contravention could be proven. Further, where such inconsistencies exist, the fundamental accuracy of these documents is called into question and the public could lose confidence in the system. In the Lafarge Canada case, the issue was whether a one day discrepancy in date should also result in the revocation of the Notice. The Board followed Kelly Rock.

    An appeal to the Nova Scotia Court of Appeal has been filed by the Crown in the Lafarge Canada matter. Read more about the Lafarge Canada decision at our blog Appeal Notice: When is a "date" not a mere technicality? When it's "particular"!

    There have been several recent sentencing decisions readers should be aware of. Like other jurisdictions, Nova Scotia courts are approaching sentencing by considering remedial efforts made subsequent to a workplace incident and creative alternative sentencing.

    For example, in a 2010 decision, the provincial court noted that the company had immediately made remedial efforts in the days and months following the tragic workplace death of a worker and awarded a global penalty of $38,750. The court noted that this amount took into consideration the fact that the company had expended extensive time, money and resources used to attend to necessary human resources issues and to perform remedial improvements.

    In a 2012 decision, the provincial court recognized that the defendant's personal financial circumstances were not good and ordered a global penalty of $25,000, but further ordered 200 hours of volunteer services to Habitat for Humanity.

    Two recent Nova Scotia cases illustrate that it is not only employers who face charges under provincial occupational health and safety legislation, but that safety coordinators and supervisors can also fall under scrutiny.

    In R. v. Della Valle, the defendant, an occupational health and safety coordinator with the Cape Breton Island Housing Authority (the "CBIHA"), was charged and convicted under the NS OHS Act. After a report was issued confirming the presence of asbestos, the safety coordinator conveyed the results to colleagues but failed to alert the CBIHA's director or do any follow up. At trial, the court concluded that the safety coordinator had failed to take every reasonable precaution in the circumstances to protect the employee's health and that of other persons at or near the workplace.

    In R. v. Eagles, a foreman and site supervisor (Mr. Eagles) was charged with three counts under the NS Act after a worker fell from a scaffolding system and died. The evidence revealed that some of the safety measures in place did not meet the regulatory requirements and Mr. Eagles was convicted on two counts of breach of the NS OHS Act and regulations.