Safety managers have been urged to revisit their roles and responsibilities within their company in light of what is seemingly an increasing trend among prosecutors to pursue personal charges against safety managers in workplace health and safety-related cases.
The caution came from Toronto lawyer Cheryl Edwards, partner with Heenan Blaikie and leader of the firm’s national occupational health and safety (OHS) and WSIB practice group. Edwards was among the speakers at the Canadian Society of Safety Engineering’s Education Day event held in Toronto this week.
Edwards cited a 2008 conviction of Richard Dearing by the Nova Scotia Provincial Court after pleading guilty to several charges that resulted from the death of a worker at Zoom Developers Private Ltd., the company that hired Dearing to be its safety manager in 2004. Details of the case indicate that Dearing was not on-site at the time of the accident and that the corporation, Zoom Developers, was not charged.
“The Nova Scotia Ministry of Labour was very creative in its charge. Who knows, maybe the Ontario Ministry of Labour will be creative as well,” said Edwards.
Over the last two years, the Ontario Ministry of Labour has been “increasingly less willing to withdraw personal charges against individuals” and has been seeking severe fines and/or jail terms against supervisors, managers, officers and directors of a corporation involved in a workplace accident, she said.
The Toronto lawyer also noted that in the past, while the ministry typically comes out with a long list of people or entities to charge as a result of a workplace accident investigation, personal charges against safety managers were usually withdrawn after reasonable resolutions have been met.
“For reasons unknown to us, this trend seems to have come to a halt,” Edwards said.
Edwards recommended that safety practitioners evaluate whether their role as safety manager in the company was merely an advisory capacity or if they actually exercise supervisory authority over workers. Either way, they should ensure that their specific roles are clearly stated on their job description, she added.
Safety managers should also seek indemnification policy with their employer, which would provide them reasonable support for OHS-related prosecution and other litigation, Edwards said.
“Indemnification policy can set out circumstances in which corporate support, representation, payment of penalties will be provided,” she said, adding that the Ontario Business Corporations Act sets out specific circumstances for corporate indemnification.
CSSE president Eldeen Pozniak said that while safety professionals have always been open to liability under the civil court system, seeing that move further into the occupational health and safety legislation is “a great concern.”
“I believe it’s a real issue that we have to acknowledge now and we definitely have to take further consideration in what we do as a safety profession and what we do as an individual within the profession, as well.” Pozniak said. “Gone are the days when we could give a little bit of advice here and there, throw a few things out and think that would be fine.”
As more safety professionals potentially become targets for regulatory enforcements, the CSSE will be stepping up efforts to provide its members with the right information and support, she said. “It’s a concern for CSSE in (terms of) what information and support we can provide our membership so that they can go out there well-informed, so they can go out there and be protected.”
Pozniak said the CSSE is currently undertaking competency studies for the health and safety profession, which includes informing members about their legal obligations and what can happen if they don’t fulfill those responsibilities.
Dylan Short, manager of advisory services, corporate underwriting and safety and training at Toronto-based Markel Insurance Company, said his firm has always been cognizant of the legal implications for him as a manager of people and his background as a safety practitioner.
“Where an individual, if they have been given the scope of responsibility to effect changes for safety in the workplace, then I can understand why and how they would be charged (in court),” Short said. “But if they don’t have that scope of responsibility and they stay in a position where they know there are problems and they are not addressing any of them, I can see them being charged inclusive of the corporation.”
However, Short does not believe that the legislation is “set up to penalize” a person or a safety manager who is actively working towards workplace safety but not getting corporate support or who is not authorized to implement those changes. “It’s a difficult thing to do because you have the individual who is responsible for it, but is not empowered.”
Should safety managers find themselves in such a situation, Short said they need to “make a personal decision whether or not they want to work for a company that doesn’t allow them to carry out what their professional mandate is.”
