Canadian Safety Reporter

December 2013 Wait for orders from safety regulator: Lawyer Continued from page 1 reasonable in all of the circumstances," Justice Peter Bourque wrote in his judgment. "What I cannot do is treat them as an admission of liability." order to be lifted." Safety comes first kie's labour and employment practice Besides waiting for directions from the group in Calgary. regulators, Harris says she would advise "The courts won't hold a post-acciThink changes through clients to do whatever necessary to endent or incident-fix against an employer Bouwmeester recommends employers sure the safety of workers. as an admission of guilt, but what they take some time to think over any chang"I think generally speaking, our adwill do is look at it and say, 'Does this es before making a move. vice would be, yes, go ahead and do show that they may not have taken all "You want to make sure that when whatever it is you need to make your the reasonable steps before the incident you implement a change, you don't creworkplace safer because you are now to prevent it,'" she says. ate a secondary hazard or a new hazaware that there are these additional The courts will look to make sure an ard," she says. risks," she says. employer did its due diligence to protect One of Heenan Blaikie's clients made "But, the only caveat to that would the safety of its workers ahead of the ina safety improvement within its operaprobably be that they make sure that cident, says Adrian Miedema, a partner tions that ended up killing a worker. they understand that it in theory could with Dentons Canada in Toronto. "A court found our client not guilty, be open to the Crown if something were "For example, the installation of a to proceed to trial guard after an acto argue that this is cident will likely evidence you didn't not be an admis"I believe that I can look at post accident conduct in assessing have something sion that a guard what was reasonable in all of the circumstances... what I cannot in place that you should have been do is treat them as an admission of liability." should have." in place, but it Miedema agrees. will be relevant to "The question is whether the embut ultimately the piece of equipment usually not whether to implement the ployer — before the accident — took had been introduced to make the workfix, but how to do it in a way that maxiall reasonable steps to ensure that the place safer," she says. mizes safety while minimizing legal machine was properly guarded," MiAfter a workplace accident occurs, risk," he says. edema says. employers would be best to hear what As long as an employer is adhering Bouwmeester tells her clients that safety regulators recommend, Bouwto the occupational health and safety just because an accident has happened, meester says. regulations for the jurisdiction it is loit doesn't necessarily mean something "Whatever jurisdiction you're in — cated in, then the employer doesn't have was wrong with what was in place whether it's the Department of Labour much to be concerned about. ahead of the incident. in Ontario or Occupational Health and Employers can start by referencing "The way we say it is just because Safety in Alberta or WorkSafeBC in Britthe regulator's websites to make sure you enhance your safety system with ish Columbia — you'll get orders after they have all the proper procedures in more or new information, doesn't mean an incident where there's been a seriplace, says Harris. that it was deficient before," she says. ous accident or fatality and they'll often "It specifically speaks to policies that In the courts make an obligation to make some fixes," they need to have in place and that will In July 2009, Glen Gallinger was killed she says. probably trigger their mind (about what when wood shavings from the silo he they're missing)," she says. "Once they Proper policies was emptying piled on top of his truck, do that, they're in a far better position Bailey Harris, a labour and employburying him inside. Gallinger would in the event if something bad were to ment lawyer with TDS law in Winnipeg, later die in the hospital. happen." echoes Bouwmeester's suggestion. SafeGallinger's employer, Bradford, Ont.Accidents inevitably happen, Harris ty regulators may require improvements based Reliable Wood Shavings, made says. be made to safety policies ahead of anyprocedural changes after Gallinger's "Some thing are completely unforething else. death to prevent similar accidents from seeable and you can't do anything dif"I think the biggest thing that emhappening in the future. When the Onferent to prevent them and that's differployers need to do better is ensure that tario Court of Justice delivered its decient," she says. they have procedures in place," Harris sion on the case in September 2013, the "But having the appropriate policies says. judge said he could not consider those in place is a critical starting point and "If you don't have the right policies, changes when determining to what dethat's something that a lawyer can prothey're going to ask that you do that and gree Reliable Wood should be liable. vide assistance with or — on a broad you might need to do that before you "I believe that I can look at post acbrush approach — workplace safety and even get a green light for the stop work cident conduct in assessing what was health (regulators) can help with. 2 Canadian HR Reporter, a Thomson Reuters business 2013

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