Accident Prevention e-News
April 2008
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Volume 3/Issue 4/April 2008
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In this Issue:
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Canada’s first Bill C-45 conviction: the sentencing
 By Kevin D. MacNeill
In this issue, Kevin D. MacNeill, a partner in Heenan Blaikie’s OHS and WSIB Practice Group, reviews the sentencing of Transpavé Inc. in the first corporate Criminal Code conviction since the passage of Bill C-45 in 2003.
In a five-page decision delivered on March 17, 2008, Justice Paul Chevalier of the Court of Québec imposed a $100,000 fine on Transpavé Inc. following a joint submission on sentence made by Crown and defence lawyers. A $10,000 victim surcharge was also levied.
The fine was further to a guilty plea by Transpavé, in which it accepted responsibility for the death of one of its employees who worked at its concrete block and tile fabrication plant in Saint-Eustache, Quebec. The worker was crushed by the “grab” of a machine used to package cement blocks on palettes. The grab was activated by a control lever that became unstuck while the worker was in the danger zone of the machine, attempting to clear a pile-up of paving blocks. A light-sensitive motion detector in the machine, which acted as a safety mechanism, had been turned off.
Under section 219 of the Criminal Code, corporations and individuals may be found guilty of criminal negligence if they show “wanton or reckless disregard for the lives or safety of other persons” when carrying out, or failing to carry out, their legal duties, notably those imposed by OHS legislation.
Transpavé acknowledged that it had failed to fulfill a number of its duties under Quebec’s OHS legislation. It had not
- adequately trained employees on safe work methods
- ensured that those work methods were followed, or
- made sure that the safeguards built into the machine itself were properly functioning and not subject to being bypassed by workers.
Transpavé ought to have foreseen the dangerous situation at the root of the fatality and taken steps to correct it, but failed to do so. Starting from the principle that any sentence must be proportional to the seriousness of the crime and the level of responsibility for it, and must take into account any mitigating or aggravating circumstances, Justice Chevalier noted the following considerations in arriving at a sentence:
- The crime was serious because it resulted in an individual’s death.
- No one at Transpavé knew that the control lever could get stuck or unstuck. Also, neither Transpavé nor its officers knew of the deactivation of the light-sensitive motion detector.
- Transpavé is a family business employing 100 persons.
- Transpavé’s owners demonstrated sensitivity towards all staff members and the victim’s family by engaging the services of a psychologist to help employees cope with the death of their colleague. The owners personally called each employee and advised of the time and location of the deceased’s funeral, and offered condolences to the deceased’s family both at his funeral and in court through counsel.
- Transpavé realized no benefit as a result of the offence.
- No planning was involved in carrying out the offence. The crime was an unplanned act of negligence.
- Before the incident, Transpavé had in place a health and safety committee, a code of conduct, and safety standards that had to be respected by employees.
- Transpavé had not attempted to conceal or convert its assets to avoid paying a fine.
- Transpavé and its directors had no prior record of having committed a similar crime or regulatory offence.
- Following the incident, Transpavé complied with all of the recommendations of the CSST, the Quebec agency responsible for workplace health and safety and workers compensation.
- A key consideration, repeated three times in the sentencing decision, was that Transpavé spent more than $750,000 on health and workplace safety measures following the incident.
Justice Chevalier noted that Transpavé’s plants now meet safety standards that are higher than those generally applicable in North America.
Another consideration, twice noted by Justice Chevalier, was that the imposed sentence should not endanger the economic viability of the company or put at risk the jobs of the hundred individuals it employs.
Taking into account these considerations, Justice Chevalier found the proposed fine was reasonable and underlined the importance of Transpavé having recognized its fault and demonstrated its sense of responsibility by the post-incident measures taken.
The Transpavé sentencing reinforces the ongoing trends of ever increasing enforcement by occupational health and safety agencies, and increasingly significant fines for corporations who are not duly diligent in ensuring the health and safety of their workers.
Learning from the incident
Corporate senior officers are well advised to redouble their efforts, both personally and at the corporate level, to ensure strict compliance with occupational health and safety legislation. A proper Accident Response Plan should be developed and put in place. Moreover, the importance of ongoing assessment and tightening of due diligence in matters of health and safety cannot be overemphasized.
Corporations are well advised to ensure that policies, procedures and training are in place to address all workplace hazards, which must be consistently applied and followed. Careful regard to all applicable industry standards, notably CSA standards, is also advisable. To ensure compliance, a safety audit of the workplace, along with a review of existing policies and procedures, is advisable. Such an audit can even potentially be conducted using the protection of solicitor-client privilege, if it is carefully established from the outset that it is being conducted for the purpose of obtaining legal advice on compliance matters and going forward.
For any further information, contact any of the following members of the Heenan Blaikie OHS and WSIB Practice Group: Kevin D. MacNeill, Tel: 416.360.2602, kmacneil@heenan.ca, Cheryl A. Edwards Tel: 416.360.2897, cedwards@heenan.ca, or Julie Thibault, Tel: 613.236.2161, jthibault@heenan.ca.
How IAPA can help
Recognizing the effect of driver fatigue
 Driver fatigue is a significantly underestimated contributor to vehicle crashes, says an Ontario Ministry of Transportation spokesperson.
Dr. Leo Taska, team leader for special projects with the ministry’s Road Safety Program Office, made this remark at a national symposium, “Working Together to Understand Driver Fatigue.” Symposium proceedings were released in February.
In his presentation, an overview of fatigue impairment in road safety research literature, Taska cited a US study that calculated fatigue-related odds of having a crash:
- awake more than 20 hours 56.6
- slept less than 4 hours the night before 19.2
- night-shift worker 13.6
- poor sleeper 12.1
- awake 15 to 20 hours 10.4
- sleeps less than 5 hours 7.0
- drives late at night 6.5
- sleeps 5 to 6 hours 3.8
The study was based on interviews with 1,403 drivers involved in crashes where police had coded the driver’s condition as fatigued or asleep.
Are fatigue-related collisions under reported?
Yoassry Elzohairy, senior safety research advisor at the Ministry of Transportation, noted that police reports identify less than 2% of all collisions as fatigue related. Elzohairy attributed the low figure to the lack of a straightforward, roadside fatigue-measuring device.
After conducting a 5-year review of fatal and injury fatigue-related crashes in Ontario, Elzohairy said a more likely figure is 17.8% of all fatal crashes and 25.5% of crashes causing injury.
Elzohairy considers a collision to be fatigue-related if it adheres to one or more of the following criteria:
- vehicle had no apparent defect
- driver did not exceed the speed limit or drive too fast for conditions
- driver was not impaired by alcohol or drugs
- driver had no medical or physical disability
- crash occurred on dry pavement
- driver initiated the crash
- initial impact—head-on collisions where neither driver was passing, rear-end collisions, or single-vehicle crashes
Using this model in his analysis, Elzohairy concluded that
- most fatigue-related crashes occur between 3:00 p.m. and 6:00 p.m., and on Fridays
- men were involved in 65% of fatigue-related crashes
- twice as many drivers aged 17 to 20 were involved in fatigue-related crashes than drivers aged 35 to 44
- 40% of all fatigue-related crashes occurred on roads where the speed limit was 50 km/h.
The most common errors committed by fatigued drivers included
- following too closely 59%
- losing control 28%
- failing to yield 4%
- improper lane changing 4%
- improper turning 2%
- disobeying traffic controls 2%
- improper passing 1%
The truth about caffeine, rest and napping
Dr. Alison Smiley, president of Human Factors North Inc., discussed the effectiveness of common fatigue counter measures.
Caffeine, said Smiley, can improve driver performance for 1 to 1.5 hours after consumption, but has limited effectiveness after that.
Rest breaks are only initially effective. A study of commercial drivers who took rest breaks every three hours showed no performance improvement by the third break.
A nap may help when a rest break is not enough. Smiley cited an analysis of 12 studies, which showed that a 15-minute nap can improve performance for up to 6.75 hours, and a 2-hour nap can improve performance for up to 9.5 hours.
However, said Smiley, under certain circumstances naps are not enough. After a night of no sleep, a 30-minute nap has no impact on driver performance. Furthermore, studies of shift workers reveal that naps are effective on the first night of a sequence of shifts, but their effectiveness declines on subsequent nights.
It is more effective for a driver to plan ahead and take countermeasures against fatigue before driving, said Smiley, than to try to compensate for drowsiness while driving.
How IAPA can help
Health & Safety Canada, taking place in Toronto April 21-23, offers a number of driving safety exhibits and sessions. Among the sessions:
- The Anatomy of a Collision
- The Psychology of Speed and Driving
- Is Your Vehicle Your Workplace
- Preventing Work Related Roadway Collisions.
IAPA/QMI’s first webinar earns top scores
 According to results of participants in a recent web seminar conducted by IAPA and the Quality Management Institute (QMI), almost all participants (93%) indicated they would like to participate “in further training sessions like this one.”
During the 60-minute, interactive, web-based seminar, session leaders
- described new measures and metrics that make OHS a business imperative
- showcased firms whose OHS programming has helped them notably improve organizational performance, and
- identified success factors that could help participants to move forward.
The web seminar was aimed at people “who are interested in more than compliance, and are looking toward performance excellence,” says Pj Murray, IAPA’s manager, research and development. “These are people who understand the value of these systems and are looking for ways to assist or influence their senior managers to galvanize support across their organization.”
For slightly less than half of respondents (45%), this was their first experience with a web seminar. Almost all (95%) rated it a minimum 4 out of 5 for ease of use. “In my opinion, says Murray, “this stat means something. For those afraid, it says it’s not that hard.”
In the survey, respondents were also asked to choose from among four learning objectives the one that most closely aligns with their needs. The most chosen was “Outline benefits of implementing an OHS management system” (34%). Results for the other three objectives were relatively consistent:
- how OHS management systems can affect business performance: 25%
- recognize critical business performance metrics: 23%
- use the examples and case studies of OHS successes: 19%
The web seminar drew participants from across the health and safety performance continuum. The majority of participants (78%) were focused on how to move beyond activities and programs adopted to only meet compliance standards, toward enhancing the overall performance of their organizations.
“We are encouraged to hear that participants found the web seminar easy to access and use,” says Murray. “Early feedback suggests that they found it a valuable vehicle to maintain dialogue about workplace issues. As a result, we are looking to develop future web seminars on other topics. To plan meaningful learning events, we encourage our readers to forward ideas to
infocentre@iapa.ca.”
How IAPA can help
15 warehouse delivery safety tips
 Pick-ups and deliveries are among the most hazardous activities in the materials handling cycle. The following tips can help your workplace reduce the risk of injury and damage even before the first delivery arrives or departs.
Preparing the site
- Where possible, design the site so that reversing is unnecessary.
- Set up simple systems for reporting any vehicle incidents, near misses and other safety concerns during delivery and collection. Exchange the information with all the other parties involved, and take action on the reports.
Preparing your delivery drivers and other employees
- Train your drivers in general safety precautions so that they can deal with unexpected situations and know what to do if unsatisfied with safety arrangements when visiting sites. Give them simple safety checklists to help evaluate site safety.
- Assign your drivers authority to refuse or stop unloading or loading on safety grounds, and advise customers that your drivers have this authority.
- Assign people who oversee incoming deliveries authority to refuse or stop unloading if safety problems arise
Preparing other firms’ delivery drivers
- Make sure drivers bringing goods to your site receive adequate safety information for each delivery or collection beforehand, such as restrictions on the type of vehicle the site can handle, and special features of the site. If possible, provide a site plan that includes parking, location of reception, route through the site, location of unloading areas, driver waiting areas, and written information on procedures for visiting drivers (e.g., wearing high-visibility vests, limits on cellphone use, prohibitions or special conditions for reversing).
- If drivers must use lift trucks, make sure they have the required operators training.
On arrival
- When vehicles are manoeuvring into the site, remember that public traffic and pedestrians have priority and that signallers have no legal authority to stop traffic; don’t direct pedestrians onto the road.
- If reversing is unavoidable, make it as safe as possible; consider using a competent and authorized signaller with appropriate high-visibility personal protective equipment.
- If articulated vehicles are being coupled or uncoupled, check that drivers know how to park them; make sure drivers understand the correct use of parking and hand brakes, and that they use them.
While loading or unloading
- Make sure drivers and site staff know what to do if a load appears to have shifted in transit.
- Make sure that lifting equipment is suitable for the use it is being put to, marked with its safe working load, properly maintained and inspected, and receives periodic, thorough examinations.
Improving existing procedures
- If your site receives repeat deliveries from the same suppliers or carriers, consider inviting them to participate in continuous improvement activities, such as reviewing the site, delivery procedures, and written instructions for drivers and site staff.
- Invite suggestions and comments from your employees, as well as supplier or carrier employees.
- Prepare reports on all incidents, with a view to controlling or eliminating contributing factors.
Adapted from material produced by the Health & Safety Executive.
How IAPA can help
- Attend IAPA and CSA’s First Annual Warehousing Safety Conference, June 2-3, Toronto, ON.
- Attend Inspecting & Maintaining Steel Storage Racks, a one-day professional development course at Health & Safety Canada 2008.
- Attend H&S Canada 2008 conference sessions (April 21-23, Toronto) on lift truck operations, a safety assessment tool for loading docks, and others.
- Learn about SAFE-Lift on DVD
- Sign up for IAPA’s materials handling training courses, including Lift Truck Operators’ Safety Training, Inspecting and Maintaining Steel Storage Racks, and others.
- Order a copy of Safety of Pallet Racks, which provides a detailed overview of the design, installation, use, maintenance and repairs of steel storage racks.
In
the News
An April 28 message from Maureen
There are two ways of spreading light – to be the candle or the mirror that reflects it.
— Wharton, Vesalius in Zante
 On April 28, Canada’s National Day of Mourning and the World Day for Safety and Health at Work, the Workplace Safety and Insurance Board (WSIB) will unveil a public memorial to Ontarians whose lives have been affected by a workplace fatality, injury or illness.
Do we need a memorial?
I think so. In the time that it takes you to read this sentence, someone somewhere in the world will have been injured or killed at work. It happens on average every eight seconds. If a memorial helps us to bear this in mind, then yes we need one.
Especially this one. The WSIB describes it as a living memorial. It will allow anyone—you, me, the person next to us in the grocery store check-out—to figuratively light a candle in memory of a fallen worker.
I see this gesture as a starting point, not an end point. First we acknowledge, then we take action, preferably in a way that has personal meaning for us.
This is key to the International Labour Organization’s theme for this year’s World Day for Safety and Health at Work: “My life, my work, my safe work—Managing risk in the work environment.”
Preventing injuries and illness is a collaborative effort, and we each have a role to play. On April 28, I will light a candle, figurative or otherwise. I will think about someone from my own my family, as well as other people I know, who have suffered because of unsafe working conditions. And then I will draw on the moment for that extra motivation we need to accomplish something greater than our day-to-day goals.
It’s an issue of applying our hearts, our heads and our hands. We need all three, working together.
On April 28, wherever I am, I will keep my eye out for you. We can stand together, in our memories and in our plans for a brighter, safer and healthier future.
Maureen Shaw
President and CEO, IAPA
Firing of casual drug user goes to Supreme Court
Alberta’s Human Rights Commission has appealed to the Supreme Court of Canada to settle what has been described as a battle between safety and human rights.
The March issue of Accident Prevention e-News reported that the Alberta Court of Appeal had overturned a lower court decision concluding a worker fired for marijuana use was a victim of discrimination on the basis of disability.
In 2002, John Chiasson was hired by construction firm Kellogg Brown & Root (Canada) as a receiving inspector of the site of a Syncrude plant expansion near Fort McMurray. The job was considered “safety sensitive.”
The construction firm’s hiring policy required non-unionized job candidates of safety sensitive positions to pass a “post-offer/pre-employment” drug test. Nine days after starting work, the firm told Chiasson that he had failed his test and let him go.
Chiasson filed a human rights complaint alleging discrimination on the grounds of physical and mental disability. The human rights panel concluded that, because Chiasson was a casual drug user, as he had testified, he was not protected by human rights legislation. No addiction, no disability.
A lower court judge reviewed the panel’s findings and overturned its decision. The judge concluded that the firm’s policy treated recreational cannabis users as if they were addicted to cannabis. She therefore held that the firm must have perceived Chiasson to be a cannabis addict and thus disabled. From this the chambers judge concluded that the firm's policy imposed “a pre-employment barrier, with zero tolerance, automatic termination and no accommodation."
The firm subsequently filed an appeal with the Alberta Court of Appeal, which overturned the lower court decision. Since cannabis use can have lingering effects on both casual users and addicts, ruled the appeal court, the firm’s policy is no different “than that of a trucking or taxi company which has a policy requiring its employees to refrain from the use of alcohol for some time before the employee drives one of the employer's vehicles. Such a policy does not mean that the company perceives all its drivers to be alcoholics. Rather, assuming it is aimed at safety, the policy perceives that any level of alcohol in a driver's blood reduces his or her ability to operate the employer's vehicles safely. This is a legitimate presumption.”
Having come to this conclusion, continued the appeal court ruling, “it is not necessary to consider the question of accommodation. Since there was no breach, there is nothing to accommodate.”
Seeking clarity
Alberta Human Rights Commission director Marie Riddle explained in a media interview that going to the Supreme Court of Canada was intended "to seek clarity."
"It makes a lot of sense to clarify how employers should behave. This is the kind of situation where the Supreme Court can provide guidance. I suspect all parties want to have this clarified."
Because of a perceived high level of risk, oil companies routinely require that their own staff or contracted employees undergo substance abuse testing before they’re allowed onto exploration and production sites.
Many of these workplaces and contractors rely on Canadian Model for Providing a Safe Workplace: Standardized Alcohol and Drug Guidelines, an 84-page code produced by the Construction Owners Association of Alberta, which includes virtually all sponsors of large projects.
WSIB to review Experience Rating
Ontario’s Workplace Safety and Insurance Board has announced a review of its Experience Rating program. The cost-based incentive program promotes good health and safety practices, early and safe return to work, and effective disability management practices by issuing employer rebates or surcharges based on claims costs.
The board has also eliminated, effective immediately, loopholes in which a company may experience a traumatic workplace fatality and still receive a rebate. “It is unacceptable to me,” says board chair Steve Mahoney, “that a company responsible for a fatality would still get a rebate cheque from the WSIB.” Some fatalities, explains the WSIB, do not result in high costs; for instance, if the workers didn’t have dependants.
The review will make recommendations to modernize and strengthen the program, in areas such as:
- accounting for legislative non-compliance
- creating a process to validate workplace health and safety performance, and
- a long-term plan to directly tie all incentive programs to proactive health and safety initiatives.
“The program has been effective in getting the results we need,” says Mahoney, “but I know more can be done with Experience Rating to improve health and safety for the workers and employers of Ontario. We are strengthening this program so that it is fairer, better leverages our partners in prevention, provides direct incentives to improve health and safety, and gets us to our goal of zero injuries, illnesses and fatalities.”
IAPA partners with HR association
The Human Resource Professionals Association of Ontario (HRPAO) has awarded IAPA, as a program charter member, pre-approved partner status for the HRPAO’s recertification program. HRPAO members who participate in select IAPA training and events will now be able to obtain qualifying credits toward recertification.
“Today’s HR professionals wear many hats, one of them being health and safety,” says Ron Blondeau, an alliance manager in IAPA’s Strategic Alliances Department. “IAPA can provide HRPAO members with some of the best training opportunities to achieve and maintain their Certified Human Resources Professional (CHRP) designation.”
Blondeau believes that working together offers solid benefits for both organizations. “One of IAPA’s priorities is to establish collaborative relationships with partners having complementary assets and capabilities. Given IAPA’s commitment to promoting workplace health and safety excellence, offering education directly to HR professionals—many of whom work in IAPA member firms—is a natural opportunity.”
Many details and opportunities remain to be explored. “We have identified a number of initiatives for investigation, such as collaborating on national and regional conferences, continuing education course delivery, and possible development and cross promotion of information, products and services.”
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