Most Canadian companies are required to participate in a workers’ compensation program. The trade off for such participation: Companies can’t get sued by their workers for workplace injuries and illnesses. Workers’ comp is also a trade off for workers. Under the scheme, workers give up the right to sue their employers, but are guaranteed compensation in the form of workers’ comp benefi ts for any work-related injuries or illnesses they suffer. Because workers’ comp is so widespread, we tend to forget that there are some companies that are exempt from participation. Workers at such companies can sue their employers for work-related injuries and illnesses. How does the court decide if the company is liable for the worker’s injury in such cases? Answer: By determining if the company was “negligent”—that is, if it violated its duty to take reasonable care to keep the workplace safe.

Although such cases are relatively rare, one recently took place in Alberta. Here’s a look at the case and why it carries lessons for all companies, even companies that do participate in workers’ comp—both inside and outside Alberta.

THE CASE

What Happened: A cafeteria worker for the Alberta Teachers’ Association (ATA) was told to unload a delivery of boxes of canned and bottled soda and juice in the “pop room.” The room had four metal shelving units. The fourth shelving unit was braced to prevent it from falling forward. The worker moved the items on the higher shelves of the braced unit to the lower shelves to ensure that they’d be the first to be used. Once she was done rearranging the shelves, she started stacking new items on the upper shelves. As the worker was lifting a heavy box onto one of the upper shelves, she slipped and grabbed one of the unit’s braces. She fell backwards, tilting and twisting the shelving unit. Cans and bottles fell on the worker. She injured her head and right shoulder and cut her left arm. Because the ATA was exempt from workers’ comp, the worker sued it for her injuries under negligence law.

What the Court Decided: The Alberta Court of Queen’s Bench dismissed the lawsuit, ruling that the ATA wasn’t negligent.

How the Court Justified the Decision: The ATA owed the worker a duty to take “reasonable care to see that its workplace was safe,” explained the court, and to address foreseeable hazards. But the ATA wasn’t required to guarantee the worker’s safety. The ATA’s maintenance staff had recognized that the fourth shelving unit posed a tipping hazard. So they braced it. The bracing system, however, wasn’t designed to withstand the kind of strain exerted by someone violently pulling the brace to the side as she fell, which was what happened here. And the ATA couldn’t have foreseen that the shelving unit or braces would have to endure such strain. The court added there had been no prior complaints about the safety of the shelving units or prior incidents involving those units. So the court concluded that there was no evidence that the ATA was negligent or that the incident was reasonably foreseeable [Zubick v. Alberta Teachers’ Assn., [2008] A.J. No. 24, Jan. 11, 2008].

ANALYSIS

Although companies that do participate in workers’ comp can’t be sued by workers who get injured on the job, they can be charged with OHS violations based on those injuries. OHS prosecutions and negligence lawsuits involve similar principles. The OHS laws’ “general duty” clause is in many ways a legal embodiment of the common law negligence principles at work in the Zubick case. Both concepts require companies to take reasonable steps to ensure that their workplaces are safe. In addition, some regulations require companies to take “reasonable” safeguards or measures to deal with specific risks. For example, Sec. 189 of the Alberta OHS Code requires employers and workers to “take all reasonable steps” to ensure that material or equipment “is contained, restrained or protected to eliminate the potential danger” of injury to workers should the equipment or material become dislodged or moved.

Thus, a company can defend itself in both an OHS prosecution and a negligence lawsuit by showing that it took reasonable steps to address foreseeable hazards. So although the Zubick case may not seem relevant to companies that participate in workers’ comp, the analysis that the court used is similar to how a court would analyze a due diligence defence if the company had been charged with OHS violations.

The OHS laws of every province and territory require employers to assess the hazards in their workplace and take steps to address any identified or potential risks. But only Alberta requires the assessment to be done before workers actually start working at the site. Sec. 7(1) of the OHS Code says that “an employer must assess a work site and identify existing and potential hazards before work begins at the work site or prior to the construction of a new work site.” Section 7(1) became law on March 31, 2004, but until now it hasn’t been the subject of a court case. And the lack of an interpretation from a court has created some uncertainty about the precise meaning of the requirement. But for the first time, a court has made a ruling interpreting this requirement. Here’s a look at the case and the light it sheds on the practical meaning of the pre-work hazard assessment requirement.

The Dangers of Letting the Same Lawyer Defend the Company and a Worker in an OHS Prosecution

OHS charges can be laid against a company, individuals within the company, such as supervisors or workers, or both. In the latter situation, the same lawyer may represent both the company and an individual. Such joint representation arrangements make sense if the company and individual plan to use the same defence, e.g., that the precautions that were in place complied with OHS regulations. But sometimes the defences or the interests of the company and the individual conflict. For example, the company’s defence may be to blame the individual for not following proper safety procedures. In this situation, it would be a conflict of interest for the same lawyer to represent both parties. Such conflicts aren’t all that common, but they do arise occasionally. Here’s a look at what can happen to your company if a conflict of interest issue is raised. Although the case took place in Ontario, the same situation can arise in any part of Canada.

The Case

What Happened: A construction worker was killed when he was run over by a crane that his co-worker was backing up. The company and the crane operator were charged with OHS offences revolving around the failure to use a signaller. The same lawyer represented both the company and the crane operator. The trial was delayed and, as a result, the lawyer asked the court to dismiss the charges. The court did dismiss the charges against the crane operator but not the company. Because the crane operator was no longer a defendant, the prosecution said it planned to call him as a witness against the company. The prosecution asked the court to remove the lawyer from representing the company, arguing that this new situation created a potential conflict. The company didn’t want to replace the lawyer and his firm, especially at this point in the case. So the company opposed the motion.

Hazardous substances probably pose the greatest risk to health, safety and the environment when they’re being transported from one place to another by truck, rail, ship or air. A federal law called the Transportation of Dangerous Goods Act (TDGA) is the principal source of regulation to control the dangers posed by the shipping of hazardous materials within and to and from Canada. The Consolidated Transportation of Dangerous Goods Regulations (TDG Regulations) provide the crucial details about how the TDGA is implemented. Recently, a number of important changes to the TDG Regulations took effect. And even though the provinces and territories have their own laws on the transportation of dangerous goods, provincial and territorial requirements typically parallel the federal provisions. Consequently, the changes to the TDG Regulations will have an impact on companies all across Canada.

OVERVIEW OF THE CHANGES

When They Took Effect: The changes took effect on Feb. 20, 2008.

What They Cover: The changes affect 12 of the 16 parts of the TDG Regulations as well as three of its Schedules. Highlights:

Part 1 (General). This part was modified to include new interpretations, update the table of documents referring to safety standards and requirements and the list of definitions. It was also changed to clarify exemptions to certain parts of the TDG Regulations.

Part 2 (Classification). The key change in this part involves infectious substances, which are now classifi ed into two categories (instead of four). This change was made to harmonize the TDG classifi cations with recent changes made to the UN Recommendations.

Part 3 (Documentation). The principal changes to this part relate to the way subsidiary classes and packing groups must be shown on shipping documents.

Part 4 (Safety Marks). Fourteen sections in this part were changed, including those concerning the carrier’s responsibilities and requirements relating to the size and colour of the UN number. A new requirement was added for the display of subsidiary class placards in certain circumstances. Other changes clarify the requirements for Class 2, Gases.

Most Canadian companies are required to participate in a workers’ compensation program. The trade off for such participation: Companies can’t get sued by their workers for workplace injuries and illnesses. Workers’ comp is also a trade off for workers. Under the scheme, workers give up the right to sue their employers, but are guaranteed compensation in the form of workers’ comp benefi ts for any work-related injuries or illnesses they suffer. Because workers’ comp is so widespread, we tend to forget that there are some companies that are exempt from participation. Workers at such companies can sue their employers for work-related injuries and illnesses. How does the court decide if the company is liable for the worker’s injury in such cases? Answer: By determining if the company was “negligent”—that is, if it violated its duty to take reasonable care to keep the workplace safe.

Although such cases are relatively rare, one recently took place in Alberta. Here’s a look at the case and why it carries lessons for all companies, even companies that do participate in workers’ comp—both inside and outside Alberta.

THE CASE

What Happened: A cafeteria worker for the Alberta Teachers’ Association (ATA) was told to unload a delivery of boxes of canned and bottled soda and juice in the “pop room.” The room had four metal shelving units. The fourth shelving unit was braced to prevent it from falling forward. The worker moved the items on the higher shelves of the braced unit to the lower shelves to ensure that they’d be the first to be used. Once she was done rearranging the shelves, she started stacking new items on the upper shelves. As the worker was lifting a heavy box onto one of the upper shelves, she slipped and grabbed one of the unit’s braces. She fell backwards, tilting and twisting the shelving unit. Cans and bottles fell on the worker. She injured her head and right shoulder and cut her left arm. Because the ATA was exempt from workers’ comp, the worker sued it for her injuries under negligence law.

What the Court Decided: The Alberta Court of Queen’s Bench dismissed the lawsuit, ruling that the ATA wasn’t negligent.

How the Court Justified the Decision: The ATA owed the worker a duty to take “reasonable care to see that its workplace was safe,” explained the court, and to address foreseeable hazards. But the ATA wasn’t required to guarantee the worker’s safety. The ATA’s maintenance staff had recognized that the fourth shelving unit posed a tipping hazard. So they braced it. The bracing system, however, wasn’t designed to withstand the kind of strain exerted by someone violently pulling the brace to the side as she fell, which was what happened here. And the ATA couldn’t have foreseen that the shelving unit or braces would have to endure such strain. The court added there had been no prior complaints about the safety of the shelving units or prior incidents involving those units. So the court concluded that there was no evidence that the ATA was negligent or that the incident was reasonably foreseeable [Zubick v. Alberta Teachers’ Assn., [2008] A.J. No. 24, Jan. 11, 2008].

ANALYSIS

Although companies that do participate in workers’ comp can’t be sued by workers who get injured on the job, they can be charged with OHS violations based on those injuries. OHS prosecutions and negligence lawsuits involve similar principles. The OHS laws’ “general duty” clause is in many ways a legal embodiment of the common law negligence principles at work in the Zubick case. Both concepts require companies to take reasonable steps to ensure that their workplaces are safe. In addition, some regulations require companies to take “reasonable” safeguards or measures to deal with specific risks. For example, Sec. 189 of the Alberta OHS Code requires employers and workers to “take all reasonable steps” to ensure that material or equipment “is contained, restrained or protected to eliminate the potential danger” of injury to workers should the equipment or material become dislodged or moved.

Thus, a company can defend itself in both an OHS prosecution and a negligence lawsuit by showing that it took reasonable steps to address foreseeable hazards. So although the Zubick case may not seem relevant to companies that participate in workers’ comp, the analysis that the court used is similar to how a court would analyze a due diligence defence if the company had been charged with OHS violations.