'It's not really about who's liable, it's wanting to prevent this kind of loss in the workplace'
“Safety is everyone's responsibility,” says Andrea MacNevin, a lawyer with Barteaux Labour and Employment Lawyers in Halifax. “[Occupational health and safety] is drummed into people's heads a lot, maybe to the point of losing sight of the message sometimes.”
MacNevin’s comments come following the Nova Scotia Provincial Court’s conviction of the Halifax Port Authority (HPA) for health and safety violations that contributed to the death of a worker. The HPA unsuccessfully argued that, because the worker wasn’t one of its employees and none of its employees worked at the site of the accident, the site wasn’t a workplace under its responsibility.
MacNevin says the dispute over who was liable for putting in safety measures that might have saved the worker’s life shouldn’t overshadow the role everyone should play in workplace safety.
“It's not really about who's liable, it's wanting to prevent this kind of loss in the workplace,” she says. “And that, I think, is really the purpose of occupational health and safety legislation – to have everybody always looking to make sure that steps are taken to prevent death and injury in the workplace.”
The Fairview Cove Sequestration Facility (FCSF) was the site of a marine infill project designed to extend usable land for a potential container terminal sequence on the Halifax shoreline. Part of the site was used for the disposal of pyritic slate, which could be hazardous unless sequestered underwater. The HPA administered the site and paid a private company called SiteLogic to oversee the facility. SiteLogic’s president and sole employee worked as the site manager in charge of day-to-day operations.
There were no HPA employees working at the site, but the HPA’s environmental manager was responsible for management of the facility. He usually visited the FCSF multiple times per week and communicated with the site manager daily.
Various companies paid the HPA to dispose of slate at the FCSF. Dump trucks delivered and discharged loads of slate at the site, driven by employees of these companies. The site manager designated the specific area each day where the slate was to be dumped to create infill at the water’s edge.
The dumping area, or “active working face,” was not fenced off or otherwise physically separated from the rest of the FCSF. At one point, there was a signaller working with the dump trucks, but the site manager terminated him. HPA’s environmental manager disapproved, but he didn’t follow up.
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On July 9, 2018, there a sudden drop in grade level from the active working face to the water level developed. There was normally a safe dump ramp sloping to the water’s edge, but this wasn’t inspected or recreated after every dump. A dump truck that was discharging material at the active working face tipped and went into the water and the driver – who was an employee of one of the various companies delivering slate – drowned.
The HPA was charged under the Canada Occupational Health and Safety Regulations of the Canada Labour Code with failing to install prescribed barriers to prevent rear-dumping vehicles from tipping at the edge of a sudden drop in grade level, in respect of a workplace controlled by them.
The site manager and his company, SiteLogic, were also charged and pled guilty under the Nova Scotia Occupational Health and Safety Act to failing to take every precaution reasonable in the circumstances to ensure the health and safety of persons at or near the workplace, when it failed to ensure there was a spotter for dump trucks at the active working face.
Dispute over workplace definition
The HPA argued that the FCSF was not its workplace. It agreed that it was an employer and it could exercise control over the location, but the employee who was killed wasn’t an HPA employee and no HPA employee ever performed the work that the dump truck driver was performing at the time of the incident.
The court noted that the code stated that the general duty on every federal employer was to “ensure the health and safety at work of every person employed by the employer is protected.” This was broad language not limited to keeping just employees safe, said the court.
In addition, if an employer controlled a place containing a physical hazard, it would have the duty to make that place safe for all users, regardless of whether or not they were employees – particularly for people performing “the very work for which the place exists,” the court said.
“Because of the nature of the way the workplace was laid out – there was no separation between where the risk existed and the rest of the activities at the port,” says MacNevin. “[The judge] compared that to an airport, where the tarmac and a lot of the safety risks would exist are separated with fences and clear security gates so the general public or workers that aren't supposed to be in that area wouldn't be there.”
Although the HPA didn’t have employees working there, it was a key fact that one of its employees – the environmental manager – regularly monitored and visited the site and HPA had ultimate control of the site, says MacNevin.
“[The environmental manager] was employed by the Port Authority and he was, in [the judge’s] words, meaningfully engaged in the work being done at the FCSF worksite,” she says. “He communicated daily with [the site manager], he attended at the facility on a regular basis, and that was all in relation to his work for the Port Authority.”
“[The judge] was making that connection between what his role was, who he was employed by, and he had knowledge that SiteLogic had terminated a signaler – he didn't like that, but didn't take any steps to remedy it either.”
The court also noted that the statutory definition of “workplace” didn’t refer to risk, so it was limited to a geographic boundary of a place where an employee is engaged in any work for their employer.
The court found that the FCSF was “an integrated whole” and it wouldn’t be logical to treat the active work face as a separate workplace, particularly since there was no fencing or other separation. The HPA created the FCSF to accept and sequester slate for their infill project and the active working face was the “heart of the operation,” making the facility a workplace under the control of the HPA, said the court.
“Although the HPA technically didn’t have their employees working in that area, it had created that area, was aware of what contractors were using that area, and had control over certain types of risk,” says MacNevin. “They could have installed a bumping block or provided a signaller, but they didn't do anything to improve the safety of the situation, and so they were ultimately held responsible for that.”
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The court determined that the HPA was responsible for placing barriers or providing a signaler at the active work face as required by the code. Because it didn’t do so, the HPA was guilty of the health and safety offences.
The decision carefully considers the specific factors to what made the FCSF a workplace of the HPA, but the court was cautious not to open the floodgates to potentially absurd findings of liability in the future, says MacNevin.
“The FCSF area, where the dumping was occurring, was part of HPA’s workplace, and in another situation – this was an example that the defense brought up in trying to argue that they shouldn't be held accountable – if there was a building where, in the basement, there was a sewage facility, you wouldn't expect what’s happening on the 15th floor to require [personal flotation devices],” she says. “The judge distinguishes some of these situations and allows the door to be left open for that type of analysis in the future, because one of the top interpretation principles for legislation is that you don't want to have resulting absurdities.
“In this case, she's finding that it is not an absurdity but in future cases, you would need to do that contextual analysis to determine whether it is or isn't.”
See R. v. Halifax Port Authority, 2022 NSPC 13.
