Due Diligence Clarified for Occupational Health and Safety Professionals in Nova Scotia Decision?

March 15, 2012 | Aniroodh Devalia

In a judgment that reflects a growing trend of holding safety professionals in an organization increasingly more accountable, the Nova Scotia Provincial Court has fined an occupational health and safety (“OHS”) professional $1,000 for failing to take adequate steps to deal with an asbestos hazard in a workplace. In doing so, it has clarified what is expected of a safety professional if they are going to be able make out a due diligence defense.

James Della Valle, the OHS Coordinator for the Cape Breton Island Housing Authority (“CBIHA”), was found guilty pursuant to s. 17 of the Occupational Health and Safety Act (“OHSA”) for failing to take every reasonable precaution in the circumstances to protect worker safety and the safety of other persons near the workplace. He was one of three people charged with respect to the handling of a hazard related to asbestos-laden vermiculite insulation in a number of units.

In September 2005, workers for CBIHA discovered what they believed to be insulation containing asbestos while working in a CBIHA unit. They brought this to their supervisor’s attention, Daryl McNeil. Mr. Della Valle saw the sample in Mr. McNeil’s office and agreed to send it for testing. When the sample came back positive, he told Mr. McNeil this and gave him a copy of the report that contained the results. He also told Mr. McNeil to notify workers of the potential hazards associated with disturbing the insulation. Mr. Della Valle then wrongfully assumed that other appropriate action would be taken in a timely manner. Mr. Della Valle did not notify his own supervisor, a CBIHA Director, or the Joint Occupational Health and Safety Committee (“JOHSC”) of the finding or provide them with a copy of the report.

The CBIHA took no substantive action until April 2006, when hundreds of orders for remediation work were issued by the Nova Scotia Department of Labour. At trial, Mr. McNeil stated that he considered Mr. Della Valle to be an information source and that the “the buck stops with me”. The Court disagreed. The Court found both Mr. McNeil and Mr. Della Valle guilty of failing to take reasonable steps to ensure the safety of persons at or near a worksite, in breach of s. 17 of the OHSA.

In finding Mr. Della Valle guilty, the Court explained that he had a duty not only to workers (contractors and employees), but also to the tenants in the buildings maintained by the CBIHA. In determining this, the Court set out what a “reasonable and prudent person” in Mr. Della Valle’s position should have done.

The Court stated that although Mr. Della Valle took action upon being notified of the presence of the asbestos, his actions did not constitute “all reasonable steps” that he could and should have taken. Although there was nothing wrong with the actions Mr. Della Valle did take, they were not sufficient to comply with s. 17 of the OHSA. The Court found that Mr. Della Valle took a passive role, as he should have done more after having reported the findings of the sample testing to Mr. McNeil.

The additional steps that the Court determined Mr. Della Valle should have taken included:

  1. immediately notifying his own supervisor;
  2. informing the JOHSC;
  3. taking unilateral action himself to warn persons who could come into contact with the asbestos of the hazard, including instigating a formal hazard assessment; and
  4. following up to see if appropriate action was taken, and if it was not, he should have escalated the issue up to the most senior levels of the organization.

Appropriately dealing with the situation required multiple parties to be involved in warning workers and tenants, coming up with the appropriate remediation plan, funding the remediation plan, and physically modifying the affected units. These tasks went beyond any one person’s job description, including Mr. Della Valle’s. However, the Court clearly stated that a job description is no defense for a health and safety professional. Health and safety professionals are to be more than simply information sources in an organization and must go so far as to ensure that safety hazards are properly dealt with.

This, in effect, expands their duties. They cannot rely on front line managers, or even supervisors, to deal with a hazard they have identified or know of according to this court. They must follow up to ensure that the hazard is properly addressed. Failure to do so can result in significant penalties, including fines and jail time.

It is important to note however, that this duty does not absolve managers like Mr. McNeil from liability. As we saw, he was also found guilty of failing to take reasonable steps to ensure the safety of persons at or near a worksite.

The fine in this case was relatively low. The likely reason for this is that the Court is arguably expanding a duty. To impose a larger fine on Mr. Della Valle in the circumstances would have been unfair.

We caution that the approach in this case may well not be upheld in other jurisdictions, or by other Courts in Nova Scotia. Some other legal commentators have gone so far as to say that it amounts to a duty to be insubordinate. We do not agree. Instead, it appears to impose a duty to escalate a serious health and safety issue in an organization and to take all reasonable steps to address the hazard that are within a worker’s authority to take. In this instance, Mr. Della Valle had the ability to escalate the issue to his supervisor and to bring it to the JOHSC among other things.

Arguably, a safety professional that was terminated for cause based on insubordination would have a defense if they could show that they had to go above their own supervisor if that person had failed to take reasonable steps to address a serious safety concern. Again, in this case, there was a serious safety risk, given that it was asbestos that was the workplace hazard. Practically speaking, it is highly unlikely that a well informed employer would ever take the position that there was cause for termination in those circumstances.

Safety professionals, like other employees are encouraged to adhere to the ‘chain of command’ where it is reasonable to do so, and to follow-up with their supervisors on serious safety issues on a regular basis. Employers are encouraged to ensure that serious safety issues are dealt with in a timely manner and to communicate progress on them effectively in their organization. In this case, the Court recognizes that an integrated approach to safety is necessary in a workplace.

Citation: R. v. Della Valle, 2011 NSPC 67 (CanLII)

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