Occupational Health and Safety Defence Lawyers in Calgary

OHS Defence for Employers, Contractors, Supervisors and Business Owners

The effects of a workplace incident can be immediate and long lasting. Serious injury, death and government investigations usually see employers and business owners charged with Occupational Health and Safety (OHS) offences which carry the risk of large financial penalties, damage to reputation and, in some instances, prison sentences.

Yoav Niv Law represents employers, contractors, supervisors, corporate officers and individuals facing OHS prosecutions throughout Calgary, Southern Alberta and the province. We provide strategic advice from the earliest stages of an investigation through trial to help clients protect their businesses and their futures.

If you have received an inspection order, charges under Alberta’s Occupational Health and Safety legislation or allegations under the Criminal Code following an incident at your workplace, early legal advice can make a difference to the outcome of your case.

Alberta Occupational Health and Safety Offences

OHS legislation is aimed at protecting workers and promoting safe workplaces in Alberta. Most OHS offences are not traditional criminal offences, they are regulatory offences under Alberta’s Occupational Health and Safety Act, Regulations and Code. The laws place legal duties on employers, contractors, supervisors, suppliers and workers to provide safe working conditions.

The following can lead to an OHS investigation:

• Workplace deaths
• Workplace injuries
• Equipment breakdowns
• Falling from heights
• Accidents in construction
• Industrial accidents
• Oil and gas spills
• Injuries resulting from manufacturing
• Poor working practices
• Work refusal investigations
• Non-compliance with Orders of OHS Officers

Regulatory charges can be laid even when there is no criminal intent.

What is strict liability?

One of the most misunderstood aspects of OHS law is that most offences are prosecuted as strict liability offences. Proving an employer’s intent to break the law is generally not required by the prosecution, unlike Criminal Code offences. Instead, the issue is often whether the accused exercised due diligence, i.e. took all reasonable steps to prevent the event, once the prohibited act has been proved.

This legal framework means that prosecuting an OHS case requires a detailed examination of:

• Systems for workplace safety
• Training Courses
• Written policy
• Practice supervision
• Hazard assessment
• Equipment maintenance
• Investigations of accidents
• Documentation of safety

Each case depends on its own facts, and hiring a competent lawyer to assess the relevant facts is critical.

The Value of Due Diligence

In many OHS prosecutions, the central question is whether the employer exercised due diligence. Due diligence is about showing that reasonable steps were taken to prevent the incident. The courts in Alberta will look at whether adequate safety systems were in place and whether they were implemented and enforced. Documentation often becomes one of the most important pieces of evidence in establishing a defence.

The following evidence may support a successful due diligence defence:

• Training and competence of workers
• Documented safety policies
• Risk assessments
• Job safety analysis
• Toolbox talks
• Equipment inspections
• Procedures for reporting incidents
• Audits for safety
• Oversight by a supervisor
• Progressive discipline of unsafe practice

The earlier counsel gets involved, the more opportunity there is to preserve evidence that might support a due diligence defence.

Training and Worker Competency

Employers must ensure that workers are able to safely carry out the work they are assigned to do or are under the direct supervision of a competent person. Courts often look at whether employees were properly trained, had sufficient experience and understood relevant safety procedures before taking on dangerous work.

Questions frequently asked are:

• Was the worker properly trained?
• Was supervision good?
• Were the safety procedures explained?
• Were personal protective equipment used correctly?
• Did the workers know the dangers of the job?

Training records, orientation materials, certifications and supervision logs are often critical evidence in an OHS prosecution.

Workplace Hazard Evaluations

Each workplace has its own hazards. Much of compliance work in OHS is to identify predictable hazards before an incident and take reasonable steps to eliminate or reduce those hazards. Courts regularly evaluate whether hazards were identified, communicated and managed properly.

Common industries where hazard assessment problems occur are:

• Building
• Oil and gas.
• Manufacturing
• Transport
• Warehousing
• Farming
• Utilities
• Property management (commercial)

Liability for Accidents at Work under the Criminal Code

There are workplace incidents where charges are other than provincial Occupational Health & Safety. The introduction of Bill C-45 sees organizations, directors, supervisors and others with authority over workplace activities subject to liability under the Criminal Code where alleged negligence contributes to serious bodily harm or death. The Criminal Code makes it a legal duty for those directing work to take reasonable steps to prevent bodily harm. These cases are often much more complex than typical regulatory prosecutions and require careful co-ordination of criminal and regulatory defence strategy.

Potential Consequences of an OHS Offence

An OHS offence conviction can have ramifications beyond the courtroom.

Possible penalties may include:

• Massive fines
• Imprisonment where appropriate
• Higher insurance premiums
• Increased WCB rates
• Loss of contract.
• Regulatory attention
• Damage to the business reputation
• Delays in production
• Higher operating costs
• Experience in civil litigation

As shown above, the consequences of an OHS conviction can reach well beyond the penalty handed down in the courtroom.

Our OHS Defence Services

Yoav Niv Law represents clients in matters related to:

• Defending employers, supervisors, contractors, corporations and individuals charged under Alberta’s OHS legislation.
• Investigating Workplace Deaths
• Prompt legal advice in the event of fatal workplace incidents and representation of clients in regulatory investigations.
• Representing businesses in investigations following serious employee injuries
• Building strong due diligence defences with workplace policies, training records, supervision, hazard assessments and industry practices
• Regulatory Authority Probes
• Helping clients with inspections, interviews, requests for documents and investigations by OHS officers.
• Representing individuals and organizations in criminal allegations relating to workplace accidents, including issues arising under Bill C-45
• Appeals of Occupational Health & Safety convictions and regulatory decisions on behalf of clients.

Why Yoav Niv Law?

OHS prosecutions often need the skills of both a regulatory lawyer and a trial lawyer.

Yoav Niv Law has extensive courtroom experience and a strategic approach to litigation. We have run hundreds of high stakes applications and trials. We work closely with clients to identify the factual, technical and legal issues that may determine the outcome of an OHS prosecution. Everything is done carefully, prepared carefully, with a close look at the evidence and a realistic sense of how workplace investigations play out.

Finally, we aim to protect our clients’ interests at all stages of the proceeding, whether in negotiations with prosecutors, challenging the evidence at trial or advancing a due diligence defence.

Calgary OHS Defence Lawyer

Early legal advice can be a game changer if you or your business is being investigated or prosecuted under the OHS regime. Important decisions should not be made until evidence is preserved, witnesses identified and legal obligations carefully considered. Yoav Niv Law represents employers, contractors, supervisors and businesses in Calgary, Southern Alberta and throughout Alberta.

Contact Yoav Niv Law today to discuss your Occupational Health & Safety case and get experienced legal representation.