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HomeMy WebLinkAboutWD-37-92 THE CORPORATION OF THE TOWN OF NEWCASTLE REPORT Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE File# Date: APRIL 6, 1992 Res. # Report#:_ WLL-_33_-_9_2_ File #: -AD.55_._U By-Law By-Law Subject: OCCUPATIONAL HEALTH AND SAFETY ACT & W.H.M.I.S. Recommendations: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report WD-37-92 be received; and 2 . THAT Council pass the By-laws attached to Report WD-37-92 . ---------------------------------------------------------------- REPORT 1.0 ATTACHMENTS No. 1: Proposed By-law to Adopt a Safety Policy and Safety Program No. 2 : Proposed By-law to Appoint Safety Committees No. 3 : Some Recent Court Cases 2.0 INTRODUCTION 2 . 1 Ontario's health and safety standards for the workplace are increasingly complex. The legislative structure has been dramatically transformed with the addition of a Workplace Hazardous Materials Information System (W.H.M. I .S. ) across Canada and a new smoking in the workplace law in Ontario. Further amendments to the provincial legislation have been enacted, some of which came into force August 15, 1990, the /2 REPORT NO. : WD-37-92 PAGE 2 the balance January 1, 1990. The purpose of this report is to inform Council about the legislation and make recommendations to have a program in.place to effectively deal with the responsibilities placed on Council and staff by the legislation. 3.0 REVIEW AND COMMENT 3 . 1 The Occupational Health and Safety Act (OHSAI The OHSA clearly sets out the rights and responsibilities of employers, workers and other workplace parties (constructors, supervisors, owners and suppliers) . The OHSA is based on the principle that workplace hazards can best be dealt with through communication and co-operation between employers and workers . Fundamental to the operation of the Act is what is called the internal responsibility system - the concept that employers and workers must strive to develop strategies to identify hazards and develop strategies to protect workers. Within the internal responsibility system, workplace safety is monitored by workers and employers through the creation of joint health and safety committees and the appointment of safety representatives, as required, and by regular workplace inspections by the Ministry of Labour. The Act empowers the Lieutenant Governor in Council to impose on the workplace parties, by regulation, specific duties relating to particular kinds of workplaces . Pursuant to that power, regulations have been made for three sectors - industrial establishments (Regulation 692) , construction projects (Regulation 691) and mines and mining plants (Regulation 694) - prescribing in detail safety practices that must be adhered to by the majority of workplaces in Ontario. f A REPORT NO. : WD-37-92 PAGE 3 3 .2 The W.H.M. I .S. Amendments Amendments to the Occupational Health and Safety Act that came into force on October 31, 1988, were designed to implement the cross-Canada workplace Hazardous Materials Information System (W.H.M. I .S. ) in Ontario. Sometimes called workers ' right to know legislation, these amendments gave employers and suppliers duties related to hazardous materials and physical agents . Employers must now make and maintain an inventory of any such substances in the workplace, ensure that proper labels and material safety data sheets (M.S.D.S. ) are placed on all such substances and their containers, and provide instruction and training for workers who may be exposed to them in the workplace. 3 . 3 The 1990 Amendments (formerly Bill 208) On June 21, 1990, an Act containing far reaching amendments to the OHSA was given royal assent. Most of the new provisions came into force on either August 15, 1990, or January 1, 1991. These provisions promise profound change for the occupational health and safety system in Ontario. A key provision of the legislation, proclaimed in force on August 15, 1990, creates a Workplace Health and Safety Agency. Composed of members from labour and management, the agency has I administrative responsibilities related to health and safety education. It also has formidable powers, including complete control over funding to health and safety associations and the ability to report "problem" employers to the Workers ' i Compensation Board. The 1990 amendments enhance the powers and rights of workers, health and safety committees and inspectors, while increasing the statutory obligations of employers. "Certified" members of health and safety committees will be given the authority i . . . /4 X0 11 REPORT NO. : WD-37-92 PAGE 4 to issue stop work directives and inspectors receive greater enforcement powers . To encourage a collaborative approach to health and safety issues, the requirements for, and the powers of, joint health and safety committees are expanded. Moreover, the amendments impose duties on officers and directors of corporations to ensure that their corporations comply with the Act. Officers and directors are now subject to fines of up to $25,000 and corporations up to $500,000 for contravention of the Act, the i regulations, or orders made under them Sections relating to corporate fines were proclaimed in force effective August 15, 1990. The sections relating to officers, and directors, obligations were effective January 7, 1991 3 .4 Duties and Responsibilities The Occupational Health and Safety Act places duties on the employer, the Supervisor and the worker. Following is a summary of these duties: Duties of the Employer 1. To provide a safe work place. 2 . To comply with regulations . 3 . To provide information and to educate workers . 4 . To appoint a competent supervisor. 5 . To assist Safety Committee or Representative. 6 . To not employ minors . 7 . To take every possible precaution. 8 . To post a copy of the Act. 9 . To establish an occupational health service. 10 . To perform duty respecting the use of agents . 11. To provide medical examination. 12 . To provide workers with written instructions . 13 . To perform duties regarding hazardous materials . . . . /5 I L i REPORT NO. : WD-37-92 PAGE 5 14 . To prepare an Occupational Health & Safety Policy. 15. To provide the Safety Committee or Representative with certain information. 16 . To carry out training programs for workers, supervisors and committee members . 17 . To establish a medical surveillance program as prescribed. Duties and Responsibilities of the Supervisor 1. To ensure workers comply with the Ontario Health and Safety Act and Regulations . 2 . To ensure workers use equipment, devices and clothing. 3 . To advise workers of danger. 4 . To provide written instructions . 5 . To take every precaution reasonable. 6 . To ensure that employees are fluent in procedures and instructions . Duties of the Worker 1. To comply with the Act and Regulations. 2 . To report .defects, contraventions and hazards. 3 . To undergo medical examination. 4 . Not to make protective devices ineffective. 5 . Not to operate machine or devices in a dangerous manner. 6 . Not to play in the workplace. 3 .5 Safety Policy Section 25, Subsection (2) ( j ) of the Occupational Health and Safety Act requires the employer to "prepare and review at least annually a written occupational health and safety policy and develop and maintain a program to implement that policy" . i . . . /6 I i REPORT NO. : WD-37-92 PAGE 6 Recommendation No. 1: That the Safety Policy attached as Schedule 'A' to the proposed by-law (Attachment No. 1) be approved by Council. 3 . 6 Safety Program On April 1, 1986, Municipalities in Ontario jointly with the Workers ' Compensation Board, through its Occupational Health and Safety Education Authority, launched the Municipal Health and Safety Program. This new program came about after consultation with representatives from Municipal Associations and Accident Prevention Associations in Ontario. The Municipal Health and Safety Program is designed to assist municipalities in reducing their occupational injuries and associated worker's compensation costs through health and safety education and training programs, as well as relevant Workers ' Compensation Board statistical data on costs and injury experience. These services will respond to the specific needs of municipalities on an individual or group basis . The program is directed by a twelve person Advisory Committee consisting of representatives from Municipal Associations and four (4) from the Education Authority including three (3) from the Accident Prevention Associations . Ken Fisher, who has many years experience in the Occupational Health and Safety Field, was the Program Co-ordinator of the Municipal Health and Safety Program. As part of his task, Mr. Fisher made several recommendations which he believes each Municipality should implement as a starting point of an effective accident prevention program. Mr. Fisher's recommendations are contained in the "Safety Program" which is attached as Schedule "B" to the proposed By-law. I I . . . /7 L REPORT NO. : WD-37-92 PAGE 7 Recommendation No. 2: That the Safety Program attached as Schedule "B" to the proposed By-law (Attachment No. 1) be approved by Council. 3. 7 Joint Health and Safety Committees The Act . requires employers to establish a Joint Health and Safety Committee and, in some cases, to appoint safety representatives . The OHSA gives only two requirements for joint health and safety committee meetings: 1 . The group must meet in the workplace at least once every three (3) months . 2 . Minutes must be kept of the meetings and made available for examination and review by an inspector in the event of an inspection. 3 .8 Functions and Powers of a Joint Health and Safety Committee Under the OHSA, the general function of a joint health and safety committee is to identify situations that may be a source of danger or hazard to workers and to make recommendations for the improvement of workers ' health and safety. I To assist the committee in carrying out these responsibilities, the Act gives the members the power or right to: 1 . Obtain information from the employer on existing and potential hazards of materials, processes and equipment and on health and safety experience and work standards and practices in similar industries . . . . /8 REPORT NO. : WD-37-92 PAGE 8 2 . Inspect the physical condition of the workplace. 3 . Make recommendations for the improvement of workers ' health and safety and for education and training programs for the health and safety of workers . 4 . Investigate cases of fatal or critical injury at the workplace. 5. Accompany a ministry inspector during a workplace inspection and receive copies of any reports or orders . 6 . Obtain information from the employer or constructor concerning the testing of any equipment, machine or substance at the workplace. 7 . Be consulted about, and be present at, the beginning of any testing of equipment, machinery or substances at the workplace. 8. Receive the results of a report on occupational health and safety that is in the employer's possession, and obtain written portions of the report, if available. 3. 9 Town of Newcastle Safety Committees Recommendation No. 3: That Council approve the proposed By-law to Appoint Safety Committees (Attachment No. 2) . 3 . 10 Some Recent Court Cases Following is a summary of some recent court cases, the details of which are provided in Attachment No. 2 : 1 . Supervisor working for Parkside Properties of Oshawa fined $13,000 . l . . . /9 REPORT NO. : WD-37-92 PAGE 9 2 . Canada Wood Specialty Company ( 1983) Limited, Barrie, fined $75,000 . 3 . Charges laid against the Welland and County Separate School Board. 4 . Charges laid against City of Port Colborne, its Fire Chief and Deputy Fire Chief. 5 . An Oshawa contractor is fined $20,000 and sentenced to three (3) months in jail. 6 . Peterborough Y.M.C.A. lifeguard drowns in swimming pool. 7 . Drowning in the Town of Lewisporte. 8 . Richmond Hill firm fined $75,000 after worker electrocuted to death. 3 . 11 Review by Other Departments This report has been reviewed by all other Department Heads . Respectfully submitted,f Recommended for presentation to the Committee, I Walter A. Evans, P.Eng. , Lawrence E. itative ff, Director of Public Works Chief Admin Officer WAE*ph March 24, 1992 Attachments I THE CORPORATION OF THE TOWN OF NEWCASTLE BY-LAW NO. 92- A by-law to establish an Occupational Health and Safety Policy and an Occupational Health and Safety Program as required by the Occupational Health and Safety Act. WHEREAS the Corporation of the Town of Newcastle is committed to providing a healthy and safe work environment for all personnel; AND WHEREAS the Occupational Health and Safety Act requires each employer in Ontario to prepare and review at least annually a written occupational health and safety policy and to develop and maintain a program to implement that policy. NOW THEREFORE BE IT ENACTED by the Council of the Corporation of the Town of Newcastle as follows: 1. The Health and Safety Policy and the Health and Safety Program contained in Schedules "A" and "B", respectively, which are attached to and form a part of this By-law, are hereby adopted as the Town of Newcastle's Health and Safety Policy and Health and Safety Program. 2. This By-law shall come into force and take effect on the date on which it is passed. By-law read a first and second time this 13th day of April, 1992. By-law read a third time and finally passed this 13th day of April, 1992. MAYOR CLERK ATTACHMENT NO. 1 t� lj WD-37-92 SCHEDULE "A" TO BY-LAW 92- H E A L T H & S A F E T Y P O L I C Y Responsibilities of Appointed and Elected Officials: 1. To provide as safe and healthy a working environment as can reasonably be expected, given the resources and technology available. 2. To establish an effective internal responsibility system, whereby everyone clearly understands their responsibilities regarding the occupational health and safety of workers. 3. To provide ongoing training to heighten employee awareness of known safety hazards and maintain job skills and knowledge. 4. To develop and maintain open communication between all levels in all Departments to encourage employee participation in the Town's Safety Program. 5. To involve all employees in safety through effective Joint Health and Safety Committees accessible to all employees. 6. To periodically review the Town's Health and Safety Policy, Program and Standard Operating Procedures to achieve safety performance. 7. To require compliance with applicable Federal, Provincial and Municipal safety legislation. Responsibilities of Workers: Workers are responsible for maintaining a reasonable working knowledge of the requirements of the Occupational Health and Safety Act. They are also responsible for maintaining a reasonable working knowledge of health and safety hazards in the work place and preventative measures to be taken for their own protection. Workers must: a. Comply with all procedures and requirements of the Occupational Health and Safety Act, Highway Traffic Act and other applicable Federal, Provincial and Municipal safety legislation. b. Report any hazardous conditions which cannot immediately be corrected to a Supervisor, and failing a satisfactory resolution, in the opinion of the worker, to a member of the Joint Health and Safety Committee. C. Promptly report all accidents or injuries (no matter how minor they may first appear) to a supervisor. d. Not work or operate any equipment that may endanger the safety of the worker or others. e. Not engage in pranks or feats of strength that may endanger the worker or others. f. Wear and care for, as instructed, protective clothing provided by the Town. Note: All outside contractors will be required to comply with Federal, Provincial and Municipal Safety Legislation when working on Town property. SCHEDULE "B" TO BY-LAW 92- H E A L T H & S A F E T Y P R O G R A M The Town of Newcastle Health and Safety Program shall be to implement the recommendations contained in a report prepared by Ken Fisher, Program Co-ordinator, Municipal Health and Safety Program, dated August 30, 1989, and on file with the Town Clerk as follows: 1. Work Practices Manual: Prepare a work practices manual which sets forth the rules and regulations regarding accident prevention activities. • I 2. Promote Compliance with Legislation by Workers: Promote awareness and compliance of all Workers with legislation including the Occupational Health and Safety Act, Worker's Compensation Act and First Aid Regulation 950. 3. Participate in the Municipality Injury Frequency and Cost Record 'Program: Participate in the Municipality Injury Frequency and Cost Record Program, a voluntary reporting program for municipalities which provides relevant statistical information on a municipal service basis. This program allows comparison with other municipalities. 4. Safety Officer: Reinforce the Town's senior management commitment to the Health and Safety Program by making the Town's safety professional directly accountable to senior management. 5. Accident Investigation Procedure: The establishment of appropriate accident investigation procedures is the responsibility of all Department Heads. Subject to the provisions of the Occupational Health and Safety Act respecting the function of the joint health and safety committee, implement a thorough accident investigation procedure led by the Head of the Department to which the persons involved in the accident are assigned to ensure the complete, objective and co-operative investigation of all accidents. 6. Procedure for Timely Reporting of Accidents: Implement a procedure for the timely reporting by a senior management representative of all claims to the Worker's Compensation Board as well as the ongoing monitoring of all claims, their status and opportunities for the early rehabilitation and return to work of the injured worker. 7. Health and Safety Education Program: � The implementation of an ongoing health and safety education training program responsive to the identified needs in the work place. i 'I - 2 - 8. Creation of a Steering Committee: The creation of a steering committee composed of senior management. This committee will oversee the Town's total accident prevention program. 9. Criteria for Performance Review: Include in the criteria for performance review for the determination of remuneration for all management and supervisory staff a significant recognition for accident prevention performance of each employee, including supervisors and senior management. i I i I �� ��' THE CORPORATION OF THE TOWN OF NEWCASTLE BY-LAW 92- being a By-law to cause Joint Health and Safety Committees for two Town of Newcastle workplaces to be established and maintained in accordance with the Occupational Health and Safety Act and to cause workers at certain other Town of Newcastle workplaces to select Health and Safety Representatives for the purposes of the Act. WHEREAS subsection 9(4) of the Occupational Health and Safety Act requires each employer to cause a Joint Health and Safety Committee to be established at each workplace at which twenty or more workers are regularly employed and provides for each Joint Committee to perform certain responsibilities and to exercise certain rights as set out in this Act; WHEREAS The Corporation of the Town of Newcastle is an employer which owns and operates two workplaces in the Town of Newcastle at which twenty or more workers are regularly employed, being the Newcastle Administrative Centre including Newcastle Fire Station No. 1, and the Hampton Public Works Facility, as well as certain other workplaces at some of which the number of workers regularly exceeds five and is fewer than twenty; WHEREAS subsection 8(1) of the Occupational Health and Safety Act requires employers to cause the workers to select at least one Health and Safety Representative from among the workers at workplaces at which the number of workers regularly exceeds five and is fewer than twenty and for which a Joint Health and Safety Committee is not required to be established under subsection 9(4) of the Act. WHEREAS The Corporation of the Town of Newcastle as the employer is required to cause the workers employed at the Courtice Fire Station, the Bowmanville Public Works Yard and the Orono Public Works Yard to select a Health and Safety Representative for these workplaces in accordance with the provisions of subsections 8(1) and 8(5) of the Occupational Health and Safety Act. NOW THEREFORE The Council of the Corporation of the Town of Newcastle enacts as follows: I 1. Pursuant to subsection 9(4) of the Occupational Health and Safety Act R.S.O. 1990 c. 0.1 a Joint Health and Safety Committee for the Town of Newcastle Administrative Centre including Newcastle Fire Station No. 1 is hereby established and shall be maintained. 2. The Joint Health and Safety Committee for the workplace referred to in Section 1 of this By-law shall consist of the Directors of Community Services, Planning and Development, and Public Works, the Treasurer and the Fire Chief or their delegates, and five persons regularly employed at the I ATTACHMENT NO. 2 WD-37-92 2 - workplace referred to in Section 1 who do not exercise managerial functions, each of whom shall be selected by the relevant trade union or the Newcastle Professional Firefighters Association, Local 3139, International Association of Fire Fighters, as the case may be, which represents workers regularly employed at the aforesaid workplace in the Departments of Community Services, Planning and Development, Public Works, the Treasury Department and the Newcastle Fire Department, respectively. 3. Pursuant to subsection 9(4) of the Occupational Health and Safety Act a Joint Health and Safety Committee for the Hampton Public Works Facility is hereby established and shall be maintained. 4. The Joint Health and Safety Committee referred to in section 3 of this By-law shall consist of the Director of Public Works and the Manager of Operations of the Public Works Department or their delegates and two persons regularly employed at the workplace referred to in section 3 who do not exercise managerial functions, each of whom shall be selected by the relevant trade union which represents workers regularly employed at the aforesaid workplace. 5. Co-Chair of each Joint Health and Safety Committee referred to in sections 1 and 3 of this By-law shall be appointed by the members of the Committee in accordance with the Occupational Health and Safety Act. 6. Each Joint Health and Safety Committee referred to in sections 1 and 3 of this By-law shall perform the responsibilities and exercise the rights provided by the Occupational Health and Safety Act. 7. The Corporation of the Town of Newcastle hereby requests the Newcastle Professional Firefighters Association, Local 3139, International Association of Firefighters, which represents workers who do not exercise managerial functions assigned to the Courtice Fire Station being a workplace at which the number of workers is regularly more than five -and fewer than twenty, to select one Health and Safety Representative from among the workers at the workplace who do not exercise managerial functions at this workplace in accordance with section 8 and for the purposes of the Occupational Health and Safety Act, and forthwith after doing so to notify the Fire Chief in writing of the name of the worker so selected. 8. The Corporation of the Town of Newcastle hereby requests the Canadian Union of Public Employees Local 74, which represents workers who do not exercise managerial functions assigned to the Bowmanville Public Works Yard, being a workplace at which the number of workers is regularly more than five and fewer than twenty, to select one Health and Safety Representative from among the workers employed at the workplace who do not exercise managerial functions in accordance with section 8 and for the purposes of the Occupational Health and Safety Act, and forthwith after doing so to notify the Director of Public Works in writing of the name of the worker so selected. i 7 0 � 1 3 - 9. The Corporation of the Town of Newcastle hereby requests the Canadian Union of Public Employees Local 74, which represents workers who do not exercise managerial functions assigned to the Orono Public Works Yard, being a workplace at which the number of workers is regularly more than five and fewer than twenty, to select one Health and Safety Representative from among the workers employed at the workplace who do not exercise managerial functions in accordance with section 8 and for the purposes of the Occupational Health and Safety Act, and forthwith after doing so to notify the Director of Public Works in writing of the name of the worker so selected. BY-LAW read a first and second time this 13th day of April, 1992. BY-LAW read a third time and finally passed this 13th day of April, 1992. MAYOR CLERK I I i i I i Personal _fines of $13,000 against supervisor indicative -of new trend By RICK MORRISON WHITBY, .Ont.`..'(DCN) - A total of $13,000 in personal fines levied against a construction supervisor is the latest example of a trend toward huge penalties for violating - Ontario's new Occupational Health and Safety Act. "What we see as significant is that the courts are prepared to 'impose that kind of a fine," Don' Chiasson, director of the Labour Ministry's legal services branch, said in an interview Tuesday. Maximum fines under the Occupational Health and Safety Act increased dramatically when Bill 208 came into effect Jan. 1, 1991. Companies violating the new act can be fined up to $500,000 while individuals face fines of up to $25,000 and a year in jail. In provincial court here last -week, justice of the peace Robert Legate found John Vandebaar, a supervisor at Parkside Properties of Oshawa, Ont. , guilty on four counts of violating the act. Legate dismissed charges 'against. the employer, constructor anti another Parkside •supervisor, Chiasson *said, and the ministry will'. . appeal that part of the decision. The fines came as the result of a routine ministry inspection of an Oshawa apartment project in August 1990, when a construction health and safety branch officer noted guardrails hadn't been installed as required and some workers weren't wearing hardhats or safety boots. Vandebaar was fined $5,000 for failing to ensure guardrails were used around the six-storey building's second and third floors and at an opening at the front of the building. Another $5,000 personal fine was imposed because guardrails were missing around two stair landings. He was fined an additional $3,000 for failing to ensure all workers wore safety hats and footwear. The case shows the courts are holding individuals accountable for the safety of employees, Ontario Labour Minister Bob Mackenzie says in a news release. "The fact that such a significant fine was imposed before any accident occurred signifies that any breach of the act will be vigorously dealt with to prevent accidents from happening. " As copied from "Daily Commercial News " . ATTACHMENT N0. 3 i WD-37-92 ONTARIO CORPORATIONS FEEL THE BITE OF THE NEW HEALTH AND SAFETY ' PENALTY PROVISIONS Effective. January 1, 1991, the maximum fine for corporations convicted under the Ontario Occupational Health and Safety Act increased : twenty-fold, from , $25,000 per . charge to . $500,000 per charge."., A .decision of the Ontario Court (Provincial* Division) in Orillia, dated August 15, 1991, gives an initial indication of how far the courts will be prepared to go to fine companies under these new penalty provisions . The Canada Wood Specialty Company (1983) Limited is . an Orillia company that dries and exports hardwood. The . company employs approximately 40 to 50 employees. A number of these employees are drivers of lift trucks that stack and lift materials. In December 1990, a driver was .fatally injured on company premises when a lift truck backed over him. The company, a supervisor and an officer of the company were charged with failing to ensure that a signaller was provided to assist the operator of a vehicle who did not have a full view of the intended path of travel of the vehicle. The corporation entered a plea of guilty to the charge in July 1991. Justice of the Peace G: Smith sentenced the company on August 15, :.1991, making the .first decision under the. new, penalty Provisions of. the Act in this .case. 'Although the corporation had not previously been convicted under the Act, and advised the court that its safety record was exemplary, the court imposed a fine of $75,000 against Canada Wood Specialty. The Justice of the Peace indicated that this penalty - three times the old maximum of $25,000 - was intended to send a message not only to the company, but also to other companies, that the court and society in general does not condone unsafe work practices . The company appealed the sentence, and an appeal is currently scheduled to be heard in December 1991. In the meantime, this case should send a clear message to Ontario employers that compliance efforts must now be maximized. If a corporation is successfully charged and convicted of any offence under the Act, even when no accident has occurred, or the company has not complied with an order, fines can be expected to be substantial. This case will be included in Release No. 6 of The Employer's Health and Safety Manual Ontario. i I I As copied from the De Boo Manual . i 2 034 Our Lady of Grace School SEPARATE BOARD FACING CHARGES TORONTO (Staff) - The Welland County Roman Catholic Separate School Board -and its maintenance director Will appear, in Fort Erie provincial court July 8 to set a trial date for charges under the provincial Occupational Health and Safety Act. Ministry of Labour media consultant Bob . McClelland .reports the board has been charged under three sections of the Act for failing to ensure safety measures in removing an.asbestos-lined incinerator from Our Lady of Grace School in Ridgeway in May 1990. The board's maintenance supervisor Brian Mosher faces one charge under the Act for failing as .a supervisor .to ensure .safety measures were taken. The board faces a maximum fine of $500,000 'while the supervisor faces a possible maximum $25,000 fine and one year in jail. The charges stem from an 'incident last spring when board workers removed an incinerator from the school without properly isolating the area and shutting off ventilation -systems connected to the boiler room. The school, according to parents, filled with a cloud of dust. and was later closed for. several days .while air tests were done and'the 'building was thoroughly cleaned. Parents were angered at the time and protested by keeping most of the 180 students out of class for more than a week. They also picketed in front of the school and appeared with placards at a board meeting. "If they had done it right the first time it would not have cost them half as much and it wouldn't have cost the kids any exposure, " said head of a parents' committee Ena Hilmayer. "I 'm glad the charges were laid. I'm not a vengeful person but I don't think they'll try that on other kids again. " Hilmayer was disappointed the charges came only because the teachers were present while the work was being done. "They have nothing to do with the children in the building, " she said. "It's really sad you can't charge them .because of the children. " 3 ,) J � Charges against city, fire officials MAXIMUM ' PENALTIES ..HEFIFY PORT COLBORNE (Staff) - Hefty maximum penalties are involved in Ministry of Labour charges against the. City of Port Colborne, its fire- chief and deputy fire chief. Fire chief Doug Lockyer and deputy chief Brian Heaslip are charged with four counts of failing as supervisors to provide safety measures in the July 4, 1990 drowning of. city firefighter Harry Chevalier. Each .charge :carries a maximum fine of• $25,000 `and one year imprisonment. ' The City of Port Colborne faces five charges under the Occupational Health and Safety Act. City clerk/administrator Len Hunt said he was surprised the charges were laid 11 months after the incident but the general manager of the MOL's industrial safety branch said the investigation is a long., drawn-out process.: "There's a long process,.'" Brian Middlemiss saia. It Is' not just like a police ticket where you see something is wrong and give out a ticket. " "It takes some time. " Middlemiss was reluctant to give out any details of the charges but he 'did say he was responsible for reviewing the investigator's report recommending charges. "Firefighters' are workers in this province, " he said. "The information in the investigation showed that there was no training. " The city meanwhile, is preparing for its July 8 court date, according to the lawyer handling the case. "We're just examining the matter, " Stu Ellis said. "It's 10 months since the incident and five months since the inquest so there are things which will have to be re-examined. " i I 4 ! 10 .. / 1 /} PORT DROWNING TRIAL ADJOURNED TO JAN. 27 By MARIE CHAMBERLAND Tribune staff writer WELLAND - The trial of the City of Port Colborne and its two top._ fire department officials will resume Jan. 27. The City, Chief Douglas Lockyer and Deputy Chief Brian Heaslip face charges under the Occupational . Healtb ,and Safety Act' in . Ontario Court Provincial Division. Three charges against the city and two charges against each of the fire department officials relate to the July 4, 1990, drowning of 35 year-old firefighter Harry Chevalier. Chevalier died trying to rescue two swimmers in Lake Erie off Pleasant Beach. The city is accused of failing to provide adequate rescue equipment and training. and failing to ensure the safety of its workers. The chief and deputy chief -are each accused of the two latter: infractions. . In testimony yesterday, a swimming and water rescue expert said given circumstances similar to the ones firefighters faced at the beach that day, he wouldn't advise a rescue attempt. "If you choose to attempt a rescue, you've got to be sure in your mind that you'll be successful, " said Michael Shane, program director of the Ontario Branch of the Royal Life Saving Society. Shane said without proper training in swimming and rescue techniques, there may be "two victims instead of one" . In testimony earlier this week, court heard three firefighters, including Chevalier, waded into water with rapidly increasing waves and strong undertows, each. wearing safety belts with individual lifeline ropes attached to them. A pair of volunteer firefighters waded into waist-deep water holding two of the ropes .. One of them was Chevalier's. - i The third rope was held by three men' on shore, and one of the volunteers in the water held the mid-section of that third rope between his arm and body. 0 3/ 7 PORT DROWNING TRIAL ADJOURNED TO •JAN. 27 Cont'd Both volunteers were overcome by water conditions, and Chevalier's rope came loose. The two swimmers originally in distress also drowned that day. "If the rescuers have sufficient 'training, there are a couple of , options that they can pursue, ". Shane said. He said had the firefighters had training, they could have rowed on a rubber raft to where ,they thought the swimmers in distress were. ' The rubber raft would provide stability in rough'water. Or they could have swum to the distressed people and given them flotation objects to hold onto .before bringing them ashore. Shane said the rescuer in that situation would have to be a proficient swimmer. Three of the five firefighters directly involved in, the rescue that day testified they were averace swimmers. 6 BUSINESS.•...AND,THE LAW by'.Claire Bernstein RIGHTS CHARTER MUST APPLY IN SAFETY CASES Employers take note: not making the safety of your employees a top priority could mean a hefty fine and even jail. All provinces have occupational health and safety acts. All these acts contain fine and jail provisions. But Ontario has taken a direction that other provinces may soon . follow: . fines for a first offence can go as high as .$500,000, and offenders .are actually being locked- up. An Oshawa contractor spent three months in jail (his original 12- month sentence was:xeduced to .three on appeal) for endangering the life of a worker`on a. site. This was his second offence. He had been fined once before for hiring underage labourers . This time, -not ,only had he hired an underage worker, but he also had the youth working in a .trench that -was not shored up. In another Ontario case, a contractor had failed to provide the rail of a scaffolding with a guard. A worker fell• and suffered serious injuries. The company was fined $20,000 . According to the firm's lawyer, Norman Keith, the size of the fine was the straw that broke the back of this camel. The company went bankrupt. This policy of making the workplace safe is not high on Ontario's agenda just because there is an NDP government; it was the former Liberal government that amended the health and safety legislation to raise the maximum fine to a whopping $500,000. And the possibility of a jail sentence came from Tory days . But if jail sentences are to be applied, if unsafe practice is being criminalized, then the accused must be provided with the Charter of Rights and Freedoms safeguards _ afforded to people charged -under the Criminal Code. i This is the appeal of Toronto lawyer Keith, who has represented many employers charged with safety infringements . He argues that the quality of judges before whom the offenses are brought must be upgraded. • In Ontario, offenses care currently brought before justices of the peace - for whom there are no i educational requirements . The appointments are purely political . I I I RIGHTS CHARTER . MUST APPLY IN SAFETY CASES Cont'd One of­-the ,-last two .appointments was a variety-store ' owner; the other a bus driver Keith also maintains that the standard of proof should be beyond a reasonable doubt. He fears that prosecutors, in their zeal, are persuading justices of the peace to accept :a less stringent standard of proof. - And workers and supervisors should be advised of their constitutional rights to remain silent. Keith .tells the story of a tragic death - a worker fell. 10 storeys. The mechanic working the hoist from which the worker -fell was so shaken that he caved -in to . the threats- of inspectors who immediately after the accident demanded that he sign statements - in effect a confession - if he didn't want to go to jail. The weaknesses -in the system must be attended. And the more lawyers plead the Charter, the .sooner the Ontario government will get the message to build in safeguards. Health and welfare offenses are strict - liability offenses. Lack of intent is no defence. The only defence is due diligence - that the employer did everything reasonably possible to prevent the accident. To maintain the position where employers can plead due diligence, Keith advises them to do two things; "First, employers in all industries must start putting more emphasis on 'prevention' in the workplace so that they can be seen as being responsible corporate citizens. " "Second, people who take shortcuts that endanger or compromise safety - managers or labour - should be disciplined or fired. " A due-diligence defence is effective only if the employer can prove a health and safety policy is in place, and that the policy is being enforced. I i *Claire -Bernstein is a Montreal lawyer and syndicated columnist 8 :9.4 U FOOT WAS PUT IN 'DRAIN: WITNESS By PHIL TYSON Examiner Staff Writer YMCA lifeguard Linda Kosobucki drowned last April after she deliberately: stuck her: foot. into an. open, pool- ...drain,- another lifeguard testified yesterday at -a coroner' s ,inquest. Allison White, who was standing nearest to the 22-year-old Kosobucki,. said she . saw her colleague flexing her foot at the uncovered drain hole and moving her arms to force herself underwater, seconds after lifeguards had been discussing the possible danger of the drain hole. White was the.first to realize that Kosobucki was stuck, after her leg was sucked into the drain. .Kosobucki: drowned April 12 after spending. about 27 minutes underwater. White cried when lawyers pressed her on statements she had made to police right after the fatal accident. In them, White had said she, Kosobucki and four other lifeguards were talking about suction from the drain hole and how White mentioned she had once stuck her leg into it to test the effect. In her police statement, White said Kosobucki stuck her foot in the drain "to do it on her own, " (test the suction) . Testifying Thursday, White denied they had been talking about the suction or her experiment with the drain a few weeks before. She said she didn't remember saying the specific statements to police. Just minutes before 'the fatal accident, Y aquatics director Lynn Borland had another lifeguard retrieve the drain cover. She wanted to take it to maintenance people to have it fastened down. i Although Borland has denied knowing, until that day, that the drain cover in the Forbes pool was so loose it would come off, it was common knowledge among many of her lifeguards that the drain cover sometimes came off. Martha Appelman, a nine-year veteran lifeguard, was talking with Borland on the pool's deck at the time Kosobucki stepped into the uncovered hole. She said it was "a crazy thing" for Kosobucki to do. I Appelman said neither she nor Borland had told the four women lifeguards in the water to stay away from the uncovered hole. I 9 04 1 FOOT WAS PUT IN DRAIN: ' WITNESS Cont'd "We were a bunch of lifeguards in training, " she said. "I assumed nobody would go near the 'drain. " Appelman •also had told police'"she •heard remarks :ab ouit the-drainIs suction coming from other lifeguards in the pool. She wasn't sure who made the remarks; but she thought it was Kosobucki and White. She told police she thought White talked of sticking her leg in the hold, just seconds before Kosobucki, got stuck. But Appelman testified she wasn't sure she heard that. In March, White and another lifeguard, Scott Skinner had stuck their legs into the drain hole to test the suction. Skinner had even sat on the ,10-inch diameter hole. Lifeguard Sarah Dewar said she looked at a clock just before Kosobucki got stuck and it was 10:56 a.m. As copied from the Peterborough Examiner. i 10 } Errors led to death, inquest. told. DROWNING BRINGS 13 SUGGESTIONS PETERBOROUGH, Ont. (CP) - The death of a woman who drowned in a public swimming pool when. her leg was sucked into a drain could have been prevented, a coroner's inquest has -found. The inquest jury returned with 13 recommendations Friday, 'after a four-day probe into the death of Linda Kosobucki, 22, who died in a YMCA pool April 12. The university student and part-time . lifeguard stuck her foot in an open drain -at the pool just after she and other guards had discussed the safety of the drain. The inquest heard that the drain was installed improperly during renovation work..which began last September at the pool in this city in central Ontario. The loose drain cover was common knowledge among the lifeguards at the pool - who testified that they wrote repeated notes to their superiors-about it - and children swimming at the pool often played with it. The jury's recommendations ranged from provincial approval of pool renovation plans to - revamped safety measures at public pools, including installing pump shut-off switches at poolside. Dr. Donald Thompson, who presided over the inquest, said a series of errors and misjudgments led to Kosobucki's death. "Accidents don't. just happen. Any of several events could have prevented the death, " he told the jury before its three-hour deliberations. Thompson also had harsh words for the YMCA. "A volunteer organization like the YMCA shouldn't be slapdash and amateur in its workings, " he said. "It is evident that communication at the YMCA leaves a lot to be desired. " I I I i I HANGING HEADS IN SHAME There .are some residents of Lewisporte• who should hang their heads in shame and sleep uneasily over the tragic death of Stephen Eugene Thomas Dart. Dart drowned last­ summer when a boai he was- in capsized on Woolfrey's Pond. -He didn't have a lifejacket and he couldn't swim. That in itself is a tragedy. But what makes it worse, much worse, is that it was such a very preventable death. The.boat he was in was *a rented craft. It was rented by staff of Woolfrey's •Pond Municipal Park, which is operated by the Town of Lewisporte. Staff knew the boats were rented leaked, and yet rented them. Staff knew there were not enough lifejackets for each person in the boat, and yet let them all get in. Staff knew the mobile phone at the park, its only communication, didn't work, and yet provided no alternate means of communicating. Staff knew there was. no lifesaving equipment in a swimming area at the park, and didn't provide anything even-as simple as a lifesaver ring or. long pole. Staff felt the boats would not be used this year, yet left them in the park with no clear instructions not to use them. Councillors were told of park staff's. concern for the boats' condition, and yet referred it back to other staff to deal with and did not ensure a serious problem was corrected. All in all, last week's judicial inquiry was a litany of shame for the municipal government and its employees in this town. So many easy things could have been done to prevent a needless death. Staff could have been told not to rent the boats, attendants could have used their own common sense and refused to rent a leaky boat, parents could have insisted young people wear lifejackets on the water, and the boats themselves could have been taken from the park once the decision was made that they were not to .be used. Although hindsight, admittedly, - is often 20-20, it was not hard for any one of these actions. to have been done and prevented the tragedy of Aug. 9 , 1990 . Inexplicably none of these actions were taken and a life was lost. I 12 0 411 4 1 HANGING HEADS tN SHAME cont'a There's - no excuse for: ­this.. Everyone involved has- to take a personal responsibility for their own part in the tragedy. "I was only following.orders" didn't work at the Nuremburg trials and it doesn't work here. - People had -a chance to make a difference and they didn't. _ Last week's -;,,:dicial inquiry was a catharsis for all those who played a part or were otherwise involved in the municipal park that August day. But there is much, much more they could do. The official inquiry report and its recommendations should make very interesting reading. But more importantly, it could help ensure that *this tragic, preventable death will never be repeated in* Lewisporte or *elsewhere. -Michael Ralph i i 13 i FIRM[ FINED $75,000 IN WORKER'S DEATH By Hank Kolodziejczak Oshawa Times staff A Richmond Hill contracting company has been f ined'$75,000 'over an accident where an employee was electrocuted to death. Donald Bruce Kirk, • 41, of Gormely, died on Sept. 20, 1990 when the 30-foot' boom he was operating on a truck touched a high-voltage electrical line overhead. The 13,800 volts burnt Kirk's body beyond. recognition and caused the truck to burst into flames. Kirk was employed by Powell Contracting Ltd. . of Richmond Hill, which had a contract to install a fence for 'Ontario Hydro along Valley Farm Road, just south of Concession 3 Road in Pickering. A labour ministry lawyer argued Powell Contracting should have ensured that signs with the warning that there was a .potential hazard from overhead power lines were posted on the job. And it should have also ensured that another worker was stationed on the ground within view of Kirk to warn him when the boom approached the powgrline. Powell Contracting and James Maddin, of R.R. 1, Pefferlaw, a Supervisor on the job, pleaded not guilty to the two violations under the Occupational Health and Safety Act. Maddlin was fined $2,000. i 140 4,