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IN THE COURTS – 2007
WorkSafeNB’s health and safety officers and occupational hygienists are given legislative authority to write orders under the Occupational Health and Safety Act, to improve safety and prevent accidents in New Brunswick workplaces.
In the event that these orders are not complied with, or in the event that an accident has taken place as a result of a violation of the Act and/or its regulations, charges will be laid against the employer.
WorkSafeNB’s General Counsel’s Office supervises these legal actions. A listing of recent court cases is included below, and is published in each edition of WorkSafeNB's electronic and print newsletters.
On, October 22, 2007, J.D. Irving Ltd., pleaded guilty to an offence under section 242(1) for a guarding violation. They were fined $7,500 plus a victim surcharge. The court also recognized a sum of $2,500, for obligatory training for all JDI-Northwest sawmill supervisory staff. This training is with regard to their legal responsibilities and will be over and above the regulatory requirements.
J.D. Irving Ltd. was charged August 28, 2007, under section 242(3) of General Regulation 91-191 of the OHS Act for failing to install a guard on a planer saw at their sawmill in Kedgwick. The charge was laid after an accident in November 2005, in which a worker sustained serious injuries when he was struck in the face by a piece of lumber. The worker suffered what is called a LeFort I fracture, defined as a horizontal fracture occurring at the base of the upper jawbone above the highest point of the teeth.
JDI pleaded guilty and was fined $5,000, plus a victim surcharge of $1,000.
John Williams, a millwright with Grand Lake Timber, pleaded guilty on August 27, 2007, to a charge under section 239(5) of General Regulation 91-191 of the OHS Act, and was fined $300, plus a victim surcharge of $60. The charges were laid after an accident in September 2006 in which Williams lost the tip of his right index finger.
As a millwright, part of Williams’s job is to ensure that the mill’s machines are properly maintained, and to prompt any necessary repairs. On September 13, Williams was behind a finger jointer when he heard the cutting heads slowing down. Without taking any of the required steps to de-energize the jointer as required by law, Williams opened the access door in the jointer to check the drive belts. (Williams did not even take the insufficient measure that may have prevented the accident by telling the jointer operator that he was going to check the belt tension.) When the cutting heads came to a stop, Williams reached into the machine to check the belt tension. While his hand was in the machine, which was unknown to the operator, the machine was powered up again and Williams’ hand was pulled into the machine.
Maple Leaf Homes pleaded guilty June 20, 2007, to a charge under section 9(1)(a) of the OHS Act for failing to take reasonable precautions to ensure the health and safety of workers in relation to the safe design and use of a plumbing jig (no engineer approval). The charge was a result of an accident that occurred August 21, 2006 at their plant when a plumbing jig toppled over and struck an employee. Maple Leaf Homes pleaded guilty and was fined $4,000, plus a victim surcharge of $800.
At the time of the accident, Maple Leaf Homes took immediate action, conducted a thorough investigation on its own, and made required modifications to the jig. In addition, the company sent all its supervisors for additional safety training.
A lawyer for Maple Leaf Homes said the design and construction of the plumbing jig was contracted out, and Maple Leaf Homes had assumed engineering expertise would be brought to bear on the project.
On April 23, 2007, Killam Investments Inc., was fined $2,000 for its part in a 2005 accident in which a worker fell from a roof and suffered broken bones. Barry Kincade Roofing Ltd., the company hired by Killam, was fined $4,800. Under New Brunswick’s OHS Act, both the employer and the hiring company are responsible for worker safety.
The 22-year-old worker had only been on the job for five weeks when he was left unsupervised at the job site on a three-storey apartment building. Unfamiliar with the safety harnesses, the worker hooked himself up incorrectly. The harness did not stop his fall when he fell from the roof.
Highway 11 Truck And Trailer Ltd. pleaded guilty April 23, 2007, to section 9(2)(c) of the OHS Act for failing to provide such information, instruction, training and supervision as was necessary to ensure an employee's health and safety. The employer was fined $3,000 and a victim surcharge of $600. The charge was the result of an accident in December 2005 to a mechanic, who, while working under the truck, was pinned between the two rear wheels when the driver started the truck and began pulling away.
Following a workplace fatality, Rideau Construction was charged under the OHS Act with failing to take every reasonable precaution to ensure the health and safety of any person having access to the project site. Kirk Gould, a 27-year-old carpenter from Saint John, died June 19 when a wall at a worksite collapsed and fell on top of him. Rideau Construction pleaded guilty in court April 5, and was fined $20,000.
Atcon Construction pleaded guilty April 4, 2007, to one charge under section 9 (1) (c) of the OHS Act for failing to ensure that employees wore seatbelts. They were fined $5,000, plus a victim surcharge of $1,000. The charges resulted from an incident that occurred August 11, 2006 where a worker lost control of a backhoe and it rolled down an embankment. The operator was thrown from the backhoe and received minor injuries.
NB Power (Distribution Division) was charged under section 292(1) of the OHS Act for failing to establish and follow a code of practice before beginning work on an electrical distribution line. The company recently changed their plea to guilty, and, on March 23, 2007, was fined $10,000, plus a $2,000 victim surcharge.
The charges were a result of a serious accident in April 2005, which left an employee with serious burns to approximately 70% of his body.
Carson Construction Ltd., and Enterprises Bastech Inc. were charged on March 27, 2007 for violating the OHS Act after a WHSCC officer visited a worksite in Riverview on Aug. 25, 2003.
Carson Construction was installing sewer pipes on Waterfall Drive, while Entreprises Bastech was overseeing the work. The Crown prosecutor said the trench was about 15 feet deep, with the sides not braced or secured.
The judge fined Carson Construction $3,500 for each violation, for a total of $7,000, and Enterprises Bastech $3,000.
Bonney Construction Ltd. was charged after an employee fell into an unguarded opening to a floor below. The employer was charged with both the offence of having an unguarded opening and with failing to immediately notify the WHSCC of the accident. At trial on January 3, 2007 the Court found Bonney Construction not guilty of failing to provide notice, but guilty of the guarding offence, for which they were fined $1,500.
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