Laws stress issue of due diligence.

One could have heard a pin drop when over 100 contractors and supervisors sat absorbed in a mock trial detailing the ramifications of a construction job gone sour.

In the trial, staged in Thunder Bay in February, a man working on a roof had fallen to his death. A Ministry of Labour lawyer, along with volunteer community actors, lawyers and a judge were present to defend and prosecute construction owners and managers. The event was staged to demonstrate the impact of failing to follow health and safety guidelines.

Although this was a fabricated trial, the idea was born from a real event. Construction company owners and managers alike are responsible to ensure employees have the proper safety training and equipment to work in a construction environment.

The trial detailed how an owner of a larger construction company hired a sub-contractor to complete a portion of work at a site. The sub-contractor then hired a superintendent to oversee the project development who in turn hired a worker--the worker eventually died after falling from a roof. In this situation, the two contractors and superintendent thought they had a competent worker, says Ray Williamson, project developer, marketing for Dominion Construction Company Canada in Thunder Bay. Williamson was also chairperson of the Northwestern Region Labour-Management Health and Safety Committee that sponsored the event.

But when cross-examined by Crown council lawyer, Brian Fukuzawa, there was little proof that the employers held health and safety in high regard, Williamson says.

Part of the employer's argument was that the managers and owners of the companies said the employee (who fell) had years of on-the-job training, however, it carried little weight in the proceedings. There was no evidence that the deceased was taught by qualified workers and therefore management could not assume he knew the safety rules and regulations of his job. Ultimately the employers were responsible to train the employee appropriately.

Falls are still the No. 1 fatality-producing incidents in construction for small- and medium-sized construction companies, says Keith Barriman, senior field consultant of the Ontario Construction Safety Association.

"Under the Occupational Health and Safety Act (OHSA), the onus is on the company to prove themselves innocent, which is different from the legislation of where one is innocent until proven guilty," Barriman says.

When a contractor goes to court under the OHSA they have to prove they have attempted to implement health and safety standards at the workplace. Keeping records of training programs, documenting safety meetings, providing health and safety information and equipment to the employee is all part of the employer's responsibility.

The worker was not wearing a fall arrest-system, and employers did not provide enough evidence they took all reasonable precautions in deterring the accident. The infraction in this case was a failure to wear fall arrest under the Health and Safety Act and contractors were fined $100,000 each while the superintendent was levied a $15,000 penalty, "but in a real trial we would have laid a lot more charges," explains Fukuzawa.

A mock trial is scheduled for May 13 in Sault Ste. Marie and a May 25 luncheon in Sudbury with lawyer Claude Lacroix who specializes in due diligence.

www.csao.org

www.gov.on.ca/LAB

By KELLY LOUISEIZE

Northern Ontario Business