NATURE OF THE ORDER(S):
COMPLIANCE
BACKGROUND:
Recently, OHS issued several Compliance Orders to our client following a single report of nausea and headache from a worker. The worker suggested the symptoms might be related to air quality at the work site, despite no similar concerns having been raised in that workspace for more than five years.
When discussions with the investigator failed to resolve the issue, we filed an appeal on behalf of our client. Before the matter reached a hearing, OHS conceded the appeal and rescinded the Orders.
DISCUSSION:
From the outset, our client responded promptly and responsibly. Appropriate steps were taken to assess the work space and ensure the safety of workers in the area - including relocation - even though no actual hazard was identified, and no other employees reported any issues.
At the same time, the appeal highlighted several fundamental problems with the Orders:
There was no factual basis for exposure claims: The report was isolated, uncorroborated, and there was no evidence that workers were at risk;
The Orders misinterpreted and/or misapplied the law: The Orders imposed requirements on our client that only apply when a specific harmful substance with a regulatory exposure limit is identified. That threshold was never met; and
The Orders were redundant: Our client had already addressed the concern effectively and was actively arranging further precautionary assessment. Simply stated, an Order or Orders cannot require an employer to do what they are already doing.
WHY IT MATTERS:
When you receive a Contact Report (with a Stop Work Order, Compliance Order, or otherwise), the interaction and file number assigned to that particular Contact Report and Order(s) will form part of your internal record at Alberta OH&S, where they may be used to justify administrative penalties and/or stronger enforcement measures in the future (i.e. see https://www.alberta.ca/ohs-administrative-penalties.aspx). Although we cannot speak to the internal policies in place at OH&S, it is clear that the total number of Stop Work Orders and Compliance Orders issued to an organization are considered relevant to the determination (i.e. see OHS2018_11, OHS2018_12, OHS2019_2).
The existence of such Orders is also posted publicly, and available online. The public impact or effect of such Orders and associated records does not end there, however, as both they and the underlying circumstances must often be disclosed to owners, contractors, and customers when bidding on or attempting to secure work, as part of the pre-qualification or RFP processes. As you might expect, an organization that discloses an Order issued by the regulator stating that it was allowing unsafe work to proceed and/or “non-compliant” with the OH&S legislation, may find itself on the outside looking in, with the work awarded to another contractor that doesn’t have that same blemish on its record.
F2 LEGAL COUNSEL: YOUR ACE IN THE HOLE.
OH&S officers aren’t always perfect. Neither are their Orders. We’ve been successful in having Orders rescinded in many cases owing to deficiencies, concerns over fairness and reasonableness, and problems with the authority, discretion, and/or jurisdiction of the issuing OH&S officer.
Contact us today at 1-780-720-1586 (Edmonton & Northern Alberta) or 1-403-456-5835 (Calgary & Southern Alberta), and let our experience benefit you.