Sudbury, due diligence, and health and safety culture: What we need to do

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By Clive Thurston

Special to Ontario Construction News

Since we received the ‘absurd’ non-decision by the Supreme Court of Canada in regards to the City of Sudbury case, there have been numerous and continue to be many presentations about what, if anything, stakeholders can do to protect ourselves.

There is no questioning what has been decided, is that owners can and will be charged as the constructor. What is not clear and has been referred back to the Ontario Court is what actually constitutes a due diligence defence?

We are seeing numerous clauses being written by Law firms across the province to try and address this issue, and it is a very fine line that everyone has to be careful of. First, if one goes too far it simply confirms that the owner has a role in the project and therefore likely to be charged.

Two, if it doesn’t go far enough ensuring adequate application of the OHSA, again the owner could be charged for not doing enough. Contractors will face ever demanding responsibility for health and safety on projects.

Collectively none of us is sure who is actually supposed to be responsible for health and safety, which is resulting in a dangerous climate of uncertainty. It is obvious that the Ministry of Labour has no intention of acting quickly to provide clarity now that they can charge owners when a workplace injury occurs. This leaves everyone to try and do the best they can to understand and deal with this issue.

One of the things essential to ensuring health and safety on construction sites and in any business is having an Occupational Health and Safety Management System (OHSMS) in place to ensure that the very best standards are being met to protect their workers and ensure they go home safe at the end of the day.

It is recommended that owners employ a strong prequalification process that requires the constructor to have achieved an accredited health and safety, certification such as COR® or 45001 COR® equivalent.

Recognizing properly accredited certificates has been confused by the Ministry’s lack of forethought and its refusal to listen to the industry and professionals as to what constitutes an accredited health and safety certificate. The requirement of a CSA recognized accreditation is one the Ministry must deal with immediately or more non-legitimate programs will be sold to contractors whom want something easier, faster and cheaper.

Owners can contact IHSA to find out about ensuring that the certificate they are receiving are CSA accredited. www.ihsa.ca/cor-home

Everyone needs to look, as industry stakeholders, about how they can build a strong case for a due diligence defence should they be charged. The best defence is to be able to prove that you have acted to implement and enforce health and safety on your projects.

But how can you ensure that the programs put in place will be followed? Can you be sure that all of your employees have adopted a belief in those systems and programs and are following them? Or as is often the case did people just read them, file it, and forget, which opens the door to catastrophe.

Years ago, the Ontario General Contractors Association (OGCA) recognized that ad campaigns being run by the government, coupled with higher fines and threats were doing nothing to improve health and safety on construction sites.

Today that mentality continues with Bill 88, legislation developed without employer input, that simply seeks to punish people rather than improve health and safety incentives and address any weaknesses within the system. It condemns not just the worst players but the best players to unfair prosecution and penalties that cost people their livelihoods, deter employees from accepting supervisory positions, and potentially the survival of the company itself.

I believe that we have to focus on the culture of health and safety and change how people think. We were pleased that the WSIB agreed with this philosophy and helped adopt and promote this concept. It became the mainstay in our industry ever since. A culture of health and safety is essential to building the foundation necessary for an effective OHSMS for owners and all stakeholders in the industry.

This cultural belief continues to be extremely successful amongst the OGCA members and that has resulted in a massive improvement in the statistics regarding ICI construction.       Simply, they are the best in the country with the lowest incidents and best rates anywhere. This wasn’t achieved because of threats or advertising; it was achieved through a commitment to health and safety culture, promoted by the contractors and their partners.

To foster this belief that a strong culture of health and safety builds a better system, the OGCA introduced the League of Champions (LOC) in 2016, at first it was an offshoot of the OGCA safety programs and was partially designed to support Mr. Rob Ellis and his organization, My Safe Work, in promoting health and safety to youth.

As the program gained traction and began to grow, the LOC eventually became its own independent organization in 2020. It has expanded its mandate from not just speaking at schools and other educational institutions but to promote health and safety culture at all levels.

The LOC promotes this philosophy through numerous speaking engagements, presentations, the LOC jersey, promoting many types of in-house programs that recognize safe workers and reward workers who come forward to help identify problems, these and other initiatives were all part of creating this culture.

I have participated in a number of panels with many organizations talking about the impacts of the Sudbury case and the importance of due diligence. I believe that if you are going to build a strong OHSMS then a strong argument can be made, that to be successful you first need a solid foundation. The adoption of a culture of health and safety within your organization will provide that foundation and ensure your success.

Everyone in the organization must believe in the importance of health and safety, that it is everyone’s responsibility that when they see something they should say something, do something and follow up.

Employees can see safety risks anywhere, for instance extension cords that are not properly taped down, creating a tripping hazard, or one of the more common ones at events where you see chairs tipped up against the table where people can trip, fall and be impaled.

These may seem minor but if you have instilled a strong health and safety culture within your organization, individuals will notice the small things and take action. If they’re willing to do that just in their everyday life at the office and events, then that philosophy and culture will transfer over onto our sites.

We cannot ignore what we see, nor should we, whether we are in the grocery store, a library, or a construction site. It must become second nature to us that when we see something that could cause an accident or injury that we act.

Recommending to owners building a strong due diligence and health and safety management plan through the use of accredited safety certificates such as COR®, is best built on the introduction of a health and safety culture program.

It is my feeling that the best way to do this is for owners to join the many construction and sub-trade firms who support the LOC and avail themselves of the many services that the LOC can provide in introducing such a culture to your employees.

When you adopt a strong culture of health and safety promoting it throughout your organization it will spread in fact it becomes contagious and that is exactly what you want.

I believe as I have since first becoming involved in the health and safety culture of the OGCA and the industry that it is everyone’s responsibility to ensure health and safety. Yes to different degrees; yes, not everybody will have the same amount of knowledge and therefore risk must be assumed by those most qualified to deal with it.

But until we get clarity on what exactly constitutes due diligence and how the ministry intends to enforce its new powers, we must do everything in our power to ensure that we do as much as we can for our employees and their safety.

Clive Thurston
Clive Thurston

For more information on how you can become a member of the League of Champions and begin the road to instilling a culture of health and safety within your organization please go to the following link: www.theloc.ca.

Clive Thurston is the OGCA‘s former president. He can be reached at (416) 399-2250 or email clive@thurstoncs.com.

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