Okay, FarmerChick, I ran your situation by my safety officer husband to see if he could offer you any good ideas, and this is what he came up with (I hope this is okay, mods - Jim won’t be posting regularly - he just wanted to address this particular point in his field of expertise):
My sincerest condolences for your loss, FarmerChick. Yours is a sad, but all-too-common story all over the place.
I wanted to provide some clarification on the Workers Compensation Board in Alberta (and most other jurisdictions in North America). It was established based on what are now known as the Meredith Principles (http://www.wcb.ab.ca/about/why.asp), which were set out in 1913, by the then Chief Justice of Ontario, Sir William Meredith. Meredith had been looking at the statistics generated by the Pittsburgh Survey, which was conducted in 1908 in Allegheny County, PA. In that survey, it was noted that there had been more than 520 workplace deaths in the single year of the survey in that one county. It was also noted that the families of the deceased and the seriously injured bore the brunt of the economic misfortune resultant from these incidents, even though the companies were typically to blame. Meredith reasoned that this was a bad thing and suggested his principles for the Workers Compensation Act:
[ul]
[li]workers receive compensation benefits at no cost for work-related injuries;[/li][li]employers bear the direct cost of compensation and in return receive protection from lawsuits arising from injuries;[/li][li]negligence and fault for the cause of injury are not considerations; and[/li][li]a system administered by a neutral agency having exclusive jurisdiction over all matters arising out of the enabling legislation.[/li][/ul]
Every WCB system on Earth makes use of these principles to one extent or other, and I believe they are sound. Problems really only begin to arise when one side or the other starts to take advantage of the rules, either by working the system for some easy compensation or by trying to hide from financial consequences. In Alberta, the financial consequences have become much more dire in recent years – while outstanding safety performance which keeps injuries to a minimum can lower your WCB payments by as much as 40%, poor performers can be subject to as much as a 200% surcharge. I’m guessing that the Oil and Gas company your son worked for has a base WCB rate somewhere around $5 for every $100 earned, so if they are performing poorly due to workplace injuries and fatalities, this could run as high as $15 on the 100, which could very well eat up their entire profit margin for the year (and the next three years, since all WCB claims remain attached to the company’s rating for a three-year period).
The other main place where companies can get dinged is through Workplace Heath and Safety. As FarmerChick pointed out, that branch of the provincial government can prosecute companies for violations of our Occupational Health and Safety legislation. The penalties appear to be very clearly stated (http://www.qp.gov.ab.ca/documents/acts/O02.cfm):
41(1) A person who contravenes this Act, the regulations or an adopted code or fails to comply with an order made under this Act or the regulations or an acceptance issued under this Act is guilty of an offence and liable
(a) for a first offence,
(i) to a fine of not more than $500 000 and in the case of a continuing offence, to a further fine of not more than $30 000 for each day during which the offence continues after the first day or part of a day, or
(ii) to imprisonment for a term not exceeding 6 months,
or to both fines and imprisonment, and
(b) for a 2nd or subsequent offence,
(i) to a fine of not more than $1 000 000 and in the case of a continuing offence, to a further fine of not more than $60 000 for each day or part of a day during which the offence continues after the first day, or
(ii) to imprisonment for a term not exceeding 12 months,
or to both fines and imprisonment.
But people usually stop reading there and miss this part:
41.1(1) Where a person is convicted of an offence against this Act, in addition or as an alternative to taking any other action provided for in this Act, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order directing the person
(a) to establish or to revise
(i) the policy referred to in section 32(a) and arrangements referred to in section 32(b), or
(ii) a training or educational program regarding the health or safety of workers at the work site,
(b) to take specific action to improve health and safety at work sites, or
(c) to take any other action specified in the regulations.
(2) The order may contain any substance or conditions that the court considers appropriate.
Basically, the courts are given carte blanche to make whatever judgments they see fit under that second, misnumbered part, and the courts have gone to that option frequently in recent years. Most of the penalties issued have not been fines, but contributions to appropriate training facilities or funds. Also, it has been my experience that WHS tends to wait to the very last minute until they file charges – we had a near-fatality on one of my sites back in 2005 and the charges were not filed until 23 months later. That’s in part due to the lack of manpower in WHS and in part to give everyone every possible chance to provide adequate evidence in support of their position. And that’s consistent with FarmerChick’s story of so much inaction to this point.
Finally, the Canadian government can charge the company and its owners under the Bill C-45 legislation. That law allows for companies and their principles to be found criminally liable if gross negligence is found. The Crown has been very frugal in laying these charges and only one has stuck since the legislation was enacted a few years ago, but the option does now exist.
The challenge in any of the prosecution options is proving negligence and disproving due diligence. If a company can demonstrate a consistent history of good behaviour, they will typically be let off the hook. If, however, it can be shown that a company has willfully violated the law, they are getting hit increasingly hard – the province of Alberta doled out more fines in the first quarter of 2008 than they did in all of 2007. So they are making an effort to get tougher with irresponsible companies.
Alberta averages a workplace fatality about every three days and has done so for quite a number of years. That actually makes us a pretty decent performer in the grand scheme of things. Also on the upside, workplace injuries in general have been dropping steadily over the last decade. But that hardly replaces the lives lost when something goes catastrophically wrong.
FarmerChick, I don’t know if any of this info will provide you with any consolation; hopefully you can reassure yourself with the knowledge that that the company that killed your son will be paying for this incident in some way, shape or form, and much more than might appear on the surface of things.
Mr featherlou
