Page 32 - CCCA Magazine Summer 2015

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enVironmentAl heAlth And SAFety AuditS:

reduCe your riSk

By Karen Sadler

Early in Ernie Chan’s career, before he became a lawyer, he as privileged and confdential; specifying
found himself working as a young inexperienced engineer on that the report is part of the legal consul-
tation; handling drafts, summaries and
the roof of a building, helping to install a cell phone antenna. reports directly; and ensuring everyone
Bent over the ledge looking for suitable anchor points, with the involved is aware of protocol when han-
dling these documents themselves.
wind gusting past him, Chan felt himself lifted off his feet. A He further explained that the role of
few terrifying seconds later, he was back frmly on the roof but in-house counsel during a gap analysis
should be to:
shaken. He had not been wearing the proper safety equipment. ■ organize the process;
■ set parameters clearly to establish
privilege;
his was Chan’s personal safety mo- increased media scrutiny, mean that organi- ■ restrict access to the results; and
ment. Safety is the most important zations’ health and safety practices are now ■ manage the delivery of the EHS im-
tcore value at Aecon Group Inc., where under the microscope like never before. provements recommended in the report.
Chan now works as in-house counsel, and Keith cited the case R. v. City of Sault
the sharing of safety moments is required Ste. Marie (1978) in regards to whether key elements of a gap Analysis
at all meetings among Aecon person- or not due diligence can be presented as Chandler explained that a gap analysis is
nel. This is a wise move on the organiza- a defense to EHS charges. In a nutshell, an EHS audit “which identifes non-con-
tion’s part, as health- and safety-related organizations need to ask themselves two formances with statutory/regulatory ob-
incidents are the number one risk for questions: ligations, prioritizes non-conformances
Canadian companies today. In addition 1. Do we have a proper system in place? for follow-up action and identifes oppor-
to sharing safety moments, how can in- 2. Is the system we have in place oper- tunities for improvement, or OFIs.” This
house counsel ensure their organizations ating the way it should, and are steps report of audit fndings is privileged.
are best prepared to mitigate that risk? being taken to ensure it’s managed She recommended a specifc three-step
At the CCCA National Conference in properly? process to follow when conducting an
April, Chan along with Cathy Chandler Once the decision has been made to analysis:
and Norm Keith, both from Fasken Mar- conduct an audit, Keith explained that step 1: Client information session
tineau, facilitated a discussion on how en- the challenge for in-house counsel An occupational health and safety (OHS)
vironmental health and safety (EHS) legal are the potential issues with record-
compliance audits reduce risk. Below are ing non-compliances in a report: “The consultant conducts an information ses-
sion with key stakeholders to confrm the
some of the key takeaways. report may indicate a number of non-
compliances, the report could get into scope of the audit and the process to follow,
identifying, managing and mitigating the wrong hands, and the report could and request any pertinent documentation.
ehS legal risks be used against the company in enforce- step 2: document review and onsite work-
Section 217.1 of the Criminal Code estab- ment proceedings.” So, how best to pro- place assessment
lishes a legal duty for all persons “directing tect the report? The OHS consultant visits the workplace
the work of others” to take reasonable steps facility to conduct an assessment, interview
to ensure the safety of workers and the pub- protecting the report workers and supervisors, and review the
lic. Contravention can result in unlimited Once you’ve decided to conduct an au- requested documentation. This confrms
amounts in fnes for organizations and up dit (or gap analysis report), you’ll need whether there is safety documentation in
to life in prison for individuals in the case to ensure solicitor-client privilege. Chan place, and if so, whether it has been effec-
of a workplace fatality. This, combined with recommended marking all documents tively implemented among the workers.

32 CCCA MAGAzinE | SuMMEr 2015 été