In judging the legal adequacy of your company’s workplace safety rules, it’s not just what you say but how you say it that counts. Safety rules may be highly developed and more stringent than required under OHS laws; but if they’re not clearly stated and communicated to members of the workforce, they’re worse than useless. An oilfield service company recently learned this lesson the hard way. Although the case comes from Alberta, the due diligence principles it addresses apply across Canada.

What Happened

Two oil workers were injured as a result of an explosion that occurred while they were unloading a highly flammable petroleum product from their service truck into a metal storage tank. The explosion occurred after the truck’s engine began to rev and ignited flammable vapours. Inspectors determined that the truck wasn’t grounded and bonded to the tank and may have been parked too close to the tank (about three metres).

The company was convicted of violating the so-called “general duty clause” of the Alberta OHS Act (Sec. 2(1)(a)(i)), which requires employers to ensure “as far as reasonably practicable” workers’ health and safety.  The trial court ruled that the company had failed to establish clear safety rules. The company appealed.

What the Court Decided

The Alberta Court of Queen’s Bench upheld the verdict as reasonable. The company claimed that it had a clear safety rule on the unloading of petroleum products: Trucks had to be at least 15 metres from the tank during unloading. The company stressed that its rule exceeded the industry norm, of  seven metres. The appeals court said that there’s “nothing wrong with an employer having safety rules or standards that exceed industry norms.” In fact, it’s laudable that the company “attempted to set its standards to a high level.” But the issue wasn’t whether the company had a sound safety rule; it was whether the company had a clear one.

The appeals court found ample evidence that the company’s 15 metre rule wasn’t clearly stated or communicated. The individual who trained the victims wasn’t even aware the company had a 15 metre rule and trained the workers to follow the seven metres industry standard instead. The injured worker also testified that he thought the rule was seven metres. And the company’s safety materials didn’t clearly set out the safe distance rule, instead referring to a variety of distances (eight, 15 and 50 metres) for various circumstances.

The appeals court also rejected the company’s argument that it should consider the confusion in the oil industry over the safe distance rule. The court said, “[I]t is up to the employer to set clear safety rules for its workers. If there is systemic confusion in an industry, it is the responsibility of the employer to deal with that confusion, and resolve it for its workers” [R. v. Rose’s Well Services Ltd., [200] ABQB 1 (CanLII), Jan. 2, 2009].

The Moral: Communicating Safety Rules Is as Important as Writing Them

The overall OHS system of the company in the Rose’s Well case had a lot to commend itself. It was led by a skilled safety coordinator. The OHS system performed well on external audits. The company tried to set safety rules that exceeded industry standards. The company and its senior management were aware of their safety duties and devoted financial and human resources to fulfilling these obligations. But despite these efforts, there were obvious flaws in the system. As the appeals court noted, “Too much was left to chance.”

The lesson: All aspects of an OHS program must function soundly to meet the standards of due diligence. So by all means, set your company’s safety standards high. But remember there’s no point to setting high safety standards if they aren’t clearly communicated to the workers who are expected to comply with them.

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