September 26, 2005
By Glenn S. Demby, Esq.
"To sustain a claim that the Government is liable for awards of monetary damages, the waiver of sovereign immunity must extend unambiguously to such claims."
U.S. Supreme Court, Lane v. Secretary of Transportation, 518 U.S. 187 (1996).
"Public authorities with powers . . . under safety statutes have, in the past been found to owe duties to the individuals the legislation was designed to protect."
Superior Court of Ontario, Abarquez v. Ontario ,  O.J. No. 3504, Aug. 22, 2005.
FEMA's ineffective response to Hurricane Katrina raises an important question: Should victims of a disaster be allowed to sue the government agency that was supposed to protect them?
Interestingly enough, on August 22, one week to the day before Katrina slammed into the Gulf Coast, a court in Ontario addressed this very question. The case wasn't about a hurricane but the 2003 outbreak of SARS and the Canadian government's alleged failure to protect the victims. Different crisis, same principles.
Canada & SARS
Fifty-three nurses who contracted SARS while working at Ontario hospitals during the 2003 outbreak sued the Crown, that is, the Canadian national government, for not doing enough to protect them. The nurses claim that they wouldn't have gotten sick if the Crown and the Ontario Ministry of Labour (MOL) had properly enforced the Occupational Health and Safety Act (the Ontario version of OSHA).
The Crown denied responsibility and asked the court to throw out the case. But the court ruled that the nurses had a valid claim. It ordered a trial to be held so the nurses could prove their case in court.
The court cited two reasons:
1. The Crown Could Be Held Liable as the Nurses' Supervisor
Ontario OHS laws impose duties on "employers" and "supervisors." The Crown clearly wasn't the nurses' employer; the hospitals were. But the court said that the Crown or, more precisely, officials from the national Ministry of Health and Long Term Care (MOHLTC) who responded to the SARS crisis, might be considered "supervisors" under the OHS Act.
That's because during the SARS outbreak, MOHLTC officials issued a Directive telling hospitals how to protect nurses and other staff members attending to SARS patients. The nurses claimed these instructions were inadequate. A trial would have to decide if this was true and if the issuance of detailed instructions was tantamount to the exercise of supervisory authority, the court ruled.
2. The Crown Must Answer for the MOL's Failures
The nurses also claimed that the MOL did a poor job of enforcing the OHS law during the SARS crisis. Among other things, the MOL should have responded to safety complaints by hospital workers during the crisis rather than step aside and let the MOHLTC handle them.
The Crown claimed that it couldn't be held responsible for the failures of the Ontario MOL. But the court disagreed. If the nurses could prove their charges at a trial, the Crown would have to pay damages.
The U.S. & Katrina
The Canadian government's alleged failure to handle the SARS crisis is comparable to the U.S. government's botching of Katrina. In fact, one set of victims has already filed a lawsuit against FEMA officials. But it's not going to work.
The U.S. Constitution (Article 11) bestows the government protections known as "sovereign immunity." That basically means individuals can't sue public officials for doing a lousy job.
The only exception to sovereign immunity is when the government specifically and clearly waives, or gives up, its protection and expressly says it's willing to be sued. I don't know of any waiver relating to FEMA officials.
The Bottom Line: Unlike the Ontario nurses, the victims of Katrina have no judicial recourse against their public officials.
The debate over sovereign immunity is as old as the Constitution itself. Detractors argue that it reduces the accountability of government; defenders say that it's essential to governance because public officials need to be able to do their jobs without worrying about getting sued.
While I think these are valid arguments, I'm sure that not many Americans know that Canada does it differently. Is sovereign immunity the way to go? Or does the Canadian approach work better?
I have no idea. But I do suggest that citizens in both countries ask the question. And I suggest that they look at the experience of their neighbor in coming up with the answer.
No Procedure Is No Answer
Read your article (in last week's newsletter) and have to say I take issue with the statement: "In fact, from a liability perspective, developing a procedure that isn't implemented is a bigger risk than not having a procedure at all, especially if failure to implement the procedure causes an accident."
It seems to me that there's an implication it might be smart risk management to not have any written safety program at all. If the employer has a written safe work procedure and an employee clearly violated that, the employer cannot be held 100% liable for that. Certainly if numerous employees disregard company procedures, then there is a systemic problem within the company.
However, lets say the miner in your example decided he was going to work alone that day and failed to notify his co-workers or supervisor. In that case, he certainly bears some of the responsibility for disregarding policy. On the other hand, if this was a common practice then the company management is at fault for not catching this and acting upon it. Either way, interesting article from a thought-provoking standpoint.
Michael Briggs, ALCM, CSP
Senior Loss Control Consultant
The Hartford Insurance Group
2510 W. Dunlap Avenue, Suite #428
Phoenix, AZ 85021-2754
Office (602) 674-2718
Mobile (602) 478-6586
OSHA Socks Oil Company with Record Fine
Million-dollar OSHA fines are relatively rare. But they do happen.
The biggest OSHA fine ever? Until last week, $11 million. But that record has just been broken, shattered to smithereens.
On September 22, OSHA announced that British Petroleum Products North America has agreed to pay $21.3 million to settle charges for more than 300 alleged violations - five of them "egregious and willful" - in connection with a March 23 oil refinery explosion in Texas City that killed 15 and injured 170. In addition to the fine, BP has agreed to immediately fix all cited hazards and file bi-annual incident reports with OSHA for three years.
Meanwhile the Justice Department is looking into criminal charges against the company. For more details, see: http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=11589.
HEALTH & SAFETY LAW TRAVELOGUE
|Norm Keith - bio
By Norm Keith, B.A., LL.B., CRSP
Germany overhauled its Occupational Health and Safety statute after unification in 1989. The German fatality rate is high relative to other industrialized countries. One impediment to more active enforcement is the shortage of inspection personnel.
Health & Safety Profile: Germany
- Population: 82.5 million
- Labor Force: 42.6 million
- Total Accidents: 1,186,802 (2002)
- Total Fatalities: 947 (2002)
- Life Expectancy: 78.54 years
- GDP per Capita: $27,600 (2003)
- Government Type: Federal Democratic Republic
- OHS Legislation: OHS Statute
- Enforcement: Moderate regulatory enforcement, no criminal enforcement
About Norm Keith
Norm Keith, BA, LL.B., CRSP, is a partner in Gowlings' Employment and Labour Group, specializing in occupational health and safety law, workers' compensation, privacy law, labour and employment law, and alternate dispute resolution. He has extensive experience with wrongful dismissal, human rights, labour arbitration, judicial reviews, Ontario Labour Relation Board cases and fiduciary duty lawsuits.
To view his bio, click here. You can contact Norm by email here or by phone at (416) 862-5699.