Canadian Safety Reporter

2 Canadian HR Reporter, a Thomson Reuters business 2015 CSR | December 2015 | News Credit: Shutterstock On June 7, 2015, a cable was severed while the Compass Rose II was at sea. e incident seriously injured a crew mem- ber, who had to be taken by helicopter to hospital. Follow- ing the incident, Yarmouth Sea Products continued to use the boat for scallop fi shing. A provincial occupational health and safety offi cer in- spected the Compass Rose II on July 5, about one month after the incident. e offi cer interviewed the captain and several crew members and was told breaks in the cable happened frequently. None of the crew could say whether the boat's cable or the rest of its equipment met safety stan- dards and no-one could show any records of maintenance or safe work procedures. Offi cer ordered hazard assessment report e offi cer determined that there could be a risk to the health or safety of the boat's crew, so he ordered "a report from a suitably qualifi ed and knowledgeable expert" to con- fi rm the vessel conformed to the standards set out in the Nova Scotia Occupational Health and Safety Act and its regulations, as well as "good professional practice." e re- port was required to assess the hazards of all the equipment in the boat's scallop fi shing sys- tem, including the hoist, rig- ging hardware and safety de- vices available. e assessment was to be conducted by a pro- fessional engineer registered in Nova Scotia and provided by July 17. ree days before the due date for the hazard assessment report, Yarmouth Sea Products wrote to the offi cer through its legal counsel. e company stated that it couldn't proceed without knowing what infor- mation the offi cer had been relying upon when he deter- mined there was a risk. It also advised that the Compass Rose II "had been modifi ed and op- erated smoothly and eff ectively in the fi shery after the incident of June 7 th ." Yarmouth Sea Products also complained that the situ- ation was further complicated by the fact the offi cer ordered the report to be completed by an engineer. e company had consulted an engineer, but the engineer was unable to com- plete the assessment and fi le a report by the July 17 deadline due to other commitments. In response to the company's letter, an extension to the dead- line for the hazard assessment report was granted to Aug. 15. Shortly thereafter, Yarmouth Sea Products fi led an appeal based on its argument that requiring an engineer to com- plete the report made it more diffi cult. e company argued that "the order was arbitrary in dictating that the assessment be carried out by a registered engineer when there were oth- er professionals "knowledge- able in the fi shing industry who are more qualifi ed than any known professional engi- neer in the province of Nova Scotia in preparing a hazard assessment report." It further noted that it had consulted with an engineer who was pre- pared to work on the hazard assessment but could not do so until after the deadline. e company also said the province didn't have jurisdic- tion because its industry fell under the auspices of the fed- eral Steamship Inspection Act. It sought a dismissal of the of- fi cer's order or, in the alterna- tive, a stay of the order to com- ply until the offi cer provided the information the company had requested regarding the information the offi cer used to base his risk assessment. Yarmouth's appeal to the la- bour board further argued that "there are no risks at the pres- ent beyond the ordinary risks associated with fi shing activi- ties in this fl eet and in fi shing in general in respect to the op- erations of the Compass Rose II." It reiterated that the boat had been operating without any problems since the June 7 incident and it was no diff erent than other vessels operating in the industry at that time. e deadline was extended once more to Aug. 28, but no further extension was granted after that, as the offi cer had grounds to believe there may be a risk to worker safety. e labour board noted that there was no evidence Yarmouth Sea Products had actually retained an expert — licensed engineer or not — other than the one it had consulted with. e company's letter to the offi cer didn't say when the engineer had been consulted, nor if any investi- gation had been started. e company seemed to indicate that it was waiting for the in- formation it requested from the offi cer so it could proceed with a report only if "the scope of what was required was nar- rowed down and defi ned," said the board. " is then was not a case where an employer had made or was making eff orts to com- ply with an assessment order, but was unable to comply with a deadline because the expert who had been retained needed more time in which to com- plete his or her report," said the board. "It was rather a case where the employer simply ob- jected to the need for such an assessment." e board found any preju- dice in the order for the assess- ment report "weighed in the favour of the crew members on board the vessel." Given that cables had broken in the past and in one case had led to a serious injury, this was a good thing. ere was no reason to lessen the requirements just because they inconvenienced the company, said the board in dismissing the company's request for a stay of the order. "To say that there are ex- perts better able than profes- sional engineers to provide an assessment does not speak to the need for a report," said the board. "Nor does it speak to the question of whether the OHS offi cer had reason- able grounds for believing that there 'may' be a hazard, which is the basic requirement for an order (under the act)." For more information see: • Yarmouth Sea Products Ltd. and Nova Scotia (Director of Occupational Health and Safe- ty), Re, 2015 CarswellNS 793 (N.S. Lab. Bd.). Fishing boat < pg. 1 Company couldn't fi nd engineer for inspection

• Cover