GNWT fined $100K in asbestos case
Judge rules department negligent in not protecting workers during museum renovation work
John McFadden
Northern News Services
Wednesday, June 10, 2015
SOMBA K'E/YELLOWKNIFE
Calling its actions "negligent," a territorial court judge has fined the territorial government $100,000 for violating its own occupational health and safety regulations.
Judge Robert Gorin convicted the GNWT in territorial court last Thursday for failing to take the proper steps to ensure workers were not exposed to cancer-causing asbestos during renovation work in the boiler room at the Prince of Wales Northern Heritage Centre back in 2012. Gorin said the government must be held to a higher standard when it comes to workplace safety in order to set a strong example for the private sector.
There were actually 11 charges laid in total by the Workers' Safety and Compensation Commission (WSCC). Six were against the museum site project manager and five against the GNWT's Department of Public Works and Services (DPWS). The charges against the project manager were all withdrawn while the government pleaded guilty to one of the charges against it. The other five were withdrawn.
The charges included failing to take reasonable precautions to prevent the release of asbestos, failing to properly instruct workers on safe asbestos handling and failing to conduct regular inspections.
The GNWT Department of Justice brought in a Crown lawyer from Vancouver, John Cliffe, to prosecute the case to avoid any conflict of interest concerns that might arise from having one arm of the government prosecuting the other.
Yellowknifer has chosen not to name the project manager because all charges against him were withdrawn.
Cliffe told the court the project manager had no education or training with respect to workplace safety or asbestos handling.
"He was unaware of DPWS procedures when asbestos is known to be in buildings and he was also unaware of his responsibilities under the safety act," Cliffe told the court.
The work that was being done in the fall of 2012 followed a fire at the museum in the kitchen area in December of 2011. Court heard that asbestos was detected in the drywall of the affected areas while drying and clean-up work was being done on the water damage that resulted from firefighters dousing the fire. It was also determined there was asbestos in the elbows on some of the piping in the affected area. Asbestos sampling was conducted on the upper segments of the chimney system at that time and no asbestos containing materials were detected. There was no sampling taken of the lower segment of the chimney system.
That fact became relevant when employees of Yellowknife-based Central Mechanical Systems began work to remove the old chimney on October 11, 2012. Workers used grinders to remove parts of the chimney and that's when the asbestos containing material was released into the boiler room, Cliffe told the court. The employees involved were not wearing protective clothing or using safety equipment associated with asbestos removal, Cliffe said. The workers were wearing dust masks but not full respirators as they should have been.
Court heard despite the contamination, a meeting was then held in the boiler room with the project manager and several other officials involved in the work. At that meeting, a manager with Commercial NDS Limited was asked to clean up the boiler room but he refused until WSCC was notified of the incident. The manager then asked for the meeting to move outside the boiler room.
An investigation was undertaken by WSCC and charges were eventually laid.
In its report, WSCC stated any workers inside the boiler room during and after the chimney work were probably exposed to hazardous levels of asbestos fibres.
The risks cannot be evaluated for up to 40 years because that is how long it takes in some cases before the effects of asbestos exposure can be detected, the report concluded.
Sheldon Toner, the lawyer representing Public Works, agreed with most of what Cliffe told the court. But he did point out the project manager had received some on-the-job training in asbestos removal.
He also said the evidence did not show an intent to ignore the possibility of asbestos at the work site.
"Better communications was needed but there was no ill intent. This was largely an accident but the government accepts responsibility," Toner told the court.
Court heard there were actually three different government departments involved: Public Works, which oversees and manages GNWT buildings; Education, Culture and Employment, which runs the museum; and the legislative assembly, which oversees maintenance at the centre.
Toner also suggested the contractor bore some of the responsibility for the asbestos release.
Gorin said he had problems with that suggestion, noting that public works was ultimately overseeing the project. Cliffe pointed out the GNWT has been twice previously convicted of workplace safety act violations, both involving the Department of Transportation.
"It was fined $200,000 after a workplace fatality in 1998 and $75,000 last year for an incident in 2012," Cliffe said.
Outside court after sentencing, Cliffe said he agreed with the judge's decision and added the fine was appropriate under the circumstances. The government also has to pay a $15,000 victims of crime surcharge.
Toner asked for and was granted 30 days for the GNWT to pay the fine.
Court heard the $100,000 will go into the Workers Protection Fund, which was set up to assist workers injured on the job in the NWT.
Mike Burns, assistant deputy minister for public works, said that steps have been taken, including extensive training to make sure the same thing doesn't happen again.
"I'm confident that we're doing everything we can to make sure that our staff are aware, our contractors are aware of the risks," he said.
"There are many buildings of an age category that do contain asbestos containing material and are therefore required to be managed. We'll be working not only with our project staff but also our maintenance staff to make sure everything is identified as best we can."
Asbestos, an insulation material well-known for its carcinogenic effects, is reportedly the largest on-the-job killer in Canada, accounting for 368 deaths in 2013 alone.
