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On Wednesday, May 7, 2014, a worker was tragically – and fatally – attacked by large black bear at a Suncor mining facility near Fort McMurray, Alberta.
It seems trite to observe that the worker’s encounter with the bear (as opposed to the types of industrial hazards more readily associated with mining operations) would have been shocking and unexpected. That said, from an occupational health and safety perspective, the incident was not entirely unpredictable, given the geography of the workplace. In that regard, this incident stands as a sobering reminder that workplace hazards can arise from factors that are extraneous to the work that is actually being performed; and it reinforces the importance of employers’ obligations to (a) provide workers and supervisors with the skills necessary to recognize, assess and control potential and actual workplace hazards, and (b) evaluate the effectiveness of the controls that have been implemented.
Occupational health and safety legislation in jurisdictions across Canada requires employers to acquaint workers and supervisors with hazards and potential hazards that may be encountered in the workplace and, more generally, to take every precaution reasonable in the circumstances for the protection of a worker. In considering the scope of those obligations, courts do not require employers to anticipate every possible failure and eventuality, but will instead review incidents through a lens of “reasonableness” – i.e. the court assesses whether a reasonable person, in the circumstances, would have perceived the hazard and/or foreseen the accident. Accordingly, employers have varying degrees of responsibility to alert workers and supervisors to environmental and other “indirect” hazards that do not specifically arise out of the work being performed.
Considering the example of the hazards posed by wildlife, there is at one end of the spectrum a cross-section of employers whose operations involve frequent and direct contact with dangerous animals (e.g. hunting guides, animal control officers, and zoo-keepers); and, in those circumstances, the need for training, hazard controls and other preventative measures is high (and, in some jurisdictions, statutorily required for certain industries).
On the other end of the spectrum, where (as in most office environments, for example) employers’ operations present virtually zero overlap with dangerous animals, employers’ duties with respect to wildlife training and hazard controls are low.
In situations that do not fall within an obvious “extreme” at either end of the spectrum – i.e. in situations where it is reasonably predictable that a worker may encounter wildlife in the workplace – employers should carefully consider the circumstances and take appropriate precautionary and response measures, including all or some of the following:
• Establishing perimeter security/ surveillance and other protocols with a view to avoiding contact with wildlife;
• Providing employees with training in identifying, assessing and evading risks presented by wildlife;
• Providing employees with safety equipment and counter-measures (including, for example, pepper-spray, noise-makers, and walkie-talkies to summon assistance); and
• Establishing an incident response protocol.
Alberta’s occupational health and safety authority is currently investigating the circumstances surrounding the bear attack at Suncor; and the health and safety community is anxiously awaiting its findings and recommendations.
In the interim, employers would be well-served to revisit their risk assessment and incident response protocols regarding “indirect” (but reasonably foreseeable) hazards – which may include potential encounters with wildlife – with a critical eye towards better equipping themselves and their workers to predict, prevent and prepare for the unexpected.
Ryan D. Campbell & Jason Beeho