In the early hours of July 13, 2013, a runaway freight-train operated by Montreal Maine & Atlantic Railway (“MM&A”) and carrying more than 70 tanker-cars loaded with crude oil derailed in Lac-Megantic, Quebec. The resulting explosion and fire claimed 47 lives, and destroyed a large part of the town’s downtown area.

In the aftermath of the incident, MM&A and three (3) of its employees (i.e. the train’s engineer, together with MM&A’s Manager of Rail Operations and its Traffic Controller) were each charged with 47 counts of criminal negligence causing death. Those prosecutions are pending; and, as they proceed, they will no doubt be keenly watched by occupational health & safety (“OHS”) professionals across the country—i.e. given the facts that: (i) the charges arise out of alleged actions and omissions by the three (3) defendant employees in the course of their employment, and (ii) it is inevitable that the court will subject MM&A’s occupational health and safety program, policies, procedures and training to intense scrutiny.

Last week, the federal Transportation Safety Board (“TSB”) released its report on the incident, based on its own investigation of the tragedy.  According to the TSB, MM&A “was a company with a weak safety culture that did not have a functioning safety management system to manage risks.”  Further to that, the TSB was critical of MM&A’s training and employee monitoring; and TSB Chair Wendy Tadros characterized MM&A as “a company where people did what was needed to get the job done rather than always following the rules.  A company where unsafe practices were allowed to continue.”

Especially when considered against the scale of the tragedy, the TSB’s conclusions and commentary provide a dramatic illustration of how not to approach OHS compliance:

1. DO NOT go without an OHS management system.  Proper OHS compliance cannot be achieved via sporadic and ad hoc efforts. In that regard, OHS legislation specifically requires that employers take the formal steps of implementing written OHS policies and procedures, forming Joint Health & Safety Committees (or appointing Health & Safety Representatives), and instituting other checks and balances. It is very important for employers to invest the time and energy required to properly develop and promote integrated OHS programs within their workplaces—in that regard, such programs represent the foundation upon which OHS compliance and due diligence is built.

2. DO NOT cut corners on training and employee monitoring.  Thorough and up-to-date employee training, combined with effective oversight by competent supervisors, is crucial to OHS compliance, and is a vital (and effective) “front line” accident prevention strategy.

3. DO NOT allow unsafe practices to continue.  Unsafe practices are often a product of laziness and/or a simple lack of awareness of proper procedures; and, like most bad habits, they become harder to reverse the longer they persist. A critical aspect of OHS due diligence is equipping and enabling employees and supervisors alike to recognize and correct poor safety practices.

4. DO NOT prioritize getting the job done over following health & safety rules.  Although sacrificing OHS compliance for the sake of increased productivity can sometimes lead to short-term gains, it is a fundamentally unsound long-term business strategy.  Ignoring (and/or bending) health and safety rules is a dangerous gamble, which can result in damage to an employer’s bottom line in a number of ways – for example:

• Lost-time injuries lead to lost productivity and administrative costs for employers;
• Accidents (and an unreasonable risk of accidents) are often harmful to employee morale and productivity;
• Accidents, “near misses” and “non-incident” OHS violations can attract charges and prosecutions under OHS legislation and (as is the case for MM&A) under the Criminal Code of Canada, which can in turn lead to significant fines and imprisonment; and
• High-profile incidents – and particularly incidents that affect the general public (as is the case in Lac-Megantic) – can have a catastrophic effect on an employer’s continued viability. In that regard, it is significant to note that MM&A is now insolvent and defunct.

5. DO NOT tolerate a weak safety culture, at any level of the organization.  To be effective, OHS due diligence must be both a “top–down” and a “bottom–up” exercise that involves workers, supervisors and executives at all levels of a business.  OHS accountability ought not to be limited to only certain members of an organization; and, indeed, OHS legislation imposes positive duties on all workplace parties.

If all workplace parties (i.e. including owners, employers, supervisors and workers) are properly trained, are properly monitored, and are properly fulfilling their OHS obligations, then a strong “safety culture” should naturally prevail.  If, on the other hand, any of those pieces is missing, then the safety culture will suffer; and such a state of affairs should not be tolerated by any employer.

Indeed, the tragedy at Lac-Megantic provides a deeply sad reminder of how high the stakes can be in matters related to health and safety, and of how important it is for employers to undertake their OHS obligations with the utmost diligence.

Jason Beeho