At the moment, the Yukon government is bound by the Occupational Health and Safety Act.
Should it be?
Apparently, the current government doesn’t think so.
That’s the only explanation for its decision to appeal a court decision rendered in May by territorial court Judge John Faulkner.
You might remember it.
It stems from a little mishap on a road-building job in Whitehorse
In September 2007, Community Services hired Sidhu Construction to extend Hamilton Boulevard to the Alaska Highway near Yukon Gardens.
There’s a lot of rock in that area. To lay the roadbed, Sidhu had to blow it to smithereens.
Sidhu hired Peter Hildebrand, a licenced blaster.
During the course of his work, he set off 18 blasts along the roadway.
But on May 6, 2008, something went wrong.
Hildebrand packed the rock with explosives and … boom.
Flyrock from the size of small pebbles to printer-sized chunks weighing 22 kilos flew through the air like a meteor storm, eventually raining down on the Lobird Trailer Park, just 149 metres away.
One rock demolished a shed.
One crashed through a trailer’s roof and came to rest in the living room.
One Lobird resident watched the incoming rocks and was forced to run to cover.
Through dumb luck nobody was injured or killed.
Hildebrand didn’t know how close the subdivision was. He’d guessed 400 metres, minimum.
He’d failed to check a map or the road plans.
And, though his plans were submitted to the government, it failed to note or remark on the blast site’s nearness to the houses. Even though distance to structures on some of these plans was listed as N/A, on others distance was given, but was “wildly inaccurate,” wrote Faulkner in his decision.
Charged under the Occupational Health and Safety Act, Hildebrand pleaded guilty and was fined.
Sidhu, its project manager William Cratty and the Yukon government were also charged.
But they challenged the matter in court.
Everyone was ducking responsibility for the property-damaging flyrock.
The Occupational Health and Safety Act doesn’t apply to public safety, just worker safety, argued Sidhu Trucking.
Faulkner dismissed that argument as nonsense.
Cratty argued the act does not force a supervisor to ensure workers under him comply with the act or regulations.
But it does impose the duty to ensure they do their work without undue risk, noted Faulkner.
Finally, the government argued that, while it owned the project, it was not the “constructor”-Â legalese for the person who undertakes the project for the owner, including the owner who undertakes part or all of the project themselves.
Faulkner turfed out the argument, noting the government was the owner of the project, hired the contractor, paid the bills and retained overall control and management of it.
It had a full-time inspector on the jobsite.
And the government had its own engineer, who was designated the project manager.
Hildebrand’s blasting plans had to be submitted to Community Affairs prior to all blasts.
“It is beyond doubt that Community Services was the constructor,” wrote Faulkner.
As constructor, it had to ensure compliance with Occupational Health and Safety regs.
Faulkner ruled it failed to ensure Sidhu Trucking Ltd., its supervisor Cratty and blaster Hildebrand followed the measures and procedures laid out in the law.
The government’s engineer only reviewed the plans from a clerical sense without reviewing their contents, wrote Faulkner.
It ought to have reviewed and questioned the blasting plans, especially when the work was happening so close to a subdivision.
Which seems reasonable.
Faulkner fined the government $30,000.
However, the government is fighting Faulkner’s finding of guilt.
Once more, it’s arguing it wasn’t the constructor.
Because it sets a precedent.
The Yukon government doesn’t want to be responsible for ensuring contractors it hires for public projects are complying with Occupational Health and Safety rules.
Currently, those rules apply to government.
And that’s the way it should be.
But, in challenging this decision, the Yukon government is signalling it believes otherwise.
It wants the rules to apply to everyone.
Everyone, that is, except the government itself.