Province guilty of safety breach

Excavator operator threatened surveyor

The department has since amended legislation, lawyer Jon Noonan said, and has added an entire new section dealing with transportation, parking on worksites and pre-approval of visitors.

The Government of Newfoundland and Labrador has been found guilty of a charge under the Occupational Health and Safety Act related to the criminal case of a heavy equipment operator threatening a surveyor.

The Department of Transportation and Works had been charged with failing to ensure workers followed safety protocols and with not providing work schedules or organizing tasks in a safe manner after an incident at a worksite in St. Vincent’s in March 2018. In exchange for accepting liability for one of the breaches, the other was withdrawn by the court.

While working on emergency culvert repairs following a washout, Bernie Farrell, a heavy equipment operator from Farrell’s Excavating, threatened a Department of Transportation and Works employee whom he felt was parking a government truck in his way.

According to an agreed statement of facts entered into the record in provincial court in St. John’s Monday morning, Farrell approached the truck with an excavator, causing the surveyer to act quickly to move the vehicle out of the way. Farrell told the man to “Get the f--- out of the way.”

The surveyer moved the truck, but parked it in another work area.

Upon seeing the truck was in his way again, Farrell approached it with the excavator and told the surveyer to “Get the f--- out of the way” and implied that next time he might be killed. Farrell reportedly backed the heavy machinery away 50 metres and the government employee began to move the truck before Farrell approached again, bringing the excavator within feet of the truck and bringing the bucket down on the ground on the driver’s side.

The surveyer reported the incident to the RCMP, and Farrell was charged with dangerous operation of a motor vehicle and uttering threats. He was later acquitted of the first charge, but convicted of the second charge and given a 12-month suspended sentence. He was also charged with breaching the Occupational Health and Safety Act for failing to ensure a worker was not in the swing reach of his bucket.

Representing the Crown, lawyer Erin Breen explained the required site-specific project safety plan submitted to the Department of Transportation and Works by the contractor in this case did not reference traffic congestion as a possible hazard, nor was it updated as required when the hazard was identified. There had been several reports of a government truck parked in the way of work being completed at the site, she said.

“Both Transportation and Works employees and Farrell’s employees reported having recognized there was limited space to move vehicles at this project,” Breen said.

Representing the provincial government, lawyer Jon Noonan told the court there had been a couple of triable issues that the government had chosen to drop in favour of a joint submission. One of them is whether or not the department was actually the main contractor in the situation; the other was whether or not Farrell had acted “on a journey of his own.”

The department has since amended legislation, Noonan said, and has added an entire new section dealing with transportation, parking on worksites and pre-approval of visitors.

Judge James Walsh accepted a joint submission from counsel for a $4,000 fine and a $1,200 victim fine surcharge.