The Chronicle Herald (Provincial)
$100,000 penalty proposed for contractor
Lawyers are recommending a $100,000 penalty for a marine contractor that pleaded guilty to a pair of safety charges from a fatal mishap at the Halifax Shipyard two years ago.
Trevor O'neil, an employee with Mackinnon & Olding Ltd., was injured when a blast pot exploded during a sandblasting operation on the night of July 2, 2019.
O'neil died in hospital five days later. He was 40 years of age.
Following an 18-month investigation, the provincial Labour Department laid eight Occupational Health and Safety Act charges against Mackinnon & Olding in February.
The Dartmouth company pleaded guilty in Halifax provincial court in May to two of those charges: failing to ensure its sandblasting job procedures were adequate and implemented and failing to ensure its daily safety checklist for the blast pot, a pressurized vessel containing sand, was implemented.
The sentencing hearing got underway Tuesday, with lawyers for the Crown and the company jointly proposing a penalty consisting of a $50,000 fine and $7,500 victim fine surcharge, a $37,000 donation to the labour minister's education fund, and $5,500 to make a safety presentation.
Judge Aleta Cromwell said she needs time to consider the joint recommendation. Lawyers will return to court Sept. 16 for her decision.
“Mr. O'neil's death was both foreseeable and avoidable,” Crown attorney Alex Keaveny said in his brief to the court. “While M&O had several written safety policies and procedures regarding sandblasting, they were inadequate and improperly implemented on July 2, 2019.
“M&O could have, and should have, ensured Mr. O'neil's protection against the risks inherent in industrial sandblasting, including his own errors due to inattention and miscommunication. Mr. O'neil should have returned home safely to his family and should still be working today.”
According to an agreed statement of facts, O'neil and two other M&O employees were conducting sandblasting on a ship under construction at the Irving-owned shipyard when the explosion happened.
O'neil was acting as tank watch, standing immediately outside the entrance to the ship in case any issues arose with the sandblaster, who was inside the ship. Meanwhile, a gear man monitored the operation of the blast pot, including turning it on and off and adding sand when required. The gear man was also the night shift supervisor.
At about 6:45 p.m., the gear man left his post near the blast pot and went to the entrance to the ship to talk to O'neil. For some reason, O'neil then left his post as tank watch and proceeded to the blast pot.
O'neil climbed onto the blast pot and began using a hammer to loosen the latches securing its door. His actions were witnessed by an Irving employee but not by the gear man/ supervisor, who had assumed O'neil's position as tank watch.
Once the latches on the pressurized blast pot were loosened, the door exploded off the pot, striking O'neil in the face and knocking him to the ground.
The Labour Department's investigation revealed several M&O employees were unfamiliar with the company's job procedures and safe-work practices for sandblasting, and some claimed they had never seen the policy.
A meeting in December 2017, attended by O'neil, addressed a workplace fatality involving the opening of the top hatch of a pressurized pot and instructed employees, when filling the pots, to “make sure the pressure is vented and that there is more than one person performing the task.”
Prior to the start of each shift, a field level risk assessment was done. The M&O daily planning card dated July 2, 2019, identified pressurized equipment as a potential hazard and was signed by O'neil.
Keaveny said there is no agreement between the Crown and the company's lawyer as to why O'neil tried to open the blast pot that evening.
“The only logical explanation ... is that he was checking the sand levels in the blast pot,” the prosecutor said. “The Crown submits that the most likely reason ... he did this was because of some miscommunication by words or actions that caused him to assume the position as gear man.
“Unfortunately, these are questions that only Mr. O'neil knows for certain.”
While the company's failures were serious, Keaveny said this was not a case of reckless disregard or deliberate indifference to legislative safety measures.
“The facts make it clear that M&O did take safety seriously and did take many steps to comply with their obligations under the OHSA and its regulations, despite falling short on July 2, 2019,” he said. “In this sense, M&O'S moral blameworthiness is at the lower end of the spectrum.
“No sentence will ever bring Mr. O'neil back or adequately respond to his tragic death. What this sentence can do is denounce the failures that resulted in (his) death within the sentencing options set out in the OHSA and attempt to prevent the next tragedy through an appropriate sentence.”
Defence lawyer John Washington said M&O is a familyrun, close-knit company with many longtime, loyal employees.
“This incident has had a devastating effect,” he told the court.
“It is unexplainable how this incident could have happened with the precautions that were in place. However, the tragic event did occur and the company's guilty plea is an acknowledgement that their safety policies and procedures were not adequate and that they can be improved, and they have been improved.”
Washington said the company has taken steps “over and above” those ordered by the Labour Department. “The safety protocols now in place, specifically in relation to the blast pot, have been recognized with an award from Construction Safety Nova Scotia,” he said.