Cable giant puts in place additional measures to ensure contractor safety
By Ahmad Hathout
Rogers last month withdrew an application from the Federal Court of Appeal against the Canada Industrial Relations Board (CIRB) after it pleaded guilty to labour code offences related to the January 2022 tower-fall death of a subcontractor’s employee in Minden, Ontario.
Rogers, which said it had no prior convictions under the Labour Code, pled guilty on October 29 to charges related to violations of the Canada Labour Code, for which the Ontario Court of Justice ordered it to pay a fine of $260,000 and Rogers promised to institute new measures to ensure safety at its sites.
The company took responsibility for failing to adequately ensure the subcontractor working on site had an adequate fall protection plan, proper equipment such as a full body harness and helmet, and proper training before climbing its tower. Rogers and the government agreed that the facts and offences outlined did not directly result in the fatality.
According to an agreed statement of facts document, Rogers contracted with Wesbell Communications to replace and install equipment at or near the top of the tower in question. Unbeknownst to Rogers, Wesbell had subcontracted that work to Verrascend Technologies, which is described as a new company made up of ex-Wesbell employees. This particular job was Verrascend’s first.
On January 26, 2022, the day the job was supposed to be completed, Jacob Lundrigan, and his work colleague, Daniel Zak, had climbed the tower to approximately 122 metres when, at around 11:30 am, Lundrigan fell.
Despite having a full body harness and utilizing a fall-arrest system with lanyards and d-rings as part of Verrascend’s fall-protection plan, the deceased was not using the harness as he should have been. “Specifically, he was not connected into an anchorage point at the time of his fall,” according to the document.
“A safety representative from Rogers confirmed that Rogers did not verify the fall protection equipment being used by any of the contractors at the site,” according to the document.
The tower had what’s called a ram rail system designed to catch a fall, but it was unusable due to deficiencies.
Because Rogers didn’t have a fall protection plan – because its employees don’t climb towers – it required its contractors to put one in place and provided a job package to Wesbell that suggested alternative methods, such as a twin-leg lanyard, for the climb.
Despite Rogers not knowing Verrascend was doing the job, the cable company agreed that “there was no assurance that Mr Lundrigan or others who were granted access to the work place were familiar with the hazards, anchorage and other matters associated with climbing the telecommunications tower, which such a [fall protection] plan must address.”
Rogers also admitted that it did not ensure that the climbers were wearing headwear and did not ensure that a copy of the instruction and training on the protection equipment that the climbers were using was summarized in writing and available for consultation.
The cable giant had relied on Wesbell to address its obligations under the code, which came in the form of a yes/no pre-qualification compliance questionnaire, called ComplyWorks.
“In the questionnaire, Wesbell confirmed that it had various safety policies, programs, procedures and equipment related to working at heights,” the document said. “In the questionnaire, Wesbell also confirmed that it used subcontractors and had policies, programs, procedures and verifications in regard to various safety matters in relation to its subcontractors.”
“Although there were no red flags with Wesbell’s ComplyWorks responses, Rogers did not verify the responses in any way,” the statement said. “For example, Rogers did not ever audit or monitor Wesbell in regard to its safety polices, programs, procedures or equipment. Rogers also did not verify any of the equipment being used by any of the contractors at the site where the incident at issue occurred.”
Rogers said Wesbell’s vetting of Verrascend’s safety qualifications “was not sufficient” and Rogers has since asked for “corrective actions.”
Since the incident, Rogers said it has taken additional measures to ensure the safety of all workers before work commences on its sites.
Those measures include enhancing its contractor monitoring program by examining the contractor’s safety policies and procedures and employee training records to ensure that the code’s requirements are satisfied; implementing a process where contractors receive information pertaining to the towers that highlight details necessary for contractors to develop a fall protection plan to comply with the code, with Rogers verifying that there is such a plan in place; and performing in-person and virtual site audits during field operations to ensure safety compliance and to warn or reprimand the contractor for breaches.
“We were deeply saddened by this fatal accident involving one of our subcontractors in Minden,” Rogers said in a statement to Cartt. “The safety of our people, our contractors, and our communities is our top priority.”
After the plea, Rogers last month dropped its challenge at the Federal Court of Appeal which sought to challenge a decision by the Canada Industrial Relations Board (CIRB) that found that it should have been more proactive in ensuring the safety of the people working on its towers.
The question at the heart of the case was who should bear responsibility for ensuring said safety: the company controlling the workplace (Rogers) or the company controlling the work activity (contractor).
While CIRB found that Rogers did not need to have a fall protection plan in place for those contractors because it doesn’t have the expertise, it ruled that the telecom giant had to take active measures to ensure that those contractors had and were following those plans – and the aforementioned prequalification checklist was insufficient to meet that end.
“A prequalification program in which a contractor enters information in a questionnaire, without Rogers ever confirming this information, is certainly not an active measure,” the board determined in February. “While Rogers may consider it sufficient to ensure that a contractor meets certain requirements before Rogers contracts with it, it is insufficient to meet its health and safety duties under the Code and the [Canada Occupational Health and Safety Regulations (COHSRs)].”
“Ensuring that a person is familiar with and wears a full body harness and protective headwear does not require Rogers to have expertise in climbing at heights,” the board added. “It is not impossible or an absurdity to require Rogers to ensure that these requirements are met,” which the board determined to be the workers’ use of prescribed protective equipment.
The fact that Rogers didn’t know that Wesbell had subcontracted the work showed deficiency in its obligations, the board said.
Rogers challenged CIRB’s ruling in the September application, arguing that a prequalification program is an industry standard and that it would be impractical to actively ensure that contractors are safely equipped to climb because it has thousands of remote worksites. It also argued that because it doesn’t have tower-climbing expertise, it cannot adequately review or evaluate the quality of the contractors’ plans.
CIRB called Rogers’s arguments unsupported.
It pointed to Rogers’s Contractor Safety Management Policy, which stipulates that the company will “establish the health and safety requirements for the management of all contractors performing work for, or on behalf of Rogers, where there is an actual or potential exposure to medium- to high-risk hazards.”
That policy requires contractors to advise the company’s contract managers of all subcontractors they plan to use, CIRB said. “However, Rogers does not require subcontractors to ‘attest’ to Rogers directly with respect to their fall-protection measures before it grants their workers access to Rogers owned towers,” CIRB argued at the time.
Citing that policy, CIRB argued “Rogers has not contested the Board’s findings that it failed to comply with several of the measures stated in its own policy.”
“The evidence that was before the Board showed that Rogers could have taken further measures – including (a) measures stated in Rogers’ own policy, and (b) measures Rogers did, in fact, take after the fatality – to ensure health and safety. It failed to do so,” CIRB said in its response document to the Federal Court of Appeal.
A CIRB spokesperson and lawyers on their side declined to comment.
Photo via Bell
