Auditors probed how serious workplace incidents are investigated in N.L. They found big problems

A recent internal provincial government audit, obtained by CBC News, revealed problems with how serious workplace accidents in Newfoundland and Labrador have been investigated and called for more resources and improvements to the system.

The review suggested some employers may have escaped occupational health and safety charges because the clock ran out before those probes were completed.

Staffing issues and a lack of training were among the "significant findings" of the audit, which was obtained by CBC News through an access-to-information request.

"Officer workloads combined with staff turnover are impacting the [OHS] division's ability to complete investigations, reviews and related reports in a timely manner prior to expiration of the two-year statutory deadline," the audit noted.

Outdated investigative processes and procedures were another factor "negatively impacting the timely completion of investigations," according to the report, completed in late 2022.

The result? 

According to the audit, at least one-quarter of investigations surveyed weren't finished before that two-year deadline elapsed, "thereby precluding the option for prosecution."

And even when charges were being laid, it was often happening at the last minute. 

Over a nearly four-year period ending in 2020, more than half of the time when charges were filed, it happened "within days" of the deadline expiring, the audit found.

CBC News analyzed charges laid since then, and found that is still an issue.

The Department of Digital Government and Service N.L., which oversees occupational health and safety investigations, declined to make anyone available for an interview over a period of three weeks.

WATCH | What CBC News has uncovered about an internal audit that sheds light on failings within occupational health and safety: 

What an audit revealed about how workplace accidents have been investigated in N.L.

6 months ago

Duration 3:58

A recent internal provincial government audit obtained by CBC News has found that employers were potentially let off the hook is some cases, as the clock expired to lay charges. Ariana Kelland with the CBC's Investigative unit dug into the story.

In a statement, the department said it has accepted all of the audit's 11 recommendations and is working to implement them.

However, officials did not provide any timeline for when that will happen.

Meanwhile, workplace safety experts and advocates are calling for swift action.

Questions linger after workplace fatality

Marty Gregory knows the importance of safety in the workplace from both sides — professionally as an employer, and personally as the friend and cousin of someone who died on the job.

Gregory is president of RothLochston, which provides construction, maintenance and manufacturing services for heavy industrial sectors like mining and energy.

The company touts itself as being "relentless" in providing a healthy work environment and keeping its employees safe.

"We say internally here that is our licence to be in business," Gregory said in a recent interview with CBC News.

But nearly five years ago, tragedy struck in Gregory's personal life. His cousin Gerard Drover died in a workplace accident in 2019 at the College of the North Atlantic in Stephenville.

Drover was painting the ceiling when he was struck by an overhead fan. He died in hospital days later.

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Gregory said the findings of the audit mirrored some of what he saw during the investigation into Drover's death.

"Having gone through my experience with my friend and my family member, I can't say I'm surprised," Gregory said.

"It's very disappointing."

The fatal accident happened on Aug. 27, 2019.

On Aug. 9, 2021 — as the two-year deadline loomed — four occupational health and safety charges were laid against Pomerleau Inc., a contractor hired by the provincial government for construction of the Stephenville building.

Three of the four charges were dropped at trial, after the Crown called no evidence. There was no reason given for that decision at the time, according to audio of the court proceedings reviewed by CBC News.

And there were questions about how long it took charges to be laid.

The OHS investigator, Greg Colbourne, testified that there were no further investigative steps taken after December 2019. He said his report was written and submitted in June or July 2020.

In court, defence lawyer David Eaton noted charges weren't laid for more than a year after that.

"I'm just wondering why it took so long," Eaton said.

"The only answer I can provide to that is, I do my job to the best of my ability," Colbourne replied.

"I got it out as fast as I could given everything else that I've got to do. So when it goes to the compliance [section], it's in their hands to deal with. I mean, I've got no control over that.… With regards to the big gap, I can't answer that."

In the end, the judge dismissed the lone remaining charge, saying the Crown had not proven it beyond a reasonable doubt.

After the judgment, Gregory said he had his legal team study what had transpired. They unsuccessfully made a case to prosecutors to appeal.

"At the end of the day, I'd say this: if Gerard's death and the prosecution of his death from a justice point of view is a test of the government's ability to do this properly, I'd say they seriously failed," Gregory said. 

"And the audit certainly reflects that."

He said he doesn't think the investigation was done poorly, but he noted the lack of expertise — something identified in the audit.

"When you think about someone losing their life — no different if it was a homicide or a traffic accident or a plane crash — you'd expect that the most senior, experienced, well-trained group, team, would be put together by a government agency to go and investigate that," Gregory said.

He also said it was "troubling" to read about outdated policies and procedures in the audit — the standard operating procedures manual for investigations dated back to 2010 and was still in draft format, with many sections incomplete.

"You have to be on point and you have to train your people and have your best, do their best, and take it seriously and improve the processes so that you get the result," Gregory said.

"And right now, unfortunately … my confidence is very low, having read the audit report. There's a lot of recommendations there. I think they all need to be taken very seriously."

Charges still being laid near deadline

The audit assessed OHS investigation processes over a one-year period from April 2020 through March 2021.

But due to the length of some investigations, the analysis and findings relate to OHS operations as far back as 2017.

However, the timeliness of OHS laying charges appears to remain an issue to this day.

Last week, the province announced charges against a Mount Pearl company after a worker was injured when he was struck by a piece of lumber being moved by a crane at a wharf construction job in Trinity Bay.

The incident occurred in June 2022 — nearly two years earlier.

And that time frame remains the rule, not the exception, according to an analysis of cases in which the provincial government has announced OHS charges.

Over the past three years, there were charges filed in relation to 15 separate workplace incidents. Three of them were fatalities.

In the vast majority of those cases, the province announced the laying of charges within days, or weeks, of the two-year deadline expiring.

Work underway to implement recommendations

In an emailed statement, the Department of Digital Government and Service N.L. said it requested the review in July 2020. 

The audit was undertaken by the comptroller general's office. The report — containing 11 recommendations — was finished in November 2022.

While the department would not make anyone available for an interview, officials provided CBC News with a copy of its Jan. 29 reply to the auditors.

That response highlighted progress on implementing the recommendations, up to that point.

The department has fully implemented a few of the more straightforward ones — creating a spreadsheet to track the progress of investigations and having more scheduled meetings to review the status of ongoing investigations.

Work on the bulk of the recommendations remains in progress.

Department officials recently told a legislative committee that they received approval to reorganize the OHS division in the wake of the audit.

"There is no increase in the positions. It's zero-based and we've had some long-term vacancies," assistant deputy minister Gail Boland said in the House of Assembly on April 19.

"So we're using that to trade off to create other positions and better utilize our officers so that they can be focused more on these serious investigations and meet the two-year statutory timeline."

According to the January document sent to the comptroller general, that reorganization will include a new investigations unit for serious workplace incidents.

It will be run by a dedicated manager and consist of three dedicated OHS officers and two employees responsible for tracking investigations and stickhandling policies, procedures and training.

According to the department, some additional training on interview techniques and taking witness statements has taken place.

The audit referenced a now 14-year-old draft standard operating procedures manual for investigations and called for an ongoing review and changes to be completed. The department said three new manuals are being updated to reflect recent training.

Officials did not directly answer questions about when the new investigations unit will be up and running. 

It's also not clear when all of the audit's recommendations will be fully implemented.

'Somebody is dragging their heels' 

Ron Thomas said it's important for that to happen quickly.

"That audit came out two years ago, or close to two years ago, and it's still not implemented," said Thomas, staff representative for Newfoundland and Labrador with the United Steelworkers union.

"To me, somebody is dragging their heels, and something has to be done."

He said OHS investigations provide an important deterrence function, and help protect workers.

Thomas recently told CBC News it's otherwise "like having a community with no police."

The union, which represents thousands of workers in Newfoundland and Labrador, has been vocal nationally about workplace safety issues.

"At the end of the day, when anybody goes to work, you want to go home at the end of the day, right? You go to work expecting to go back, give an honest day's work, and be able to be safe and doing your job," Thomas said.

"These occupational health and safety officers go in and monitor the businesses, make sure that it's safe for workers to come home. And when we're short-staffed, how can they do it?"

'A long time to right the ship'

Sean Tucker, professor of occupational health and safety in the University of Regina's faculty of business administration, highlights the deterrence function of investigations into serious workplace incidents — and the need to address the findings of the audit.

"The time that it took — from July 2020 up until today — I mean, that's a long period of time to right the ship," Tucker told CBC News.

Tucker said he's glad work is underway but it's "very unfortunate" the gaps exist, and have persisted for as long as they have.

"I think if I were an injured worker who has had a serious injury, or surviving family member … I'd be angry, I'd be upset, reading this," he said.

"The families and the injured workers themselves, they want to ensure this never happens again to somebody else."

Tucker said he would have expected this work to have been prioritized, and it's unclear why it's taken so long.

"I hope they move quickly, through to the finish line, with implementing the recommendations," he said.

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