Blog Post #74 – David J. Cupido Construction Limited Fined $52,000 For Failing To Protect Workers From Asbestos

Excerpts From the Ontario Government’s ‘Newsroom’

David J. Cupido Construction Limited, a Kingston company, was fined $52,000 on April 16, 2009, for a violation under the Occupational Health and Safety Act (OHSA), after workers were exposed to asbestos.

On May 22, 2007, workers started construction in a building at 1211 John Counter Boulevard in Kingston when material was discovered that contained asbestos.

A Ministry of Labour investigation found that workers were exposed to asbestos and that David J. Cupido Construction Limited failed to take the reasonable precaution of checking for the presence of asbestos in the building before starting work at the site. Under the OHSA, employers must ensure no work is done that may disturb material that may contain asbestos.

David J. Cupido Construction Limited pleaded guilty under the OHSA for failing to take every precaution reasonable in the circumstances for the protection of workers, in this case, failing to check to determine the presence of asbestos before commencing work.

The fine was imposed by Justice of the Peace R. Sculthorpe. In addition to the fine, the court also imposed a 25-per-cent victim fine surcharge on the total, as required by the Provincial Offences Act. The surcharge is credited to a special provincial government fund to assist victims of crime.

My opinion

The law(s) on contravention:

The David Cupido Ltd. Construction company was charged under — section 25, 2(h) of the Ontario Occupational Health and Safety ACT (OHSA) which states,

“The employer shall take every precaution reasonable in the circumstances for the protection of the worker.”

In this case, the company was supposed to be been well versed in the Ontario Regulations 278/05, Designated Substance, Asbestos on construction projects and in buildings and repair operations.
This regulation covers all buildings, all employees engaged in the repair, alteration or maintenance in the project.

The employer shall determine if the operation belongs to the following;

1) Type 1 operation
2) Type 2 operation
3) Type 3 operation

Type 1 operation deals with is usually a small operation of non-friable material and if grinding, sanding, drilling, cutting or vibrating if the asbestos-containing material is;

a) The material is wetted to control the spread of dust or fibres
b) The work is done only by means of non —powered hand-held tools

Type 2 operation deals with friable material in a small scale. Usually this would amount to some of the following;

a) Removal of asbestos material from around pipes, ducts or similar structures using a glove bag
b) Removal of 1 square metre or more of drywall in which joint filling compounds that are asbestos-containing material have been used
c) Breaking, cutting, drilling, abrading, grinding and sanding of non-friable material by means of power tools that are attached to dust-collecting devices equipped with HEPA filters.

Type 3 operations cover all other projects, larger and in need of more protection and regulations. Usually, this would cover some of the following;

a) The removal or disturbance of more than 1 square metre of friable material during the repair, alteration, maintenance or demolition of all or part of a building, aircraft, ship, locomotive or vehicle or any machinery or equipment
b) The spray application of a sealant to friable asbestos-containing material
c) Cleaning or removing air handling equipment including rigid ducting
d) Breaking, cutting, drilling, abrading, grinding, sanding if the work is done by power tools that are NOT attached to dust collectors equipped with HEPA filters

The employer shall determine which of the fibrous silicates referred to in the definitions is involved;

1. Actinolite
2. Amosite
3. Anthophyllite
4. Chrysotile
5. Crocidolite
6. Tremolite

In the event that the constructor does not know which type of operation is in effect, then a Ministry of Labour Inspector can be called in the dispute. Until the inspector makes his/her ruling the operation will immediately cease. The inspector must give his/her decision in writing as soon as possible.

As you can see, there is a large amount of information available on the subject. The contractor needs to be kept up to date with this information prior to beginning the project and have all protective devices and processes in place before any worker is on the job.

Remember — In Ontario, “ALL Accidents are Preventable”

‘Work’ and ‘Play’ safe.

Daniel L. Beal
CHSEP – Foundation Level
VP & Senior Trainer
HRS Group Inc.