The 2008 dramatic and deadly explosion at the Sunrise Propane facility in northwest Toronto has led to convictions against the company and two directors under the Occupational Health and Safety Act
and the Environmental Protection Act
. The Ontario Court of Justice decision was released June 27, 2013.
The court heard expert testimony that an explosive propane vapour cloud was created by a leaking hose connected to a trailer tank parked at the Sunrise site the morning of August 10, 2008. The explosions occurred shortly after a Sunrise employee completed an illegal truck-to-truck transfer of approximately 5,000 US gallons into the trailer tank.
The investigation could not determine the cause of the spark that ignited the vapour. The intense heat from the exploding vapour cloud caused about 13,000 US gallons of liquid propane inside a nearby trailer tank to boil and explode into a fireball. Numerous smaller tanks of boiling propane continued to explode for several hours.
Parminder Saini, the propane cylinder filling attendant, was killed in the incident. Mr. Saini, who was 25 years old, worked Friday and Saturday night shifts at Sunrise while attending Sheridan College during the week. He died from inhalation of flames.
Convictions under EAP and OHSA
Environmental Protection Act (EAP) for failing to follow orders relating to site clean up after the explosions and two charges under the Occupational Health and Safety Act
The conviction under section 25(2)(a) of the OHSA related to a failure to provide adequate instruction, information and supervision to Mr. Saini with respect to propane hazards, safe work practices and emergency response. Sunrise Propane argued the explosion was unforeseeable and therefore the training requirement was not reasonable. However, the court agreed with the crown that the issue was not whether the specific explosion was unforeseeable, but “would a reasonable person have foreseen that having a worker who was only authorized to fill taxis alone at night working at a propane filling station would be dangerous? The answer has to be yes.” The court found Mr. Saini “was not provided with relevant instruction or information” and that there was “no evidence that Mr. Saini was supervised.” This said, there was no evidence that anything Mr. Saini did contributed to the explosion or that the lack of instruction, information and supervision by Sunrise contributed to the explosion.
The conviction under section 25(2)(h) of the OHSA
related to the failure to provide every precaution reasonable under the circumstances when moving two 2,000 US gallon tanks on September 15, 2007 without appropriate regulatory approval from the Technical Standards and Safety Authority (TSSA). Sunshine Propane’s defence was that the failure to obtain regulatory approval was the fault of subcontractors, not the company. However, the court found the company could not contract out its legal responsibilities. There was also no evidence that the failure to obtain regulatory approval for moving the 2,000 US gallon tanks in any way contributed to the explosion.
Charges not Laid
Despite expert testimony that the vapour cloud resulted from a leaking hose, Sunrise Propane was not charged under section 25(1)(b) of the OHSA
for failing to ensure equipment provided by the employer was in good condition. Nor was Sunrise Propane charged for the illegal truck-to-truck transfer, a practice banned since October 31, 2006 by a TSSA director’s order. Expert testimony was given that a leaking hose used in this illegal transfer gave rise to the explosive vapour cloud. Indeed, at trial the crown argued that had Sunrise not been using the illegal procedure “the incident would not have occurred.”
So why weren’t charges relating to the cause of the explosion laid?
The court heard testimony that a TSSA inspector met with Sunrise Propane management on November 9, 2006 to ensure compliance with the new director’s order and that he issued an inspector’s order to comply with the ban on truck-to-truck transfers by November 30, 2006. Sunrise was, at that time, sending a truck and trailer tank with a capacity of up to 19,000 US gallons to Sarnia for filling, and returning it to Toronto Sunrise site. Because the site had only two 2,000 US gallon fixed tanks – not enough to off-load the trailer tank – Sunrise staff would use truck-to-truck transfers to load propane into smaller trailer tanks. These smaller trailer tanks were attached to trucks and delivered to Toronto area bulk customers.
In response to the inspector’s November 9, 2006 order Sunrise management engaged consultants to install a 30,000 fixed tank which would allow Sunrise to eliminate truck-to-truck transfers.
On November 16, 2006 the TSSA inspector met with Sunrise management and their consultants who informed him of their plan to install a new 30,000 US gallon fixed tank. According to testimony of both consultants, the TSSA inspector told them that despite the director’s order truck-to-truck transfers could continue. One consultant testified that at the meeting the TSSA inspector said, “He didn’t want to put anyone out of business and that he was there to help them comply with the code changes and was telling them what they had to do to comply.”
Compliance “Not a Priority”
At a December 20, 2006 meeting between Sunrise management, its consultants and the TSSA inspector, Sunrise showed the inspector a letter from the City of Toronto stating it would permit the 30,000 US gallon tank. According to the consultant’s testimony, the TSSA inspector again suggested Sunrise could continue with truck-to-truck transfers and would discuss the City of Toronto letter with people at TSSA head office. In January 2007, the TSSA inspector told Sunrise’s consultants the TSSA would approve the 30,000 US gallon fixed tank. Invoice evidence suggests the tank was not ordered until June, 2007. During this time truck-to-truck transfers continued.
The 30,000 US gallon tank was delivered to the Sunrise site on September 25, 2007 and inspected by Sunrise’s consultants on October 15, 2007. On October 19, 2007 Sunrise’s consultants wrote a letter to the TSSA, copying the TSSA inspector, declaring the new tank would meet TSSA requirements and also mentioning that “bulk truck loading” would continue. When crown counsel asked the Sunrise consultant if he had told an investigating MOL officer that “bulk truck loading” meant “truck-to-truck transfers,” he said it was possible. The TSSA inspector also testified that, in context of a conversation about the October 31, 2006 director’s order, Sunrise management did tell him that truck-to-truck transfers were on-going and that the inspector placed no compliance order.
In June or July of 2008 work on installing the tanks began. At the time of the explosion on August 10, 2008, the 30,000 US gallon tank had still not been installed. At trial, the crown argued that installing the tank “was not a priority for the defendants.”
Defense of Officially Induced Error
The judge, in his Reasons for Judgement, stated: “I find as a fact [the TSSA inspector] either expressly told the defendants that they could continue to conduct business by doing truck-to-truck transfers or that he implied that they could continue to conduct business in this manner.” In the opinion of the judge, the defence of official induced error with respect to a failure to stop truck-to-truck transfers was available to Sunrise. The availability of this defence may explain the lack of charges for failing to comply with the director’s October 31, 2006 order banning truck-to-truck transfers.
The defence of officially induced error arises when a regulatory official, such as a health and safety inspector, provides erroneous compliance information to someone who relies on it in a belief it will achieve legal compliance. According to the Supreme Court of Canada, the defence prohibits “the state approving conduct with one hand and seeking to bring criminal sanction for that conduct with the other.”
“Compliance Assistance” ???
In 2010 the Expert Panel review of Ontario’s occupational health and safety system recommended “compliance assistance” or “guidance and support” from MOL inspectors instead of enforcement orders in some cases. In light of cases like Sunrise though, any adoption of “compliance assistance” may put the government at risk for prosecutions lost to officially induced error.
An Ontario Federation of Labour policy paper, passed at their 1997 convention states, “The Ministry must devote and dedicate its resources towards high level enforcement activity to enhance this role. This role must not be diluted by advisory and consultative functions directed at facilitating the internal responsibility system. Such mixing of the roles only provides mixed messages about the seriousness of the inspectorate’s enforcement role.”
Ontario health and safety associations, including the Workers Health & Safety Centre (WHSC), were created to offer much needed compliance assistance. The WHSC for instance offers programs in propane handling, storage and use
The Sunrise sentencing hearing is scheduled for December 9, 2013.
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