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Safety topic was emphasized, not “buried in hundreds of power point slides”: employer establishes due diligence, not guilty in workplace fatality

A Saskatchewan employer has been found not guilty of six occupational health and safety charges after a worker died of suffocation when he became engulfed in a grain receiving pit.  The employer’s extensive safety program had emphasized, not buried, the relevant training.

The charges alleged that the employer failed to properly train and instruct the employee regarding safety.

The employer showed that the employee had received computer based training on various topics including confined space safety. He had completed 12 such training modules, 4 of which dealt with the “dangers of engulfment”. At the end of each module, he took a test on which he received a grade of at least 80% which was the pass rate. He also took 5 hands-on training courses including one relating to safe-work permits.

The training materials were replete with references to the dangers of entering a confined space such as a receiving pit. The materials were extensive.  The court rejected the prosecutor’s argument that the confined space training was “buried in dozens of [computer based training modules] in hundreds of power point slides” and therefore would have been “lost” on the worker.  Instead, the court found that the “mass of material emphasized the dangers, and the importance of following safety procedures, rather than burying them.”

Also, there was not a “culture of paying lip service” to safety that would have “detracted” from his safety training.

In this case, the worker was not directed to do anything involving a receiving pit. Instead, he had been given an “innocuous” task which he had also done an hour earlier – to simply take a flashlight and look into the pit to see whether it was empty or there was grain in it.  There was no reason for the employer to think that he would enter the receiving pit. In any event, the employee was properly trained for the work that he was directed to do. The employer had successfully shown due diligence.  All six charges were dismissed.

R v Viterra Inc., 2016 SKQB 269 (CanLII)

Safety topic was emphasized, not “buried in hundreds of power point slides”: employer establishes due diligence, not guilty in workplace fatality

Supervisor’s OHSA conviction upheld on appeal: prosecutor not required to prove what “hazard” caused concrete worker’s death

A supervisor’s Occupational Health and Safety Act conviction of failing to sufficiently and competently supervise work has been upheld on appeal, after a concrete worker died.

The supervisor operated and managed a concrete business.  He was hired to pour a concrete floor in a newly constructed shop.  They used a gas heater to heat the area.  The supervisor became aware that the gas supply hose to the heater produced an electric shock when touched. He warned workers but did not fix the problem.

The worker, who had been trowelling concrete, was later found lying on the floor near the gas heater.  He was later pronounced dead.  The treating doctor observed two red areas on his skin, which were consistent with electrocution.

The prosecutor’s theory at trial was that the worker died from electrocution.  The supervisor suggested that the death was from carbon monoxide poisoning from the gas heater so that the charge, based on electrocution, should be dismissed. Both the trial judge and Court of Appeal disagreed, holding that the contention that the worker died from carbon monoxide poisoning was speculative and not supported by the evidence.

The Court of Appeal further noted that the charge did not specify what “hazard” caused the death, and accordingly the prosecutor did not need to prove the cause.  As such, the supervisor was properly convicted of the “failure to supervise” charge under the OHSA.

R v Farnham, 2016 SKCA 111 (CanLII)

Supervisor’s OHSA conviction upheld on appeal: prosecutor not required to prove what “hazard” caused concrete worker’s death

OHSA conviction, $48,000 fine upheld on appeal: “blocking” of machine required physical block

An Ontario Appeal judge has upheld an employer’s conviction under the Occupational Health and Safety Act for failure to “block” a machine, after the trial justice held that “blocking” required a physical block, not simply shutting off the hydraulic power.

The Ontario Ministry of Labour had charged the company with failing to ensure that a “part of a machine, transmission machinery, device or thing shall be cleaned, oiled, adjusted, repaired or have maintenance work performed on it only when . . . any part that has been stopped and that may subsequently move and endanger a worker has been blocked to prevent its movement”, contrary to section 75(b) of the Industrial Establishments regulation under the OHSA.

A maintenance worker with the company, which operated a sawmill, suffered crushing injuries to his arm as he reached in between the “side heads” of a saw while performing maintenance.  Another employee, not knowing that the maintenance worker had gone into the area between the side heads, had used the control box for the machine to close the side heads.

The machine had been shut down for maintenance and its electrical system had been locked out.  However, the maintenance worker left the hydraulics on, which was required in order to move the side heads for maintenance.

The appeal court held that the trial justice had not erred in deciding that “blocking” required a physical block be used to restrain movement of the side heads.  It was reasonable to interpret “blocking” to require that a physical block, a “large solid piece of hard material” be used.

The conviction was therefore upheld. The appeal judge also held that the $48,000 fine was reasonable, despite the fact that the company had only 25 workers and no previous convictions under the OHSA.

Ontario (Ministry of Labour) v. McKenzie Lumber Inc., 2016 ONCJ 533 (CanLII)

 

OHSA conviction, $48,000 fine upheld on appeal: “blocking” of machine required physical block

“Reputable and responsible” owner / operator guilty of OHSA charge after drill rig collapse at York University

After a dramatic and tragic incident in which a large drill rig fell over at York University, fatally injuring a backhoe operator and badly injuring an excavator operator, the company that owned and operated the rig has been found guilty of an offense under the Occupational Health and Safety Act.

The court described the company as “reputable and responsible”, showing that even safety-oriented companies can be found guilty of OHSA offences if they do not have rigorous processes in place to ensure safety and avoid accidents.

The accident took place in October 2011 on the TTC subway extension project at the university.

The court held that the company had failed to ensure that the soil base under the drill rig was capable of safely supporting the weight of the large drill rig.

The Ministry of Labour called a “world-renowned” engineer, who was an expert in soil conditions, to testify.  He testified that the most likely reason that the drill rig fell over was that the pressure that the drill rig exerted on the ground exceeded the weight-bearing capacity of the ground.

The court further found that there was no evidence that the company took any steps to confirm that the platform on which the drill rig was operated could support the drill rig in accordance with its specifications for stability, and no record of the company confirming that the ground had been prepared sufficiently to support the rig.

The company has not yet been sentenced for the offence, so the fine is not yet known.

Ontario (Ministry of Labour) v. Advanced Construction Techniques Ltd., 2016 ONCJ 482 (CanLII)

“Reputable and responsible” owner / operator guilty of OHSA charge after drill rig collapse at York University

Sidewalk rage? Employee convicted of dangerous driving under Criminal Code after “trying to scare” his boss by driving towards him

An employee has been convicted of dangerous operation of a motor vehicle after he drove towards his boss three times, “trying to scare him”.

The employee worked as a labourer in construction.  His relationship deteriorated with his boss, leading to a physical altercation between them.  After the altercation, the boss was standing on the sidewalk when the employee circled at least once, and perhaps two or three times, and attempted to strike or at least come very close to his boss with his car.  He was driving quickly at a speed that appeared dangerous to other witnesses who observed the incident.

The court found that although the employee was “operating under some stress and confusion”, he was not merely trying to escape his boss.  The employee’s assertion that he had no intention of hitting his boss was not a defence.  In his statement to the police, the employee admitted that when he drove towards his boss, he was trying to scare him.  That admission was enough to show mens rea, the “guilty mind” requirement for a criminal charge.

The court decided that driving on the sidewalk at some speed to try to scare someone was a “marked departure from the standard of care that a reasonable person would observe”.  A reasonable person would have been aware of the risk.  The employee actually admitted at trial that driving on the sidewalk “was a mistake”.

The employee was therefore guilty of the criminal offence of dangerous driving.

R. v. Draid, 2016 BCSC 423 (CanLII)

Sidewalk rage? Employee convicted of dangerous driving under Criminal Code after “trying to scare” his boss by driving towards him

Unauthorized supervisor decided to “solve the problem himself”, caused accident – OHSA charges against company dismissed

An employer has beat occupational health and safety charges laid after its supervisor caused an explosion when he defied instructions and took it upon himself to use a torch to thaw ice that had accumulated in a culvert.

In a production meeting, the supervisor raised the issue of the ice accumulation in a culvert under the plant service road. He said he was worried that water would flow over the road and prevent access to a cooling tower at a power generation plant operated by the employer. The acting production manager told him not to address the problem because it would be a waste of time as the ice would melt on its own, and the road had not washed out in the six years that the production manager had worked there.

The supervisor defied instructions and used a “tiger torch” to try to melt the ice, placing the torch in the culvert. The torch went out and gas accumulated in the culvert. When another worker, directed by the supervisor, went to check on the torch, and tried to light the torch again, there was an explosion. The worker sustained burns to his face, hand, fingers and arm.

The employer was charged with four offences under Saskatchewan’s The Occupational Health and Safety Act including inadequate training.

The court decided that the supervisor and the injured worker had the training necessary in order to avoid the accident. The supervisor had attended a four-day “supervisory essentials” course. The court was satisfied that the company provided the supervisor with “everything he needed to know to prevent the accident”. Also, he had been told not to address the culvert task. Had he been directed to address it, he would have required a work order that would have led to the preparation of a safety and risk hazard form and an application for a hot work permit.  Further, the employer could not reasonably have foreseen the supervisor’s use of the tiger torch or that he would enlist the other worker to assist him.

In conclusion, the court held that the company had taken reasonable care to ensure that the worker and supervisor were properly trained to avoid the accident.   The charges were dismissed.

R v Saskatchewan Power Corporation, 2016 SKPC 2 (CanLII)

Unauthorized supervisor decided to “solve the problem himself”, caused accident – OHSA charges against company dismissed

Delay in OHSA prosecution was not unreasonable: charges not stayed

Even though the case took more than two years to get to trial, an Ontario court has refused to halt a prosecution of a company under the Occupational Health and Safety Act.

Charges were laid against a construction company in January, 2014 after a worker fell nine feet when a ladder slipped. The charges alleged that the company failed to ensure that the ladder was tied down or otherwise secured to prevent slipping.

There were nine court appearances, and a trial was scheduled for January, 2016.  The company, relying on the Canadian Charter of Rights and Freedoms, asked the court to order a stay (similar to a dismissal) of the OHSA charges due to the delay in getting to trial.

The court stated that the “defence was content with the pace of proceedings” and that the company had not provided any evidence that it had suffered “irremediable prejudice” because of the delay.  For instance, there was no evidence that any witness’s recollection had been significantly impaired.  Further, late disclosure of one document had not caused prejudice because the document (disclosed one month before trial) was “of marginal value” as it repeated the Ministry of Labour investigator’s conclusions.  Further, both the defence and the Crown had been responsible for some of the delay in getting to trial.

The court stated that, “A stay is a remedy of last resort. There is a societal interest in having the charges heard on the merits.”  The charges should proceed to trial.

The decision was handed down before the Supreme Court of Canada released its recent, ground-breaking decision on delay in R. v. Jordan, 2016 SCC 27 (CanLII).  It remains to be seen how the new Jordan framework for dealing with delay will be applied in OHSA cases involving corporate defendants.

R. v. Black and McDonald Limited, 2016 ONCJ 345 (CanLII)

Delay in OHSA prosecution was not unreasonable: charges not stayed

Court throws out MOL evidence due to late disclosure, notice in OHSA prosecution

An Ontario judge has thrown out laser scan evidence due to the Ontario Ministry of Labour’s late disclosure and late notice to defence counsel that the MOL intended to present that evidence in court.

A construction company was charged with three counts under the Ontario Occupational Health and Safety Act after a fatal accident involving the collapse of a drill rig that it operated.  The laser scan evidence purported to show the slope of ground where the rig collapsed.

The trial started in July 2014 and a number of witnesses were called by the prosecution.  Before the trial resumed a few months later, the prosecutor told defence counsel that he intended to call a police sergeant as a witness to present and testify about the laser scan. The defence demanded the “raw data” in relation to the laser scan but was told that the sergeant had overwritten it when the laser scanner consolidated the original raw data.

The defence brought an application asking that the charges be stayed (effectively dismissed).  The court held that the late disclosure and late notice to the defence meant that five days of evidence had been called at trial before the defence knew “the full case that it had to meet”.  This was not fair to the company.  Although the prosecution had not acted in bad faith, its decision to change its mind and call the laser scan evidence infringed the company’s right to make a full defence.

The court decided that the proper remedy was to prohibit the MOL from presenting the laser scan evidence.  Given that the MOL’s conduct had not been egregious, and the reliability of the laser scan evidence was not great in any event, it was not appropriate to stay the charges.

Ontario (Ministry of Labour) v. Advanced Construction Techniques Ltd., 2016 ONCJ 392 (CanLII)

Court throws out MOL evidence due to late disclosure, notice in OHSA prosecution

Ontario man fined $6,000 for illegal use of “professional engineer” title when seeking job

An Ontario man has been found guilty of three counts of violating the Professional Engineers Act by using the protected title, “P.Eng.” in a resume and in communications with a construction firm at which he was seeking employment.

The construction firm had asked for confirmation of the man’s P.Eng. status on several occasions, and then called Professional Engineers Ontario which confirmed that he had never been a licenced professional engineer in Ontario.

The man was fined $2,000.00 on each of the three charges, for a total of $6,000.00.

Employers often retain professional engineers for safety-related advice, such as whether a machine is properly guarded.  Employers should take steps to confirm that the person holds a “P.Eng.” and a “Certificate of Authorization” that authorizes individuals and companies to carry on business offering and providing professional engineering services to the public.   The PEO maintains searchable online directories.

Professional Engineers Ontario’s press release can be found here.

Ontario man fined $6,000 for illegal use of “professional engineer” title when seeking job

Vague OHSA charges must be clarified: court orders prosecutor to provide particulars of charge

A judge has ordered a prosecutor to provide “particulars” of a vague charge under the Nova Scotia Occupational Health and Safety Act, so the constructor could understand the charge against it.

The constructor was charged with four OHSA offences following an accident in which an employee was severely injured on a construction site after he activated power to a swing stage (suspended platform) and a metal outrigger fell on him.  The constructor argued that two of the four charges were vague, so that it needed more particulars (details) of those charges in order to defend against them.

The judge referred to the two charges as “general duty” offenses.  The first charge alleged that the constructor had failed to “take every reasonable precaution to ensure the health and safety of a person at a workplace”.  The second charge alleged that the constructor failed “to ensure communication between employers and self-employed persons at a project of information necessary to the health and safety of persons at the project.”  The judge noted that the charges “track[ed] the language of the legislation”.

The judge concluded that the constructor did not risk “being broad-sided by an infinite range of allegations” on the first charge.  The disclosure from the prosecutor indicated that the prosecution would assert that the constructor should not have disassembled the swing stage in the first place, and that having done so, the constructor should have taken precautions to ensure that no employee was hurt as a result.  As such, the constructor knew what the charge was about, and was not entitled to particulars of the first charge.

With respect to the second charge, the judge decided that the disclosure did not provide a “specific enough characterization of the communications that the prosecutor is alleging” the constructor was responsible for making.  Particulars would clarify to whom the prosecutor says the constructor should have communicated and how and what it should have communicated.  As such, the prosecutor was ordered to provide particulars for the second charge.

R. v. McCarthy’s Roofing Limited, 2016 NSPC 21 (CanLII)

Vague OHSA charges must be clarified: court orders prosecutor to provide particulars of charge

$250,000 fine against school board may be largest-ever against not-for-profit organization in Ontario

A school board has been handed a $250,000 fine under the Ontario Occupational Health and Safety Act after the death of maintenance worker.

The maintenance worker had been assigned the task of replacing a safety cage on a ceiling light in a high school gymnasium.  He was working alone.  While he was rolling a portable aerial device (a type of lifting device) down a ramp off a trailer, the aerial device tipped over and struck the worker, fatally injuring him.

The angle of the ramp was about eight degrees, while the manual for the aerial device stated that it should not be rolled down an incline greater than five degrees.

The school board pleaded guilty to the OHSA charge of failing as an employer to take every precaution reasonable in the circumstances for the protection of a worker.  In particular, the school board failed to ensure that the angle of the ramp was five degrees or less; that the aerial device was rolled down the ramp with its mast on the upper or high end of the ramp to lessen the possibility of it tipping; and that there was another worker present to assist.

The court imposed the fine of $250,000 plus the 25% Victim Fine Surcharge, for a total of $312,250.  This appears to be the largest fine ever in Ontario under the OHSA against a not-for-profit or charitable organization.  The case shows that charities and not-for-profits are not immune from charges and fines under occupational health and safety legislation.

The Ontario Ministry of Labour’s Court Bulletin may be found here.

$250,000 fine against school board may be largest-ever against not-for-profit organization in Ontario

“The larger the corporation, the larger the fine”: A corporate defendant’s financial circumstances is a relevant sentencing factor for breaches of a regulatory scheme

A small, family owned and operated custom cabinet business was fined $75,000 plus the Victim Fine Surcharge of $11,250 after pleading guilty to failing to ensure, as far as reasonably practicable, the health and safety of a worker. The charges stemmed from a workplace incident in which a worker had slipped and caught his hand on a piece of machinery. The machine’s pressure sensitive mat safeguard that would have shut down the machine had been bypassed. It had been damaged approximately 3 years earlier but the employer chose not to replace it.

The impact with the machine caused the worker’s flesh to be peeled back and he also sustained a broken wrist. The injured worker had been trained to operate the machine and was aware of its safety features, including the fact that the safety mat was not operational.

The Court noted that the primary function of sentencing for regulatory breaches was deterrence; however, sentencing was still an individualized process requiring that all factors be considered, not just deterrence. The relevant factors included the financial circumstances of the corporate defendant. In the Judge’s view, the larger the corporation, the larger the fine. Conversely, when sentencing smaller corporations with more restrictive financial viability, the Court should apply a sentence that reflects that situation while still deterring offenders in similar circumstances from committing similar offences.

The other factors considered by the Court in its sentencing decision were:

  • The employer had no previous safety related offences;
  • The employer properly trained its employees and had regular safety training sessions;
  • The employer pled guilty, was remorseful and cooperative;
  • The employer recognized that it was accountable and an officer had been present in court during the proceedings;
  • The injuries sustained were at the lower end of the severity continuum;
  • Although a fine of up to $100,000 (as suggested by the Crown) would not devastate the employer, it would certainly impose a severe sting on the employer; and
  • While the employer was negligent in not repairing the safety mat, its conduct did not constitute gross negligence.

In light of these factors, the Court considered the Crown’s suggested amount of $100,000 to be too high. The Court determined that a fine of $75,000 was appropriate as that was a substantial and significant amount that would not be viewed as a slap on the wrist. It would be clearly felt by the employer and would serve as a warning for other similar offenders in similar circumstances.

R. v. The Kitchen Centre Ltd., 2016 ABPC 12

“The larger the corporation, the larger the fine”: A corporate defendant’s financial circumstances is a relevant sentencing factor for breaches of a regulatory scheme

Electrical contractor fined $537,500 after death of resident from faulty electrical work

An electrical contractor has been hit with a huge fine after its faulty electrical work led to a resident’s death.

The contractor had installed an in-floor heating system in the bathroom of a home.  The resident, an elderly man, fell on the floor in the bathroom and suffered second- and third-degree burns from the overheated floor.  He died in hospital.  The Electrical Safety Authority (Ontario) determined that the floor’s heat system sensor had not been installed, and the heating system was wired to an incorrect voltage level.

The electrical contractor pleaded guilty to three charges of violating the Ontario Electrical Safety Code: leaving an unsafe electrical condition; failure to procure connection authorization before use; and failure to apply for an electrical inspection.  According to the Electrical  Safety Authority, the fine was “the largest fine in the history of electrical contractor licencing in Ontario.”

The charges were not under the Occupational Health and Safety Act because they dealt with a hazard to the resident, not a worker.  The charges, and the fine, show that serious liability can result from multiple pieces of regulatory legislation when safety is neglected.

The Electrical Safety Authority’s press release may be found here.

Electrical contractor fined $537,500 after death of resident from faulty electrical work

Ontario MOL now posting “de-identified” information on fatalities online, even before OHSA charges laid

Ontario workplace fatalities could now result in a “de-identified” posting on the Ministry of Labour’s website, even before Occupational Health and Safety Act charges are laid.

The postings provide a brief description of the incident, and then list occupational health and safety “Resources” in relation to the incident.  Employers could view the “resources” as pointing to the types of OHSA charges that the Ministry might lay.  The Ministry, possibly having considered that point, states, “Please note that at the time this information is published on this page, the Ministry has not made any final determinations with respect to the fatality.  The postings are developed with the intention of safeguarding the privacy of individuals involved and the integrity of MOL investigation [sic] and any possible legal proceedings.” [bolding is the MOL’s]

An example of a recent posting is as follows:


 

Date of Incident: February 2016
Location: Central Ontario
Posted: February 24, 2016

Individual was struck by mobile equipment at industrial site. Individual later succumbed to injuries.

Resources:

Material Handling

Guideline for the Safe Operation and Maintenance of Powered Lift Trucks

Heavy Equipment

Struck-By Hazards


 

The Ministry of Labour’s “Workplace fatalities” page can be found here.

 

Ontario MOL now posting “de-identified” information on fatalities online, even before OHSA charges laid

No contempt in the face of the “voluminous” British Columbia Occupational Health and Safety Regulation

In the wake of some recent high-profile workplace accidents, 2015 legislative amendments to the Workers Compensation Act were designed to give WorkSafeBC more tools to enforce its mandate.  Among other things, WorkSafeBC can now apply to the Court for an injunction restraining an employer from operating in an industry where it has contravened the Occupational Health and Safety Regulation and where it is likely to continue doing so.  This, and other orders, are generally enforced by way of contempt proceedings.

However, a recent decision of the British Columbia Supreme Court demonstrates that where WorkSafeBC seeks the assistance of the courts, a finding  that parties are in contempt will not necessarily follow.  In late February 2016, the British Columbia Supreme Court declined to find two principals of organizations engaged in asbestos abatement, which had been the subject of as many as 244 orders by WorkSafeBC, in contempt of a 2012 order that they comply with the entire Act and Regulation.

Although written reasons for the decision have not yet been provided, Mr. Justice Macintosh’s decision appears to turn on an assessment that the 2012 order to comply with the entire legislation and associated regulations was too broad, and, in particular, that the Regulation was too “voluminous”.  This decision has many stakeholders in the province wondering about its broader implications, and WorkSafeBC has already indicated that it will appeal once written reasons are released.  According to WorkSafeBC, the basis for its appeal will be that it requires clarity from the Court of Appeal as to whether the size and complexity of a regulation can be a defence to a contempt application.

The history to this case is lengthy, and WorkSafeBC has alleged that the employer has repeatedly violated the Act and Regulations, putting individuals at risk of asbestos exposure.  By 2012, WorkSafeBC sought the assistance of the B.C. Supreme Court and sought an order that the organizations and their principals comply with the entire Act and Regulations.  The order was granted, and in the months following, the principals and some of their companies claimed against WorkSafeBC and others in Provincial Court, Superior Court, and at the British Columbia Human Rights Tribunal, alleging, among other things, that WorkSafeBC and certain employees unfairly targeted the principals because of their race, colour, ancestry and place of origin.  And further, that WorkSafeBC and others unduly interfered with the business due to the imposition of a mentoring program, and engaged in malfeasance in public office, discrimination contrary to the Civil Rights Protection Act, slander and defamation, and intentional interference with contractual relations.  The complaint under the Human Rights Code has since been dismissed by the British Columbia Human Rights Tribunal.

By late 2013, WorkSafeBC was back at Supreme Court seeking an order that the principals were in contempt of the 2012 order, which was granted in part.  However, further attempts to address alleged non-compliance with the Act and Regulations appear to have been stymied by the February 2016 decision, and the reasons for this most recent decision in the ongoing dispute, and WorkSafeBC’ s expected appeal, are therefore highly anticipated.

WorkSafeBC’ s comments on the decision can be found here: http://www.worksafebc.com/news_room/news_releases/2016/new_16_03_16.asp?_ga=1.237658628.562962873.1448414730 and here: http://www.worksafebc.com/news_room/news_releases/2016/new_16_03_02.asp

The author thanks Amelie Boultbee, articling student with Dentons in Vancouver, for her assistance with this article.

No contempt in the face of the “voluminous” British Columbia Occupational Health and Safety Regulation

Death of visitor leads to employer’s conviction, $100,000 fine under OHSA

This case is a reminder that injuries to non-employees can lead to Occupational Health and Safety Act convictions and fines against employers.

A visitor to a self-storage facility in North Bay fell through an open hole in the floor of a storage unit, after he came to the facility to examine a truck that was being stored there.  He fell about 6 feet to the concrete floor below and died.

The company that operated the self-storage facility pleaded guilty to the OHSA offence of failing as an employer to take every precaution reasonable in the circumstances for the protection of a worker (failing to ensure that an open hole in the floor of a storage unit was protected by a guardrail or floor covering).

The Ministry of Labour notes, in its Court Bulletin, that the OHSA applies “because there were workers at the site who were exposed to the same hazard and the company is an ’employer'” under the OHSA.  That is, even where the injured employee is not a worker / employee, if the injury resulted from a hazard to which workers were also exposed, the OHSA applies and the employer may be charged and fined.

Death of visitor leads to employer’s conviction, $100,000 fine under OHSA

Criminal negligence causing death charge against auto mechanic reinstated by appeal court

A charge of criminal negligence causing death against an auto mechanic may proceed, the Ontario Court of Appeal has decided, holding that it was possible that a reasonable jury could find that the mechanic was a “significant contributing cause” of a woman’s death.

The case illustrates that workers – perhaps particularly those who repair or operate vehicles or equipment – could face criminal charges if they are negligent and the negligence causes injury or death.

The mechanic issued a Safety Standards Certificate to the purchaser of a 17-year-old pickup truck.  The Safety Standards Certificate was required to complete the transfer of ownership.  There was evidence that the mechanic did not conduct the legally-required inspection of the truck.  A month later, the truck was involved in an accident in which the driver lost control and collided with an oncoming vehicle driven by the young woman, who died as a result of the accident.

There was evidence at a preliminary inquiry that the truck would not have passed a safety inspection and that there was a serious defect in the truck’s steering mechanism (“excessive free play” in the steering wheel).  The appeal court noted that an O.P.P. accident reconstructionist concluded that the steering defect pre-dated the collision and would cause the driver to over-correct in a panic situation, leading to a loss of control and further over-steering. Also, there was evidence that the truck “fishtailed” before the collision; the previous owner had testified that the steering wheel wandered” and had “a little bit of play”; there was testimony that the purchaser of the truck was planning on installing a new steering shaft; and there was testimony that both the driver and the purchaser thought to blame the accident on the steering shortly after the accident.

The Ontario Court of Appeal therefore concluded that a reasonable jury could find that the mechanic was a significant contributing factor to the death and that the mechanic was therefore guilty of criminal negligence causing death. Therefore, the charge of criminal negligence causing death should proceed to a trial.

R. v. Ramono, 2015 ONCA 685 (CanLII)

Criminal negligence causing death charge against auto mechanic reinstated by appeal court

A first for Alberta – Employer sentenced to corporate probation and community service for violating the Occupational Health and Safety Act

In a unique decision, an Alberta employer, Needoba Construction Ltd., which pleaded guilty to the general charge of failing to ensure, as far as it is reasonably practicable to do so, the health and safety of a worker, has received a sentence which includes 18 months of corporate probation and 200 hours of community service. The employer was also sentenced to a fine of $11,150 including the victim fine surcharge.

The decision stems from a 2012 incident where a worker fell over 6.5 metres through an uncovered stairwell opening at a residential construction site. The worker sustained paralytic injuries. The employer did not have a fall protection plan in place at the work site. The employer was initially charged with 4 counts under the Occupational Health and Safety Act (Alberta) but after it entered a guilty plea on the general charge, the remaining counts were dropped.

A corporate representative will be completing the community service time with a non-profit organization called Hearts and Hammers which renovates homes for people in need with mobility challenges.

While the Occupational Health and Safety Act (Alberta) gives the court fairly broad discretion and powers to make other orders in addition to, or as an alternative to, fines or imprisonment, this is the first time that community service has been ordered against an employer for an occupational health and safety violation.

The Alberta Government news release

A first for Alberta – Employer sentenced to corporate probation and community service for violating the Occupational Health and Safety Act

$5.3 million fine in Sunrise Propane case after joint prosecution under OHSA and EPA

Some cases illustrate very well the principle that “the more dangerous your operation, the more careful you must be”.  This case, involving a joint prosecution by the Ministry of Labour and Ministry of Environment, is one of them.

Sunrise Propane Energy Group Inc. and its directors have been fined a total of $5.3 million under both the Occupational Health and Safety Act and the Environmental Protection Act, following high-profile explosions at a propane-filling plant in Toronto more than seven years ago.

A young worker with short service was killed by the explosions.  Propane was accidentally ignited during a prohibited truck-to-truck transfer.  The explosions also discharged contaminants from fuel tanks, resulting in an evacuation in the area. Some area residents suffered injuries and burns and local businesses lost business as they were forced to close.

Sunrise Propane was fined $280,000 plus a victim fine surcharge of $70,000 for failing to train and supervise workers on safe work practices and failing to take every reasonable precaution to protect workers, contrary to the Occupational Health and Safety Act.  OHSA charges are prosecuted by the Ministry of Labour.

In a previous post, we noted that the court, in its 2013 decision convicting the company and directors in 2013, held that the young worker had not been properly supervised.  The employer did not take the simple step of giving the employee a phone number to call if he had any questions.  Nor did any supervisors call him to check in on him.  The employee should not have been put in charge of the propane yard on the night in question, given his lack of experience.

Referring to the dangerous nature of this workplace, the court had stated in its 2013 decision:

“I am sure that the defendants were well meaning, to a degree, but in an inherently dangerous business such as this there must be a high degree of attention to detail and processes in place that address day-to-day issues, particularly instructing, training and supervision for people handling this very dangerous fuel.  People make mistakes and processes assist in mitigating any damage that arises when employees make those mistakes.”

Sunrise Propane was also fined $2,820,000 plus a victim fine surcharge of $705,000 for failing to comply with a cleanup order from the Ministry of the Environment and Climate Change after the explosions, and for discharging a contaminant that caused adverse effects.  Two company directors were fined $100,000 each plus a victim fine surcharge of $25,000 each for not complying with an order.  A related company was fined $2 million plus a victim fine surcharge of $500,000 for the discharge of the contaminant that caused adverse effects.  EPA charges are prosecuted by the Ministry of the Environment and Climate Change.

The press release from the Ministry of Labour may be found here, and the press release from the Ministry of the Environment and Climate Change may be found here.

$5.3 million fine in Sunrise Propane case after joint prosecution under OHSA and EPA

Ontario OHSA convictions, fines inch up in 2014/15, MOL field visits at 11-year low

While the number of field visits conducted by Ontario Ministry of Labour inspectors continued to decline in 2014/15, the number of convictions increased slightly, the Ontario Ministry of Labour’s “Occupational Health & Safety in Ontario 2014-15 Annual Report” shows.

An MOL inspector conducts a “field visit” when he or she visits a workplace and meets with the workplace parties in order to enforce the Occupational Health and Safety Act.

There were a total of 70,604 field visits by MOL inspectors in 2014/15, down from 73,204 in 2013/14 – and down 30% from the 101,275 field visits recorded for 2007/08, which appears to have been the highest number ever.

There were 817 convictions in 2014/15 for offences under the Ontario OHSA, up slightly from 780 in 2013/14.  Convictions result from successful prosecutions by the MOL – either after a trial or a guilty plea.  As we discussed in a previous blog post, the number of convictions has been declining in recent years and reached a six-year low in 2013/14.  We will need to wait to see whether the uptick is part of a new trend towards more convictions.

The number of “critical injuries” reported to the MOL in 2014 was 1,095, which is down slightly from the previous year, but has not declined significantly in the last few years.  There were 81 “traumatic fatalities” in 2014, down from 102 in 2013, but close to the ten-year average of 88.

The total amount of fines for OHSA convictions increased slightly in 2014/15.  The average fine per conviction in 2014/15 was $11,463.73, which is actually slightly down from $11,932.00 in 2013/14. The average fine has held relatively steady over the past few years.

Ontario OHSA convictions, fines inch up in 2014/15, MOL field visits at 11-year low