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“Flagrant disregard” of OHSA, failure to report, gets construction company convicted on 5 OHSA charges

A construction company that tried to blame a worker’s fall on his untied boots, has been found guilty of all 5 charges against it under Saskatchewan’s The Occupational Health and Safety Act.

The 18-year-old worker, who had been on the job for 6 or 7 hours, fell at least 20 feet and broke his wrist and 2 vertebra.  He had been working on roof trusses that were 20 to 25 feet off the ground. He had not received any training and there was no fall protection equipment provided.

The contruction company argued that the worker was not its employee but rather was an independent contractor. The court rejected that argument, finding that the worker was under the direction of the owner’s son; had no independent control of his employment; his wages were set by the company’s owner; no one ever suggested to him that he was a self-employed contractor; and he considered himself to be an employee.

The contruction company failed to report the accident to Saskatchewan Occupational Health and Safety. A representative of Saskatchewan Occupational Health and Safety testified that they had received notice from Worker’s Compensation, not the company.  As such, the court convicted the company of failing to report to Saskatchewan Occupational Health and Safety where a worker is required to be admitted to a hospital as an inpatient for a period of 72 hours.

The court also convicted the employer of failing to train; not providing fall protection equipment; failing to provide competent supervision (which was clear because the company violated basic requirements under the OHSA); and failing to ensure that the worker wore approved industrial protective headgear.

The owner of the company argued that the injured worker caused the accident as his boots were not tied.  The court noted that that was irrelevant as the employer had a duty to supervise and ensure proper safety procedures on the work site were followed.  It is generally not prudent to attempt to blame the injured worker for a relatively minor transgression when the company committed serious safety violations.

As such, the court found the company guilty on all 5 charges under The Occupational Health and Safety Act.

R. v Fred Thue Construction Ltd., 2014 SKPC 168 (CanLII)

“Flagrant disregard” of OHSA, failure to report, gets construction company convicted on 5 OHSA charges

OHSA charges were adequately particularized, court finds: disclosure showed violations Crown intended to prove

A judge has rejected an employer’s argument that Occupational Health and Safety Act charges against it were unclear and that the Crown was required to provide further “particulars” of the charges so the employer could defend itself after an employee was electrocuted.

“Particulars” are details, provided in addition to the charges themselves, that help the defendant understand what it is accused of doing or failing to do.

There were two charges against the employer, a company that provided commercial and residential electrical services: (1) a failure to provide adequate training, and (2) a failure to ensure that an electrical installation was serviced, repaired or dismantled in accordance with the latest version of CSA standard, “CSA C22.1, ‘Canadian Electrical Code Part 1′, Safety Standard for Electrical Installations”.

The company argued that it required particulars of the 2 charges so that it could know what it “did or did not do that it should have done” to prevent the employee’s death.

The court noted that the effect of ordering that the Crown provide further particulars is that the Crown must prove the offence, as particularized, beyond a reasonable doubt.

The court ultimately decided that the disclosure provided to the employer indicated what witnesses are expected to say happened. The disclosure suggested that the Crown would seek to prove that the company had no supervisors on site with the worker. The disclosure included an expert’s report that concluded that the electrical work being done by the worker was not being performed in a safe manner as set out in the CSA standard.

The court decided that an order for particulars was unnecessary and would unreasonably restrict the Crown’s case.  Further, the judge said, “I fail to see how Longard does not know the case it is facing”.

R. v. R.D. Longard Services Ltd., 2014 NSPC 100 (CanLII)

OHSA charges were adequately particularized, court finds: disclosure showed violations Crown intended to prove

Having an active joint health and safety committee can help employers defend against OHSA charges, court decision suggests

An Ontario court has dismissed charges under the Occupational Health and Safety Act after two incidents which the joint health and safety committee did not identify as posing a “high priority” safety concern.

The charges arose from two incidents on an assembly line at Magna Seating Inc. in which workers were struck by a partly-manufactured vehicle seat that had fallen forward from an upright position, “which is not unlike when someone releases the lever on a seat in an automobile and the seat falls forward due to the tension of the seat’s springs.”

The two charges were: failing to ensure that things were transported so that they would not tip, collapse or fall; and failing to ensure that a machine (the conveyor that transported the seats) was guarded.

The court noted that almost two million seats had been built on the assembly line with only two documented occasions in which a seat had fallen forward. In one incident, a worker’s lip had been cut; she required only a Band-Aid.  In the second incident, the seat had struck a worker in the chest; she was taken to the hospital but was released two hours later with a prescription for painkillers.

The Justice of the Peace noted that  the Joint Health and Safety Committee, comprised of management and workers, were aware of the two incidents but had not considered the seat falling forward issue to be of high priority; also, the possibility of guarding being implemented was still being investigated by the joint health and safety committee.

Ultimately, the charges were dismissed because the Justice of the Peace decided that the conveyor was not a “machine” within the meaning of that term in the regulation, and Magna had taken all reasonable care to ensure that workers were not injured from seats falling forward.

The case shows that having a well-functioning and active joint health and safety committee can actually help an employer defend against Occupational Health and Safety Act charges. If the committee was aware of and considered a safety issue and determined there was no – or a minimal – hazard, that is evidence that can assist an employer to show that it acted with due diligence.

Ontario (Ministry of Labour) v. Magna Seating Inc., 2015 ONCJ 7 (CanLII)

Having an active joint health and safety committee can help employers defend against OHSA charges, court decision suggests

OHSA charges dismissed: not appropriate for MOL to charge under “general duty” clause where specific regulation addressed safety issue

In dismissing Occupational Health and Safety Act charges against an employer arising out of a fatality, an Ontario court has held that it is not appropriate for the Ministry of Labour to charge under the “general duty clause” found in s. 25(2)(h) of the OHSA to “extend requirements beyond those specifically outlined in” the regulations under the OHSA.

In the case at hand, a worker had been welding a large steel product, approximately 6.5 feet off the ground, standing on planks atop A-frame steps.  He fell to his death.

The MOL charged the employer under section 25(2)(h), often called the “general duty clause”. That section requires employers to “take every precaution reasonable in the circumstances for the protection of a worker”. The charge alleged that the employer “failed to take the reasonable precaution of installing guardrails at the open sides of a raised wood platform”. A second charge alleged that the employer failed to properly train the worker regarding working on a raised platform.

The employer successfully argued that the Industrial Regulations under the OHSA specifically dealt with guardrails and did not require a guardrail around the planks on which the worker was working. Section 13 of that Regulation, which was in the “Premises” section of the Regulation, required a guardrail around the perimeter of an uncovered opening in a floor, roof or other surface, and at the open side of a raised floor or other surface. The Justice of the Peace decided, however, that section 13 dealt only with “fixtures” – that is, surfaces such as a walkway that were attached to the premises.  It did not require a guardrail around the planks on which the worker was working atop two portable A-frame steps.

The Justice of the Peace held that it was not appropriate to attempt to use the general duty clause in s. 25(2)(h) of the OHSA to impose a stricter requirement than was found in the Regulation. Put another way, a guardrail could not be a “reasonable precaution” where the Regulation section that dealt with guardrails did not require one.

The Justice of the Peace also dismissed the training charge, holding that because a guardrail was not required, there was “no gap” in the training provided to the worker with respect to working on a raised platform.

Ontario (Ministry of Labour) v. Quinton Steel (Wellington) Limited, 2014 ONCJ 713 (CanLII)

OHSA charges dismissed: not appropriate for MOL to charge under “general duty” clause where specific regulation addressed safety issue

Supervisor fined after workers exposed to asbestos dust

A supervisor with an asbestos abatement company, and his employer, have pleaded guilty to charges under the Occupational Health and Safety Act and were fined, after workers were exposed to asbestos dust on a job site.

The supervisor was fined $4,000.00 after pleading guilty to failing to ensure workers used protective clothing and equipment.

Three workers were working on an asbestos abatement project at a single-family home. The abatement area was enclosed.  In that area, certain asbestos containing materials had been removed and there was an asbestos dust hazard present.

A Ministry of Labour inspector attended and conducted an inspection.  The inspector found one of the workers exiting the enclosed area wearing street clothing.  Two other workers were found inside the enclosed area not wearing protective clothing; one was performing clean-up and the other was securing bags filled with asbestos-containing material.

The Ministry of Labour, in its press release, states that “There is potential for harm when workers and others are exposed to even small amounts of asbestos.”

The company pleaded guilty to failing to ensure that only persons wearing protective clothing and equipment enter a work area where there is an asbestos dust hazard. The company was fined $25,000.00.

The Ministry of Labour generally does not put out a press release for cases involving a fine of less than $50,000.00.  It appears from this and other press releases in asbestos cases, though, that the MOL may make an exception for cases involving asbestos.

The Ministry of Labour’s press release may be read here.

 

Supervisor fined after workers exposed to asbestos dust

Two company directors jailed 25 days after worker dies, no safety training provided

Rarely are senior corporate officials jailed for health and safety offences in Canada.  But recently, two company directors of an importer and retailer of furniture and accessories, were jailed for 25 days after a worker died from a fall.

The Ontario Ministry of Labour says, in its press release, that the worker was moving merchandise at the Brampton workplace of New Mex Canada Inc., using a combination forklift /operator-up platform called an order picker. The order picker had been modified to add a platform supported by the forks that was tack-welded to the operator platform. There was no guardrail around the added platform. The worker was not wearing fall protection.  The worker was pronounced dead after he was found on the floor.  The cause of death was  determined to be blunt force trauma to the head.

The Ministry of Labour states that its investigation found that there had been no health and safety training provided to warehouse workers, and workers said that they were not provided with fall protection equipment.

The two corporate directors were charged with failing as directors of New Mex Canada Inc. to take reasonable care that the corporation complied with the Occupational Health and Safety Act and with Regulation 851 (Industrial Establishments). Both pleaded guilty.   Both received a 25-day jail sentence, to be served on weekends.  Also, both were ordered to take a health and safety course within 60 days.

Further, the employer, New Mex Canada Inc. was fined $250,000.  It pleaded guilty to failing to provide training and supervision to a worker regarding fall protection and/or working from a height, and failing to ensure the safety measures required by law were carried out.

The Ministry of Labour’s press release can be found here.

Two company directors jailed 25 days after worker dies, no safety training provided

Total fines now $1.24 million in Christmas Eve fatalities after swing stage company and director fined

The total of safety fines paid for the December 24, 2009 swing stage collapse fatalities is now $1,240,000 after Swing N Scaff Inc., the company that supplied the swing stage platform (a suspended work platform), was fined $350,000.00 and a director of Swing N Scaff was fined $50,000.00 under the Ontario Occupational Health and Safety Act.

Four parties have now been convicted and fined as a result of this tragic accident: Metron Construction Corporation, a director of Metron, Swing N Scaff and a director of Swing N Scaff.

The Ministry of Labour states, in its press release, that at least six workers were on the swing stage suspended 13 floors above the ground when it broke apart in the middle and collapsed.  Ministry of Labour investigators found that the welds on the platform were inadequate.  Tragically, four workers died.

Swing N Scaff pleaded guilty to the Occupational Health and Safety Act offence of failing to ensure that a suspended platform and/or a component supplied to Metron Construction was in good condition.

The director of Swing N Scaff pleaded guilty to failing to take all reasonable care to ensure a suspended platform was in good condition and that a platform weighing more than 525 kilograms was designed by a professional engineer in accordance with good engineering practice.

Previously, Metron Construction was fined $750,000.00 for criminal negligence under the “Bill C-45″ amendments to the Criminal Code; that amount was increased on appeal from the $200,000.00 fine set by the trial justice.  Metron’s Criminal Code liability resulted from the actions of its site supervisor, who Metron admitted was a “senior officer” of Metron, so that his actions were taken to be the actions of Metron.  The site supervisor had directed and/or permitted six workers to work on the swing stage when he knew or should have known that it was unsafe to do so; directed and/or permitted the six workers to board the swing stage knowing that only two lifelines were available; and permitted persons under the influence of drugs to work on the project.

A director of Metron Construction was previously fined $90,000.00 under the Occupational Health and Safety Act for failing to ensure that non-English speaking workers received written material in their native languages and failing to ensure that training records were maintained; failing to ensure that the swing stage was not defective or hazardous (by allowing it to be used without having received any of the required information with respect to its capacity and use); and failing to ensure that the swing stage was not loaded in excess of the load that the platform was designed and constructed to bear.

The Ministry of Labour’s press release on the Swing N Scaff fine may be read here.

Total fines now $1.24 million in Christmas Eve fatalities after swing stage company and director fined

Ontario Ministry of Labour Inspector Charged with Extortion

According to a Toronto Police news release, on October 21, 2014, a Ministry of Labour Inspector was arrested and charged with breach of trust, accepting a benefit from a person having dealings with government, and extortion, after he allegedly requested money from the owner of a business after a safety audit revealed the business did not comply with certain provincial standards.

Toronto Police state that the investigation began on June 25, 2014 when they received a call for a Fraud in the Markham Road and McNicoll Avenue area. The owner of the business alleged that a Ministry of Labour inspector conducted a safety audit and found a number of items that were not in compliance with provincial standards. The inspector left the owners to fix the issues; however, it is alleged that he returned to the business and made an improper request for money from the owner.

Joseph Ah-Hone, 55, is scheduled to appear in court on December 4, 2014.

By way of the Toronto Police news release, the Ontario Ministry of Labour reminded the public that inspectors are trained in legislation, policy and procedures and technical requirements, and adhere to a code of professionalism. As public servants, inspectors are forbidden from accepting money or commissions for any of their services.  Police say there may be other victims.

Click here to read the Toronto Police news release.

Ontario Ministry of Labour Inspector Charged with Extortion

No OHSA Charges Laid in Death of Alberta Youth Home Worker

A 19-year-old has pleaded guilty to second-degree murder after he stabbed to death a youth worker at a supported independent living facility in Alberta in 2012.  At the time of her death, the worker was working alone overnight.  The boy was a resident of the home, which taught life skills to teens.

The Canadian Press reports that although Alberta Occupational Health and Safety investigated the death and provided the results of its investigation to the Crown, the Crown did not pursue any charges under the Occupational Health and Safety Act (see Teen who stabbed Alberta youth home worker pleads guilty to second degree murder).

According to the Edmonton Journal, the worker’s family has launched a lawsuit against the Government of Alberta in which they allege that her employer “failed to meet the standards of the Occupational Health and Safety Act and ‘intentionally, recklessly and negligently’ failed to make sure” that the worker was safe at work (see Family of slain Camrose caregiver sues Alberta government).

No OHSA Charges Laid in Death of Alberta Youth Home Worker

Ontario OHSA convictions at six-year low in 2013/14, average fine relatively steady

The number of Ontario Occupational Health and Safety Act convictions was at a six-year low in the government’s fiscal 2013/14 year, Ontario Ministry of Labour statistics show.

There were 780 convictions in 2013/14, compared to the previous five years’ conviction numbers of 814 (in 2012/13), 903, 948, 1,164 and 1,303 (in 2008/09), a consistent downward trend over that six-year period.

The average fine per conviction in fiscal 2013/14 was $11,932, compared with $13,139, $10,821, $11,911, $11,091 and $10,849 over the previous five-year period.  Interestingly, this shows that the average fine has remained relatively steady over that period.

The MOL notes that more than one conviction may be related to a single incident.  For instance, one workplace accident on a construction site could result in two convictions against the constructor, three against a subcontractor and one against a supervisor.

Our extensive 2012 study of Occupational Health and Safety Act prosecutions and fines showed that 68% of companies charged with OHSA offences plead guilty, and fines negotiated with the MOL tend to be much higher than those set by the court after hearing submissions from the MOL and the defendant.

Note that the Ministry of Labour statistics include Part I contested tickets, Part I summonses and Part III prosecutions.  Our 2012 study looked at Part III prosecutions (reserved for more serious cases, which tend to involve significantly higher fines) and did not include Part I tickets or summonses.   Part I tickets and summonses carry a maximum fine of $1,000 per conviction while Part III prosecutions have a maximum fine of $500,000 per conviction.  As such, the average fines in our study were higher than those in the MOL statistics referenced above.

Ontario OHSA convictions at six-year low in 2013/14, average fine relatively steady

Notes taken post-accident can lose privilege if used to refresh memory, court decision suggests

Privileged notes taken by a witness – or by the employer from a witness – after a workplace accident may cease to be privileged if used by the witness to prepare to testify in court, a recent court decision suggests.

The case, which was not an occupational health and safety case, involved charges of refusing to provide an “Approved Screening Device” sample. The charge is often laid where a driver refuses to blow into a breathalyzer to determine whether he or she was driving while impaired.

The accused testified that he had made notes after the incident, as his father had told him to write down everything that he remembered, word for word.  At trial, he testified that he had read the notes to prepare for trial.

The judge decided that the accused had used the notes to refresh his memory, and therefore the litigation privilege over the notes was lost.  The judge decided:

“When the accused chooses to refresh his memory from notes to which litigation privilege would otherwise apply prior to taking the stand, the Crown is entitled to see such notes subject to the court’s discretion. An accused person who has prepared notes to refresh their memory and uses those notes to the refresh their memory prior to testifying has waived any litigation privilege attached to those notes. It is important that the opposing party have the opportunity to test the memory of events and expose inaccuracies in memory.”

Employers facing Occupational Health and Safety Act charges should understand that notes that would otherwise be litigation-privileged that are taken by the employer after a workplace accident may lose their privilege, and therefore be obtained by the prosecutor, if used by a witness to refresh his or her memory before testifying.

R. v. Sachkiw, 2014 ONCJ 287 (CanLII)

Notes taken post-accident can lose privilege if used to refresh memory, court decision suggests

Ontario Bill to extend protection of OHSA to unpaid trainees

A new Ontario Bill will give unpaid trainees the protection of the Occupational Health and Safety Act.  The OHSA currently gives that protection to paid workers only.

The current definition of “worker” under the OHSA is “a person who performs work or supplies services for monetary compensation . . .”

Under Bill 18, the OHSA’s definition of “worker” will be expanded to include unpaid high school, college and university students in certain approved programs; as well as certain unpaid trainees receiving training for their own benefit and not for the benefit of the employer.  Bill 18 also allows the government to pass a regulation making other unpaid persons “workers” under the OHSA.

Practically, most employers will already apply their safety programs to unpaid trainees as if the OHSA already applied to them.  The main impact of the redefinition of “worker” will be that employers are now exposed to charges and fines if unpaid trainees – who, one suspects, have a higher than average risk of being injured – are in fact injured. This makes it all the more important that employers ensure that trainees receive all necessary safety training.

Bill 18 passed first reading on July 16, 2014.  Due to the Liberal majority, the Bill is expected to pass.  We do not yet know when the Bill will come into force.

Bill 18, which contains amendments to a number of other employment-related laws, may be accessed here.

Ontario Bill to extend protection of OHSA to unpaid trainees

Company fined $25,000 for operating electrical contracting business without license under Electricity Act after apprentice injured

An electrical contractor has been convicted and fined for carrying on an electrical contracting business without being licensed under the Ontario Electricity Act.

A young apprentice with the company was seriously injured after an electrical explosion.

The apprentice was disassembling and reassembling “conduit runs” under the supervision of “others who were his masters or supervisors”. He was “pulling a disconnect of a busbar” when it exploded.  There was a fire and molten metal fell on him.  He suffered lasting injuries.

The court found that the company operated an electrical contracting business without being the holder of an electrical contracting license pursuant to Regulation 570/05 (“Licensing of Electrical Contractors and Master Electricians”) under the Electricity Act.

The court accepted the prosecutor’s request for a $25,000 fine for failing to hold the contracting license.

This case shows that the mere failure to obtain an appropriate license can cost employers many thousands of dollars in fines where the employer carries out safety-sensitive work.

R. v. JF Industrial Systems (Windsor) Inc., 2013 ONCJ 766 (CanLII)

Company fined $25,000 for operating electrical contracting business without license under Electricity Act after apprentice injured

$50,000 fine after trip-over-cord accident shows employers must listen to safety committee recommendations

A nurse’s trip over a cord has landed a hospital a $50,000 fine, where the joint health and safety committee had previously documented cord trips as a known hazard.

The nurse was administering medication to a patient.  When leaving the bedside, the nurse’s foot became entangled in a cable attached to the “bed check” equipment.  She fell and fractured her arm.

According to the Ministry of Labour press release, dangling cords were a known hazard in the workplace and the joint health and safety committee inspection records showed that.  The cord in question had not been secured, although hooks, clips or Velcro had been previously identified as methods of securing the cords.

The hospital pleaded guilty to a charge under the Occupational Health and Safety Act of failing to train the employee on trip hazards and was fined $50,000 plus the 25% Victim Fine Surcharge.

The Ministry of Labour’s press release can be found here.

$50,000 fine after trip-over-cord accident shows employers must listen to safety committee recommendations

“Everyone just knew” was not a defence to OHSA charges: court

An employer’s assertion that “everyone just knew” the safety rules, was not a defence to charges under the Occupational Health and Safety Act, an Ontario court has held. The employer’s “casual, oral practice” – without a written policy – was not enough.

Anray Ltd., an excavating contractor, engaged one Marr to transport an excavator.  Marr stopped an employee, Kaczynski, who was in the middle of loading the excavator onto Marr’s truck so Marr could clean the excavator’s treads.  The employee left Marr to do the cleaning, after which Marr hopped in the excavator and tried to load it onto the trailer.  The excavator slid off the side of the trailer.  Marr was injured.

The Ministry of Labour charged Anray under the Occupational Health and Safety Act with failing to ensure that the excavator was moved in a safe manner.

Anray argued that “everyone just knew” that only Kaczynski would operate the excavator.  However, Justice of the Peace Conacher held that it was “well within the realm of predictability” that Marr might take it upon himself to load the excavator on the truck.

JP Conacher stated,

“As mentioned, the Defence relies heavily in its due diligence submissions on the contention that, with respect to the 14 ton excavator, ‘everyone just knew’ who was to operate the machine.  The ‘everyone just knew’ assertion was an element in a due diligence defence in another trial matter before this Court which illustrates the limitations of relying on such a practice.”

Instead, Anray’s “casual, oral practice” was insufficient for ensuring the safe movement of machinery or equipment. Anray was found guilty of the charge.

This decision seems surprising.  One would think that it is self-evident that only trained and authorized persons could load a 14-ton excavator on a trailer, and that no policy is needed on that point.  Employers cannot be expected to have written policies on every possible hazard, however unlikely.

Ontario (Ministry of Labour) v. Anray Limited, 2014 ONCJ 203 (CanLII)

 

“Everyone just knew” was not a defence to OHSA charges: court

Seat Belt Offence not “Absolute Liability”, Appeal Court Decides

A driver’s failure to wear a seat belt, which is an offence under the Ontario Highway Traffic Act, is not an “absolute liability” offence. Rather, “due diligence” is an available defence, the Ontario Court of Appeal has decided.

A police officer saw a driver, one Wilson, stop his vehicle at a stop sign. The officer noticed Wilson’s seatbelt hanging by his shoulder, and charged Wilson with failing to wear a seat belt, contrary to the Highway Traffic Act.  Wilson argued that he had removed his seat belt after stopping at the stop sign, because he noticed that his coffee in a cup holder in the backseat was spilling on his laptop.

“Absolute liability” offences involve automatic liability if the defendant did the prohibited act (here, failed to wear a seat belt), without any consideration of the person’s state of mind or degree of fault.  “Strict liability” offences, on the other hand, are a “half-way house” in which the person can avoid conviction by proving that he or she exercised “due diligence” (took reasonable care to avoid the prohibited act).  For example, a driver may have taken reasonable steps but the seatbelt did not close properly or had come undone.

The court quoted a previous decision which suggested that the default is that an offence is strict liability, so that the defendant may argue due diligence: “If the legislature wanted to impose the serious consequences that flow from the creation of an absolute liability offence, the means for so doing would have been known and available.” Clear wording was required to create an absolute liability offence.

Most Occupational Health and Safety Act offences are strict liability offences.  This decision, although not an OHSA case, shows that courts will default to an offence being strict liability – meaning the due diligence defence is available – unless the legislation clearly shows that absolute liability applies.

R. v. Wilson, 2014 ONCA 212 (CanLII)

Seat Belt Offence not “Absolute Liability”, Appeal Court Decides

Worker, Caught by MOL Inspector, Given Significant Fine for Safety Violation

An Ontario construction worker has been fined $1,500.00 after jumping from a hoist tower to a nearby roof.  Unfortunately for the worker, a Ministry of Labour inspector saw him do it. 

The worker was wearing a fall protection harness and lanyard, but the lanyard was not tied off.  He was approximately 50 feet above the ground when he jumped.

The worker pleaded guilty to failing to be adequately protected by a method of fall protection while exposed to a fall of more than three metres (9.8 feet).

This case shows that workers can incur significant fines for safety violations under the Occupational Health and Safety Act particularly where, as in this case, death or serious injury could have resulted.

The Ministry of Labour’s press release may be accessed here.

Worker, Caught by MOL Inspector, Given Significant Fine for Safety Violation

Corporate Director Fined under OHSA in Safety Belt Case

A corporate director of a stucco company has been fined $3,000.00 under the Ontario Occupational Health and Safety Act for failing to ensure that workers used safety belts on elevated work platforms.

An inspector caught workers not wearing safety belts attached to the elevated work platforms while using those platforms to perform stucco work on a five-storey office building.  The corporate director also owned the building.

The corporate director pleaded guilty to the charge.

This case is a reminder that corporate directors - not only workers and supervisors – may be charged under the Occupational Health and Safety Act.

The Ministry of Labour’s press release may be accessed here.

Corporate Director Fined under OHSA in Safety Belt Case

Majority of OHSA Fines in $100,000 to $150,000 Range in Fatality Cases, Court Notes

In sentencing an employer to a $115,000.00 fine in the case of a tragic workplace death, an Ontario Justice of the Peace has discussed the range of fines against employers convicted of charges under the Occupational Health and Safety Act in regards to a workplace death.

The court stated:

“Reviewing the cases, where there is death, there is a general (and very large) range of sentence from $70,000.00 to $175,000.00, with extreme lows of under $50,000.00 and highs of over $200,000.00. The majority of the cases appear to be within a range of  $100,000.00 to 150,000.00.  It is my opinion that the appropriate sentence in this matter falls within this range. It is within that range that I can take into account the financial and other factors which I have referred to above.  I also consider the impact of the victim fine surcharge which ultimately increases by 25 per cent any fine that I impose.”

In setting the fine in the case at hand, the court noted that the defendant sincerely believed that the work procedure (for loading wood shavings from mills into a truck) was safe, the owner was sincere in his remorse and had reached out to the family of the deceased worker, and the employer had had some safety procedures in place.  The employee died when he fell into the truck after attempting to dislodge wood shavings, and the material engulfed him and he suffocated.

Our firm’s statistical analysis of fines under the Ontario OHSA showed that fines vary widely depending on whether the employer agrees with the Ministry of Labour’s proposed fine or lets the court set the fine.

The decision may be read here: R. v. Reliable Wood Shavings Inc., 2013 ONCJ 712 (CanLII)

Majority of OHSA Fines in $100,000 to $150,000 Range in Fatality Cases, Court Notes

Company Director Fined $8,500 After Swearing at MOL Safety Inspector, Making Threatening Gestures and Telling Inspector to Leave Project

Corporate directors can be charged by the Ontario Ministry of Labour and fined under the Occupational Health and Safety Act. Threatening and swearing at a Ministry of Labour inspector certainly increases the odds of charges being laid.

A Ministry of Labour inspector visited a construction project where Starland Contracting Ltd. had been hired to build a self-service car wash.  The inspector saw a worker on the roof without fall protection or a hard hat.

A few months later, the inspector made a follow-up visit.  The company’s director was on site and was acting as supervisor.  According to the Ministry of Labour press release, the inspector went to speak with the director, who uttered profanities at the inspector, told the inspector to leave the project, and made threatening gestures and comments towards the inspector.  The director refused to show identification when asked.

The next day, another Ministry of Labour inspector went to the site.  Starland was unable to show a Notice of Project Form or a Form 1000, which lists all employers and subcontractors on site.  That inspector issued an order for those documents, but they were not provided by the deadline in the order.

Starland and the director were charged by the Ministry of Labour under the Occupational Health and Safety Act.  After an ex-parte trial (meaning that the company and the director did not attend at the trial), the company was convicted of three offences under the OHSA and fined $29,500.00, and the director was convicted of two offences (hindering, obstructing, molesting and interfering with an inspector; and refusing to provide information requested by an inspector) and fined $8,500.00.

The Ministry of Labour’s press release may be found here.

Company Director Fined $8,500 After Swearing at MOL Safety Inspector, Making Threatening Gestures and Telling Inspector to Leave Project