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Is compliance with industry standards enough to establish due diligence? Alberta Court of Appeal set to consider this issue.

We recently wrote about the decision in R. v. Precision Drilling Canada Ltd., where the Appeal Judge set aside the trial verdicts and ordered a new trial in a workplace fatality case. The Crown sought leave to appeal that decision to the Alberta Court of Appeal.

In the leave to appeal decision, the Alberta Court of Appeal stated that workplace safety was of significant public importance to justify a further appeal. It granted leave to the Crown to advance its appeal on two questions that had not yet been settled by Alberta’s highest court. Those questions were:

  1. Did the Appeal Judge err in law by requiring the Crown, as part of the actus reus of the offence, to negate due diligence or prove negligence?
  2. Did the Appeal Judge err in law in her interpretation and application of the due diligence test?

On the first issue, the Crown argued that the Appeal Judge’s decision required the Crown to prove negligence, or negate due diligence in order to prove the elements of the offence under section 2 of the Occupational Health and Safety Act, being the general duty on an employer to ensure the health and safety of its workers. The Court of Appeal noted that as the law currently stands, it was arguable that in order to prove a breach under section 2, the Crown need only prove the fact of employment, the worker’s engagement in the employer’s work, and the worker’s injury or death. It would then be up to the employer to prove due diligence. In this case, the Appeal Judge appeared to require the Crown to prove that the employer committed a wrongful act. As such, the Court of Appeal found that the Crown’s position on this point had merit.

On the second issue, the Crown argued that the Appeal Judge erred in strictly comparing the employer’s practices to generally accepted standard practices in the industry, rather than taking a broader view of what the employer reasonably should have done. The Crown’s position was that while industry standards may set a minimum level of care, they did not determine due diligence. The Court of Appeal agreed that the Appeal Judge’s decision arguably used a due diligence test that required the Crown to disprove compliance with industry standards and government regulation and did not apply the proper foreseeability test or broader due diligence test.

As such, the Alberta Court of Appeal agreed that the appeal could proceed on those two issues. It will be interesting to see how the Court of Appeal ultimately decides these questions and brings clarity to these two important issues. Stay tuned.

R. v. Precision Diversified Oilfield Services Corp., 2017 ABCA 47 (CanLII)

Is compliance with industry standards enough to establish due diligence? Alberta Court of Appeal set to consider this issue.

Trial judge’s misapprehension of the evidence results in new trial for workplace fatality

We previously posted about the trial decision in R. v. Precision Drilling Ltd., 2015 ABPC 115 (CanLII), where the court found the employer guilty of two charges arising from a workplace fatality at a drilling rig. The employer was convicted of failing to ensure the safety of the worker, and failing to eliminate an identified hazard. The employer appealed the convictions.

At trial, one of the issues was the question of industry standards, in particular, the use of an interlock/warning device. On appeal, the court noted that the trial judge had correctly stated that compliance with industry standards and legislation would not, of itself, be enough to establish due diligence. In this case, the appeal court found that the evidence was that the employer did follow industry standards. The trial judge however found that the interlock device was an engineered solution in place with other industry competitors, that could have been used to avoid the accident. The trial judge relied on this in concluding that the employer had not established the defence of due diligence.

The appeal court found that the trial judge’s conclusion about the competitor’s use of the interlock device was contrary to the evidence. In fact, the evidence at trial was that only one competitor had an interlock device on one rig, and that rig was a different type of rig from the rig in question. Further, the Occupational Health and Safety inspectors were not aware of the interlock device prior to the accident. Therefore, the appeal court determined that the trial judge’s misapprehension of the evidence was a palpable and overriding error.  It also found that the trial judge made a number of additional errors in the treatment of the evidence which undermined the verdict.

Further, while the appeal court did not find any error in the trial judge’s decision to admit evidence of the employer’s post-incident conduct at trial relating to its development and use of an interlock device after the accident, the trial judge’s use of that evidence was not supported by the evidence. The appeal court found that, in addition to the error about the industry’s use of the interlock device, there was no evidence that the competitor’s “small bit of common-sense engineering” had an effect on the drilling industry. The interlock device had not been adopted in the Occupational Health and Safety Code and government inspectors did not shut down rigs that did not have the interlock device.

The appeal court allowed the appeal on both counts, setting aside the trial verdicts. Because there was admissible evidence on each of the elements of the charges, rather than entering an acquittal, the appeal court ordered a new trial.

R. v. Precision Drilling Canada Ltd., 2016 ABQB 518 (CanLII)

 

Trial judge’s misapprehension of the evidence results in new trial for workplace fatality

Having failed to obtain and review proper operating manual for machine, employer and supervisor convicted under OHSA

An employer and supervisor who failed to obtain an operator’s manual for a rip saw, and therefore failed to follow it, have been found guilty of offences under the Ontario Occupational Health and Safety Act.

The charges resulted from an accident in which an 18 inch long shard or stake of wood was ejected from a rip saw and pierced the arm of a worker who was working nearby.

The employer argued that the machine had proper safety mechanisms to avoid such incidents, and therefore that the accident was not foreseeable.

The court found that the employer had failed to even obtain the applicable operator’s manual for the machine. There was no evidence that any worker or supervisor had read the manual. The manual noted that there was risk to the operator and “third persons” from “kicked back material”. By not reading the manual, the supervisor had not acquainted himself with the inherent risks associated with the rip saw, nor had he taken the necessary steps to address those risks. The employer could have, for instance, erected a barrier to protect workers from kicked back materials. Further, the employer did not have a program in place to check for broken “anti kickback teeth” or fingers, one of which was found to be broken.

The court stated:

“[T]aking all reasonable care also requires more than just arguing that the best equipment had been purchased and installed, to show what steps had been taken to prevent the event that had occurred . . . Moreover, the defendants would have had to respectively take proper care to acquire knowledge about the measures and requirements to properly operate the rip saw machines safely, to ensure that the machine’s protective elements were functioning properly, and to prevent any of the inherent risks outlined by the manufacturer in the 2007 Operating Manual from occurring, including the risks from splinters and material being kicked back by the machine’s saw blades. Being passive and simply relying on the machine’s internal shields and guards would not demonstrate that either defendant had taken all reasonable steps respectively to ensure the safety of the workers at the Alpa Lumber plant working in the vicinity of Rip Saw #1 while it was operating.”

This case demonstrates that employers cannot rely only on safety features built into machines; instead, employers must demonstrate that employees are familiar with potential hazards of machines and take steps to avoid those hazards.

Ontario (Ministry of Labour) v. Alpa Lumber Mills, 2016 ONCJ 675 (CanLII)

Having failed to obtain and review proper operating manual for machine, employer and supervisor convicted under OHSA

“You’re kind of close to those wires”: excavator operator guilty of OHSA charges after hitting power line

An excavator operator has been found guilty of two Occupational Health and Safety Act charges after hitting a power line.

The operator, who was working on a road construction project, was planning to load the excavator onto the float bed of a truck to take it to another worksite.  The truck driver parked under a power line. The operator commented that “You’re kind of close to those wires”, to which the truck driver said, “it’s all right”.

The operator then moved the excavator and hit the power line, which carried 69,000 volts.  The truck driver received an electric shock and fell.  The operator was able to revive the truck driver, who suffered injuries including burns and was off work for a year.

The judge found that the excavator operator was “clearly apprised of the dangerous situation”, as shown by his comment that the truck was “kind of close” to the power line and his statement to the government safety inspector that, “I seen the wires, I knew the wires were there.”  He should have, at the least, refused to load the excavator until the truck was completely away from the power line.  The judge said that “this was clearly an avoidable workplace injury”.

The judge found the operator guilty of two OHSA charges: failing to take every reasonable precaution to protect the safety of himself and others, and carrying out work within 6 metres of a power line without knowing the voltage of the power line.

R. v. Jardine, 2016 NSPC 22 (CanLII)

“You’re kind of close to those wires”: excavator operator guilty of OHSA charges after hitting power line

Three days in jail for owner of roofing business after trying to deceive MOL inspector

The owner of a roofing business has landed in jail for three days after trying to trick a Ministry of Labour inspector following a workplace accident.

Three workers were working on a residential roofing project but the owner did not make fall protection equipment available to them.

According to the MOL press release, after one worker fell 18 feet and injured himself, the owner directed another worker to go up on the roof and set up lifelines and fall protection equipment in order to deceive the MOL inspector.

The owner pleaded guilty to two OHSA offences: attempting to obstruct and interfere with an inspector, and failing to ensure that a worker was protected by a method of fall protection.

The court jailed the owner for three days on the obstruction/interference charge and imposed a $5,000.00 fine on the other charge.

Although for many years there were very few jail terms imposed by courts for OHSA violations, the courts are increasingly willing to impose jail terms for serious violations including attempting to deceive MOL inspectors.

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

Three days in jail for owner of roofing business after trying to deceive MOL inspector

Appeal of MOL compliance order adjourned while related OHSA prosecution ongoing, despite City’s objection

The Ontario Labour Relations Board has adjourned an appeal of a Ministry of Labour inspector’s compliance order against the City of Sudbury while a related prosecution under the Occupational Health and Safety Act is ongoing, despite the City’s objection.

The MOL laid charges under the OHSA against the City and Interpaving Limited in the Ontario Court of Justice.  Evidently a Ministry of Labour inspector also issued a compliance order against the City. The City appealed the order to the OLRB and the MOL asked the OLRB to adjourn that appeal while the prosecutions (charges) were ongoing in court.  Interpaving agreed that the appeal should be adjourned but the City disagreed.

The OLRB decided that the appeal of the inspector’s compliance order should be adjourned. The issues in that appeal overlapped with the issues in the prosecution. Continuing with the OLRB appeal would likely result in witnesses being required to testify and be cross-examined, which could cause prejudice to the MOL, the City and Interpaving in the prosecutions. Allowing the appeal to proceed first could interfere with the prosecution or result in inconsistent judgments on the same issues. Also, there was no ongoing issue with respect to the appeal because the MOL inspector’s compliance order that was under appeal had been suspended and the work completed.

The OLRB therefore adjourned the appeal for one year, subject to possible further extensions if the OHSA prosecution in the Ontario Court of Justice was not completed within that year.

This decision is consistent with the OLRB’s practice of adjourning appeals of MOL inspectors’ compliance orders while a prosecution, arising out of the same incident or accident, is ongoing in court.

City of Greater Sudbury v A Director under the Occupational Health and Safety Act, 2016 CanLII 67485 (ON LRB)

Appeal of MOL compliance order adjourned while related OHSA prosecution ongoing, despite City’s objection

After accepting guilty plea, prosecutor cannot reargue trial court’s decision to exclude evidence of worker’s injury when setting fine

The Ministry of Labour cannot reopen a Justice of the Peace’s decision to exclude evidence that a worker was injured, where the defendant company later pleaded guilty to Occupational Health and Safety Act charges and the prosecutor accepted the plea.

At trial, the Justice of the Peace decided to exclude the testimony of the worker who was apparently injured in a workplace accident.  The company then decided to plead guilty to one charge and the prosecutor withdrew the other charge against the company and a separate charge against a contractor to the company.

The parties then argued about the fine, and the Justice of the Peace again excluded the evidence of the apparently injured worker when setting the fine. Presumably the court imposed a fine that was lower due to the lack of any evidence about worker injuries.

The Ministry of Labour thought the fine was too low.  It appealed the decision on the fine, and sought on the appeal to reargue the Justice of the Peace’s decision to exclude the worker’s testimony in considering how much the fine should be.

The appeal judge decided that, having “actively participated” in the guilty plea which ended the trial, the MOL was bound by the Justice of the Peace’s decision to exclude the worker’s evidence about his injury and could not reopen that issue on appeal.  The appeal judge recognized that the result of his ruling on that issue may well end the appeal, because evidence about the worker’s injury would not be considered in arguments about the amount of the fine.

Ontario (Ministry of Labour) v. Ontario Power Generation, 2016 ONCJ 299 (CanLII)

After accepting guilty plea, prosecutor cannot reargue trial court’s decision to exclude evidence of worker’s injury when setting fine

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

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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