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)