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Criminal negligence conviction for landlord who disregarded Fire Code violations, deceived fire inspector

An appeal court has upheld the conviction of a landlord for criminal negligence causing death after numerous Fire Code violations led to a tenant’s death.  The case demonstrates that violations of duties under provincial safety laws can form the basis for a criminal negligence conviction.

The premises had been inspected a number of times before the fire and the landlord was told that specific upgrades, including a system of linked smoke alarms and pulls, with smoke alarms in every bedroom, were required to comply with the Fire Code.

A tenant, who had been drinking heavily, died when his blanket and mattress caught on fire after he left a hot plate on.  The tenant had stayed in his room to try to fight the fire. Another tenant suffered serious burns.  None of the tenants were alerted to the fire by the sound of a smoke alarm.

On appeal, the landlord argued that there was no evidence that his negligence was the legal cause of the tenant’s death.  The Ontario Court of Appeal disagreed, holding that from the trial judge’s findings, it was clear that:

“1. there were no smoke alarms in each upstairs bedroom;

2. the appellant knew that Mr. Dhaliwal [the tenant who died] cooked in his room but failed to take effective measures to prevent this;

3. the appellant knew that Mr. Dhaliwal was a serious alcoholic who was very often drunk, while in his room in the property;

4. the appellant knew that the smoke alarms that were in the house were not working;

5. when the appellant was advised that he was in breach of the Fire Code, he failed to complete the required upgrades, thereby risking the lives and safety of his individual tenants;

6. the appellant deliberately deceived the fire inspector into believing that a group of tenants, living as a family, occupied the second floor of the property and he did so to avoid the costs of bringing the premises into compliance;

7. had the required interconnected smoke alarms and pull system been installed, they would have been activated within seconds of the fire starting, even before there were flames; and,

8. the required smoke alarm system would have provided the occupants with the crucial time needed to avoid injury.”

The appeal court concluded that the trial judge did not err when she held that had the landlord made the upgrades required by the Fire Code, the tenants would have been alerted to the fire before it became too large to extinguish.

As such, the conviction for criminal negligence causing death was upheld.

R. v. Singh, 2015, ONCA 855 (CanLII)

Criminal negligence conviction for landlord who disregarded Fire Code violations, deceived fire inspector

Refusing to provide a written statement to an investigating officer did not constitute obstruction of a safety officer but grabbing him and pushing him out the door did.

This case serves as an example of what degree of conduct will or will not constitute obstruction of an officer in a workplace investigation.

The accused was charged under the Safety Act (NWT) with 2 counts of obstructing a safety officer arising from 2 meetings between the accused and the safety officer tasked with investigating a workplace accident. At trial, the accused and the officer had differing versions of what had occurred in the meetings. Ultimately, the Court found the accused to be an evasive witness and preferred the evidence of the officer.

The section of the Safety Act in question required the Crown to prove that the accused had (a) obstructed or hindered (b) a safety officer (c) engaged in carrying out his duties. The Court held that this required an obstruction or hindrance of the investigation itself – not just the safety officer; that the accused’s actions had to be deliberate, with knowledge that the officer was engaged in carrying out his duties; and that the accused intended to prevent the progress of the investigation.

In the end, the Court found the accused not guilty of the count relating to the first meeting. In that meeting, the accused had been loud and aggressive and “vented” but he had responded to the investigator’s questions. While he had refused to provide a written statement and drawing, his conduct did not impede or delay the progress of the investigation. However, the Court found the accused guilty of the count relating to the second meeting. In that meeting, the accused confronted the investigator, grabbed him by the arms, pushed him out the door, and slammed the door behind him, all before the officer had asked any questions. The accused knew the investor was there to ask him questions about the incident and the Court found that the accused’s conduct in that meeting did halt the progress of the investigation.

R. v. Prodromidis, 2015 NWTTC 18

Refusing to provide a written statement to an investigating officer did not constitute obstruction of a safety officer but grabbing him and pushing him out the door did.

Fraud conviction for worker who collected workers’ compensation benefits after returning to job

A Saskatchewan labourer has pleaded guilty to fraud after having been caught collecting workers compensation benefits following his return to work.

He has also been ordered to reimburse the Saskatchewan Workers’ Compensation Board for more than $22,000.00 in workers compensation benefits that he received.

The man avoided jail time but was given a conditional sentence of two years less a day.

The Saskatchewan Workers’ Compensation Board press release can be read here.

 

Fraud conviction for worker who collected workers’ compensation benefits after returning to job

OHSA charges dismissed against tourist resort in boating fatality

An Ontario court has dismissed two charges under the Occupational Health and Safety Act against a tourist resort after the Ministry of Labour failed to prove its case.

The charges followed an incident in 2012 in which a boat operated by an employee of the resort suddenly veered to the right and crashed into a rocky shoreline. Two passengers in the boat, who were guests at the resort out on the lake for fishing, died as a result of the impact.

The MOL charged the resort with failing to maintain a “steering friction adjuster” ‎on the outboard motor (which limited the ability of the motor to swing to one side, causing the boat to turn sharply) and failing to ensure that an “engine shut-off lanyard” was “used as prescribed”.  The lanyard, if tethered to the operator of the boat, would shut off the engine if the operator moves to far away from the motor, such as being thrown from the boat.

On the first charge, the court held that other than the fact that there was no resistance on the steering friction adjuster, there was no evidence that this condition was the result of a failure to maintain the motor.  ‎In particular, a boat mechanic who examined the motor after the accident was unable to open and examine the steering friction adjuster because of the direction that he understood he had received from the police.  As such, the prosecutor has not proven that the lodge failed to maintain the steering friction adjuster.

With respect to the second charge, the court held that “prescribed” meant prescribed by a regulation under the OHSA. The MOL inspector admitted at trial, though, that there was no regulation dealing with the use of a tether strap as a protective device. “Prescribed” ‎did not refer to any requirement in the manual provided by the manufacturer. As such, the second charge was also dismissed.

This case demonstrates the importance of obtaining a careful legal assessment of OHSA charges before deciding whether to defend or plead guilty. Charges that appear, on their face, to be impossible to defend can sometimes be beaten because the evidence does not support a conviction on the strict wording of the charge.

R. v. Ash Rapids Camps Inc., 2015 ONCJ 648 (CanLII)

OHSA charges dismissed against tourist resort in boating fatality

Post-accident remedial measures were a “small bit of common-sense engineering”, relevant evidence in finding company guilty of OHSA offences

An employer’s post-accident efforts to fix a safety issue were relevant to the issue of whether it had violated the Occupational Health and Safety Act at the time of the accident, an Alberta judge has held.

An employee died after sustaining a blunt force blow to his head while working as a “floorhand” on the floor of a drilling rig. The company was charged with two offences under the Alberta Occupational Health and Safety Act: failing to ensure the safety of the worker, and failing to eliminate an identified hazard.

Over the company’s objections, the judge permitted the prosecutor to call evidence about an interlock/warning device that the company had designed and installed after the accident that would prevent, or at least reduce the risk of, similar accidents.  The judge stated:

“The Defence also argued that public policy favoured not admitting such evidence.  In my view, at least for a strict liability regulatory offence the public policy arguments favour admission.  The whole tone of the Act is to encourage proactive safe practices designed to prevent rather than react.  This requires employers to provide wide efforts at compliance.”

The court rejected the company’s argument that post-accident evidence should not be admitted because it would discourage “innovation and repair” – that is, discourage companies from fixing safety hazards after accidents for fear that the prosecutor could argue that that fix should have been implemented before the accident.

Interestingly, the court also stated,  “In not having heard of, let alone used this safety interlock the Defendant may have fallen victim to their own size and expertise in assuming that they defined industry standards . . . It is nothing more than applying a small bit of common-sense engineering to a known problem.”  The court noted that there were “other even simpler technical solutions which would have helped avoid this situation.”  The company had led no credible evidence that the engineering solution was an “unproven innovation” or an “incomplete engineering solution” that they could not reasonably have identified before the accident.

The court considered the evidence about the post-accident fix to be relevant, admissible and important. The court found the company guilty on both charges.

R. v. Precision Drilling Canada Limited, 2015 ABPC 115 (CanLII)

Post-accident remedial measures were a “small bit of common-sense engineering”, relevant evidence in finding company guilty of OHSA offences

Misled by official, company proves “officially induced error”, beats charges

The defence of “officially induced error” is rarely used successfully, but in a recent Highway Traffic Act case, it won the day.

A company in the business of construction and snowplowing was charged under the Highway Traffic Act with driving a snowplow on a highway without a permit, after the out-of-service snowplow was driven to a garage to have some engine/exhaust problems fixed.

The company proved that it had visited an Ontario Ministry of Transportation (MTO) office counter and was told that the snowplow was exempt from the permit requirement.   The company then made inquiries of an MTO official who confirmed in an e-mail that, as the company understood it, there was a snowplow “registration exemption” under the Highway Traffic Act. The official was wrong: the exemption applied to weight requirements, not to registration (permits).

The court decided that the company had established the “officially induced error” defence that applies to regulatory charges (including occupational health and safety charges).  The company had committed an “error of law”; it had thought about the legal consequence of its actions; it had received advice from an appropriate official; the advice was reasonable; the advice was erroneous; and the company reasonably relied on the advice.

The company was thus not guilty of the offence of failing to obtain a permit for the snowplow.  This decision is a reminder that the little-used defence of “officially induced error” is alive and well. Employers charged under occupational health and safety legislation after being misled by government safety officials, should consider arguing this defence.

Durham (Regional Municipality) v. D. Crupi & Sons Ltd., 2015 ONCJ 488 (CanLII)

 

Misled by official, company proves “officially induced error”, beats charges

Moving company fined under smoke-free workplace legislation

As one employer learned recently, smoke-free workplace legislation has teeth.

According to a Nunavut government press release, a government safety officer, in a workplace inspection, “observed evidence of smoking in the workplace.”

The moving company was charged under the Nunavut Environmental Tobacco Smoke Work Site Regulations, made under that Territory’s Safety Act, with failing to control the exposure of workers to environmental tobacco smoke at an enclosed work site.  The company was sentenced to a fine of $2,000, plus a 15% Victim of Crime Surcharge.

The government’s press release states, “It is important that all employers provide safe work environments by prohibiting smoking in an enclosed work site, and outside the enclosed work site within a three metre radius of any entrance to or exit from the site.”

Moving company fined under smoke-free workplace legislation

Safety contractor wins appeal of $1,000 administrative penalty under OHSA

Don’t be seen to cause a traffic jam that inconveniences a government health and safety officer.  Perhaps that is the real moral of this story.

A safety contractor was providing traffic control services on the Trans-Canada Highway in Nova Scotia where a bridge was under repair.  An Occupational Health and Safety Officer with the Nova Scotia government became caught in the resulting traffic jam.  While stuck in traffic, she tried by phone to put a stop to the bridge work so the traffic could clear.

Her main stated concern was that there was inadequate warning that traffic might be slowing down.  She wrote a compliance order against the safety contractor. Three months later she issued a $1,000.00 administrative penalty for allegedly failing to ensure that traffic control staff were provided with appropriate training, facilities and equipment.

The Nova Scotia Labour Board held that “these are very vague allegations”. It decided that the mere fact that the situation occurred did not prove that the traffic control staff lacked training and resources. The health and safety officer did not appear to have a clear understanding of what training or direction the safety contractor had provided on that day.  She drew her conclusions from limited information and not from a measured review. She did not contact the company in the days after the incident to give them the opportunity to address her concerns.

The Labour Board stated:

“The submissions of the Appellant impress me that the company is expert in its field and could have addressed many of the concerns of the officer, had she made the additional effort to contact company officials in the days following the incident.”

In the end, there was not a proper factual basis to support the Administrative Penalty, which was set aside.

Safety First Contracting (1995) Limited (Re), 2015 NSLB 148 (CanLII)

Safety contractor wins appeal of $1,000 administrative penalty under OHSA

Business owner facing criminal and provincial charges in workplace death

Both the RCMP and provincial health and safety officials have laid charges against an owner of a body shop in Dartmouth, Nova Scotia after a worker died.

The worker was killed when the vehicle he was working on caught fire.  The RCMP report that police collaborated with investigators from the Nova Scotia Department of Labour and Advanced Education and the Nova Scotia Public Prosecution Service.

Elie Phillip Hoyeck, the body shop owner, is charged with one count of Criminal Negligence Causing Death under the “Bill C-45” provisions of the Criminal Code.

He is also facing 12 charges under the Nova Scotia Occupational Health and Safety Act including failure to comply with the requirements of the Canadian Standards Association (CSA) standard, “Safety in Welding, Cutting and Allied Processes”; failure to ensure that a welding or allied process is performed by a designated competent person; failure to ensure that the person operating the equipment has inspected the surrounding area to ensure adequate precautions have been taken to remove all hazardous material or processes that produce combustible, flammable or explosive material, dust, gas or vapour, and to prevent fire or explosion; and failure to ensure that no person performs a welding or allied process on a container, pipe, valve or fitting that holds or may have held an explosive, flammable or otherwise hazardous material, and that it is performed in accordance with a written work procedure.

The case is a reminder that serious workplace accidents – particularly fatalities – can lead to both criminal and provincial charges against persons in authority over workers or workplaces.

The RCMP’s press release can be found here.

 

Business owner facing criminal and provincial charges in workplace death

U.S. construction companies and manager face fines of nearly $2 million for exposing workers to asbestos

The U.S. Occupational Safety and Health Administration (OHSA) has cited a construction company and its manager for asbestos-related violations and imposed fines of almost $2 million.  Safety regulators are increasingly taking asbestos violations very seriously.

OSHA inspectors determined that the company and some of its supervisors told employees to remove asbestos-containing materials during renovation of a school. Many of the employees were temporary foreign workers whose first language was not English. OSHA’s investigation also found that management threatened some workers with termination if they spoke with OSHA inspectors.

Further, OSHA inspectors found that the manager and the companies failed to warn employees of the danger, even though they were aware of the asbestos hazard.  Further, they did not ensure that the workers used appropriate work methods and respirators, and did not train them on the hazards of working around asbestos.

The company and manager had 15 days to appeal to the independent Occupational Safety and Health Review Commission.

OSHA’s News Release can be accessed here.

 

U.S. construction companies and manager face fines of nearly $2 million for exposing workers to asbestos

Two superintendents fined for OHSA violations in scissor lift fatality

Two superintendents have been found guilty of offences under Ontario’s Occupational Health and Safety Act and fined $4,000 each after a worker died when a scissor lift was knocked over by a garage door.

The accident happened when a mechanic pushed a cart through an open garage door, triggering an electric eye mechanism that caused the door to open and strike the scissor lift, knocking it over, as the door moved along its track.  The workers had been insulating an overhead water pipe and were tied-off to the scissor lift platform.  Both workers on the scissor lift fell 20 feet to the floor below. One of those workers died and the other suffered broken bones.

The superintendents were on the jobsite at the time of the accident and supervising the task of insulating the overhead water pipe.  They had not ensured that the lockout procedure of the Toronto Transit Commission (where the work was being done) had been followed, contrary to their employer’s contract with the TTC.

The court found the two superintendents guilty of failing to take every precaution reasonable in the circumstances for the protection of a worker, contrary to section 27(2)(c) of the Occupational Health and Safety Act.  Specifically, they failed to take the reasonable precaution of ensuring that an overhead garage door could not contact an elevated work platform upon which two workers were working.

The superintendents’ employer was also convicted of OHSA offences and fined $125,000.

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

Two superintendents fined for OHSA violations in scissor lift fatality

MOL engineer not qualified to give expert evidence: he was too involved in the investigation, too closely identified with prosecution at trial

An Ontario judge has refused to permit a professional engineer employed with the Ontario Ministry of Labour to testify as an expert in a health and safety prosecution.

A company was charged under the Occupational Health and Safety Act after a drill rig tipped over on a construction site, causing one death and one serious injury.  The cause of the accident was key to the case.

The MOL engineer had prepared a report in which he explored all of the possible causes from an engineering perspective.  He concluded the report with his own opinion as to the root cause of the accident.

The judge held that the MOL engineer was “inextricably bound up with the investigation of this case”.  He was the first person on the scene of the accident along with the MOL’s lead investigator.  He had been closely involved in the MOL’s investigation throughout.  At each point in the MOL’s investigation, the engineer had been performing at least two roles: (1) he was himself investigating directly by his observations, and (2) he was assisting the investigators by being the contact person with the technical knowledge beyond the expertise of the lead MOL investigator.

The judge noted that being an MOL employee did not disqualify the engineer from offering an expert opinion.

However, his extensive involvement in the investigation that led to the MOL laying the Occupational Health and Safety Act charges, and his enthusiastic identification with the prosecution during the trial, led the judge to conclude that the engineer could not give an unbiased opinion on the root cause of the collapse of the drilling rig.  As such, the court refused to qualify the MOL engineer to give expert evidence at trial.

The Ministry of Labour in Right of the Province of Ontario v. Advanced Construction Techniques Ltd. (Justice B. Knazan, April 21, 2015)

MOL engineer not qualified to give expert evidence: he was too involved in the investigation, too closely identified with prosecution at trial

FOI adjudicator denies access to MOL inspector’s reasons for recommending no OHSA charges against employer

An adjudicator with the office of Ontario’s Information and Privacy Commissioner has denied access to a Ministry of Labour inspector’s reasons for recommending that Occupational Health and Safety Act charges not be laid against an employer after a fatal motor vehicle accident involving the death of eleven people including migrant workers.

The requester wanted a copy of the Ministry of Labour’s “employment safety investigation report”.  The MOL granted “partial access”, apparently handing over some parts of the investigation report but not the factors and considerations that went into the inspector’s recommendation that OHSA charges not be laid.

The requester argued that the public interest in safety, and the need to subject MOL enforcement and decisions to public scrutiny, required that the factors and considerations be made public.

The adjudicator refused to grant access to the factors and considerations that went into the inspector’s decision not to recommend OHSA charges.  Instead, the information fell squarely within the exemption in section 13(1) of the Freedom of Information and Protection of Privacy Act which provides that advice or recommendations of a public servant need not be disclosed.  The public interest did not require disclosure.  In fact, the public interest suggested that the information not be disclosed, because otherwise Ministry of Labour inspectors may feel constrained in providing full, free and frank advice.

Ontario (Labour) (Re), 2015 CanLII 31652 (ON IPC)

 

 

FOI adjudicator denies access to MOL inspector’s reasons for recommending no OHSA charges against employer

Project Manager for Metron Construction convicted of criminal negligence in Christmas Eve fatalities. Three individuals and two companies now convicted

The project manager who supervised the four workers who died after a swing stage scaffold collapsed on Christmas Eve, 2009, has been found guilty on four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm.  Vadim Kazenelson received the verdict today.

The court has not yet imposed his sentence.

Five parties have now been found guilty of safety-related offences as a result of this tragic accident: Metron Construction Corporation, a director of Metron, Swing N Scaff Inc., a director of Swing N Scaff Inc. (all of which received fines), and Mr. Kazenelson.

As we previously reported, the total of safety fines imposed for the December 24, 2009 swing stage collapse fatalities is $1,240,000.

According to the Ministry of Labour, 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 Inc., the company that supplied the swing stage platform (a suspended work platform), had previously 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 Corporation was in good condition.  It was fined $350,000.00.

The director of Swing N Scaff Inc. had previously 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.  He was fined $50,000.00 under the Ontario Occupational Health and Safety Act.

Previously, Metron Construction Corporation 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.

A director of Metron Construction Corporation was previously fined $90,000.00 under the Ontario 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.

Project Manager for Metron Construction convicted of criminal negligence in Christmas Eve fatalities. Three individuals and two companies now convicted

“Creative sentence” imposed for OHSA violation: company must give 150 hours of safety presentations on case, plus pay fine

A Nova Scotia court has imposed a “creative sentence” for a violation of the Occupational Health and Safety Act, requiring the company to make safety presentations in addition to paying a fine.

A journeyman electrician employed by the company was electrocuted when he made a “tragic, fatal miscalculation”, deciding to work on an energized system.  The company was found guilty of failing to institute any policies or practices that addressed workplace safety, but instead relying exclusively on the employee being an experienced and safety-conscious electrician.  Further, the company did nothing to ensure compliance with the Canadian Electrical Code.

The Nova Scotia Occupational Health and Safety Act allows for fines and “creative sentencing options” for violations.  The court imposed a fine of $35,000.00 on the company, acknowledging that the company was very small and was now insolvent and no longer operating.

In imposing a “creative sentence option”, the court noted that the electrician’s death and the lack of formal safety policies at the company “constitute a sobering message for other small businesses in the construction trades.”  The court decided to impose a “community service order” requiring the company to make a series of presentations on the facts of the case as indicated in the trial decision, the applicable regulatory requirements, the workplace safety issues involved, and the required due diligence. The presentations must total 150 hours and be completed in 18 months.

While Nova Scotia’s Occupational Health and Safety Act permits such “creative sentencing options”, other provinces such as Ontario do not.  While at the same time recognizing the obvious tragedy of the death, one can see that the reputational damage associated with a conviction in such a case, and 150 hours of presentations that recite the sad facts, is obvious.  In Ontario and a number of other provinces, the government prosecutors often issue press releases that identify the company, the violation and the amount of the fine.

R. v. R.D. Longard Services Limited, 2015 NSPC 35 (CanLII)

 

“Creative sentence” imposed for OHSA violation: company must give 150 hours of safety presentations on case, plus pay fine

Ontario Bill will increase fines for Workplace Safety & Insurance Act violations

The Ontario government has introduced legislation that will, among other things, quintuple the maximum fine against corporations for violating the Workplace Safety & Insurance Act, Ontario’s workers’ compensation act.

The Employment and Labour Statute Law Amendment Act, 2015 will, if passed, amend the Workplace Safety & Insurance Act to:

  • Increase the maximum fine for companies that violate the Workplace Safety & Insurance Act from $100,000 to $500,000 (including for offences such as knowingly making a false or misleading statement to the WSIB)
  • Make it illegal for employers to try to prevent workers from – or punish them for –  reporting a workplace injury or illness to the WSIB
  • Allow WSIB survivor benefits to be calculated based on the average earnings, at the time of diagnosis, of the deceased worker’s occupation rather than the current legislated minimum

The $500,000 maximum fine will equal the maximum fine for violations of the Ontario Occupational Health and Safety Act.  After the Bill has been passed, we will need to wait for some court decisions to see whether judges and justices of the peace hand down larger fines.

Unlike OHSA fines, which tend to result from serious workplace injuries, WSIA fines are typically for violations such as failing to register with the WSIB when required, failing to report a worker’s injury to the WSIB, or providing false information to the WSIB.  The WSIB’s conviction reports show that recent fines against corporations under the Workplace Safety & Insurance Act have been in the range of $2,500 to $25,000.

A press release from the Ontario government announcing the changes can be found here.

 

Ontario Bill will increase fines for Workplace Safety & Insurance Act violations

Former Safety Manager Charged in U.S. Workplace Death

A former Safety Manager in California is among those charged with “willfully violating worker safety rules”, allegedly causing the death of a worker.

The former Safety Manager and the Director of Plant Operations of Bumble Bee Foods LLC, and the company itself, were charged “with three felony counts each of an Occupational Safety & Health Administration (OSHA) violation causing death.”

A news release by the Los Angeles County District Attorney states:

“Prosecutors said on Oct. 11, 2012, victim Jose Melena, 62, of Wilmington, entered a 35-foot-long cylindrical oven as part of his job duties at Bumble Bee’s Santa Fe Springs plant. The oven is used to sterilize cans of tuna.

“Coworkers were unaware that Melena was inside the oven when they loaded multiple carts, collectively containing about 12,000 pounds of tuna, closed the front door and started the oven. The victim inadvertently became trapped in the back of the super-heated, pressurized steam cooker.

“During the two-hour heat sterilization process, the oven’s internal temperature rose to about 270 degrees. Melena’s severely burned remains were discovered by a coworker, prosecutors said. Melena worked for the company for about six years.”

The charges against the former Safety Manager and the Director of Plant Operations carry a possible jail term of three years and/or a fine of $250,000.00.  The company faces a fine of up to $1.5 million if convicted.

Charges against safety professionals are quite rare.  As we noted in a previous post, in 2011 an Occupational Health and Safety Co-ordinator was found guilty of a violation of Nova Scotia’s Occupational Health and Safety Act for neglecting to follow up with his employer on recommendations in an asbestos report.

The Los Angeles County District Attorney’s news release may be found here.

Former Safety Manager Charged in U.S. Workplace Death

Injured Worker’s Act was Not Foreseeable: OHSA Charges Against Employer Dismissed

Recently, an Ontario court dismissed Occupational Health and Safety Act charges against an employer where the injured worker’s unexpected and unauthorized act led to his injury.

The worker used an overhead crane to rotate a large spindle that weighed about 10,000 pounds.  He threaded a piece of rebar through one of the holes on the spindle and attached hooks for the overhead crane to each end of the rebar.  Tragically, the spindle fell off its stand and onto his foot, which had to be amputated.

The Ministry of Labour charged the employer with failing to ensure that the spindle was moved safely and failing to properly train the injured worker.

The court concluded that the injured worker’s supervisor had not instructed him to rotate the spindle.  The court also concluded that a reasonable employer could not have foreseen that the injured worker would rotate the spindle on his own and do it in the manner that he did, because: there was no evidence that a junior employee had ever previously tried to move a large piece of equipment like the spindle before; there was an unwritten protocol in place which the injured worker acknowledged that he understood; the way in which the worker rotated the spindle was contrary to his training; and he attempted to rotate the spindle on his own even though that work had always been done by material handlers or supervisors.  The injured worker conceded that he had failed to follow his training.

Further, the employer had provided an orientation session and overhead crane training to the injured worker.

Interestingly, the court also noted that the Ministry of Labour had not issued a stop work order requiring the employer to stop rotating spindles, suggesting that the inspector must have concluded that the employer’s procedure was adequate for the protection of workers.

In conclusion, the court held that the employer had established due diligence: it took every reasonable precaution in the circumstances, and could not have anticipated that the injured worker would rotate the spindle.  The OHSA charges were dismissed.

R. v. ABS Machining Inc., 2015 ONCJ 213 (CanLII)

Injured Worker’s Act was Not Foreseeable: OHSA Charges Against Employer Dismissed

Company owner convicted, fined under OHSA for failing to co-operate with MOL inspector

A widely-reported fire at a Kingston construction site that required the evacuation of a crane operator by helicopter, has resulted in fines against the owner of the company that supplied the crane operator.

To avoid the heat from the fire, the crane operator was forced to crawl out on the boom of the crane, which was about 100 metres in the air. A military helicopter rescued him.

Shortly after the incident, a Ministry of Labour inspector contacted the company owner to request crane records.  The owner provided some but not all of the information. The MOL inspector attempted to interview the owner but was unable to reach him by telephone or at his residence.

The Ontario Occupational Health and Safety Act provides, in section 62, that no person shall hinder or obstruct an inspector; every person shall co-operate in respect of an inspector’s investigation; and no person shall provide false information to an inspector or refuse to provide information required by an inspector.

The company owner was charged with and convicted of the Occupational Health and Safety Act offences of (1) knowingly furnishing an inspector with false information or neglecting or refusing to furnish information required by an inspector, and (2) failing to furnish all necessary means in the person’s power to facilitate any entry, search, inspection, investigation, examination, testing or inquiry by an inspector. He was personally fined $19,000.00.  His company was also found guilty of failing to comply with a requirement of an inspector, and was fined $8,000.00.

This case illustrates the broad powers of Ministry of Labour inspectors and the consequences of interfering with an inspector’s investigation.

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

Company owner convicted, fined under OHSA for failing to co-operate with MOL inspector

Even “inspecting” equipment is “working on it”: employer guilty of OHSA charge where employees had not even started maintenance work

A maintenance electrician had “worked on” a stuck shipping door when he simply “inspected” it, even though he had not actually performed maintenance on it, a court has ruled.  He was injured when the door fell on him.  The employer was found guilty of failing to ensure that the door was “blocked” before employees worked on it.

The maintenance employee testified that he “took a look at the controller [for the door] just to make sure, looked in to make sure that the P-L-C was powered up”.  He agreed that he was “merely inspecting, trying to determine what the problem was.”

The trial justice found that “some level of work” took place, and therefore that the employer was guilty of the offence of failing to ensure that the shipping door was blocked before it was “adjusted, repaired, or [had] work performed on it”, contrary to the Industrial Establishments regulation under the Occupational Health and Safety Act. 

The appeal judge agreed and upheld the conviction.  He stated that the OHSA did not require that a “minimum or threshold amount of work be performed” before the requirements of the OHSA are triggered.  The maintenance employee’s checks of the electrical system for the door amounted to “some work” and therefore the obligation to “block” the door had been triggered.

Ontario (Ministry of Labour) v. Maple Lodge Farms, 2015 ONCJ 172 (CanLII)

 

Even “inspecting” equipment is “working on it”: employer guilty of OHSA charge where employees had not even started maintenance work