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Supervisor, Worker, Company fined Total of $55,000.00 In No-Injury Equipment-Drop Case

Even in no-injury accidents, fines under the Ontario Occupational Health and Safety Act can be significant, as demonstrated by a recent case in which there was potential for serious injury.

According to a Ministry of Labour news release, a company, Paramount Structures Ltd., a supervisor and a worker were fined a total of $55,000.00 after equipment fell from a condominium building under construction in Toronto.

Paramount Structures was contracted to perform the formwork required on the project.  A piece of equipment, a “fly table”, was being hoisted to an upper floor. It was not tied or secured, and it became unbalanced and slid to the ground. It landed on neighbouring railway property. It appears from the Ministry of Labour news release that no one was injured.

Paramount Structures, as an employer, pleaded guilty to failing to ensure that every part of a project must be constructed so it is supported and braced to prevent any movement that may cause its failure or collapse.  It was fined $50,000.00.  A supervisor and a worker pleaded guilty to the same charge and were fined $3,000.00 and $2,000.00 respectively.

Supervisor, Worker, Company fined Total of $55,000.00 In No-Injury Equipment-Drop Case

Worker Guilty of Obstructing MOL Inspector by Refusing to Answer Questions

A worker who refused to answer a Ministry of Labour inspector’s questions during an accident investigation has been found guilty of obstructing the inspector.

An employee of a trash-removal business consumed three beers before work, climbed up on a roof to retrieve loose shingles, and then fell off the roof and became paralyzed below the waist.  A corporation was charged as the injured worker’s “employer”.  A representative of the corporation was also charged as a supervisor, and another individual, one Haniff, was charged with obstructing the MOL inspector by not answering questions.

There was much debate in the case about who was the “employer”.  The company was ultimately found to be the employer and convicted of failing to ensure that the worker wore fall arrest equipment and was trained in fall arrest.

Haniff attended at the Ministry of Labour office, as requested by the inspector and handed the inspector an envelope that contained the telephone record for the corporate defendant. However, Haniff, who admitted that he had taken the initial call from the homeowner asking to have the trash removed, failed to answer the inspector’s other questions about what Haniff did after taking the call, and in particular whether he directed the workers to go to the job site.

Justice of the Peace Mary Ross Hendriks stated:

“Section 62(1) of the Act, which also falls under Part VIII – Enforcement,  states:

 Obstruction of inspector

 62(1) No person shall hinder, obstruct, molest or interfere with or attempt to hinder, obstruct, molest, or interfere with an inspector in the exercise of a power or the performance of a duty under this Act or the regulations or in the execution of a warrant issued under this Act or the Provincial Offences Act with respect to a matter under this Act or the regulations.

“Specifically, subsection 62(2)(a) of the Act creates a positive duty to assist, on “every person” to “furnish all necessary means in the person’s power to facilitate any entry, search, inspection, investigation, examination, testing or inquiry by an inspector,” in the exercise of his or her powers or the performance of his or her duties under the Act or regulations.

“Mr. Haniff’s refusal to answer any of his questions when they met hindered Inspector Lomer’s ability to conduct his investigation, and thwarted his ability to explore undisclosed events and workplace relationships which were relevant to his investigation.”

Haniff was therefore guilty of the Occupational Health and Safety Act offence of obstructing the inspector.

The case shows the importance of co-operating with lawful requests from Ministry of Labour inspectors in the course of an investigation.

Ontario (Ministry of Labour) v. J.R. Contracting Property Services et al., 2013 ONCJ 202 (CanLII)

 

Worker Guilty of Obstructing MOL Inspector by Refusing to Answer Questions

City Reasonably Relied on Engineer’s, Architect’s Stamp: OHSA Charge Dismissed in Wall Collapse Case

The City of Guelph acted reasonably when it relied on the stamped drawing of an architect and engineer as evidencing compliance with all legal requirements, an Ontario judge has held in dismissing an Occupational Health and Safety Act charge against the City of Guelph.

The charge resulted from the death of a fourteen year old girl when a concrete block privacy wall collapsed on her as she tried to boost herself up onto a change table which was affixed to the wall.

The City was charged under the Occupational Health and Safety Act with failing, as an employer, to ensure that the wall was capable of supporting all loads to which it may be subjected “without causing the materials therein to be stressed beyond the allowable unit stresses established under the Building Code Act“.  Mr. Justice Epstein of the Ontario Court of Justice found that the “allowable unit stresses” standard no longer existed in the Building Code at the time of the design and construction of the building.  Rather, the “limits states design philosophy” had replaced it.  The Ministry of Labour had, however, failed to update the language in the OHSA.  As such, “The wording in the charging section has no applicabliy to the circumstances of this case in that the concept of allowable unit stress had expired long before” the design and contruction of this building, which had been designed in accordance with the “limits states design discipline”.  As such, the prosecutor had not proven beyond a reasonable doubt that the City had committed the offence.

According to Justice Epstein, even if the City had committed the offence, it was reasonable for the City to rely on the stamped drawing of the architect and engineer.  It was not readily apparent that the drawing was defective, and in any event the “default position in the industry” is that if walls are joined as shown on the drawing, they need to be interlocked.  There was also an “outright failure” of the masonry subcontractor to properly construct the wall to be stable.  As such, the City had established due diligence by relying on the stamped drawing.

Occupational Health and Safety Act charges against the architect and engineer were previously dismissed for limitations reasons (see our previous post here) but that decision is under appeal.

The court’s acquittal of the City will be of some comfort to employers who rely on stamped documents of architects and engineers in constructing buildings – at least where it could not have been apparent from the drawing that it was deficient.

Her Majesty the Queen v. Corporation of the City of Guelph, Ontario Court of Justice, February 2, 2012 (Epstein J.)

City Reasonably Relied on Engineer’s, Architect’s Stamp: OHSA Charge Dismissed in Wall Collapse Case

Supplier Facing OHSA Charges Alleging that Machine Unsafe

We don’t often hear of Occupational Health and Safety Act charges against suppliers alleging that their machines or equipment were unsafe for use in workplaces.

In a recent case, Occupational Health and Safety Act charges against a supplier, alleging that a machine that it supplied did not comply with the guarding requirements of that Act, were permitted to proceed to trial before a Saskatchewan court.

The Saskatchewan OHSA, in section 8(a)(ii), imposes a duty on every “supplier” to ensure, insofar as is reasonably practicable, that any “plant” supplied by the supplier for use at any place of employment complies with the regulations under the OHSA.  “Plant” is defined to include “equipment”.

A regulation under the Saskatchewan OHSA required that, “Where a worker is required to feed material into a material-forming press, punch, shear or similar machine, an employer or supplier shall” install safeguards to prevent the worker from contacting moving parts.

The supplier argued that the the grain extractor was not a material-forming press, punch, shear or similar machine, nor was a worker required to “feed material” into the grain extractor.  Rather, according to the supplier, the grain extractor was a moving shaft that attached to a grain bag.  The court, however, stated that “No evidence was presented on this point”, and that the issue was better left to the trial judge.

This decision illustrates that suppliers – and not only employers and constructors – can have duties under occupational health and safety legislation – duties that can lead to charges and significant fines if breached.

Subsection 31(1) of the Ontario Occupational Health and Safety Act also places duties on a supplier who “supplies any machine, device, tool or equipment under any rental, leasing or similar arrangement for use in or about a workplace”.

R v Flaman Sales Ltd, 2012 SKPC 170 (CanLII)

Supplier Facing OHSA Charges Alleging that Machine Unsafe

Fear of Personal OHSA Liability Caused Employee’s Anxiety Disorder: Human Rights Tribunal

Supervisors and safety professionals have often told me that they fear being personally charged under the Occupational Health and Safety Act.  Now, a human rights tribunal has decided that an employee’s generalized anxiety disorder was caused by such a fear.

The employee was a “Supervisor, Regulated Substances, Asbestos” with the Hamilton-Wentworth District School Board.  In the fall of 2001, she developed a generalized anxiety disorder as a reaction to the “highly stressful nature of her job, and her fear that, in making a mistake about asbestos removal, she could be held personally liable for a breach of the Occupational Health and Safety Act . . .”

According to the Human Rights Tribunal of Ontario, the employee testified that “the Ministry of Labour was critical of the [school board's] handling of its asbestos removal projects and that she, as the supervisor of these projects, was personally threatened with a substantial fine.”

She went off work due to the anxiety.  Medical evidence showed that she could not work in any position involving liability for health and safety issues.  She asked to return to work in a position that did not involve any risk of OHSA liability.

The Tribunal decided that there were other positions to which the school board could have returned the employee that did not involve potential OHSA liability.  Because the school board did not return her to such a position, it had breached its duty to accommodate.  See my colleague, Catherine Coulter’s article about the significant damages (almost 10 years’ income) awarded to the employee.

The case is an interesting read for safety professionals, and perhaps a reminder to employers to provide sufficient training to ensure that their supervisors and safety professionals can sleep well at night without being nagged by fears of personal charges or liability under the Occupational Health and Safety Act.

Fair v. Hamilton-Wentworth District School Board, 2012 HRTO 350 (CanLII) (decision that employer breached duty to accommodate) and 2013 HRTO 440 (CanLII) (decision awarding damages).

 

 

Fear of Personal OHSA Liability Caused Employee’s Anxiety Disorder: Human Rights Tribunal

Safety and HR Consultants Beware: Unlicensed Private Investigator Convicted

Health and safety and human resource consultants who conduct investigations or retain outside experts to do so, should pay attention to a court decision in which an Ontario man was convicted of acting as a private investigator without a license.

Ontario’s Private Security and Investigative Services Act, 2005 defines a private investigator very broadly as “a person who performs work, for remuneration, that consists primarily of conducting investigations in order to provide information.”

That Act states that “no person shall act as a private investigator or security guard or hold himself or herself out as one unless the person holds an appropriate licence under this act.”

The defendant had attended “tax sales” (forced sales of homes in order to pay back-taxes owing to a municipality) in the past and had purchased homes in this manner.

The defendant undertook several investigations, including checking to determine whether a particular property had fallen into tax arrears and was in jeopardy of being sold, and determining if the property was free and clear of any liens.  Having been unsuccessful in his attempt to purchase the home, he realized that there would be a “surplus” from the sale, so he located and approached the owner of the home who was apparently unaware of the surplus.   The owner agreed to split any “surplus” from the sale 50-50.

The court decided that the defendant was able through investigative techniques to deduce where the property was located and who owned it, and that he had profited from his investigation.  As such, he had acted as a private investigator without a license.  He was therefore guilty of an offence.

The case indicates how broad the term “private investigation” can be interpreted.  Safety professionals and human resources managers who hire private investigators for a fee, should satisfy themselves that the private investigator is licensed.

Although the Act includes several exemptions, including “persons who perform work, for remuneration, that consists primarily of searching for and providing information on . . . the qualifications and suitability of persons as employees or prospective employees”, there are many types of workplace investigations that could fall outside of that exemption.

The bottom line is that safety professionals or human resources managers who undertake “private investigations” themselves for a fee, should check whether their activities require a license.

R. v. Harvey, 2012 ONCJ 702 (CanLII)

Safety and HR Consultants Beware: Unlicensed Private Investigator Convicted

Supervisor’s OHSA Violation Grounds Criminal Negligence Charge

A supervisor’s violation of the Occupational Health and Safety Act can ground a criminal negligence charge against him, an Ontario preliminary inquiry judge has decided, sending the criminal charges to trial.  We reported on this case in January; the court’s reasons for decision were recently made available.

The criminal negligence charge was laid against the Project Supervisor of Metron Construction after five workers fell 13 stories to their deaths when a suspended scaffold collapsed on Christmas Eve, 2009.

The Crown and the defence agreed that in order for the Project Supervisor to be guilty of criminal negligence, the Crown must prove that, by act or omission, he failed to perform a duty, and that if the failure was an omission, the failure was “wanton or reckless”.

The court decided that evidence of the Project Supervisor’s failure to ensure that all workers were tied to lifelines was sufficient proof of criminal negligence causing death that the charges should proceed to trial.  The court found that the duty to ensure that workers were connected to lifelines was set out in the Occupational Health and Safety Act and in the rules of the Construction Safety Association of Ontario.

The Project Supervisor’s consent, tacit or otherwise, to at least 5 workers using the swing stage with their equipment to ascend or descend 14 or more stories without the protection of lifelines was a marked and substantial departure from reasonable prudence.

The judge stated that safety regulations “do not establish criminal standards”, meaning a violation of a safety regulation will not automatically ground a criminal negligence charge; that will be of some comfort to employers and supervisors.  However, in this case, there was evidence of a “substantial departure from the norm” and “wanton disregard”, factors that effectively could turn the breach of the Occupational Health and Safety Act  duty into criminal negligence.

We will provide further updates on this important and high-profile case as they become available.

R. v. Kazenelson, 2013 CarswellOnt 1765 (Ontario Court of Justice)

Supervisor’s OHSA Violation Grounds Criminal Negligence Charge

Escalating Penalties: Alberta OHS Convictions For 2012 – What Can Employers Expect For The Year Ahead?

A person who contravenes Alberta’s Occupational Health and Safety Act, Regulations or Code is liable, for a first offence, to a fine of not more than $500,000 or imprisonment for a term not exceeding 6 months and, for a second or subsequent offence, to a fine of not more than $1 million or imprisonment for a term not exceeding 12 months.

In 2012, Alberta Courts imposed penalties for Occupational Health and Safety legislation violations in nine cases. Of the four cases involving fatalities, penalties against companies (including fines, alternative penalties and victim surcharges) ranged from $250,000 to nearly $1.5 million. Three of the four cases had penalties at the lower end of this range. The penalties for the five cases involving serious injuries ranged between $70,000 and $85,000, displaying an upward trend from prior years for fines in non-fatal cases.

The year 2012 represented the first time that a case achieved fines reaching the $1 million mark, and demonstrating a willingness by the court to render penalties dramatically increased from historical amounts for penalties in cases involving fatalities. The case of R. v. Perera Development Corp., Action No. 100171909P1, June 4, 2012, involved a dump truck driver who was fatally injured after removing debris from an excavation site when a 15 metre high wall of dirt and rock collapsed on him, crushing him inside of the cab of the truck. The prosecution charged two related companies as employer and/or prime contractor with numerous OHS violations, arguing that they cut corners to complete the construction project, despite having identified (but ignoring) a serious hazard associated with an improperly shored up wall of the pit. A Judge of the Alberta Provincial Court convicted the employer and prime contractor of multiple violations, deciding that they failed to exercised due diligence. The court expressed astonishment that two experienced construction companies would leave a steep 50 foot wall without any shoring whatsoever. Describing their conduct as “egregious and outrageous,” the court noted that reasonable steps could have been taken to properly shore up the wall for relatively small amount of money compared to the overall cost of the project. The court concluded that although the companies had some safety procedures in place at the site, their systems were inadequate. The court fined Perera Development Corporation a total of $1.25 million plus a 15% victim surcharge. The court also fined Perera Shawnee Ltd. a total of $900,000 plus a 15% victim surcharge, for a total of $2,472,500 in penalties arising from the incident.

The trend continues. On January 24, 2013, SSEC Canada Ltd. was sentenced to a $1.5 million penalty, which was comprised of a $200,000 fine and a $1.3 million payment to the Alberta Law Foundation to be used to support an outreach and education program. The conviction arose as a result of a guilty plea by SSEC Canada Ltd. to three charges under Alberta’s Occupational Health and Safety Act relating to the failure of the employer to ensure, as far as reasonably practicable, the health and safety of workers. The circumstances giving rise to the incident related to the work being performed on large metal storage tanks, which work had fallen behind schedule. In order to expedite progress, SSEC Canada proposed revised construction whereby the tanks’ walls and roofs would be built at the same time. The prime contractor agreed to the revisions, but said the work should be done under its own construction management team which would supervise quality control and safety. Despite this direction, SSEC Canada began work using the new method before the prime contractor’s team arrived on site, and even though the procedures had not yet been certified by a professional engineer. On April 24, 2007, about three weeks after SSEC Canada began using the new method, a roof collapsed when the wire cables holding it up snapped after being kinked and torqued in high winds. Two workers were crushed by falling steel and five other workers were injured.

It is noteworthy that in both the Perera and SSEC Canada cases, the circumstances involved fatal incidents where the hazards were specifically identified, but the implementation and following of proper safety measures were deliberately bypassed.

For more information see: http://humanservices.alberta.ca/working-in-alberta/6752.html

Escalating Penalties: Alberta OHS Convictions For 2012 – What Can Employers Expect For The Year Ahead?

Safety Manual “Lacking in Efficiency” – Employer Convicted under OHSA

An Ontario justice of the peace has held that an employer’s safety manual was defective, and has convicted the employer of four charges under the Occupational Health and Safety Act.

The employer was charged after a worker was seriously injured when he was hit by the bucket of an excavator while working in a trench removing old pipes and replacing them with new ones.

The charges alleged a failure to adequately train the worker, and failure to provide a competent, dedicated signaller who was clear of the intended path of travel of the equipment.

The court stated that:

“[T]his court views the contents of the corporate Safety Manual and the smaller Employee Safety and Environmental Handbook to be lacking in efficiency.  There was no reference to mandated signals to be a standard use of communication between all construction workers.  The Safety Manual had a very short description about the use of a ladder [to exit the trench].  There was conflicting information about the use of a ‘top man’ at the work site.  There was no specific testimony which established that the employees were aware of the content of every safety and health instruction in the Safety Manual.”

The justice of the peace also stated that, “The employee handbook has no written instruction regarding the role of a signaller.”  Although there was evidence that the employer had issued oral instructions at a “tailgate meeting”, those instructions were not sufficient.

This decision illustrates the importance of employers ensuring that their safety manuals cover, with the appropriate level of detail, the key safety issues for that employer’s workplace.  In this case, signalling was obviously key in the employer’s business, but it was covered inadequately in the safety manual. An inadequate safety manual can actually be used against the employer at trial, rather than assist in establishing a due diligence defence.

Ontario (Ministry of Labour) v. Eastway Contracting Inc., 2012 CarswellOnt 17161 (Ontario Court of Justice)

Safety Manual “Lacking in Efficiency” – Employer Convicted under OHSA

Farm Employer Guilty: “Accident Waiting to Happen” in Case of Sinking Trailer that Rose Again

A farm employer has been convicted of a charge under the Occupational Health and Safety Act where portable steps being used by the employer were “not even barely adequate”.

The employer was charged with failing to take the reasonable precaution of ensuring that adequate access and/or egress was provided for a transport storage trailer.  A 59-year-old worker fell and broke her leg while climbing down from the trailer. The evidence showed that the top step of the portable steps used to access the trailer was 24 inches lower than the floor of the trailer, so that the employee had to climb down from the trailer backwards, lying on her stomach on the floor of the trailer, because of the distance to the top step. 

Interestingly, it appears that the steps had been adequate when the trailer was in its previous location. There, the trailer’s tires had been flat and the wheels sunk into the ground, shortening the distance between the top step and the floor of the trailer. The problem was that the trailer had been moved and the tires inflated.

The trial justice had found the employer guilty of the charge, calling the situation an “accident waiting to happen”.  The appeal judge agreed that the conviction should stand.  The distance of 24 inches between the top step and the floor of the trailer created a self-evidently unsafe situation.  The obligation under the OHSA to take “every reasonable precaution” includes the obligation to provide equipment that is adequate to the task for which it is required.   In the circumstances, it was not a defence that no one foresaw the danger and that no worker complained.

Ontario (Ministry of Labour) v. Stratford Chick Hatchery Ltd., 2013 ONCJ 47 (CanLII)

Farm Employer Guilty: “Accident Waiting to Happen” in Case of Sinking Trailer that Rose Again

Supervisor Fined for Disturbing Accident Scene

An Ontario supervisor has been convicted and fined under the Occupational Health and Safety Act for disturbing an accident scene.

According to a Ministry of Labour press release, a worker at a residential construction site sustained fractures and a back injury when he fell through an open deck that had been framed but not yet completed.   According to the press release, the supervisor “directed workers to install guardrails and the deck floor before the Ministry of Labour attended the scene. This was done without the permission of a ministry inspector.”

The supervisor was fined $2,500.00.

The company pleaded guilty and was fined $50,000.00 for failing to ensure that a guardrail system was in place.

This case demonstrates the importance of employers ensuring that employees do not disturb the scene of an accident – other than to attend to an injured worker – until the Ministry of Labour inspector has arrived.  Inspectors and prosecutors will show little mercy to those who disturb the scene and potentially make it difficult for the inspector to carry out his or her investigation, particularly if the inspectors suspect an attempt to cover up the facts.

The Ministry of Labour press release may be accessed here.

Supervisor Fined for Disturbing Accident Scene

Despite Possible OHSA Charges, Employer’s Appeal of MOL Inspector’s Order May Proceed

An employer’s appeal of a Ministry of Labour inspector’s compliance orders may proceed, despite the inspector’s ongoing investigation into possible charges, the Ontario Labour Relations Board has ruled.

The inspector’s compliance orders dealt with the wearing of personal protective equipment and the training of workers regarding hazards associated with moving vehicles or equipment.  The employer appealed the orders to the OLRB.  At the same time, the inspector continued an investigation that could result in potential charges against the employer under the Occupational Health and Safety Act.

Interestingly, it was the Ministry of Labour – not the employer – that asked the OLRB to adjourn the employer’s appeal until the inspector’s investigation had been completed.  The Ministry argued that it would not be proper to address issues in the OLRB’s pre-hearing in the employer’s appeal, or in the course of the appeal itself, which may involve other workplace parties such as the union and a particular worker who were participating in the inspector’s investigation into possible charges.

The OLRB rejected the Ministry’s request, stating that the employer, which was represented by counsel, wished to proceed with the appeal and had not yet been charged with offences under the Occupational Health and Safety Act.  Further, at least at the pre-hearing stage of the employer’s OLRB appeal, the employer would not be required to provide any information to the Ministry against its will which could prejudice the employer if it were charged under the Occupational Health and Safety Act after the inspector completed the investigation.

Lastly, the OLRB stated that any concerns about prejudice would be more persuasively raised by an employer whose interests were potentially at risk, rather than by the Ministry.

In the result, the employer was permitted to proceed with its appeal of the Ministry inspector’s compliance orders.  The Ministry’s request for reconsideration of the OLRB’s decision was also dismissed.

This is a welcome decision that permits employers to challenge Ministry inspectors’ compliance orders without having to wait until the inspector has completed his or her investigation.

Trisan Construction Inc v Labourers International Union of North America, Local 183, 2012 CanLII 87260 (ON LRB), request for reconsideration denied.

Despite Possible OHSA Charges, Employer’s Appeal of MOL Inspector’s Order May Proceed

Union asks Court to Initiate Safety Prosecution Against Employer

A union has taken the unusual step of asking the Federal Court to order the federal Minister of Labour to prosecute a company for alleged safety violations.

In 2010, the Canadian Union of Public Employees and two other unions, the Air Canada Pilots Association and the CAW, filed a complaint with Human Resources and Skills Development Canada, alleging that Air Canada was in violation of certain sections of Part II (Occupational Health and Safety) of the Canada Labour Code.

The alleged violations related to workplace violence concerns, including failing to co-operate with the health and safety policy committee and failing to choose an appropriate, impartial person to investigate workplace violence.  The complaint asked that a Health and Safety Officer with HRSDC intervene.  A Health and Safety Officer investigated and found no violation.

CUPE then applied to the court for an Order compelling an HRSDC Health and Safety Officer to issue a direction to Air Canada to end the alleged violations, and requiring the Minister of Labour to prosecute Air Canada, or to permit CUPE to prosecute Air Canada.

Madam Justice Kane decided that generally speaking, courts will not determine whether a Health and Safety Officer should issue a safety direction or what the direction should be.  She also stated that courts will not order the Minister of Labour to prosecute for an alleged violation of the Canada Labour Code.  Lastly, she stated that courts will rarely interfere with the Minister’s discretion as to whether or not to lay charges.

This case is part of a trend of unions seeking safety charges against companies.  As we have previously mentioned on this blog, the Ontario Federation of Labour has a campaign seeking more criminal prosecutions against companies and supervisors alleged to have committed serious safety breaches.

Cupe, Air Canada Component v. Canada (Minister of Labour), 2012 FC 1484 (CanLII)

Union asks Court to Initiate Safety Prosecution Against Employer

Employer Fined $85,000 for Failing to Maintain Vehicle’s Brakes

There may be many good reasons for employers to maintain their vehicles, but one reason not often considered is avoidance of occupational health and safety charges and fines.

A mining company has been convicted in the Yukon of occupational health and safety charges and fined $85,000.00 for failing to maintain a special driveshaft brake on a vehicle.

An apprentice mechanic was asked to transport a piece of mining equipment into the underground shaft at the mine.  He drove a Toyota Land Cruiser into the mine shaft, which had a steep 15 degree slope.  A tractor parked in the shaft blocked his way.  He stopped the Land Cruiser and pressed a dashboard button to engage a special driveshaft “park brake” that was added to the Land Cruiser.  He did not engage the regular park brake.  After he got out and walked ahead of the Land Cruiser, it rolled down the slope and struck him; he was seriously injured and later died.

The employer pleaded guilty to failing to maintain the Land Cruiser and failing to ensure that the employee was competent to drive the Land Cruiser. 

The court noted that one of the brake linings on the driveshaft brake was worn and made insufficient contact to stop the vehicle on a 15 percent slope.  That problem had not been detected by the company, and the vehicle was overdue for a mechanical inspection.  Even though the mechanical inspection, which was based on the vehicle’s operating hours, was required by a company policy but was not specifically required by the manufacturer or by government regulation, there was a clear failure to ensure that the vehicle was maintained in a safe operating condition.

The court also decided that the employee was insufficiently familiar with the vehicle and the hazards associated with operating it on a steep slope in an underground mine environment.

This tragic case is another example of the far-reaching nature of occupational health and safety laws, which extend to the maintenance of the employer’s vehicle fleet.

R. v. Procon Mining & Tunnelling Ltd., 2012 YKTC 100 (CanLII), http://canlii.ca/t/fvbtb

 

Employer Fined $85,000 for Failing to Maintain Vehicle’s Brakes

Criminal Negligence Trial Against Ship’s Navigation Officer Begins

The CBC is reporting that the criminal negligence trial of Karl Lilgert, Navigation Officer of the ferry, Queen of the North, has commenced in Vancouver.

On March 22, 2006, the ferry crashed into an island and sank off the B.C. coast.  Two passengers went missing and are presumed to have died.  A Transportation Safety Board investigation found that Mr. Lilgert was the navigation officer and on the bridge.  He has pleaded not guilty to the charges.

This is another case of criminal charges arising out of an alleged failure to perform workplace duties safely.

Stay tuned for further updates.

Criminal Negligence Trial Against Ship’s Navigation Officer Begins

Supervisor’s Criminal Safety Charges Going to Trial

An Ontario judge has decided that criminal charges against a Project Manager should go to trial.

The charges against Vadim Kazenelson, Project Manager for Metron Construction, arise from the tragic Christmas Eve 2009 incident in which four workers on a suspended scaffold fell 14 stories to their deaths.

In July 2012, Metron Construction pleaded guilty to charges, arising out of the same incident, of criminal negligence causing death and was fined $200,000.00 plus a $30,000.00 Victim Fine Surcharge.  Metron’s owner, Joel Swartz, pleaded guilty to four charges under the Ontario Occupational Health and Safety Act and was personally fined $90,000.00 plus a Victim Fine Surcharge of $22,500.00.  Our July 17, 2012 post on the fines against Metron and Swartz can be found here.

Labour groups have increasingly been calling for criminal enforcement, under the so-called Bill C-45, against companies and supervisors who commit serious safety breaches. The Ontario Federation of Labour, for instance, has what it calls its “Kill a Worker, Go to Jail” campaign.

Stay tuned for further updates.

Supervisor’s Criminal Safety Charges Going to Trial

No Automatic OHSA Liability After Equipment-Failure Accident: Charge Dismissed where Use of Equipment not “Likely”

Employers are not required to anticipate all safety hazards, however unforeseeable. A recent case illustrates this point.

In a tragic accident, a worker died when a brace (which formed part of a makeshift winch used to pull concrete pipes into place) failed, striking the worker.

The employer was charged under the Occupational Health and Safety Act with failing to design the brace ”to support or resist all loads and forces to which it is likely to be subjected”.

Mr. Justice David Paciocco of the Ontario Court of Justice decided that the workers understood that only alignment of the pipe – and not force – could accomplish the task of moving the pipe into place, and that the winch system and brace were not designed to overcome resistance from a misaligned pipe through increased force from the winch.  That use of the brace and winch system was not “likely”, so the charge was dismissed.

Interestingly, Justice Paciocco rejected the Ministry of Labour prosecutor’s argument that the mere failure of the wooden brace proved that it was not properly designed.  Rather, the employer would only be guilty if it failed to design the brace to withstand “likely” forces.  Here, because the employees’ use of the brace at the time of the accident was not “likely”, the charge was dismissed.

R. v. Thomas Fuller and Sons Ltd., 2012 ONCJ 731 (CanLII)

No Automatic OHSA Liability After Equipment-Failure Accident: Charge Dismissed where Use of Equipment not “Likely”

Even Careless, Reckless Workers Protected by OHSA: Ontario Court

A Justice of the Peace has reaffirmed that Ontario’s safety laws are intended to protect not only safe workers, but also workers who make mistakes, are careless or are reckless.

A steel beam that was temporarily welded to a pile broke free and fell on a worker while another pile was being vibrated into place.

The company argued that the welder had used the wrong type of weld, and that the company reasonably believed that the welder would use the correct weld – a “full” weld.

Justice of the Peace Mackey stated:

“What Deep Foundations, and all other employers must remember on a daily basis is, and the Spanway Buildings decision says it well, that ‘workplace safety regulations . . . are intended to prevent workplace accidents that arise when workers make mistakes, are careless, or are even reckless.’ No one is expected to be perfect, but an employer has a responsibility to be on top of the safety of their employees, and not just by going through the motions of manuals and training.”

The court found that the employer failed to take the reasonable precaution of having a professional engineer provide the requirements for welding where one and/or more pile was tack welded while another pile was being driven.

Ministry of Labour v. Deep Foundations Contractors Inc., 2012 ONCJ 701 (CanLII)

Even Careless, Reckless Workers Protected by OHSA: Ontario Court

Constant Supervision not Required by OHSA: Ontario Court

The Occupational Health and Safety Act does not require that workers be “contemporaneously supervised at all times”, an Ontario appeal judge has held, dismissing two charges.

In a bizarre accident, an 18-year-old worker at a company that washed cars prior to their sale at an auction, drove a vehicle into a wash bay setting off a chain of collisions between two other cars and resulting in another employee, further up the line, being injured.

The worker had been told twice by a manager not to drive, initially when he was hired and again on the day of the incident.  He admitted that he was aware of the safety policy of the appellant that in order “To drive a vehicle on the property you must have a valid driver’s licence.”  He did not have a driver’s licence.

He also admitted that he moved the car “in the heat of the moment”.  At the time of the incident, there were no supervisors in the wash bay; all of the workers had gone on a break. 

At trial, the presiding justice of the peace stated that the worker should not have been unsupervised for any period of time.  She said that the supervision was inadequate because the worker was able to “circumvent this observation and supervision and drive the motor vehicle” because everyone had gone on break and therefore the system failed. 

The appeal judge disagreed, holding that the Occupational Health and Safety Act did not require that a supervisor always be present.  Because it was not the worker’s job to drive, nor was there any reason for the company to suspect that he would drive, the employer was not required to provide him with “information, instruction or supervision” in safe operation or parking of vehicle.

The appeal was allowed, and the Occupational Health and Safety Act charges of failing to instruct and supervise, and failing to ensure that the worker had a valid driver’s license, were therefore dismissed.

R. v. 679052 Ontario Limited (c.o.b. Auction Reconditioning Centre), 2012 ONCJ 747 (CanLII)

Constant Supervision not Required by OHSA: Ontario Court

Employer not Liable where Safety Hazard Unforeseeable: Ontario Court

An Ontario appeal court has overturned a conviction under the Occupational Health and Safety Act because there was no basis for concluding that the collapse of an overhead duct was a foreseeable risk.  The accident could not have been expected.

Employees were removing ducts and other equipment from a non-operational foundry in Woodstock, Ontario, in order to transport it to the United States.  A large section of the duct work collapsed and seriously injured a worker.

What had happened, the court concluded, was that sand had built up in the ducts and caused them to collapse.  The evidence was that the build up should not have occurred and could not have been expected.  Witnesses gave uncontradicted evidence that it was not practical or reasonable to inspect all welds in the ducts as it would have taken years to do so.  But for a poor weld and the sand build up, the collapse would not have happened.

The appeal court held that the “foreseeability of the effect” was one of the factors to be considered in determining whether the employer had exercised due diligence.  Here, the sand build up and collapse were not foreseeable, and the charges were dismissed.

The decision is a reminder that not all workplace accidents justify charges under the Occupational Health and Safety Act.  As our recent prosecutions study indicated, only 6% of corporations take their OHSA charges all the way to trial, so there is minimal caselaw. This decision will assist employers in understanding the scope of the due diligence defence.

R. v. Rassaun Steel & MFG. Co. Ltd., 2012 ONCJ 705 (CanLII)

 

Employer not Liable where Safety Hazard Unforeseeable: Ontario Court