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Backhoe Operator Swings Worker Around “Four Full Rotations”, Convicted of Criminal Assault

In a bizarre case, a backhoe operator has been convicted of assault under the Criminal Code after he tried, in a fit of rage, to throw a co-worker off the backhoe by rotating the machine four full rotations while the worker held on to a railing as his feet were flying free of the machine.

The altercation happened after the worker tried to confront the backhoe operator for coming into contact with his father’s truck.  It hadn’t helped that the worker had also complained about the operator’s operation of the backhoe on the previous day.

The worker testified that he approached the backhoe while it was loading a truck, and tried unsuccessfully to get the operator’s attention.  He then opened the backhoe door and yelled at the operator, after which an altercation ensued.  The worker said he fell onto the tracks of the machine, and got up and held the railing.  The operator then rotated the machine four full rotations, with the worker holding on the the railing with his feet flying free.  The worker eventually fell off and landed on the ground. He was unhurt.

The worker said that he lost his hat, which the operator started “stabbing” with the bucket of the machine.  A co-worker wisely persuaded him not to fetch his hat.

The court found the backhoe operator guilty of criminal assault.  The operator’s version of what happened was not credible, but the worker was generally credible, although both of them had been “immature”.

This case demonstrates that workplaces are not immune from the application of the criminal law. Where an employee’s workplace conduct violates the Criminal Code, the police may proceed with charges.

R. v. Schultz, 2014 ONCJ 9 (CanLII)

 

Backhoe Operator Swings Worker Around “Four Full Rotations”, Convicted of Criminal Assault

Employer Should have Fixed Safety Issue Before Accident, Not After: Safety Fix did not Merit Lower Fine

An employer’s corrective action taken after an accident did not entitle it to a reduced fine under the Occupational Health and Safety Act because the action should have been taken – and was legally-required – before the accident, the Ontario Court of Appeal has held.

The employer, Flex N-Gate Canada Company, an auto parts producer, was charged with offences under the Occupational Health and Safety Act after a worker broke several bones in her foot when a bundle of metal sheets slipped off a forklift and fell to the floor.

After a trial, the company was convicted of failing to ensure that material was moved in a safe manner and failing to properly train workers.  The presiding Justice of the Peace imposed a fine of $25,000.00 for each offence, for a total of $50,000.00.  A judge of the Ontario Court of Justice, on appeal, reduced the total fine to $25,000.00 because of the company’s corrective action after the accident.  The corrective action was in response to compliance orders made by a Ministry of Labour inspector against the company.  The appeal judge reduced the total fine by making the two fines “concurrent”.

The Ontario Court of Appeal restored the original fine of $50,000.00.  It decided that the post-accident corrective action simply brought the company into compliance with the Occupational Health and Safety Act – something that the company was already required to do before the accident.  The court stated, “Rewarding an employer for taking corrective action only in response to an inspector’s order reduces an employer’s incentive to take this action before an accident occurs” and also reduces the “deterrent effect” of fines in Occupational Health and Safety Act cases.

Fines may be reduced, the appeal court added, due to an employer’s corrective action beyond what the Occupational Health and Safety Act requires.  Also, an employer’s actions taken before the accident are relevant in setting the amount of the fine.

Lastly, the appeal court stated that “concurrent fines” are not permitted under the Occupational Health and Safety Act.  Because the $50,000.00 total fine imposed by the justice of the peace was “fit”, that fine was reinstated.

In summary, employers will not be rewarded for fixing safety problems after an accident, unless the fix is above-and-beyond what the Occupational Health and Safety Act already requires.

Ontario (Labour) v. Flex-N-Gate Canada Company, 2014 ONCA 53 (CanLII)

 

Employer Should have Fixed Safety Issue Before Accident, Not After: Safety Fix did not Merit Lower Fine

Supervisor Jailed under OHSA after Lying to MOL Inspector, Police

In what is still a relatively rare occurrence, an Ontario supervisor has been sent to jail for violating the Occupational Health and Safety Act after a worker died.  Lying to the police and Ministry of Labour inspector did not help.

Paul Markewycz was the owner and operator of a company called Roofing Medics Ltd.  In 2011, a worker who was installing roofing membrane from a ladder fell approximately 6 metres and struck a fence.  The worker was wearing fall protection equipment but it was not connected to anything when he fell. The worker was pronounced dead shortly afterwards.

Markewycz told the police that the worker fell at the Markewycz home while helping to install roof vents.  A coroner told a Ministry of Labour inspector about the incident.  The inspector attended at the Markewycz home for an investigation.  A week after the accident, Markewycz and his lawyer met with Ministry of Labour inspectors and said that the incident had taken place in Toronto and not at his home. He also told the inspectors that worker had been employed with Roofing Medics, which had not reported the accident to the Ministry of Labour as required by the Occupational Health and Safety Act.

Markewicz was charged with and pleaded guilty to failing as a supervisor to ensure that a worker works with the required protective devices, and to knowingly giving false information to an inspector. He was jailed for 15 days.  Roofing Medics was fined $50,000.00 for two violations including failing to notify an inspector of the accident immediately and in writing within 48 hours.

This case illustrates how the Ministry of Labour will seek severe penalties against those who lie to inspectors.  Honesty is, as our parents told us, the best policy.

The Ministry of Labour press release may be accessed here.

 

Supervisor Jailed under OHSA after Lying to MOL Inspector, Police

Alberta Court imposes large fine for employer in calf-roping case

On October 31, 2013, the Alberta Court of Queen’s Bench released the sentencing decision in R. v. XI Technologies Inc., 2013 ABQB 651. A summary of the Alberta Court of Appeal’s decision affirming the employer’s convictions under Alberta’s Occupational Health and Safety Act can be found here.

The Court of Queen’s Bench sentenced the employer to a fine of $275,000, inclusive of the victim fine surcharge. The Crown had proposed a fine of $400,000 inclusive of the victim fine surcharge. The employer’s counsel argued that figure was too high without specifying a range of what would be appropriate.

The Court considered a number of aggravating factors, including: the Legislature’s increase to the maximum fines for a first offence under the Occupational Health and Safety Act from $150,000 to $500,000; the goal of deterrence; and the fact that the accident had resulted in a fatality. The Court also considered a number of mitigating factors such as: the work environment was not the usual workplace and the activities the employee was performing were unique; the employer was not operating the machine to make a profit; the risk of death was not probable; the employer had taken sincere, albeit inadequate steps to ensure safety and so, although the employer was negligent, it was not knowingly non-compliant with safety standards or recklessly indifferent towards employee safety; the employer was genuinely remorseful; the employer did not have a prior record; and the employer had made a donation to fund a memorial bursary.

This decision confirms that Alberta courts will continue to impose significant fines for breaches of the OH&S legislation, particularly where those breaches result in a fatality. It also highlights that employers must remain vigilant to safety issues in unexpected circumstances where employees are operating outside of their core work functions and that the employer’s ultimate responsibility for safety cannot be delegated to employees or third parties. Finally, this case provides that while employer donations will be considered as a mitigating factor in sentencing, they will not be credited dollar-for-dollar.

R. v. XI Technologies Inc., 2013 ABQB 651 (CanLII)

Alberta Court imposes large fine for employer in calf-roping case

Attack on co-worker who warned of unsafe behaviour gets employee 4 years in prison

An employee who attacked a coworker who warned of safety issues, has been sent to prison for four years.

CBC News reported that the employee was training a coworker on the use of heavy equipment, and that after the coworker warned that the employee was standing in an unsafe place and asked him to move away from the heavy equipment, the employee punched the coworker in the head several times, knocking him to the ground.

The employee then kicked the coworker in the head repeatedly with a steel-toed boot.

The coworker sustained serious injuries during the episode.  He suffered a stroke, has impaired speech and impaired cognition, and is partially paralyzed.

This case illustrates that workplace violence is not only a workplace issue, but can also result in police investigations, criminal charges and imprisonment.

The CBC report may be accessed here.

Attack on co-worker who warned of unsafe behaviour gets employee 4 years in prison

Post-Accident Safety Fixes: An Admission of Liability?

We are often asked whether post-accident fixes or improvements by an employer will be held against it if occupational health and safety charges are laid. For example, if an employer puts a guard on a machine after an employee was injured on the machine, will the court see the installation of the guard as an admission that the machine was not properly guarded?

Employers sometimes feel that they are caught between implementing the fix and risking having it be seen as an admission of liability, or not implementing the fix and risking a higher fine if convicted or being charged with violating a government order to fix the machine. Of course, most employers will be motivated to do what is right and install a fix if needed for safety reasons, regardless of whether that increases the risk of charges or fines; however, the possible risks should be considered. In some cases, quick implementation of the safety fix could actually help avoid charges.

It appears from the caselaw that post-accident safety fixes will, generally, not be considered an admission that an employer violated a safety rule, but may be considered by a court in determining whether the employer exercised due diligence (took all reasonable steps to prevent the violation) or had knowledge of the hazard. For example, the installation of a guard after an accident will likely not be an admission that a guard should have been in place, but it will be relevant to whether the employer, before the accident, took all reasonable steps to ensure that the machine was properly guarded.

In the recent case of R. v. Reliable Wood Shavings Inc., 2013 ONCJ 518, the court stated, “I believe that I can look at post accident conduct in assessing what was reasonable in all of the circumstances . . . What I cannot do is treat them as an admission of liability.”

On the plus-side, post-accident fixes will often lead to lower fines if a company is convicted of a safety offence, as the court will see the employer’s proactive safety fix as a sign of the employer’s commitment to safety. The cost of the fix will often also be considered by the court in setting the amount of the fine.

In one case, the Ontario Food Terminal Board made changes and modifications to the roadways within its facility, including the installation of several stop signs, concrete barriers, and signs around the area where the accident had occurred, after a workplace accident that eventually led to the worker’s death. While the OFTB was convicted of safety offences and fined $65,000, the Justice of the Peace did not view the post-accident actions as admissions of guilt or negligence. The court held that subsequent improvements by a defendant are not a basis for a finding of liability for safety offences, but will be considered in determining whether the employer exercised due diligence or had prior knowledge of the hazard.

An employer should consider, when faced with an accident, how post-accident fixes or improvements could be viewed by the court if the employer is charged. The question is usually not whether to implement the fix, but how to do it in a way that maximizes safety while minimizing legal risk. Advice from an occupational health and safety lawyer should be obtained, and if possible the work should be documented in a manner that confirms that it is not an admission of liability.

Post-Accident Safety Fixes: An Admission of Liability?

Disability Management Company and Principals Not Guilty of Making False Statement

A disability management company charged under the Ontario Insurance Act with knowingly making false or misleading statements to an insurer has been found not guilty. The charges were brought on behalf of the Financial Services Commission of Ontario.

The charges alleged that the company made false statements to an insurer to obtain payment for services that it said that it had provided.  Two principals of the company were also charged.  The business of the company was providing assistive devices and also arranging for assessments to determine persons’ eligibility for insurance benefits under the Statutory Accident Benefits Schedule pursuant to the Ontario Insurance Act.

The essence of the charges was that a doctor had not assessed certain accident victims – for which the disability management company sought payment from the insurer for services – and had not authorized the company to sign a form indicating that the doctor had indeed assessed those persons.

The court held that there was uncertainty in the evidence as to whether the doctor had met with the accident victims, and that the prosecution had not proven that it was unreasonable for the company to believe that it had the consent of the doctor to use the doctor’s name on the forms submitted to the insurer.  The doctor admitted that she had not kept careful track of her visits with the accident victims.

At the very least, this case illustrates that the Financial Services Commission of Ontario and other regulatory bodies take seriously the various stakeholders’ obligation to be truthful when they provide information.

R. v. Ontario Disability Management et al., 2013 ONCJ 470 (CanLII)

Disability Management Company and Principals Not Guilty of Making False Statement

Illegal to Have Cell Phone in Hand, Even for Only a Moment, While Driving: Ontario Appeal Court

Drivers who have a cell phone in hand are committing an offence, even if not using the phone at the time, Ontario’s top court has decided, overturning an appeal judge.

While the driver, Kazemi, was stopped at a stop light, a police officer saw her with a cell phone in her hand. The driver said that the cell phone had fallen from the seat to the floor when she stopped, and that she had picked it up when she got to the red light.

The trial justice convicted her of the offence of “holding or using a hand-held wireless communication device” while driving, pursuant to section 78.1 of Ontario’s Highway Traffic Act.  The appeal judge, however, found her not-guilty.  In his opinion, there must be some sustained physical holding of the device in order to meet the “holding” requirement, so that momentary handling was not enough.  We previously wrote about the appeal decision on this blog.

The Ontario Court of Appeal disagreed, and stated that “having it in one’s hand” is enough to be guilty of the offence of “holding” a cell phone.  According to the Court of Appeal, that interpretation best meets the objective of road safety and avoids the “enforcement challenge” of requiring a police officer to have “continued observation of the driver” for a period of time in order to write a ticket.

The Ontario Court of Appeal’s decision makes it much more difficult for drivers to beat charges under Ontario’s distracted driving law.  We had previously blogged about some of the creative arguments and alibis tried by drivers, including “it was a garage door opener”; one expects that those arguments and alibis will be unsuccessful in most cases, especially in light of the Court of Appeal’s decision.

As a result of this decision, employers may wish to ensure that their mobile device / distracted driving policy prohibits employees from having a cell phone in hand while driving.

R. v. Kazemi, 2013 ONCA 585

 

Illegal to Have Cell Phone in Hand, Even for Only a Moment, While Driving: Ontario Appeal Court

Record $1.050 Million Fine under Ontario OHSA

An Ontario judge has imposed a $1,050,000 fine against Vale Canada Limited, the highest fine ever imposed under the Ontario Occupational Health and Safety Act.  It appears that the previous record fine, handed down in 2010, had been $850,000.

Vale is also required to pay a Victim Fine Surcharge of 25%, bringing the total to $1,312,500.

The fine resulted from a double-fatality after an uncontrolled release of broken rock and ore buried one worker and hit the other in a Sudbury mine.

Vale pleaded guilty to three counts under the Occupational Health and Safety Act including failing to prevent the movement of material through an ore pass while hazardous conditions (a hang-up of broken rock and ore).

Mr. Justice Randall Lalande of the Ontario Court of Justice sentenced Vale to a fine of $350,000 on each count.  The Ministry of Labour, in its press release, notes that “This is the highest ever total fine levied by a Court in Ontario for contraventions of the Occupational Health and Safety Act.”

According to the Sudbury Star, Vale and the Ministry of Labour presented a joint-submission to the court, that the fine be $350,000 per count. The court accepted the joint submission.

The maximum fine under the Occupational Health and Safety Act for a corporation is $500,000 per count.

What were the factors that led the court to impose this historic fine?  It appears that Vale’s size, the fact that two workers died, and the OHSA record of Vale were signficant factors.

In particular, Inco, the operations of which Vale purchased, was convicted in 2001 of two charges under the OHSA and fined $650,000 ($325,000.00 per count) after a worker died.  It was noted at the time that Inco had 11 prior convictions.

Earlier this month, the Ontario Court of Appeal imposed a fine of $750,000 for criminal negligence causing death, on Metron Construction – up from the $200,000 fine imposed by the trial judge.  In that case, the Court of Appeal stated that the cases under the OHSA “revealed a range of fines between $115,000 and $425,000 for cases involving fatalities.”

The Vale (OHSA) and Metron Construction (Criminal Code) fines seem to suggest that fines, particularly in fatality cases, are rising in Ontario.  Employers should take note.

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

Record $1.050 Million Fine under Ontario OHSA

OHSA Charges may Proceed against Insolvent Company in CCAA Proceedings: Court

Occupational Health and Safety Act charges could proceed against an insolvent company even though it had obtained protection from its creditors under the Companies’ Creditors Arrangement Act (“CCAA”), an Ontario judge has decided.

Terrace Bay Pulp Inc. was charged with offences under the Ontario Occupational Health and Safety Act in relation to two separate incidents, one in which a worker was injured in the company’s wood-handling department, and one in which a worker died after an explosion blew part of the roof off of a mill.

Relying on certain sections of the CCAA, the court decided that the Ministry of Labour prosecution under the Occupational Health and Safety Act was “regulatory or prosecutorial in nature”, and the Ministry was not “acting as a creditor” with respect to the prosecution, even though the company could be fined if it were ultimately found guilty of the charges.  As such, the prosecution could proceed.

In response to the company’s argument that it would be costly to defend the charges, the judge noted that it was Terrace Bay’s decision as to whether it would incur the cost of defending the charges or not.

Terrace Bay Pulp Inc. (Re), 2013 ONSC 5111 (CanLII)

OHSA Charges may Proceed against Insolvent Company in CCAA Proceedings: Court

$750K Fine for “Extreme” Criminal Negligence: “More Serious” than OHSA Offences, says Appeal Court in Metron Construction Fatality Case

A $200,000.00 fine was “manifestly unfit”, the Ontario Court of Appeal has ruled, in raising Metron Construction’s fine to $750,000 for criminal negligence after four workers died on Christmas Eve, 2009.  The $200,000 fine imposed by the sentencing judge failed “to convey the need to deliver a message on the importance of workplace safety.”

The workers died when a swing stage – a suspended scaffold – collapsed fourteen floors up a building when six workers boarded, whereas the usual practice was only two workers.  Three of the four workers who died had marijuana in their system at a level consistent with having recently ingested the drug.   The court noted that all of the workers were of limited financial means.

Metron pled guilty to criminal negligence charges, under provisions added to the Criminal Code in 2004 by Bill C-45.  The only issue on the appeal was the amount of the fine.  Metron’s owner had pled guilty to four charges under the Occupational Health and Safety Act and was personally sentenced to pay a fine totaling $90,000.  All criminal charges against the owner were withdrawn.

The appeal court noted that criminal negligence was “a different and more serious offence than those found under” the Occupational Health and Safety Act, for which the “cases revealed a range of fines between $115,000 and $425.000 for cases involving fatalities.”

The sentencing judge had made two main errors in imposing a $200,000 fine, the appeal court said. First, although the sentencing judge was entitled to consider the range of fines imposed under the Occupational Health and Safety Act, he failed to appreciate the “higher degree or moral blameworthiness and gravity associated” with Metron’s conviction for criminal negligence causing death.  Second, the sentencing judge was wrong to consider Metron’s “ability to pay”, which was a factor that courts could consider in setting the fine for individual persons but not corporations in criminal negligence cases.

The sentencing judge was, however, entitled to consider the “economic viability of the organization and the continued employment of its employees.” Interestingly, the appeal court held that in appropriate cases, it was permissible for criminal negligence fines to bankrupt a corporation.  In this case, the financial statements submitted by Metron were “heavily qualified and incomplete” and suggested that there were no employees being paid anymore.  As such, “[a]ny public interest in the continued viability of [Metron] was not manifest.”

Finally, the appeal court noted that the criminal negligence of the site supervisor, for which Metron was responsible, was “extreme”.  Three times as many workers were on the swing stage than there were lifelines available, and only one of the lifelines was properly engaged.

R. v. Metron Construction Corporation, 2013 ONCA 541 (CanLII)

$750K Fine for “Extreme” Criminal Negligence: “More Serious” than OHSA Offences, says Appeal Court in Metron Construction Fatality Case

Alberta’s Highest Court Dismisses Employer’s Appeal in Calf-Roping Case: Agrees that Trial Judge’s Verdict was Unreasonable

Alberta’s Highest Court Dismisses Employer’s Appeal in Calf-Roping Case: Agrees that Trial Judge’s Verdict was Unreasonable

The Alberta Court of Appeal recently released its decision in R v XI Technologies Inc., 2013 ABCA 282 and held that the employer had not met its obligations under Alberta’s occupational health and safety laws when it failed to identify and eliminate the safety risk to its employees in the operation of a faulty calf-roping machine at a client appreciation event.  

Facts

A fatal accident took place during a western-themed client appreciation event hosted by the employer when one of its employees (N.S.) was struck in the head by a lever attached to a calf-roping machine.  The calf-roping machine was rented by the company as part of the day’s entertainment.  However, the supplier had delivered the machine late and without an operator or appropriate instructions.  The employees were left with the task of figuring out how the ride was to be operated and they soon realized that the machine was not functioning properly.  The hinge hook which released the “calf” for party-goers to “lasso” failed to automatically detach.  As a result, the employees determined that the hinge hook would have to be released manually.  N.S. went to unlatch the hinge hook to release the calf when the calf prematurely launched and caused a steel level to strike the employee in the head.  This injury ultimately led to N.S.’s death. 

Prior Rulings

The employer was charged with two counts under the Occupational Health and Safety Act, RSA 2000, c. 0-2, for failing to ensure (1) the health and safety of its employees and (2) that all equipment used at the worksite would safely perform the function for which it was intended or designed.

Following trial, the employer was acquitted on both counts.  Of note, the supplier of the calf-roping machine was also charged with violating the OHS Act, however, the charge was quashed and a new prosecution could not be commenced due to the expiry of the statutory limitation period.  

The Crown appealed the trial judge’s not guilty verdict to a summary conviction appeal judge, who allowed the appeal and entered convictions on both counts.

In response, the employer successfully applied to the Alberta Court of Appeal for leave to appeal the summary conviction judge’s reversal of the verdicts. 

The issues before the Albert Court of Appeal were whether the summary conviction appeal judged erred in finding that the trial judge’s verdict was unreasonable based on a proper view of the facts and whether he misapplied the foreseeability test. 

The Alberta Court of Appeal’s Decision

As to the question of unreasonable verdict, the Alberta Court of Appeal concluded the employer had not been duly diligent. It upheld the summary conviction appeal judge’s ruling that the risk of harm was evident in that the calf-roping machine had been malfunctioning throughout the day, there were visible marks on the machine to indicate that the lever would be propelled with considerable force and that the malfunctioning of the ride created additional hazards, such as requiring the employee to manually reach into the machine which put the employee’s head in close proximity to the lever. 

With respect to foreseeability, the panel held that it was apparent to a reasonable person that there was danger in having to manually reach into the machine to remove the hinge hook.  The employer failed, however, to identify the hazard and failed to take the necessary corrective action to eliminate it.   As such, the employer had not made out a due diligence defence.  The verdict to acquit was therefore unreasonable.

Under Alberta OHS laws, employers are required to assess the workplace to identify hazards and then, once identified, either take steps to eliminate the hazard or if not possible due to legitimate business needs, take steps to minimize and reduce those hazards.  The Alberta Court of Appeal held that the employer failed to both identify the hazard and take the necessary corrective action to eliminate it.  As the calf-roping machine was not in any way necessary to the employer’s business, this meant the hazard was to be eliminated by not using the calf-roping machine at the party at all.  In fact, the Alberta Court of Appeal admonished the employer for even considering to use a machine that no one knew how to operate, without its own operator or a set of instructions and commented that this spoke “volumes as to the lack of its due diligence in this matter”. 

R v XI Technologies Inc., 2013 ABCA 282

Written by Lindsay Mullen  and Jennifer Shepherd

 

 

 

 

 

 

Alberta’s Highest Court Dismisses Employer’s Appeal in Calf-Roping Case: Agrees that Trial Judge’s Verdict was Unreasonable

$410,000 in Fines in Non-Fatal Accident at Plastics Company

An Ontario court has handed down near-the-top-of-the-range fines in an industrial accident that resulted in non-fatal injuries.  Fines of that magnitude have typically been reserved for fatality cases.

Unitec Inc. and 629728 Ontario Limited were in partnership carrying on business as Entropex Limited, a Sarnia plastics company.  They were fined $210,000 and $200,000 respectively under the Occupational Health and Safety Act.

A worker was pinned against a forklift after walking in front of a baling machine, which compacted and strapped plastic, as the machine ejected compacted plastic.

According to the Ministry of Labour press release, the court decided that the baler was not properly guarded, had not been maintained in good condition, and that a worker had performed maintenance on it while the baler was in motion. The court also found that Entropex had failed to provide information, instruction, and supervision to protect workers around the baler.

The Ministry of Labour press release may be read here.

$410,000 in Fines in Non-Fatal Accident at Plastics Company

“Inherently dangerous business” requires “high degree of attention to detail” in safety training and supervision: Court

Dangerous workplaces require particularly careful training and supervision, a judge has stated in convicting a propane company.  The judge found that a worker’s reaction to the sound of an explosion showed that he was not properly trained.

A series of massive explosions at a propane facility in Toronto in 2008 killed a worker and damaged a number of nearby buildings.

Sunrise Propane Energy Group Inc., the operator of the propane facility, was charged with failing to provide information, instruction and supervision to the worker, and with failing to take every reasonable precaution for the protection of the worker.

The court rejected Sunrise’s submissions that, because there had been no complaints against the employee, the court could infer that the employee had been adequately trained. The court also found that because the worker ran in the direction of the explosion rather than away from it, the only rational inference was that he had not been properly trained.

Further, the court held that the employee had not been properly supervised.  The employer did not take the simple step of giving the employee a phone number to call if he had any questions.  Nor did any supervisors call him to check in on him.  The employee should not have been put in charge of the propane yard on the night in question, given his lack of experience.

Sunrise also argued that it had proved due diligence because the accident was not foreseeable. The court rejected that argument and noted that the question was not whether the accident was foreseeable, but whether a reasonable person would have foreseen that having this worker working alone at night was dangerous.

Referring to the dangerous nature of this workplace, the court stated:

“I am sure that the defendants were well meaning, to a degree, but in an inherently dangerous business such as this there must be a high degree of attention to detail and processes in place that address day-to-day issues, particularly instructing, training and supervision for people handling this very dangerous fuel.  People make mistakes and processes assist in mitigating any damage that arises when employees make those mistakes.”

The company was also found guilty, after the same trial, of charges under the Environmental Protection Act.

This case demonstrates that courts will hold employers that operate safety-sensitive businesses to high safety standards, and training and supervision practices will be carefully scrutinized.

R. v.  Sunrise Propane Energy Group Inc., 2013 ONCJ 358 (CanLII)

“Inherently dangerous business” requires “high degree of attention to detail” in safety training and supervision: Court

Company Convicted of OHSA Charges After Criminal Negligence Charges Withdrawn in Fatality

A crane rental company has been convicted of charges under the Occupational Health and Safety Act and fined, after criminal negligence charges against it were withdrawn.

In 2009, a worker was killed after a crane owned by Millenium Crane Rentals Ltd. rolled into an excavation and pinned the worker to the wall.

The Ministry of Labour’s news release states that Millenium Crane was found guilty of failing to maintain the crane in a condition that would not endanger a worker.  A Ministry of Labour inspection had found that the crane was in a state of disrepair.  In particular, parts of the braking system were found to be broken and deteriorated, including seized calipers and worn out brake pads and drums.  The crane had only 25% brake function in its four rear wheels and only 31.25% in its four front wheels.

Interestingly, the Ministry of Labour’s press release states that, “The Crown, however, could not prove that the lack of maintenance on the crane caused the crane to roll into the excavation and fatally injure the worker.”  It was likely for that reason that the criminal prosecutors dropped the criminal negligence charges – often referred to as “Bill C-45” charges – against the worker.

This case is a reminder that the OHSA and criminal charges are not the same and involve different requirements.  The fact that criminal prosecutors drop charges does not mean that the company will be able to successfully defend against OHSA charges.

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

 

Company Convicted of OHSA Charges After Criminal Negligence Charges Withdrawn in Fatality

Part-Owner of Company Convicted, Fined Personally under OHSA

Company owners are not immune from potential convictions and fines under workplace safety laws.

A part-owner of a company has been personally convicted and fined $12,000.00 under the Ontario Occupational Health and Safety Act after a worker became entangled in a machine and died.

According to the Ontario Ministry of Labour’s press release, a worker fell into a hopper that kneads and cuts pasta dough, after he had been standing on a platform ladder to access the hopper portion of a machine.  The machine was in operation.

The Ministry of Labour found that an interlock switch designed to shut off the machine when a cover to the hopper is opened was not functioning.

The company part-owner, who was also a supervisor, pleaded guilty to failing, as a supervisor, to take every precaution reasonable in the circumstances for the protection of a worker.

The company was also convicted under the OHSA for failing, as an employer, to ensure that the equipment, materials and protective devices provided by the employer were maintained in good condition.  The company was fined $120,000.00.

Part-Owner of Company Convicted, Fined Personally under OHSA

Ship’s Navigator Sentenced to Four Years for Criminal Negligence

A B.C. ship’s navigator has been sentenced to four years after he was convicted of criminal negligence causing death for dereliction of duty leading to his ship colliding with an island.

According to The Globe and Mail, B.C. Supreme Court Justice Sunni Stromberg-Stein, in sentencing Karl Lilgert after a jury found him guilty, said that Mr. Lilgert’s relationship with a female crew member of the ship, Queen of the North, led to the collision.

The judge called Mr. Lilgert’s failure to make a course correction “an extreme and catastrophic dereliction of his duty”.  She stated that the collision occurred while Mr. Lilgert was working alone on the bridge with his former lover, who worked on the ship, for the first time since they had ended a relationship.  The judge said that Mr. Lilgert had been distracted by personal issues relating to their relationship.

Two passengers on board – a couple – have not been seen since the ship went down, and were presumed to have died.

The case is another example of a worker being convicted criminally for workplace negligence – not for intentionally doing something unsafe, but rather for not doing something that he should have done.  Mr. Lilgert has appealed.

 

Ship’s Navigator Sentenced to Four Years for Criminal Negligence

Man Criminally Guilty of Dangerous Operation of Farm Tractor

This case is of the “you thought you had heard everything” variety.  An Ontario man has been found guilty under the Criminal Code of dangerous operation of a farm tractor, and his appeal has been dismissed.

The Ontario Court of Appeal summarized the facts as follows:

“•                     the appellant was driving the tractor at 30-35 kilometers per hour along a rutted gravel and dirt road, causing the tractor to bounce along the road;

•                     the appellant was driving in a deliberate manner, and appeared determined to return to his property, heedless of those who were in his path or were attempting to stop him;

•                     without slowing, the appellant drove the tractor through a narrow opening between two trailers, one of which was moving, barely missing both;

•                     the appellant drove toward Constable Diemert, ignored his motions and shouts to stop, and drove within a few of meters of his vehicle before making an evasive manoeuvre to avoid it;

•                     he continued along the road at top speed toward Constable Lalonde, who feared for his own safety, to the extent that he nearly drew his own service revolver, before the appellant abruptly veered away at the last minute to avoid striking him;

•                     he drove up onto the narrow berm, adjacent to and above Constable Keller in his cruiser, putting the officer in fear for his own safety, before the tractor did in fact roll off the berm; and

•                     the evidence of several witnesses, including the officers, who testified that the appellant’s driving caused them to fear for their own safety.”

The appeal court stated that the trial judge found that the appellant’s driving was a “marked departure from what would be expected from a prudent driver in similar circumstances.”  The appellant’s disregard of the officers who were trying to stop him, driving toward the police vehicles in a way that required the officers to get out of the way, and leaving the road and mounting a berm, proved that the appellant had intended to drive dangerously.

One assumes that the appellant was operating the farm tractor for work-related purposes, not for recreation.  If that assumption is correct, the case is another example of the potentially “long arm” of the criminal law reaching into the workplace.  Dangerous operation of farm or construction equipment – particularly on a roadway – can lead to criminal charges.

R. v. Clare, 2013 ONCA 377 (CanLII)

 

 

Man Criminally Guilty of Dangerous Operation of Farm Tractor

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