Church defeats lawsuit by volunteer after stepladder accident. Duelling OHS experts’ testimony considered
A volunteer has lost his lawsuit against a church after he fell off a stepladder he was using at the church.
The volunteer was a parishioner at the church who agreed to help with painting. He claimed that the church’s negligence led to the accident. He argued, in support of his negligence claim, that the church violated regulations under the Occupational Health and Safety Act.
The court heard expert testimony from two occupational health and safety experts. The court rejected one expert’s testimony, which had been “denuded of efficacy” on cross-examination. The court accepted the other expert’s testimony. That expert’s opinion was that the volunteer was not a “worker” under the OHSA; that the regulations under the OHSA did not apply; that because of the precautions taken by the church, even if the regulations did apply, the church did not breach them; and that had the church been prosecuted under the OHSA, the charges would have been dismissed.
It was important to the court that the volunteer had not been asked to install trim but took it upon himself to do so, contrary to instructions. He took the “variation in risk” upon himself. He fell off the stepladder when working on the trim, not while painting.
With respect to the OHS experts’ testimony, the court noted:
“The exercise [of hearing testimony from the OHS experts] was beneficial. The standards articulated in the OHSA are for the most part an attempt to legislate common sense. These standards do not apply to volunteers; however, the analysis applied by an inspector in assessing a set of circumstances for the purposes of statutory compliance has similarities to the analysis of compliance with the occupier’s atattory [sic] standard of care and the plaintiff’s assumption of risk.”
The court, in dismissing the volunteer’s lawsuit against the church, concluded:
“The defendant provided a stable ladder, a flat and stable working surface, appropriate ladder use instruction and maintained general compliance observations over many weeks and hours . . .
“Even if it could be said that the tableau presented an objectively unreasonable risk of harm, it was the plaintiff who undertook this task of his own volition contrary to instructions from Jarvis. He assumed the variation in risk. The defendant asked for paint volunteers. The plaintiff was not asked to install trim. This work was beyond Jarvis’ purview . . .”
Baltadjian v The Roman Catholic Episcopal Corporation for the Diocese of Alexandria, 2017 ONSC 61 (CanLII)