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)