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“Safety Engineering Letter of Opinion” dealing with OHSA obligations disallowed by court in civil lawsuit

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A “Safety Engineering Letter of Opinion”, styled as an “expert report” and covering Occupational Health and Safety Act obligations, was struck and its author was prohibited from testifying at the trial of a civil lawsuit.

The lawsuit arose from an accident involving the towing of a disabled motor vehicle at a scrapyard. Some defendants sought to have the author of the Safety Engineering Letter of Opinion testify about obligations under the OHSA, apparently to show that a co-defendant (the operator of the scrapyard) breached its OHSA obligations and therefore was negligent.

The court stated that the Safety Engineering Letter of Opinion drew “legal conclusions” that were beyond its author’s expertise. There was no “specialized standard of care” for which expert evidence was required. To the extent that the OHSA was relevant in the lawsuit, the parties could direct the court to look at the OHSA’s provisions.

Interestingly, the court stated at paragraph 34:

“[The Safety Engineering Letter of Opinion] raises no other statutory or common law duties which the AIM defendants may have owed to Awada [the injured party]. The OHSA did not apply to Awada while he was on AIM’s weigh scale. He was a third-party. The OHSA applies only to workplace relationships between employers and workers. Any duties owed by the AIM defendants to Awada are governed by the Occupiers Liability Act, R.S.O. 1990, c. O.2 and the common law, not by the OHSA. Both Awada and Wehbe have pleaded the Occupiers Liability Act and the Negligence Act; they have not made any allegations with respect to the OHSA.”

The court noted that the scrapyard operator had produced materials relating to its Emergency Response Procedures, Occupational Health and Safety Policy, Safety Enforcement Policy, and Workplace Responsibilities. The court stated that if there was an allegation that the scrapyard operator was negligent in failing to provide one of its employees with appropriate safety training so as to ensure that he was a “competent person”, those documents can be referred to.  The parties could also ask the trial judge to direct the jurors to the relevant provisions of the OHSA and regulations without any need to consider the Safety Engineering Letter of Opinion.

In the result, the court struck the Safety Engineering Letter of Opinion and prohibited its author from testifying as a witness at trial.

Awada v Glaeser, 2017 ONSC 1094 (CanLII)