Supervisor’s OHSA conviction upheld on appeal: prosecutor not required to prove what “hazard” caused concrete worker’s death

A supervisor’s Occupational Health and Safety Act conviction of failing to sufficiently and competently supervise work has been upheld on appeal, after a concrete worker died.

The supervisor operated and managed a concrete business.  He was hired to pour a concrete floor in a newly constructed shop.  They used a gas heater to heat the area.  The supervisor became aware that the gas supply hose to the heater produced an electric shock when touched. He warned workers but did not fix the problem.

The worker, who had been trowelling concrete, was later found lying on the floor near the gas heater.  He was later pronounced dead.  The treating doctor observed two red areas on his skin, which were consistent with electrocution.

The prosecutor’s theory at trial was that the worker died from electrocution.  The supervisor suggested that the death was from carbon monoxide poisoning from the gas heater so that the charge, based on electrocution, should be dismissed. Both the trial judge and Court of Appeal disagreed, holding that the contention that the worker died from carbon monoxide poisoning was speculative and not supported by the evidence.

The Court of Appeal further noted that the charge did not specify what “hazard” caused the death, and accordingly the prosecutor did not need to prove the cause.  As such, the supervisor was properly convicted of the “failure to supervise” charge under the OHSA.

R v Farnham, 2016 SKCA 111 (CanLII)

Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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