“Everyone just knew” was not a defence to OHSA charges: court

An employer’s assertion that “everyone just knew” the safety rules, was not a defence to charges under the Occupational Health and Safety Act, an Ontario court has held. The employer’s “casual, oral practice” – without a written policy – was not enough.

Anray Ltd., an excavating contractor, engaged one Marr to transport an excavator.  Marr stopped an employee, Kaczynski, who was in the middle of loading the excavator onto Marr’s truck so Marr could clean the excavator’s treads.  The employee left Marr to do the cleaning, after which Marr hopped in the excavator and tried to load it onto the trailer.  The excavator slid off the side of the trailer.  Marr was injured.

The Ministry of Labour charged Anray under the Occupational Health and Safety Act with failing to ensure that the excavator was moved in a safe manner.

Anray argued that “everyone just knew” that only Kaczynski would operate the excavator.  However, Justice of the Peace Conacher held that it was “well within the realm of predictability” that Marr might take it upon himself to load the excavator on the truck.

JP Conacher stated,

“As mentioned, the Defence relies heavily in its due diligence submissions on the contention that, with respect to the 14 ton excavator, ‘everyone just knew’ who was to operate the machine.  The ‘everyone just knew’ assertion was an element in a due diligence defence in another trial matter before this Court which illustrates the limitations of relying on such a practice.”

Instead, Anray’s “casual, oral practice” was insufficient for ensuring the safe movement of machinery or equipment. Anray was found guilty of the charge.

This decision seems surprising.  One would think that it is self-evident that only trained and authorized persons could load a 14-ton excavator on a trailer, and that no policy is needed on that point.  Employers cannot be expected to have written policies on every possible hazard, however unlikely.

Ontario (Ministry of Labour) v. Anray Limited, 2014 ONCJ 203 (CanLII)


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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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