“Flagrant disregard” of OHSA, failure to report, gets construction company convicted on 5 OHSA charges

A construction company that tried to blame a worker’s fall on his untied boots, has been found guilty of all 5 charges against it under Saskatchewan’s The Occupational Health and Safety Act.

The 18-year-old worker, who had been on the job for 6 or 7 hours, fell at least 20 feet and broke his wrist and 2 vertebra.  He had been working on roof trusses that were 20 to 25 feet off the ground. He had not received any training and there was no fall protection equipment provided.

The contruction company argued that the worker was not its employee but rather was an independent contractor. The court rejected that argument, finding that the worker was under the direction of the owner’s son; had no independent control of his employment; his wages were set by the company’s owner; no one ever suggested to him that he was a self-employed contractor; and he considered himself to be an employee.

The contruction company failed to report the accident to Saskatchewan Occupational Health and Safety. A representative of Saskatchewan Occupational Health and Safety testified that they had received notice from Worker’s Compensation, not the company.  As such, the court convicted the company of failing to report to Saskatchewan Occupational Health and Safety where a worker is required to be admitted to a hospital as an inpatient for a period of 72 hours.

The court also convicted the employer of failing to train; not providing fall protection equipment; failing to provide competent supervision (which was clear because the company violated basic requirements under the OHSA); and failing to ensure that the worker wore approved industrial protective headgear.

The owner of the company argued that the injured worker caused the accident as his boots were not tied.  The court noted that that was irrelevant as the employer had a duty to supervise and ensure proper safety procedures on the work site were followed.  It is generally not prudent to attempt to blame the injured worker for a relatively minor transgression when the company committed serious safety violations.

As such, the court found the company guilty on all 5 charges under The Occupational Health and Safety Act.

R. v Fred Thue Construction Ltd., 2014 SKPC 168 (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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