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Appeal Court Expands Foreseeability Defence

An Ontario Court has released a significant appeal decision which is the latest a line of cases to challenge the traditional view that it is practically impossible for an employer to establish due diligence by arguing that an employee’s actions were not “foreseeable”.  Historically, Ontario Courts have been very reluctant to find that an employer should be absolved in liability even in cases where employees have violated the employer’s safety rules.

R. v. 679052 Ontario Limited (c.o.b. Auction Reconditioning Centre)

The employer in the case operated a business which involved the cleaning automobiles for leasing and car rental companies prior to those vehicles being sold at auction.  An 18 year old worker was employed by the employer as a cleaner and had worked for the employer for a period of four days.  The worker in question was told by the employer that he was not to drive any of the cars on the site.  Notwithstanding the clear instruction, the worker drove a vehicle into the wash bay area setting off a chain of collisions between two other cars and injured another worker who was further up the line. She suffered a pulled ligament and bruising to her leg along with two arm fractures.

The Trial Court convicted the employer of OHSA violations on the basis that at the time of the occurrence no one was supervising the worker and that he should not have been unsupervised for any period to time. The Trial Court went on to find that the supervision was inadequate because the worker was able to “circumvent this observation and supervision and drive the motor vehicle” because everyone had gone on break and therefore the system failed.

The Appeal Court held that it was an error for the Trial Court to impose a requirement that the worker be contemporaneously supervised at all times. There is no such legal requirement under the OHSA that a worker must be given such information, instruction and warnings every time a task is assigned.  The Appeal Court held that to accept that an employer should be required to contemporaneously supervise an employee for each task would be an “absurd result”.

Further, the Appeal Court held it must be considered that the employer’s business did not involve complex safety instructions or procedures. The Appeal Court emphasized that the supervisors had told the worker a number of times that it was not his job to drive, he understood his job was to clean cars and thus it was not foreseeable that the worker would decide to drive a vehicle.

It is important to appreciate that the decision may have been different if the worker had tried to drive cars in the past or if the employer had a culture of tolerating the unauthorized use of vehicles by staff.  In this instance, the Appeal Court held that it was not foreseeable that a worker would unilaterally ignore the simple instruction not to drive a vehicle.  The Appeal Court very helpfully explained that an employer is not required to monitor every single action that a worker takes.  However, employers should appreciate that due diligence requires that employers have a system of supervisory monitoring which reflects the complexity of the task and level of risk to employees.

An interesting aspect of the case is that the worker in question was 18 years old and had only worked for the employer for a period of four days.  Some courts might have imposed a higher monitoring requirement in light of the employee’s age and lack of experience.  However, there did not appear to be any question that the worker understood the employer’s policy and chose to break the “no driving” rule.  The fact that the rule was simple and understood by the worker appeared to be a significant factor in the Appeal Court’s decision.

The case opens the door to employers being able to argue “foreseeability” in a somewhat wider range of cases.  The case will be particularly helpful in circumstances where an employee fails to follow a safety procedure that he had been trained on.

However, it will be still be a relatively rare situation where the foreseeability defence is successful.  The Court of Appeal has made it clear that the OHSA is intended to prevent workplace accidents that arise when workers make mistakes, are careless, or are even reckless.  It will be interesting to see what happens if any of the recent foreseeability decisions are considered by the Court of Appeal.

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