While the scope of the Occupational Health and Safety Act is broad, it is not limitless. A recent decision from the Ontario Court of Justice held that where the nature of a workplace means that it is not required to implement a protective measure prescribed by the Regulations, the Crown cannot then successfully charge the employer with failing to reasonably protect a worker as a result of non-implementation of that same measure.
In Quinton Steel (Wellington), a welder fell from a height of approximately 6 ½ feet, and was later found dead. At the time, the worker was working on a temporary structure which involved a raised plank supported by A-Frame steps at either end.
The Crown charged the employer with failing to take the reasonable precaution of installing guardrails at the edge of the raised wooden platform. This was a charge under the general duty clause which requires that an employer take every reasonable precaution for the safety of a worker.
The employer was also charged with failing to provide information and training to the worker to prevent him from falling.
The Court noted that the worker fell from a height of less than three metres. As a result, the Industrial Establishment Regulation governing safety belts and harnesses did not apply.
The Crown’s position was that, notwithstanding that the Regulation did not mandate guardrails for the height at which the worker was working, the employer should have been aware of the risk and installed guardrails in response.
The Court found that the requirement under the Industrial Establishments Regulation that guardrails be installed on the open side of a raised surface was not unlimited in application, and did not apply in a literal sense to any raised surface. Specifically, in order to avoid absurd results in application, the Court concluded the provision should only be read to cover permanent surfaces, not temporary or movable surfaces such as was at issue in this case.
The Court held that the Crown was impermissibly attempting to use the general duty clause to broaden the scope of the technical regulation. In essence, the Crown was arguing that the Regulation was not stringent enough in the circumstances. The Court held that the Regulations established reasonable precautions for the worksite, which did not include guardrails.
The Court found that the regulations governing when guardrails were required was a “complete and discrete code” that governed the requirements for protecting workers from falls in similar cases.
The Court also did not find any evidence of prior accidents or close-calls in similar circumstances.
As a result of its findings, the Court did not find that the lack of training with respect to guardrails was a breach of the OHSA, since guardrails were a precaution not required under the OHSA.
Employers may be concerned about the broad language in health and safety legislation concerning “reasonable precautions”. However, this case demonstrates that an employer can rely on compliance with the technical requirements of the Regulations, and that those requirements are a complete code of when and to what extent those safety measures are required.
Employers should ensure compliance with technical regulations, not only because they are good corporate practice and breaches can result in legal liability, but also because, as this case demonstrates, they can serve as a defence against other charges under health and safety legislation.
At the 2015 Ontario employment law conference, employment lawyer Ryan Conlin will provide you with an in depth look developments in OH&S law. The session will cover:
- Changes to the definition of a “worker” under the Occupational Health and Safety Act and its implications,
- Recent cases involving criminal prosecutions and jail terms for employers and corporate officers, and
- Trends in enforcement of the Act by the Ministry of Labour and how to manage Ministry investigations.