When the Ministry of Labour lays charges under the Occupational Health and Safety Act (“OHSA”) after a workplace injury it often includes a charge under section 25(2)(h) of OHSA which states that an employer is required to “take every precaution reasonable in the circumstances for the protection of a worker”.
A recent case, Ontario (Labour) v. Quinton Steel (Wellington) Limited, 2017 ONCA 1006 interpreted this rather broad statutory obligation.
Martin Vryenhoek died when he fell from a temporary welding platform. The platform was 6 feet and 6 inches tall, did not have guardrails, and no fall arrest equipment was utilized. The employer was charged under the OHSA for, among other things, “failing to take every precaution reasonable in the circumstances for the protection of a worker”. Under the applicable regulation, the installation of guardrails was not specifically required, and the worker was not specifically required to wear fall protection equipment because he was working at a height of less than three metres.
The Trial Decision
The trial justice acquitted the employer, concluding that the applicable regulation was a “complete and discrete code with respect to the requirements for protecting workers from falls in a case such as this.”
The Court of Appeal Decision
The Court of Appeal disagreed with the trial judge and stated that an employer’s duty under section 25(2)(h) to take every precaution reasonable in the circumstances does not depend on the existence of a specific regulation prescribing or proscribing particular conduct. Instead, this Court found an employer’s duty under 25(2)(h) is broader than what is contained in the prescribed regulations. The Court also concluded the trial judge failed to ask whether the installation of guardrails was a reasonable precaution necessary in the circumstances of the case. A new trial has been ordered.
Lessons to be Learned
- An employer can comply with all of its obligations under the regulations under OHSA and be convicted.
- The duty to take every precaution reasonable in the circumstances for the protection of a worker is broader than the specific obligations that are set out in OHSA and the accompanying regulations.
- To be in a position to show it took every precaution reasonable in the circumstances an employer should implement a health & safety program which, among other things, identifies workplace hazards and potentially unsafe situations and implements training and instruction in relation to these hazards and unsafe situations. This can include daily toolbox meetings in some circumstances. For other measures that an employer can introduce, click here.
For over 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416 317-9894 or at [email protected]
An employer should make it clear that the termination clause in an employment contract applies when an employee is promoted.read more
Duty of Good Faith: Do Employers Have a Duty to Disclose Material Facts to Employees Who are Making Employment Related Decisions?
The Facts Mr. Jonasson, a 55 year old engineer with 22 years’ service with Nexen Energy was thinking about either retiring or taking a leave of absence. He decided to request a six month leave of absence. The employer agreed to his leave request if he entered into the...read more
A recent case underscores the importance of including a properly drafted termination clause in your organization’s employment contract. The Facts In March 2010, CIGI hired Mark Menard, a chartered accountant, as Senior Director of Finance. He was responsible for the...read more