THE EMPLOYERS' EDGE
It’s an Occupational Hazard: Court of Appeal Orders New Trial Because Employer who was Compliant with Regulations, was still Off-Side the OHSA
Navigating workplace law can be tricky at the best of times. But imagine being told that just because you weren’t violating certain specific laws, doesn’t mean you weren’t at the same time violating certain general laws. That is the case for one custom steel fabricator operating in Ontario.
The employer in R. v. Quinton Steel (Wellington) Limited was the setting for an unfortunate workplace fatality. The company operated an Industrial Establishment as defined in the Industrial Establishments Regulation under the Occupational Health and Safety Act (“OHSA”). A welder was working on a particular piece of equipment, and consistent with the company’s long-standing practice, erected a temporary platform using wooden planks resting on A-Frame end pieces. The platform was set up at a height of 6 feet, 6 inches. It did not have any guardrails and the welder did not have fall arrest equipment on. The welder was wearing his required helmet that covered his face and only allowed him to see out of a small “speed glass” panel, effectively limiting his peripheral vision. As he welded along the eight foot span, the welder simply tried to feel the edge of the platform with his foot. He miscalculated, fell to the ground, and died from his injuries.
The employer was charged under s.25 (2)(h) of the OHSA, which provides that an employer must “take every precaution reasonable in the circumstances for the protection of a worker”. Yes, that language is very broad. It is meant to be broad – more on that later. The trial judge had to interpret that provision in light of the Ministry of Labour’s position that the employer failed to take the reasonable precaution of installing guardrails at the open sides of the raised wood platform. In doing so, the trial judge reviewed certain provisions from the Regulations, which are designed by the Ministry of Labour, and not provincial legislature like the OHSA. The trial judge found that:
- The welder was not required to wear fall protection equipment because he was not working at a height of more than three meters.Section 85 of the Industrial Establishments Regulation therefore was not violated.
- The Construction Projects Regulation also requires fall protection equipment at a height of three meters, but also guardrails if the worker is at 2.4 meters or more.However, that regulation did not apply to the employer.
- Section 13 of the Industrial Establishments Regulation, in part, requires guardrails to be in place at the open side of a raised work surface, regardless of height, but the employer was not charged under that section.
The trial judge dismissed the charges in part because it found that it was not appropriate for the Crown to use the general duty clause from s.25(2)(h) of the OHSA to extend the employer’s duty as specifically provided in s.85 of the Industrial Establishments Regulation.
A Summary Conviction Appeal judge agreed, but the Ontario Court of Appeal was having none of it. It overturned the trial decision and ordered a new trial on the basis that s.25(2)(h) of the OHSA is not limited by the language of the specific Regulations. Consider it this way: Regulations under the OHSA may require an employer to do certain things in certain circumstances. Subsection 25(2)(h) of the OHSA always requires an employer to take all reasonable precautions in all circumstances. That means that employers may be legally required to take precautions in circumstances where even the applicable Regulation does not require it. Sometimes, requiring guardrails to be mounted on a temporary platform only 6.5 feet off the ground will not be a reasonable precaution. In this case however, where the worker had necessarily limited visibility due to his protective equipment, and no way to determine that he had reached the end of his platform, installation of guardrails was a reasonable precaution that needed to be taken for the safety of the worker.
The Court of Appeal came to this decision by taking a view of the purpose of the OHSA. It is public welfare legislation specifically designed to protect workers, and the Court of Appeal has consistently instructed that it must be interpreted generously, not narrowly or technically, in order to allow it to achieve its purpose. This means that the Crown was not required to establish a failure to comply with any of the Regulations in order to prove that s.25(2)(h) was violated. Instead it only had to prove that the installation of guardrails was a reasonable precaution in the circumstances of this work in order to protect a worker, and that the employer failed to install the guardrails. The Court of Appeal decided that the lower Courts did not adequately assess this issue, and so ordered the matter to be re-tried.
It is easy to see how someone might be confused by the apparent inconsistencies between the OHSA and its Regulations. Employers should always remember that the provisions in the Regulations represent the minimum standards that are expected to be upheld under s.25(2)(h) of the OHSA. Further, there are certain rules of statutory interpretation that need to be kept in mind when trying to understand how any written law will apply in discrete circumstances. Fortunately, the professionals at CCPartners have extensive practice interpreting and applying legislation, and advocating on behalf of our employer clients regarding how the Courts should do the same.