'It strikes me that there was a lack of a risk assessment': lawyer on Ontario decision
An Ontario court has imposed $225,000 in fines against an employer and $30,000 in fines against a manager personally, for breaches of occupational health and safety rules that contributed to the drowning of an employee at work.
It’s a workplace tragedy that emphasizes the importance for employers to review any activity their employees will be doing in the course of their work for health and safety purposes, according to Nadine Zacks, a labour and employment lawyer at Hicks Morley in Toronto.
“It's really important for employers to do a very detailed review of any activity and conduct a fulsome risk assessment as to what hazards are present and what needs to be done in order to mitigate, or ideally remove, those hazards from their work,” says Zacks. “And then put a very clear plan in place, ensure that employees are trained and aware of that plan before anyone engages in that work, and then reassess that plan if and as circumstances change.”
New Leaf: Living and Learning Together is a non-profit residential agency providing support and services to adults with developmental disabilities and other complex needs. It operates in Queensville, Ont.
New Leaf’s facility included a recreational swimming pool and it had a policy that required at least two staff supervising when a resident was in the pool, with at least one of them being a “competent swimmer.” The policy didn’t define “competent swimmer.”
The pool policy also required use of the pool to be planned 24 hours in advance through the aquatic supervisor.
Workplace policies
New Leaf employees were required to indicate online each year that they had reviewed all of the company’s policies, but employees could check it without actually doing it.
When the COVID-19 pandemic hit in 2020, New Leaf had to change its operations, including the cancellation of day programs such as swimming.
One particular resident at New Leaf, who suffered from complex developmental and behavioural issues, was seriously affected by the shutdown of the day programs. The resident started acting out and damaging property, so two personal support workers (PSWs) who were assigned to the resident informed New Leaf that he needed to have two PSWs with him at all times.
New Leaf developed a plan to re-open the recreational pool for the resident’s use. The plan involved the PSWs, the residential manager, and the manager of day programs.
On Feb. 10, 2021, the aquatic supervisor went home sick. She was the only employee with lifeguard and life-saving qualifications, and the only one who was familiar with who was a good swimmer and who wasn’t. There was no backup during her absence.
No supervisor for swim
The aquatic supervisor was still absent two days later on Feb. 12, when it was decided to take the resident to the pool. One of the PSWs refused to accompany the resident because of the resident’s aggressive behaviour. The other, Sarafa Ashiru, decided to take the resident on his own. The other PSW tried to talk Ashiru out of it, but he was unsuccessful.
The residential manager asked Ashiru if he knew how to swim, and Ashiru replied that he did.
“It looks like there was no clear plan in place as to how they were going to ensure the safety of employees and clients with respect to the pool facility,” says Zacks. “They were relying on one employee who had lifeguard and life-saving qualifications and no requirement that that she be present when they were using the facility.”
“It strikes me that there was a lack of a risk assessment to this aspect of the work and what was needed in order to ensure the safety of any employees who were engaged in that work in advance,” she adds.
When Ashiru arrived at the pool with the resident, he found that the doors were locked. He called the residential manager, who called the manager of day programs. The latter asked housekeeping to unlock the doors.
Concern about risks dismissed
The two managers exchanged text messages wondering if Ashiru was a competent swimmer, and the residential manager suggested that there should be two staff members present. The manager of day programs was dismissive, saying that they would be fine as long as Ashiru could swim.
The text exchange would have been an opportune moment to ensure all of the required precautions were in place, according to Zacks.
“There was also an assumption that [Ashiru] was a competent swimmer or had some level of skill without actually ensuring that he had demonstrated that skill,” she says. “That applies to not just this type of work, but all work where you can't assume that employees have skills - and in fact it's incumbent upon a supervisor to observe and ensure that the employee can demonstrate that they have the proper training, skills, and ability to engage in that work safely.”
According to surveillance video footage, the 50-year-old Ashiru entered the pool and immediately began to have difficulty. He drifted away from the pool’s edge while the resident appeared to be oblivious to what was happening. Ashiru soon stopped struggling and sank to the bottom of the pool.
When Ashiru and the resident hadn’t returned by lunchtime, the other PSW went to the pool, where he found Ashiru’s body at the bottom.
Occupational health and safety charges
New Leaf was charged with offences under the Ontario Occupational Health and Safety Act (OHSA), as were the two managers for their role in the decision-making leading to Ashiru’s death. The Ministry of Labour, Immigration, Training and Skills Development sought fines between $75,000 and $100,000 for each count against New Leaf, and either a $12,000 fine or six days in jail for each count against the managers.
The residential manager pleaded guilty to one count of failing to take every precaution reasonable under the OHSA and was fined $10,000. New Leaf and the other manager went to trial.
The Ontario Court of Justice found New Leaf guilty of three offences under the OHSA: two counts of failing to take every precaution reasonable in the circumstances - not ensuring that Ashiru was a competent swimmer or that an additional worker was present at the pool to monitor Ashiru - and failing to provide adequate supervision to protect the health and safety of a worker.
The court also found the manager of day programs personally guilty on two counts under the OHSA – the same as the first two counts against New Leaf.
The court noted several aggravating factors, including the foreseeability of the risks associated with swimming with no supervision, the absence of any enforcement of or education on the pool policy, and the serious consequences for both Ashiru and the resident. Not only was Ashiru’s swimming ability not properly assessed, but allowing him to take the client alone meant that if the client began to struggle in the pool, Ashiru wouldn’t have been able to provide any life-saving assistance, the court said.
Safety standards
The court also acknowledged New Leaf’s role as a unique provider of care for individuals with complex needs but emphasised that the same workplace safety standards applied, regardless of an organisation's non-profit status. As for the manager of day programs, mitigating factors included his previous community involvement and lack of prior offences. In addition, the evidence indicated that he was overworked during the pandemic and he showed genuine remorse for the incident.
The court issued a $60,000 fine to New Leaf for each of the three counts for which it was convicted, with an additional $15,000 each for the 25-per-cent victim fine surcharge. However, the court gave the agency 10 years to pay the $225,000, noting that its financial picture was “grim,” the work it did “is invaluable to many individuals with complex needs,” and there were no other incidents since Ashiru’s drowning.
The manager of day programs was ordered to personally pay a $12,000 fine and $3,000 victim fine surcharge for each of the two counts, for a total of $30,000, with a five-year timeline to pay.
It was a situation that New Leaf and the supervisors should have foreseen, and that likely played an important part in determining the sentences, according to Zacks.
“It’s hard to say that there wasn’t a reasonably foreseeable risk from [Ashiru] going into the water [with the client alone],” she says.
The managers’ personal liability and the fines issued is something that appears to be becoming more common, adds Zacks.
“It's always been present that supervisors can and are, in fact, charged, but I think we're seeing it more often recently, with individual employees and supervisors that are engaged in the work being looked at on whether they were specifically involved in actions that breached the OHSA and contributed to an incident,” says Zacks. “It's a cautionary tale for supervisors that there’s very real risk of individual liability where their conduct doesn't meet the requirements of the OHSA.”
