Employer must take precautions in case of mistakes by workers: Ontario court

Every mistake can’t be anticipated, but employers have obligation to reduce chance of injury if mistakes are made

Mistakes can’t always be anticipated, but an employer has a responsibility to take reasonable precautions to ensure employees are protected as much as possible if a mistake is made, the Ontario Court of Justice has ruled.

Deep Foundations Contractors is a construction contracting company in Ottawa. On Oct. 28, 2009, Deep Foundations employees were excavating a water main site. Deep Foundations hired an independent welder to weld four piles to a steel frame that was part of a coffer dam to be used when the piles were vibrated into the ground with a vibratory hammer. While one pile was being vibrated, a steel beam on the frame broke free from its weld and fell on a worker, Gregory Coates. Coates broke both his arms and a leg and severely damaged one ear.

Following the accident, the Ontario Minstry of Labour charged Deep Foundations with two violations of the province’s Occupational Health and Safety Act:

•Deep Foundations failed, as an employer, to ensure that the measures and procedures prescribed by the regulation for construction projects under the act were carried out.

•There was a failure, as an employer, to take every precaution reasonable, in the circumstances, for the protection of a worker.

Deep Foundations disputed the charges, arguing the sub-contractor welder had used a tack, or temporary, weld and it had expected the welder to use a “full” weld, which would have been the correct weld under the circumstances. He would then sever the welds once the hammering was finished. The company argued it couldn’t be held responsible for a mistake made by a certified and experienced welder, which wasn’t foreseeable. It couldn’t be expected to inspect every weld done by a certified welder, which would be unworkable, and it couldn’t “anticipate every potential failure, mistake or development, and have a rule for it,” said the company.

The court found the supervisor onsite expected a certain type of weld and the welder to perform it, but he never spoke to the welder or inspected the welds. There were also no guidelines provided outlining what was expected.

“There are two forms of safety information, one that deals with the overall, macro level safety issues and the other micro, job specific,” said the court. “In this case, it is not a stretch to conclude that the job specific information was weak given the accident and the state of confusion over tack and full welding requirements.”

The court found there was insufficient evidence to prove the first charge that Deep Foundations failed to follow the measures and procedures of the regulation, given that it followed a normal industry practice. However, it found the company was guilty of the second charge of failing to take every precaution to ensure worker safety. The worker who was injured was in a danger zone within the range of the vibrating beams, and didn’t need to be, said the court. The comfort of all involved with the procedure made them lax in ensuring everyone was protected from a potential accident. Though the specific accident may not have been foreseeable, precautions should have been made to ensure workers were at a safe distance from the steel frame that was vibrating, in case there was a mistake made, said the court.

"What Deep Foundations, and all other employers must remember on a daily basis is, that 'workplace safety regulations . . . are intended to prevent workplace accidents that arise when workers make mistakes, are careless, or are even reckless.' No one is expected to be perfect, but an employer has a responsibility to be on top of the safety of their employees, and not just by going through the motions of manuals and training," said the court.

For more information see:

Ontario (Ministry of Labour) v. Deep Foundations Contractors Inc., 2012 CarswellOnt 14208 (Ont. C.J.).

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