Guardrail type didn’t matter since one worker fell through wasn’t properly fastened
An Ontario employer and its subcontractor have been convicted of health and safety charges by the Ontario Court of Justice following a worker’s fall through an insufficient guardrail off a second-floor balcony at a house construction site.
Ricardo Polio-Perez was a labourer working for King’s Hollow Homes. In early 2015, King’s Hollow was building houses at a site in King City, Ont.
On Feb. 3, Polio-Perez was assigned by the labour foreman to work at a house that was being “trimmed,” which involved the installation of decorative moldings and finishings around doorways and windows. This process was done after all the drywall in a house was installed. The trimming was being done by Up Trim, a company specializing in the process that King’s Hollow had subcontracted.
Polio-Perez’s assignment was to clean and tidy up construction debris in the house that had been left by the subcontractors. He went to the second floor, where there was garbage to be cleaned up in the second-floor balcony area — Up Trim had just installed trim around the Juliet balcony, which was a small balcony in front of an upper-floor door overlooking the house’s main entrance and front lawn.
Polio-Perez was picking up pieces of wood near the Juliet balcony and placing them in a large box, but at one point he bent over and felt dizzy. He fell through the open door and the guardrail gave way, causing him to plummet to the floor below. He suffered serious injures that took him more than a year to recover from.
An investigation by the Ontario Ministry of Labour revealed that the balcony guardrail — which was found lying in the ground-floor foyer — had been fastened to the floor by nails in the faceplate — nails were found in the guardrail’s base holes and the holes in the subfloor were consistent with nails, not screws, according to a fastening expert. The ministry determined that the guardrail system was inadequate to protect Polio-Perez from falling because it wasn’t properly fastened to the floor — it required screws rather than nails to fasten the faceplate to the subfloor. King’s Hollow and Up Trim were both subsequently charged under the province’s Occupational Health and Safety Act (OHSA) with failing to ensure, as employers, that the working conditions at the construction site were safe and the guardrail system at the Juliet balcony was safe.
King’s Hollow and Up Trim argued that there wasn’t sufficient evidence to prove the guardrail was deficient, as it hadn’t been determined to what forces the guardrail had been subjected — as defined in OHSA regulations setting out specific force resistances in newtons for various types of guardrails in various situations —and they had done everything in their power to meet the standards set out by the OHSA.
The court noted that the guardrail in this case was part wood and part metal and wasn’t “expressly subject to the tests set out in (the regulation), nor expressly exempted from them… The specific point load resistance tests are only applicable to certain types of guardrail systems, but not the one here, because the point load specifications are not specifically called for.”
The court also noted that it had been established in previous jurisprudence that the OHSA should be generously interpreted, since it “is a remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety of workers… Narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature’s public welfare objectives are to be avoided.”
The court found that while the load resistance requirement for various guardrails didn’t specifically apply to the type of guardrail in question, “the purpose of the legislation is clearly to protect workers from the hazard of falling, when they are working more than three metres above any workspace. The act calls for particular requirements for particular types of guardrails, but in my view, the sections build on each other and should be read as a whole with a purposive approach.”
For example, the OHSA contained a section — s. 23.1 — which stated: “A worker shall be adequately protected by a guardrail system that meets the requirements of s. 26.3 (2) to (8),” said the court. The sections referred to are the ones outlining load resistance levels.
The court found that an effective guardrail system should be able to withstand “a certain point load force when applied to it” and should be made of sufficiently strong material. The point load force requirements should apply to all types of guardrails, except for any that are specifically excluded. The effect is that specific sections in the regulation created additional requirements based on the type of guardrail, not separate requirements for certain types not excluded. For example, additional requirements for a wire rope guardrail system don’t exclude all other point load tests for guardrails, while material-specific requirements like all-wood guardrails have their own minimum standard that “it is capable of resisting all loads that it may be subjected to by a worker.”
Force resistance not proved, but fastening could be
In the end, the court found that it didn’t really matter that the force threshold of the Juliet balcony guardrail and the force Polio-Perez exerted on it could be determined, because the evidence showed that the guardrail had been fastened into place with nails rather than the required screws. As a result, the guardrail did not adequately protect Polio-Perez from falling, contrary to the OHSA.
“In my view the strength of the individual components is irrelevant,” the court said. “The system was not properly fastened to the floor and so as a whole it failed.”
The court also found that King’s Hollow was Polio-Perez’s employer for the purposes of the OHSA. Up Trim, which as the subcontractor supervising the construction site at the time, was also an employer under the OHSA. Both companies were responsible for the safety of all employees on the site, said the court.
In addition, there was no clear policy for guardrails onsite, or it wasn’t sufficiently demonstrated to workers, said the court. The safety supervisor onsite apparently wasn’t aware of the requirement for screws to be used instead of nails for the guardrail, which was a failure by both companies in training. As a result, the employers failed to do everything reasonably possible to ensure Polio-Perez’s safety. The court convicted the companies on all charges.
For more information see:
