Ontario Court of Appeal finds employers can have a greater duty to protect workers beyond what a regulation for a specific workplace risk dictates
The Court of Appeal for Ontario recently held that it is possible to comply with all relevant regulations under the province’s Occupational Health and Safety Act (OHSA) but at the same time violate the general duty under the OHSA to take “every precaution reasonable in the circumstances for the protection of a worker.” In other words, despite there being a regulation that specifically addresses a particular workplace risk (such as fall protection), there may be cases in which more is required from an employer than compliance with the regulation. Exactly how much more will be determined on a case-by-case basis depending on the nature of the workplace and work being done.
The decision creates uncertainty around workplace health and safety standards and raises the bar for employers seeking to become or remain compliant with the OHSA.
Martin Vryenhoek died when he fell from a temporary welding platform while working at the factory of his employer, Quinton Steel, a custom heavy steel fabricator in Guelph, Ont. The employer was charged under s. 25(2)(a) of the OHSA with failing to inform, instruct and supervise a worker to protect the health or safety of the worker, and under s. 25(2)(h) of the OHSA with failing to take “every precaution reasonable in the circumstances for the protection of a worker” — in this case, the installation of guardrails.
Both charges were dismissed following trial and the Crown did not appeal the first charge. However, it did appeal the second charge, ultimately to the Ontario Court of Appeal.
In essence, Quinton Steel argued it had met its legal obligation to protect its workers by having complied with the fall hazard regulations under the OHSA — there are detailed regulations that specifically address the hazard of falling, including when guardrails are required. In the circumstances of Vryenhoek’s work, the regulations did not require guardrails. Quinton Steel maintained that by exhaustively determining the circumstances in which guardrails must be installed, the regulations “occupied the field” (fully addressed the regulatory standard to be met).
The Crown did not dispute that the regulations did not require the installation of guardrails, nor that the employer had complied with the regulations. The Crown argued s. 25(2)(h) of the OHSA imposes a statutory duty to protect workers higher than and in addition to the regulations, and that, in some cases, the duty may include taking precautions beyond what is required in the regulations. In the case of Vryenhoek, the Crown argued, that duty included the installation of a guardrail.
The employer argued the Crown’s interpretation and application of the statutory duty under s. 25(2)(h) would lead to intolerable uncertainty for employers. If the specific language of a regulation could be, in effect, over-ridden by the general and imprecise language of the OHSA, how would employers know the standard to be met? Compliance would be a moving target and the regulations of limited use. This could not possibly be a desired result, particularly when safety is at issue.
The court rejected the employer’s argument, for the reasons outlined below, and the matter was remitted back to the trial court to be tried again.
The court’s reasons
Essentially, the court’s reasons were four-fold:
• The OHSA is public welfare legislation designed to protect workers and, as such, must be interpreted generously; not narrowly or technically.
• Compliance with health and safety regulations does not exhaust an employer’s statutory duties under the OHSA. It is possible to comply with the regulations under the OHSA while at the same time violate the broader statutory duty to take all reasonable precautions to protect the health and safety of a worker. The statutory duty in s. 25(2)(h) is more sweeping than any regulation. This is because the regulations cannot reasonably anticipate and provide for all of the needs and circumstances of the many and varied workplaces in Ontario. Were it not the case, once regulations were made governing a hazard in the workplace, the general duty in s. 25(2)(h) would have no role to play. As such, regulations do not “occupy the field.”
• It is not necessary for the Crown to prove the violation of any regulation. The Crown is not required to establish a failure to comply with any of the regulations in order to prove that s. 25(2)(h) has been violated. Instead, the Crown is required only to prove that the installation of guardrails was a reasonable precaution and the employer failed to take such a precaution.
• The trial justice did not consider the relevant facts. Section 25(2)(h) establishes a standard — it is not a rule — the requirements of which are to be tailored to the particular circumstances. To determine whether guardrails were reasonable in the circumstances, the trial justice ought to have considered all of the relevant circumstances including the nature of the workplace, the work being done, and the equipment used. The trial justice did not do this. Instead, he concluded s. 25(2)(h) had not been violated because the employer had not violated any provision of the regulations. This was an error of fact and law:
“It may not be possible for all risk to be eliminated from a workplace… but it does not follow that employers need do only as little as is specifically prescribed in the regulations. There may be cases in which more is required — in which additional safety precautions tailored to fit the distinctive nature of a workplace are reasonably required by s. 25(2)(h) in order to protect workers. The trial justice’s erroneous conception of the relationship between s. 25(2)(h) and the regulations resulted in his failure to adjudicate the s.25(2)(h) charges as laid.”
Impact on employers
The short story is that life for employers will likely become more difficult as a result of this decision — as of this writing, Quinton Steel had not sought leave to appeal to the Supreme Court of Canada — which creates uncertainty around workplace health and safety standards and raises the bar for employers seeking to be compliant with the OHSA. The decision is also likely to increase the rate of successful prosecutions under the OHSA, not necessarily to the betterment of everyone.
On the one hand, while there is some rationale to the argument a statutory duty may be more sweeping than a regulatory rule, it seems unfair and unrealistic the Ontario government — through its regulations — is not expected to anticipate every hazard in Ontario workplaces, but individual employers are, and also to know when compliance with the regulations will not be sufficient. Of course, the Crown would argue it is precisely the employer that is in the best position to be knowledgeable and familiar with its own workplace and to anticipate hazards.
Either way, if establishing compliance with the regulations may no longer be accepted as proof that reasonable precautions were taken by an employer, what is the purpose of the regulations, and where is an employer to obtain reliable guidance regarding the standards for workplace health and safety?
Finally, if the regulations will henceforth be of limited use, and compliance a moving target determined by a court only after an accident has occurred, what are the realistic chances an employer in that situation will be found to have taken reasonable precautions to protect its (now injured or worse) worker? The answer is — those chances have just become a lot slimmer.
For more information see:
• Ontario (Labour) v. Quinton Steel (Wellington) Limited, 2017 CarswellOnt 20153 (Ont. C.A.) .Lisa M. Bolton is a lawyer with Sherrard Kuzz LLP, a management-side employment and labour law firm in Toronto. She can be reached at (416) 603-0700 (Main), (416) 420-0738 (24 Hour) or by visiting www.sherrardkuzz.com.