Constant supervision of employees not necessary: Court

Ontario court overturns health and safety conviction; employee’s accident result of failure to follow instructions

Employees must take some responsibility for workplace health and safety and employers can’t be expected to constantly supervise them, an Ontario court has ruled in dismissing charges against a company.

Milton, Ont.-based Auction Reconditioning Centre (ARC) cleaned vehicles for leasing and car rental companies before the vehicles were auctioned off. Cleaning the vehicles involved activities such as vacuuming the interiors and driving them to a car wash bay by various employees.

In 2006, one of ARC’s employees was an 18-year-old who didn’t have a driver’s licence. He had been instructed not to drive any of the vehicles as the company safety policy stated: “To drive a vehicle on the property you much have a valid driver’s licence.” This wasn’t expected to be a problem because the employee was a cleaner and cleaners didn’t usually drive the vehicles anyway.

Despite the instructions and the policy, on May 1, 2006, the 18-year-old — who had only recently started work at ARC — drove a vehicle to the wash bay and hit another car. The collision set off a chain reaction with other cars ahead of it, which led to another employee further up the line of vehicles suffering two broken arms and other injuries.

In September 2009, ARC was convicted of breaching the Ontario Occupational Health and Safety Act by failing to provide information, instruction or supervision to a worker in the safe operation and parking of vehicles at the workplace, and also failing to take the reasonable precaution of ensuring the worker had a valid driver’s licence and was sufficiently trained before operating a vehicle. ARC was fined $50,000 plus a 25 per cent victim surcharge.

ARC appealed and the Ontario Court of Justice overturned the conviction. The appeal court found driving was not part of the 18-year-old worker’s job and there was no reason why ARC would have expected him to get behind the wheel, particularly since it had instructed him not to. Therefore, the company wasn’t required to give him proper instruction on how to safely operate a vehicle, said the court.

The appeal court also found the act didn’t require a supervisor to always be present — employees had to take some responsibility for their conduct at the workplace.

“(The employee) was simply hired to clean cars, he was instructed about his job, he understood what it entailed and further understood that the job did not involve driving any cars,” said the appeal court. “There was no reason for an employer to ensure that he was supervised for every minute he was working.”

For more information see:

Ontario (Ministry of Labour) v. 679052 Ontario Ltd., 2012 CarswellOnt 15667 (Ont. C.J.).

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