OHS laws aren’t designed solely to protect safe workers
An Ontario judge has reaffirmed that workplace safety laws are intended to protect not only safe workers, but also workers who make mistakes, careless or reckless.
In light of the decision in Ontario (Ministry of Labour) v. Deep Foundations Contractors Inc., some may ask: “If employers are responsible for even careless or reckless employees, where do employers’ safety obligations end?”
Like many legal questions, there is no easy answer. However, employers charged with safety offences have that old concept of “reasonableness” on their side in two ways.
First, employers charged with an offence under the “general duty” provisions in occupational health and safety laws across the country, can defeat the charge if they establish they took every reasonable precaution for the protection of a worker.
For example, section 25(2)(h) of Ontario’s Occupational Health and Safety Act requires that employers “take every precaution reasonable in the circumstances for the protection of a worker.”
Note, however, that employers must take every reasonable precaution, not just some reasonable precautions. Second, employers charged with other more specific offences — that is, not under the general duty clause in health and safety legislation — can defeat the charge if they can establish “due diligence.”
The due diligence defence permits an employer to be acquitted if the employer can prove it took every precaution reasonable in the circumstances.
Employers charged with safety offences also have the concept of “foreseeability” on their side. Courts have decided the reasonable foreseeability of a hazard is properly to be considered as part of a due diligence defence.
In a recent Ontario case, the court held it was not “likely” that workers would use a piece of equipment in a particular manner — which turned out to be very dangerous — so the employer was found not guilty of the charge.
In another case, the court stated that “once reasonably foreseeable a system should have been in place to take reasonable precaution against the risk that was foreseen.”
The Deep Foundations ruling
In the case referred to at the beginning of this article, a steel beam was temporarily welded to a pile broke free and fell on a worker while another pile was being vibrated into place.
The company — Deep Foundations — argued the welder had used the wrong type of weld, and the company reasonably believed the welder would use the correct weld, known as a “full” weld.
Justice of the Peace Mackey stated:
“What Deep Foundations, and all other employers, must remember on a daily basis is — and the Spanway Buildings decision says it well — 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.”
The court found the employer failed to take the reasonable precaution of having a professional engineer provide the requirements for welding where one or more pile was tack welded while another pile was being driven.
The company was not simply entitled to rely on its belief the welder would use the safest weld. That is, even if the employer relied on the welder, and the welder was not perfect, the employer was still responsible.
Reasonableness, foreseeability may be relevant when it comes to fines
Where an employer is actually found guilty of a health and safety offence, reasonableness and foreseeability may be relevant to the amount of the fine the employer will pay.
An employer that took many —but not every — reasonable precaution will have an argument that the fine should be reduced because of the efforts that it did make to comply.
A May 2012 study of the Ontario Occupational Health and Safety Act prosecutions showed employers who “throw themselves on the mercy” of the court by pleading guilty and letting the court set the fine, on average, incur a sharply lower fine than employers who negotiate fines with the Ministry of Labour.
The difference may reflect the court’s sympathy for employers that have a good safety program but do not fully meet the standard of due diligence in the case at hand.
Employer’s obligations under occupational health and safety laws are broad and require they take steps to protect even careless or reckless workers, but employers who take all reasonable precautions, or could not have foreseen the hazard in issue, will have a defence where careless or reckless employees cause an accident.
For more information, see:
• Ontario (Ministry of Labour) v. Deep Foundations Contractors Inc., 2012 ONCJ 701, 2012 CarswellOnt 14208 (Ont. C.J.)
Adrian Miedema is a partner with Fraser Milner Casgrain LLP in Toronto, practicing employment and occupational health and safety law. He is co-editor of the OHS blog, occupationalhealthandsafetylaw.com.
