Ontario company acquitted of charges after worker death but new trial ordered by Court of Appeal
Industry-specific safety regulations must be followed by employers to ensure the safety of their workers, but employers’ duty to protect their workers doesn’t necessarily end there when considering the parent health and safety act, the Ontario Court of Appeal has ruled in ordering a new trial for a company charged after a worker fell to his death.
Quinton Steel operates a custom steel fabrication business, assembling large steel components for industrial use. Its facility in Guelph, Ont., qualified as an industrial establishment under the Ontario Occupational Health and Safety Act (OHSA), so it was subject to the OHSA’s industrial establishments regulation.
Martin Vryenhoek was a finishing metal welder for Quinton Steel. He sometimes worked at fabricating large pieces of steel equipment called slides and, due to their height, he had to use a temporary platform to weld areas at the top of the slide. Quinton Steel’s practice for 17 years in such circumstances was to set up temporary platforms made of two eight-foot planks laid side-by-side on steel A-frame end pieces.
One day, Vryenhoek was working on a slide on such a platform, which was 19-and-one-half inches wide and set up six feet and six inches above the ground. There were no guardrails on the platform and Vryenhoek wasn’t wearing a harness or any other fall-arrest equipment — Quinton Steel didn’t require the use of guardrails or other fall protection equipment for platforms less than nine feet high.
As he worked, Vryenhoek wore a welding helmet that covered his face and had a visor with special glass designed to be clear initially but darkened to opaque when welding began to protect the eyes. He could only see around him when he raised the helmet. He was working on an eight-foot-long weld and walked sideways along the platform as we worked along the weld. He wasn’t using temporary bumpers at the sides of the weld — as some welders used to alert them to their position at the end of the platform, but Quinton Steel didn’t require this and it was left to their discretion — so he measured his location on the platform by feeling for the tip of the A-frame with his foot.
However, Vryenhoek apparently didn’t realize when he reached the edge of the temporary platform and he fell the six-and-one-half feet to the ground. He died from his injuries and, following an investigation, Quinton Steel was charged under the OHSA with “failing to inform, instruct and supervise a worker to protect the health or safety of the worker” as well as failing to take “every precaution reasonable in the circumstances for the protection of a worker.”
No guardrail required by regulation
A justice of the peace noted that the Industrial Establishment Regulation didn’t require fall protection equipment for heights less than three metres but required a guardrail on the open side of “a raised floor, mezzanine, balcony, gallery, landing, platform, walkway, stile, ramp, or other surface” regardless of how high it was. However, due to the seeming contradiction between the two requirements, the justice found the guardrail requirement should be limited to fixtures attached to the building and not unattached platforms like the one on which Vryenhoek was working.
Since the Industrial Establishment Regulation was meant to provide the requirements for protection workers from falls in such circumstances, Quinton Steel’s general duty to take “every precaution reasonable” under the OHSA shouldn’t have to go beyond what the regulation prescribed, said the justice of the peace. It also looked at photographs of the accident site and found there was a “form of guardrail” on the platform that Vryenhoek may of placed there. The justice of the peace dismissed both charges under the OHSA.
The Crown appealed the dismissal of the second charge relating to taking every precaution reasonable to protect the worker, arguing the justice of the peace failed to address whether it was reasonable for the company to have taken the precaution of using guardrails for the temporary platform and it misidentified a guardrail in the photographs of the scene.
The appeal court found the justice of the peace may have misidentified a guardrail in the photographs, but it wasn’t the basis for the acquittal on the charges. It also determined that the justice knew Vryenhoek was a welder with limited visibility and it properly adjudicated the charge against Quinton Steel based on the requirements under the relevant legislation. It dismissed the Crown’s appeal and the Crown appealed once again to the Ontario Court of Appeal.
The Court of Appeal noted that the OHSA “establishes duties that are particularized by workplace-specific regulations” that govern construction, mining, and industrial workplaces. Employers have a duty under the OHSA to carry out the measures prescribed by the regulations. However, their duty isn’t limited just to those regulations, said the Court of Appeal.
“(The duty) is more sweeping because it does not depend on the existence of a specific regulation prescribing or proscribing particular conduct,” said the Court of Appeal. The section requiring reasonable precautions was necessary because “the regulations cannot reasonable anticipate and provide for all needs and circumstances of the many and varied workplaces across the province.”
Reasonable precautions under OHSA
The Court of Appeal found that when the justice of the peace determined that a guardrail wasn’t necessary under the Industrial Establishment Regulation, that wasn’t the end of the argument. The justice should have continued to examine whether the installation of guardrails on Vryenhoek’s platform was reasonably necessary to protect Vryenhoek from falling. Since the justice’s analysis ended at the regulation requirement, it failed to fully address the question of reasonable precautions under the OHSA, said the Court of Appeal.
“The focus of the trial justice’s reasons was on the relationship between the statutory requirement and the regulations,” said the Court of Appeal, which was erroneous because the regulation is subordinate to the OHSA and does not cancel out any duties under the main legislation as enacted by the legislature. Such an interpretation would limit protection for industrial workers on temporary structures to only fall protection equipment and only when working at three meters or higher. This would undermine the purpose of the OHSA, said the Court of Appeal.
“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,” said the Court of Appeal. “There may be cases in which more is required — in which safety precautions tailored to fit the distinctive nature of a workplace are reasonably required by (the OHSA) in order to protect workers.”
The Court of Appeal ordered a new trial before a different justice of the peace.
For more information see:
