An Ontario court has dismissed a charge against an employer of
failing to acquaint a worker with a hazard, because the
worker's supervisor knew of the hazard.
The charge was laid against Transgear Manufacturing under
section 25(2)(d) of the Ontario Occupational Health and Safety Act,
which requires employers to "acquaint a worker or a person in
authority over a worker with a hazard . . ."
Justice of the Peace Ziegler, of the Ontario Court of Justice in
Guelph, found that the injured worker's supervisor, the
Maintenance Supervisor, was "in authority" over the
injured worker and "not only does [the Maintenance Supervisor]
have his ability to repair, maintain, lockout and partially lockout
machines under his purview but he is also acquainted with any
hazard in the work . . ."
The court noted that "There is no offence under the
Occupational Health and Safety Act which limits acquainting the
named hazards to the worker only, it requires that the acquainting
of the named hazards be either the worker 'or a person in
authority over the worker'. Therefore I must read in the words
'or a person in authority over the worker' after the words
'acquaint a worker' in Count 3."
Interestingly, the court went on to convict Transgear of failing
to provide sufficient "information, instruction and
supervision" to the worker under section 25(2)(a) of the
Occupational Health and Safety Act, apparently because that section
dealt only with the awareness of the worker himself, not also of
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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