An Ontario appeal court has overturned a conviction under the
Occupational Health and Safety Act because there was no
basis for concluding that the collapse of an overhead duct was a
foreseeable risk. The accident could not have been
Employees were removing ducts and other equipment from a
non-operational foundry in Woodstock, Ontario, in order to
transport it to the United States. A large section of the
duct work collapsed and seriously injured a worker.
What had happened, the court concluded, was that sand had built
up in the ducts and caused them to collapse. The evidence was
that the build up should not have occurred and could not have been
expected. Witnesses gave uncontradicted evidence that it was
not practical or reasonable to inspect all welds in the ducts as it
would have taken years to do so. But for a poor weld and the
sand build up, the collapse would not have happened.
The appeal court held that the "foreseeability of the
effect" was one of the factors to be considered in determining
whether the employer had exercised due diligence. Here, the
sand build up and collapse were not foreseeable, and the charges
The decision is a reminder that not all workplace accidents
justify charges under the Occupational Health and Safety
Act. As our recent prosecutions study indicated, only 6%
of corporations take their OHSA charges all the way to trial, so
there is minimal caselaw. This decision will assist employers in
understanding the scope of the due diligence defence.
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