An employer's assertion that "everyone just knew"
the safety rules, was not a defence to charges under the
Occupational Health and Safety Act, an Ontario court has
held. The employer's "casual, oral practice" –
without a written policy – was not enough.
Anray Ltd., an excavating contractor, engaged one Marr to
transport an excavator. Marr stopped an employee, Kaczynski, who
was in the middle of loading the excavator onto Marr's truck so
Marr could clean the excavator's treads. The employee left Marr
to do the cleaning, after which Marr hopped in the excavator and
tried to load it onto the trailer. The excavator slid off the side
of the trailer. Marr was injured.
The Ministry of Labour charged Anray under the Occupational
Health and Safety Act with failing to ensure that the
excavator was moved in a safe manner.
Anray argued that "everyone just knew" that only
Kaczynski would operate the excavator. However, Justice of the
Peace Conacher held that it was "well within the realm of
predictability" that Marr might take it upon himself to load
the excavator on the truck.
JP Conacher stated,
"As mentioned, the Defence relies heavily in its due
diligence submissions on the contention that, with respect to the
14 ton excavator, 'everyone just knew' who was to operate
the machine. The 'everyone just knew' assertion was an
element in a due diligence defence in another trial matter before
this Court which illustrates the limitations of relying on such a
Instead, Anray's "casual, oral practice" was
insufficient for ensuring the safe movement of machinery or
equipment. Anray was found guilty of the charge.
This decision seems surprising. One would think that it is
self-evident that only trained and authorized persons could load a
14-ton excavator on a trailer, and that no policy is needed on that
point. Employers cannot be expected to have written policies on
every possible hazard, however unlikely.
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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.
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