In dismissing Occupational Health and Safety Act
charges against an employer arising out of a fatality, an Ontario
court has held that it is not appropriate for the Ministry of
Labour to charge under the "general duty clause" found in
s. 25(2)(h) of the OHSA to "extend requirements beyond those
specifically outlined in" the regulations under the OHSA.
In the case at hand, a worker had been welding a large steel
product, approximately 6.5 feet off the ground, standing on planks
atop A-frame steps. He fell to his death.
The MOL charged the employer under section 25(2)(h), often
called the "general duty clause". That section requires
employers to "take every precaution reasonable in the
circumstances for the protection of a worker". The charge
alleged that the employer "failed to take the reasonable
precaution of installing guardrails at the open sides of a raised
wood platform". A second charge alleged that the employer
failed to properly train the worker regarding working on a raised
The employer successfully argued that the Industrial Regulations
under the OHSA specifically dealt with guardrails and did not
require a guardrail around the planks on which the worker was
working. Section 13 of that Regulation, which was in the
"Premises" section of the Regulation, required a
guardrail around the perimeter of an uncovered opening in a floor,
roof or other surface, and at the open side of a raised floor or
other surface. The Justice of the Peace decided, however, that
section 13 dealt only with "fixtures" – that is,
surfaces such as a walkway that were attached to the premises. It
did not require a guardrail around the planks on which the worker
was working atop two portable A-frame steps.
The Justice of the Peace held that it was not appropriate to
attempt to use the general duty clause in s. 25(2)(h) of the OHSA
to impose a stricter requirement than was found in the Regulation.
Put another way, a guardrail could not be a "reasonable
precaution" where the Regulation section that dealt with
guardrails did not require one.
The Justice of the Peace also dismissed the training charge,
holding that because a guardrail was not required, there was
"no gap" in the training provided to the worker with
respect to working on a raised platform.
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