Canada: Importance Of Due Diligence Proof Confirmed In Recent OHS Case

Last Updated: March 4 2015
Article by Cheryl A. Edwards

The Ontario Court of Justice recently acquitted two defendants who, following a fatal accident, had been charged with various offences under the Ontario Occupational Health and Safety Act ("the OHSA"), confirming, amongst other matters, the crucial importance of documented proof of OHS due diligence in the workplace.

The OHSA charges in question arose after a piece of pipe fell from the 23rd floor of a condominium under construction while one of the subcontractors on site was attempting to move a landing platform (called an outrigger platform) from the 23rd floor with a crane. The piece of pipe struck and fatally injured a supervisor who was standing in the hoisting area below the crane while visiting the site.

The structural subcontractor responsible for the operation of the crane pled guilty to one charge under the OHSA well before trial. Interestingly, the fact of the subcontractor's plea and conviction for its participation in the fatal accident was used as admitted negligence on the part of the subcontractor at trial. The remaining defendants were the general contractor (Bay Grenville), the plumbing contractor (University Plumbing), and one supervisor from each company. All four defendants were accused of failing to ensure that pipe materials were removed or stored to prevent a hazardous condition from arising — in other words, a "housekeeping" charge. Additional charges were faced by the general contractor alone.

Interpretation of the Construction Projects Regulation

In a continuing trend that involves strict interpretation of regulatory provisions to the benefit of employers, the court interpreted the charges related to the storage of piping and removal of debris in a manner favourable to the defendants. . The Crown prosecutor argued that both material laid out for work the next day and cut ends of pipe constituted hazards and should be secured. The court accepted the argument that housekeeping charges required proof by the Crown that any deficiencies in the removal of debris or storage of materials would create a hazardous condition as per the provision. In this case there was expert evidence that materials were stored in a manner that was consistent with industry practice and guidance provided by the Construction Safety Association, there was a perimeter safety fence around the entire 23rd floor to contain loose material, the area was not a high-traffic area, and one or two pieces of remaining cut pipe would not roll on their own without a significant force applied, therefore there was not a hazardous condition created or left by the plumbing contractor on the 23rd floor. The court also confirmed that storage of material does not require piling or stacking, and that, in all of the circumstances, leaving pipe lying flat on the floor for use the next day did not create a housekeeping issue or the risk of pipe rolling. It was clear that the pipe rolled only after the intervention of the subcontractor using the landing platform on the 23rd floor.

The court accepted that the plumbing contractor and general contractor had exercised reasonable care based on the above indication that industry practice had been followed. Further, evidence showed that the employees of University Plumbing cleaned up piping each day and stored waste piping in a manner that would not present a safety risk. Very importantly, the evidence showed that a safety consultant had attended and created written reports of site inspections on a regular basis at the construction project. An inspection held on the last work day before the incident specifically examined housekeeping at the site and indicated that the removal of debris and storage of materials by University Plumbing workers was ongoing and acceptable. On one, and only one, prior occasion, had cut ends of pipe as debris had been observed; it was brought to the immediate attention of the defendant contractor and its supervisor, and immediate corrective action was taken. In ongoing Ministry of Labour inspections and the consultant's site inspection there was no other indication of a housekeeping problem. This ongoing documentation provided clear proof of all of the defendants' reasonable care and due diligence.

Foreseeability of the Accident

The court reaffirmed the importance of an assessment of foreseeability of the hazard or potential event as a proper matter to be considered as part of a due diligence defence. It was argued that the freak nature of the accident that caused the death of the supervisor who was standing on the ground, 23 floors below, was not reasonably foreseeable and could not, except in hindsight, have been prevented by any of the defendants. The court did not comment extensively, but reaffirmed that foreseeability is a key component in due diligence. Here the court positively affirmed that the carelessness of the subcontractor operating the crane and loading platform left the area of the accident unsupervised because of the failure to have a spotter available to safeguard the hoisting area underneath the loading platform,. The court agreed with the defendants that the cast iron pipe that was left at the edge of the building remained a mystery in the case, and that it was inescapable that the subcontractor moving the landing platform was primarily, if not solely, responsible for the tragic accident. It was argued this was not foreseeable by the defendants. This foreseeability analysis combined with clear evidence of due diligence resulted in the acquittals. The Crown has not appealed the acquittals.

While no amount of due diligence can guarantee a safe workplace, this decision highlights the importance of documented reasonable care and foreseeability in support of a due diligence defence.

The defendants, University Plumbing & Heating and its site superintendent, were represented at trial by counsel from Mathews, Dinsdale & Clark LLP's OHS Practice Group. Cheryl Edwards, was trial counsel, with the assistance of Jeremy Warning.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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