A recent guilty plea by an employer after an agency supplied
temporary worker died on the job is a sobering reminder of just how
broad the definition of "employer" is under the
Occupational Health and Safety Act ("OHSA").
The employer, Marmora Freezing Corporation, was fined $150,000
after pleading guilty to the charge of "failing as an employer
to take every precaution reasonable in the circumstances for the
protection of a worker" pursuant to section 25(2)(h) of the
OHSA. In effect, Marmora agreed that it failed to take the
reasonable precaution of ensuring that no pedestrians were present
in an area where illumination was limited and where vehicles had
In addition to the fine, the court imposed a 25-per-cent victim
fine surcharge as required by the Provincial Offences Act, bringing
the total paid by Marmora to $187,500.
The security guards for the Marmora facility were provided by a
temporary placement agency. On December 13, 2011 one such guard
reported to the facility for his shift, which was to begin at
midnight. At the outset of the shift the worker left the building
to smoke. The area designated for employees to smoke was in the
travel way outside of the building. The worker entered the smoking
area and began walking along the travel way.
At the same time, a car being operated by another worker drove
along the travel way and struck the guard from behind, knocking him
to the ground. After pausing briefly, the vehicle left the scene.
The driver is reportedly facing trial on a number of criminal
charges including dangerous operation of a motor vehicle causing
death, failure to stop and criminal negligence.
Immediately after the car left the scene, a tractor/trailer unit
began to reverse down the travel way. The fallen worker was caught
by the trailer's mud flap and was pushed nearly 100 metres
along the travel way to his death.
The worker was dressed entirely in dark clothing, with no light
or reflective components. There was no protective barrier or other
safeguard to protect pedestrians in the travel way from vehicular
A Ministry of Labour ergonomist tested the visibility of
surroundings and determined that a driver would have had sight-line
difficulties for an area behind the trailer. It was also determined
that illumination in the travel way was inadequate to ensure the
visibility of pedestrians.
Lessons for Employers:
Companies that engage the services of agency supplied temporary
workers are likely the "employer" of those workers for
the purposes of the OHSA. As such, the safety of those workers and
all precautions required by the OHSA are the responsibility of
As well, there is a trend towards more cases involving workers
who are struck by reversing vehicles in parking areas, travel ways
or loading bays. Employers should ensure that these areas are well
lit, that they have good sight lines and that protective barriers
and/or other safeguards are implemented wherever necessary.
Moreover, employers should require employees who work outdoors
or those that have access to the outdoors at night to carry a light
and/or to wear reflective clothing.
Finally, if at all possible, employers should avoid having
designated smoking areas in spaces with vehicular traffic.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).