While the scope of the
Occupational Health and Safety Act is broad, it is
not limitless. A recent decision from the Ontario Court of
Justice held that where the nature of a workplace means that it is
not required to implement a protective measure prescribed by the
Regulations, the Crown cannot then successfully charge the employer
with failing to reasonably protect a worker as a result of
non-implementation of that same measure.
In Quinton Steel (Wellington), a
welder fell from a height of approximately 6 ½ feet, and was
later found dead. At the time, the worker was working on a
temporary structure which involved a raised plank supported by
A-Frame steps at either end.
The Crown charged the employer with
failing to take the reasonable precaution of installing guardrails
at the edge of the raised wooden platform. This was a charge
under the general duty clause which requires that an employer take
every reasonable precaution for the safety of a worker.
The employer was also charged with
failing to provide information and training to the worker to
prevent him from falling.
The Court noted that the worker
fell from a height of less than three metres. As a result,
the Industrial Establishment Regulation governing safety belts and
harnesses did not apply.
The Crown's position was that,
notwithstanding that the Regulation did not mandate guardrails for
the height at which the worker was working, the employer should
have been aware of the risk and installed guardrails in
The Court found that the
requirement under the Industrial Establishments Regulation that
guardrails be installed on the open side of a raised surface was
not unlimited in application, and did not apply in a literal sense
to any raised surface. Specifically, in order to
avoid absurd results in application, the Court concluded the
provision should only be read to cover permanent surfaces, not
temporary or movable surfaces such as was at issue in this
The Court held that the Crown was
impermissibly attempting to use the general duty clause to broaden
the scope of the technical regulation. In essence, the Crown
was arguing that the Regulation was not stringent enough in the
circumstances. The Court held that the Regulations
established reasonable precautions for the worksite, which did not
The Court found that the
regulations governing when guardrails were required was a
"complete and discrete code" that governed the
requirements for protecting workers from falls in similar
The Court also did not find any
evidence of prior accidents or close-calls in similar
As a result of its findings, the
Court did not find that the lack of training with respect to
guardrails was a breach of the OHSA, since guardrails were a
precaution not required under the OHSA.
Employers may be concerned about
the broad language in health and safety legislation concerning
"reasonable precautions". However, this case
demonstrates that an employer can rely on compliance with the
technical requirements of the Regulations, and that those
requirements are a complete code of when and to what extent those
safety measures are required.
Employers should ensure compliance
with technical regulations, not only because they are good
corporate practice and breaches can result in legal liability, but
also because, as this case demonstrates, they can serve as a
defence against other charges under health and safety
This past year has been marked with significant changes to employment legislation, and watershed decisions that will affect employers for years to come. We've designed this year's conference to deliver a practical and digestible review of what you need to know to manage your employees effectively.
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