An Ontario Justice of the Peace has dismissed an Occupational Health and Safety Act charge in a fatality case, finding that the employer had established due diligence.
In a July blog post, we reported on an earlier decision in this case. The OHSA charge against the company resulted from a fatality at a construction site after a "curb machine" overturned while being off-loaded from a "float" trailer, crushing a worker who later died. There were no witnesses to the accident. The charge against the company alleged that the curb machine was moved in a manner that endangered a worker.
The Court decided that the worker deviated from the standard practice that he and other workers had followed on previous occasions. There were no training courses available for the task in question, but the worker had in the past demonstrated his experience and ability to do that task. The employer was entitled to rely on the experience of a worker.
The court stated:
"(260) Despite the fact that [a company witness] could have presented better while on the witness stand, and could have established a more formalized training protocol within his company, his approach is one that is shared by many small to medium sized companies. These smaller concerns, in general typically have less resources to devote to formalized training (if any existed) but that does not necessarily mean that he was exposing his workers to foreseeable risks and dangers. In fact the court must be careful not to measure the practices of smaller concerns against those of larger companies with far more resources as it might lead to potential prejudice and be antithetical to the very noble purposes that the court (and the MOL) would wish to uphold."
In summary, with respect to due diligence: the company had held regular safety meetings; there were no formal education courses that one could take on the loading / unloading task; the worker knew or should have known that what he was doing was unsafe; the company encouraged workers to discuss any safety concerns and provided a forum for those discussions at regularly scheduled meetings; the worker had successfully moved the curb machine 27 times; and there was no evidence that this was an industry wide safety issue.
The employer had therefore established due diligence. In the result, the charge was dismissed.
Ontario (Ministry of Labour) v. Cobra Float Service Inc., 2017 ONCJ 763 (CanLII)
For more information, visit our Occupational Health & Safety Law blog at www.occupationalhealthandsafetylaw.com
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