WORKPLACE HEALTH AND SAFETY – Employer’s obligations

Appeal by the Ministry of Labour from an Ontario Court of Justice decision upholding an acquittal for Occupational Health and Safety Act (Act) offences. A worker died after falling from a temporary welding platform while working at the factory of the respondent employer, Quinton Steel. Quinton Steel was charged under the s. 25(2)(a) of the Act with failing to inform, instruct and supervise a worker to protect the health or safety of the worker, and under s. 25(2)(h) of the Act with failing to take every precaution reasonable in the circumstances for the protection of a worker. The charges were dismissed after a trial before a justice of the peace. The Crown appealed the dismissal of the charge for failing to take every precaution reasonable, but the appeal was dismissed by a summary appeal conviction judge. The Crown did not appeal the other charge. In the present appeal, the Crown argued the trial justice erred by failing to adjudicate the charge as laid. Specifically, the Crown argued the trial justice did not make the findings of fact necessary to determine whether it was reasonable to require that guardrails be installed on the platform the worker used while welding. The respondent argued that the charge was properly adjudicated and the Crown was attempting to use the s. 25(2)(h) of the Occupational Health and Safety Act to establish a stricter standard governing the hazard of falling than the regulations required for working at height.

HELD: Appeal allowed. A new trial was ordered. The focus of the trial justice’s reasons was on the relationship between the statutory requirement and the regulations. He concluded that the respondent could not be convicted of violating s. 25(2)(h) because the regulations had not been violated. That conclusion was erroneous. Prescriptive certainty was not required in the context of regulatory offences such as s. 25(2)(h). That section established a standard, rather than a rule, the requirements of which were tailored to suit particular circumstances. Employers had to take every precaution reasonable in the circumstances in order to protect workers. It may not be possible for all risk to be eliminated from a workplace, but it did not follow that employers needed to do only as little as was specifically prescribed in the regulations. There could be cases in which more was required, namely circumstances in which additional safety precautions tailored to fit the distinctive nature of a workplace were reasonably required by s. 25(2)(h) to protect workers. The trial justice’s erroneous conception of the relationship between s. 25(2)(h) and the regulations resulted in his failure to adjudicate the s. 25(2)(h) charge as laid.

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