Workplace Safety and Insurance Law

The plaintiff, General Motors of Canada Company ("GM"), brought a motion for a permanent and/or interlocutory injunction against the defendant, Chidiebube Osita-Adubasim, to prevent trespassing, harassment, intimidation, assault, and mischief at GM's premises.

The defendant, a former contract employee whose employment was terminated due to sexual harassment complaints, had repeatedly attempted to gain unauthorized access to GM's Oshawa Assembly Plant, engaging in aggressive and threatening behavior, including assaulting a security guard.

Despite trespass notices and police citations, the defendant's conduct persisted.

The court applied the R.J.R.-MacDonald test for injunctive relief, finding a strong prima facie case of tortious and unlawful conduct, irreparable harm to GM's employees and operations, and that the balance of convenience overwhelmingly favored granting the injunction.

The motion was granted, and the injunction was ordered to remain in effect indefinitely, with a term requiring police assistance in enforcing the order.

The Ministry of Labour appealed a decision denying its motion to amend an information to substitute the correct defendant company.

The Ministry had charged Ash-Mar Construction Limited (operated by the father) instead of 1819315 Ontario Inc. operating as Ash-Mar Construction (operated by the son) following a workplace incident where a framing wall collapsed and injured a worker.

The lower court denied the amendment citing the Ministry's lack of diligence and the expiry of the Occupational Health and Safety Act limitation period.

The appellate court allowed the appeal, finding the lower court applied too narrow an interpretation of prejudice under section 34(4) of the Provincial Offences Act and erred in refusing the amendment.

Two workers employed at a Coca-Cola production facility were charged with operating equipment in a manner that may endanger themselves or others, contrary to section 28(2)(b) of the Occupational Health and Safety Act.

The charges arose from their use of cellphones while operating forklifts in the warehouse area, contrary to company safety policy.

The court found that both defendants held and used cellphones while seated on stationary forklifts in warehouse aisles and rows.

The court interpreted "operating equipment" broadly to include sitting on a stopped and turned-off forklift in an active work area where other workers and equipment were present.

The defendants failed to establish the due diligence defence.

Both were convicted.

Appeal from conviction and sentence for criminal negligence causing death and bodily harm arising from a swing stage collapse at a construction site.

The appellant, a project manager, was convicted of four counts of criminal negligence causing death and one count of criminal negligence causing bodily harm after five workers fell more than 100 feet when the swing stage collapsed.

Only two lifelines were available for six workers, contrary to provincial law and industry practice.

The appellant had authority to direct the workers and was aware of the safety breach but failed to take corrective action.

The Court of Appeal upheld both the conviction and the three-and-a-half-year concurrent sentence, finding no legal error or palpable and overriding error in the trial judge's findings of fact or application of law.

The defendant employer was charged with failing to ensure that measures and procedures prescribed by Ontario Regulation 213/91 were carried out in a workplace, contrary to section 25(1)(c) of the Occupational Health and Safety Act.

A worker was fatally injured when a curb machine tipped over during unloading from a float trailer.

The Crown proved the actus reus beyond a reasonable doubt, establishing that the worker was endangered by the movement of the equipment.

However, the defendant successfully established the defence of due diligence on a balance of probabilities, demonstrating that it took all reasonable steps to prevent the incident.

The court found that the worker was highly experienced, had successfully unloaded the same machine 27 times previously, and deviated from established safety procedures on the day of the incident by failing to use the wooden block ramp and leaving the machine's controls on automatic rather than manual.

The charge was dismissed.

A helicopter operated by an air ambulance service crashed shortly after takeoff from Moosonee, Ontario on May 31, 2013, killing four crew members.

The Crown charged the operator with six counts under the Canada Labour Code, alleging failure to ensure employee safety.

At trial, three counts remained: two alleging failure to provide pilots with means to maintain visual reference while operating at night (counts 3 and 4), and one alleging failure to provide adequate supervision by eliminating the Base Manager position (count 10).

The Crown argued that night vision goggles should have been provided.

The court found that while the crash was caused by controlled flight into terrain, the defendant exercised due diligence and complied with all regulatory requirements.

All three counts were dismissed.

The plaintiff, George MacPherson, brought a motion to add Allan Star Roofing Ltd. and Ebrahim Khezri (Third Parties) as defendants to an action for injuries sustained from a fall off a roof.

The motion hinged on the discoverability principle under the Limitations Act, 2002.

The plaintiff argued he did not discover the identity or potential liability of the Third Parties until examinations for discovery and subsequent undertakings, which revealed Khezri's involvement as a worker and potential duties under the Occupational Health and Safety Act.

The Third Parties contended that the plaintiff knew or ought to have known the material facts earlier and failed to exercise due diligence.

The court found an arguable cause of action in negligence based on the Third Parties' potential failure to report safety issues under OHSA.

Given the low evidentiary threshold for demonstrating due diligence, the plaintiff was granted leave to add the Third Parties as defendants.

Costs were fixed at $5,000 to be paid by the defendants to the plaintiff, in the cause.

The Ministry of Labour charged the Royal Ottawa Health Care Group with three offences under the Occupational Health and Safety Act arising from a workplace violence incident on July 5, 2012, in the Recovery Program.

A patient became violent and assaulted two registered practical nurses and a personal care attendant.

The charges alleged failures to: (1) develop and maintain measures and procedures for summoning immediate assistance when workplace violence occurs; (2) provide sufficient information, instruction and supervision to workers to protect their health and safety; and (3) take every precaution reasonable in the circumstances for worker protection.

The court found that the employer had developed and maintained appropriate policies and procedures, that workers had received adequate training, and that the response to the incident was immediate.

All three charges were dismissed.

A worker employed by a subcontractor was electrocuted and killed while operating a Hydrovac truck near energized overhead electrical lines on a project for Ottawa Hydro.

The Ministry of Labour charged Ottawa Hydro with five counts under the Occupational Health and Safety Act and Construction Projects Regulation, alleging failures to ensure safe work procedures, designate a competent signaller, establish written procedures, and take reasonable precautions regarding electrical hazards.

The court found Ottawa Hydro guilty on counts one, two, and four, but dismissed count three and stayed count five.

The court determined that despite extensive training and safety protocols, Ottawa Hydro failed to provide adequate on-site supervision and monitoring of the subcontractor's operations in a high-risk electrical environment.

A worker fell approximately 22 feet from a roof while operating a motorized buggy to dump garbage during a re-roofing project.

The defendant corporation was charged with two counts under the Occupational Health and Safety Act for failing to ensure prescribed fall protection measures were carried out.

The defendant had installed a guardrail system and provided fall protection equipment, but the worker removed the guardrails without tying off.

The court found the actus reus proven beyond a reasonable doubt and rejected the defendant's due diligence defence, finding no clear process was in place for the alternative garbage disposal method at the time of the accident.

The defendant, Reliable Wood Shavings Inc., was convicted of four offences under section 25 of the Occupational Health and Safety Act arising from a workplace accident on July 14, 2009, in which an employee died.

Counts 1, 3, and 4 were stayed pursuant to the Kienapple principle, with conviction registered on count 2 only.

The employee, Glen Gallinger, suffocated after falling into a truck box while attempting to dislodge stuck wood shavings using an unsafe procedure prescribed by the defendant.

The court found the defendant guilty of failing to ensure safe work procedures and failing to take reasonable precautions for worker protection.

At sentencing, the Crown sought $140,000 while the defendant sought $40,000-$70,000.

The court imposed a fine of $115,000 with two years to pay, emphasizing general deterrence and the seriousness of workplace fatalities.

The defendant was charged with willfully failing to inform the Workplace Safety and Insurance Board of a material change in circumstances in connection with his entitlement to benefits within 10 days after the change occurred, contrary to section 149(2) of the Workplace Safety and Insurance Act, 1997.

The charge covered the period between October 11, 2010, and September 1, 2011.

The prosecution alleged that the defendant was gainfully employed and had demonstrated improved physical and psychological functioning, which constituted material changes he failed to report.

The court found that the prosecution failed to prove the charge beyond a reasonable doubt and dismissed it.

An appeal of a conviction under section 25(2)(a) of the Occupational Health and Safety Act arising from a workplace injury where a temporary employee's foot was crushed under a moving refuse truck wheel, resulting in amputation.

The trial judge convicted the employer of failing to provide adequate information, instruction, and supervision.

The appellate court found the trial judge erred by conflating the actus reus analysis with the due diligence defence, failing to properly evaluate whether the Crown proved the prohibited act beyond a reasonable doubt, and misapplying the law regarding delegation of supervisory responsibilities.

The court ordered a new trial.

An appeal from a conviction under the Occupational Health and Safety Act for two breaches arising from a workplace accident.

The appellant, an automobile reconditioning company, was convicted of failing to provide information, instruction, or supervision to a worker in the safe operation of vehicles, and failing to take reasonable precautions to ensure a worker who drove vehicles had a valid driver's licence and proper training.

The trial justice erred in law by finding that the Crown did not need to prove the particulars of the charges and by imposing unreasonable standards of care.

The appellate court found that the worker was hired solely to clean vehicles and was explicitly instructed not to drive, making it unnecessary for the employer to provide driving instruction or supervision.

The conviction was set aside and a finding of not guilty was entered.

The defendant, a construction company, was charged under the Occupational Health and Safety Act with failing to ensure that a temporary wooden brace used in a winch system was designed and constructed to support or resist all loads and forces to which it was likely to be subjected.

The charge arose from a fatal construction accident in which a worker died when the wooden brace failed.

The court found that the Crown failed to prove beyond a reasonable doubt that the wooden brace was inadequately designed and constructed for the likely forces it would encounter, given its intended use for achieving alignment rather than applying maximum force.

The court also found that the defendant exercised due diligence by relying on manufacturer instructions and industry standards.

The defendant was acquitted.

The appellant, Rassaun Steel & Mfg.

Co. Ltd., appealed its conviction under section 25(2)(h) of the Occupational Health & Safety Act for failing to ensure that an overhead duct system was adequately supported while it was being demolished or dismantled.

During equipment removal work at a foundry, a large section of ductwork fell onto a worker, causing serious injuries.

The trial court convicted the appellant, but the appellate court found that the conviction was based on findings unsupported by evidence, including that the ductwork was being dismantled or demolished, that the accident was foreseeable, and that lack of training contributed to the incident.

The appeal was allowed and an acquittal was entered.

The defendant, a director of a construction company, pleaded guilty to four counts of failing to take all reasonable care to ensure compliance with occupational health and safety regulations.

The charges arose from a catastrophic incident on December 24, 2009, when a suspended work platform collapsed during balcony repair work on two Toronto buildings, resulting in four deaths and one serious injury.

The defendant failed to ensure non-English-speaking workers received written safety instructions in their native languages, failed to maintain required training records, allowed defective equipment to be used without proper documentation, and failed to prevent overloading of the work platform.

The court imposed fines of $22,500 per count with a 25% victim fine surcharge, payable over 12 months.

The Meaford and District Fire Department faced three charges under section 25(2)(h) of the Occupational Health and Safety Act arising from injuries to two firefighters at a structure fire on September 9, 2009.

The charges alleged failures to: (1) activate an accountability system to track firefighters; (2) maintain effective supervision through a command post; and (3) establish a Rapid Intervention Team.

Following the Crown's case, the defendant brought a motion for a directed verdict of acquittal.

The court granted the motion on counts 4 and 6, finding insufficient evidence on the particulars alleged, but dismissed the motion on count 1, finding evidence capable of supporting a conviction.