Workplace safety

The Court of Appeal for Ontario denied the Crown's application for leave to appeal a Provincial Offences Appeal Court (POAC) decision upholding the City of Greater Sudbury's acquittal on charges under the Occupational Health and Safety Act.

The case arose from a fatal workplace accident involving a road grader operated by a contractor.

The court found that the trial judge and POAC judge properly applied the due diligence defence and that the issues raised by the Crown did not meet the high threshold for a second-level appeal.

The decision clarifies the application of due diligence in occupational health and safety prosecutions, emphasizing that such defences must be directed at the specific violations alleged and that findings of control are primarily factual.

The court considered a motion by the defendant to strike portions of the plaintiff’s statement of claim in a wrongful dismissal action.

The impugned pleadings alleged similar acts of unsafe practices and unfair treatment of other employees.

The court held that these pleadings were relevant and not improper, as they provided context for the plaintiff’s claims and notice to the defendant.

The motion to strike was dismissed, and costs were awarded to the plaintiff.

The court sentenced Milton Urgiles to five years' imprisonment for criminal negligence causing death, following the fatal crash of a commercial truck with unroadworthy tires.

The decision reviews the facts, victim impact, aggravating and mitigating factors, and relevant sentencing principles and authorities, emphasizing the high degree of moral blameworthiness and the need for denunciation and deterrence in workplace safety offences.

This criminal trial concerned Puneet Grewal, charged with dangerous driving causing death after he reversed his dump truck on a landfill site, running over and killing Kyrsten Sujanszky.

The Crown alleged that Grewal's driving constituted a marked departure from the standard of a reasonable and prudent truck driver, specifically by reversing without regard to Ms. Sujanszky's whereabouts despite an obligation to keep her in sight.

The court examined the circumstances of the site, the inherent dangers of reversing a dump truck, and the actions of both the accused and the deceased.

Ultimately, the court found that while Grewel's actions might have been careless, there was reasonable doubt as to whether they constituted a 'marked departure' from the standard of care, particularly given the uncertainties about how Ms. Sujanszky came to be in the truck's path and the site's own safety practice deficiencies.

Grewal was found not guilty.

The plaintiff, David Steele, sued the defendant, Victor Bicknese, for injuries sustained after falling through broken wooden slats in the defendant's barn.

The plaintiff, a 74-year-old employee, suffered an odontoid fracture (cervical spine injury) and other chronic symptoms.

The court found the defendant breached his duty of care under section 3 of the Occupiers' Liability Act by failing to maintain a reasonably safe premises and having no system for inspecting or repairing broken slats, which were known to break regularly.

The court found no contributory negligence by the plaintiff, despite his awareness of the broken slats, due to the defendant's fundamental obligation to provide a safe workplace and the impracticality of avoiding hazards while working.

The plaintiff was awarded damages for lost income and general damages for pain and suffering.

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.

Great Lakes Food Company Ltd. was charged under the Occupational Health and Safety Act after a senior deckhand went overboard and was not recovered.

The Crown alleged the employer failed to provide and ensure the use of suitable cold water protective equipment.

The court found that the Crown failed to prove the actus reus of the strict liability offence beyond a reasonable doubt.

The court considered the totality of the circumstances, including the lack of evidence on industry standards for protective equipment, the unforeseeable nature of the incident, and the principle that post-incident compelled changes cannot be used as proof of the actus reus.

The charge was dismissed.

The Ministry of Labour charged Ya Ya Foods Corp. with three offences under the Occupational Health and Safety Act following a fatal incident where a worker fell from an elevated platform.

The central issue at trial was whether Ya Ya Foods qualified as a "constructor" under the Act, as the charges were laid against them in that capacity.

Applying the "control test," the court found that the deceased worker, Melvin Joyner, had the most control over the project at the time of the incident, not Ya Ya Foods.

The court noted the lack of a clear constructor designation at the outset and the difficulties of retrospective role assignment.

Consequently, the Ministry failed to prove beyond a reasonable doubt that Ya Ya Foods was the constructor, and all charges were dismissed.

This appeal concerned the interpretation of "employer" under the Occupational Health and Safety Act (OHSA) following a fatal workplace incident.

The City of Greater Sudbury, which had contracted out road repairs, was acquitted at trial and on first appeal, with courts finding it was neither an "employer" nor "constructor." The Court of Appeal for Ontario reversed, holding that the City was indeed an "employer" under OHSA because its own employees (inspectors) were present and performing tasks at the project site, satisfying the first branch of the "employer" definition.

The case was remitted to the appeal court to consider the City's due diligence defence, which had not been addressed by the appeal judge.

This is an appeal of convictions under the Occupational Health and Safety Act.

GMJ Electric Inc. was convicted for failing to provide a scaffold and failing to provide adequate information, instruction, and supervision to a worker who fell from a ladder.

Gino Martignago was convicted as a supervisor for failing to ensure a worker used prescribed protective devices.

The appellants argued that the trial justice erred by adopting an absolute liability approach, crafting an unworkable protocol, and applying a narrow definition of "supervisor." The appeal court upheld the trial justice's findings, confirming that a fall hazard existed, due diligence was not established, and the employer failed in its duty to inform and instruct.

The court also affirmed the broad definition of "supervisor," finding that multiple individuals could hold supervisory roles without excusing the appellant's obligations.

The appeals were dismissed.

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.

A worker employed by Vixman Construction Ltd. was fatally injured when he fell approximately 3.6 metres from a work surface at Billy Bishop Toronto Island Airport on March 27, 2018.

The Crown prosecuted Vixman under the Occupational Health and Safety Act for failing to ensure that prescribed fall arrest measures and procedures were carried out in the workplace.

Specifically, the Crown alleged violations of Ontario Regulation 213/91 regarding the improper anchoring of a self-retracting lifeline (SRL) and the failure to ensure that the fall arrest system was arranged so that a worker could not hit the ground or an object below the work surface.

The defendant argued a due diligence defence, claiming it had implemented comprehensive safety training, policies, and procedures.

The court found that while Vixman maintained a robust safety program, it failed to enforce critical specific requirements at the job site, including the failure to calculate fall clearances prior to work commencement and the failure to ensure the use of a safe anchoring method.

The court convicted Vixman on both counts, finding that the defendant did not discharge its burden of proving that every reasonable precaution was taken.

The Ministry of Labour charged Thomson Metals and Disposal GP Inc. with three offences under the Occupational Health and Safety Act arising from a workplace accident on June 4, 2014, involving a Caterpillar 325B excavator.

The operator's cab became separated from the machine, injuring the worker.

The charges alleged: (1) failure to ensure the equipment was equipped with a seat belt; (2) failure to ensure the operator cabin was securely fastened to the chassis; and (3) failure to take reasonable precautions to ensure bolts and washers met manufacturer's specifications.

After a four-day trial, the court dismissed all three charges, finding that the Crown failed to prove the actus reus beyond a reasonable doubt.

The court determined that there was insufficient evidence that the excavator was originally equipped with a seat belt, and that the bolts and washers were consistent with manufacturer's specifications at the time of purchase.

Appeal of a conviction under the Occupational Health and Safety Act arising from a fatal workplace accident at a steel processing plant.

The defendant was convicted on one count of failing to provide information, instruction and supervision to a worker, and acquitted on two other counts.

The appellate court found that the trial judge erred in failing to consider the worker's negligence in assessing whether the Crown had proven the actus reus beyond a reasonable doubt, and also erred in failing to consider the defence expert's evidence.

The court allowed the appeal and set aside the conviction, finding either that the actus reus had not been established or, alternatively, that the defendant had proven due diligence.

The Crown charged Wal-Mart Canada Corp. with failing to ensure that measures and procedures prescribed by regulation were carried out at a workplace, specifically that the floor be kept free of obstructions and hazards.

A maintenance worker tripped over an empty pallet left on the floor in the receiving area and fell, striking his head.

The worker died two weeks later, though the Crown conceded it could not prove causation.

The court found that the empty pallet constituted an obstruction and hazard under the applicable regulation.

While Wal-Mart had training programs, policies, and safety procedures in place, the court found the defendant failed to establish the due diligence defence on a balance of probabilities, primarily due to the absence of safety sweep logs for the receiving area and insufficient evidence of implementation of safety procedures in that specific location.

The defendant was found guilty.

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.

Following convictions under the Occupational Health and Safety Act arising from a serious workplace fall that left a worker permanently paralyzed, the court imposed sentences on three defendants.

The supervisor received 45 days continuous custody based on her pattern of non-compliance with court orders and prior convictions under environmental statutes.

An employee received a $2,000 fine for obstructing an MOL inspector.

The corporate employer received a $75,000 fine.

The court emphasized deterrence as the paramount sentencing principle for OHSA offences and rejected arguments that the worker's intoxication or the company's inactive status should mitigate the sentences.

The defendant, Reliable Wood Shavings Inc., was charged with four offences under section 25 of the Occupational Health and Safety Act arising from the death of Glen Gallinger, an employee who was asphyxiated while attempting to dislodge sawdust from a silo at a customer's facility.

The court found that the defendant failed to take every precaution reasonable in the circumstances to protect its worker.

The defendant's prescribed procedure was unsafe and impractical, the written instructions were defective, and the defendant failed to address the inherently dangerous conditions at the worksite despite having knowledge of the hazards.

The court found the defendant guilty on counts 2, 3, and 4, with count 1 stayed pursuant to the Kienapple principle.

The Crown prosecuted three defendants under the Occupational Health and Safety Act following a serious workplace accident on October 15, 2008, at 45 Meadowvale Road, Toronto, where a worker fell from a roof and suffered a spinal cord injury resulting in paralysis.

The Crown charged Teisha Lootawan as a supervisor with failing to ensure protective devices and adequate fall protection, and with knowingly furnishing false information to an inspector.

J.R. Contracting Property Services Ltd. was charged as an employer with failing to ensure prescribed measures and procedures, failing to provide adequate fall protection, and failing to provide information, instruction, and supervision.

Andrew J. Haniff was charged with hindering and obstructing an inspector.

The court found that the worker was exposed to a fall of more than three metres without fall protection equipment or training.

The court determined that Lootawan acted as a supervisor with authority over workers, that J.R. Contracting was the employer despite cash-only payments and on-call arrangements, and that Haniff refused to answer lawful questions from the inspector.

All defendants were convicted on all counts.

An employer in a farming operation was convicted of failing to take every precaution reasonable in the circumstances for the protection of a worker under section 25(2)(h) of the Occupational Health and Safety Act.

An employee fell and broke her leg while descending from a transport storage trailer using portable steps that left a 24-inch gap between the top step and the trailer floor.

The employer appealed, arguing that the concept of "adequacy" did not apply to farming operations and that the steps had been used safely for months without incident.

The appeal was dismissed, with the court finding that the employer failed to provide adequate access and egress to the trailer and that the gap between the steps and trailer floor was self-evidently unsafe.