Her Majesty the Queen in Right of Ontario (Ministry of Labour) v. Dofasco Inc.

[Indexed as: Ontario (Ministry of Labour) v. Dofasco Inc.]

87 O.R. (3d) 161

Court of Appeal for Ontario,

Winkler C.J.O., Simmons and MacFarland JJ.A.

November 9, 2007

Employment -- Occupational health and safety -- Offences -- Employer failing to equip cold-rolling steel mill with guard as required by s. 25 of Industrial Establishments Regulations -- Employer not complying with s. 25 by adopting procedure of requiring employees to use push bar to start steel rolling into mill -- Second employee stationed in control booth for mill and charged with raising and lowering pinch roll not constituting "operating control that acts as a guard for a machine not otherwise guarded" within meaning of s. 28 of Regulation -- Fact that injured worker was not using push bar as required by employer at time of accident not relieving employer of liability -- Industrial Establishments Regulations, R.R.O. 1990, Reg. 851, ss. 25, 28.

The employer was charged under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 after an employee suffered a serious hand injury while working on a cold-rolling steel mill. In particular, it was alleged that the employer failed to equip the mill with a guard as required by s. 25 of the Industrial Establishments Regulations. Section 25 provides: "An in-running nip hazard or any part of a machine, device or thing that may endanger the safety of any worker shall be equipped with and guarded by a guard or other device that prevents access to the pinch point." The employer did not contest the fact that there was no guard but argued that it had adopted a procedure which rendered a guard unnecessary. Employees were required to use a ten to 12-foot push bar to start the steel rolling into the mill, and the employer argued that this constituted an "other device". The justice of the peace agreed and acquitted the employer. That acquittal was affirmed on appeal. The Ministry of Labour appealed.

Held, the appeal should be allowed.

The push bar did not constitute an "other device". It was not part of the equipment of the mill nor did it "guard" the mill. It could not, on its own, prevent access to the pinch point. The purpose of guarding under the Regulation is to prevent advertent and inadvertent conduct on the part of the employee from resulting in injury and, in particular, to take individual discretion, judgment and degree of concentration and capability out of the equation. The push bar left all of these parameters in play.

A second employee, stationed in the control booth for the mill and charged with raising and lowering the pinch roll, was not an "operating control that acts as a guard for a machine not otherwise guarded", within the meaning of s. 28 of the Regulation. An operating control means a physical control that protects the operator of the control.

The deliberate act of the injured worker in not following the procedure of using a push bar on the occasion in question did not relieve the employer of liability. The worker chose not to follow the procedure because a push bar did not work well with a light gauge of steel stock. To suggest that the responsibility for his injury rested squarely on his shoulders would be unfair because defects in the process for performing the work in question and the absence of a physical guard contributed significantly to the accident. [page162]

The employer did not lead evidence at trial that was capable of supporting a due diligence defence.

APPEAL from the judgment of Zuraw J., [2005] O.J. No. 5666 (C.J.), affirming an acquittal on charges entered by Welsh J., [2004] O.J. No. 6062, 67 W.C.B. (2d) 322 (C.J.), under the Occupational Health and Safety Act.

Cases referred to Ontario (Ministry of Labour) v. Hamilton (City) (2002), 2002 16893 (ON CA), 58 O.R. (3d) 37, [2002] O.J. No. 283 (C.A.); R. v. Sault Ste. Marie (City), 1978 11 (SCC), [1978] 2 S.C.R. 1299, [1978] S.C.J. No. 59, 40 C.C.C. (2d) 353; R. v. Spanway, unreported, April 3, 1986 (Ont. Prov. Ct. (Crim. Div.)); R. v. Wyssen (1992), 1992 7598 (ON CA), 10 O.R. (3d) 193, [1992] O.J. No. 1917 (C.A.); Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 36 O.R. (3d) 418n, 154 D.L.R. (4th) 193, 221 N.R. 241, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 C.L.L.C. Â210-006 (sub nom. Ontario Ministry of Labour v. Rizzo & Rizzo Shoes Ltd., Adrien v. Ontario Ministry of Labour)

Statutes referred to Occupational Health and Safety Act, R.S.O. 1990, c. O.1, s. 25

Rules and regulations referred to Industrial Establishments Regulations, R.R.O. 1990, Reg. 851, ss. 25, 28

Wes Wilson, for appellant. Christopher G. Riggs, Q.C. and Robert W. Little, for respondent.

BY THE COURT: --

Introduction

[1] This is an appeal by the Ministry of Labour from the judgment of Zuraw J. of the Ontario Court of Justice upholding the acquittal of Dofasco Inc. (the "employer") by Justice of the Peace Welsh of the Ontario Court of Justice, Provincial Offences Court, on three charges under s. 25 of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 ("OHSA"). The charges against the employer arose when an employee suffered a serious hand injury while working on a cold-rolling steel mill.

[2] This appeal relates to count one on the information. The particulars of that charge provide:

Particulars: The defendant failed to ensure that the pinch point between the upper and lower rollers on the pinch and drive rolls, on the #1-66" Cold Rolling Mill was equipped with a guard as required. A worker, Robert McCormick, was injured.

[3] The employer was alleged to have failed to equip the mill with a guard in violation of s. 25 of the [page163] Industrial Establishments Regulations, R.R.O. 1990, Reg. 851 (the "Regulation"), enacted under the OHSA. Section 25 of the Regulation provides:

25. An in-running nip hazard or any part of a machine, device or thing that may endanger the safety of any worker shall be equipped with and guarded by a guard or other device that prevents access to the pinch point.

[4] The justice of the peace concluded that Dofasco's workplace procedures and enhancements allowing "hands-free" loading into the mill dispensed with the requirement for a guard. He stated in his reasons:

. . . it would appear that the prosecution has made a prima facie case regarding this count, and by definition and letter of the law, the fact that there is no guard at the pinch points, a conviction should be registered. The defendant, however, has presented evidence of procedures and enhancements to the No. 1 66-inch Cold Rolling Mill known as the hands-free loading unit. Further evidence has been provided that when a difficulty arises with a coil of steel there are procedures employed known as the push bar and hand- grippers to assist in feeding the free or lead end of the coil into the mill. The procedures of the push bar and use of hand-grippers to assist in the feeding of the coil into the mill put the employee, at the very least, at arm's length from any pinch points, and therefore, looking at the intent of the law, would preclude the need for a guard on a pinch point as it would be, as it would or should be a non-issue. As such, on this count the court finds that the prosecution has failed in proving beyond a reasonable doubt on count one, and count one is dismissed. An acquittal is entered.

Standard of Review

[5] The Ministry of Labour contends that the employer cannot comply with the guarding requirement in s. 25 of the Regulation by developing procedures and enhancements with respect to the operation of a machine that has the potential to endanger the safety of a worker.

[6] The central issue in this appeal is the proper interpretation of s. 25 of the Regulation, a question of law. In particular, can workplace procedures and enhancements substitute for a guard under s. 25 of the Regulation? The standard of review on a question of law is correctness.

[7] Zuraw J. concluded that he was unable to find any "clear and palpable error in law or fact or mixed law and fact. . .". In applying the standard of review of "clear and palpable error", he applied an incorrect standard.

The Employer's Obligation Under Section 25(1) of the OHSA

[8] The justice of the peace made a finding at trial, obviously in the context of the procedures put in place by Dofasco, that the accident which caused the injury to Robert McCormick, and ". . . the subsequent pain, and suffering and rehabilitation falls fully and [page164] completely on [him] and his actions and not on the employer. . .". The Ministry of Labour takes no issue with this finding, but states that whether the injured employee is at fault or not is irrelevant to the breach of s. 25 of the Regulation. We agree.

[9] Section 25(1) of the OHSA provides that"An employer shall ensure that, . . . (c) the measures and procedures prescribed are carried out in the workplace. . .." As such, the regulation imposes a "strict duty" on the employer. This has been held to be in the nature of the obligation of an insurer and to be non-delegable: see R. v. Wyssen (1992), 1992 7598 (ON CA), 10 O.R. (3d) 193, [1992] O.J. No. 1917 (C.A.), at p. 198 O.R. However, it has been held by the Supreme Court of Canada that this duty falls short of "absolute liability": see R. v. Sault Ste. Marie (City), 1978 11 (SCC), [1978] 2 S.C.R. 1299, [1978] S.C.J. No. 59, 40 C.C.C. (2d) 353, at p. 373 C.C.C.

[10] In his reasons, the justice of the peace made a specific finding that Dofasco did not provide a guard. Dofasco does not contest that finding. Rather, Dofasco claims that it was not obliged to provide a guard because it complied with s. 25 of the Regulation through other means. In the alternative, Dofasco says it should be excused from liability based on the circumstances.

Issues Raised on This Appeal

[11] The issues raised on this appeal are as follows:

(1) Did Dofasco comply with s. 25 of the Regulation by providing an operating control, pursuant to s. 28 of the Regulation, that "acts as a guard for a machine not otherwise guarded"?

(2) Alternatively, did use of the "push bar" to feed the steel into the mill meet the requirements of s. 25 of the Regulation?

(3) In the further alternative, did the deliberate conduct of the worker in not following company procedures for performing the work exonerate the employer? In other words, is it a defence for the employer to say that the accident was the employee's own fault?

(4) Finally, is the defence of due diligence available to the employer?

Analysis

(i) The principles of statutory interpretation

[12] It is trite law that the words of the Act must be read in their entire context and in their grammatical and ordinary sense, [page165] harmoniously with the scheme and object of the Act and the intention of Parliament: see Re Rizzo & Rizzo Shoes Ltd., 1998 837 (SCC), [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, at para. 21.

[13] Further, in Ontario (Ministry of Labour) v. Hamilton (City) (2002), 2002 16893 (ON CA), 58 O.R. (3d) 37, [2002] O.J. No. 283 (C.A.) at para. 16, this court said:

The OHSA is a remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety of workers. When interpreting legislation of this kind, it is important to bear in mind certain guiding principles. Protective legislation designed to promote public health and safety is to be generously interpreted in a manner that is in keeping with the purposes and objectives of the legislative scheme. Narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature's public welfare objectives are to be avoided.

[14] Bearing these principles in mind, in our view, the justice of the peace erred in his interpretation of s. 25 of the Regulation and there is no merit in the submissions advanced by Dofasco.

(ii) Section 28 of the Regulation and the requirement for "an operating control that acts as a guard"

[15] Based on s. 28 of the Regulation, the respondent argued that s. 25 of the Regulation does not require a physical guard. Section 28 of the Regulation provides as follows:

28. An operating control that acts as a guard for a machine not otherwise guarded shall,

(a) be in a location where the safety of the operator is not endangered by moving machinery;

(b) be arranged so that it cannot be operated accidentally; and

(c) not be made ineffective by a tie-down device or other means.

[16] Relying on the words "an operating control that acts as a guard", Dofasco points to the second employee on the team, Mr. Kerr, who was stationed in the pulpit (the control booth for the mill that is located about 20 feet away from the steel coil) and whose job it was to raise and lower the pinch roll as the "operating control". Dofasco contends that Mr. Kerr constituted the "operating control" in that he was in a position at all times to prevent any injury to his co-worker by operation of the machine controls. We reject this argument.

[17] It is clear from the wording of s. 28 of the Regulation that an operating control means a physical control that protects the operator of the control. The subsections of s. 28 reinforce this in referring to the operating control location, that it be arranged so that it cannot be operated accidentally and cannot be made [page166] ineffective by tie-down devices or other means. These provisions must be read conjunctively. In our opinion, it is apparent that the drafters had in mind a physical "operating control" protecting the operator of the machine. In this case, the fact that the accident occurred with Mr. Kerr in the pulpit demonstrates the flaw in the theory underlying Dofasco's argument. In our view, s. 28 of the Regulation has no application to the present circumstances.

(iii) Section 25 of the Regulation and the use of a "push bar"

[18] Dofasco's second argument depends on an interpretation of the words "other device" in s. 25 of the Regulation. Dofasco submits that the push bar, a 10-12 foot device to be used by the employee to start the steel rolling into the mill, constituted an "other device" which prevented access by the employee to the pinch point of the mill. Dofasco protocols and procedures required use of a push bar, which, when used by the employee, kept the employee a safe distance from the pinch point. We cannot accept this submission. In our view, to do so would require a strained interpretation of s. 25 of the Regulation and one that is contrary to the purpose of the statute when read as a whole.

[19] We turn first to the language of the section. Section 25 of the Regulation specifically provides that "any part of a machine . . . that may endanger the safety of any worker" must be "equipped with" and "guarded by" the "other device". In our opinion, when s. 25 is interpreted properly, it is clear that the push bar does not come within the definition of "other device". The push bar does not satisfy either of these requirements -- it is not part of the equipment of the mill nor does it "guard" the mill. Further, the push bar could not, on its own"preven[t] access to the pinch point".

[20] Secondly, the purpose of guarding under the Regulation is to prevent advertent and inadvertent conduct on the part of the employee from resulting in injury to the worker, and in particular, to take individual discretion, judgment and degree of concentration and capability out of the equation. The push bar leaves all of these parameters in play rather than ruling them out as a physical guard is intended to do, and therefore, fall outside the contemplation of s. 25 of the Regulation.

(iv) The deliberate conduct of the worker in not following company procedures

[21] Dofasco's third argument is that an employer cannot be held liable under s. 25 of the Regulation where an employee is injured as the result of his and a co-worker's deliberate conduct [page167] in failing to follow company procedures and protocols. Dofasco emphasizes the statement by the injured worker to his co-worker to the effect that "to hell with it lets [sic] do it the way we used to" to place the blame for the accident squarely on the shoulders of the injured worker, Mr. McCormick. The justice of the peace adopted this view. We cannot accede to this position. It is contrary to the scheme of the OHSA and the Regulations. In our view, it is also at odds with the relevant jurisprudence and common sense.

[22] On a plain reading of the Regulation, employee misconduct does not go to the actus reus of the offence. Rather, at least in relation to employees carrying out their work, an employer is strictly liable if it fails to comply with its obligations and there is no suggestion that employee misconduct constitutes any form of defence.

[23] Further, Collins J. had this to say about the purpose of the OHSA in R. v. Spanway Buildings Ltd., unreported, April 3, 1986 (Ont. Prov. Ct. (Crim. Div.)), at p. 4:

. . . one of the purposes of the act is to protect workers in this very hazardous industry from their own negligence. No one in any occupation can work 100 percent of the time without occasional carelessness. However, the potential for serious consequences of momentary negligence is much greater in the construction industry than in almost any other.

This admonition is particularly apposite in the context of the steel industry.

[24] Moreover, as was noted by Laskin J.A. in his decision granting leave to appeal in this case". . . workplace safety regulations are not designed just for the prudent worker. They are intended to prevent workplace accidents that arise when workers make mistakes, are careless, or are even reckless". In our view, this principle also extends to deliberate acts of employees while performing their work.

[25] In our opinion, Dofasco's argument ignores common sense. Employees do not deliberately injure themselves. The requirement for guarding of machinery is to protect employees in the workplace from injuries due to both inadvertent and advertent acts. This is the reason for the requirement for physical guards. Employees encounter all variations of workplace hazards. Some are inadvertent -- for example, employees may slip, misjudge distances, lose their balance, their timing or dexterity may be off, lose concentration or simply be careless. Physical guards or their equivalent are obviously required to prevent against injury in these situations.

[26] Physical guards or the equivalent are also required to prevent injury from advertent acts by employees exposing themselves [page168] to risk of injury. In this regard there seems to be some confusion as to what meaning ought to be attributed to deliberate acts. This does not mean an act by an employee to intentionally injure oneself. That stretches credulity. It does mean, however, that on occasion an employee may make a conscious decision to disobey an instruction or work practice in order to get his or her work done. Indeed, that is what occurred in the present instance. The statement by Mr. McCormick makes this clear.

[27] But the workers here did not disobey the work instruction to spite or injure the employer. They did so because the work practice specified did not readily accomplish its task with certain light gauges of steel stock such as they were processing on the day in question. The use of the push bar or hand grippers, which were specified, did not work properly on the light steel being processed through the rolling mill on this occasion. The employees could have pulled the roll of steel off of the mill. That was the specified procedure, but it would have meant delays and curtailed production. Instead they chose to use a procedure they had used on a different machine, thereby exposing Mr. McCormick to the risk of injury on this machine. The injury he suffered was as a result of his deliberate act, but it was an act done in furtherance of productivity in the work undertaken for the employer and not for any other reason. To suggest that the responsibility for the injury, pain and suffering rests squarely on his shoulders would be unfair because defects in the process for performing the work in question and the absence of a physical guard contributed significantly to the accident. For all of the foregoing reasons, we do not give effect to this submission.

(v) The defence of due diligence

[28] Dofasco's final argument is raised by way of defence. If we do not accept its other arguments, Dofasco asks that we send this matter back to the justice of the peace for a trial on the issue of due diligence. Relying on the decision of the Supreme Court of Canada in Sault Ste. Marie, Dofasco submits that it led evidence at trial making it clear that it has taken all reasonable steps to ensure that workers would not be endangered by the rollers and/or that it reasonably believed that the rollers did not present a hazard. Accordingly, it submits that the matter should be remitted to the trial court to determine this issue. We cannot accede to this submission. In our view, Dofasco did not lead evidence at trial which is capable of supporting a due diligence defence.

[29] In relation to the first branch of the test, based on our interpretation of s. 25 of the Regulation as outlined above, [page169] Dofasco did not lead evidence that it had taken any steps to place a guard or other device at the pinch point as required. In these circumstances, Dofasco cannot show that it took all reasonable steps to avoid the incident.

[30] As for the second branch of the test, Dofasco does not assert that it believed, mistakenly, that it had taken steps to place a guard or other device at the pinch point as required by the Regulation. Instead, it advances a strained interpretation of s. 25 of the Regulation to support a contention in law rather than fact that it complied with the Regulation. This does not meet the second branch of the test in that it is not a mistake of fact but rather a mistaken apprehension as to the requirements of the Regulation and the statutory regime.

Conclusion

[31] For all of the foregoing reasons, we allow the appeal, set aside the acquittal and enter a conviction. Given the concurrence of counsel, we remit the matter to the justice of the peace for sentencing.

Appeal allowed.