Workplace Safety and Insurance Law - ONCJ

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.

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.

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.

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.

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.

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.

Avenue Building Corporation was charged under the Occupational Health and Safety Act with failing to ensure that equipment being moved was moved in a manner that did not endanger a worker, following an incident where an employee broke his leg when a 4x4 he was using to move a wall form broke.

The trial judge found the corporation guilty, concluding that the corporation failed to exercise due diligence by allowing workers discretion in tool selection without adequate training and supervision, and by failing to include written procedures for moving wall forms.

On appeal, the appellate court found that the trial judge misapprehended the specific charge and failed to properly apply the due diligence analysis to the correct actus reus, warranting a new trial.

A trial concerning occupational health and safety violations arising from a serious mining accident at the Cochenour Mine in Red Lake, Ontario on August 4, 2013, where a worker suffered severe injuries when rocks fell onto a Mechanized Raise Climber.

The Crown charged the employer and two supervisors with multiple violations under the Occupational Health and Safety Act and Regulation 854.

The court convicted the corporate defendant on counts relating to failure to provide training, supervision, and job task observations, and convicted the supervisors on counts relating to failure to ensure use of safety equipment and supervision.

The court dismissed charges relating to geology, loading of drill holes with ANFO, and notification of appropriate officials.

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 Ministry of Labour appealed the acquittal of Dufferin Construction Company and supervisor David Pimpinella on charges arising from a workplace accident where a large slab of ice fell from a tunnel face wall, injuring an employee.

The trial judge dismissed all three counts, finding the Crown had failed to prove the actus reus beyond a reasonable doubt.

The appellate court upheld the acquittals on Counts 1 and 3 (employer and supervisor duties under the Occupational Health and Safety Act), finding the trial judge's reasons were adequate and the verdicts were supported by the evidence.

However, the court allowed the appeal on Count 2, a technical charge regarding missing safety markings on crane and basket equipment, and entered a conviction on that count.

The defendant was charged with three offences under the Workplace Safety and Insurance Act, 1997: wilfully failing to inform the WSIB of a material change in circumstances between August 23, 2011 and September 25, 2012; and knowingly making false or misleading statements on September 9, 2011 and October 17, 2011 regarding his claim for benefits.

The prosecution presented evidence including testimony from a WSIB case manager and a private investigator, as well as surveillance video showing the defendant working at his former place of employment (Mystic Restaurant) while receiving benefits and claiming he was unable to work or drive.

The defendant was convicted on all three counts.

Anray Limited, a small excavation and concrete company, was charged with three counts under the Occupational Health and Safety Act arising from an incident on August 10, 2010, at a residential renovation project in Toronto.

The charges involved: (1) failure to ensure an excavator was moved safely; (2) failure to ensure the excavator operator was assisted by a signaller; and (3) failure to ensure the operator wore a seat belt.

The defendant was found guilty on Counts 1 and 3, with Count 3 stayed as a contributing element of Count 1.

The defendant was acquitted on Count 2.

The court rejected the defendant's due diligence defence, finding that the company's informal, oral safety practices were insufficient and that the defendant failed to establish reasonable precautions in the circumstances.

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.

A worker employed by a small roofing company fell from a ladder while working on a residential roofing project and died from his injuries.

The company was convicted of failing to ensure a fall arrest system was in place and failing to notify the Ministry within 48 hours of the death.

The owner and operator was convicted of failing to ensure workers used fall arrest systems as a supervisor and furnishing false information to an inspector.

The court imposed jail sentences on the individual defendant and substantial fines on the corporate defendant, emphasizing the need for general deterrence in an industry with persistent fall-related injuries and fatalities.

The accused, a project supervisor for a construction company, was charged with criminal negligence causing death and criminal negligence causing bodily harm following the collapse of a swing stage on December 24, 2009, at a Toronto construction site.

Five workers fell 13 stories to their deaths, one suffered debilitating injuries, and one survived because he was tied to a lifeline.

The court found sufficient evidence to commit the accused for trial based primarily on his failure to ensure that workers were properly tied to lifelines while working on the suspended platform, despite clear regulatory requirements and training standards.

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.

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 Ontario Ministry of Labour prosecuted Linamar Holdings Inc. (operating as Transgear Manufacturing) on three counts under the Occupational Health and Safety Act arising from a workplace accident on May 20, 2009, in which a certified millwright, Amelio Aramini, was electrocuted while troubleshooting a leak in an induction hardening machine (KVA 003).

Count 1 alleged failure to ensure prescribed measures under Ontario Regulation 851, section 41 regarding signage in rooms or similar enclosures containing exposed live electrical parts.

Count 2 alleged failure to provide information, instruction, and supervision regarding safe troubleshooting procedures and electrical hazards.

Count 3 alleged failure to acquaint the worker with electrical hazards.

The court found the defendant guilty on Count 2 only, dismissing Counts 1 and 3.

The decision emphasizes that troubleshooting is an exception to lockout procedures, that the defendant failed to provide adequate machine-specific guidance for troubleshooting, and that the unmarked electrical bus bars resembling water pipes contributed to the accident.

The Ministry of Labour charged the City of Guelph with failing to ensure a workplace wall was safe under section 25(1)(e) of the Occupational Health and Safety Act, and charged an architect and engineer with providing negligent or incompetent advice under section 31(2) of the Act.

The charges arose from a concrete wall collapse in 2009 that killed a student, five years after the project's completion in 2004.

All defendants moved to dismiss the charges as statute-barred under section 69 of the Act, which provides a one-year limitation period from the last act or default.

The court distinguished between the charges: the architect and engineer's charges were dismissed as statute-barred because their negligent advice was provided years before the collapse, while the City's charge was permitted to proceed because the employer's duty to maintain a safe workplace is a continuing obligation that extends beyond the construction phase.