Workplace Safety and Insurance Law - ONCJ

A corporate defendant was convicted of failing to ensure prescribed occupational health and safety measures at its manufacturing facility, resulting in a worker sustaining four finger amputations.

The Crown and defence jointly submitted a sentencing recommendation of $35,000.

The court rejected the joint submission as not being in the public interest, finding that the parties failed to adequately account for inflation when relying on sentencing authorities that were more than five years old.

The court imposed a fine of $55,000, adjusted to reflect post-pandemic inflation from 2015 to 2024.

This is a sentencing decision following convictions under the Occupational Health and Safety Act (OHSA) for a workplace fatality.

The corporate defendant and two individual supervisors were found guilty of failing to ensure proper rigging of concrete blocks and adequate training/supervision, leading to a worker's death.

The court applied established sentencing principles, emphasizing deterrence and considering the increased maximum penalties for OHSA offences.

Fines were imposed on the corporate defendant and the two individual supervisors, reflecting the seriousness of the breach and the need for general deterrence.

The corporate defendant, Limen Group Const. (2019) Ltd., and two individual supervisors, Octavio Tome and Emanuel Tavares, faced charges under the Occupational Health and Safety Act following a fatal incident where a concrete block, improperly hoisted by a crane, fell and killed a worker.

The charges alleged failure to ensure suitable attachment points for hoisting and failure to sufficiently train and supervise workers regarding the hazard of using embedded rebar as hoisting points.

The court found that the Crown proved the hazardous act and the defendants' roles as employer and supervisors.

The defendants' due diligence defence, which argued the worker acted alone, was rejected.

The court found that the unsafe practice was not an isolated incident and was known or should have been known to supervisors, and that the defendants failed to take all reasonable steps to prevent such hazardous rigging.

All defendants were found guilty of the charges.

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.

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.

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.

A corporate defendant brought a motion under s. 11(b) of the Charter of Rights and Freedoms seeking a stay of proceedings based on unreasonable delay.

The defendant was charged with three counts under the Occupational Health and Safety Act arising from a workplace injury.

The court considered whether the Jordan framework applied to regulatory matters and corporate accused, and whether the net delay of approximately 25 months exceeded the 18-month presumptive ceiling for provincial court trials.

The court found that Jordan applies to both regulatory prosecutions and corporate defendants, that the delay was presumptively unreasonable, and that the Crown failed to establish exceptional circumstances to justify the delay.

The court granted the stay of the remaining charge.

The defendant, a motor vehicle manufacturer, was charged with failing to ensure that prescribed occupational health and safety measures were carried out at its Brampton facility.

Specifically, the defendant failed to install guardrails at an open side of a raised platform (the Underbody Re-Spot Station) where an employee fell and sustained serious injuries.

The defendant argued that section 20 of the regulation applied instead of section 13, that the platform qualified as an exempt "pit," and that it had exercised due diligence.

The court rejected all defences and found the defendant guilty, holding that guardrails were required under section 13(1)(b) of Ontario Regulation 851/90, that the platform was not a "pit" within the meaning of the exemption, and that the defendant had not taken all reasonable precautions.

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.

An employer was convicted of breaching sections 25(1)(c) and 25(2)(a) of the Occupational Health and Safety Act after a maintenance electrician was injured when a large shipping door fell on him while he was performing electrical checks on the door mechanism.

The employer appealed both convictions, arguing that the worker was merely inspecting rather than performing maintenance work, and that the employer had exercised due diligence through policies and training.

The appellate court dismissed the appeal, finding that the worker's electrical checks constituted work triggering the blocking requirement, that the workers were sent to an unfamiliar area without supervision, and that the employer failed to establish the due diligence defence.

The Crown charged Magna Seating Inc. with two occupational health and safety violations arising from a worker being struck by a falling automotive seat at workstation 1630 on assembly line #1.

The first charge alleged failure to ensure material was transported, placed or stored so it would not tip, collapse or fall, contrary to section 45(b) of Ontario Regulation 851/90.

The second charge alleged failure to ensure a machine was shielded or guarded so that material being processed would not endanger worker safety, contrary to section 26 of Ontario Regulation 851/90.

The court found that while the Crown proved the actus reus of the first charge, the defendant successfully established the due diligence defence on a balance of probabilities.

The court dismissed both charges, finding that the defendant had taken all reasonable care in the circumstances to prevent the accident, particularly given the low probability of recurrence, minimal injury potential, and the unforeseeable combination of factors that led to the incident.

The Crown prosecuted an employer for two offences under the Occupational Health and Safety Act following the fatal fall of an experienced welder from a temporary A-frame and plank platform at a height of approximately 6.5 feet.

Count 1 alleged failure to install guardrails at the open sides of a raised wood platform contrary to section 25(2)(h) of the OHSA.

Count 2 alleged failure to provide information, instruction and supervision to protect the worker from falling contrary to section 25(2)(a) of the OHSA.

The defendant did not advance a due diligence defence.

The court found that section 13 of the Industrial Establishments Regulation, which requires guardrails at open sides of raised surfaces, applies only to fixed premises attached to buildings, not to temporary mobile equipment.

Section 85 of the same regulation, which governs fall protection equipment, forms a complete code for this type of temporary platform work and does not require guardrails at heights below 3 metres.

The Crown improperly attempted to extend requirements beyond the applicable regulation through the general duty clause.

Both charges were dismissed.

Four defendants—two corporations and two individuals—were charged with twelve counts of offences under the Occupational Health and Safety Act arising from a fatal accident on May 12, 2008, at a condominium construction site in Toronto.

A piece of cast iron pipe fell from the 23rd floor and struck a senior supervisor, Emilio Piccinin, causing his death.

A former co-defendant, Maple Leaf Structural Ltd., pleaded guilty to one charge.

The remaining defendants pleaded not guilty and proceeded to trial.

The court found that while Maple Leaf bore primary responsibility for the accident, the remaining defendants exercised due diligence and did not breach their statutory duties under the Construction Projects Regulation.

All charges against the remaining defendants were dismissed.

The respondent parents brought a motion under Rule 20(5) of the Family Law Rules seeking disclosure of the names and addresses of all private investigators hired by the Children's Services society, along with copies of all correspondence, retainer agreements, and exchanges between the society and investigators since November 2012.

The parents alleged they had observed unknown persons conducting surveillance of their home and taking photographs.

The society claimed litigation privilege over the surveillance materials.

The court dismissed the motion, finding that while the society has a broad disclosure obligation under Stinchcombe principles, litigation privilege protects work product prepared in contemplation of litigation, including surveillance conducted for litigation purposes that has not been relied upon as evidence.

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.

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.