Court rejects Ministry of Labour’s attempt to assume breach of OHSA in face of strong safety program

June 25, 2019 Stringer LLP Health and Safety, Human Resources, 1

The Ministry of Labour often relies on the occurrence of an accident as evidence in and of itself a breach of the Act. However, in many (perhaps most) cases more evidence directly showing a failure by a workplace party to implement the Act is required in order to sustain a conviction. A recent case goes to show that a failure by the Crown to show that an accident resulted from a breach of the Act, combined with an strong employer safety program, can result in an acquittal.

In Ontario (Ministry of Labour) v Alpa Lumber Mills Inc, a worker was injured when a saw on which logs were being cut ejected a large piece of wood, which struck and injured a worker.

After the accident, a stop work order was issued in respect of the saw. It is not clear whether or not the employer made any changes to the saw. However, after an inspection by an external consulting engineer, the saw was deemed safe to use and returned into service.

Although the prevailing theory was that debris in the machine had led to the accident, there was no concrete evidence as to the mechanism by which the accident occurred. The saw had multiple failsafe mechanisms, including guards, to avoid just such an incident from occurring, and a robust cleaning program by the employer prevented any significant debris buildup. No witness, including a 34-year employee, had ever seen any debris ejected in the manner of the accident.

The external consulting engineer, in fact, testified that he was “baffled” as to how the accident took place.

As mentioned, the employer adduced evidence about an extensive inspection, cleaning and maintenance regimen that the employer used to maintain the saw. The Crown did not challenge this evidence.

However, even in the face of that evidence, the Court determined that there was “no evidence” that the employer had a safety system that was sufficient to discharge their responsible to take all reasonable steps to avoid a kickback of the type that caused the accident. The trial court convicted the employer and a supervisor.

Both defendants appealed.

The Crown argued that the mere fact that there was an accident proved that the employer’s maintenance program was insufficient. This type of argument supposes that the mere fact that an accident occurred must imply that the protections in place were inadequate. However, the appeal court pointed out that there was no evidence that the conditions causing the accident (which were unproven) would not arise even immediately after a thorough cleaning. Because of this, the fact of the accident could not prove that there was a breach of the Act, since the evidence was also consistent with an accident that occurred without a breach by the defendants.

The Crown also argued that the trial judge found that there were two other ways in which the defendants allegedly failed to meet the requirements of the Act. However, the appeal court pointed out that neither of these grounds were charged by the Crown, and so were not relevant.

This case once again reinforces the value of a strong safety system that is well documented and implemented. There is no doubt that the strength of the system significantly guided the court’s determination that the accident was not necessarily the result of a failure by the defendants, even where no one could conclusively determine the cause of the accident.

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Employment and Labour lawyers at Stringer LLP

Stringer LLP is a leader in Canadian HR law. For over 50 years, they have taken a client-centered approach to responsive service, representing employers with labour relations and employment problems. Their firm’s practice covers a broad spectrum of HR law, including employment law, occupational health & safety, labour relations and arbitration, human rights, workers’ compensation, pay equity and corporate immigration, as well as issues under the Accessibility for Ontarians with Disabilities Act. They also provide training, seminars and conferences on the above topics. Read more

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breach of the safety rules, employment law, Health and Safety program, health and safety system, safety program, safety systems, Workplace accident

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