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.
.jpg?ssl=1){kind=logo}
- Ontario legislature passes Bill 186 – Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 – Job protection for workers due to COVID-19 - March 24, 2020
- A wrongful dismissal time warp – When is two years really six? - December 23, 2019
- Embracing the #MeToo movement - October 29, 2019
.jpg){kind=logo}
First up a strong employer safety program is something that has no oversight or cross reference with workers to confirm it can be a complete series of torts and breaches of duty . The a robust cleaning program by the employer prevented any significant debris buildup once again a claim by the employer . An external consulting engineer baffled is paid by the employer,and i’ll bet his operating time on this device is very limited . The employer adduced evidence about an extensive inspection, cleaning and maintenance regimen that the employer used to maintain the saw has to be proven ,much like the corporate safety program before its suddenly true. . The Crown did not challenge this evidence ,by consulting with any workers ,this is probably why they couldn’t determine how it happened because those who use the saw the most got to contribute the least . Only one employer commented ,No witness, including a 34-year employee, had ever seen any debris ejected in the manner of the accident. Floating debris always has a potential to be ejected if it is not safety cleared ,it may be a one in a million but you need to respect the energy to avoid the accident . Its a matter of training to clear the floating pieces before continuing to use the saw . That is a violation of the act but those calling the shots are not interested in listening to employees which may lead to some form of accountability .