As an Ontario employer, it is sometimes hard to shake the impression the standard of OH&S due diligence applied by the courts is so high that defendants are guilty until proven innocent. Our court of appeal has found employers to be “the virtual insurers” of employee health and safety.
The recent decision by the Ontario Court of Justice in R. v. Thomas Fuller and Sons Ltd. is a breath of fresh air. Though the decision does not make new law, it is perhaps one of the most balanced and articulate statements from an Ontario court regarding the general duty of employers to take “every precaution reasonable in the circumstances” section 25(2)(h) of the Occupational Health and Safety Act (OHSA).
In this case an employee, working on a concrete forming project, sustained fatal injuries. A 4 x 4 piece from a wooden brace that formed part of a makeshift winch system being used by the defendant Thomas G. Fuller and Sons Ltd. to coax a section of concrete pipe into place snapped. This caused the tension in the winch system to release. When the cables recoiled the brace pivoted violently, striking the employee who was in its path.
Thomas Fuller was the general contractor on the project and so responsible for ensuring that all employers on site complied with all applicable safety laws. Thomas Fuller was charged with failing as a constructor, contrary to section 31(1)(a) of the Construction Regulations, to ensure that the wooden brace was “designed and constructed to support or resist all loads and forces to which it is likely to be subjected without exceeding the allowable unit stress for each material used.” [Emphasis added]
As a starting point, the Court rejected the Ministry’s assertion that the word “likely” in section 31(1)(a) meant that Thomas Fuller was required to ensure that the wooden brace, as a temporary support, could withstand the maximum forces that the winch system was capable of exerting.
Instead, the Court stated that the “key point is that this offence deals with anticipated conditions rather than the evaluation of conditions with the benefit of hindsight… A more refined evaluation, including examination of the precise role being assigned to the winch system, is required, since it is the use to which a part of the project is to be put that determines the load or force it is likely to experience.”
Ultimately, the Court found that the Ministry failed to prove the actus reus of the offence – that the wooden brace was not designed and constructed to withstand all forces and loads to which it was likely to be subjected.
The Court went on to consider, in the alternative, if the Crown had managed to prove the actus reus, whether Thomas Fuller could have successfully proven the defence of due diligence. The Court mentioned a few “reasonable precautions” that could have been taken but were not. Despite this, the Court found that the defence would have been made out and provided this well-reasoned statement of the law in Ontario:
Due diligence did not require these steps be taken. I am making this finding knowing that it is common for the cases in this area to recite that “it is open to the accused to avoid liability by proving that he took all reasonable care,” a phrase that might in isolation suggest that since engineering consultations and gauges are reasonable steps to take, the failure to do so precludes due diligence. As a matter of law, though, the phrase “all reasonable care” cannot and is not understood to require the accused to take each and every precaution that would be reasonable to take in the circumstances. As indicated, due diligence is a negligence based standard. The pertinent question is whether the accused “took all of the care that a reasonable [person] might have been expected to take in the circumstances.” In other words, the call for “all reasonable care” is an abridged call demanding “all reasonable care that a reasonable [person] would have taken in the circumstances.” This is why it is possible to refer at the same time in the case-law to “all reasonable care” and to “efforts amount[ing] to a minimally acceptable exercise of due diligence.” Of course it would have been reasonable in the circumstances for Thomas G. Fuller & Sons Ltd. to have consulted with engineers and to have put gauges on the device, or even to use a steel structure instead of wood one, but for the reasons given a reasonable person would not, in all of the circumstances, have been expected to do so.” [Emphasis added. Footnotes omitted.]
This statement could form the basis for a more reasonable application of the standard of OH&S due diligence. The standard is justifiably high; but it was never intended to be a standard of perfection.
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