Court of Appeal clarifies “general duty” clause under the OHSA

On June 7, 2012, a worker tragically fell to his death while working at an industrial steel facility in Guelph, Ontario. The worker, a skilled finishing welder, was welding a large steel product. At the time of the incident, the worker was working approximately 6.5 feet above the ground, standing on a suspended temporary wooden platform. No guard rails had been installed. There were no witnesses to the incident which led to the worker’s fatal injury.

MOL Charges and Applicable Statutory Provisions

The worker’s death was reported to the Ministry of Labour (“MOL”) by Quinton Steel (Wellington) (“Quinton”), the worker’s employer. The MOL subsequently charged Quinton with two (2) offences pursuant to the OHSA:

(1) Quinton failed as an employer “to take every precaution reasonable in the circumstances for the protection of a worker, at a workplace…contrary to section 25(2)(h)” of the OHSA. In that regard, Quinton failed as an employer to “take the reasonable precaution of installing guardrails at the open sides of a raised wood platform”.

(2) Quinton failed as an employer to “inform, instruct and supervise a worker to protect the health or safety of the worker, at a workplace…pursuant to section 25(2)(a)” of the OHSA.

Section 25(2)(h) is commonly referred to as the “general duty” clause under the OHSA. Section 25(2)(h) has been regarded as a “catch-all” enforcement mechanism by the Crown and the MOL. A breach of this section has historically been alleged when an OHSA “violation” does not fit within or was not specifically enumerated in, the OHSA or its Regulations.

In this particular case, Quinton was subject to and required to comply with, the Industrial Establishments Regulation (“IER”) under the OHSA. The IER did not specifically call for the installation of guardrails on the type of temporarily suspended platform from which the injured worker fell. The IER only called for the installation and maintenance of guard rails for suspended platforms in excess of 3 meters in height (approximately 9 feet).

Nevertheless, the Crown pursued an alleged violation of section 25(2)(h), arguing that it was “reasonable” to expect Quinton to install guardrails as a pre-emptive measure, to safeguard its workers.

Trial before the Ontario Court of Justice

At trial, Quinton advised the Court that it would not be relying on the defence of due diligence. Instead, Quinton advanced the argument that the Crown had failed to demonstrate a violation of the OHSA. Quinton stated that because it had complied with the regulatory requirements set out under the IER, the Crown had no basis upon which to prove the actus reus (“guilty act”) component of a strict liability offence under the OHSA. The applicable provisions of the OHSA and its Regulations did not call for any specifically different behaviour on the part of Quinton. As a result, Quinton argued, it had to be acquitted of all charges.

Surprisingly, both charges against Quinton were dismissed by presiding Justice of the Peace Stinson of the Ontario Court of Justice. Justice of the Peace Stinson agreed that the Crown had failed to demonstrate a contravention of the OHSA.

Significantly, Justice of the Peace Stinson ruled that because the Crown could not point to a specific contravention of the OHSA or of the IER, there was no basis upon which the Crown could claim that Quinton had violated the general duty clause, section 25(2)(h) of the OHSA. In other words, Justice Stinson ruled that section 25(2)(h) of the OHSA could not impose obligations that were “greater” than those found in the IER.

Additionally, Justice of the Peace Stinson rejected the Crown’s argument regarding an alleged violation of section 25(2)(a) of the OHSA, for similar reasons. The presiding justice dismissed this training charge, ruling that because a guardrail was not required, there was “no gap” in the training provided to the worker.

Crown’s Basis for Appeal

The Crown did not appeal Justice of the Peace Stinson’s ruling with respect to section 25(2)(a) of the OHSA. Instead, it only appealed the Court’s dismissal of its “general duty” argument, based on an alleged violation of section 25(2)(h). In that regard, the Crown submitted that Justice of the Peace Stinson erred in law by “failing to adjudicate the section 25(2)(h) charge as laid”. The Crown argued that the trial justice did not make the relevant findings of fact necessary to determine if it was “reasonable” to require that guardrails be installed (notwithstanding the ‘minimum’ requirements of the IER).

Ontario Court of Appeal’s Ruling

On appeal, the Ontario Court of Appeal unanimously agreed with the Crown. The Court stated that, in the interest of the public, the OHSA had to be interpreted generously, as opposed to narrowly or technically, in order to allow it to achieve the purpose of ensuring the safety and wellbeing of workers across the province.

The Court of Appeal agreed that Quinton’s factory would qualify as an industrial establishment as defined in the OHSA, and agreed that the IER did apply to it. The Court of Appeal also referred to section 25(1) of the OHSA, which points to the Regulations under the OHSA and imposes a duty on employers to ensure that the measures and procedures prescribed by the regulations are carried out. However, the Court of Appeal clarified that no language in the statute served to limit an employer’s “general duties” and obligations with respect to ensuring the safety and well-being of workers under the OHSA.

Contrary to Quinton’s position and the trial justice’s ruling, the Court confirmed that section 25(2)(h) of the OHSA establishes a duty that is “even more sweeping” than the duties found under the IER, and the OHSA’s Regulations. The Court clarified that it is more sweeping because it does not depend on the existence of a specific Regulation prescribing or proscribing any particular conduct. In the Court’s view, the legislature did not intend for the Crown to have to prove any particular failure to comply with any of the Regulations under the OHSA in order to prove that section 25(2)(h) had been violated.

Returning to the case at bar, the Court ruled that the Crown was only required to prove that the installation of guardrails was a “reasonable” precaution given the circumstances in order to protect a worker; if proven beyond a reasonable doubt, this would form the actus reus component of section 25(2)(h) offence under the OHSA.

Justice of the Peace Stinson did not answer the foregoing question. The Court of Appeal unequivocally confirmed that Justice of the Peace Stinson’s ruling was incorrect in that regard. The Court stated:

[41]      First, regulations cannot “occupy the field” by displacing statutory authority. Section 25(2)(h) specifically requires that employers take every precaution reasonable in the circumstances for the protection of a worker. As I have said, that duty is not varied or limited by the existence of specific regulations.

[42]      Second, the effect of the trial justice’s interpretation is to limit the protection afforded workers in industrial establishments working on temporary structures: they are entitled to receive fall-protection equipment only, and then only if they are working at a height of more than three metres. This interpretation seriously undermines the purpose of the OHSA – the protection of the health and safety of workers – and is antithetical to the generous interpretation that the law requires.

Quinton’s primary counter-argument on appeal was that the Regulations provided employers was a degree of certainty which permitted them to “arrange their workplace affairs”. In Quinton’s view, allowing the MOL and the Crown to prosecute an employer based solely on an MOL Inspector’s interpretation of “reasonableness”, established on a case-by-case basis, would introduce too much variation into the MOL’s enforcement mechanisms, thus leading to inconsistent outcomes.

The Court rejected Quinton’s argument on that subject:

[44]      But prescriptive certainty is not required in the context of regulatory offences such as s. 25(2)(h). That section establishes a standard, rather than a rule, the requirements of which are tailored to suit particular circumstances. Employers must take every precaution reasonable in the circumstances in order to protect workers. Reasonableness is a well-known legal concept that is interpreted and applied in a wide variety of legal contexts. Its use in s 25(2)(h) does not give rise to intolerable uncertainty.

The Court of Appeal concluded its ruling by noting that it may not be possible for all risk to be known and/or eliminated from a workplace; however, it would not follow that employers need only do as little as specifically prescribed in the Regulations under the OHSA.

In the result, the Court of Appeal allowed the Crown’s appeal and ordered a new trial before a new Justice of the Peace.

Key Takeaways for Employers

The Ontario Court of Appeal unanimously confirmed that the MOL and the Crown can prosecute an employer solely on the basis of an alleged violation of the “general duty” clause under the OHSA, even where the charges impose obligations that may be significantly greater than those set out in Regulations such as the IER.

On the heels of the Court of Appeal’s recent decision, the Ministry of Labour has recently announced a “Guard Rail and Electrical Hazards” blitz. As a part of this “blitz”, and on a going forward basis, it stands to reason that the MOL will increasingly rely on the Court of Appeal’s recent direction regarding section 25(2)(h) of the OHSA.

In our view, this will result in an increase in discretionary tickets, compliance orders, and stop work orders being issued by the MOL. In some cases, employers may receive tickets or notices of contravention in respect of circumstances or issues where they have already been found (by a MOL inspector, or a Court) to have complied with the OHSA, and/or a specific Regulation. In our view, employers will continue to see an increase in legal exposure as a result of the Court of Appeal’s ruling, and the Crown / MOL’s anticipated reliance on the standard of “reasonableness” to determine whether an employer has breached the OHSA.

Co-authored by Tushar Anandasagar and Lucas Hendsbee.

Tushar Anandasagar is an Associate Lawyer at LeClair and Associates P.C. He works in all areas of Labour and Employment law, with a particular focus on Workplace Health and Safety compliance and related issues. For further information or discussion, please contact Tushar by email at Tushar@leclairandassociates.ca.

 Lucas Hendsbee is a Research Assistant at LeClair and Associates P.C. He provides research and analysis regarding all areas of the law, with a focus on regulatory compliance, policy analysis, and emerging legal issues. For further information or discussion, please contact Lucas by email at Lucas@leclairandassociates.ca.


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