Bruce McMeekin Law

Recent OHSA Convictions Lead to Big Fines

We are  just within the first week of July and already the Ministry of Labour has obtained fines this month totaling $325,000 on four separate convictions:

Parker Hannafin Canada pleaded guilty to failing to ensure that a machine with an exposed moving part that may endanger the safety of a worker is equipped with and guarded by a guard or other device that prevents access to the moving part. The breach caused serious injuries to a worker. The company was fined $80,000, exclusive of the mandatory 25 per cent surcharge;

RHI Canada Inc. and Carmeuse Lime (Canada) Inc. both pleaded guilty to failing to ensure that a fuel-fired heating device was located, protected and used in such a way that there was no risk of igniting a tarpaulin or similar temporary enclosure or combustible material adjacent to it.  A worker suffered second and third degree burns. Each company was fined $90,000, exclusive of the surcharge; and,

Wasero Construction (1991) Ltd. pleaded guilty to failing to ensure that every part of a project was adequately braced to prevent any movement affecting its stability or causing its failure or collapse. A prefabricated sewer pipe collapsed causing serious injuries to one employee and minor injuries to another. The company was fined $65,000, plus the surcharge.

All four convictions appear to arise from the failure of the defendants to identify and physically guard against risks to worker safety. A number of authoritative judgments have found that when a risk exists (like a pinch point) that can be physically guarded, employee training is no substitute for guarding. Instruction not to do something (like do not stick your hand into the machinery) does not suffice and will never succeed as a defence in a prosecution.

The convictions also highlight the principle that an employer is liable for the careless acts of its employees. Assume in the RHI and Carmeuse matter that there were satisfactory written procedures on the proper use of the heating device and the employees had been properly trained on the procedures. The companies would still be exposed to conviction unless they could demonstrate that the employees were properly supervised on the safe use of the device minimizing the risk of carelessness (i.e. following the safety rules applicable to the workplace).

Too often employers view compliance as a static and not a dynamic concept. Due diligence requires more. It is all about the circumstances, which, in most organizations, change and change frequently. Ongoing employee training and retraining relying on comprehensive policies and procedures is a must. Policies and procedures are comprehensive only if they include all of the foreseeable safety risks in the workplace and the means by which employees are required to protect themselves. Frequent audits can identify risks that may have been missed or are new. Robust supervision relying on progressive discipline not only ensures the rules are being followed but can also identify risks that may have been missed.