Ontario Occupational Health and Safety Law after Metron
In this article we will outline the evolving legal landscape of occupational health and Safety in Ontario Canada by highlighting the current trend of courts to sharpen the teeth of occupational health and safety legislation. We will use the Metron case to pin point this trend and we will examine its effects in two recent cases decided under the Occupational Health and Safety Act (“OHSA”). Our goal is to emphasize the ever-increasing importance of regulatory compliance in the domain of occupational health and safety. At Fiix we are certain that our CMMS software will help your business ensure compliance which will translate into a savings in time, energy and as demonstrated below, money.
Metron and the Increasing Importance of Occupational Health and Safety
On December 24, 2009, five men working at a construction site fell 13 storey’s when the swing stage they were on collapsed. Four of these men lost their lives and one sustained serious injuries.
Metron Construction (“Metron”) faced charges under both the Ontario OHSA (s.139(5)) and the Criminal Code (ss.22.1(b), 217.1, 219) Metron plead guilty to a charge of criminal negligence causing death and on July 13, 2012, was sentenced to a $200,000 fine in a addition to a 15% Victim Fine Surcharge, which amounted to a total financial penalty to the company and its owner and director Joel Swartz of over 3 times the net earnings of the business in its last profitable year. In addition to this fine, Joel Swartz was fined 112,500 for violations of the OHSA. After delivering this fine the Justice Bigelow went so far as to state that this disposition “should send a clear message to all businesses of the overwhelming importance of ensuring the safety of workers whom they employ.” (para 33 of judgment)
It should also be noted that this fine represented the largest monetary penalty ever imposed on an organization in Canada for criminal negligence in a workplace accident. Yet the Ontario Federation of Labour president Sid Ryan expressed dissatisfaction with the ruling claiming that Metron had exhibited a “shameful failure to follow safety protocols” and that “bosses cannot be allowed to simply buy their way out of responsibility for criminal negligence when the lives of workers and their families have been destroyed.” In response to such lobbying efforts by Ryan and in the face of statistics which show that over 400 Ontario workers die from work-related injuries every year, the sentencing decision in Metron is currently under appeal by the Crown which has alleged that the fine imposed in the case is “manifestly unfit” in the circumstances and that a fine of one million dollars would be more appropriate.
Although this case involved a guilty plea with regards to a charge of criminal negligence causing death which has its own special burden of proof rather than a court’s determination of liability after a full trial on the merits it should be noted that in his judgment, Justice Bigelow placed a lot of emphasis on the importance of the OHSA. For example he cited a passage from a prior decision regarding the significance of such statutes to “ensure standards of conduct, performance and reliability by various economic groups and make life tolerable for all.” (para 19 of judgment)
He also cited the fact that “the swing stage which collapsed had been in use for almost 2 months at the time of the incident and upon its arrival did not have “any markings, serial numbers, identifiers or labels with regard to the stage’s maximum capacity (as required by health and safety legislation and industry practice” nor did it have “any manual, instructions or other product information such as design drawings prepared by an engineer as required by Sec. 139(5) of the Occupational Health and Safety Act (OHSA)” Therefore for almost 2 months Metron was in violation of a number of health and safety regulations with respect to the swing stage which collapsed.
Metron’s Legacy – Sunrise Propane Energy Group Inc. and the “Inherently Dangerous Business”
On June 27, 2013 Sunrise Propane Energy Group Inc. was found guilty of a variety of charges under the OHSA and the Environmental Protection Act (“EPA”). The charges under the OHSA were failing to provide information, instruction and supervision to the worker, and with failing to take every reasonable precaution for the protection of the worker. (Occupational Health and Safety Act, Sec. 25(1) and Sec. 25(2))
On the night of August 10th 2008 at about 3:47 a.m. Parminder Saini was working the night shift at the Sunrise facility and there was a large propane vapour cloud explosion. Saini died through inhalation of flames. Sunrise argued that Saini had been trained but the court inferred that he had not due the fact that he ran in the direction of the explosion. The court held that Saini had not been properly supervised, as the employer had not taken the simple step of providing him with a number to call if he had any questions, nor did any supervisors call to check in on him. The court also found that he should not have been given the responsibility to supervise the propane yard that night given his lack of training and experience.
Sunrise attempted to argue that it had proved due diligence because the accident was not foreseeable yet the court rejected this argument stating that the issue is not whether the accident itself was foreseeable but rather whether a reasonable person would have foreseen that it was dangerous to have Saini working alone at night supervising the propane yard.
The Judge stated: “I am sure that the defendants were well meaning, to a degree, but in an inherently dangerous business such as this there must be a high degree of attention to detail and processes in place that address day-to-day issues, particularly instructing, training and supervision for people handling this very dangerous fuel. People make mistakes and processes assist in mitigating any damage that arises when employees make those mistakes.” (para 367 of the judgment)
As such it would appear that courts are now willing to take an even more strict approach in interpreting the obligations found in the OHSA if the accused operates an “inherently dangerous” business.
Entroplex and the Plastics Industry: Courts Maintain a Hard Line With High Fines
On July 19, 2013 the Ontario Court of Justice Sarnia fined Entroplex Limited, a plastics company a whopping $410 000 for violations of the OHSA after a worker was injured. In this case a worker operated a baling machine that compacted and strapped plastic. A second worker walked in front of the machine as compacted plastic was being ejected. The plastic hit the second worker and pressed him against a nearby forklift causing injuries.
The court found that the baler was not properly protected to prevent worker access, (Ontario Regulation. 851, Sec. 26) was not maintained in proper condition and that maintenance was being performed on the baler while it was in motion (Ontario Regulation 851, Sec. 75). In addition it was found that Entropex had failed, as an employer, to provide information, instruction, and supervision to protect workers around the baler (Occupational Health and Safety Act, Sec. 25(1)(b) and Sec. 25(2)(a))
How a CMMS can help you build an effective health and safety program
The cases above illustrate the current trend of courts to sharpen the teeth of occupational health and safety legislation. Ontario Federation of Labour president Sid Ryan has been calling for such a sharpening for a while now yet Metron has provided him with the ammunition he needed to get policy makers to listen. In fact Metron has triggered a provincial review and amendments to the OHSA to protect workers and reduce accidents. Businesses should now be clear about the overwhelming importance of ensuring the safety of the workers whom they employ.
How is your business reacting to this message? If you are unsure of the effectiveness of your health and safety program or you are unsure of how a CMMS can help build an effective health and safety program I encourage you to learn how here.
Legal Support Analyst
Disclaimer – None of the information above is legal advice and it should not be taken as such.