“Reasonable” Trumps Regulations – According to Ontario Court
The Ontario Court of Appeal has ordered a new trial for charges under the Occupational Health and Safety Act involving guardrails on a temporary work platform.
The incident, resulting in the tragic death of welder Mr. Martin Vryenhoek, occurred when he fell from an unguarded platform at an elevation of 6.5 feet (2.0 meters).
The employer was charged under the OH&S Act – Section 25(2)(h) with failing to take “every precaution reasonable in the circumstances for the protection of a worker” by not guarding the platform. It is important to note that the employer was NOT charged with an offence of the OH&S Regulation for “work at height” – which specifically triggers fall protection measures at the elevation of 10 feet (3.0 meters). The employer was originally found to be “not guilty” at the first trial of an offence of 25(2)(h). It had argued that it was in compliance with the 10 foot “trigger height” and therefore not guilty of 25(2)(h).
On appeal, the Court noted the following:
- “…that the OHSA is public welfare legislation – legislation designed specifically to protect workers – and this court has consistently instructed that it must be interpreted GENEROUSLY, not narrowly or technically, in order to allow it to achieve this purpose…”
- “….Section 25(2)(h) establishes a duty that this court has described as “even more sweeping”… It is more sweeping because it does not depend on the existence of a specific regulation prescribing or proscribing particular conduct.”
- “…The Crown is required to prove only….that the offence occurred – beyond a reasonable doubt. If the Crown succeeds in doing so, an employer can avoid liability only by establishing, on a balance of probabilities, that it acted with due diligence in seeking to avoid the event that occurred.” Note: The employer had not mounted a due diligence defence to the charge, as it had argued that it was in compliance with the “work at height” regulation.
- “….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.”
I, (and many others) have argued for years that simple “regulatory compliance” is not enough as it relates to ensuring industrial safety. That regulations should be viewed as a “minimum standard” at best.
Moreover, when it comes to regulations for scaffolding, access and “work at height” in Canada – I would argue that the pool of regulations cover less than ONE QUARTER of the required elements to ensure worker safety. Safe access is ensured by applying ALL of the applicable Standards, Site Rules, Manufacturers’ Technical Instructions and, of course Access “Best Practices”.
It was only a matter of time before a case like this – where a standard “more stringent than the regulation” was deemed to be reasonable by the courts. And of course, when a worker gets killed or injured on the job – we all know how the picture of what was “reasonable” comes into sharper focus. To quote Jim Rohn: “The bigger the ‘why’ – the easier the ‘how’.”
There is a LOT to discuss from this case – there are many arguments to consider – I hope we can do this man’s tragic loss at least SOME consolation by learning from it.
What do you think?
The full case decision from the Appeal Court can be found here: http://www.ontariocourts.ca/decisions/2017/2017ONCA1006.pdf