The Ministry of Labour can prosecute employers under the "general duty" clause of the Occupational Health and Safety Act even where the charges impose obligations that are greater than those set out in the regulations under the OHSA, the Ontario Court of Appeal has decided.
In this case, a trial and appeal justice had decided that the employer could not be found guilty of failing to provide guardrails around a temporary work platform. They reasoned that the applicable regulation under the OHSA ("Industrial Establishments"), which dealt with the issue of guardrails, did not require guardrails in this particular situation (a temporary work platform at a height of six feet). As such, the lower courts held that the MOL could not use the "general duty" requirement found in s. 25(2)(h) of the OHSA to impose obligations greater than those in the regulation.
The Ontario Court of Appeal disagreed, stating that regulations cannot be expected to anticipate the circumstances of all workplaces across Ontario. The key question in this case was whether the installation of guardrails was a reasonable precaution. The Court of Appeal held that the trial justice failed to address that point.
The court concluded, at paragraph 45:
It may not be possible for all risk to be eliminated from a workplace, as this court noted in Sheehan Truck, at para. 30, but it does not follow that employers need do only as little as is specifically prescribed in the regulations. There may be cases in which more is required – in which additional safety precautions tailored to fit the distinctive nature of a workplace are reasonably required by s. 25(2)(h) in order to protect workers. The trial justice's erroneous conception of the relationship between s. 25(2)(h) and the regulations resulted in his failure to adjudicate the s. 25(2)(h) charge as laid.
Practically, one expects that MOL inspectors will consider using this decision to issue compliance orders – or charges – under the "general duty clause" even where the regulations deal with the specific safety issue at hand – such as guardrails or fall arrest – but do not apply in the particular case. For instance, MOL inspectors may issue compliance orders or charges for failing to provide guardrails around a temporary work platform that is only one foot high.
The appeal court allowed the appeal and ordered a new trial before a different justice.
Ontario (Labour) v. Quinton Steel (Wellington) Limited, 2017 ONCA 1006 (CanLII)
For more information, visit our Occupational Health & Safety Law blog at www.occupationalhealthandsafetylaw.com
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