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  Can an employer properly use a procedural instruction in lieu of a physical guard on machinery or equipment? Can a deliberate decision by workers not to use such a procedural instruction in itself afford a due diligence defence to a guarding charge?
In a decision issued by Ontario’s highest court on Nov. 1 2007, these questions received the resounding answer “No!” and all employers received a stern reminder that guarding-related requirements in occupational health and safety legislation must be strictly complied with. The Dofasco decision The Court of Appeal for Ontario’s recent decision in R. v Dofasco Inc. (2007 ONCA 769 (CanLII) )allowed an appeal by the Ontario Ministry of Labour from two judgments, each of which had upheld the acquittal of Dofasco Inc. (Dofasco) on a charge under s. 25 of the Industrial Regulations of the Ontario OHSA. The charge arose when an employee suffered a serious hand injury while working on a cold-rolling steel mill. Dofasco was charged with failing to guard a pinch point in the cold-rolling steel mill in violation of s. 25, which, like many similar provisions in corresponding regulations across Canada, requires that employers prevent access to moving parts or in-running nip hazards. Much of the litigation focused on what employers may or must do to “prevent access” to moving parts. At trial and subsequent appeal, the courts concluded that Dofasco’s workplace procedures and equipment allowed for safe loading of steel into the mill and this negated the need for a guard. Steel was loaded into the mill by an operator in a pulpit, and local workers standing near the machinery were expected to use a push bar and hand-grippers if necessary to assist in feeding steel into the mill, which kept them at arm’s length from any pinch points. Thus, Dofasco was acquitted of the guarding charges. In coming to this decision, the trial court found that responsibility for the accident and injury fell completely on the injured employee and not Dofasco, because the employee had consciously disregarded the operating procedures which Dofasco had put in place which precluded the need for a guard. Apparently the worker and a co-worker conceded deciding “to he@# with it, lets do it the way we used to,” and the worker’s hand got caught in the machinery while feeding the steel manually. On appeal there was no dispute that the mill had no physical guard to prevent access to the pinch point. The central issues were:
• whether Dofasco provided alternative safety measures (procedures) that amounted to compliance with s. 25 of the Regulation requiring that the employer prevent access; and • whether the injured employee’s deliberate actions, in disobeying a known procedure designed to prevent access, relieved Dofasco of liability for failure to guard.
Courts expect a physical guard Dofasco put forward two procedural or operational measures that it argued prevented access to the pinch point or hazard, despite the fact that a physical guard was not present. It argued that a co-worker, who operated the opening and closing of the pinch roll of the mill from the pulpit, was in essence an operating control that obviated the need for a guard. Secondly, Dofasco submitted that workers were able to push steel into the mill using a 10 to 12 foot bar, which kept them at a safe distance from the pinch point. The court of appeal rejected Dofasco’s submissions. The court ruled that a physical control to prevent access was required. Procedures or operational measures in the absence of a physical guard do not meet this requirement. The court reminded employers that the purpose of guarding is to prevent advertent and inadvertent conduct on the part of an employee from resulting in injury and, “in particular, to take individual discretion, judgment and degree of concentration and capability out of the equation.” The court determined that the push bar, which the worker failed to use in this instance, left “all of these parameters in play rather than ruling them out as a physical guard is intended to do, and therefore, fall[s] outside the contemplation of s. 25 of the Regulation.”
Court rules out “finger-pointing” The court of appeal also found that despite the acknowledged fact that the injured worker deliberately disobeyed safe work procedures (the push bar procedure), that was not in itself a defence. In support of this conclusion, the court provided a number of reasons: • firstly, on a plain reading of the guarding provisions of the regulations, employee misconduct is not relevant to the issue of whether the offence of failing to guard has been committed. As the court stated: “Rather, at least in relation to employees carrying out their work, an employer is strictly liable if it fails to comply with its obligations and there is no suggestion that employee misconduct constitutes any form of defence”; • secondly, the court reminded employers that guarding requirements are designed to protect workers from injuries due to both inadvertent and advertent acts while performing their work. Safety regulations, the court reminded, are not just to protect the prudent worker, but are also there to protect the careless or even reckless worker; • finally, the court noted that the work procedure established by Dofasco had not worked on the day of the accident, which contributed materially to the employee’s decision to not follow that procedure and thus, to the accident itself. The court decided that it would be unfair to blame the employee solely for the accident when there was no physical guard to prevent access, the established procedure was defective, and the employee had only failed to follow the procedure so that production was not slowed down. The court of appeal rejected Dofasco’s further submission that it had taken all reasonable steps to ensure that employees would not be endangered by the mill’s rollers and that it reasonably believed that the rollers did not present a hazard. Despite evidence of training, operating procedures, providing the push bar and a deliberate refusal by the injured worker to follow established procedures, the court summarily rejected consideration of a defence of due diligence. The court stated that in the absence of evidence that Dofasco had taken steps to place a guard or other device at the pinch point as required, no due diligence respecting the specific guarding charge before the court existed. Although the decision continues to recognize that employers can be relieved of liability for proven breaches of the OHSA when the evidence shows that the employer has taken all reasonable care or due diligence, the notion of what is acceptable as due diligence, especially pertaining to guarding offences, appears to have been considerably restricted by R. v. Dofasco Inc. Courts in all jurisdictions have grappled with this question, with some courts in the past accepting the existence of procedural steps (and worker failure to follow procedural steps) as a defence. Having in place a safe work procedure (i.e. the use of push bars) is not duly diligent, this court has ruled, because that system could fail (or be deliberately disregarded in the absence of a physical barrier as here). As Dofasco had not actually taken steps to physically guard the mill, it was convicted here. The court did not unfortunately reconcile its comments about the inability to “point the finger” where there has been “deliberate flouting of safety procedures” in one important respect. Historically, Canadian courts have accepted that momentary worker inadvertence or inattention, or failure to follow procedures or practices, will not result in liability by an employer, where the employer otherwise has in place an established, ongoing, functioning system of policies and procedures and effective training and reminders and enforcement of procedures. Indeed the very concept of due diligence as developed by Canadian courts suggests that where a system is functioning, due diligence will be found despite a momentary failure by a single worker to follow the system. In this regard, the Ministry of Labour itself accepted in this case (in its factum to the court) that an employer who has otherwise been duly diligent “will not be held responsible for unforeseeable rogue acts of an employee solely within the control of that employee.” We would submit, therefore, that an employer that has taken reasonable steps towards having in place physical guards, during all operations, has procedures in place, training and enforcement of procedures, should still be able to rely upon its due diligence in this regard despite “worker error” or “flouting of requirements” in this context. The best approach for employers is to redouble their efforts to ensure strict compliance with OHSA guarding-related provisions. Careful regard to guarding requirements requiring physical guards, and ensuring policies and procedures are in place to address guarding hazards (and consistently applied and followed), are fundamental. Careful regard to all applicable standards for guarding such as evolving and stringent CSA Standards is advisable. Assessment and auditing of compliance with guarding requirements and current applicable standards is an important practice and is a recognized step supporting an organization’s due diligence efforts.
Cheryl A. Edwards, (
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) a former Ontario Ministry of Labour occupational health and safety prosecutor, now leads the national OHS and WSIB practice group of Heenan Blaikie LLP. Cheryl has been recognized as one of the leading lawyers in Canada in workplace safety and insurance and occupational health and safety law. Kevin D. MacNeill (
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) is a senior associate and member of the Heenan Blaikie OHS and WSIB practice group and author of OHS and human rights publications.
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