By Jeremy Warning
A recent decision of the Ontario Court of Appeal says that occupational health and safety regulations — even when they are hazard-specific — do not necessarily represent the totality of an employer’s obligations, and that the general duty clause may require further steps to be taken.
Quinton Steel operates a custom steel fabrication business. When working at height, welders would use a temporary platform constructed from two metal A-frame stands spanned by wooden planks.
Tragically, in June 2012, a welder died after falling 6.5 feet from one of the A-frame platforms. The reason the worker fell from the platform was never determined. The individual was working below 10 feet — the height at which tying off was required. The Ontario regulation that applied to the workplace had no provisions relating to scaffolds (to which the A-frame platform was similar) or temporary platforms; however, the regulations applicable to construction projects required that a guardrail be erected around a scaffold when working at 8 feet or above. The worker was working at 6.5 feet.
The Ontario Ministry of Labour charged Quinton Steel for failing to take the reasonable precaution of ensuring that guardrails were erected around the open sides of a raised platform. The allegation was that Quinton Steel had not complied with the general duty clause.
Quinton Steel defended against the charge at trial. It took the position that the Crown could not prove that a guardrail was a reasonable precaution in the circumstances. The evidence included the following:
• workers knew that they had to tie-off when working at 9 feet or more
• the temporary platforms had been used on virtually a daily basis for one year without an incident or near miss
• the Ontario Ministry of Labour had visited the plant on numerous occasions without issuing an order regarding the temporary platforms.
However, it was also revealed that workers’ vision was restricted by their welding helmets and they sometimes had to move along the temporary platform while welding.
Quinton Steel was acquitted at trial. The court found that the Crown had failed to prove a violation because the worker was working below the height-based thresholds prescribed in the regulations and convicting Quinton Steel would impose a more stringent standard than provided for in the regulations.
The Crown appealed the acquittal. The principal thrust of the Crown’s argument was that the court should have assessed whether guardrails were reasonable because workers with restricted vision were working atop raised platforms. The first Crown appeal was dismissed, and the Crown appealed further to the Court of Appeal.
In allowing the Crown’s appeal and directing a new trial, the Ontario Court of Appeal found that regulations, which are subordinate legislation, do not displace the general duty clause in the Occupational Health and Safety Act and that duty is not varied by specific regulations. The court said employers should not “do only as little as is specifically prescribed in the regulations.”
The Court of Appeal’s decision has established that compliance with the hazard-specific measures and procedures in regulations may not be enough. It held that, depending on the circumstances, employers may have to take further steps. This decision does stand to insert considerable uncertainty into the full scope of OHS obligations. This is particularly worrisome given the recent increase in the maximum monetary penalties in Ontario and because of the analysis of what is reasonable in the circumstances may only occur after a serious workplace event.
The Quinton Steel case demonstrates that employers may be required to provide fall protection when workers are working below the height at which fall protection is required in the regulations. In this case, the Crown relied heavily on the restricted vision of the welding helmets to argue that a guardrail would be a reasonable precaution in the circumstances. The Crown offered no objective standard such as an industry practice, CSA standard or safe work association materials to demonstrate that a guardrail would be objectively reasonable. It could point to no prior incident, near miss or order from an inspector to establish that a risk ought to have been identified. Rather, the argument was simply that the vision of welders is restricted while welding and that means a guardrail would be a reasonable precaution in the circumstances.
Uncertainty could arise for employers because the scope of an employer’s obligation has moved from a quantifiable standard (how high is the fall to which the worker is exposed?) to a qualitative standard (are further precautions required based on the circumstances?). The potential uncertainty can be demonstrated by looking at some of the key circumstances in the case. If welding at 6.5 feet above the ground without guardrails could be failing to take every precaution reasonable, what about performing other activities at that height? Would painting, hammering or inspecting require a guardrail? Could this depend on whether the work is being done by hand or with a powered tool or equipment? What if the work is performed at 4 feet above the ground? The answer is not clear and will likely require further cases to identify the circumstances in which steps beyond those required in a regulation are to be taken.
It’s important to note that, based on Quinton Steel, the general duty clause could require employers to exceed the requirements of any hazard-specific regulations, not just those for fall protection. In light of this, employers may want to re-evaluate work processes and tasks to determine whether the circumstances require additional precautions to ensure they have done everything reasonable in the circumstances.
This article originally appeared in the October/November 2018 issue of COS.
Jeremy Warning is a former OHS prosecutor who is now a partner at Mathews Dinsdale & Clark in Toronto. He can be reached at (647) 777-8284 or firstname.lastname@example.org
, or visit www.mathewsdinsdale.com
for more information.