Tuesday, 1 April 2014

Recent Cases Highlight Individuals’ Liability for OHSA Violations

Three recent decisions of the Ontario Court of Justice show just how imperative it is for employers and workers to take their responsibilities under the Occupational Health and Safety Act (the “OHSA”) seriously.
Following a lengthy trial, that started in 2011 and was concluded in 2013, Justice of the Peace Mary A. Ross Hendricks passed down her sentence in Ontario (Ministry of Labour) v. J.R. Contracting Property Services in March this year.  In October 2008, a worker employed by J.R. Contracting was on the roof of a residential garage tossing loose shingles into a trash bin when he rolled off, landing on a concrete walkway.  As a result of his fall, he injured his spinal cord, leaving him permanently paralyzed from the waist down.  The Ministry of Labour investigated and charged the company, Teisha Lootawan (as a supervisor), and Andrew J. Haniff (for obstructing the investigation). 

At trial, the evidence disclosed that the injured worker was employed by J.R. Contracting and that he was neither provided with fall equipment nor trained in its use, although he was sent to perform work on a roof that was over three (3) metres off the ground.  The fact that he and his co-worker had drank as many as three beers before starting the job did not reduce the company’s culpability for failing to take all reasonable precautions in the circumstances.  The Justice of the Peace also concluded that Ms. Lootawan had been responsible for directing the two workers to the job location (a residential property in Toronto), and told them that they would be working on the roof, but did not ensure that they had and used fall protection.  In the course of the Officer’s investigation, it was found that Mr. Haniff had refused to answer any questions with respect to what he had done after receiving a call from the homeowner, although this information was relevant to the accident investigation.

The company received a $75,000 fine, which was in the mid-range for an accident of this nature, for failing to take all reasonable precautions to protect the safety of a worker.  Mr. Haniff was fined $2,000 for his refusal to cooperate with the Officer’s investigation. However, most surprisingly, the Justice of the Peace ordered that Ms. Lootawan serve 45 days in custody, to be served continuously.  In large part, this sentence reflected the fact that Ms. Lootawan had prior convictions under the Provincial Offences Act (for violation of the Environmental Protection Act), had been sentenced to jail on an intermittent basis in the past, and had not paid over $50,000 in fines that were previously imposed.  The JP was persuaded that neither fines nor an intermittent custodial sentence would be likely to deter Ms. Lootawan from committing further infractions.

In another case recently reported by the Ministry of Labour, a JP ordered fines against both a Mississauga construction company and one of its Directors.  In R. v. Starland Contracting Ltd. (unreported).  During one visit to the site (where the company was working on the construction of a self-service car wash), an inspector from the Ministry of Labour had observed a worker on a roof without a hard hat or fall protection.  The same inspector paid a follow-up visit to the site a couple of months later, where he encountered one of the Directors of the company (Murad Ebeid) acting as a supervisor on site.  When the inspector approached him, Mr. Ebeid swore at the inspector, told him to leave the site, and made threatening gestures and comments towards the inspector. When asked, Mr. Ebeid also refused to show identification to the inspector.  On a visit the next day, the company could not produce a Notice of Project or Form 1000, and then failed to produce the documentation by the date ordered by the inspector.

For its violations of the Act, the company was fined $29,500 (for failing to ensure a worker was using fall protection and wearing a hard hat, and for failing to comply with an order of the inspector).  Mr. Ebeid was also fined $8,500 personally for obstructing the inspector and for failing to show I.D. when requested.
These cases highlight the risks for supervisors who are not compliant with their obligations under the Act.  However, another recent reported case suggests that workers are also not immune from prosecution.  On November 13, 2014, Justice of the Peace Mary A. Ross Hendriks ordered a worker to pay a fine of $1,500 for his violation of the OHSA.  The worker, Christopher Schwaemmie, was working as a hoist operator on a Toronto job site when he was observed jumping from a hoist tower to a nearby rooftop, approximately 50 feet above the ground.  Mr. Schwaemmie was wearing a fall protection harness and lanyard, but was not tied off.  The worker pled guilty to failing to be adequately protected by a method of fall protection while exposed to a fall of more than three metres.

These decisions demonstrate that employers, supervisors and employees all need to be more vigilant in ensuring work is performed safely, particularly when work at heights is involved. They also demonstrate the willingness of the Ministry of Labour to pursue charges against individuals (not just large, corporate employers) where the Act is not being followed. 

If you have questions about these decisions, your obligations under the OHSA, or are facing potential prosecution, please do not hesitate to contact Lance Ceaser.

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