Wednesday, 18 February 2015

Corporate Directors Jailed After Worker Falls to His Death

Any employer who has not yet received the memo, should pay close attention to some recent decisions of the Ontario courts. In cases where employees are seriously injured or killed following a workplace accident, the courts are increasingly willing to impose jail sentences in addition to substantial fines.

In R. v. New Mex Canada Inc., a decision of the Provincial Offences Court (summarized here), the employee was using an "order-picker" (a combination forklift/operator-up platform) which had been modified by tack-welding an additional platform onto the forks of the device.  There was no guarding surrounding the added platform, and the employee was not wearing fall-arrest protection.  The employee fell from the machine and died of blunt-force trauma to the head.  The Ministry of Labour found a number of violations of the Occupational Health and Safety Act (the "OHSA"), including the lack of fall-arrest equipment and the failure to provide health and safety training to employees.

The Ministry prosecuted the company and two of its directors.  The corporation pleaded guilty, and Justice of the Peace C. Jill Fletcher imposed a fine of $250,000 (plus the 25% victim surcharge) for failing to provide information and instruction to a worker about fall-arrest protection when the worker is working at heights.  The two directors also pleaded guilty, and were each given 25 days in jail (to be served on weekends) for failing to ensure that the corporation complied with its OHSA obligations.  In addition, they were ordered to take a health and safety training course within the next 60 days.

Sadly, this is not the first time that the Provincial Court has attempted to send this message.  It's troubling that an employer today would still not be providing the rudiments of workplace health and safety.  Still, the decision stands as one of many reminders to employers (and their corporate directors, supervisors, etc.) about the risks inherent in failing to take health and safety obligations seriously.  To avoid this outcome, employers must:
  • Ensure that they have a health & safety policy, and procedures that explain to employees how to perform their duties safely.  Review policies on a regular basis to ensure they remain relevant and up-to-date;
  • Ensure that corporate directors are familiar with the employer obligations under the OHSA and Regulations;
  • Ensure that employees receive health and safety training (including, but not limited to, the "basic awareness training" mandated by Regulation 297/13), and provide regular refreshers;
  • Be particularly diligent in training and supervising young workers and employees who are new to the workplace, as they are most vulnerable to hazards;
  • Ensure that supervisors are "competent", by providing enhanced training designed to identify and alleviate workplace hazards.  Also make sure that supervisors are aware of and consistently enforcing workplace rules and policies regarding health and safety; 
  • Conduct regular inspections of the workplace to identify any hazards, and be aware of any attempts by employees to circumvent safety measures.
Employers who make health and safety a 'front-of-mind' consideration are much less likely to end up on the wrong side of the Ministry of Labour or the courts.  And their directors probably won't end up in jail.

Do you have questions about your responsibilities under the OHSA and Regulations?  Need guidance in responding to a critical incident?  Contact Lance Ceaser for expert advice.

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