Non-worker injuries may result in OHS fines

Employers should ensure protection of any persons on or near work site

Non-worker injuries may result in OHS fines
Cathy Chandler

On Nov. 13, 2018, J.M. Lahman Manufacturing, a company in Linwood, Ont. that manufacturers steel tubing, was fined $150,000 for the death of a child in a factory. The incident occurred when a supervisor for the company was attending at the facility, accompanied by two children. A stack of steel tubing bundles fell onto one child who had been moving about the facility unaccompanied and the child was killed instantly.

A broad interpretation of occupational health and safety statutes supports regulators across Canada in being able to commence enforcement proceedings for workplace incidents involving non-workers.

All jurisdictions in Canada have some version of a general duty clause in their health and safety legislation that requires the employer to take all reasonable precautions for the protection of workers. Several provinces and territories address the protection of non-workers in both general and specific employer duty clauses. Alberta’s general duty clause requires employers to not only ensure the health and safety of workers but also “other persons at or in the vicinity of the work site who may be affected by hazards originating from the work site.” Similarly, in Nova Scotia, employers must “take every precaution that is reasonable in the circumstances to ensure the health and safety of persons at or near the workplace.”

The employer duties in the Safety Act of the Northwest Territories include “(to) maintain his or her establishment in such a manner that the health and safety of persons in the establishment are not likely to be endangered.” In the Yukon, employers have a general duty to ensure “so far as is reasonably practicable, that the workplace, machinery, equipment and processes under the employer’s control are safe and without risks to health.”

There are also distinctions between workers and non-workers when it comes to the legal reporting requirements set out in OHS statutes. In Ontario, employers must notify the ministry by telephone and in writing when any person is critically injured or killed at their workplace from any cause. This includes people who are not workers, such as visitors or customers.

The establishment of these legislative duties and responsibilities exposes employers to legal accountability through various statutory enforcement mechanisms, including prosecution. In other words, if a non-worker is injured or killed at a workplace, the regulator may decide to prosecute the employer based on an alleged contravention of either a specific or general duty in the applicable OHS legislation. The vast majority of enforcement proceedings relate to incidents involving workers. However, the regulator is not limited to laying charges as a result of incidents that only involve workers. 

Ontario (Ministry of Labour) v. Guelph (City) involved charges against the facility owner after an interior wall inside a public washroom building collapsed, fatally injuring a young girl on the premises. Although the wall collapsed almost five years after its construction (and technically the one-year limitation period for laying charges had expired), the court did not dismiss the charges against the owner since the owner’s employees had continued to work in the vicinity of the wall after its construction and were, therefore, continuously exposed to a potential hazard until the collapse.

On July 27, 2018, Toronto’s Dominus Construction was fined $90,000 for an incident where a pedestrian accessed a partially constructed condominium building and fell down an elevator shaft, later succumbing to his injuries.

Yukon (Director of Occupational Health and Safety) v. Yukon involved an appeal by the Government of Yukon, William Cratty and Sidhu Trucking from convictions for offences under the Occupational Health and Safety Act on the basis of alleged errors in fact and law. The convictions related to an explosive charge set off by the blaster for Sidhu Trucking, which resulted in damages from rocks falling on nearby occupied trailer park homes. One of the questions required to be answered by Yukon Supreme Court Justice Ron Veale was: “Did the trial judge err in finding that members of the public are protected by the OHS Act?” In his reasons for judgement, Justice Veale said the following:

“It is quite correct that the primary purpose of the OHS Act is to protect workers and the workplace. Nevertheless, to say that this is all it protects is an unduly narrow interpretation… The duties of a party to a project caught by the OHS Act are not limited to situations where workers are endangered or injured but rather require that work is performed without undue risk to anyone and that the workplace is safe. The whole purpose of the OHS Act is to promote safe practices in the workplace at all times. This includes safety for members of the public that are in proximity to the workplace.”

In my view, the trial judge has interpreted the OHS Act correctly and it would be a perverse interpretation to allow a defence that, in the words of the trial judge, essentially says, “My activities didn’t endanger my workers; they only endangered the general public.”

In keeping with the legislature’s public welfare objectives, employers should keep non-worker safety in mind when taking steps to identify, assess and control their workplace hazards.

This article originally appeared in the April/May 2019 issue of COS.