On September 28, 2018, Justice Solomon convicted Coco Paving Inc. of two counts of contravening the Occupational Health and Safety Act (OHSA) and the Regulations for Construction Projects, O. Reg. 213/91 (the Regulations) arising from a workplace fatality. The case is a reminder of the serious nature of the construction industry when it comes to occupational health and safety and the risk that both workers and their employers face. A worker had been on the job only several hours, when he was involved in an incident of a steel casting pipe rolling uncontrollably in his direction. The worker had been told by at least one person on site to not be on the "ditch side" of the pipe, when it was being moved by a forklift. This apparent failure of the worker to follow instructions not only resulted in his tragic death, but also in the conviction of his employer.
The employer was charged with two counts of contravening the OHSA, one with respect to an alleged violation of the Regulations, and one with respect to the general duty clause, section 25(2)(h) of the OHSA. The particulars filed in support of the general duty clause charge were strikingly similar to the allegations of contravening section 37(1) of the Regulation, which was the charge under the Regulations.
In his reasons for judgment, Justice Solomon made the following findings of fact:
- "[the site superintendent]…did not know who directed the deceased to attend the worksite";
- "[deceased worker]…never checked in with [the project superintendent] at the construction trailer nor did he attend the daily huddle";
- "[the deceased worker]…was never shown or have demonstrated to him the process for rotating pipes by any employee of Coco Paving";
- "the Court finds [the employer] failed to discharge its duty as an employer due to insufficient training of its employees";
- "[the forklift operator] failed to follow procedures when he prevented the operator of the loader to move his machine towards the pipe without first communicating with the welder…on the roadside of the pipe";
- "[the employer]…failed in their duty as an employer to properly and adequately train [fatally injured worker] and [fork lift operator] for the work they were tasked to do at this project";
- Finally, the trial Justice said in his reasons for Judgement, that the Ministry of Labour Inspector testified at the trial that "… he believed there was a communication gap, thereby resulting in the accident".
Construction is full of hazards and potential risks for workers. Although workers have duties under section 28 of the OHSA, and share responsibility for safety under the Internal Responsibility System, employers and contractors are often the primary target of Ministry of Labour Enforcement actions. Prosecution and conviction of this paving company may have been "result-oriented," as a result of the workplace fatality.
However, the trial justice found sufficient gaps in the training, documentation, and execution of an effective health and safety management system on the project, that he rejected the employer's due diligence defence.
In the end result, the employer had one of its counts stayed on the principle that the court should not convict an accused of more than one offence when the essential elements of the offence are substantially the same. However, the Court did go on to impose an onerous fine of $325,000, on October 15, 2018.
The lessons to be learned from this incident and legal enforcement action of the Ministry of Labour, is that workplace safety continues to be a priority of the Ministry of Labour in the new provincial government. Further, employers will be held to a high standard of proof of its health and safety management system, including a rigorous review by the Ministry of Labour and the Courts of written project-specific safety procedures, proof of safety orientation and training, adequate and ongoing supervision, and step by step hazard assessments, particularly when high-risk work is being performed.
The author recommends that employers and contractors consider an audit of their occupational health and safety management system or Gap Analysis and also a detailed review of hazards through a formal hazard assessment program, on all site specific projects. The variability, field challenges, and change in personnel common to all construction projects, pose serious risks for the industry. With greater attention to these issues proactively, and legal guidance on how to achieve due diligence, contractors can not only keep their workers safe, but also avoid serious legal risk and liability.