THE EMPLOYERS' EDGE
Ontario Court of Appeal rules that the OHSA is not intended to “achieve the impossible – entirely risk free work environments”
In the recently decided case of R v. Sheehan’s Truck Centre the Court of Appeal acknowledged that the Occupational Health and Safety Act (“OHSA”) “seeks to achieve a reasonable level of protection for workers in the workplace.” Ontario’s highest court further elaborated; “[f]or obvious reasons neither the Act nor the Regulation mandate or seek to achieve the impossible – entirely risk-free work environments.” This statement alone should be some relief to employers that feel as though they are expected to guard against the unachievable and unforeseeable.
Context
In August of 2006, Sheehan, a company selling tractor trucks out of its parking lot, hired an external contractor to expand their parking lot. To facilitate the contractor’s paving work Sheehan employees were instructed to move multiple trucks to another part of the parking lot. Unfortunately, during the move a Sheehan employee backed over his coworker with a 25-foot truck unit causing him a serious pelvic injury that rendered him unable to work for a few months.
Sheehan was charged under Section 25(1)(c) of the Act which requires that prescribed health and safety measures are carried out in the workplace and that more specifically under Section 56 of the Industrial Establishment Regulation they were faulted for not providing a signaler “[w]here the operator of a vehicle, mobile equipment, crane or similar material handling equipment does not have a full view of the intended path of travel.”
Sheehan was successful at the Trial Court but the Crown appealed and the decision was overturned by a Summary Conviction Appeal Court (“SCAC”) Judge of the Ontario Court of Justice who entered a conviction against the company.
Sheehan appealed the SCAC conviction to the Ontario Court of Appeal. In addition to making the statement that the OHSA does not mandate that employers create an entirely risk-free workplace, the Court of Appeal also engaged in a helpful clarification of Section 56 of the Industrial Establishment Regulation.
The Court of Appeal found that the Regulation’s Section 56 when read as a whole only applied to vehicles in the context of material handling equipment and that to read otherwise would be far more broad than the legislature intended. The Court of Appeal applied logic and common sense rather than accepting the Crown’s interpretation of the Regulation which the Court commented would have gone so far as to make the regulation applicable to passenger cars in shopping centres, plazas and office building parking lots. The court went on to define “material handling” in the context of industrial establishments as usually;
(1) undertaken in an interior or enclosed setting, such as a factory or plant; (2) extends over short distances; and (3) forms part of a broader industrial process involving the movement of materials or products for such purposes as supply, manufacturing, installation, warehousing, shipment and sale.
In applying their definition to the Trial Judge’s findings the Court of Appeal concluded that the “material handling” characteristics did not apply to Sheehan’s truck unit. The Court of Appeal specifically found that the unit did not have the capacity to handle materials, it was an item offered for sale to the public, it would be used to transport goods on public highways over considerable distances when sold and that no evidence was presented to suggest it was used or contemplated to be used for material handling activity by the Company.
Costs of this Appeal were awarded against the Crown in the amount of $18,000.
The CCP team has considerable experience assisting employers with responding to inspector’s orders, dealing with accident investigations, responding to charges under the Occupational Health and Safety Act and ensuring the safety of your workplace. Consider consulting the lawyers at CCP to help alleviate your workplace’s occupational health and safety concerns.
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