In Ontario (Ministry of Labour) v Cobra Float Services Inc, 2017 ONCJ 388 (CanLII) (“Cobra”), a decision by the Ontario Superior Court of Justice, an Ontario construction employer faced significant charges after an employee was fatally injured at one of its construction sites. The worker involved was crushed when a “curb machine” flipped over while it was being off-loaded from a trailer. The Ministry of Labour (“MOL”) charged the employer for breaching the OHSA, alleging that the curb machine was “moved at a project in a manner that endangered a worker”.
There were no eyewitnesses and no video footage of the incident. Video footage from elsewhere on the job site appeared to show that the trailer towing the curb machine was at the appropriate height and that the curb machine was securely affixed to the trailer. The defendant employer took the position that there was insufficient evidence to prove the charge against the employer, suggesting that the Crown could not prove that the employer “caused” the accident to occur.
According to the employer, the Court was left in the position of having to “speculate …whether the [accident was] the result of mechanical failure, and/or human error”. Without that causal link, the employer alleged, the Court could not hold the company liable for breaching the OHSA.
The employer filed what is known as a “motion for a directed verdict of acquittal”, also referred to as a “motion for a non-suit”. These motions are quite common in criminal courts, and can significantly benefit a defendant in circumstances where it is clear that the Crown has insufficient evidence to prove the required elements of a criminal offence.
Despite the Crown’s apparent lack of evidence regarding “causality”, the Court dismissed the employer’s motion for a non-suit. The Court reminded the employer that offences under the OHSA continue to be considered “strict liability” offences, as opposed to criminal offences.
By contrast to charges under the OHSA, criminal charges require “proof beyond a reasonable doubt” that the accused/defendant has:
a) engaged in behaviour that contravenes the Criminal Code (also referred to as the actus reus); and
b) that the accused had the intent to engage in criminal behaviour (also referred to as the mens rea).
In the criminal context, if the Crown fails to prove both the actus reus and the mens rea components of an offence, the charge(s) against the defendant will be dismissed.
By contrast to the criminal context, the Crown need only prove that an alleged breach of the OHSA has occurred, beyond a reasonable doubt, in order to justify a finding of guilt against an employer. In other words, strict liability offences under the OHSA only require the Crown to prove that there has been an “act” (or actus reus) which contravenes the statute.
Turning back to Cobra, the simple fact that an employee of the defendant had been fatally injured on the employer’s job site was enough to justify the MOL’s charge against the defendant. As a result, the employer’s motion for a non-suit was dismissed.
An employer’s only defence to a strict liability charge is to prove, on a balance of probabilities (i.e. it is more probable than not), that the employer took every reasonable precaution in the circumstances to prevent the occurrence of the accident.
At a minimum, proving due diligence will require compliance with applicable OHSA regulations which apply to the employer’s workplace operations. Other factors which may assist an employer to prove due diligence include:
- Diligent and proactive management (i.e. the presence of an involved “Directing Mind” of the Organization/Corporation);
- The presence of a comprehensive, OHSA compliant health and safety policies;
- The presence of competent, well trained supervisory staff;
- The use of a certified third-party health and safety specialist/consultant;
- The presence of certified JHSC and/or Health and Safety Representative members, as required by the OHSA;
- Proper, documented site inspections;
- Up to date WHMIS documentation and training;
- Compliance with all OHSA Regulations applicable to the employer’s specific industry sector; and
- Ensuring up to date training on all equipment.
Returning once again to Cobra, it stands to reason that the employer’s strategy going forward will be to claim that it exercised due diligence to ensure that the curb machine was suitably maintained, locked out, that all employees were trained on appropriate procedures, and that all applicable procedures regarding safe transportation and unloading were followed.
Tushar Anandasagar is an associate lawyer at LeClair and Associates P.C. He specializes in Labour and Employment law, with a focus on Workplace Policy Development and Regulatory Compliance. For further information, please contact Tushar by email at firstname.lastname@example.org.
Written by Tushar Anandasagar | Associate Lawyer at LeClair and Associates
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