An Ontario Superior Court Justice has dismissed an appeal by Tembec Inc. in which the company argued the trial judge had wrongly believed a dangerous situation was foreseeable. The decision was released June 24, 2013.
Note: As strict liability offenses, breaches of the Occupational Health and Safety Act
can be defended by proving all due diligence was taken in attempting to avoid breach of the law. A branch of the “due diligence defence” is that diligence is not due against hazards that are not reasonably foreseeable.
In the case brought to trial, Terry Nelson without the aid of fall arrest equipment, climbed over the rail of a catwalk to a location elevated more than three metres above the floor. This location was unguarded and Nelson slipped and fell to the sawmill floor.
At trial, the employer was convicted under OHSA
section 25(1)(c) and section 85 of the Industrial Establishments Regulation
for failing to ensure the use of fall arrest equipment (fall arrest charge). The employer was also acquitted of a charge under section 13(1)(b)(i) of the Industrial Establishments Regulation
for failing to have a guardrail at the open side of a platform (rail charge). This second charge relates to a section of grating that extended out beyond the catwalk’s rails.
Tembec Inc. appealed its conviction on the fall arrest charge.
In order to win the appeal, Tembec was required to prove the trial judge committed a “palpable and overriding” error. Tembec argued the trial judge made two errors.
In the first instance, Tembec argued the trial judge erred by making inconsistent findings about the foreseeability of a worker climbing over the rail. Tembec suggested that to be consistent in finding that climbing the rail was foreseeable (as accepted with respect to the fall arrest charge) the trial judge should have convicted the company on the rail charge.
Tembec further argued that if climbing over the rail was foreseeable then the outer grating should have been treated as a platform with an open side – which requires rails — the very charge on which the company was acquitted.
However the appeal judge found that the trial judge acquitted on the rail charge because the grating was not a “platform” and did not have an “open side,” not because climbing the rail was unforeseeable.
The trial judge found that a platform is a location “to be used as a base from which to work” and an open side would be “without any obstruction” and “readily accessible.” Because the grating was not a base for work, it was not a platform. And since there were obstructions blocking ready access to the outer edge, it could not be considered as having an open side.
Because the appeal judge found that the acquittal was not based on foreseeability, he rejected Tembec’s argument that there was inconsistency on the matter of foreseeability.
The second error, according to Tembec, was made when the trial judge concluded that climbing over the rail was foreseeable.
However the appeal judge rejected Tembec’s argument, saying testimony from Tembec employees at trial proved that going over the rails was not an isolated or rare occurrence. The appeal judge also pointed to the fact Tembec had written a procedure for clearing jams at the location from which Nelson fell. Therefore, since workers would need to access the location to clear it, and since Tembec provided no guarded means (such as rolling staircases) to access the location, the appeal judge upheld the trial judge’s finding that it was foreseeable that workers would require fall arrest equipment to access the location, and no such equipment was provided.
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