An Ontario court has given a boost to behavioral-based advocates in a recent decision setting aside a conviction for failing to provide adequate instruction, information and supervision resulting in a worker’s injuries. The injuries occurred when a new employee of Auction Reconditioning Centre drove a car into another vehicle which then hit and injured a co-worker. The incident occurred on the worker’s second day of work.
Behaviour-based advocates contend that once workers are informed of and instructed about a safe work procedure employers are not responsible if the procedure is not followed and an injury results. Hazard-based approaches emphasize that, if hazard control is not possible, workers must be adequately supervised to ensure safe work procedures are followed.
Auction Reconditioning Centre had been convicted under section 25(2)(a) of the Occupational Health and Safety Act
by a lower court, which found the employer had not given the new worker adequate information, instruction or supervision to prevent him from driving the car.
At trial, the employer and the new worker agreed he had been hired as a car cleaner – not a car driver – and had been told not to drive any vehicles. However, the new worker testified that other car washers also drove cars on occasion. The trial judge also suggested some earlier actions of the new worker should have “set off some alarm bells” about the need to provide close supervision. The trial judge determined the new worker had been left “completely unsupervised for some period of time” allowing him to “circumvent this observation and supervision and drive the motor vehicle.”
Justice Zisman, in setting aside the lower court’s verdict, held that since the employer had instructed the new worker to not drive vehicles there was no obligation upon the employer to provide any further information, instruction or supervision. The Justice further held that the trial judge had failed “to explain how she could find that it was completely foreseeable” that the new worker would drive the vehicle.
“Foreseeability” is a major issue in an employer’s due diligence defence. If an event is not reasonably foreseeable an employer cannot be responsible for failing to take diligent action to prevent it. As due diligence is a defence, most courts have placed the onus on the employer to prove an event was unforeseeable rather than placing the burden on the Crown to show it was “completely foreseeable.”
In a leading decision on foreseeability and worker behaviour, Stelco was convicted in the death of a worker who had entered a dangerous area of the workplace despite repeated instructions from the employer. In the Stelco case the Justice held that “while an employer does not have to foresee every possible foolish, foolhardy or reckless act” of an employee, “it is not sufficient simply to train an employee what he or she must or must not do. Human nature being what it is, wherever guards need to be put in place, the Act
specifies that they will be put in place. We cannot always be expected to do what is sensible and safe in our everyday world. The purpose of the Act
is, as often as not, to protect us from our own shortcomings.” The court decision was confirmed by the Ontario Supreme Court in 2006.
It is unclear whether the Ministry will pursue the appeal in the Auction Reconditioning Centre case.
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