Lack of training and competent supervision was at the heart of an Ontario Court of Appeal ruling to increase fine for employer convicted of failing to provide machine guarding.

This failure resulted in a 16-year-old worker suffering a critical spinal injury when her hair became entangled in a rotating spindle of an ice cream blending machine at a fast-food restaurant. The young worker was hospitalized for two weeks, remained on bedrest for “quite a while” and couldn’t attend school for an entire semester.

According to court documents, the machine had a plastic safety guard intended to eliminate exposure but was removed at the time of the incident by the shift leader. Another troubling fact was the injured worker had, on an earlier shift, inquired why some employees used the plastic guard and some did not. She was told by a shift leader she was not required to use the guard.


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Original conviction

The employer was originally convicted in August 2019 for failing to ensure the machine was guarded to prevent access to the exposed spindle, as prescribed by section 24 of the Industrial Establishments Regulation (O. Reg. 851) and contrary to section 25(1)(c) of the Occupational Health and Safety Act (OHSA).
 
The justice of the peace in this case set the fine at $7,500, despite the Crown's request for a $75,000 fine. The Crown's subsequent appeal to the Ontario Court of Justice was dismissed, prompting an appeal to the Court of Appeal for Ontario.

Appeal court findings

The justices hearing this case at the highest level of court in Ontario felt raising the fine to $40,000 was appropriate plus the 25 per cent victim fine surcharge as required by law. 
 
Among the reasons cited in the written findings published on July 8, 2024, was the lower court erred in sentencing by restricting its consideration of the corporation's size to only the local operation at which the worker sustained the injury. This, they explained, “Is contrary to established principles that require considering the corporation as a whole to determine an appropriate fine that ensures specific and general deterrence.” The employer in this case operated seven fast-food restaurants.
 
The justices also cited other facts bearing on their decision to raise the fine including the seriousness of the injury and the fact the worker received no training about machine guarding or occupational health and safety awareness in general. They explained “This was not an unforeseeable accident, but rather was a direct result of the practice at the store of removing the guard to speed up service to customers at the expense of employee safety.” 

Legal obligations to train

Employers should take note of this ruling and revisit their significant legal obligations to protect workers that must include training and competent supervision. In the most general sense, the OHSA requires employers to provide information, instruction and supervision to a worker to protect their health or safety.  

Employers are also specifically required to ensure a worker who performs work for the employer completes 
basic occupational health and safety awareness training. This training must cover a range of topics such as moving parts on machinery and other common hazards, worker rights, along with employer and supervisor obligations to protect workers. 

Supervisors must also complete occupational health and safety awareness training within one week of becoming a supervisor and be competent to carry out their significant obligations. The OHSA defines competency as a person who is:

• qualified because of knowledge, training and experience to organize the work and its performance,
• familiar with the OHSA and Regulations that apply to the work, and
• knowledgeable about any potential or actual danger to health or safety in the workplace.

WHSC can help with training compliance

Workers Health & Safety Centre (WHSC), Ontario’s only government-designated training centre, offers programs designed to meet and exceed the training obligations mentioned above.
 
Need other legally mandated and essential training such as joint health & safety committee Certification, worker health & safety representative-smaller workplaces,  GHS-WHMIS, or workplace violence and harassment? WHSC can help with these too.
 
Check out our complete training catalogue. There you will also find a specific program on Moving Machine Parts which covers related machine guarding provisions under the law.

REGISTER TODAY FOR IN-PERSON OR VIRTUAL WHSC TRAINING.

ASK A WHSC TRAINING SERVICE REP ABOUT IN-HOUSE TRAINING, INCLUDING WORKER AWARENESS TRAINING FOR YOUR WORKPLACE.

Want to read related resources?
Ontario Court of Appeal reasons for decision  
Shortcuts kill worker! Supervisor competency on trial.

Need more information?
Contact a WHSC training services representative in your area.
Email: contactus@whsc.on.ca
Visit: whsc.on.ca
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