Canadian Occupational Safety

10 Canadian Occupational Safety www.cos-mag.com Reining in general duty clauses While regulators often rely on this legislative catch-all, there are limits E very health and safety statute in Canada contains a "general duty" or "basket" provision. These provisions do not set out a specifi c health and safety standard but, generally speaking, require that reasonable steps be taken to ensure health and safety in the workplace. Such provisions are frequently used by regulators to address circumstances to which no specifi c legislated standard applies. Regulators may use the "general duty" provision to require compliance with professional or industry standards, or to require a workplace party to take steps that the regulator views as benefi cial. General duty provisions are fl ex- ible and have been applied to address a very broad range of circumstances, such as workplace violence, removing ice from a wall on a tunnelling proj- ect, safety in farming operations, the provision of anti-fatigue mats as well as heat stress and cold weather man- agement plans. Yet, what are the limits on the appli- cation of these general duty clauses? Are they so malleable that they can be applied in any circumstance? A recent decision by the Ontario Court of Jus- tice in Ontario (Ministry of Labour) v. Quinton Steel (Wellington) Limited pro- vides some assistance in defi ning the scope of these provisions. Quinton Steel operated a custom steel fabrication business. As part of its operations, workers would work at heights and would often use a tem- porary platform constructed from two metal A-frame stands spanned by wooden planks. Tragically, in June 2012, a welder employed by Quinton Steel died after falling from one of these temporary platforms while welding a large fab- rication. The worker was working at a height of six feet six inches above the ground. The reason the worker fell from the platform was never deter- mined but, during its investigation, the Ontario Ministry of Labour issued an order to Quinton Steel requiring it to comply with a guardrail provision set out in the provincial regulation. The guardrail provision was part of a series of requirements in the regu- lation that were listed under the heading "premises" and required a guardrail around a raised fl oor, bal- cony, landing, platform or walkway. Months later, charges were laid against Quinton Steel over the inci- dent. However, Quinton Steel was not charged with failing to comply with the guardrail provision. Rather, it was charged under the general duty provision with failing to take the rea- sonable precaution of ensuring that guardrails were erected around the open sides of a raised wood platform. Quinton Steel defended against the charge at trial. It did not assert a due diligence defence and took the posi- tion that the Crown could not prove that a guardrail was a reasonable precaution in the circumstances. The evidence at trial included: • Workers knew they had to tie-off when working at nine feet or more above the ground. • The temporary platforms were used on virtually a daily basis and were a vibrant yellow, meaning they were easy to see in the plant. • The temporary platforms had been used for years without an accident or near miss. • The Ontario Ministry of Labour had visited the plant on numerous occa- sions over the years without issuing an order regarding the temporary platforms — though there was no evidence that an inspector had ever specifi cally approved their use with- out guardrails. In argument, Quinton Steel refer- enced the fall protection requirements contained in the Construction Proj- ects Regulation and the Industrial Establishments Regulation. Those regulations require guardrails and fall protection at eight feet and 10 feet, respectively. Quinton Steel also argued that applying the general duty provision to the circumstances would reduce the certainty for employers because if the general duty provision could modify existing legislated stan- dards, employers would not know the standard to be met. This would mean that the reasonableness of the employer's actions would be deter- mined through hindsight. Finally, Quinton Steel argued that it would not have been reasonable to be guided by the guardrail provision referenced in the order because that provision addressed workplace fi xtures rather than temporary or mobile equipment. The Crown raised a number of arguments to assert that guardrails were a reasonable precaution, such as that guardrails should have been erected because the vision of work- ers was restricted by their welding masks, making them vulnerable when moving along the temporary platform. Quinton Steel was acquitted after the trial court found the Crown had failed to prove a contravention of the general duty clause. It accepted that working at a height of six feet six inches was below the height-based thresh- olds prescribed in the regulations and that convicting Quinton Steel would impose a more stringent standard than provided for in the regulations. Additionally, the court held that the guardrail provision applied only to fi x- tures at the premises of a workplace and not to temporary equipment. Finally, in evaluating the reasonable- ness of the use of guardrails, the trial court considered there had never been an accident or near miss involving the temporary platforms and the Minis- try of Labour had never expressed any concern about their use. The Crown appealed the acquittal but it was dismissed. The trial and appeal decisions con- fi rm that general duty clauses are not limitless in their application. They indicate that a general duty cannot be used to modify existing regulatory pro- visions that apply to the circumstances. Further, these decisions clarify that the absence of accidents, near misses or any prior concern by the health and safety regulator are relevant considerations in determining the reasonableness of an employer's actions. This is particularly noteworthy because these factors are usually irrelevant in defending a health and safety charge. Jeremy Warning is a former OHS prosecutor who is now a partner at Mathews Dinsdale & Clark in Toronto. He can be reached at (416) 777-8284 or jwarning@mathewsdinsdale.com. PEOPLE&PLACES JEREMY WARNING LEGAL LANDSCAPE PEOPLE&PLACES JEREMY WARNING LEGAL PEOPLE&PLACES LEGAL PEOPLE&PLACES Congratulations to the following OHS professionals who have recently been granted the Canadian Registered Safety Professional (CRSP) ® Professionnel en sécurité agréé du Canada (PSAC) ® designation. The BCRSP is a self-regulating, self-governing organization accredited by the Standards Council of Canada to ISO 17024 (Personnel Certification Body) and by BSI Management Systems to ISO 9001(Quality Management System). Board of Canadian Registered Safety Professionals/Conseil canadien des professionnels en sécurité agréés 6700 Century Avenue, Suite 100, Mississauga, ON L5N 6A4 905-567-7198, 1-888-279-2777, www.bcrsp.ca Sarah Adams CRSP Christl Aggus CRSP Ehikilen Aikhomu CRSP Amber Almon CRSP Matthew Antongiovanni CRSP Joseph Ayeni CRSP Warren Babiak CRSP Tracy Bader CRSP Chase Bennett CRSP Christopher Benotto CRSP Brian Binning CRSP Lynnette Bosch CRSP Lonnie Brown CRSP Corey Canham CRSP Chad Carlson CRSP Darcy Carriveau CRSP Joseph Cartwright CRSP Lik Heng Duncan Chan CRSP Cory Chubbs CRSP Wendy Clausen CRSP Deron Colegrave CRSP Jody Coleman CRSP Peter Collins CRSP Robyn Coquelle CRSP Timothy Cosh CRSP Todd Cyre CRSP Michael Daley CRSP Kwame Abiam Danso CRSP Brian Delaney CRSP Stefan Dobrostanski CRSP Dwight Doell CRSP Brad Elder CRSP Karl Fandrich CRSP Linda Farmer CRSP Scott Freeman CRSP Andrew Fundytus CRSP Earl Galavan CRSP Sandra Galeteanu CRSP Lynda Graham CRSP Karen Gregory-Gillett CRSP Marcus Gwozdz CRSP Amanda Hagan CRSP Jamie Hall CRSP Nicholas Hammond CRSP Steven Henry CRSP Katrina Hickey CRSP Dana Johnson CRSP Troy Jones CRSP Dwayne Keichinger CRSP Angie Keresturi CRSP Mark Klein-Geltink CRSP Randi Kozak CRSP Samantha Kruse CRSP Stephanie Lehr CRSP Penny Loyer CRSP Michael MacKenzie CRSP Craig Macklem CRSP Enrico Madrid CRSP Narmana Majumder CRSP Elaine Marshall CRSP Francis Mathieu-Paradis CRSP Jeremy Matthews CRSP Kelly McEwen CRSP Douglas McNeil CRSP Ewa McNulty CRSP Maryse Mercier CRSP Breen Merriam CRSP Gerard Messier CRSP Cam Mitchell CRSP Bhaveshkumar Mody CRSP Ali Mohsin CRSP Nathan Muhly CRSP Laura Murphy CRSP David Murray CRSP Brad Nelson CRSP Michael Ngedi CRSP Colin Noble CRSP Trula Normandeau CRSP Reza Nour CRSP Celestine Chidi Ogbonna CRSP Babajide Ogunjimi CRSP Emmanuel Omeike CRSP Brent Pahl CRSP Dana Pallesen CRSP Jessica Pane CRSP Matthew Parsons CRSP Trina Pharand CRSP Tirumala Srinivas Prativadi Bhayankara CRSP John Price CRSP Sheldon Price CRSP Steven Primeau CRSP Derek Razzell CRSP Dennis Ricard CRSP Sara Robinson CRSP Jagdeep Sarao CRSP Michael Schaap CRSP Lorne Schatz CRSP Dailaan Shaffer CRSP Varun Sharma CRSP Jonathan Sherman CRSP Marc Smith CRSP L.Shaun Snell CRSP Anthony Sorensen CRSP Oscar Spencer CRSP Michael Taniguchi CRSP Corinne Thiessen CRSP Terry Thomas CRSP Melissa Thompson CRSP Gary Thomson CRSP Christopher Topolniski CRSP Jason Trabucco CRSP Virginie Tremblay CRSP Brian Umali CRSP Riaz Usman CRSP Pieter Van Wouw CRSP Tyler Vollman CRSP Jeremy Waddell CRSP Kimberley Waring CRSP Christa Warren CRSP Daniel Westerby CRSP Brent Whiteway CRSP Kory Wilk CRSP Frederick Winson CRSP Randi Zurowski CRSP Board of Canadian Registered Safety Professionals BCRSP_NewCRSPAnnouncment_October2015Examination_COS Magazine.indd 1 1/18/2016 9:03:11 AM

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