As stated on the Ministry of Labour’s website, “All workers have the right to return home each day safe and sound.” Unfortunately, that is not always the case.
On January 18, 2013, a warehouse worker of NewMex Canada Inc., a Brampton, Ontario, based company, was moving merchandise using a combination forklift/operator-up platform called an order picker, which had been modified to include an additional platform. This platform did not have a guardrail around it, and the worker using it was not wearing fall protection or safety shoes. That day, the worker was found dead on the floor, having died from blunt-force trauma to the head.
Part III of Ontario’s Occupational Health and Safety Act (the “Act”) sets out the duties of Ontario employers with respect to the health and safety of their workers. Section 66 of the Act sets out the maximum penalties for individuals and corporations who contravene the Act.
The Ministry of Labour, who enforces the Act, conducted an investigation of the accident at NewMex, finding multiple violations of the Act, and of Regulation 851 (which covers industrial workplaces). For example, there had been no health and safety training provided to the workers in the warehouse, and workers indicated that they were not provided with fall protection equipment, as required by paragraph 85(a) of the Regulation.
Two directors of NewMex pleaded guilty to the charge of “failing as directors of New Mex Canada to take reasonable care that the corporation complied with the [Act] and with Regulation 851”. They were ordered to serve 25 days in jail by Justice of the Peace C. Jill Fletcher, to be served on weekends, and also ordered to take a health and safety course within 60 days. In addition, NewMex, as the employer, pleaded guilty to “failing to provide information, instruction, and supervision to a worker regarding fall protection and/or working from a height”, as required by paragraph 25(2)(a) of the Act, and also to “failing as an employer to ensure the safety measures required by law were carried out.” For these violations, NewMex was fined $250,000.00. In addition to the fine, the court imposed a 25-per-cent victim fine surcharge as required by Ontario’s Provincial Offences Act.
This is not the first time directors in Ontario have received jail time for an offence under the Act. Although a workplace fatality will not automatically lead to the imposition of a jail term for directors of an employer company, this seems increasingly more likely given the tougher sentencing of the courts over the last few years for health and safety violations.
Violations of the Act and its Regulations can lead to dire consequences for both workers and employers. Directors of employer companies should ensure their health and safety policies, and the implementation of such policies, are up to date. Furthermore, all workers should be aware of their right to refuse to work where their health or safety is at stake. As established by subsection 43(3) of the Act:
A worker may refuse to work or do particular work where he or she has reason to believe that,
(a) any equipment, machine, device or thing the worker is to use or operate is likely to endanger himself, herself or another worker;
(b) the physical condition of the workplace or the part thereof in which he or she works or is to work is likely to endanger himself or herself;
(b.1) workplace violence is likely to endanger himself or herself; or
(c) any equipment, machine, device or thing he or she is to use or operate or the physical condition of the workplace or the part thereof in which he or she works or is to work is in contravention of this Act or the regulations and such contravention is likely to endanger himself, herself or another worker.
A worker should not be afraid to use subsection 43(3) of the Act, as reprisals by employers are not permitted for those who have acted in compliance with this Act, or have sought the enforcement of this Act, by virtue of subsection 50(1) of the Act.
Whether you are a worker, or an employer, and wish to learn more about your rights and/or obligations under Ontario’s Occupational Health and Safety Act, please contact one of our firm’s employment lawyers. We have the knowledge to help you, and your workers, return home each day safe and sound.
