The duty to take every reasonable precaution

For employers, the Occupational Health and Safety Act (OHSA) may conjure up thoughts of endless and detailed regulations regulating the minutiae of everything an employer does. Indeed, detailed regulations under the Act are extensive and often very precise. Perhaps overlooked, however, are the broader duties imposed by the OHSA. One in particular may surprise an employer, even if that employer believes they are in full compliance with the Act and its Regulations. This broad duty is imposed by section 25(2) (h) which is as follows:

25(2) Without limiting the strict duty imposed by subsection (1), an employer shall, (h) take every precaution reasonable in the circumstances for the protection of a worker;

A failure to take every reasonable precaution is an offence under the OHSA for which an employer can be charged. Unfortunately, there is very little guidance in the Act as to what will be considered by a court to be every reasonable precaution as, according to the Act, it depends on the circumstances. It would appear from the case law, however, that charges based on this section are tacked on to almost any situation where a worker has been injured and an employer is charged. One can see how this is possible given the extremely broad requirement to take every reasonable precaution. The thinking is this: if a worker suffered an injury then the employer must have missed a chance to take every reasonable precaution.

The case law indicates that section 25(2) (h) will be interpreted broadly and that the threshold of reasonableness is very high. This makes it difficult for employers to defend against charges brought against them under this section. Take the following cases for example:

• Ministry of Labour v. Modern Niagara Toronto Inc., 2006 ONCJ 336 - that the employer is an insurer of the worker’s safety is undeniably strict and non-delegable.
• Ministry of Labour v. Modern Niagara Toronto Inc. - the employer must ensure that a safety procedure or policy is as fool proof as possible.
• R v. Gonder, (1981) 62 C.C.C. (2d) 326 - the accused must show that there were no feasible alternatives that might have avoided or minimized injury to others.
• R v. Lee Valley Tools, 2006 ONCJ 563 - evidence of general good behaviour, or general safety awareness is not enough, instead you must assume that a worker will, if possible, proceed in ways that are unsafe.
• Ministry of Labour v. Modern Niagara Inc. - the employer must ensure that the safety system or policy in place is actually being followed by monitoring it.

So, what is required in order to successfully defend a charge under section 25(2) (h)? R v. Inco, 2006 CarswellOnt 1586 is a good example. In R v. Inco, a worker was killed due to exposure to nickel carbonyl. This exposure may have been caused by the worker having to continually lift his mask in order to wipe his nose. The employer was able to establish a defense to charges under s.25 (2) (h) in part because it had implemented a medical program described as an industry leader in dealing with risk of exposure to nickel carbonyl. The judge took this as evidence of a culture of caution as opposed to a culture of discretion. In short, the court was impressed by the medical program implemented by the employer.

In this case, it was clear that the employer had taken the reasonable precaution of having workers wear masks. No doubt, a policy was in place which required the masks be worn. Furthermore, supervisors certainly would have noticed if an employee was not wearing a mask and corrected the problem. Would anyone notice that an employee was occasionally lifting his mask? Obviously not.

Turning a blind eye to potential health and safety risks is not a defense to criminal or quasi-criminal charges. That is, simply saying: “but we didn’t know!” will not establish a viable defense. As mentioned above, it is the employer’s responsibility to ensure that safety procedures and policies are functioning. Furthermore, some knowledge of a safety problem is enough to indicate a lack of “taking every precaution reasonable in the circumstances” (R v. Gonder). In short, if an employer doesn’t know about a health and safety issue, it may have a duty to find out about it. In many instances, the only way to insure that the safety procedure and policy is working properly and being adhered to, may be to implement industry leading programs like medical screening. Taking the example of R v. Inco, medically screening employees in that instance may have detected that a worker was being exposed to nickel carbonyl leading to proper correction of the problem without incident. It may have revealed that masks were not properly fitted or that supervisors were not enforcing safety procedures.

While there is no specific requirement in the OHSA that an employer implement a program like medical screening, if the trend in the case law continues, it may very well become part of the broad duty to take every precaution reasonable in the circumstances.

– This legal opinion was provided by the law firm of Smith Valeriote LLP. Focus Workplace encourages you to seek your own legal advice.