Keep Workers Under A Watchful Eye
The Ontario Provincial Court concluded a decision involving a Chelmsford area construction workplace death.
The company was found guilty of failing to use a safe procedure for loading a pole onto a flatbed trailer and failing to ensure that no worker was in an endangered position during the loading of a pole onto a flatbed trailer.
Both offenses can be found in section 25(2)(h) of the Ontario Health and Safety Act.
Following the trial, this company was fined $210,000 at the end of February 2021. The court also imposed a 25-per-cent victim fine as required by the Provincial Offences Act.
Read on to find out more details about this case, and to learn more about how this experience can teach us something about workplace safety.
Who is an Employee?
We’re discussing this because some may say that the people responsible for this death acted in a manner that departed from what they were told to do in the first place. Even when there are definitions given at the top of legislature and Acts, guidelines and in-court common law tests also have to be applied to further determine an employee and employer relationship. The Occupational Health and Safety Act defines an employer as someone who employs one or more workers or contracts for the services of one or more workers. Contractors and subcontractors who perform work or supply services or give an undertaking to an owner, constructor, contractor or subcontractor to perform work or supply services can also be considered employees. So whether or not the life that was lost while at work was acting on their own accord or not, the employer is almost always found to be in a position of authority and owes every life employed by them or contracted by them, a duty of care.
The Employer/Employee Definition Tests
The following are the tests that the agents of the court apply to determine the employer and employee relationship during a workplace incident. These elements are only pieces of evidence that shall be weighed on a case-by-case basis, and do not determine the whole outcome of a case every time. That is always at the court’s discretion and all evidence is weighed.
The Control Test
This was the court’s first recognized attempt to clarify the relationship definition between a worker and employee, set out in Regina v. Walker (1858). The Control Test assesses the presence or absence of control that the manager or supervisor might or might not have over their worker. Within that case, the judge states: “A principal has the right to direct what the agent has to do, but a master has not only that right but also the right to say how it is to be done.” – Regina v. Walker, (1858) 27 L.J.M.C. 207.
The Fourfold Test was developed in 1947 during the Montreal v. Montreal Locomotive Works Ltd. et al case where the court stated that it would now consider employee and employer relations using these factors:
- Ownership of the tools
- Chance of profit
- Risk of loss
Control in itself is not always conclusive, and they knew that the control test on its own was not enough. That’s why in “Montreal v. Montreal Locomotive Works Ltd. et al,  1 D.L.R. 161, Lord Wright went on to indicate the crucial question that needs to be asked, “whose business is it?”.
This question is from the worker’s perspective and not the employers.
The Integration Test
The Integration Test was first developed in Stevenson Jordon and Harrison, Ltd. v. MacDonald and Evans, (1952). This approach attempts to find if the service being provided by the worker is performed as an integral part of the business, or done on behalf of the business but not integrated into that business. This “test” is best explained by an excerpt from the decision:”… One feature which seems to run through the instances is that, under a contract of service, a man is employed as part of the business, and his work is done as an integral part of the business; whereas, under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it.” Stevenson Jordan and Harrison, Ltd. v. MacDonald and Evans,  1 T.L.R. 101. In the case we mentioned above though, that person who died on the job site was by all definitions an employee.
Employer Safety Obligations
Depending on whether or not your workplace has 5 or more employees, an employer has to at all times ensure the equipment, materials, and protective devices as prescribed are provided. Those things provided by the employer must be maintained in a good condition and be given instruction on how to use. The measures and procedures of the workplace have to be taught also, as well as communicated and made available at all times. This ensures that these workplace safety procedures are carried out correctly within the workplace. The tools and materials provided by the employer have to be used as prescribed, and there should be supervisors or those in charge of ensuring that is so.
Employers’ responsibilities include:
- instructing, informing and supervising workers to protect their health and safety [OHSA Section 25(2)(a)]
- appointing competent persons as supervisors [OHSA Section 25(2)(c)]
- taking every precaution reasonable in the circumstances for a worker’s protection [OHSA Section 25(2)(h)]
- preparing and reviewing, at least annually, a written occupational health and safety policy, and developing and maintaining a program to implement that policy if the workplace has six or more regularly employed workers [OHSA Section 25(2)(j)]
- posting a copy of the occupational health and safety policy in the workplace in a spot where workers will most likely see it [OHSA Section 25(2)(k)]
- taking every precaution reasonable in the circumstances for a worker’s protection [OHSA Section 25(2)(h)]
- appointing a supervisor if the employer has five or more workers on a project [Construction Reg. Section 15(1)].
Supervisors’ responsibilities include:
- Ensuring workers work in compliance with required protective devices, measures and procedures [OHSA Section 27(1)(a)]
- Checking that workers use or wear any equipment, protective device or clothing required by the employer [OHSA Section 27(1)(b)]
- Advising workers of any potential or actual health or safety danger known by the supervisor [OHSA Section 27(2)(a)]
- Providing workers, when required, with written instructions on any measures and procedures to be taken for the workers’ protection [OHSA Section 27(2)(b)]
- Taking every precaution reasonable in the circumstances for a worker’s protection [OHSA Section (2)(c)]
- Supervising the work on the project at all times, either personally or by having an assistant who is a competent person do so when the supervisor is unavailable [Construction Reg. Sections 14(2) and 15(2)]
- Inspecting or having the supervisor’s assistant inspect, at least once a week, all machinery and equipment, including fire extinguishing equipment, magazines (storage for flammables and explosives), electrical installations, communications systems, sanitation and medical facilities, buildings and other structures, temporary supports and means of access and egress at the project to ensure worker safety.
When a building is being built or repaired or worked on at any capacity, whether permanent or temporary, has to be capable of supporting any loads that may be applied to it. Of course, the building code has to be honored at all times based on your geographical area and corresponding local legislation at the time of construction. And of course, the building has to be in accordance with good engineering practice if applicable.
The employer has to provide their workers with instruction and supervision to protect their health and safety. In medical emergencies, for the purpose of medical treatment, diagnosis, they have to upon request, hand over information that the employer has such as confidential business information to a legally qualified medical practitioner (ie. COVID-19 WSIB Claims).
When making someone supervisor, they have to appoint a competent person, like someone who has taken a Supervisors course. The employer themselves can even be a supervisor if they are competent, they do not have to pass the obligation to someone else.
Employees should feel acquainted with hazards in the workplace environment, and they should know all about the handling, storage, use, disposal, and transportation of any article, device, equipment, or biological/chemical/physical agent. In regards to this blog post’s example. the employee should have been given instruction on how to safely maneuver that pole onto the flatbed truck, and should have had supervision or someone to consult before doing so.
A safe and compliant workplace has the assistance and co-operation of a committee that is involved with health and safety. There should be a health and safety representative on duty at all times during all functions.
Of course, a safe workplace only employs those who are employable and who are of legal age to be employed. They cannot knowingly employ or permit a person who isn’t of legal age to do any work for them. Every precaution must be taken to protect everyone, especially their workers, and the integrity of the workplace.
How should a workplace inform its workers of these expectations and duties?
Posters and information! Employers need to post the Health and Safety Act, any other materials that can be found on this page here, as prepared by The Ministry. It also has to be in both English and French, and the majority language of the workplace. Things that are posted in regards to health and safety must outline the rights, responsibilities, duties, and workers. A written report also should be made at least annually stating the health and safety policy (ask us if you need help making one). The health and safety policy has to be placed somewhere that it can be seen and read. Results of any occupational health and safety incidences have to be given to the committee or health and safety representatives. Health violations or near misses should be communicated with all workers visually or verbally.
Workers’ duties include:
- Wearing appropriate personal protective equipment [OHSA Section 28(1)(b)]
- Using/operating equipment in a safe manner [OHSA Section 28(2)(b)]
- Reporting any defects in equipment to his/her supervisor or employer [OHSA Section 28(1)(c)]
- Working in compliance with OHSA and its regulations [OHSA Section 28(1)(a)]
- Reporting any known workplace hazards or OHSA violations to his/her supervisor or employer [OHSA Section 28(1)d)]
- Knowing his/her OHSA rights, including the right to refuse unsafe work [OHSA Section 43(3)(a) to (c)].
Encouragement of Employees to Say Something!
There should be an open communication policy between everyone you work with, especially those in management positions, supervisors, and health and safety representatives. If something happened or almost happened at work, something needs to be said about it to prevent it from happening in the future, and to deal with it as quickly and safely as possible. Ie. Something almost fell on your head, or you almost cut your finger on something…
If there are structural defects somewhere within a building, please say something. If something is out of date or appears worn, say something! If anything within your workplace seems unsafe, temporary or permanent, if it’s a source of danger or hazard to workers – safety is everyone’s responsibility and workers need to speak up and be encouraged to do so.
It is the responsibility of employers, owners, constructors and supervisors to ensure all workplace parties comply with the OHSA and its regulations.
The employer is required to ensure basic mandatory health and safety awareness training is completed by all supervisors and workers.
For more information on legal responsibilities please see the Occupational Health and Safety Act.
Disclaimer: This article is not meant to be legal advice and does not substitute legal advice. We have given references for our information, and hope that you take this info and bring it forward to your employer or legal professional as a foundation of knowledge to build upon and spark up important safety conversations.
More About The Construction Death Story
On September 17, 2018, a worker died when a pole he was directing onto a flatbed crushed him. This is an accident that should not have happened. According to sudbury.com, six orders were issued afterwords by the ministry of labor that were related to:
- Operating manuals for equipment
- Inspection of equipment by a competent worker
- Providing information, instruction, and supervision to a worker
A worker was dispatched with a truck and flatbed trailer to pick up a pole from the parking lot to use on a construction site. The supervisor at the time offered to load the pole for the driver onto the flatbed using a forklift. The Supervisor picked up the pole with the forklift and maneuvered towards the flatbed trailer. Because the forks were not positioned correctly there was an instability and the pole wasn’t secured as it should have been.
The truck driver was on the flatbed as the forklift was coming towards him. He was there because he was helping to guide the pole. and he placed a long piece of lumber to act as a stopper for it. As he stood on the other side of this stopper, the Supervisor tilted the forks forward and the pole rolled out towards the other worker on the flatbed. The pole had a warp in it, and because of that it rolled over the log they placed to stop it and it knocked the other worker right over, crushing him and killing him.
The company was found guilty of two offenses: Failing to use a safe procedure for loading a pole onto a flatbed trailer and failing to ensure that no worker was in an endangered position during the loading of a pole onto a flatbed trailer. Both of these offences can be found within section 25 subsection 2 clause h of the Ontario Health and Safety Act.
How can Construction injury and fatalities be avoided?
Start with the right training, and continue to be safety conscious. Regardless of whether or not your training expired this year, three years from now, or never, it’s always a good idea to keep checking in with Construction Workplace Safety Training, The Ministry of Labour, OHSA, or any official safety voice that you trust. The supervisor is this tragedy we explored above should have used the forklift correctly, and the worker should have known that he was in the direct line of danger, but beyond that, the person in charge wasn’t safety conscious that day, they were trying to get the job done quickly. Quick jobs take lives.
Would you like to explore our Supervisors course outline or our forklift training? We have courses operating weekly/monthly and would love to have you in for them – even if it’s just for a refresher. Please take safety to heart, and let’s have no more lives lost for the cost of quicker deadlines.