CSR | February 2018 | News
Worker didn't follow accepted procedure before accident
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Cobra Float also had a safety
policy that drivers were "sup-
posed to read" and was discussed
in the safety meetings.
Based on the results of the
investigation, Cobra Float was
charged under the Occupational
Health and Safety Act with fail-
ing as an employer to ensure
that proper measures and proce-
dures prescribed by the act and
its regulations were followed in
the unloading of the curb ma-
chine — including proper train-
ing, using a wooden block, and
using the correct height and set-
tings on the machine — resulting
in the death of an employee.
Cobra Float argued that it had
exercised due diligence and had
done all it could do to ensure the
safe unloading of the curb ma-
chine and it couldn't anticipate
Pinto's decision not to use all the
tools and procedure needed for
the process. It also pointed to
a conversation Pinto had with
another Cobra Float employee
a few days before the accident
where Pinto said he was buying a
new house and had to meet with
a mortgage broker the following
week. This may have distracted
him and caused him to make fa-
tal errors in unloading the curb
machine, said the company.
The court noted that even
though no one witnessed the ac-
cident, there was little doubt that
the curb machine fell on Pinto
while he was unloading it from
the trailer — the evidence at the
scene was conclusive. As a result,
the actus reus — or fact that the
accident happened – was easily
proven for the purposes of press-
ing charges. The main issue to be
determined was whether Cobra
Float exercised due diligence
that eliminated any connection
between its safety efforts and the
cause of the fatal accident.
The court found that Pinto's
experience and the availability
of pieces of wood to help stabi-
lize the curb machine — as part
of the normal practice for driv-
ers — made it reasonable to ex-
pect Pinto would have followed
procedure and used a piece of
wood as a ramp. Since there
was no widely accepted or avail-
able ramp system available, the
wood block should have been
used. However, Pinto appeared
to deviate from the standard of
practice on the day of the acci-
dent since no wood was found in
position, said the court.
The court also found that
while Pinto wasn't provided with
specific training for unloading
curb machines, he had demon-
strated his experience and abil-
ity and there was no reason for
Cobra Float to think he wouldn't
follow proper procedure. This
made the accident less foresee-
able for the company.
"The controls being set to
automatic and the non-use of
the wood to establish a ramp to
unload this machine would have
made Mr. Pinto's handling of the
machine dangerous," the court
said. "It is inexplicable why Mr.
Pinto deviated from the accept-
ed practice, and from his own
practice on so many previous
occasions."
Since there were no accepted
practices or standard training for
the curb machine unloading, the
court found Cobra Float's prac-
tice of regular safety meetings
and informal discussions rea-
sonable measures to ensure the
safety of Pinto and other driv-
ers, along with providing wood
blocks and other safety equip-
ment to drivers. These measures
and relying on Pinto's experience
and skills to perform the task
safely satisfied the standard of
due diligence for the company
and Pinto's actions causing the
accident were unforeseeable.
The court dismissed the charges
against Cobra Float.
For more information see:
• Ontario (Ministry of Labour)
v. Cobra Float Services, 2017
CarswellOnt 17986 (Ont. C.J.).
Ontario < pg. 5
