Canadian Employment Law Today

2 | March 14, 2018 Canadian HR Reporter, a Thomson Reuters business 2018 Cases and Trends Ontario company cleared of charges following fatal accident Process leading to accident had no accepted standard but company exercised due diligence with regular safety meetings and equipment BY JEFFREY R. SMITH AN Ontario worker's fatal accident was caused by the worker's unforeseeable failure to follow established procedure that he had followed in the past, not his employer's fail- ure to ensure he was knowledgable and had the proper equipment, the Ontario Court of Justice has ruled. Cobra Float Services is a transporter of heavy construction equipment based in Concord, Ont., having been in business for 30 years. In May 2013, Cobra Float was under contract to deliver a curb making machine to a subdivision being built in Brampton, Ont. e curb machine was loaded onto a flatbed truck and float trailer and transported to the construction site by Cobra Float employee Luis Pinto on his own. However, while Pinto was unloading the machine, it tipped over onto Pinto, pinning him under it. He later died of his injuries. e Ontario Ministry of Labour launched an investigation into the accident. ere were no witnesses, so investigators had to piece together what happened based on the evidence at the site. e curb machine had an offset wheel that sat between two regularly placed wheels and the trailer used to transport it at a space between the two regular wheels that al- lowed the trailer to be raised and attached to a truck. However, the trailer didn't have a ramp across the width of the trailer that could accommodate the offset wheel, just two separate ramps about 30 inches apart to drive the machine off the trailer. e investigation revealed that curb ma- chines are tricky to offload from a trailer be- cause of the offset wheel in the middle of the machine. Since this wheel can't travel on one of the trailer's ramps, it was common prac- tice to lower the machine to its lowest posi- tion. However, the curb machine in question had a wood form attached to its body that required it to be elevated higher to clear the ramp. It was also common practice to use a large piece of wood about the size of a rail- way tie in the gap between the wheels to support the offset wheel during loading and unloading. Cobra Float didn't provide work- ers with such a piece of wood but all of them had some. ere were pieces of wood on the trailer, but no evidence Pinto had placed on into the gap before the accident -- none were seen between or near the ramps. Cobra Float indicated that it provided equipment such as chains and binders to se- cure machinery safely to trailers and pieces of wood to use as ramps in loading and unloading equipment, and drivers were re- sponsible for maintaining the safety equip- ment and ensuring it was available when they needed it. e curb machine's owner's manual stat- ed that the machine should not be moved when elevated more than 12 inches, but it would have had to have been raised at least 13 inches because of the wood form. e investigators discovered Pinto and other Cobra Float workers had not seen the man- ual, but the company stated that Pinto was experienced and knew what to do –- he had previously worked for two other float com- panies for several years and was considered "one of the best" drivers the company had. It reported that he had moved a curb machine 27 times previously, and Cobra Float work- ers had moved such a machine on 66 other occasions. During the investigation, measurements were taken that showed the curb machine was 22 inches off the ground, which would have made it more susceptible to tipping. In addition, the elevation controls were set to "auto" rather than "manual," which would decrease the stability of the machine. A ministry engineer estimated that the offset tire fell into the gap between the two ramps while it was being driven off the trailer, caus- ing it to tip over. e engineer also felt the float trailer used wasn't adequate for loading and unloading a curb machine. Cobra Float didn't formally train Pinto and the approximately 12 other drivers be- cause they all had previous experience or acquired "hands on experience," but it held safety meetings every three to four months as well as informal discussions among the drivers. e company had a safety and com- pliance consultant who ensured compliance with the Ministry of Transportation and the Ontario Highway Traffic Act, but didn't oversee compliance with the Occupational Health and Safety Act. Cobra Float also had a safety policy that drivers were "supposed to read" and was dis- cussed in the safety meetings. Based on the results of the investigation, Cobra Float was charged under the Occu- pational Health and Safety Act with fail- ing as an employer to ensure that proper measures and procedures prescribed by the act and its regulations were followed in the unloading of the curb machine –- includ- ing proper training, using a wooden block, and using the correct height and settings 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 deci- sion 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 acci- dent where Pinto said he was buying a new house and had to meet with a mortgage bro- ker the following week. is may have dis- tracted him and caused him to make fatal errors in unloading the curb machine, said the company. e court noted that even though no one witnessed the accident, 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 ac- cident happened –- was easily proven for the purposes of pressing charges. e 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. e court found that Pinto's experience and the availability of pieces of wood to help stabilize the curb machine –- as part of the normal practice in which drivers had been instructed –- made it reasonable to expect Pinto would have followed procedure and used a piece of wood as a ramp. Since there was no widely accepted or available 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 accident since no wood was found in position, said the court. e court also found that while Pinto wasn't provided with specific training for unloading curb machines, he had demon- strated his experience and ability and there was no reason for Cobra Float to think he wouldn't follow proper procedure. is made the accident less foreseeable for the company. "e controls being set to automatic and the non-use of the wood to establish a ramp WORKER on page 6 »

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