Canadian Safety Reporter

2 Canadian HR Reporter, a Thomson Reuters business 2018 CSR | June 2018 | News fell to his death. Quinton Steel operates a cus- tom steel fabrication business, assembling large steel compo- nents for industrial use. Its fa- cility in Guelph, Ont., qualified as an industrial establishment under the Ontario Occupational Health and Safety Act (OHSA), so it was subject to the OHSA's industrial establishments regu- lation. Martin Vryenhoek was a fin- ishing metal welder for Quinton Steel. He sometimes worked at fabricating large pieces of steel equipment called slides and, due to their height, he had to use a temporary platform to weld ar- eas at the top of the slide. Quin- ton Steel's practice for 17 years in such circumstances was to set up temporary platforms made of two eight-foot planks laid side- by-side on steel A-frame end pieces. One day, Vryenhoek was working on a slide on such a platform, which was 19-and- one-half inches wide and set up six feet and six inches above the ground. There were no guard- rails on the platform and Vryen- hoek wasn't wearing a harness or any other fall-arrest equipment — Quinton Steel didn't require the use of guardrails or other fall protection equipment for plat- forms less than nine feet high. As he worked, Vryenhoek wore a welding helmet that cov- ered his face and had a visor with special glass designed to be clear initially but darkened to opaque when welding began to pro- tect the eyes. He could only see around him when he raised the helmet. He was working on an eight-foot-long weld and walked sideways along the platform as we worked along the weld. He wasn't using temporary bum- pers at the sides of the weld — as some welders used to alert them to their position at the end of the platform, but Quinton Steel didn't require this and it was left to their discretion — so he mea- sured his location on the plat- form by feeling for the tip of the A-frame with his foot. However, Vryenhoek ap- parently didn't realize when he reached the edge of the tem- porary platform and he fell the six-and-one-half feet to the ground. He died from his inju- ries and, following an investiga- tion, Quinton Steel was charged under the OHSA with "failing to inform, instruct and supervise a worker to protect the health or safety of the worker" as well as failing to take "every precaution reasonable in the circumstances for the protection of a worker." No guardrail required by regulation A justice of the peace noted that the Industrial Establish- ment Regulation didn't require fall protection equipment for heights less than three metres but required a guardrail on the open side of "a raised floor, mez- zanine, balcony, gallery, landing, platform, walkway, stile, ramp, or other surface" regardless of how high it was. However, due to the seeming contradiction be- tween the two requirements, the justice found the guardrail re- quirement should be limited to fixtures attached to the building and not unattached platforms like the one on which Vryenhoek was working. Since the Industrial Establish- ment Regulation was meant to provide the requirements for protection workers from falls in such circumstances, Quin- ton Steel's general duty to take "every precaution reasonable" under the OHSA shouldn't have to go beyond what the regula- tion prescribed, said the justice of the peace. It also looked at photographs of the accident site and found there was a "form of guardrail" on the platform that Vryenhoek may of placed there. The justice of the peace dis- missed both charges under the OHSA. The Crown appealed the dis- missal of the second charge re- lating to taking every precaution reasonable to protect the worker, arguing the justice of the peace failed to address whether it was reasonable for the company to have taken the precaution of us- ing guardrails for the temporary platform and it misidentified a guardrail in the photographs of the scene. The appeal court found the justice of the peace may have misidentified a guardrail in the photographs, but it wasn't the basis for the acquittal on the charges. It also determined that the justice knew Vryenhoek was a welder with limited visibility and it properly adjudicated the charge against Quinton Steel based on the requirements un- der the relevant legislation. It dismissed the Crown's appeal and the Crown appealed once again to the Ontario Court of Appeal. The Court of Appeal noted that the OHSA "establishes du- ties that are particularized by workplace-specific regulations" that govern construction, min- ing, and industrial workplaces. Employers have a duty under the OHSA to carry out the measures prescribed by the regulations. However, their duty isn't limited just to those regulations, said the Court of Appeal. "(The duty) is more sweeping because it does not depend on the existence of a specific regu- lation prescribing or proscrib- ing particular conduct," said the Court of Appeal. The section requiring reasonable precau- tions was necessary because "the regulations cannot reason- able anticipate and provide for all needs and circumstances of the many and varied workplaces across the province." Reasonable precautions under OHSA The Court of Appeal found that when the justice of the peace de- termined that a guardrail wasn't necessary under the Industrial Establishment Regulation, that wasn't the end of the argu- ment. The justice should have continued to examine whether the installation of guardrails on Vryenhoek's platform was reasonably necessary to protect Vryenhoek from falling. Since the justice's analysis ended at the regulation requirement, it failed to fully address the ques- tion of reasonable precautions under the OHSA, said the Court of Appeal. "The focus of the trial justice's reasons was on the relationship between the statutory require- ment and the regulations," said the Court of Appeal, which was erroneous because the regula- tion is subordinate to the OHSA and does not cancel out any du- ties under the main legislation as enacted by the legislature. Such an interpretation would limit protection for industrial work- ers on temporary structures to only fall protection equipment and only when working at three meters or higher. This would undermine the purpose of the OHSA, said the Court of Appeal. "It may not be possible for all risk to be eliminated from a workplace, but it does not follow that employers need do only as little as is specifically prescribed in the regulations," said the Court of Appeal. "There may be cases in which more is required — in which safety precautions tailored to fit the distinctive na- ture of a workplace are reason- ably required by (the OHSA) in order to protect workers." The Court of Appeal ordered a new trial before a different jus- tice of the peace. For more information see: • Ontario (Labour) v. Quinton Steel (Wellington) Limited, 2017 CarswellOnt 20153 (Ont. C.A.). Reasonable < pg. 1 Subordinate regulation doesn't trump main OHS legislation Credit: Shutterstock/SasinTipchai

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