Canadian Safety Reporter

2 Canadian HR Reporter, a Thomson Reuters business 2018 CSR | July 2018 | News tion of decorative moldings and finishings around doorways and windows. This process was done after all the drywall in a house was installed. The trimming was being done by Up Trim, a com- pany specializing in the process that King's Hollow had subcon- tracted. Polio-Perez's assignment was to clean and tidy up construc- tion debris in the house that had been left by the subcontractors. He went to the second floor, where there was garbage to be cleaned up in the second-floor balcony area — Up Trim had just installed trim around the Juliet balcony, which was a small bal- cony in front of an upper-floor door overlooking the house's main entrance and front lawn. Polio-Perez was picking up pieces of wood near the Juliet balcony and placing them in a large box, but at one point he bent over and felt dizzy. He fell through the open door and the guardrail gave way, causing him to plummet to the floor below. He suffered serious injures that took him more than a year to re- cover from. An investigation by the On- tario Ministry of Labour re- vealed that the balcony guard- rail — which was found lying in the ground-floor foyer — had been fastened to the floor by nails in the faceplate — nails were found in the guardrail's base holes and the holes in the subfloor were consistent with nails, not screws, according to a fastening expert. The ministry determined that the guardrail system was inadequate to pro- tect Polio-Perez from falling be- cause it wasn't properly fastened to the floor — it required screws rather than nails to fasten the faceplate to the subfloor. King's Hollow and Up Trim were both subsequently charged under the province's Occupational Health and Safety Act (OHSA) with fail- ing to ensure, as employers, that the working conditions at the construction site were safe and the guardrail system at the Juliet balcony was safe. King's Hollow and Up Trim ar- gued that there wasn't sufficient evidence to prove the guardrail was deficient, as it hadn't been determined to what forces the guardrail had been subjected — as defined in OHSA regula- tions setting out specific force resistances in newtons for vari- ous types of guardrails in vari- ous situations —and they had done everything in their power to meet the standards set out by the OHSA. The court noted that the guardrail in this case was part wood and part metal and wasn't "expressly subject to the tests set out in (the regulation), nor ex- pressly exempted from them… The specific point load resis- tance tests are only applicable to certain types of guardrail systems, but not the one here, because the point load specifica- tions are not specifically called for." The court also noted that it had been established in previous jurisprudence that the OHSA should be generously interpret- ed, since it "is a remedial public welfare statute intended to guar- antee a minimum level of pro- tection for the health and safety of workers… Narrow or techni- cal interpretations that would interfere with or frustrate the attainment of the legislature's public welfare objectives are to be avoided." The court found that while the load resistance requirement for various guardrails didn't specifi- cally apply to the type of guard- rail in question, "the purpose of the legislation is clearly to pro- tect workers from the hazard of falling, when they are working more than three metres above any workspace. The act calls for particular requirements for par- ticular types of guardrails, but in my view, the sections build on each other and should be read as a whole with a purposive ap- proach." For example, the OHSA con- tained a section — s. 23.1 — which stated: "A worker shall be adequately protected by a guardrail system that meets the requirements of s. 26.3 (2) to (8)," said the court. The sections re- ferred to are the ones outlining load resistance levels. The court found that an effec- tive guardrail system should be able to withstand "a certain point load force when applied to it" and should be made of sufficiently strong material. The point load force requirements should apply to all types of guardrails, except for any that are specifically ex- cluded. The effect is that specific sections in the regulation cre- ated additional requirements based on the type of guardrail, not separate requirements for certain types not excluded. For example, additional require- ments for a wire rope guardrail system don't exclude all other point load tests for guardrails, while material-specific require- ments like all-wood guardrails have their own minimum stan- dard that "it is capable of resist- ing all loads that it may be sub- jected to by a worker." Force resistance not proved, but fastening could be In the end, the court found that it didn't really matter that the force threshold of the Juliet balcony guardrail and the force Polio- Perez exerted on it could be de- termined, because the evidence showed that the guardrail had been fastened into place with nails rather than the required screws. As a result, the guardrail did not adequately protect Polio- Perez from falling, contrary to the OHSA. "In my view the strength of the individual components is irrel- evant," the court said. "The sys- tem was not properly fastened to the floor and so as a whole it failed." The court also found that King's Hollow was Polio-Perez's employer for the purposes of the OHSA. Up Trim, which as the subcontractor supervising the construction site at the time, was also an employer under the OHSA. Both companies were responsible for the safety of all employees on the site, said the court. In addition, there was no clear policy for guardrails onsite, or it wasn't sufficiently demonstrated to workers, said the court. The safety supervisor onsite appar- ently wasn't aware of the re- quirement for screws to be used instead of nails for the guardrail, which was a failure by both com- panies in training. As a result, the employers failed to do ev- erything reasonably possible to ensure Polio-Perez's safety. The court convicted the companies on all charges. For more information see: • R. v. King's Hollow, 2017 CarswellOnt 21062 (Ont. C.J.). Company < pg. 1 Guardrail fastened with nails rather than screws Credit: Shutterstock/sashartua

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