Case In Point
Numerous Errors by Justice of the Peace Result in Overturned OHSA Conviction
Date: January 2, 2013
In R. v. 679052 Ontario Limited (c.o.b. Auction Reconditioning Centre), the Ontario Court of Justice reaffirmed that active supervision of an employee is not required at all times. Moreover, where an employee is properly instructed not to do a task and the employer has no reason to believe the employee will do that task, the employer is not required to provide specific training regarding that task.
The employer in this case operated a car washing facility. An employee who was hired as a cleaner, and was specifically told he was not to drive cars, drove a vehicle into the wash bay and set off a chain of collisions in which another employee was injured. The employer was charged under the Occupational Health and Safety Act (“OHSA”) (sections 25(2)(a) and 25(2)(h)), and was found guilty by a Justice of the Peace.
On appeal, the Ontario Court of Justice overturned that finding on the basis that the trial justice had made numerous errors of law. Among other things, the Court held:
- The trial justice stated the particulars were “mere surplusage and need not be proven,” thereby erring in finding that the prosecution did not have to prove the particulars as alleged;
- Given the fact the employee was a cleaner and was told not to drive, the trial justice erred in finding that the employee should have been trained in the safe operation of a vehicle;
- By finding that the employee should not have been left unsupervised for any period of time, the trial justice erred “in imposing a requirement that the worker be contemporaneously supervised at all times. There is no such legal requirement in workplaces under the OHSA that a worker must be given such information, instruction and warnings every time a task is assigned;” and
- The trial justice failed to reconcile contradictory evidence and failed to explain her conclusion that it was “completely foreseeable” that the employee would drive.