Case In Point
Ontario Court of Appeal Grants Leave to Appeal Acquittal in Benevides Decision, Opening Door to Expanded Workplace Safety Liability for Incidental Construction Workers
Date: June 26, 2025
On June 9, 2025 the Ontario Court of Appeal released its decision in Ontario (Labour, Immigration, Training and Skills Development) v. Benevides, granting leave to appeal the provincial offences appeal judge’s decision to the Court of Appeal.
Background
This case stems from a construction site incident that occurred in April of 2020 where eight spools of elevator cable were being hoisted in the air. These cables, which weighed 4000 pounds, fell from a height of approximately 300 feet. The cables fell on the ground, on the roof of a retail store, and in the parking lot and pedestrian areas, but fortunately, there were no casualties caused by the incident.
Two contractors were involved in the project. Hardwall was the owner of the crane being used, and Selco was the user of the crane. The contractors had an agreement in place where Hardwall would provide a “swamper” to assist the crane operator if the crane operator’s view was obstructed, or if a person could be endangered by the load when it was being hoisted.
Under the agreement, Selco was required to provide a rigger, who was responsible for rigging the load safely. The Respondent, Luis Benevides, was a Hardwall employee acting as a swamper when the incident occurred. Two riggers were provided by Selco who, in accordance with the agreement, secured the load of elevator cables. Mr. Benevides subsequently changed the securement method used by the riggers from a basket mode to a choke mode before telling the crane operator to hoist the load into the air.
Procedural History
Mr. Benevides was charged with four counts of failing to carry out his obligations pursuant to the construction projects regulation of the Ontario Health and Safety Act (OHSA) due to his interference with the securement of the load. Specifically, Mr. Benevides was charged with failing to ensure the material was moved in a manner that did not endanger a worker, in addition to other charges pertaining to rigging and hoisting objects.
At trial, Mr. Benevides was acquitted of all charges after a directed verdict because there was no evidence that his interference directly resulted in the incident. Rather, the incident occurred because the wooden pallet carrying the cables broke.
The judge held that there was no evidence adduced by the Crown that Mr. Benevides was responsible for causing the incident. The Crown appealed the acquittal to a provincial offences appeal judge but was unsuccessful. The Crown then sought leave to appeal to the Ontario Court of Appeal.
The Ontario Court of Appeal Decision
The Ontario Court of Appeal considered whether leave to appeal to the Court of Appeal ought to be granted. The Court reviewed the test for granting leave to appeal to the Court of Appeal from the Provincial Offences Act, which requires that:
- the moving party raise a question of law alone, and
- the Court is satisfied that, in the particular circumstances of the case, leave to appeal is essential in the public interest or for the due administration of justice.
The Crown argued that, if a defendant moved or stored material in a manner that endangered a worker, then that defendant has failed to comply with their obligation to ensure that material is moved in a manner that does not endanger a worker. Essentially, the Crown’s argument was that they simply had to prove that the individual failed to comply with the statutory requirement to not endanger a worker, not that those tasks resulted in the eventual failure which caused the incident.
In granting leave to appeal, the Court of Appeal agreed that if the lower court judges were looking for evidence that Mr. Benevides’ interference caused the failure, then that is a misapplication of the non-suit test. Without deciding the issue, the Court of Appeal pointed out that the Crown’s view of the case could potentially expand the scope of liability to a broader category of workers. The example given by the Court of Appeal was that, if an employee is tangentially involved in securing a load, they could potentially be liable if there are any incidents when that load is being hoisted. The Court of Appeal noted that this interpretation would apply not only to hoisting tasks, but to all tasks regulated by OHSA.
Key Takeaways
The Court of Appeal’s decision to grant leave to appeal in this case leaves the door open for the scope of liability to extend to a broad category of workers who are only incidentally involved in the work at issue. If the Crown succeeds in its argument that it needs only to prove that the individual failed to comply with the requirement to not endanger a worker, and not that those tasks resulted in the eventual failure, this interpretation would apply to all tasks regulated by OHSA.
The author thanks Stefani Avila, a 2025 summer student, for her assistance with this article.
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©