Injured Worker’s Act was Not Foreseeable: OHSA Charges Against Employer Dismissed

Recently, an Ontario court dismissed Occupational Health and Safety Act charges against an employer where the injured worker’s unexpected and unauthorized act led to his injury.

The worker used an overhead crane to rotate a large spindle that weighed about 10,000 pounds.  He threaded a piece of rebar through one of the holes on the spindle and attached hooks for the overhead crane to each end of the rebar.  Tragically, the spindle fell off its stand and onto his foot, which had to be amputated.

The Ministry of Labour charged the employer with failing to ensure that the spindle was moved safely and failing to properly train the injured worker.

The court concluded that the injured worker’s supervisor had not instructed him to rotate the spindle.  The court also concluded that a reasonable employer could not have foreseen that the injured worker would rotate the spindle on his own and do it in the manner that he did, because: there was no evidence that a junior employee had ever previously tried to move a large piece of equipment like the spindle before; there was an unwritten protocol in place which the injured worker acknowledged that he understood; the way in which the worker rotated the spindle was contrary to his training; and he attempted to rotate the spindle on his own even though that work had always been done by material handlers or supervisors.  The injured worker conceded that he had failed to follow his training.

Further, the employer had provided an orientation session and overhead crane training to the injured worker.

Interestingly, the court also noted that the Ministry of Labour had not issued a stop work order requiring the employer to stop rotating spindles, suggesting that the inspector must have concluded that the employer’s procedure was adequate for the protection of workers.

In conclusion, the court held that the employer had established due diligence: it took every reasonable precaution in the circumstances, and could not have anticipated that the injured worker would rotate the spindle.  The OHSA charges were dismissed.

R. v. ABS Machining Inc., 2015 ONCJ 213 (CanLII)

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Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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