The Occupational Health and Safety Act does not require that workers be “contemporaneously supervised at all times”, an Ontario appeal judge has held, dismissing two charges.
In a bizarre accident, an 18-year-old worker at a company that washed cars prior to their sale at an auction, drove a vehicle into a wash bay setting off a chain of collisions between two other cars and resulting in another employee, further up the line, being injured.
The worker had been told twice by a manager not to drive, initially when he was hired and again on the day of the incident. He admitted that he was aware of the safety policy of the appellant that in order “To drive a vehicle on the property you must have a valid driver’s licence.” He did not have a driver’s licence.
He also admitted that he moved the car “in the heat of the moment”. At the time of the incident, there were no supervisors in the wash bay; all of the workers had gone on a break.
At trial, the presiding justice of the peace stated that the worker should not have been unsupervised for any period of time. She said that the supervision was inadequate because the worker was able to “circumvent this observation and supervision and drive the motor vehicle” because everyone had gone on break and therefore the system failed.
The appeal judge disagreed, holding that the Occupational Health and Safety Act did not require that a supervisor always be present. Because it was not the worker’s job to drive, nor was there any reason for the company to suspect that he would drive, the employer was not required to provide him with “information, instruction or supervision” in safe operation or parking of vehicle.
The appeal was allowed, and the Occupational Health and Safety Act charges of failing to instruct and supervise, and failing to ensure that the worker had a valid driver’s license, were therefore dismissed.
R. v. 679052 Ontario Limited (c.o.b. Auction Reconditioning Centre), 2012 ONCJ 747 (CanLII)
