August 15, 2010
By Robert Kennaley
McLauchlin & Associates

Robert KennaleyYears ago, we acted for a subcontractor who found himself on the receiving end of charges under the Occupational Health and Safety Act. The subcontractor’s men were waterproofing the inside of a large tree box inside an atrium, between two commercial towers. They were applying a very flammable material which emitted vapours that are heavier than air. Accordingly, after applying the material, they had to take steps to disperse the vapours before continuing the work.

The subcontractor’s men started a normal and time-tested process:  using a leaf blower, which has its spark contained, so as to not ignite the vapours. In starting the machine, however, the general contractor for the project complained that the unit was too loud and intrusive to the other trades in the workplace. The subcontractor objected that the fumes had to be dispersed and suggested that the atrium doors be opened, at both ends, to allow nature to take its course. This, too, was rejected. Finally, the contractor’s site supervisor suggested that he had a solution. He offered the subcontractor a fan, and handed it and a plugged-in extension cord to the waterproofing subtrade’s man in the hole. When the subtrade’s man plugged-in the fan, the spark ignited the fumes and very serious burns ensued. The subcontractor (and not the subcontractor’s man) was charged with 17 breaches of the Occupational Health and Safety Act, and the matter proceeded to trial.

Most charges dismissed

We were able to get most of the charges dismissed, although liability was found on three offences, which the subcontractor ultimately settled on an appeal. We won’t go into the three charges which stuck. Rather, we note that the 14 charges which were dismissed were largely because the subcontractor had a very good occupational health and safety policy, and good occupational health and safety records in place. The subcontractor had each of the employees take regular OHSA training, updated the policy regularly, had each employee sign-off on the policy and documented meetings to discuss and emphasize the policy, among other things. The subcontractor had also provided the site supervisors with a credit card to obtain anything his crew might require in the way of safety on a job. In addition, the records were clear that any breach of the policy was grounds for termination. In fact, the employee who stood down in the hole and plugged in the fan admitted at trial that he knew when he did it, that if his boss knew what he was doing he would probably be fired. All of this assisted greatly in establishing a due diligence defence for the subcontractor.  

Don’t let your focus wane

Another subcontractor we know had similar occupational health and safety policies and programs in place at the time of a tree hole explosion incident. This subcontractor had equally good records to establish that the policies and procedures not only existed, but that they were being reiterated and updated constantly, and that they were being followed. Fast forward a baker’s dozen or so years, however, and that subcontractor had let his focus on OHSA more or less wane. When he was charged under the OHSA in relation to an accident (the particulars of which don’t really matter), he faced a problem.  

When the Ministry of Labour came to investigate, the subcontractor was not able to produce the copy of the policy in place at the time the injured worker was hired. He was also not able to show records to prove that this worker had undergone OHSA training upon being hired. He was not able to produce records to show the workers had attended regular safety meetings. He was not able to produce records to show that he had a system in place to ensure that the policies were being followed, in the field, by the employees.

The subcontractor objected that his company had followed the same steps it had been following all along. He said there would have been an initial training session; there would have been a sign-off on the policy; that safety meetings were held almost daily; that safety was stressed again-and-again-and-again as a top priority; that a safety officer attended the jobs sites on a regular basis to spot check the men for safety compliance and that where problems were discovered the men were disciplined. The problem, however, was that the subcontractor had very few records to show that any of this had occurred.

A bigger problem arose because the Ministry of Labour is entitled to interview anyone involved in an accident, without the employer being present. In this case, early on a Saturday morning the ministry officer attended at the home of the site super, who had been in charge of the injured worker on the day of the accident. When asked if the subcontractor had a health and safety policy or program in place for the workers, the site supervisor (for whom English was a second language) said, “No.”  You can imagine the ministry’s reaction, and how problematic the file became after that.  

There is no question that the subcontractor had continued to follow his OHSA policies over the years. There is also no question, however, that his enthusiasm in doing so had waned. It may have seemed to the company that they were stressing the same old/same old, but the emphasis, it appears, lessened over time. More importantly, the required record-keeping slowly deteriorated to the point that none were really in place to assist the subcontractor when his accident occurred.

It is easy to let OHSA policies and procedures slip. It is easy to think you are reiterating the same-old-same-old and to believe all of your workers and subcontractors are on the same page with you, when it comes to safety. Unfortunately, you need records to prove this.

Keeping on top of the men and women in the workplace, and following up with paper, will assist you to ensure that, if asked, your workers will never, ever, say no, when asked if you have a policy. Rather, diligence will ensure that, if asked, the answer will be, “Do we? We talk about it constantly to the point that I am sick of it … !” Establishing this diligence is time consuming and inconvenient at times. It is also, however, a very good form of insurance against problems down the road.
Robert Kennaley practices construction law in Toronto and Simcoe. He speaks and writes regularly across North America. He can be reached for comment at 416- 368-2522, or at This material is for information purposes and is not intended to provide legal advice in relation to any particular fact situation. Readers who have concerns about any particular circumstance are encouraged to seek independent legal advice in that regard.