‘General duty’ clause can be used to prosecute, even with compliance to OHSA regs
By Roger Tickner
Now more than ever, condo corporations are at a heightened risk of legal exposure as employers as a result of an important decision handed down by the Court of Appeal for Ontario in 2017 that provided interpretation around the “general duty” clause 25(2)(h).
Employers know they must “take every precaution reasonable for the protection of a worker,” a standard mandated in the Occupational Health and Safety Act (OHSA), however the judge in Ontario (Labour) v. Quinton Steel (Wellington) Limited, 2017 ONCA 1006, stated that, “compliance with regulations may not be enough” to comply with 25(2)(h).
To put it bluntly, it appears that compliance to the Act and Regulations may not necessarily represent the entirety of an employer’s obligations, and that employers may be required to go above and beyond the minimum legislated standards. Compliance with the Act and Regulations no longer means you are necessarily risk-free. The legislated requirement of “general duty” must look at the circumstances and need for every reasonable precaution, legislated or not.
Tragically, in the above noted case from 2012, a welder employed by Quinton Steel died after falling 6.5 feet from one of the A-frame platforms, below the height at which tying off was considered required. The Ontario regulation that applied to the workplace had no provisions relating to scaffolds (to which the A-frame platform was similar) or temporary platforms; however, the regulations applicable to construction projects required that a guardrail be erected around a scaffold when working at 2.4 metres (8 feet) or above. The worker was working at 2.0 metres (6.5 feet).
The trial and appeal justice had decided that the employer could not be found guilty of failing to provide guardrails around a temporary work platform. They reasoned that the applicable regulation under the OHSA (“Industrial Establishments”), which dealt with the issue of guardrails, did not require guardrails in this particular situation (a temporary work platform at a height of six feet). As such, the lower courts held that the MOL could not use the “general duty” requirement to impose obligations greater than those in the regulation.
The Ontario Court of Appeal disagreed, stating that regulations cannot be expected to anticipate the circumstances of all workplaces across Ontario. The key question in this case was whether the installation of guardrails was a reasonable precaution. The Court of Appeal held that the trial justice failed to address that point.
The subsequent decision means that an employer can comply with all of its obligations under the regulations under OHSA and yet still be prosecuted under the “general duty” clause even where the charges impose obligations that are greater than those set out in the Act.
The general duty clause therefore requires all employers, whether they are condos, property managers, property management companies, contractors or service providers to the condominium industry to “take every precaution reasonable in the circumstances” using the Act and Regulations, along with precautions to address each working circumstance.
Now more than ever, the risks are too high to ignore.
Roger Tickner will be a panel member on the topic of condo safety for boards and property managers at the inaugural CAI Canada Conference & Expo, taking place on Feb. 7, 2019.