The Ontario Court of Appeal recently ruled that the Ministry of Labour (MOL) can prosecute employers under the "general duty" clause of the Occupational Health and Safety Act (OHSA) even where the charges impose obligations that are greater than those set out in the regulations under the OHSA.
In Ontario (Labour) v. Quinton Steel (Wellington) Limited, 2017 ONCA 1006 (CanLII), the trial and an appeal justice had determined that the employer could not be found guilty of failing to provide guardrails around a temporary work platform as the applicable regulation under the OHSA, Industrial Establishments, which addressed the issue of guardrails, did not require them in this particular situation, a temporary work platform at a height of six feet. Accordingly, the lower courts ruled that the MOL could not use the "general duty" requirement found in s. 25(2)(h) of the OHSA to impose obligations greater than those in the regulation.
The Ontario Court of Appeal disagreed, reasoning that regulations cannot be expected to anticipate the circumstances of all workplaces across Ontario. The Court found that the key question 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 appeal court allowed the appeal and ordered a new trial before a different justice.