One of the most challenging issues confronting employers is how to ensure the safety of their employees when they are performing work at the location of a customer. As one recent case shows, contractors can be held liable for safety violations at work sites they do not control.
The case involved a worker employed by a company which recovered wood shavings and sawdust from a variety of industrial clients. The worker was employed as a “blower truck” operator and he attended at a flooring manufacturer for the purpose removing wood shaving and saw dust from a silo. Tragically, the worker was found buried under saw dust in his truck box and he later died at the hospital.
There was a significant complication in the operation of the silo involved the accident as the weight of the sawdust material led to the material “clumping up” at the bottom of the silo, and forming what the Court called a “plug”. In order to break up the “plug” the operator had to stand inside the box (on a device which was not designed for that purpose) to poke at the material in different places to get the material to loosen and fall. The Court found that the operator in some instances would have to stop, bend down to look underneath the wall to see the progress of the “poking”, which placed the worker close to the edge of the opening of the silo.
There were no witnesses to the accident but the Court held that evidence established that the worker fell into the box while attempting to loosen the material at the opening of the silo. One of the arguments advanced by the employer was that the accident was caused by hazards at the location of the flooring company and suggested that it should not be held liable for defects in equipment operated by another employer.
The Court categorically rejected this argument. It stated that while the flooring company may have had some responsibility, but indicated that a so called “finger pointing” defence will fail where the Defendant has not itself had taken all reasonable precautions to prevent the accident. Further, the Court made the following comment about the obligation of a contractor not send to workers to dangerous work sites,
It is not necessary in this case that I go that far in extending the jurisprudence as I feel that there were options open to the defendant to ameliorate the situation as it existed at Northern. However, I can think of no reason why, in the context of the aims and objectives of the legislation, that an employer, with full knowledge (as was here) of an inherently dangerous and continuing situation created by the failure of the equipment on site to work in any reasonable and safe manner; should not as part of his duty under this legislation, refuse to send his workers into such a situation.
These comments are a stark reminder that sub-contractors cannot escape OHSA liability by arguing that they do not control the work site. The Court noted that the employer had spoken with the flooring company about making some safety improvements, but nothing was ever done.
Due diligence will often require the contractor to attend at the work site of customers and develop task specific procedures for the work being performed. Any safe work procedures must be communicated to all workers and should be discussed at a pre-job meeting with the contractor’s customer. In situations where a sub-contractor is unable to address the hazards in question it is obliged as a matter of law not to send workers into such situations.
It should also be noted that employers in Ontario a treated as “virtual insurers” of the employees of sub-contractors they retain by virtue of the extended definition of employer in section 1(1) of the OHSA. Therefore, both the contractor and the customer can be charged by the Ministry of Labour in the event of an accident involving an employee of a contractor. We recommend that employers obtain copies of safe work procedures from contractors before any work commences.
