A fifth worker was also seriously injured when the scaffolding they were working on collapsed. The charges
against the employer, Merton Construction Corporation, one of its directors and a supervisor could amount to millions of dollars in penalties and up to 12 months of prison time for each individual under the Occupational Health and Safety Act
(the “OHSA”). The company that provided the scaffolding was also charged under the Act. The hearings will take place at the Ontario Court of Justice in Toronto on September 30, the Toronto Star reports.
The four workers who fell 13 stories were allegedly not using, or not properly using, the necessary harnesses. Under the OHSA, employers have a duty to provide protective devices and supervisors have a duty to ensure that protective devices are in fact worn or used. The charges laid by the Ministry of Labour include failure to ensure that workers on a suspended scaffold wore a full body harness connected to a fall arrest system. The only worker who had been properly using a body harness survived the accident, although he suffered a broken spine and fractured both of his legs. The OHSA also protects the right of workers to refuse to work if they have reason to believe the work they are being asked to perform is likely to endanger them.
Unfortunately, workers - particularly migrant workers – are often not aware of their rights under the law in Canada.
The OHSA is not the only way in which Ontario employers could face serious fines and prison sentences in relation to a workplace death or injury. A criminal investigation could result in significant charges under the Criminal Code of Canada
. In 2004, Bill C-45, expanded the criminal liability of organizations for workplace accidents and broadened the range of individuals who are subject to criminal charges. The Bill was motivated by the 1992 Westray mine disaster in which 26 Nova Scotia miners were killed. Under the Criminal Code, employers have a duty “to take reasonable steps to prevent bodily harm” and where someone in charge of workers fails to do so, resulting in the death of a worker, they could face life in prison. It is clear that charges could be laid under both Acts but because of a provision in the Canadian Charter of Rights and Freedoms
- the so-called “double-jeopardy” defence - it is unlikely that an employer will be convicted under both Acts.
Spokesperson for the Ministry of Labour, Matt Blajer, confirmed that there have been previous cases where employers in Ontario have served jail time as a result of workplace accidents. However, the Criminal Code has been used in very few cases since Bill C-45 was proclaimed in force in 2004.
According to the Ontario Federation of Labour, the number of people killed at work in Canada has risen for the past 15 years, with 479 work-related fatalities in Ontario reported to the Workplace Safety and Insurance Board in 2009. Go to the Ontario Federation of Labour’s website at www.ofl.ca
for more details.