The Office of the Chief Coroner of Ontario has recently made recommendations to the Chief Prevention Officer and the Ministry of Labour relating to improved safety for workers in the construction industry. In the Verdict of the Coroner’s Jury regarding the Inquest into the death of Mark Pagavathsing, dated September 21, 2012 (2012 CanLII 66789), Coroner Mary Beth Bourne set out the following recommendations:

1. Consideration be given to make all construction helmets have a mandatory chinstrap and significantly increase the fine for non-use. We also recommend a review of standard helmet safety options to improve their design.
2. Consideration be given for a die-cast universal symbol on appropriate steps of all ladders and the painters shelf on A-frame ladders indicating that this is not a step.
3. Consideration be given to create a simple training safety handbook and to require all persons working in construction to pass a mandatory, regulated test based on said handbook.

Mr. Pagavathsing, a 45 year-old construction worker, suffered catastrophic and eventually fatal brain injuries after falling from an unopened 8-foot A-frame ladder as he attempted to repair a plaster hole in the ceiling of a restaurant.

In addition to making specific recommendations to prevent a similar accident from happening in the future, the Coroner was particularly critical of the lack of safety training mandated by the government for small construction businesses and independent contractors:

• There is currently no requirement for a small construction business to review the “Green Book”, or Occupational Health and Safety Act and Regulations for Construction Projects. There is also no educational safety requirement for anyone applying for a construction business, and there is no measurement to know if they are aware of safety recommendations for construction. The jury has recommended an approach that could raise safety awareness generally throughout the industry.

The Coroner went on to describe her concerns as follows:

• Ministry of Labour is only notified of projects with a value over $50,000, and even though the number of inspectors has recently increased, they often perform only focused inspections, and therefore miss many project sites.

It remains to be seen what, if any, legislative response will flow from these recommendations. Notwithstanding the current absence of explicit regulation with respect to any of these three recommendations, employers in Ontario are reminded of the following general obligations:

• Section 25(2)(h) of the Occupational Health and Safety Act (OHSA) contains a general duty clause that requires an employer to take every precaution reasonable in the circumstances to protect the health and safety of a worker. Therefore, if you, as an employer, are aware of any situation that may create a hazard for a worker, or if the hazard is otherwise foreseeable to you, you must take action to eliminate or control it.
• Constructors (i.e. a person who undertakes a construction project for an owner) may face legal liability if the contractors they hire lack sufficient health and safety knowledge and are subsequently injured on the job. Section 23 of the OHSA requires constructors to ensure that: (a) the measures and procedures prescribed by the Act and the regulations are carried out on the project; (b) every employer and every worker performing work on the project complies with this Act and the regulations; and (c) the health and safety of workers on the project is protected.

As an exercise of due diligence, anyone who is able to direct or control the work of a worker should ensure that the said worker has received adequate health and safety training and job-specific training before permitting that worker to enter a project or other work-site. This could be in the form of a signed acknowledgement from the worker, a review of the worker`s training records, or providing training directly to the worker.

Indeed, such due diligence measures are not only relevant to statutory compliance, but also to the real world objective of reducing accidents of the sort that befell Mr. Pagavathsing and similar tragedies.

Ryan Campbell