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Employee charged for failure to report unsafe work

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An Ontario employee has been charged under the Ontario Occupational Health and Safety Act (“OHSA”) for allegedly not reporting a dangerous work situation.

The employee, a City of Ottawa (“City”) worker, was present while a private contractor was hooking up connections for a new development site to the city’s water and sewer systems. Also present was an Inspector from the Ontario Ministry of Labour, who saw the contractor’s employees working in an unsupported trench—a situation that presented a safety hazard, as the trench could have collapsed.In addition to noting the contractor’s safety violation, the Inspector also cited the City employee who allegedly observed the work being performed in the unsupported trench.

The Inspector charged both the contractor’s supervisor (who was responsible for ensuring the safety of the work site) and the City employee. Although the City employee had not created and was not working in the dangerous situation, it is alleged that he was present and failed to report the contravention.

The duty to report a dangerous situation exists under subsections 28(1)(c)-(d) of the OHSA, which requires workers to report any hazard or contravention of the OHSA (or the related regulations) to the employer—for example, a worker would be required to report any known missing or defective equipment or protective device that may endanger any worker. Individuals who contravene the OHSA can face a maximum fine of $25,000 and/or up to 12 months imprisonment.

Particularly in light of recent increased enforcement efforts by the Ministry of Labour, all employees should be mindful that they (like their supervisors and their employers) have certain duties under the OHSA.In that regard, in addition to being aware of their own actions, workers must take an appropriately active role in ensuring that the workplace is safe for other employees.

Significantly, the City employee in this case was not employed by the contractor, and it does not appear that he was otherwise affiliated with the work being performed. Instead, it seems that the City employee represented the project owner, the City of Ottawa.

Interestingly, the obligations of project owners prescribed under section 30 of the OHSA do not include a general health and safety duty. Rather, general health and safety compliance on a project is normally the responsibility of the “constructor”, which is usually the general contractor who is overseeing the work-site. Accordingly, if the City employee is found guilty in this case, the court would be imposing an indirect liability on project owners that goes beyond their stipulated duties under the OHSA. In other words, such a decision could be seen as extending the duties of project owners beyond their own workplaces, and making them responsible for ensuring the health and safety of contractors and workers on any project they have undertaken.

The City employee is scheduled to appear in provincial court on November 29, 2012, and we will provide an update on this case in future blog posts. In the meanwhile, the fact that the City employee has been charged in these circumstances suggests that in addition to clearly defining OHSA compliance obligations in their contracts with constructors, project owners should also ensure that any of their own personnel who will be on-site at their projects have received health and safety training to assist them in identifying workplace hazards and complying with their personal OHSA obligations as employees.

Parisa Nikfarjam