Training and supervision
By Jeremy Warning
On November 30, 2012, the Ontario Court of Justice released its decision in R. v. 679052 Ontario Limited (c.o.b. as Auction Reconditioning Centre), 2012 ONCJ 747 (CanLII).The Auction Reconditioning Centre (“Company”) operated a business in which it cleaned automobiles at its facility in Milton, Ont. This cleaning service was performed for leasing and car rental companies before the automobiles were sold at auction. The Company had established a system in which the automobiles would move from the west side to the east side of its facility as they were cleaned. There were a number of steps in the cleaning process and, according to the decision, they included:
1. a worker trained as a driver examines the car to determine if it can go directly into the building to be cleaned or if it needs to be pre-vacuumed;
2. a trained driver, who is also a supervisor, drives the car to the wash bay, either directly or after the pre-vacuuming;
3. while still in the western parking lot and prior to entering the building, the cars are pre-vacuumed, if necessary, and chemicals are applied by an employee trained as a cleaner;
4. after cleaning, the cars are driven, by employees specifically assigned to drive, from outside the wash bay into the wash building;
5. the vehicles are then washed by cleaners in the wash bay; the keys are left in the ignition of the cars in the wash bay so that the car engines can be run to allow the engines to be cleaned;
6. four workers, all of whom are trained in driving, work in the wash bay; two of the workers drive the vehicles inside the wash building from the pre-wash area located outside the building and two of the workers drive the vehicles to the cleaning area;
7. as the vehicles exit the wash area they proceed to one of the cleaning lanes; the keys are then removed from the ignition and placed in the door lock of the vehicle for safety reasons; the vehicles are cleaned by another group of workers also known as cleaners;
8. after the vehicles are cleaned, they are then driven by trained drivers from the cleaning area of the wash building, outside and into the eastern parking lot.
As such, the system required that, from time to time, vehicles would have to be moved from one area or station to another within the workplace. As noted, the Company assigned and required certain employees to act as drivers and move the vehicles from one location to another. Unfortunately, an employee who was employed as a cleaner and had been instructed not to drive vehicles, decided, on the spur of the moment, to drive a vehicle into the wash bay. In so doing, the employee caused a chain of collisions with two other vehicles that injured another employee.
The Ministry of Labour investigated the incident. As a result of the investigation the Company was charged with two similar offences under two separate provisions of the OHSA. The charges were that the Company failed, as an employer:
1. to provide information, instruction or supervision to a worker at a workplace contrary to section 25 (2)(a) of the OHSA. Particulars: The defendant failed to ensure that a worker or workers received information, instruction and/or supervision in the safe operation and/or parking of vehicles in the workplace; and
2. to take every precaution reasonable in the circumstances for the protection of a worker at a workplace contrary to section 25 (2)(h) of the OHSA. Particulars: The defendant failed to take the reasonable precaution of ensuring that a worker who drove a car at the workplace had a valid driver’s licence and/or was sufficiently trained in the safe operation of a motor vehicle.
Following a trial, the Company was convicted of both offences. However, because the offences were very similar, a conviction was entered on the first charge while the second charge was stayed. The Company appealed its conviction.
In allowing the appeal, the appeal court held that the trial decision contained a number of errors of both a factual and legal nature. The evidence in the case established that the cleaner was not expected to drive vehicles and had been specifically instructed not to do so. In terms of information and instruction, the appeal court held that an employer need not instruct a worker on every job or task in the workplace. Rather, an employer is expected to provide information and instruction for the jobs or tasks that a worker might reasonably be expected to perform or undertake. On this point, the appeal court wrote:
“[…] it is difficult to understand on what basis [the trial justice] could have found that an individual whose job it was not to drive should have received information, instruction and/or supervision about the safe operation of a vehicle or that a worker, who was not hired to drive a vehicle at the workplace, should have a valid driver’s licence and/or be sufficiently trained in the safe operation of a vehicle. [….]
“As it was not [the cleaner’s] job to drive nor was there any reason for his employers to suspect he would drive, there is no requirement for the defendant in these circumstances to provide him with information, instruction or supervision in safe operation or parking of [vehicles].”
This finding bolsters existing case law that restricts an employer’s training obligations to providing adequate information and instruction for those jobs or tasks that a worker can reasonably be expected to perform.
In respect of supervision, the appeal court adopted reasoning used in some previous cases to find that an employer is not required to provide contemporaneous supervision at all times. The appeal court wrote “there is no such legal requirement in workplaces under the OHSA that a worker must be given such information, instruction and warnings every time a task is assigned.”
Further, the court wrote that there was no reason for the Company “to ensure that [the cleaner] was supervised for every minute he was working.” These rulings are premised on the appeal court’s finding that the Auction Reconditioning Centre was “not a workplace where there are complex safety instructions or procedures.”
Finally, the appeal court also rejected the trial court’s finding that the Company ought to have foreseen that the cleaner would drive a vehicle because the cleaner was young and had only worked for the Company for a short period. The appeal court found that there was no evidence presented in the trial to support this finding by the trial court.
The appeal decision provides some guidance for employers about the expectations for training and supervision under the OHSA. However, the case also establishes that employers should ensure that workers are given clear instructions about the jobs or tasks they are not to undertake.
For example, if a certain job or task requires special knowledge, training or skills (such as the operation or repair of equipment or tools) that go beyond that provided to the worker, the worker should be given a clear and unequivocal instruction that they are not to perform that job or task. Employers should then monitor for compliance with this instruction and take corrective action should they find that a worker is not abiding by the instruction.
However, the appeal decision should be read in context. As noted above, the appeal court found that the Auction Reconditioning Centre was not a workplace that involved complex safety instructions. In that regard, the appeal court appears to be evaluating the level of supervision in light of the complexity or risks in the workplace. This is consistent with traditional notions of due diligence which require that greater preventative steps or measures be taken when greater risks exist.
Jeremy Warning practices occupational health and safety law in the Toronto office of Heenan Blaikie LLP.