A recent case from the Ontario Court of Justice suggests that workplace policies can be a significant component in determining what constitutes unsafe conduct under the Occupational Health and Safety Act.
In Ontario (Ministry of Labour) v Nault, two workers at a warehouse facility were charged with operating forklifts in an unsafe manner, contrary to section 28(2)(b) of the OHSA. Both were accused of using cell phones while on the plant floor and operating the forklifts. Although no accident or near miss had taken place, the Crown argued that the use of the cell phones in such a circumstance nonetheless constituted a risk to workplace safety.
The trial did not include any charges against the employer.
The employer had policies which completely prohibited the use of cell phones on the warehouse floor under any circumstances. The workers admitted they had used cell phones contrary to this policy.
However, they argued that their conduct did not constitute unsafe operation.
One of the workers testified that he had only used his cell phone while his forklift was turned off, and was out of the way of worker and vehicle traffic.
The other worker testified that he was standing on the floor beside his forklift, which was turned off and had handed his cellphone to a co-worker at the relevant time.
The Court relied on other eyewitnesses and found that these explanations were not credible. The Court determined that both workers had been using their cell phones while driving the forklifts. This constituted unsafe operation.
The Court relied on case law under the Highway Traffic Act, which, unlike the OHSA, specifically bans and regulates the use of electronic devices while driving. Caselaw under the HTA has established that the use of handheld devices while in a motor vehicle constitutes distracted operating, even where the vehicle is stopped, and the parking brake is applied.
However, the Court found that even if the workers’ testimony had been accurate, their conduct nonetheless constituted unsafe operation.
The workers’ defense was that they were not “operating” the forklifts when they were using their cell phones, or alternatively that their operation of the forklifts was not unsafe.
The Court concluded that even on the workers’ accounts of events they were in care and control of the forklifts while they were using their cell phones. This was “operating” for the purposes of the OHSA. It found that the use of cell phones while operating a forklift was an inherently unsafe activity.
In finding that the conduct was unsafe, the Court put a significant amount of weight on the fact that the workers’ conduct was contrary to employer policy. It should be noted that the OHSA does not require a zero-tolerance policy for cell phone use. Nonetheless, the Court found that the existence of the policy suggested that the use of cell phones was an inherently risky activity.
The Court convicted both workers of the charges.
The use of the HTA by the Court to inform itself of the standard imposed by the OHSA for equipment operation is noteworthy. The HTA does not impose requirements on operators of heavy equipment. Likewise, the OHSA and the Regulations do not expressly prohibit the use of cell phones while operating equipment. Nonetheless, the Court was strongly influenced by the HTA regime in its determination of the appropriate standard under the OHSA.
This case is also notable because of the Court’s reliance on the employer’s policy in concluding the operation of the equipment was unsafe.
The assumption that an activity is a health and safety risk simply because it is prohibited may not always be accurate. For example, an employer may choose to implement a blanket prohibition because it is easier to enforce than a more targeted policy, even if it does not further enhance worker safety. The danger in assuming that a workplace policy delineates what is safe or unsafe conduct under the OHSA is that it may not account for such nuances. An employer’s policies could result in conduct that is safe being treated as unsafe simply because it is forbidden.
This should not deter employers from instituting whatever policies are reasonable to maintain workplace safety. However, once they do so, employers should ensure that they enforce those standards aggressively, lest they one day be used against them.
