Recent Court Decision Sheds New Light On Level of Due Diligence Required by Employers


Health and Safety continues to be a shifting paradigm. On December 20, 2017, a significant decision was rendered by the Court of Appeal for Ontario. The underlined excerpts below present a further shift in this paradigm. Employers know that taking every reasonable precaution is a standard mandated in the Act. The importance of this recent decision lies in its interpretation of the “General Duty Clause” (25(2)(h).

The judge clearly states compliance with regulations may not be enough to comply with 25(2)(h). Employers may be required to take extra care, which the standard has always required. Compliance with Regulations no longer means you are risk free. In fact, it suggests that charges under 25(2)(h) may still be viable. That message needs to spread amongst your supervisors and foremen that it’s better to be “fully safe” as opposed to doing the work and doing the “safety minimum”. “Take every precaution reasonable in the circumstances for the protection of a worker,” now appears to have inherent risks.


Ontario (Labour) v. Quinton Steel (Wellington) Limited, 2017, ONCA 1006


[44] “But prescriptive certainty is not required in the context of regulatory offences such as s. 25(2)(h). That section establishes a standard, rather than a rule, the requirements of which are tailored to suit particular circumstances. Employers must take every precaution reasonable in the circumstances in order to protect workers. Reasonableness is a well-known legal concept that is interpreted and applied in a wide variety of legal contexts. Its use in s 25(2)(h) does not give rise to intolerable uncertainty”.


[45] “It may not be possible for all risk to be eliminated from a workplace, as this court noted in Sheehan Truck, at para. 30, but it does not follow that employers need do only as little as is specifically prescribed in the regulations. There may be cases in which more is required – in which additional safety precautions tailored to fit the distinctive nature of a workplace are reasonably required by s. 25(2)(h) in order to protect workers. The trial justice’s erroneous conception of the relationship between s. 25(2)(h) and the regulations resulted in his failure to adjudicate the s. 25(2)(h) charge as laid”.