No Automatic OHSA Liability After Equipment-Failure Accident: Charge Dismissed Where Use Of Equipment Not “Likely”


Employers are not required to anticipate all safety hazards, however unforeseeable. A recent case illustrates this point.

In a tragic accident, a worker died when a brace (which formed part of a makeshift winch used to pull concrete pipes into place) failed, striking the worker.

The employer was charged under the Occupational Health and Safety Act with failing to design the brace ”to support or resist all loads and forces to which it is likely to be subjected”.

Mr. Justice David Paciocco of the Ontario Court of Justice decided that the workers understood that only alignment of the pipe – and not force – could accomplish the task of moving the pipe into place, and that the winch system and brace were not designed to overcome resistance from a misaligned pipe through increased force from the winch.  That use of the brace and winch system was not “likely”, so the charge was dismissed.

Interestingly, Justice Paciocco rejected the Ministry of Labour prosecutor’s argument that the mere failure of the wooden brace proved that it was not properly designed.  Rather, the employer would only be guilty if it failed to design the brace to withstand “likely” forces.  Here, because the employees’ use of the brace at the time of the accident was not “likely”, the charge was dismissed.

R. v. Thomas Fuller and Sons Ltd., 2012 ONCJ 731 (CanLII)

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Dentons | Attorney Advertising

Written by:


Dentons on:

Popular Topics
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.