FACTS
An Ontario worker suffered a serious hand injury while working on a cold-rolling steel mill. The company was charged with failing to equip the mill with a guard to prevent access to moving parts as required by OHS regulations. The company argued that it had complied with this requirement by setting safety policies and procedures for the mill’s operation. For example, a worker was stationed in the mill’s control booth to act as an “operating control” and prevent injuries to co-workers. And workers were expected to use push bars or hand-grippers instead of their hands to feed steel into the mill. The injured worker had disregarded these procedures by manually feeding steel into the mill.

DECISION
The Ontario Court of Appeal ruled that the regulation required the installation of a physical guard on the mill.

EXPLANATION
The purpose of the guarding requirement, explained the court, was to prevent conduct on the part of the worker from resulting in injury and, “in particular, to take individual discretion, judgment and degree of concentration and capability out of the equation.” Although the mill’s “workplace procedures and enhancements” did, in fact, enhance safety, they weren’t enough. Policies and procedures aren’t adequate substitutes for mandatory physical safeguards because they only work if workers comply with them. Thus, physical guards and other engineering controls are needed to prevent incidents that occur when workers make mistakes, are careless or even reckless, noted the court.

R. v. Dofasco Inc., [2007] ONCA 769 (CanLII), Nov. 9, 2007

FACTS
A worker in Saskatchewan was picking out debris from the “fluff”—that is, non-metallic material salvaged from cars. Adjacent to his work station was a magnetic drum that attracted most of the metal pieces from the fluff. The space between the drum and its conveyor belt was an unguarded pinch point. A piece of fluff got stuck to the drum. The worker reached over a guardrail and around the drum’s frame to the other side of the conveyor belt to remove the fluff. His arm got caught between the drum and the belt and was severed at the shoulder. The company was charged with failing to guard the magnetic drum’s pinchpoint.

DECISION
The Saskatchewan Provincial Court dismissed the charge, ruling that the company had exercised due diligence to protect workers from the pinchpoint.

EXPLANATION
The area where the magnetic drum came in contact with the conveyor belt was a pinchpoint that didn’t have a guard. But the inquiry didn’t end there, said the court. It explained that if the lack of a physical guard negated the due diligence defence, the offence would be one of absolute liability. Instead, courts should also consider other factors, such as safety procedures and worker training. The evidence, the court concluded, showed that the company had exercised due diligence to protect workers from this pinchpoint:

• The company constantly communicated the “golden rule”—workers were never to touch moving equipment with their hands or bodies—to workers;
• Workers were instructed never to clean or work on machinery until it was shut down;
• The JHSC met regularly to address safety issues;
• The company held “toolbox” meetings with workers on safety;
• The JHSC, workers and inspectors never suggested that the work station was unsafe;
• No one reasonably expected a worker to stick his arm into the magnetic drum;
• Other equipment in the plant was adequately guarded; and
• There was a handrail around the conveyor belt area to keep workers from falling into or inadvertently touching the belt.

R. v. Jamel Metals Inc., [1999] CanLII 12390 (SK P.C.), April 16, 1999