INDIVIDUAL = SUPERVISOR
In the following cases, the courts ruled that certain individuals were supervisors despite their non-supervisory titles.
A lead hand disabled a safety device on a mower. A worker got his foot caught in the mower while trying to free it from a corner. The blades shredded his boot and seriously injured his foot. The lead hand was prosecuted and convicted as a supervisor. He appealed, arguing that he wasn’t a supervisor under the Ontario OHS Act. The court upheld the lead hand’s conviction as a supervisor. It explained that the test to determine if someone has hands-on authority is based on the individual’s actual powers and responsibilities. Here, there was “ample evidence” of the lead hand’s authority: He was in charge of the crew, assigned work, answered questions and had influence over who was assigned to him. Also, his crew did what he told them to do. Thus, the lead hand was a supervisor under the law [Ontario (Ministry of Labour) v. Walters,  CanLII 55057 (ON S.C.), Dec. 6, 2004].
A safety inspector saw three workers on scaffolding at a construction site without fall protection equipment. The scaffolding subcontractor’s “working foreman” was convicted of a safety violation as a supervisor, which the court upheld on appeal. The foreman had authority over the other workers to tell them what was expected of them with respect to health and safety matters. It was his responsibility to ensure they had the requisite safety equipment and PPE to do the job and to advise them of potential hazards. He had the power to direct the workers to take corrective action. Although he didn’t have the
power to reprimand the workers directly, the bosses relied on his input and advice when issuing reprimands and discipline. As a result, the court concluded that the foreman was, in fact, a supervisor under the OHS law [Ontario (Ministry of Labour) v. Lockyer,  ONCJ 73 (CanLII), Jan. 20, 2009].
A new worker was killed after he got caught in an unguarded pinchpoint in an oven conveyor at a small plastics factory. The company’s president was prosecuted and convicted as a supervisor. The court ruled that the president was a supervisor because he assigned work; was in control of hours, wages, bonuses, hiring and firing; conducted worker safety training; controlled production; determined what equipment would be used in the factory; and disciplined workers [R. v. Adomako,  O.J. No. 3050, June 21, 2002].
During construction at a commercial site, a four-worker crew moving a scaffold contacted an overhead power line. One worker was killed and three were critically injured. The construction company’s vice president was convicted of safety violations as a supervisor. (The company was also convicted.) The court concluded that the vice president was fulfilling most, if not all, of the functions of a supervisor. He decided who was going to be on the crew and what equipment was going to be allowed on the site; did most of the hiring and firing; was the one that normally met with the crew the first day at a new site and reviewed the safety issues unique to that project; and disciplined the workers. In short, any decisions of any merit were always left to the vice president to make. So although the vice president may not have seen himself as a supervisor, he was a supervisor under the OHS law [R. v. Jetters Roofing and Wall Cladding Inc.,  O.J. No. 5734, Nov. 1, 2000].
A Toronto Transit Commission (TTC) crew, which was in the TTC’s Track and Structure Department, was overcome by carbon monoxide in a subway tunnel, with three workers suffering critical injuries. The MOL charged the department’s general superintendent as a supervisor with three safety violations. The court ruled that the superintendent was a supervisor. It rejected his argument that because he didn’t have a “hands-on” relationship with the workers and there were two other levels of management separating him from the crew’s acting foreperson, he wasn’t a supervisor under the Ontario OHS Act. Although the superintendent didn’t give orders directly to the workers, he was responsible for those who did and was also ultimately responsible for the selection of equipment and condition of the workplace. “Clearly, there is no one person in the department with more charge over the workplace or authority over the workers than [the superintendent],” noted the court [Ontario (Ministry of Labour) v. Bartram,  ONCJ 29 (CanLII), Jan. 29, 2009]. (The court did acquit the superintendent on unrelated grounds.)
INDIVIDUAL ≠ SUPERVISOR
In the following cases, the courts ruled that a person without actual authority over work was not be a supervisor even though he had a seemingly supervisory title.
In discussing the liability of the company president as a supervisor as discussed above, the court said that another worker who had a supervisory title (plant supervisor), was a supervisor in name alone. He had minimal authority over the other worker at the factory and his charge of the workplace solely consisted of possessing a key to the front door and knowledge of the light switch’s location. This worker was there simply to pass along the president’s direct instructions and thus he didn’t qualify as supervisor for OHS purposes, said the court [R. v. Adomako].
In determining that the vice president was a supervisor as discussed above, the court rejected the argument that the site foreman was actually the supervisor the day of the incident. The foreman’s decisions were limited to minor issues that dealt with the installation of the roofing and/or wall cladding. Yes, the other workers saw the foreman as their supervisor, but what did that actually mean? In fact, the court noted that it appeared that none of the company’s foremen had any real authority. For example, they had no authority to discipline workers. The foreman was essentially the vice president’s informer, concluded the court [R. v. Jetters Roofing and Wall Cladding Inc.,  O.J. No. 5734, Nov. 1, 2000].
Two refinery workers were draining liquid from a storage tank when they were exposed to liquid nickel carbonyl, a highly toxic substance. Less than a week later, one of them died. The team leader was charged as a supervisor with safety offences. But the court dismissed the charges against him. Although the team leader had some supervisor duties, there was no evidence that he was in charge of the workplace or had authority over workers [R. v. Inco Ltd.,  O.J. No. 4218, Feb. 28, 2006].