A company isn’t automatically liable for an OHS offence just because a workplace incident occurs. A company’s liability depends, in part, on whether the incident was foreseeable and, if so, whether the company took reasonable steps to prevent it. What makes an incident foreseeable? Courts aren’t allowed to engage in hindsight. They can only look at what the company knew or should have known about the hazard that caused the incident before the incident occurred. Here are two contrasting cases in which courts had to determine whether an incident was foreseeable.
INCIDENT WAS FORESEEABLE
A production line at a candy factory was shut down because of a mechanical failure. As part of the shutdown, a worker was told to empty the “Accurate Feeder” of peanuts so it could be cleaned. The Feeder consisted of a hopper with an electric auger at the bottom that rotated to feed the peanuts. The worker scooped out as many peanuts as she could. Then, while the machine was still energized, she pushed the remaining peanuts toward the moving auger. Her hand got too close to the auger and the top of her index finger down to the first joint was amputated. The candy company was charged with letting a worker service a machine with moving parts that were still energized in violation of lockout regulations.
An ON court convicted the company, ruling that the incident was foreseeable.
The court noted that the company’s due diligence defence hinged on whether the incident was foreseeable. The company claimed that it had no knowledge of the potential danger to workers cleaning the Feeder. Safety audits didn’t reveal any issues with the Feeder and there had been no prior problems with the cleaning of the Feeder. But a reasonable person would have foreseen such a danger, the court said. After all, the company was aware that the Feeder contained a moving part— the auger—that could be a danger to a worker. And because it was aware of the danger, the company could and should have taken measures to prevent it, such as asking the individuals who conducted safety audits to pay particular attention to the augers. The company could also have required a supervisor to be present when the Feeder was cleaned, the court added. But the company didn’t take either of these reasonable precautions.
Ontario (Ministry of Labour) v. Hershey Canada Inc.,  ONCJ 420 (CanLII), Sept. 21, 2006
INCIDENT WASN’T FORESEEABLE
A company was constructing a pipeline. Workers were engaged in an operation called “crotching”—a method of securing the end of a pipe that’s resting on a cribbing made of timber—using a Caterpillar pipe layer boom. The boom brake had an adjusting nut used to set the boom brake to respond to the different loads the boom must hold. The nut had a nylon insert that acted as a lock on the bolt. The boom fell and hit a worker. He died instantly. The company was charged with four OHS violations, including failing to keep the equipment properly maintained.
An AB court dismissed the charges, ruling that the incident wasn’t foreseeable.
The government argued that the adjusting nut on the boom brake had vibrated loose and caused the incident because its nylon insert was worn out and hadn’t been properly maintained. But the court noted that there was no evidence that the company should have foreseen that the adjusting nut would fail in the manner the government suggested. Nor was there evidence that the company was aware of a potential problem with the nylon insert that would cause the adjusting nut to vibrate loose. In fact, the evidence showed the opposite. Several witnesses with extensive experience in the pipeline industry, including government witnesses, testified that they’d never seen or heard of an adjusting nut vibrating loose. Thus, the incident wasn’t foreseeable and so the company wasn’t liable for not taking steps to prevent it.
R. v. Ledcor,  ABPC 169 (CanLII), June 27, 2005