Court of Appeal clarifies signaller requirement, awards costs against the Crown
By Kevin MacNeill
Section 56 of the Industrial Establishments Regulation (O. Reg. 851) under Ontario’s Occupational Health and Safety Act (“OHSA”) requires the use of a competent signaller to guide those who operate a “vehicle, mobile equipment, crane or similar material handling equipment” and do not have a full view of their intended path of travel.
In Ontario (Ministry of Labour) v. Sheehan’s Truck Centre Inc. a truck sales business was charged with failing to use a signaller after an accident which occurred in its parking lot. One employee was seriously injured when another employee backed a truck over him.
Although Sheehan’s was acquitted at trial before a Justice of the Peace, the Crown succeeded in its appeal to the Ontario Court of Justice, who entered a conviction. The Court of Appeal for Ontario restored the trial decision, finding that the signaller obligation under s. 56 does not extend to vehicles that are not used to “handle materials”.
In interpreting s. 56, the Court of Appeal recognized that the OHSA has to be interpreted broadly to protect workers. However, it also held that this is not the only consideration at play. It noted that the OHSA seeks to achieve “a reasonable level of protection” for workers but does not “seek to achieve the impossible – entirely risk-free work environments”. Further, general principles of statutory interpretation required considering the words of s. 56 in their entire context and in line with their grammatical and ordinary sense. Having this interpretive approach in mind, the Court of Appeal held that in determining the types of vehicle to which s. 56 applied, consideration had to be given to the words “similar material handling equipment”, which suggest that s. 56 only applies to vehicles that fall within the general class of “material handling equipment”.
For the Court of Appeal, if a broader view of the obligation were adopted, “the signaller requirement under s. 56 would apply to passenger cars operated in reverse in such everyday locations as shopping centres and plazas or many office building parking lots, so long as the driver’s view is even partially obscured.” In the Court of Appeal’s opinion, “ this expansive view of the scope of s. 56 would impose a signaller requirement in circumstances far beyond those that are reasonably necessary to protect workers from safety hazards in industrial settings.”
The Court of Appeal clarified that:
“material handling” in the context of industrial establishments usually: (1) is undertaken in an interior or enclosed setting, such as a factory or plant; (2) extends over short distances; and (3) forms part of a broader industrial process involving the movement of materials or products for such purposes as supply, manufacturing, installation, warehousing, shipment and sale.
These characteristics did not apply to the Sheehan truck involved in the accident. The intended purpose of the truck unit was to transport goods and materials on public highways, in exterior settings over potentially considerable distances.
In restoring the trial decision, the Court of Appeal also awarded to Sheehan’s $18,000 as costs against the Crown. Because the issues on appeal raised matters of general public interest and importance, Sheehan succeed at trial and ultimately on appeal, and the amount of costs sought was reasonable, the Court of Appeal held that costs were appropriate in this case.