Are You Protected in the Workplace?

health and safety

health and safety

Over the past decade, several provinces have installed legislation requiring private employers to address issues of employee safety in circumstances in which they work alone. This “work alone” legislation compels employers to put safety precautions and procedures in place where or when employees are working alone. The similar legislation does not exist in Ontario. However, despite there being no legislation compelling employers to take steps to protect employees from potential harm while working alone, there is a common law duty of care imposed on employers to take reasonable steps to protect employees’ safety and ensure that they are safe from violence or injury in the workplace.

Under the common law, there is a special relationship between the employer and employee. This relationship imposes a duty of care on the employer not to put the employee in a position where he or she may be injured while in the workplace. The principle of tort requires that, where there is a duty of care owed by one party to another, all reasonable steps be taken to ensure that the duty of care be met. The standard of care is established on an objective basis. If reasonable steps are not taken by the party owing the duty of care, and there is injury to the party that is owed the duty of care, then there is a breach of the duty that can give rise to liability for damages. Depending on the severity of the injuries suffered by an employee, if something happens, particularly when the employer could have taken reasonable steps to implement practices or improvements to the workplace that would prevent such injuries, the employer could be liable to pay significant damages. A plaintiff’s lawyer could also seek punitive damages against the employer if it is thought that the employer was particularly careless or callous about ensuring the employee’s safety.

In addition to the potential for liability to an employee in tort, there is an area for additional concern to employers and, in the case of corporations, to the officers, directors, supervisors, and managers that may have any ability to direct the employee and have direction on the workplace. In response to public concern respecting worker safety, the federal government introduced Bill C-45 sometime in or around 2004 to amend the Criminal Code to include criminal sanctions against corporations and their officers, directors, managers, and supervisors when an employee suffers injury or harm on the job. Criminal liability may be imposed if it is determined that the employer or its responsible agents failed to comply with the legal duty to take reasonable steps to prevent the harm. The specific section of the Criminal Code is found in Part VIII of the Code and is as follows:

Duty of persons directing work

217.1 Every one who undertakes, or has the authority, to direct how another person does work or performs a task is under a legal duty to take reasonable steps to prevent bodily harm to that person, or any other person, arising from that work or task.

  • 2003, c. 21, s. 3.

To sum up, while there is no express legislation in Ontario requiring employers to prevent or eliminate situations where an employee may be in the workplace on his or her own, it is prudent that these situations be minimized or eliminated in order to ensure employee safety and to eliminate the potential for significant liability to the employer, both civilly and criminally. Employers should consider and evaluate the safety of the workplace for its employees. If there are any conditions that could give rise to safety concerns, and if there is any foreseeability of injury to an employee, the employer should take steps to protect against this happening. Without incurring any undue hardship, it would be justifiable to ensure that there are at least two employees in the workplace at any time. Undue hardship is based upon an objective standard but could best be determined by asking if the accommodation is “reasonable” and does not incur so much expense to the employer as to make it disproportionate to the benefit received by the employees. In the event that a second employee would not be reasonable, it would be prudent to ensure that emergency procedures are put in place to keep employees safe from harm. The risk of large damage awards and/or criminal charges following a preventable injury to an employee outweighs the initial cost of assessing and implementing safety procedures.

Darren Smith

Darren Smith heads up Civil Litigation at Hummingbird Lawyers. With over 12 years of practice and appearances at all levels of court in Ontario, Darren has extensive knowledge of commercial and civil law.

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