When the Ministry of Labour lays charges following a workplace accident for violations of the Occupational Health and Safety Act (“OHSA”) or associated regulations, one of the common defences we hear is that the employee or the injured party was at least partially at fault for the accident.

However, the Ontario Court of Appeal in the 2007 decision in R. v. Dofasco effectively eliminated this defence:

[21] Dofasco’s third argument is that an employer cannot be held liable… where an employee is injured as the result of his and a co-worker’s deliberate conduct in failing to follow company procedures and protocols. Dofasco emphasizes the statement by the injured worker to his co-worker to the effect that “to hell with it lets [sic] do it the way we used to” to place the blame for the accident squarely on the shoulders of the injured worker. The justice of the peace adopted this view. We cannot accede to this position. It is contrary to the scheme of the OHSA and the Regulations. In our view, it is also at odds with the relevant jurisprudence and common sense.

[22] On a plain reading of the Regulation, employee misconduct does not go to the actus reus of the offence. Rather, at least in relation to employees carrying out their work, an employer is strictly liable if it fails to comply with its obligations and there is no suggestion that employee misconduct constitutes any form of defence.

The Court went on to make the following points:

•  OHSA is meant to protect both prudent workers and workers who “make mistakes, are careless, or are even reckless”

•  OHSA is meant to protect workers from injuring themselves from both inadvertent and deliberate acts which include any acts done in furtherance of productivity in the work undertaken for the employer

In another 2007 decision Ontario (Ministry of Labour) v. Bruno’s Contracting (Thunder Bay) Limited that considered R. v. Dofasco, Justice Pelletier stated that the liability of the employee is a matter that “goes to sentencing [of the employer] and not the issue of guilt [of the employer]”

There might still be limited circumstances where the acts of a “rogue employee” would be considered in mounting a defence, but the Ontario Court of Appeal has certainly set a very high standard to meet in order to mount a defence that blames the victim.