Health and safety regulations are a critical part of any workplace, especially those involving the use of heavy machinery or other dangerous equipment. Ontario’s Construction Projects Regulation requires that any workplace where heavy machinery is used must employ signalers, who signal the operators of large vehicles so they don’t strike anything or anyone. While the law has been consistent in establishing that a signaler may only do the work of a signaler while signaling, the Ontario Court of Justice recently had to determine whether a signaler could perform other duties before or after their signaling duties had started or concluded.

A tragic accident

The case stemmed from a tragic accident at the worksite of the employer. On September 10, 2012, a signaler at a the employer’s workplace was also responsible for operating a bulldozer. On this day, a dump trunk entered the yard and it was the signaler’s job to signal the dump truck as it reversed to empty its load. The signaler got out of his bulldozer when the dump truck entered the year and began to signal it. The dump truck was supposed to reverse and turn left, but failed to do so, instead backing up in the direction of the signaler, who was standing on the track of the bulldozer. He was pinned between the two vehicles and succumbed to his injuries. The issue at trial was whether the employer had an obligation to ensure the signaler had no duties outside of his signaling duties, and whether the employer took all reasonable precautions to ensure the driver would have a signaler to properly assist him in backing up his truck.

The employer’s submission

The employer argued it had created, distributed, and monitored a safety policy that included proper signaling as required by the Regulation. The employer submitted the accident occurred because the driver of the truck failed to wait for the signaler to get into a position to properly signal. They claim there was no way to foresee the accident, which occurred under exceptional circumstances. The crown, meanwhile, took the position that the proper interpretation of the Regulation requires the use of a dedicated signaler, one that does not alternate between signaling and other tasks. Failing that, the crown submitted the employer did not sufficiently create, disseminate, or monitor its safety policy since the signaler failed to completely relinquish himself from his role as a bulldozer operator.

Testimony at trial

The signaler’s manager on the day of the accident testified that that the procedure for a driver arriving at the dump was to wait for a signaler to give them directions on where to dump. Typically the bulldozer driver would also serve as the signaler, and there were not usually any other employees in the dumping area other than the bulldozer driver/signaler and the dump truck driver. He also testified that he emphasized the importance of using signalers during a talk with employees every Monday morning. Finally, he testified that the signaler was experienced and did the job on a regular basis. Another employee testified he would occasionally act as a bulldozer driver/signaler, and that sometimes there would be an increase in the number of trucks at the yard, which would require a dedicated signaler and bulldozer driver. He testified that when doing the work of a signaler, he would not perform any duties associated with other roles. It was the dump truck driver’s second time driving a dump truck into the yard on the day of the accident, having only had his dump truck license since that summer. He testified the signaler had been at the top of the pile he was dumping on, sitting in his bulldozer, when he began reversing and that he didn’t see the signaler drive down the hill, where he was eventually hit. The employer’s health and safety coordinator testified that the company’s “Employee Handbook” contained a section for the safe operating procedure of heavy equipment and vehicles, which said “Look before you reverse equipment or trucks; use a signaler at all times.  Make sure all workers are clear of the machine before moving.  Use horns signals prior to backing up.” She testified that a worker acting as a signaler could not perform any other duties at the same time.

The court’s analysis

After taking into account the various testimony of witnesses, the court determined that the signaler had not followed the employer’s safety protocol for performing that role, and that the signaler “gestured impatiently to (the dump truck driver) to begin backing up.” The signaler failed to put himself into a position for the dump truck driver to keep him in view. The court also found that his failure to do so occurred despite the employer’s due diligence rather than because of a lack of due diligence. It was the court’s determination that the employer’s policy of requiring signalers to perform no other tasks when signaling was sufficient, and that the signaler’s exemplary history in that role indicated the company did perform due diligence.  As a result the employer was acquitted of the charges. At NULaw, we work with both employees and employers in matters of employment law. We can assist employers in ensuring they act within the terms of their contracts and the law when establishing work terms. If you’re an employee or employer with an employment law issue, please call us at 416-481-5604 or reach us online to schedule a consultation today.  

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