An Ontario court has dismissed two charges under the Occupational Health and Safety Act against a tourist resort after the Ministry of Labour failed to prove its case.
The charges followed an incident in 2012 in which a boat operated by an employee of the resort suddenly veered to the right and crashed into a rocky shoreline. Two passengers in the boat, who were guests at the resort out on the lake for fishing, died as a result of the impact.
The MOL charged the resort with failing to maintain a “steering friction adjuster” ?on the outboard motor (which limited the ability of the motor to swing to one side, causing the boat to turn sharply) and failing to ensure that an “engine shut-off lanyard” was “used as prescribed”. The lanyard, if tethered to the operator of the boat, would shut off the engine if the operator moves to far away from the motor, such as being thrown from the boat.
On the first charge, the court held that other than the fact that there was no resistance on the steering friction adjuster, there was no evidence that this condition was the result of a failure to maintain the motor. ?In particular, a boat mechanic who examined the motor after the accident was unable to open and examine the steering friction adjuster because of the direction that he understood he had received from the police. As such, the prosecutor has not proven that the lodge failed to maintain the steering friction adjuster.
With respect to the second charge, the court held that “prescribed” meant prescribed by a regulation under the OHSA. The MOL inspector admitted at trial, though, that there was no regulation dealing with the use of a tether strap as a protective device. “Prescribed” ?did not refer to any requirement in the manual provided by the manufacturer. As such, the second charge was also dismissed.
This case demonstrates the importance of obtaining a careful legal assessment of OHSA charges before deciding whether to defend or plead guilty. Charges that appear, on their face, to be impossible to defend can sometimes be beaten because the evidence does not support a conviction on the strict wording of the charge.
R. v. Ash Rapids Camps Inc., 2015 ONCJ 648 (CanLII)