The Ontario Court of Justice has clarified the rules over the role of a signaller directing vehicles on construction projects.
The March decision by Justice C.M. Harpur in Barrie, Ont. dismisses a Ministry of Labour (MOL) attempt to force contractors to have a separate, full-time, paid signaller at all projects in Ontario.
“This is good news for construction companies in Ontario because the MOL was saying you had to have a full-time signal person regardless of how much traffic you had,” says Toronto lawyer Norm Keith, a partner at Fasken Martineau and a specialist in labour law and workplace safety, representing Trisan Construction in the case. “So, if you had just a couple of trucks a day coming in and out you’d have to have a full-time person sitting around most of the day. Now the rules are clear, you must have a designated signal person but they can have other duties while they are not engaged in signalling.”
Keith says the ruling is the latest in a lengthy battle arising from the tragic death of a worker who was crushed by a dump truck backing up in the Vaughan yard of Trisan Construction on Sept. 10, 2012.
Newly qualified dump truck driver Wahhab Tariq backed up his vehicle without checking for the signaller. As a result, Kevin Campbell, 72, was crushed against the side of a bulldozer. Campbell was a bulldozer operator and part-time signaller.
“Part of the evidence was that the signaller, who was also the bulldozer operator, had been smoking marijuana, but that was clearly contrary to the company’s policies,” says Keith. “The Ministry of Labour charged the company, Trisan, because it happened in their yard. The driver, Tariq didn’t work for Trisan.”
One of the four charges laid was thrown out at the outset and the other three — failing to ensure a signaller was competent and not performing other work; ensuring the signaller was clear of the intended path of travel for the vehicle; and ensuring a signaller was in full view of the operator of a vehicle — were also ultimately dismissed.
“The Ministry of Labour took the view that the company was responsible for everything that happened in their yard,” says Keith. “But the company could not have foreseen what happened.”
Last year at the initial trial, Barrie Justice of the Peace (JP) Gerry Solursh found Trisan had established clear procedures. He also found the truck Tariq was driving was unsafe and unfit to be in the road and that the driver did not use his mirrors properly. Further, if he’d followed the path as instructed, he wouldn’t have crushed Campbell and was responsible for the incident even though he wasn’t charged, the justice ruled.
The MOL appealed to the Ontario Court of Justice saying the JP erred in interpreting Section 106(1) of the Ontario Health and Safety Act which they argued required a full-time dedicated signal person. Having a bulldozer operator break away from his regular duties and act as a signaller was not permitted, the MOL argued.
However, the court held that having a part-time signaller was standard industry practice if there was no continuous traffic, says Keith.
There is now clarity going forward, he adds, and while it’s been a long road for his client who has had to jump over a series of hurdles, the matter is settled across the province.
“There are a lot of contractors and construction sites who will feel a burden lifted,” he says, noting because the judge was acting in an appellate role and the MOL is not appealing, the ruling sets a precedent. “If the MOL interpretation had stood it would have been be very expensive going forward.”