OH&S Legal Update: Coroner’s request recommends new restrictions for cellphones at construction projects

A recent coroner’s request has addressed the important issue of the hazard of cellphone use at construction projects in Ontario.

We have been involved in numerous workplace investigations and prosecutions where a workplace injury or fatality was linked to the inappropriate or dangerous use of cellphones.

This latest case where a coroner’s jury made some very direct recommendations is calling for changes in the law.

The Coroner’s Act of Ontario requires there to be a mandatory inquest for all construction industry fatalities.

The facts, in brief, involved a roadbuilding project in southern Ontario. As the mobile equipment was reversing at a work site, a supervisor who was using his cellphone was struck by the reversing equipment and was fatally injured.

The employer, the union of the workers, the region who owned the project and the Ministry of Labor, Immigration, Training and Skills Development sought a received standing to participate in the request. The request is not a fault-finding proceeding, like a prosecution under the Occupational Health and Safety Act (OHSA).

Rather, it is an opportunity for the presiding coroner and a jury of six citizens to receive evidence and then make determinations and recommendations with a view to preventing a similar fatality in the future.

Currently and surprisingly, there are no restrictions, restrictions or even guidance from the ministry on the use of cellphones in construction projects.

When the OHSA and the Construction Regulations, SO 213/91 were comprehensively updated, many years ago, cellphones were in stages of development and use. Now, cellphones are ubiquitous and no one leaves home without them.

The coroner’s jury recommendations, dated July 27, 2022, made four recommendations to the ministry to amend the construction regulations relating to the issue of cellphones at construction projects.

The recommendations were as follows:

“a. Construction projects should be planned and organized so that no cellular phones or similar cellular devices shall be used on the work site except in cases of emergency or where use is restricted to occur inside of a designated structure, stationary vehicle, or other designated area away from any areas in which construction work is occurring or ongoing;

b. constructors, employers and supervisors shall ensure that workers are not endangered by cellphone use on construction projects;

c. employers shall create and implement a policy on the appropriate use of cellphones and mobile devices at construction projects that includes methods for complying with a) and b) above; and

d. employers shall ensure that workers are trained on the cellphone policy.”

The coroner jury’s recommendations are not legally binding on the ministry.

They do not have the force of law or the authority to compel legal changes.

However, it may be argued that the duty may already exist for employers under section 25(2)(h), the general duty clause, that states, “An employer shall…take every reasonable precaution in the circumstances for the protection of a worker .”

However, the jury determined that specific regulatory requirements for the construction industry, with its myriad of hazards, was a change that was necessary.

Highway traffic legislation in every Canadian jurisdiction, including Ontario, prohibits the use of cellphones and similar devices while driving.

They are a distraction and serious impairment to safe driving or motor vehicles.

Similarly, in construction projects, the parties with statutory duties including constructors, employers, supervisors and even workers are all responsible for addressing the dangerous distraction that cellphones pose to worker safety.

The proposed amendments to the construction regulations may have considerable impact on employers in the construction industry.

At a practical level, policies would need to be reviewed and updated to ensure they are compliant with changes to the regulations. Employees must also be trained on the new rules regarding cellphones, otherwise a lack of training would pose a safety risk and a violation of the regulations.

Employers will be required to be strict and consistent in encouraging changes, or risk penalties, fines or prosecution from the ministry.

No matter the direction the ministry takes with respect to the timely jury recommendations on updating the cellular devices and the regulation, employers may wish to treat them as a best practice for their work in the construction industry.

The goal of all workplace employers must include the health and safety of their workers.

Therefore, if employers take steps now to either prohibit or at least control and restrict the use of cellphones at a construction site, they will make significant progress in reducing the safety risk experienced by workers.

Further, and finally, constructors, employers and supervisors will reduce legal exposure and potential legal liability if a worker fails to follow the cellphone policy.

If you have any questions regarding coroners’ requests, ministry orders, legal enforcement proceedings or cellphone policies, contact Norm Keith at 416-476-2002 or [email protected].

Keith is a law partner and leading Canadian employment and safety lawyer and Eren Erinc is an associate management side employment and labor lawyer, both with KPMG Law LLP and work out of the Toronto office. Send comments or column ideas to [email protected].

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