Charles Charron

The appellants, an employer and a supervisor, appealed their convictions under the Occupational Health and Safety Act after a worker was seriously injured by a wood splinter ejected from an industrial saw.

The trial judge had convicted them, finding they failed to exercise due diligence because there was 'no evidence' of a system to regularly check and clean the saw's anti-kickback fingers.

The appeal court found this conclusion was unreasonable as it contradicted the uncontradicted and unrejected testimony of a worker who detailed his daily cleaning and maintenance routine.

The appeal was allowed and acquittals were entered for both appellants.

The Crown prosecuted Alpa Lumber Mills Inc. and its supervisor Van Kham Sichantha for failing to ensure that a rip saw machine (Rip Saw #1) was properly shielded or guarded to prevent product or material being processed from endangering worker safety, contrary to sections 25(1)(c) and 27(1)(a) of the Occupational Health and Safety Act and section 26 of Ontario Regulation 851/90.

A worker was injured when a wooden stake was ejected from the machine at high velocity and pierced his arm.

The defendants argued they had taken all reasonable care by relying on the machine's built-in safety features, regular maintenance, and worker training.

The court found both defendants guilty, holding that the hazard of ejected material was reasonably foreseeable based on the manufacturer's own warnings, and that the defendants failed to take all reasonable steps including obtaining and reviewing the correct operating manual, implementing regular inspection of anti-kickback mechanisms, and ensuring workers did not stand in front of the infeed opening.