R v Cobra Float Services Inc., 2017 ONCJ 388

minicounsel

(Central West Region)

Date: June 8, 2017

Between:

COBRA FLOAT SERVICES INC. (Defendant/Applicant)

And

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (Ministry of Labour) (Prosecution/Respondent)

Motion for Non-Suit

Written Decision filed with the Court and Distributed

June 8, 2017

G. Manno Justice of the Peace in and for Ontario

Counsel

Ministry of the Attorney General (Ontario) — Cobra Float Services Inc. Ministry of Labour — Battiston & Associates

For the Prosecution:

Mr. W. Wilson
Ms. C. Glaister

For the Defendant:

E. J. Battiston

Charges Before the Court

That on or about the 25th day of May, 2013, at Brampton, Peel Region, Cobra Float Services Inc. (hereinafter referred to as "the Defendant" and/or "the Applicant on this Motion") failed as an employer to ensure that the measures and procedures prescribed by Section 37(1) of Ontario Regulation 213/91 were carried out in a workplace located at or near James Potter Road, west of Creditview Road in Brampton, contrary to Section 25(1)(c) of the Occupational Health and Safety Act (OHSA), R.S.O. 1990, c.O.1., as amended.

Particulars: A curb machine was moved at a project in a manner that endangered a worker. A worker by the name of Luis Pinto was killed.

This charge is articulated in a valid Part III Information # 00647, sworn on May 23, 2014.

Background and Agreed Statement of Facts

Luis Pinto was a transport driver employed by Cobra Float Service Inc. He was a "worker" as defined in the Occupational Health and Safety Act (OHSA). Cobra Float Service Inc. (Cobra) was an "employer" as defined in that Act.
On May 25, 2013, Mr. Pinto was transporting a "curb machine" to a residential development near James Potter Road, west of Creditview Road in Brampton. The development involved the construction of approximately 135 detached and semi-detached homes, with associated infrastructure. Curb machines are employed to make the concrete curbs that one normally sees on either side of the subdivision streets. This development was a "project" as defined in the OHSA, and so the provisions of the Construction Regulation (O. Reg. 213/91) were applicable on the date of the alleged offence.
The curb machine was being transported on a "float" trailer. At the site, Mr. Pinto placed himself in the operator's compartment to drive the machine. While off-loading the machine from the trailer, the machine overturned, crushing Mr. Pinto underneath. No one witnessed the incident. Workers at the site unsuccessfully attempted to rescue him using two forklifts.
Mr. Pinto was eventually extricated from beneath the machine using inflatable airbags. He was airlifted to St. Michael's Hospital where he underwent surgeries and treatment, succumbing to his injuries some eight hours after the incident. The cause of death was crush injuries to the torso.

Court Appearances

The alleged offence occurred on or about May 25th, 2013. A Part III Information (#00647) charging the Defendant/Applicant with this offence was sworn and filed with the Court on May 23, 2014 under the OHSA section 25(1)(c).
This is a strict liability offence under the Provincial Offences Act.
The first court appearance was on July 8th, 2014, with Mr. E. Battiston as Counsel, appearing on behalf of the Defendant. The Prosecution or Respondent was represented by Mr. W. Wilson and later, Ms. C. Glaister (also hereinafter referred to as the Prosecutor or Crown or Respondent).
A Judicial Pre-Trial (JPT) was held on July 28th, 2015 and continued on September 28, 2015.
On October 6, 2015, the matter was set for a five (5) day trial with a confirmation date set for June 7, 2016. That date confirmed that the parties were ready for trial on October 12, 2016.
During the course of this trial, a voir dire was held to qualify the opinions of Mr. Medhat Abskhoroun, a Ministry of Labour (MOL) engineer and Prosecutorial witness, as expert testimony.
The court ruled that the MOL engineer mentioned above was qualified to give expert testimony and his Curriculum Vitae and Engineer's Report, Exhibits 1 and 2, respectively to the voir dire were included into the Trial as Exhibits 19 and 20. The decision articulating such reasons were conveyed to the Parties on October 13, 2016, the second day of the Trial. (see Transcript October 13, 2016 pg. 11, and following)
On October 19, 2016, at the close of the Prosecution's case and the third full day of trial, the Defence/Applicant tabled a motion for non-suit with oral argument. The Court requested written factums from both the Applicant and Respondent. On January 20th, 2017, the Applicant provided their reasons. The Respondent required more time to submit their written reasons and reasonably requested a transcript to assist with their response to the Applicant's motion. I provided a deadline of May 1st, 2017 for the parties to file their motion and response. Mr. Wilson, the lead Prosecutor for the MOL on this matter has since been on medical leave and Ms. Glaister has assumed his responsibilities. The May 1st, 2017 deadline came and went but the Court was not yet in receipt of that factum from the Prosecution who indicated at that point that the transcript to the trial was not yet available. In any event, the Respondent's position was provided to the Applicant on May 23, 2017 and filed with the Court on May 29th, 2017.
Under the circumstances the Court would normally require additional time to review the factums and the case authorities provided. However, in the interests of justice a further delay would not be desired by any of the parties. The Court adjusted its schedule to complete and provide reasons, despite the late arrival of both the transcript and the Prosecutorial factum.
In this decision the Court has limited itself to the evaluation of the Defence's non-suit Motion and, of course, the Respondent's submissions with respect to that Motion.

Exhibit List

Exhibit 1: Agreed Statement of Facts
Exhibit 2: Medical Certificate of Death
Exhibit 3: Corporate Profile Report
Exhibit 4: Various photographs of the job site taken by MOL inspector
Exhibit 5: DVD copy of the CCTV footage/video of Mr. Pinto Flatbed truck transporting curb machine to job site
Exhibit 6: Extensive handwritten notes showing Pinto delivery and pick-up dates
Exhibit 7: Certificate – notice of project # 12E113976
Exhibit 8: Form 1000
Exhibit 9: Cobra Float Safety Policy manual
Exhibit 10: MOL – Notice of Accident
Exhibit 11: Form 7 – Employment Report of Injury
Exhibit 12: Domson Engineering Report
Exhibit 13: Curb Machine Owners Manual
Exhibit 14: Cobra – OHSA Policy
Exhibit 15: Cobra transporting and unloading procedures
Exhibit 16: Schematic of flat bed trailer
Exhibit 17: Cobra Trailer Schedule
Exhibit 18: Cobra Trailer Log
Exhibit 19: C.V. of Medhat Absknaroun (also exhibit 1 of voir dire)
Exhibit 20: Engineer's Report (also exhibit 2 of voir dire)

Case Law, Statutes and Authored Materials Considered

Common Law

R v Arcuri, 2001 SCC 5, [2001] 2 S.C.R. 828
R v Timminco Ltd., 2001 CanLII 3494 (ON CA), [2001] O.J. No. 1443 (C.A.)
Ontario (Ministry of Labour) v Enbridge Gas Distribution Inc., 2010 ONSC 2013, [2010] O.J. No. 1504 (S.C.J.)
R v Magna Closures Inc., 2017 ONCJ, [2017] O.J. No. 2055 (O.C.J.)
R v Seeley & Arnill Aggregates Ltd., 1993 CanLII, [1993] O.J. No. 443 S.C.J. (Gen. Div.)
Ontario (Ministry of Labour) v Cox Construction Ltd., 2009 ONCJ 695
R v Sault Ste. Marie (City), 1978 CanLII 11 (SCC), 40 C.C.C. (2d) 353, [1978] 2 S.C.R. 1299
R v Titus, 1983 SCC, [1983] S.C.J. No. 20, [1983] S.C.R. 259, 2 C.C.C. (2d) 32
R v Rowbotham, 1994 CanLII 93 (SCC), [1994] S.C.J. No. 61, [1994] 2 S.C.R. 463, 90 C.C.C. (3d) 449
R v Morabito, 1949 CanLII 1 (SCC), [1949] S.C.R. 172, 93 C.C.C. 251
Ontario (Ministry of Labour) v. Hamilton (City), 2002 CanLII 16893 (ON CA), [2002] OJ No. 283 (C.A.)
R v Inco, 2006 CanLII 14962 (ON SC), [2006] O.J. No. 1809 O.S.C.
R v Robert Transport (1973) Lte., 2002 CanLII, [2002] O.J. 3286
R v Mohan, 1994 CanLII 80, [1994] 2 SCR 9
R v Live Nation Canada Inc., 2016 ONCJ 223
White Burgess Langille Inman v Abbott & Haliburton Co., 2015 SCC 23
U.S.A. v Sheppard, 1976 CanLII 8 (SCC), 30 C.C.C. (2d) 424 (S.C.C.)
R v Charemski, 1998 CanLII 819 (SCC), 123 C.C.C. (3d) 225 (S.C.C.)
R v Cory, 2004 ONCJ, [2004] O.J. No. 6064 (O.C.J.)
R v Herzog, 2008 ONCJ 72, [2008] O.J. No. 757 (O.C.J.)
R v Fournier, 2016 QCCS 5456
Ontario (Ministry of Labour) v Dofasco Inc., 2007 ONCA 769, [2007] O.J. No. 4339 (O.C.A.)
R v Prince Metal Products Ltd., 2011 ONCJ, [2011] O.J. No. 6450 (O.C.J.)

Statutes and Regulations

Authored Materials

Libman, R., Libman on Regulatory Offences in Canada, (Saltspring Island, B.C.: Earlscourt Legal Press, c.2002)
Sandler, M.J., Liability of Officers and Directors, Presentation at Federation of Law Societies National Criminal Law Program, St. John's Nfld., July 2010, Section 0.1
Archibald, T., K. Jull, K. Roach, Regulatory and Corporate Liability; from Due Diligence to Risk Management, 2007 Edition, (Toronto: Canada Law Book)

Authorities Cited by the Prosecution (Respondent)

R.v.Timminco Ltd., 2001 CanLII 3494 (ON CA), [2001]OJNo.1443(C.A.)
Ontario (Ministry of Labour) v. Hamilton (City), 2002 CanLII 16893 (ON CA), [2002] OJ No. 283 (C.A.)
R. v. Prince Metal Products Ltd, 2011 ONCJ, [2011] OJ No. 6450 (O.C.J.)
Ontario (Ministry of Labour) v. Enbridge Gas Distribution Inc., 2010 ONSC 2013, [2010] OJ No.1504 (S.C.J.), leave to appeal refused 2011 ONCA 13, [2011] OJ No. 24 (C.A.)
R. v. Wyssen, 1992 CanLII 7598 (ON CA), [1992] O.J. No. 1917 (C.A.)
Ontario (Ministry of Labour) v. Dofasco Inc., 2007 ONCA 769, [2007] OJ No.4339 (C.A.), leave to appeal refused [2008] S.C.C.A. No. 24
R.v.Magna Closures Inc., 2017 ONCJ, [2017] O J No.2055 (O.C.J.)
R.v.Seeley & Arnill Aggregates Ltd., 1993 CanLII, [1993] O J No.443 (Gen.Div.)
Ontario (Ministry of Labour) v. Cox Construction Ltd., 2009 ONCJ 695

Relevant Legislative Provisions

Occupational Health and Safety Act, R.S.O. 1990, c. O.1

O. Reg. 213/91: CONSTRUCTION PROJECTS

Section 37(1): Material or equipment at a project shall be stored and moved in a manner that does not endanger a worker.

Section 37(2): No material or equipment to be moved by a crane or similar hoisting device shall be stored under or in close proximity to an energized outdoor overhead electrical conductor.

Duties of Employers

Section 25(1): An employer shall ensure that:

(a) the equipment, materials and protective devices as prescribed are provided;

(b) the equipment, materials and protective devices provided by the employer are maintained in good condition;

(d) the equipment, materials and protective devices provided by the employer are used as prescribed; and

(e) a building, structure, or any part thereof, or any other part of a workplace, whether temporary or permanent, is capable of supporting any loads that may be applied to it,

(i) as determined by the applicable design requirements established under the version of the Building Code that was in force at the time of its construction,
(ii) in accordance with such other requirements as may be prescribed, or
(iii) in accordance with good engineering practice, if subclauses (i) and (ii) do not apply.

Section 25(2): Without limiting the strict duty imposed by subsection (1), an employer shall:

(a) provide information, instruction and supervision to a worker to protect the health or safety of the worker;

(b) in a medical emergency for the purpose of diagnosis or treatment, provide, upon request, information in the possession of the employer, including confidential business information, to a legally qualified medical practitioner and to such other persons as may be prescribed;

(d) acquaint a worker or a person in authority over a worker with any hazard in the work and in the handling, storage, use, disposal and transport of any article, device, equipment or a biological, chemical or physical agent;

(e) afford assistance and co-operation to a committee and a health and safety representative in the carrying out by the committee and the health and safety representative of any of their functions;

(f) only employ in or about a workplace a person over such age as may be prescribed;

(g) not knowingly permit a person who is under such age as may be prescribed to be in or about a workplace;

(h) take every precaution reasonable in the circumstances for the protection of a worker;

(i) post, in the workplace, a copy of this Act and any explanatory material prepared by the Ministry, both in English and the majority language of the workplace, outlining the rights, responsibilities and duties of workers;

(j) prepare and review at least annually a written occupational health and safety policy and develop and maintain a program to implement that policy;

(k) post at a conspicuous location in the workplace a copy of the occupational health and safety policy;

(l) provide to the committee or to a health and safety representative the results of a report respecting occupational health and safety that is in the employer's possession and, if that report is in writing, a copy of the portions of the report that concern occupational health and safety; and

(m) advise workers of the results of a report referred to in clause (l) and, if the report is in writing, make available to them on request copies of the portions of the report that concern occupational health and safety.

Section 25(3): For the purposes of clause (2)(c), an employer may appoint himself or herself as a supervisor where the employer is a competent person.

Section 25(3.1): Any explanatory material referred to under clause (2)(i) may be published as part of the poster required under section 2 of the Employment Standards Act, 2000.

Section 25(4): Clause (2)(j) does not apply with respect to a workplace at which five or fewer workers are regularly employed.

Defence Submissions - Motion for Non-Suit (Applicant)

The OHSA and regulations constitute a public welfare statute designed to promote internal responsibility for safety to be shared by constructors, employers, supervisors and workers alike. In the case R. v. Timminco Limited, (2001), 2001 CanLII 3494 (ON CA), 153 C.C.C (3d) 521, a decision of the Ontario Court of Appeal, at Paragraph 528, the court stated, "The Occupational Health and Safety Act is a public welfare statute. The broad purpose of the statute is to maintain and promote a reasonable level of protection and safety of workers in and about their workplace. It should be interpreted in a manner consistent with its broad purpose."
OHSA offences are ones of strict liability.
The case of R. v. City of Sault Ste. Marie (City) (1978), was quoted in R.v. Timminco Ltd. at Paragraph 54: "The actual definition of the defence is found in the judgment of Dickson J. at page 374: The defence will be available (1) if the accused reasonably believed in a mistaken set of facts which if true would render the act or omission innocent, or (2) if he took all reasonable steps to avoid the particular event."
The Crown must prove the actus reus beyond a reasonable doubt on the charge before Defence is called upon to establish due diligence on a balance of probabilities.
Counsel submits that the Crown has failed to prove each of the essential elements of the charge against Cobra Float beyond a reasonable doubt. In other words, the actus reus of the alleged offence has not been proven beyond a reasonable doubt.
Cobra Float is charged with, "Failing, as an employer to ensure that the measures and procedures prescribed in section 37(1) of Ontario Regulation 213/91 were carried out in a workplace located at or near James Potter Road, West of Credit View Road, Brampton, contrary to s.25 (1)(c) of the OHSA as amended. Particulars: the curb machine was moved at a project in a manner that endangered a worker. A worker, Luis Pinto, was killed contrary to the Occupational Health and Safety Act s.25(1)(c)".
Ontario Regulation 213/91 at s.37 (1) provides that "equipment at a project shall be stored and moved in a manner that does not endanger a worker".
S.25 (1) (c) of the OHSA provides that an employer shall ensure that the measures and procedures prescribed are carried out in the workplace.
The charge against Cobra Float as particularized requires that the Crown adduce evidence of the endangerment that is alleged with respect to Luis Pinto's movement of the curb machine on May 25, 2013.
It is submitted that the Crown has failed to adduce evidence of acts or omissions on the part of Cobra Float that would provide such evidence.
There is no evidence of any one actually having witnessed the movement of the curb machine in order to be able to explain how it tipped over onto Luis Pinto.
By way of summary, the Crown has failed to prove the actus reus beyond a reasonable doubt. Therefore, it is not incumbent upon the Defendant to mount a defence of due diligence.

Evidence of Crown Witness Karim Kassam, Inspector for the Ministry of Labour

Mr. Kassam confirmed there were no witnesses to the incident on May 25, 2013. He himself had only seen the curb machine moved on one occasion.
Under cross-examination he stated he had no prior experience inspecting the subject tractor-trailer and float. He was asked whether the Kenworth Tractor and JC Trailer were suitable equipment for the task of loading and unloading equipment such as the curb machine. His response was that if the machine was moved properly, the tractor-trailer was suitable for the task. He indicated he had not witnessed the procedure for the curb machine being loaded onto the trailer.
When Counsel suggested to Mr. Kassam that Mr. Pinto had moved the subject curb machine a total of 27 times – Mr. Kassam stated that this was not within his knowledge. He indicated that during his inspection, he found that the height of the curb machine was in the high position – that is approximately 23 or 24 inches above ground level. As for the levelling controls, which can be either on "auto" or "manual" levelling, he indicated that the switches were set to automatic levelling. He did not investigate the impact of those factors (the elevated height of the machine and the levelling switches set to auto on the movement of the curb machine). When he was asked about the function of the wooden block for loading and unloading, he responded that it served to assist unloading the machine; that he was told by Mr. Vieira, the operator of the curb machine, that the block served as a type of ramp for the off-set wheel which would otherwise go between the ramps of the trailer; that he was told that block was always used for that purpose. He confirmed that the subject trailer had the wooden block available for Mr. Pinto's use; that in his inspection of the scene of the accident, he did not observe the block between the ramps.
In reference to the video of the tractor-trailer and float being driven into the construction site, Mr. Kassam made the observation that the curb machine was in a relatively low position on the float; that he was told by Mr. Vieira that he has it in the low position whenever he loaded or unloaded it. He confirmed that when the curb machine arrived onsite that it was on its lowest setting on the float-trailer.
Under cross-examination, Mr. Kassam stated that he did not have the experience to conjecture regarding the loading and offloading procedures for the curb machine.
He stated that he believed no one tampered with the controls of the curb machine; that the settings on the control panel could have been the result of the actions of Luis Pinto.
He made no inquiry with regard to Mr. Pinto's history of employment. He did not inquire into his prior employers. He made no inquiry as to prior experience in general.
Mr. Kassam agreed with Counsel's suggestion that it was a fair inference that the conditions which he observed on the curb machine - specifically the elevation, the levelling controls being set at "auto levelling" and the missing wooden block for the off set wheel could have been factors that caused or contributed to the tipping of the curb machine.
Under redirect examination by Crown counsel, Mr. Kassam repeated that the subject trailer was designed to transport equipment such as the curb machine; that if it was done in the proper manner, the subject curb machine could have been offloaded without incident.

Evidence of Witness No. 2: Medhat Abskharoun

The Crown presented Mehdat Abskharoun to provide expert evidence to the Court about the issues being litigated. Mr. Abskharoun is a civil and structural engineer - not a mechanical engineer. By reason of his lack of expertise in mechanical engineering, it was submitted that Mr. Abskharoun's evidence should have been accorded little or no probative value.
When cross-examined on his qualifications as an expert, he revealed he was a civil and structural engineer, not a mechanical engineer; that he was not an expert as to the kinetic factors involved in the moving of heavy equipment - in the mechanics of movement of heavy equipment. He admitted that he never witnessed the loading or offloading of a curb machine; that his evidence with regard to the factors at play in the movement of the machine were based upon his post accident observations on the day that he attended to inspect the site.
Mr. Abskharoun had been employed with the MOL since June of 2010. With regard to his objectivity as a witness, that any evidence he had given in a courtroom had been on behalf of his employer, the Ministry. He indicated that he had testified for the Ministry at two previous inquests and for one previous trial. He stated that he had never given any opinions on behalf of a Defendant.
The Defence has challenged the expertise of this witness to give evidence with regard to the design, function and movement of the curb machine. It was submitted by Defence counsel that ultimately, it was up to the Court assess the weight it would give to his evidence.
Under examination in chief, Mr. Abskharoun was uncertain as to when the tire marks appearing on the trailer (see pg. 22 of his report) had been made; they could have been made by the offset tire when Mr. Pinto unloaded the curb machine on the day in question OR these markings could also have been made on some previous unrelated trip(s) at some other job site during the loading/unloading procedure - there was no way to tell.
When asked his opinion as to the adequacy of the trailer, his evidence was that it was not adequate for loading and unloading the curb machine. He answered that it was not adequate for this curb machine and that the solution would have been one ramp across the entire width of the trailer or another ramp for the fourth offset tire. It was submitted that this evidence was contradictory to the evidence given by the inspector Kassam. Furthermore, under cross-examination, Abskharoun indicated that he had only seen such a configuration (one ramp across the entire width of the trailer) on the Internet. For these reasons Counsel argued that his opinion should be accorded little or no weight. His opinion failed to deal with the reality that the ramps were configured as two separate ramps because the trailer needed to connect to the gooseneck connection of the tractor. It was submitted that the Crown had failed to present evidence as to the availability or actual use of the trailer described by Mr. Abskharoun in the workplace.

Evidence of Guery Vieira

In reference to the Curb Machine Owner's Manual (see Exhibit 13), Mr. Vieira acknowledged that when in motion, the machine should not be too high; that it should not exceed one-foot height above ground level otherwise it may tip.
Under cross-examination, he was asked about the leveling control switches of the curb machine. He indicated that the right side leveling switch was always on auto and that it followed "the left side leveler". He indicated that the two switches that control the left side should have been on manual when travelling with the machine and that the auto-leveling would only work on auto if the sensors were installed. He indicated that whenever the machine was in motion, the leveling switches should have been on manual setting. On the occasions when he loaded the machine, he had the left side switches on manual and the right side switch placed in the auto position; that he adjusted the level of the machine to raise it when it went over the ramp. He explained that the sensors were not needed for loading and unloading. He testified that one could not load the machine onto the trailer without the wooden block inserted next to the ramp for the offset wheel.
Mr. Vieira indicated that he actually observed the curb machine being loaded a couple of times felt that he was qualified to load it himself after observing it being loaded a couple times. When asked whether there were any courses available in the workplace for loading and unloading the curb machine, he indicated "no". He indicated that one could only learn how to do it by observing the procedure first hand.
Under redirect by Crown counsel, in regard to the sensors, he indicated that they were only used on the left side; on the right side the leveling controls were always on the auto setting; that during the loading and unloading of the curb machine, the auto leveling controls would have no effect on the leveling of the machine; that one would have to do it manually. He indicated that without the sensors, "the machine did not do anything".
The court observed that Mr. Vieira had no experience offloading the machine.

Significance of Exhibit "12" - Domson Inspection Report dated June 18, 2013

At the end of the testimony of the Crown's witness Mr. Vieira, Mr. Wilson indicated to the Court that he would be addressing the issue relating to Exhibit "12" and whether there would be a need to schedule an examination of an engineer witness in relation to that Certificate.
On day 2 of the trial, Defence counsel objected to the admission of Exhibit "12" (the Domson Inspection Report dated June 18, 2013) for the truth of its contents; that it was hearsay.
At the start of day 3 of trial, the Crown indicated his position with regard to Exhibit "12" - that the Crown does not rely on Exhibit "12" for the truth of its contents; that the report was relied upon solely for the provision of information to the Ministry of Labour. Under the heading marked "Conclusions", the author considered it unlikely that the subject curb machine would endanger a worker… On the basis of that statement, the stop worker order was lifted.
It was the position of the Defence that no inferences could be drawn as to the mechanical condition of the curb machine. The Crown elected to not call the engineer who prepared that report (Exhibit "12") and the Defence had no opportunity to cross-examine or to examine the mechanical condition of the curb machine prior to it being released to its owner, Quatro Construction, following inspection by the Ministry.
The Crown then indicated that it was closing its case, subject to its agreement with the Defence to recall its engineer Abskharoun to comment on the video evidence.

Motion for Non-Suit

The court then asked the Defence if it intended to bring a motion for non-suit. It was noted by the Court that it was in no position to determine the cause of the accident.
Defence counsel proceeded with oral submissions on a motion for non-suit.
In oral submissions, Defence counsel argued the following:

The Crown had failed to tender evidence as to the mechanical fitness of the curb machine. It was questionable as to whether or not there had been a mechanical failure - this has not been addressed by the Crown's case. The testimony of Mr. Vieira with regard to the functioning of leveling switches raised serious doubt as to the impact of the raised level of the machine (23 to 24 inches), the leveling switches being in the auto position, rather than manual. The court and the Defence were left with serious questions raised by the evidence, particularly Mr. Vieira's evidence that removing the sensors on the left side of the curb machine rendered the switches in the auto position inoperable, and Mr. Vieira's evidence that the height of the curb machine should not have exceeded 12 inches when offloading. The evidence demonstrated that the machine was at least 23 inches high when observed during the post-accident inspection.

The court was left in the position to have to speculate on whether these conditions were the result of mechanical failure and/or human error.
For the actus reus to be proven beyond a reasonable doubt, mechanical failure would have had to have been ruled out. The Defendant was the farthest removed from the mechanical condition of the curb machine.
The lack of evidence as to mechanical fitness of the curb machine resulted in the Court not being able to determine the cause of the accident. The court was left to speculate as to the cause of the accident that led to the death of Mr. Pinto. It was not an issue as to what weight to assign such evidence. Rather, this was an issue that should have raised reasonable doubt at the end of the Crown's case because a fundamental element needing to be proven beyond a reasonable doubt, (i.e. the cause of the "accident") was lacking. One could have drawn a reasonable inference from the evidence that mechanical failure in combination with human error was the likely cause of the "accident". It had not been ruled out.
The charge against the Defendant required that the Crown adduce evidence of the worker's endangerment from offloading the curb machine on May 25, 2013.
At the conclusion of the Crown's case there was reasonable doubt with regard to the cause of the incident. As stated above, the possibility of mechanical failure, either alone or in concert with human error on the part of Mr. Pinto would need to be known and accepted by this Court. As such, the Crown had failed to adduce evidence of acts or omissions on the part of Cobra Float that would provide such evidence. In our view, the actus reus of the alleged offence had not been proven beyond a reasonable doubt.

Prosecution Position (Respondent)

The Applicant was charged with one offence under the Occupational Health and Safety Act for failing to ensure compliance with section 37 of the Regulation governing Construction Projects. In particular, a curb machine was moved at a project in a manner that endangered a worker. On May 25, 2013, Luis Pinto was killed in a workplace accident while he was unloading a piece of heavy equipment from a float trailer. He was crushed when the machine tipped over onto its side.
Admissible evidence was led on all elements of the offence, and this application for a directed verdict should be dismissed.
There was no requirement to show how or why the accident happened. The cause of the incident was not an element of the offence. Any evidence or theories about worker misconduct or mechanical failure do not go to the actus reus of the offence.
The test on a motion for directed verdict is whether there is any admissible evidence which, if accepted by a reasonable and properly instructed trier of fact, would justify a conviction. On an application for directed verdict, it is not the function of the trial justice to weigh the evidence, to assess credibility, or test the quality or reliability of the evidence.

R v Timminco Ltd., 2001 CanLII 3494 (ON CA), [2001] OJ No. 1443 (CA) at para.18-19

The Occupational Health and Safety Act is public welfare legislation. It should be read liberally and broadly:

Protective legislation designed to promote public health and safety is to be generously interpreted in a manner that is in keeping with the purposes and objectives of the legislative scheme. Narrower technical interpretations that would interfere with or frustrate the attainment of the Legislature's public welfare objectives are to be avoided.

Ontario (Ministry of Labour) v. Hamilton (City), 2002 CanLII 16893 (ON CA), [2002] OJ No. 283 (C.A.) at para 16, cited in R. v. Prince Metal Products Ltd., 2011 ONCJ, [2011] OJ No. 6450 (O.C.J.) at para 42.

Ontario (Ministry of Labour) v. Enbridge Gas Distribution Inc., 2010 ONSC 2013, [2010] OJ No. 1504 (S.C.J.) at paras. 20-24, leave to appeal refused, 2011 ONCA 13, [2011] OJ No. 24 (C.A.).

The onus is on employers to ensure the protection of their workers through the enforcement of the OHSA and the related Regulations. As the Court of Appeal said when considering the duties of an employer under the OHSA:

An "employer" is obliged by s. 14(1) [now 25(1)(c)] to "ensure" that the "measures and procedures" prescribed by the Regulations are carried out in the "workplace". The relevant definition of "ensure" in the Shorter Oxford English Dictionary (3rd ed.) is "make certain". Section 14(1), therefore, puts an "employer" virtually in the position of an insurer who must make certain that the prescribed regulations for safety in the workplace have been complied with before work is undertaken by either employees or independent contractors.

R. v. Wyssen, 1992 CanLII 7598 (ON CA), [1992] O.J. No. 1917 (C.A.) at para. 14

The Court of Appeal for Ontario, in Ontario (Ministry of Labour) v. Dofasco Inc., stated:

. . . as was noted by Laskin J.A. in his decision granting leave to appeal in this case, "workplace safety regulations are not designed just for the prudent worker. They are intended to prevent workplace accidents that arise when workers make mistakes, are careless, or are even reckless." In our view, this principle also extends to deliberate acts of employees while performing their work. Worker misconduct does not go to the actus reus of the offence, even when the worker deliberately disregarded safety training.

Ontario (Ministry of Labour) v. Dofasco Inc., 2007 ONCA 769, [2007] OJ No. 4339 (C.A.) at para. 22, 24, leave to appeal refused [2008] S.C.C.A. No. 24.

The charge before the court is a strict liability offence. The burden of proof was on the Crown/Prosecution to prove the actus reus of the offence. The Defendant bore the burden of proving a defence of due diligence. R. v. Timminco Ltd., supra at para.25.
A hazard can include a chance event, such as an accident. The doing of the prohibited act raises the presumption of the commission of the offence, whether it was caused by accident, negligence, recklessness or willful neglect. It does not matter whether the employer had been satisfied, prior to the accident, that the measures and procedures in the workplace were safe, or that no similar accident had occurred before. R. v. Prince Metal Products Ltd., supra, at para.47, 49.
The Crown/Prosecution was not required to prove how the accident occurred. The Crown/Prosecution was required only to prove the elements of the offence: there was no requirement to prove the cause of the accident. At the conclusion of the trial, the trial court was not obliged to determine how the accident happened, merely whether or not the Crown had proven the actus reus beyond a reasonable doubt, and whether the Defendant had proven due diligence. R. v. Prince Metal Products Ltd., supra, at para. 52, 54.
For example, in R. v. Prince Metal Products Ltd., a worker was killed after being crushed by a heavy coil of metal. The employer was charged with failing to ensure compliance with a regulatory requirement that "materials shall be transported, placed or stored so that they will not tip, collapse or fall and can be removed without endangering the safety of any worker." The fact that the metal coil fell on the worker was prima facie evidence of the actus reus of the offence, even though there were no eyewitnesses to the event and there were different theories about why the coil had fallen.

R. v. Prince Metal Products Ltd., 2011 ONCJ, [2011] OJ No. 6450 (O.C.J.), at para 47 R. v. Magna Closures Inc., 2017 ONCJ, [2017] OJ No. 2055 (O.C.J.) at paras. 17-30 R. v. Seeley & Arnill Aggregates Ltd., 1993 CanLII, [1993] OJ No. 443 (Gen.Div.) at para 7-15

Application of the Law to this Case

In the case at bar, the Defendant was charged with failing to ensure compliance with section 37 of the regulation governing Construction Projects, and in particular, that "A curb machine was moved at a project in a manner that endangered a worker".
Notably, the defendant was charged with failing to ensure compliance. In other words, it was alleged that the Defendant failed in its duty to "make certain" that the regulatory requirements were carried out. The Defendant was not charged with causing the accident. The fact that there was an accident, which resulted in a fatal injury to a worker, was an aggravating factor to be considered in sentencing, and not an element of the offence itself.
In our view, the Prosecution led admissible evidence on every essential element of the offence. The Defendant was the employer of the deceased worker; the date and location of the event had been established; and the event took place on a construction project.
With respect to the substance of the offence, there was a prima facie case that the curb machine was moved in a manner that endangered a worker by virtue of the fact that a worker was crushed under the machine. There should have been no doubt in the Court's mind that Mr. Pinto was fatally injured in the process of moving the machine. The fact that a worker was injured was positive (and compelling) evidence that a worker was endangered.

Ontario (Ministry of Labour) v. Cox Construction Ltd., 2009 ONCJ 695 at para. 40 R. v. Prince Metal Products Ltd., supra at para. 47.

The fact that a curb machine was moved in a manner that endangered a worker imports the offence. If the worker were negligent, or the equipment faulty, these issues would have been considered as part of the due diligence defence, in determining whether the defendant had taken all reasonable care or held a reasonable belief in a mistake of fact. This principle was set out in R. v. Seeley & Arnill Aggregates Ltd. where the defendant had failed to ensure that fall protection was used where a worker was exposed to a fall of three metres or more:

. . . The Crown/Prosecutor need not prove the existence of a mental element of knowingly, recklessly or with willful blindness to known facts of doing something. It need only prove that the prohibited act was done. In such a case the doing of the prohibited act raises the presumption of the commission of the offence. It would be presumed to have been committed in the absence of evidence to the contrary. To rebut the presumption the Defendant must prove reasonable mistake or that all reasonable steps were taken to avoid the prohibited act from taking place (on a balance of probabilities). The latter is referred to as the defence of due diligence.

A hazard can include a chance event such as an accident. If the Crown/Prosecutor proves a fall by a worker of more than three metres took place while doing work required by the employer, it prima facie imports the offence. It does not matter if it was caused by accident, negligence, recklessness or willful neglect. If it occurred in a place where one might reasonable expect it not to take place, such a fact would be considered in a defence of due diligence or even mistake.

R. v. Seeley & Arnill Aggregates Ltd., at para. 7-8, 15

The cause of the accident is not an element of the offence. Whether the incident resulted from mechanical failure or human error is not an element of the offence. Contrary to the Applicant's assertions, there was no requirement that the Prosecution call evidence regarding how the curb machine tipped over, whether the mechanical condition of the machine played a role in the accident, and/or whether the machine's elevation, and/or controls set at "auto leveling", and/or the missing block of wood contributed to the event. Similarly, the Prosecution was not required to call evidence as to the availability or actual use of the type of trailer described by the MOL Inspector in his viva voce evidence. The Applicant's submission that the cause of the accident was a "fundamental element which needed to be proven beyond a reasonable doubt" is wrong in law.
If the Defendant took the position that it took every reasonable step to avoid commission of the offence through its measures and procedures, supervision, training, etc., then the evidence on this issue would be considered as part of a due diligence defence. If the Defendant reasonably held a mistaken belief regarding facts, such as the condition of the equipment, the Defendant is required to prove this mistake of fact on a balance of probabilities. None of these issues would relate to the actus reus.
ADDITIONAL ISSUES - There were no additional issues.
ORDER REQUESTED - The Respondent requested that the Application be dismissed.

Analysis of the Court

The Law and its Application to this Case

The Occupational Health and Safety Act (OHSA) along with other related legislation is there to protect the rights of employees. The legislation strives to assist employees and employers in the prevention of occupational injury and disease. In other words, it is there to protect workers from Health and Safety Hazards on the job.
The Ministry's stated goal is for all workplaces to achieve self-compliance with the OHSA through a well-functioning Internal Responsibility System (IRS).
In cases where the compliance does not happen, there are progressive enforcement tools beginning with the issuance of orders and in some cases, matters may proceed to Prosecution. The system is there to help monitor compliance and is facilitated by the enforcement arm of the MOL using trained Inspectors.
The penalties for non-compliance for each conviction can result in a fine of up to $25,000 for an individual and/or up to 12 months incarceration. For a Corporation the fines can be levied up to $500,000 for each conviction.
There is a spectrum for charging Defendants and for Sentencing which the Courts may consider based on the evidence, submissions of the Parties, and considering the charges before the Court.
For instance, a company and/or its Directors may face the potential for criminal charges in some cases in particular cases where the Employers and/or Directors in some cases so blatantly ignore or place workers in harms way beyond what is considered reasonable, that the Prosecution have argued criminality against those employers/Directors. The standard is higher in these particular cases and inter alia the Prosecution had to prove beyond a reasonable doubt that the Accused committed a strict liability offence that was objectively dangerous, that the conduct of the Accused represented a marked departure from the conduct of a reasonable person in the same circumstances and having regard to all of the circumstances, a reasonable person would have foreseen the risk of bodily harm.
In some circumstances directors and officers of limited companies may also be held liable for such offences in both the POA courts and/or under the Criminal Code should there be evidence of a directing mind and perhaps a mens rea component and/or other evidence compelling enough that it causes the Court to consider piercing the corporate veil, where deemed appropriate.
On the opposite side of such a spectrum, there are those who believe that holding employers responsible for injured employees who have acted negligently and are at fault, despite companies providing education and safety protocols, is just plain wrong. This in part, was the reason that Courts accepted the validity of the strict liability classification of offences. It is in this classification that an employer, could be found blameless in situations where the actus reus had been proven beyond a reasonable doubt but on a balance of probability scale, the Defendant/employer could demonstrate that they acted with due diligence or believed in a mistaken set of facts (reasonably).
There is no evidence or charge before this Court regarding the Defendant's behaviour that would convince this Court that it was a candidate for criminal charges. In fact those charges would be beyond the jurisdiction of this Court. One could reasonably infer that this was the Prosecution's thesis as well since they were not compelled to charge the company or its Directors/owners or management with a criminal offence. As such, it is properly within the jurisdiction of the POA Courts and considered a strict liability offence.
For a non suit motion to succeed, the Applicant must demonstrate that the Prosecution failed in their duty to provide the Court with some evidence on each of the elements of the Offence. This motion must be considered at the close of the Prosecution case.
In other words, for the Defendant's motion to succeed, the court must find that the Prosecution had not established a prima facie case that would support a conviction.
At this stage, the Justice does not assess the credibility, reliability or sufficiency of the evidence presented. The focus is on the application of what many refer to as the Sheppard test. The test is to determine whether or not there is some evidence on all of the essential elements of the Offence.
Where the Prosecution adduces direct evidence on each element of the offence, the evidence by definition would support a finding of guilt and the Motion for Non Suit must be dismissed.
Where there are elements where direct evidence is absent, the Court may then use circumstantial evidence to make inferences. This requires a limited weighing of the circumstantial evidence to answer the question of whether or not the evidence is reasonably capable of supporting the inferences made by the Prosecution. The limited weighing of such evidence occurs in light of the standard of proof beyond a reasonable doubt.
Though the arbiter might be tempted to grant a motion for non suit simply because a Prosecution's case appears weak, that urge must be resisted. This court believes that granting this motion based on the quality of the evidence would constitute an error in law.
Factors that may apply to worker negligence and/or fault as well as the consideration of a due diligence argument are not considered with this Motion.
As Counsel rightly points out, in R v Morabito that the Motion for non suit must be brought before this Court after the Prosecution closes its case and before the Defendant is put to its election as to whether or not it will call or give evidence. Another way to express this is that the Court must ensure it hears all of the evidence before ruling on the actus reus and on the potential culpability of the Defendant.
Technically speaking, if the Defendant elected NOT to call any evidence or a due diligence defence, that this stage of the case, the Court could rule on the motion for non suit as well as whether or not the actus reus had been proven beyond a reasonable doubt. However, that too would constitute an error in law for two reasons. Firstly, the Defendant has not had an opportunity to elect whether or not they intend to call any evidence, and secondly, both the Defendant and the Prosecution have not been given the opportunity to provide closing submissions with respect to the actus reus. As a result the Court has narrowed it decision to consideration of the non suit motion alone at this stage.
The Prosecution rightly points out that in comparison to Criminal Courts, the POA courts must factor in the intent of the Legislation and accordingly, where appropriate, must read the wording of such Offences liberally and broadly – which is part of the essence of public welfare offence legislation.
The Courts have long accepted the idea that a Directed Verdict has a proper place within our POA and Criminal Court system. However, the courts also hold that a Directed Verdict should be used in the clearest of cases and sparingly, not as a tool to truncate trials nor to assess the quality of the Crown's case, but to ensure the ends of justice are fairly and properly met. The euphemistic sentiment that everyone deserves their day in court and that evidence should be heard in a fulsome manner rather than matters dismissed out of technicality are other concepts that are live and applied to the POA courts in particular.
To repeat, worker misconduct is not a factor in determining the actus reus of the offence, even when that person/worker deliberately disregards safety training and protocol.
The Prosecution is under no obligation to prove how the accident occurred.

Application to the Cobra Case

Has the Prosecution provided some evidence on each essential element of this offence? Should the motion for non suit be granted or dismissed?
Circumstantially, even though the unfortunate Mr. Pinto was not seen moments before or during the accident, what the Court accepts is the Evidence in the Agreed Statement of Facts (exhibit 1). Those facts, combined with the fact that (a) Mr. Pinto was the driver of the flatbed trailer on that date, time and place, and that (b) the curb machine was found on top of Mr. Pinto causing his grave injuries, and (c) that the curb machine was located next to the flatbed floating trailer used to transport it to various job sites (see Exhibit 20, photos 6, 10, 11 & 15). The Court has reasonably come to the conclusion that the curb machine was NOT yet in operation and given its proximity to the flatbed trailer, would have been in the process of being off-loaded from the trailer. That procedure caused the curb machine to tip and to fall on top of Mr. Pinto which caused his mortal injuries and subsequent death.
As noted in the Prosecutorial Factum and addressed in paragraph 74 above, the Defendant was not charged with causing the accident. It was charged with failing to ensure compliance.
With all due respect to learned Counsel, some of the arguments made in Defence's Factum and repeated above speak to the proof of the actus reus beyond a reasonable doubt standard. These arguments may strengthen the Defence to these charges at the end of the day and they may be well-founded concerns, however, this Court has not evaluated that evidence at this stage as they do not constitute valid reasoning for the application to the non suit motion before the Court. In other words, the Court agrees with the assertions made by the Prosecution that those arguments do not form the basis for consideration for the non suit motion. Those arguments speak to the quality and sufficiency of the Prosecutorial evidence. The court is not permitted to evaluate that evidence in consideration of this Motion.
In summation, given the Direct evidence provided to this Court combined with the limited consideration of circumstantial evidence that the Court has accepted, the Court draws reasonable inference that there is some evidence on each of the elements of the Offence, as charged and the Applicant's motion for non suit is denied.
To review, the Crown has closed its case and has no further evidence to call. The Applicant's motion for non suit has been denied. The Court asks the Defence, will it be calling any evidence? (ie...due diligence defence).
If so, then the Court is prepared to hear that evidence.
If not, then the Court will entertain any written closing submissions from both the Defence and from the Prosecution before further rulings are made.

Respectfully Submitted

G. Manno Justice of the Peace

June 8, 2017