CITATION: Ontario (Ministry of Labour, Immigration, Training and Skills Development) v. Corporation of the Town of Bancroft, 2025 ONCJ 745
ONTARIO COURT OF JUSTICE
(East Region)
BETWEEN:
HIS MAJESTY THE KING IN RIGHT OF ONTARIO
(MINISTRY OF LABOUR, IMMIGRATION, TRAINING AND SKILLS DEVELOPMENT)
(Crown Prosecutor)
- and –
THE CORPORATION OF THE TOWN OF BANCROFT
(Defendant)
REASONS FOR DECISION
8 September 2025
J.P. C. Peltzer
Legislation
Legislation Act, 2006, SO 2006, c 21, Sch F, ss. 64(1)-(2), 85-86
Occupational Health and Safety Act, RSO 1990, c O.1 ss.25(1)(c), 28(2)(b), 66 (1)-(4)
Industrial Establishments, R.R.O. 1990, Reg. 851, s.11-20
Cases
R v Sault Ste. Marie (City), 1978 CanLII 11 (SCC), [1978] 2 SCR 1299.
Ontario (Ministry of Labour) v Sheehan's Truck Centre Inc., 2011 ONCA 645, at 28-30.
R v Prince Metal Product Ltd., [2011] O.J. No 6450 (C.J.), at 64.
Ontario (Ministry of Labour) v. Wal-Mart Canada Corp., 2016 ONCJ 267.
Blue Mountain Resorts Limited v. Ontario (Labour), 2013 ONCA 75 at 24, 26.
R. v. Enbridge, 2015 OCA, at 16-22.
R. v. Inco Ltd., [2001] OJ No 4938 (SC), at 40.
R. v. Bata Industries Ltd. (1992), 1992 CanLII 7721 (ON CTPD), 70 C.C.C. (3d) 394 (Ont. Prov. Div.).
R. v. Brampton Brick Ltd., [2004] O.J. No. 3025 (Ont. C.A.).
R. v. Rio Algom Ltd. (1988), 1988 CanLII 4702 (ON CA), 46 C.C.C. (3d) 242 (Ont. C.A.).
R. v. Canada Brick Ltd., [2005] O.J. No. 2978 (Ont. S.C.).
R. v. MacMillan Bloedel Ltd., [2002] B.C.J. No. 2083 (B.C. C.A.).
A- Summary of the case
1On March 30th, 2023, Mr. Reginal Woodcock was working as a Landfill attendant for the Town of Bancroft at a landfill located at 164 Pinnacle Rd in L’Amable. Just as Woodcock was finishing his shift, he noticed that Mr. Dean Card, the bin truck driver, was having difficulties aligning an empty bin into the cardboard compactor unit. Given his experience, Woodcock knew that there was likely ice underneath the compactor unit which was preventing the bin from aligning properly with the compactor, so he went to help.
2Using a pick and axe Card and Woodcock spent approximately 10 minutes removing ice and debris from the exposed side and underside of the compactor unit that connects with the bin. At some point in the process Card returned to his truck and reversed it in order to seat the empty bin into the compactor. Card thought that Woodcock was aware and had vacated the space between the bin and the compactor, which unfortunately was not the case. Woodcock, who was still between the compactor and the bin, noticed the bin closing-in on him and managed to duck and step into the compactor unit opening with his left foot, but his trailing right leg was caught and crushed/lacerated between the compactor frame and the bin. Once Card became aware of what had happened he pulled the bin forward. Woodcock exited the compactor unit opening where he received medical attention from EMS. Ultimately, Woodcock’s right leg had to be amputated below the knee and has been unable to return to work since the accident.
3An investigation led to charges against Card for operating equipment in a manner that endangered another worker, which he resolved on the first day of trial. The Town of Bancroft was charged with the offences at issue in this trial given the accumulation of ice in and under the compactor and bin.
B- Legislative Framework
4The defendant was charged with violating the Occupational Health and Safety Act Regulation titled Industrial Establishments, R.R.O. 1990, Reg. 851, s.11 which states:
Premises
- A floor or other surface used by any worker shall,
(a) be kept free of,
(i) obstructions,
(ii) hazards, and
(iii) accumulations of refuse, snow or ice; and
(b) not have any finish or protective material used on it that is likely to make the surface slippery. R.R.O. 1990, Reg. 851, s. 11.
5If proven, liability for such violations extends to employers due to s.25 (c) of the Occupational Health and Safety Act, RSO 1990, c O.1, which states:
Duties of employers
25 (1) An employer shall ensure that,
(c) the measures and procedures prescribed are carried out in the workplace.
C- Submissions from Counsel
6At trial the main contentious issue was whether this limited area along the rails and underneath the compactor was a floor or other surface used by a worker as contemplated by the Regulation.
7Crown counsel argued that the definition of “a floor or other surface used by a worker” must extend to include such a space given the nature and broader purpose of occupational health and safety legislation, and that such hazards are to be avoided.
8The Defence was concerned that such an expansive approach to interpreting “a floor or other surface used by a worker” would create a legal absurdity which could lead to limitless applications of the section and increase liability for employers beyond what was contemplated by the section.
Crown Submissions
9The Crown submitted that a narrow interpretation of the legislation is to be avoided as the OHSA is a public welfare statute that needs to be generously interpreted to be consistent with the spirit of the Act (see R. v. Enbridge, 2015 OCA pp. 16-22).
10The Crown argued that “a floor or other surface used by a worker” must mean more than what is simply walked on or traversed. He also stated that it should extend to any space the workers interact with in the context of performing their duties. He also asserted that workers in this case had access to this surface in order to do their jobs, therefore the section necessarily applies in this case.
11Also, logically the ice needs to exist somewhere, sitting on a surface somewhere. It was clear in the evidence where the ice was, in and along the surface areas and underneath the connecting space between the compactor and the bin.
12According to the Crown ice accumulation was a regular occurrence as Woodcock had tools on hand and Ms. Kauffeld also testified that the “freeze/thaw cycle” was an issue.
13Finally, the Crown concluded that it was a prima facie offence as contemplated by s.11(a)(iii) once the accumulation of ice on the surface was proven beyond a reasonable doubt.
Defence Submissions
14Defence counsel submitted that the Crown had not met its onus in proving the actus reus beyond a reasonable doubt as she took a very different view of the facts of the case and on the issue of whether s.11(a)(iii) applied.
15Counsel asserted that the generic wording “a floor or other surface used by a worker” should not be interpreted to include this particular space for the following reasons:
1- The ice accumulation was along the underside of the area between the compactor and the bin and was therefore not accessible to the workers except with a pick or axe in order to clear any accumulation, and was only accessible when the bin was removed, given the gap to access it was only 2-6” in height along the width of the compactor, whereas any ice or snow accumulation along the outside of the compactor and bin was regularly cleared as it was accessible to workers.
2- The ice in question is technically along the underside of the compactor where the bin has to sit in order to connect/seal against the compactor. The evidence from Woodcock was that ice accumulation could interfere with the wheels under the bin, which did not interfere with or obstruct workers movement in any way.
3- The workers do not use or travel along this space as contemplated by this Part of the OHSA Regulations as it relates to “Premises”, which is concerned with addressing safety hazards and obstructions in the work area relating to slip and falls, guardrails, ladders, etc., therefore the wording should be interpreted in relation to its context.
4- That one must interpret the words “a floor or other surface used by a worker” in its proper context by looking at scheme of the Act and the contextual language of the part which would mean other surfaces of the same kind as a floor relating to travel/traversal in keeping with the other sections within the Premises context.
5- Finally, that the specificity of the wording and categories used in sections 11-20 of the Premises section should lead to a more limited interpretation in the context of movement or travel as it relates to actual or potential hazards in the workplace. i.e. that the presence of ice on a surface is not necessarily hazardous to workers or pose a safety concern so as to make it an offence in all cases.
16The Defence was also concerned that an overly broad interpretation that could essentially include any space where ice accumulates would create an absurd result for the defendant because:
1- without accumulation being defined in the act, it could mean essentially any surface with any ice accumulation could be an offence under this section; and
2- it would create an impossible burden for the defendant as these compactor units are outdoors and are subject to snow and water penetration daily.
17The Defence also noted that the Inspector who attended on scene did not make any orders in relation to removal of snow or ice build-up on any of the three recycling units, concluding that if the Inspector, who was in the best position to make that call at that time, was not concerned about the ice, why should it now be interpreted as an offence.
18Counsel concluded that the application of “a floor or other surface used by a worker” should be narrowed to avoid an absurd result and that it would not offend the principle of liberal interpretation given the particular circumstances of this case.
D- Initial findings on issues raised during trial:
19Given the evidence at trial, exhibits filed, and concessions made, I have no concerns in the evidence regarding issues of time, date, place, jurisdiction, or identity for the parties. There was no contention that Card and Woodcock were employees of the Town of Bancroft on March 30th, 2023, and that the incident occurred at the landfill located at 164 Pinnacle Rd in L’Amable, in the County of Hastings. There was also no contention that ice existed in and along the space between the compactor and the bin.
20Where the parties evidence diverged was in the areas of applicability of the relevant sections, specific details of the incident which led to the injury to Woodcock, and the issues around training and due diligence. which will be addressed in detail below.
21To address the issue is applicability one must engage in an interpretive exercise involving both the applicable legislation and the facts of the case. Thankfully there is legislation and caselaw which can assist in this process.
E- Guidance on interpreting O. Reg. 851, s.11 of the OHSA
22The Legislation Act, 2006, SO 2006, c 21, Sch F s. 64 (1)-(2) states:
Rule of liberal interpretation
64 (1) An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects. 2006, c. 21, Sched. F, s. 64 (1).
Same
(2) Subsection (1) also applies to a regulation, in the context of the Act under which it is made and to the extent that the regulation is consistent with that Act. 2006, c. 21, Sched. F, s. 64 (2).
23Many cases have applied this rule in the context of the OHSA and its Regulations. Some cases have also articulated that there are limits on an expansive interpretation of the language used and that these limits are to be determined within the context and circumstances of each case.
24One useful case is the Ontario (Ministry of Labour) v. Wal-Mart Canada Corp., 2016 ONCJ 267 case which accurately summarized the issue of interpretation when it stated at paragraphs 110-11 that:
110Public welfare legislation is often drafted in broad, general terms; as such, Acts are remedial and designed to promote public safety in a wide variety of circumstances. Consequently, public welfare legislation is to be given a liberal interpretation to give effect to its broad purpose and objective. However, a generous interpretation does not equate to a limitless interpretation: [quoting] Blue Mountain Resorts Ltd. v Bok, 2013 ONCA 75, at paras 24, 26.
Public welfare legislation is often drafted in very broad, general terms, precisely because it is remedial and designed to promote public safety and to prevent harm in a wide variety of circumstances. For that reason, such legislation is to be interpreted liberally in a manner that will give effect to its broad purpose and objective: [quoting] R. v. Timminco Ltd. (2001), 2001 CanLII 3494 (ON CA), 54 O.R. (3d) 21 (C.A.), at para. 22.
This generous approach to the interpretation of public welfare statutes does not call for a limitless interpretation of their provisions, however.
111The OHSA is public welfare legislation. The purpose of the Act is to promote a reasonable level of protection for the health and safety of workers in workplaces across Ontario. However, neither the Act, nor the Regulations, seek to achieve the impossible - an entirely risk-free work environment: Ontario (Ministry of Labour) v Sheehan's Truck Centre Inc., 2011 ONCA 645, at paras. 28-30.
25To draw from another relevant case, in Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), Iacobucci, J. wrote:
It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Côté, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile (Sullivan, Construction of Statutes, supra, at p. 88). (para. 27)
26I also agree with the Crown’s submissions regarding the appellate court’s guidance in interpreting legislation relating to public safety when he referenced R. v. Hamilton stating:
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. Narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature's public welfare objectives are to be avoided. R. v. Hamilton (City), 2002 CanLII 16893 (ON CA), [2002] O.J. No. 283 (C.A.) at para. 16
27As is often the case, a reasonable balance needs to be sought between the need to create, maintain, and enforce safe working environments while also appreciating the pressures compliance imposes on work premises, employees and employers, and the ongoing considerations of the public’s interest generally.
F- Applying the legislation and caselaw to the facts of the case
1-Was there an accumulation of snow or ice?
28Accumulation is defined by Collins Online dictionary as: a large number of things which have been collected together or acquired over a period of time.
29Merriam-Webster Online defines it as: to gather or pile up especially little by little, or to increase gradually in quantity or number.
30Taking the ordinary meaning of accumulate, it was uncontested in the evidence that there was ice accumulation within this area necessitating its removal on March 30th, 2023 in order to seal the bin in the compactor.
31Section 11(a)(iii) of the Regulation does not differentiate some accumulation from significant accumulation or provide further direction beyond what triggers the offence itself other than to say the surface must be “free” from it.
32Therefore, according to the Crown, once it is found that the area was not “free” from any accumulation of ice then the actus reus of the offence would be made out.
33The ice accumulation in this case was such that once the full recycling bin was removed, the disturbed and remaining ice accumulation prevented the empty bin from seating properly into the receiving area of the compactor which necessitated removal of the ice by the workers using a pick and axe.
34The challenge here is that the compactor unit was installed outdoors and was exposed to the elements. Although some design elements limited the accumulation of snow along the outside of the bin, the connecting area between the compactor and the bin did not benefit from similar design improvements and therefore accumulates ice during freeze thaw cycles like those experienced in March 2023.
2- Context for interpreting s.11(a)(iii) is relevant
35Sections 11-20 of R.R.O. 1990, Reg. 851 is titled “Premises”. The context for section 11 is the issue of mitigating hazards on floors and surfaces in workplaces used by workers with a view to reduce harm and risk.
36Sections 11-20 further specify requirements for certain specific spaces within the premises where workers frequent.
37s.11 speaks of “a floor or other surface used by a worker”. In this case the space at issue is an area ranging from 2-6” in height running along the side and front of the compactor unit where it connects with the recycling bin.
38This space is not accessible for a worker to traverse or “use” is any meaningful way, as it relates to safety restrictions within a work premises, as contemplated in this section.
39This space is inaccessible 99% of the time, because the compactor and bin provide no access when connected. When there is an accumulation of ice and debris, this space only becomes accessible for tools like picks and axes only when the bin is removed from the compactor. The presence of ice in this space cannot reasonably generate a slip and fall hazard for a worker.
40Similar to the circumstances in Blue Mountain Resorts Limited v. Ontario, interpreting this space as one used by workers in the context of slip and fall hazards would generate the same minimal nexus issues, as there does not appear to be any nexus between ice accumulation in this specific space and worker safety – other than annoyance that occasionally the ice will have to be removed in order to seat the empty bin properly.
41The fact that an accident occurred in this instance is unrelated to the ice accumulation issue as the accident was the result of unforeseen negligent driving by Mr. Card alone. At best, the ice accumulation in question, according to Woodcock, interfered with the wheels under the bin. The fact that an accident occurred in this case does not mean that there is any nexus between the ice and a safety concern. The ice issue caused Woodcock to be in the location he was at the time, but it was the driving behaviour of Card and the miscommunication between the workers that contributed to the accident. In theory, this accident could have occurred in the summer months if Woodcock was clearing cardboard from in/around the face of the compactor and Card didn’t see him. The incident was not ice dependant, nor contributed to it in any unique way.
3- Wording Matters- “Premises”
42O. Reg 851 s.11- addresses hazards in the premises where workers frequent. It appears to be concerned with addressing workplace hazards, traversing spaces safely, clearances, doorways, ladders, etc.
43The specific wording in s.11(a)(iii) seems to refer to unexpected materials on “a floor or other surface used by a worker”.
44Additionally, s.11(b) states that this “floor or any other surface used by a worker” from sub (a) also not have any finish or protective material used on it that is likely to make the surface slippery.
45The focus here is the requirement to keep a space used by a worker free of obstructions, hazards, accumulations that could give rise to safety concerns. Given the specifics of the space at issue in this case, underneath and along the compactor side facing the recycling bin, which did not raise a concern for the Inspector on location at the time, the section does not appear to contemplate such a space in its purview.
46Simply because a space exists does not mean it is necessarily a space “used by a worker” in the manner being addressed in this section.
4-Hypothetical scenarios if s11(a)(iii) applies
47As part of my determination into whether this section should to apply to this case, whether the authors of the section intended its application, and whether it would have an absurd or detrimental effect, I need to consider whether such results would generate a reasonable outcome for the defendant, for the enforcement agencies, and for the public at large. Again, keeping in mind the objective of safety in the OHSA balanced against the accepted notion that workplaces cannot be made risk-free environments, again as stated in Ontario (Ministry of Labour) v Sheehan's Truck Centre Inc., 2011 ONCA 645, at paras. 28-30:
The OHSA is public welfare legislation. The purpose of the Act is to promote a reasonable level of protection for the health and safety of workers in workplaces across Ontario. However, neither the Act, nor the Regulations, seek to achieve the impossible - an entirely risk-free work environment.
48If s.11(a)(iii) applies to this surface, then it must necessarily be kept free of refuse, snow and ice at all times, otherwise it is an offence. If this is the case, what would compliance look like?
49These compactors and bins are designed for outdoor use and exposed to the elements everyday. Snow and water enter the compactor and bin at the whim of nature. During any freeze/thaw cycle water and snow will accumulate in, around, and underneath the unit and ultimately freeze forming ice.
50The accumulation along the outside of the compactor is easily removed with regular maintenance (as evidenced in this case), but the ice that forms underneath and along the joint between the compactor and the bin is only accessible to remove with tools and only when the bin is disconnected and removed from the compactor.
51Compliance, meaning no accumulation of ice at anytime, would then necessitate the following:
1- Having the bin, or bins, removed from their compactor daily, or every part-of-day, so that any accumulated ice and debris could be removed, whether the bin was full or not.
a. The evidence in the case was that the bins were changed every 3-4 days.
b. Having to remove, clear, and replace the bins after every freeze thaw cycle would create a significant burden for workers, added expense, and would deprive the public of access to the bins during such times.
2- To avoid the scenario in option 1, the defendant would need to either heat the space where the ice accumulates, or cover or enclose the unit so that water could not access the compactor and bin. Ice melter had been tried previously but it could not be applied along the full width of the joint rendering this option ineffective. Again, if heating or enclosing were necessary:
a. This would generate significant expense which would ultimately be paid for by the public using the service; and
b. It begs the question of how these unit where designed, regulated, and approved for outdoor use, given their design limitations, and their expected use in cold and inhospitable environments.
52In this case, compliance, in the event that section 11 applies, does not appear manageable or reasonably achievable in these circumstances.
53If one supports a strict reading of section 11 and accepts that it applies in every case where any ice accumulates on “a floor or other surface used by a worker”, and if the threshold for “use” is simply being able to access it somehow in someway, then many workplaces that operate exposed to the elements would be in a state of non-compliance on a regular basis.
54For example, construction workers building a home, or a high-rise, would be offending this section if snow and ice visited their construction site overnight or between shifts. Notwithstanding they would need to remove ice on the floors and areas they are working in or traverse, they would also be obligated to remove it from any area that they could theoretically access even though other parts of the building may be in different stages on completion.
55Another example would be an ice cream plant or any other type of factory that uses cooling or freezing devices or produces frozen products as they would also risk running afoul of the section in the event that there was any ice build-up anywhere on, over, under or along any machine.
56Ice buildup can be a safety concern in the OHSA Regs that triggers non-compliance, but not all ice build-up is non-compliant, it must be looked at in the context of the section and the circumstances of each workplace.
57I have this image in my mind of a group of seasoned law-makers in their work boots at the landfill looking in and around the compactor discussing whether this situation was what they intended to capture when they drafted s.11(a)(iii). In my mind it would not be the case. Although I accept that if they observed ice and debris accumulated around the recycling area where people walk or on the ramp used to access the deposit area their conclusions would likely be different.
58Given the unique and specific circumstances of this case, I do not accept that the authors of this section contemplated its application to this situation. In finding that the meaning of s.11(a)(iii) does not extend to include the facts in this case I do not believe it undermines the interests of public or worker safety as any nexus between ice accumulation here and a safety concern is minimal.
59I appreciate that a worker was seriously injured on site that day, but there is essentially no nexus between the injury and the safety concerns contemplated in s.11(a)(iii) as it applies to this case as one does not necessitate the other. As addressed earlier, Mr. Card’s driving behaviour created the hazard that day, along with what appears to be miscommunication between workers.
G- Findings in the case
60In this case, I conclude that this area along the rails and under the compactor is not a “floor or other surface used by a worker”.
61A determination that the act does not apply to this area would not run contrary to the meaning and intent of the legislation. It is clearly a space where ice accumulates but is not a space “used by a worker” in the context of this section. To find otherwise would create an absurdity for several reasons:
1- Any surface anywhere in a workplace could give rise to an offence should ice accumulate, whether it poses a safety hazard or not.
2- What would compliance or due diligence look like given this set of facts? The bin is exposed to the elements therefore any freeze/thaw cycle would generate ice underneath the compactor. Is the municipality expected to enclose and heat the whole unit? Remove it daily whether it is full or not, to remove any ice accumulation? If compliance would require unreasonable steps and/or expenses, in order to comply then it is likely that the sections meaning isn’t as broad as at first blush.
3- The Investigator on scene at the time took no issue with the ice and did not order its removal. This means that the officer on scene at the time who was in the best position to make a compliance/non-compliance determination did not see the accumulation as offending behaviour.
62Given my finding that the wording in the section does not apply to the specific facts in this case, the Crown has not proven the actus reus of the offence beyond a reasonable doubt.
H- In the alternative: If s.11(a)(iii) applied to the facts of the case
63Had the Crown proved that the defendant had committed the prohibited act beyond a reasonable doubt, and the offence had been prima facie established, given that the ice accumulation did in fact exist and therefore established the actus reus of the offence, the burden would then have shifted to the defendant to establish the defence of due diligence on a balance of probabilities.
64The defence of due diligence is available both in common law (Sault Ste. Marie), and as codified by Section 66(3) of the OHSA:
(3) On a prosecution for a failure to comply with,
(b) clause 25 (1) (b), (c) or (d);
it shall be a defence for the accused to prove that every precaution reasonable in the circumstances was taken.
65In order to successfully plead the defence of due diligence, the defendant must establish that they did all they could do to prevent or minimize the risk of injury, but without an expectation of superhuman effort or perfection (see R v Inco Ltd., [2001] OJ No 4938 (SC), at para, 40.).
66The due diligence claimed must be specific to the hazard at issue, being the accumulation of ice and not a broader notion of "acting reasonably" (see R v Prince Metal Product Ltd., [2011] O.J. No 6450 (C.J.), at para. 64).
67All reasonable care does not mean all steps must be taken. It requires only what could reasonably be expected in the circumstances: R. v. Bata Industries Ltd. (1992), 1992 CanLII 7721 (ON CTPD), 70 C.C.C. (3d) 394 (Ont. Prov. Div.). See also R. v. Brampton Brick Ltd., [2004] O.J. No. 3025 (Ont. C.A.).
68The reasonableness of the care necessary is related to the circumstances of each case. The standard of care varies with the factual setting of each case. The degree of care can change with the circumstances in a particular case and are dynamic rather than static.
69R v Inco Ltd., supra, at para. 39 citing R v Gonder, (1981), 1981 CanLII 3207 (YK TC), 62 C.C.C. (2d) 326 (YKTC) at 332 stated:
The degree of care warranted in each case is principally governed by the following circumstances:
a) gravity of potential harm;
b) alternatives available to the accused;
c) likelihood of harm;
d) degree of knowledge or skill expected of the accused; and
e) extent underlying causes of the offence are beyond the control of the accused.
70In applying these factors to the circumstances of the case if I find the following:
a) The gravity of potential harm was minimal in that the ice accumulation did not pose a safety hazard, although it did generate additional work to clear in the event it prevented a bin from seating properly against the compactor;
b) the alternatives available to the defendant are not reasonable in that either daily maintenance in moving and clearing the ice would be required, or in the alternative changing the installation so that it would not be exposed to the elements would undermine the previously approved form of installation and would generate significant expense;
c) the likelihood of harm is minimal in that there is essentially no nexus between the seasonally inaccessible ice accumulation and the operation of the compactor unit;
d) the degree of knowledge or skill expected of the defendant in this case is minimal in that removing accumulated ice is not complicated but rather it is burdensome and time consuming; and
e) the underlying causes of the offence are clearly beyond the control of the reasonable control of the defendant in that they do not control the weather and it is not reasonable to expect them to either re-design a previously approved design for the compactor unit in order to either continually melt or remove any ice or house the unit indoors to avoid precipitation and freezing.
71The focus of this inquiry is whether a reasonable person in the defendant’s circumstances been aware of the danger or hazard and if so what action would a reasonable person in the defendant’s circumstances take to prevent the event and ensure the preventive measures were maintained.
72Also, the reasonable foreseeability of danger resulting from an act or omission is relevant to assessing due diligence.
73Foreseeability does not relate to foreseeing the accident in the way it occurred. The issue is whether a reasonable person in the circumstances would have foreseen a potential danger created and, if so, was the defendant negligent in failing to determine if it created an actual danger and failing to take corrective action: R. v. Rio Algom Ltd. (1988), 1988 CanLII 4702 (ON CA), 46 C.C.C. (3d) 242 (Ont. C.A.).
74Foreseeability refers to objective and not subjective foresight. The standard was an objective one of “every precaution reasonable in the circumstances”: R. v. Canada Brick Ltd., [2005] O.J. No. 2978 (Ont. S.C.).
75Foreseeability is a factor to consider but not determinative of the issue of whether the defendant was duly diligent: R. v. MacMillan Bloedel Ltd., [2002] B.C.J. No. 2083 (B.C. C.A.).
76If the Crown had proven the actus reus beyond a reasonable doubt I would have found that the defendant was duly diligent on a balance of probabilities for the following reasons:
1- At the time of the offending behaviour, the workers were in the process of removing the ice given that they did not have access to clear it prior to the removal of the bin- therefore they themselves, at the direction of their employer, were being duly diligent at the time of the offence;
2- Materials and equipment for removing ice and snow had been provided to the workers in the form of shovels, an ice pick, an axe, bobcat, ½ truck with plough, and a crawler/loader, which they were trained to use;
3- Training was provided for the workers relating to:
a. Traffic protection and flagging (exhibit 4)
b. Ice safety (ex 8)
c. Winter safety (ex 11, 13-15)
d. Ice traction provided for workers (ex 8)
e. Waste disposal training (ex 24)
4- Monthly inspections of the site were performed by the supervisor to address any ongoing issues;
5- The accident was not reasonably foreseeable as the nexus between the ice accumulation, Woodcock removing that ice and Card’s unexpected driving behaviour was minimal; and
6- Given my assessment of the relevant factors and circumstances, the standard for the level of care relating to due diligence required by the defendant in this case is significantly reduced, given the limited risk of harm and the unreasonable and limited alternatives available to the defendant to avoid the prohibited accumulation of ice.
77Again, this is in the alternative, had my findings on the actus reus been different.
78Given my initial findings above, the charge against the defendant is dismissed.