Ontario Ministry of Labour v. Linamar Holdings Inc. c.o.b. as Transgear Manufacturing

Court Information

Court File No.: City of Guelph in the Central West Region 101392

Date: 2012-05-07

Ontario Court of Justice

Between:

Ontario Ministry of Labour

— AND —

Linamar Holdings Inc. c.o.b. as Transgear Manufacturing

Before: Justice of the Peace James Ziegler

Heard on: April 19th & 20th, 2011 and October 6th & 7th, 2011

Reasons for Judgment released on: May 7th, 2012

Counsel

J. Malabar ........................ for the prosecution

R. Little ........................ for the defendant Linamar Holdings Inc. c.o.b. as Transgear Manufacturing

JUSTICE OF THE PEACE ZIEGLER:

The Charges

[1] The Defendant Linamar Holdings Inc. c.o.b. as Transgear Manufacturing [hereinafter referred to as 'Transgear'] has been charged by the Ontario Ministry of Labour [hereinafter referred to as 'the Ministry'] with three counts under the Occupational Health and Safety Act R.S.O. 1990, c. O.1, as amended. Namely, that Transgear, 287 Speedville Avenue West, Guelph, Ontario N1H 1C5 on or about the 20th day of May 2009 did commit the offence(s) of:

Count 1: failing as an employer, to ensure the measures and procedures prescribed by s. 41 of Ontario Regulation 851 were carried out in a workplace located at 400 Massey Road, Guelph, Ontario contrary to section 25(1)(c) of the Occupational Health and Safety Act R.S.O. 1990, c. O.1, as amended;

Count 2: failing as an employer to provide information, instruction and supervision to a worker to protect the health or safety of the worker at a workplace located at 400 Massey Road, Guelph, Ontario contrary to section 25(2)(a) of the Occupational Health and Safety Act R.S.O. 1990, c. O.1, as amended;

Particulars of count 2: The defendant failed to provide information, instruction and supervision to a worker on a safe procedure for trouble shooting a leak in the enclosed area of the KVA 003; and/or

The defendant failed to provide information with regard to the presence of electrically charged live exposed parts in the enclosed area of KVA 003.

Count 3: failing as an employer to acquaint 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 at a workplace located at 400 Massey Road, Guelph, Ontario contrary to section 25(2)(d) of the Occupational Health and Safety Act R.S.O. 1990, c. O.1, as amended;

Particulars of Count 3: The defendant failed to acquaint a worker, Amelio Aramini, with the hazard of electrically charged live exposed parts in the enclosed area of KVA 003.

[2] The defendant was arraigned on April 19th, 2011 and a not guilty plea was entered on each of the three counts. The trial proceeded on that date and again on April 20th, and October 6th and then to October 7th, 2011 for submissions and to today's date for judgment.

Witnesses

[3] The following witnesses were heard for the prosecution:

(a) Jules ARNTZ-GRAY: Occupational Health and Safety Inspector in the Industrial Program for the Ministry of Labour at the time of this incident;

(b) Amelio ARAMINI: affected worker employed as a licensed millwright by the defendant Transgear for 10 years in maintenance.

[4] The following witnesses were heard for the defence:

(a) Bill STARK: the principal of a safety consultant company called Stark and Associates;

(b) James HAGAN: the maintenance supervisor at Transgear at the time of the incident;

(c) Darryl Goodwin: the operations manager at Transgear at the time of the incident and current.

Exhibits

[5] A total of 14 exhibits were entered, identified as follows:

(1) Corporate Profile Report

(2) Transgear Defendant's Book of Photographs

(3) Incident Investigation and Corrective Action Form

(4) Incident Report Form dated May 26, 2009

(5) Premise/Project Form dated June 3rd, 2009

(6) Photograph (already entered in Exhibit one Tab 14(a))

(7) Photograph (already entered in Exhibit one Tab 14(b))

(8) Photograph (already entered in Exhibit one Tab 14(c))

(9) Premise Project Form, dated June 10th, 2009

(10) Electrical Safety Program of Transgear

(11) Injured Worker Information/Employee Records

(12) Photograph of Injured Worker Amelio Aramini

(13) Training Records of Amelio Aramini

(14) Book of Work Orders on Induction Heating Equipment

Applicable Regulations and Sections

[6] In the Occupational Health and Safety Act and Regulations for Industrial Establishments R.S.O. 1990 Chapter O.1, as amended, and R.R.O. 1990, Reg. 851 as amended, section 41 of Reg. 851 provides:

"The entrance to a room or similar enclosure containing exposed live electrical parts shall have a conspicuous sign, warning of the danger, and forbidding entry by unauthorized persons. R.R.O. 1990, Reg.851, s.41."

[7] In Part III titled Duties of Employers and Other Persons of the same Occupational Health and Safety Act, Section 25(1)(c) provides:

"(1) An employer shall ensure that,

(c) the measures and procedures prescribed are carried out in the workplace;"

[8] Section 25(2)(a) and (d) in the same Part of the Act provide:

"(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;

(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;"

Cases Cited

[9] The Crown provided the Court with a Book of Authorities citing 18 cases under 18 Tabs, as follows:

Tab 1 R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299

Tab 2 R. v. The Corporation of the City of Hamilton, [2002] O.J. No. 283

Tab 3 R. v. Brampton Brick Ltd., [2004] O.J. No. 3025

Tab 4 R. v. Wyssen, [1992] O.J. No. 1917

Tab 5 R. v. Kurtzman, [1991] O.J. No. 1285

Tab 6 R. v. Seeley & Arnill Aggregates Ltd., [1998] O.J. No. 443

Tab 7 Ontario (Ministry of Labour) v. Dofasco Inc., 2007 ONCA 769, 87 O.R. (3d) 161

Tab 8 R. v. Gonder, [1981] Y.J. No. 16

Tab 9 R. v. London Excavators & Trucking Ltd., [1998] O.J. No. 6437

Tab 10 R. v. Inco, [2001] O.J. No. 4938

Tab 11 R. v. Stelco Inc., [1989] O.J. No. 3122

Tab 12 Ontario (Ministry of Labour) v. Cementation Canada Inc., 2008 ONCJ 135

Tab 13 R. v. St Mary's Cement Corporation (c.o.b. Pre-Con Tunnels), [1990] O.J. No. 942

Tab 14 R. v. National Wrecking Co., [2005] O.J. No. 3538

Tab 15 R. v. Timminco Ltd., [2001] O.J. No. 1443

Tab 16 R. v. Lee Valley Tools Ltd., [2006] O.J. No. 5611

Tab 17 R. v. Lee Valley Tools Ltd. (unreported, Dec. 12, 2007, O.C.J., Appeal, Pockele J.P.)

Tab 18 R. v. Lee Valley Tools, 2009 ONCA 387, [2009] O.J. No. 1882

[10] The Defence provided the Court with a Book of Authorities citing 9 cases under 9 tabs as follows:

Tab 1 R. v. Timminco, [2001] O.J. No. 1443

Tab 2 R. v. Domtar Inc., [1993] O.J. No. 3415

Tab 3 R. v. Camco Inc., Provincial Court Judge Meen, May 26, 1983, Toronto

Tab 4 R. v. King Paving & Materials Co., [2007] O.J. No. 5095

Tab 5 Furlong v. Cambridge (City)

Tab 6 Loblaw Cos. v. United Food and Commercial Workers Union, [2003] O.O.H.S.A.D. No. 106

Tab 7 R. v. Kellogg Canada Ltd., 1994 Ontario Court (Provincial Division), London, Ont.

Tab 8 R. v. United Ceramics Limited, 52 C.C.C. (2d) 19

Tab 9 R. v. Stelco Inc., [2004] O.J. No. 6187

[11] In addition the following cases were cited in oral submissions with copies of the cases provided outside of the Books of Authority:

1. R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154

2. R. v. Dana Canada Corp., [2008] O.J. No. 4487

3. Ontario (Ministry of Labour) v. C.S. Bachly Builders Ltd., [2007] O.J. No. 1050

Overview

[12] The charges against the Defendant arise from an accident that occurred on May 20th, 2009 at a manufacturing facility owned by Linamar Holdings Inc. and carrying on business as Transgear Manufacturing where the injured worker, Amelio Aramini had worked for approximately eleven (11) years and was employed as a certified millwright doing maintenance on machinery on the premises located at 400 Massey Road, Guelph, Ontario.

[13] Transgear had ongoing training in place for its employees in general and for its millwrights in particular, the machine had signage warning of an electrical hazard and lockout procedures required, procedures were in place for locking out machines to be repaired, the injured worker was trained in these procedures, apparently an exception to locking out a machine was trouble shooting, the Prosecution alleges the worker was electrocuted while troubleshooting the machine known as KVA 003 resulting in his inability to work since or shortly after the accident.

[14] The machine known as the KVA 003 is an "Induction Hardener". There are ten of them at the Transgear Plant on Massey Road in Guelph. It operates with a robot placing a part into a compartment onto a coil, a slide moves forward from the back of the machine, placing another coil on top of the part. Electricity flows through both coils heating the part which is then quenched with water which has the affect of strengthening the part through a chemical reaction. The slide moving forward from the back of the machine is known as a "glorified slider".

[15] The Defendant advises there are 14 electrical hazard signs on this machine and 7 signs instructing an employee to lockout the equipment before working on it or moving inside, the warnings are located at operating pads the employee needs to, or should or would go to first. At the back of the equipment is a fence guarding or a cage. There is neither lockout warning nor electrical hazard warning at the back of the machine where this fence guarding is located. The accident occurred behind the fence guarding which was bolted in place, after the injured worked removed the fence guarding and entered the space behind the machine to troubleshoot.

[16] Troubleshooting, or running the machine to observe a problem, was apparently necessary to locate the source of a water leak in or from a pump. It is alleged by the defendant that the injured worker entered the equipment without locking it and asked a worker to cycle the machine so the injured worker could locate the leak.

Defendant's Position

[17] It is the Defendants position that this is a lockout case. The injured worker was aware of the hazards but chose not to lockout the machine notwithstanding his training and the warnings. The defendant states that a skilled tradesperson would have locked out the equipment before working on it and had he done so he would have been entirely safe. And, it is the Defendants position that the space behind the fence guarding is not a "room" with the meaning of Regulation 851 section 41 and therefore did not require a sign warning of the danger of live electrical parts.

Crown's Position

[18] It is the Crown's position that there should have been a sign at the back of the machine, the caged area, and that it is the entrance of a room within the meaning of Reg. 851 s. 41. The Crown says this is not a lockout case. There is a distinction when working on equipment and when not working on equipment for lockout purposes. The injured worker needed to locate the leak before he could fix it and that is the reason he entered the cage. So the worker was not working on the equipment he was trying to locate the problem. The Crown states the worker was aware of the warnings and the high voltage parts but was not aware that this area contained exposed electrical parts because none of the warnings were located in this area.

Admissions

[19] The defendant and Crown admit that the back of the KVA 003 looked like the picture shown in Tab #1 of the Defendant's Book of Photographs, exhibit number 2. All of the pictures in Exhibit 2 are accepted by both parties as representative of the KVA 003 with explanations where necessary to identify features installed after the incident on May 20th, 2009.

Issues

[20] Some of the issues this Court must determine based on the evidence proffered are as follows: Is the caged area in the back of the KVA 003 a room within the meaning of Reg. 851, s.41? Is the signage in or about the machine adequate or misleading as to the presence of an electrical hazard? Is the signage in respect to lockout adequate or misleading in respect to repairing this machine? Were lockout procedures required before the worker tried to identify the source of the leak? Were lockout procedures adequately identified in respect to this particular machine? Was the training by the Defendant adequate in respect to lockout procedures and troubleshooting?

The Evidence

Summary of the Evidence of Jules Arntz-Gray

[21] Jules Arntz-Gray was hired by the Ministry of Labour (MoL) in 2005 as an Ontario Health and Safety Inspector in the industrial section. He stopped being an active inspector when promoted to a Regional Coordinator in October 2009 although he is still qualified as an Inspector. He visited workplaces to ensure compliance and promote internal responsibility in workplaces. He was the Inspector assigned to the Transgear event and took notes at the time and shortly after. He was first notified of the event on June 1st 2009 and it was identified as a not critical incident with 20,000 volts at the time and worker had wounds that were not healing.

[22] The incident took place May 20th, the Ministry of Labour was notified June 1st. Linamar is involved in manufacturing automobile parts using heat treating, making it a factory and an industrial establishment. The Inspector went to the scene on June 1st; the scene had not been secured because it was not a critical incident. He spoke with Mary Shannon the employee relations manager, Darren Goodwin the plant manager, the injured worker and Richard Justin the health and safety manager. He received a copy of the employer's Incident Investigation and Corrective Action Form, entered as Exhibit #3 and what employer changes had been made at the worksite. The Defendant states that the changes made after the event are not relevant to the charges before the Court; this Court is to determine whether the regulations were met at the time of the accident.

[23] The Crown points out that the document, Exhibit #3 was created on May 20th and the purpose of it is to discuss what happened on the day, it comes under the exception of the OH&S Act s. 67(1)(b) as certified by the Inspector and provided by the employer. The Crown argued the Dana case applied and the Court ruled Exhibit #3 is admissible on the grounds outlined in the Dana case, such that its contents can be used as proof of the truth of the facts asserted without calling the witnesses who produced it. The defendant can call evidence to refute it. The Dana case cautioned that remedial actions taken by employer will not go against the actus reus but can be used regarding due diligence. This Court's ruling and reasoning are outlined in the Transcript of these proceedings from April 19th 2011 at pages 80 to 90 inclusive.

[24] Exhibit #3 was provided to the Inspector to give a background to the incident on May 20th 2009 as it was now June 1st when he was advised of and attended the Defendant premises. On June 10th 2009 the Inspector had requested a variety of documents and received the Defendant's Incident Report Form, dated May 20th 2009 and entered as Exhibit #4. The Inspector was at the site on June 1st, 3rd, 10th and 22nd in 2009. The Inspector identified KVA 003 as the machine where the incident occurred and his knowledge of how it functions. He was able to identify the location where the employee was injured with an x on the schematic diagram. The machine had been changed with a mechanism to cut power when the door (gated fence opening) was opened, which did not exist at time of the event. Exhibit #5 is identified as the Premise/Project Form the Inspector filled out which identifies the event as a complaint (and not a proactive report) and if orders were issued they would be in this document.

[25] The Inspector identifies the point where the injured workers head would have come into contact with the brass elbows which had live current running through them in Tab 3 of Exhibit #2 and again in reference to Exhibit #7 picture. Exhibits #6 & #7 show the changes made to the back of KVA 003 after the incident. The Inspector took the photos illustrated in Exhibit #2 at Tabs 4, 6B, 7, 8, 8 A&B, 9, 11 A&B, 14 A, B, C & D as well as the photos in Exhibits #7 & #8.

[26] The Inspector outlined the procedures and purpose for a lockout. He said when dealing with hazardous energy, electrical, kinetic, chemical, you must isolate verify and insure. Isolate by disconnect, verify by ensuring it is disconnected, insure by making sure no one else can turn it on (through a lock mechanism). For electric you put a tag on the logout, who it is and why it is, to ensure the safety of someone in the area and to prevent someone from inadvertently turning it on. It is required whenever a hazard is posed either from energy itself or action by energy such as making a part move. He said that according to s. 42.1 in the Industrial Regs electricians can 'work' on live only when testing or trouble shooting not when doing repairing or maintenance.

[27] The Inspector said that sections 75 and 76 of the Industrial Regs deal with lockout and 75 says:

"A part of a machine, transmission machinery, device or thing shall be cleaned, oiled, adjusted, repaired or have maintenance work performed on it only when, (a) motion that may endanger a worker has stopped; and (b) any part that has been stopped and that may subsequently move and endanger a worker has been blocked to prevent its movement."

He said 75 is very focussed on movement; some kind of motion causing (that may cause) injury to a worker. Seventy–six (76) is slightly different. It talks about:

"Where the starting of a machine, transmission machinery, device or thing may endanger the safety of a worker, (a) control switches or other control mechanisms shall be locked out; and (b) other effective precautions necessary to prevent starting shall be taken."

The Inspector testified: "there was no sign specific to troubleshooting per se. There were a number of signs on cabinet doors that opened up to electrical components saying: 'Danger. High Voltage' and other various warning symbols. But the word troubleshooting itself is not mentioned on those signs."

[28] The Inspector went on to talk about electrical and mechanical troubleshooting. For electrical, troubleshooting is when a trained electrician needs to determine what the fault is in electrical components. If there is no power to those components they are unable to do this. So with proper safety procedures (rubber mats, gloves, other protective equipment) they have a method of touching often using testing equipment where they don't physically with their hands touch the equipment but they test to see if there is current running through parts. Then once they determine the area that is broken they would do a full power down and a full lockout procedure and repair the area that had been indicated as being the problem in the troubleshooting.

[29] For mechanical troubleshooting, the Inspector said similar to electrical troubleshooting, and not talking about a trained electrician but rather someone who is competent to do the work, has the machine powered up in order to observe what the failure or purported failure is. The idea is using safe procedures you have the machinery on so that you can determine where the fault lies.

[30] At the KVA003 the inspector did not observe any procedural signs with regards to troubleshooting. He just observed signs with regards to lockout and warning of hazards of electrical danger on various electrical cabinets.

[31] The Inspector requested documents from the Employer respecting injured worker information including supervisor information, witness information, any documents relating to the employer's and/or joint health and safety committee's injury/accident/incident investigations, photographs not already supplied, first aid reports, health and safety policy and procedures in respect to this incident in existence at the time of the incident, a copy of all procedures for the work or involved machine or device in existence at the time, a copy of the material supplied by the manufacturer for the involved machine or device, proof of training of the injured worker, supervisor and witnesses not already supplied, copies of any health and safety discipline for any the involved, a copy of the pre-start health and safety review for the involved machine and scale drawings.

[32] In respect to the copies of health and safety policy and procedures relevant to this incident in existence at the time of the incident the Inspector did not receive anything related to troubleshooting. Nor did he receive any documents relating to training on troubleshooting.

[33] It was indicated to the Inspector whatever was not provided was not in existence at the time of the incident. The Inspector wrote in his Field visit report: "The employer stated that all documents provided were in existence at the time to the incident on May 20th, 2009, where so requested by this inspector. Documents not provided do not exist the employer stated. The employer stated they are not aware of the location of the supervisor at the time of the incident."

[34] The Inspector concluded his examination in chief by stating that: "… it was clear to me once I sat and reviewed the statements from the workers and the evidence gathered that …it was unclear to those involved what to do when troubleshooting with regards to electrical hazards. It was a clear answer that electrical work is to be done by electricians but, when it came to mechanical hazards and mechanical troubleshooting, it was unclear when to do lockout and when not to do lockout and what the procedure was with regards to troubleshooting."

Cross Examination of the Inspector

[35] On cross examination the Inspector acknowledged that Linamar was not required to notify the Ministry of this accident, and they received information from other sources about an accident. He admitted he did not specifically ask the employer for documents about troubleshooting, there were adequate guards at the back of the KVA prior to the incident and acknowledged that the Ministry's position is they required a sign at the back of the KVA, and though that is not the employer's position, they since added three signs at the back. The Inspector did not talk directly to Jim Hagan the injured worker's supervisor.

[36] The Inspector acknowledged that within the guarded area of this machine there were electrical and mechanical hazards. There were no signs about troubleshooting but there is no sign saying it is permissible to remove guarding when troubleshooting without locking out. And there is a sign in Exhibit eight "B" that instructed "Lockout if you are removing or bypassing machine guards". The Inspector acknowledged the injured worker initially locked out but then took his locks off entered the guarded area of the machine positioned himself beside the moving hazard beside an electrical hazard (the transformer).

[37] The Inspector admitted the Act (Sections 75 & 76 of Regulation 851) requires lockout whenever exposed to a hazard and there is no exclusion for troubleshooting. And on the equipment the Inspector saw and the procedures he saw from Linamar there was no exception to that. And the Inspector acknowledged that although the worker was aware of the hazard posed by the slide and the hazard of the transformer, he squeezed himself into that area shown towards the left of the photograph (Exhibit 2. Tab 3) an area not much wider than a person's body and instructed the operator to cycle the machine.

Summary of the Evidence of Amelio Aramini

[38] The second Crown witness was Amelio Aramini (hereinafter referred to as Aramini), the injured worker and a 11 year employee of the Defendant Transgear at the time of the incident. He worked in maintenance and through weekend schooling at Conestoga College became a licensed millwright certified by the Province since March 2008 with over 8000 hours required in the trade for certification. He stopped working after the incident in May 2009 although he is still an employee.

[39] Aramini was paid for and worked as a millwright or maintenance mechanic for Transgear at its plant at 400 Massey Road in Guelph. In that capacity he does fabricating, repairs to machine – CNC machines, and diagnosing problems with machines as well. He is not an electrician and does not work with electricians.

[40] Aramini is the injured worker involved in the workplace accident, the subject of these proceedings, on May 20th 2009 at 400 Massey Road. He said he was diagnosing a leak on one of the machines which is a KVA, a KVA on 003 line. He had earlier been assigned to a different machine which had a programming issue and when he was no longer needed at it he went to his supervisor Jim Hagan and told him he would now look at the leak mentioned to him earlier by the supervisor on the subject machine. He testified that he had worked on this machine in respect to leaks before, it was a common thing.

[41] "At times there would be pump leaks and then there were actual hose leaks. This particular time it was coming off the hoses at some point." (p. 32 transcript April 20, 2011). The last time he had fixed a leak at this machine would have been a week before. But it was not a similar situation to the leak this time. "The first leak was an actual pump seal that was gone. This incident here was actually coming from the unit; the hoses that heat the particular machine." (p. 32 transcript of April 20th 2011). The leak repaired earlier on the pump, was in the same fenced area as where the incident occurred.

[42] Aramini went to the machine and the set up man, Jovan was inside the robot cell. He mentioned to Jovan that he needed to take a peek at this leak and Aramini put his lock on the robot cage to keep the door open. He asked Jovan to turn on pump one and did not see the leak, so he asked him to turn on pump two. He "Still wasn't able to detect the leak. So I went to the back of the machine and from the outside of the cage with my flashlight as he was continuing to run the unit back and forth, I was able to see the leak." (p. 37, transcript April 20, 2011). He was standing outside the cage at the back of the machine where the incident later occurred, Ex. # 2 Tab 7 photo. And he was able to see the water running down the tank.

[43] "At this point I asked Jovan to put the robot in auto cycle. We removed our locks from the cage…So he could be my spotter at the back" (p. 38, transcript April 20, 2011). Leaving the machine running because that was the only way to find where the leak was coming from. Transgear drilled into our heads we required a spotter. "once he was my spotter I entered the cage with my flashlight. I went in on the left side of the slide, the glorified slide, and I was looking up and down. Still wasn't really too sure where it was coming from. And before we knew it-before I knew it I could hear like a crackling, like a zipit (sic) and it threw me back and all I could-all I remembered was my body locking up and fire coming from the transformer, something like that. And from that point there I don't remember how I got out of the cage." (p. 39, transcript April 20, 2011).

[44] Aramini was asked if he required any tools to enter into the cage and he said no. He guessed from the midnight shift there and the leak happened, the machine always had a vacuum cleaner on hand and whoever was working on that machine cleaning the water coming out hadn't bolted the gate.

[45] Aramini said he had not locked the machine prior to entering past the gate because he still had not found where the leak was coming from. He felt it was not an unusual circumstance, it is like bringing your car to an automotive mechanic and saying there is a noise in my engine but you can't start the engine. It's impossible to find-diagnose the problem. He said he was troubleshooting.

[46] Aramini said he was not physically doing any repairs to the machine at the time of the incident. "My intentions was just to troubleshoot it and if I-once I realized the problem I would've locked the machine out, have had Jovan write up a work order." (p. 41. Transcript April 20, 2011).

[47] Aramini said he had not entered the cage while the machine was running before. He understood the lockout policy was "Once the troubleshooting has been resolved and you knew what the problem was, all energized parts must be de-energized." (p. 41-42, transcript April 20, 2011).

[48] Aramini said you would not lockout prior to troubleshooting and troubleshooting was a daily part of his job.

[49] Jovan was with Aramini and Jovan had not told him not to enter past the cage or to lockout before entering. Aramini said he was not aware of the electrical hazards before entering the cage and if he had been aware of the electrical hazards he would not have entered the cage. Exhibits #8 and #7 are pictures of the cage and where he entered it to the left beside the glorified slider. The two bus bars now, since the incident covered with red material, were where he was electrocuted.

[50] Aramini said he thought those two bus bars were just water lines because the machine is cooled by distilled water. No one had told him that those lines contained electrical energy. He said he was never given any instructions on how to troubleshoot when he had entered past the guard on this machine and there were no signs posted on the cage area that warned of an electrical hazard within that area.

[51] There were signs on the electrical housing (a cabinet door) to the left of the cage which warn of electrical hazard and he thought they meant a high voltage system within that area. He said "everyone is authorized there" (p.45, transcript April 20, 2011) to go past the cage or gate but where the electrical side is there are only certain people that are only qualified. There is no other way to get into this caged area. To the left is electrical and there is no entrance to the right (p 57-58 transcript April 20, 2011).

[52] Where the signs say "Danger. High Voltage" only electricians and millwrights that our supervisor has trust that they have knowledge to go in there can go in there, and he understood absolutely that he should not go in there. He would not enter those areas.

[53] Aramini said the electricity entered through his left hand skull and exited his back left shoulder. He had burns to his left-hand side and the burns indicated where it entered and exited. The hole in his shoulder did not heal until September. He did not remember getting out of the gate but after getting out remembers: "I threw my glasses off because the frame was hot and then I picked them up again because I knew I was going to get in trouble if I had-if I was seen with my glasses off. And then Jovan saying:" I hit the emergency stop," and, "I've seen this before." I don't know what he meant by that. I didn't know what he meant by that." (p.47, transcript April 20, 2011).

[54] Aramini went to his supervisor who was in maintenance at the time and mentioned that he was electrocuted, removed his shirt and once he seen it that he rushed me to or sent me to the nurse's room. Management was called; she assessed me and mentioned that I should go to the company doctor, whom he saw about one half hour after the incident. The company doctor checked his burns, covered his burns and sent him back to work.

[55] When he returned to work, they had a meeting inside the conference room with management and a health and safety representative to go over what happened where Mary Shannon, Darryl Goodwin, Harbi Dhindsa and Peter Baggio were present. He went to the machine with Darryl to explain what he did and then asked Darryl if he could go home to take a shower " 'cause I just smelled burned skin". After which he drove home returning the next day to work. He worked the next day but they kept calling him to meetings. He tried to see his family doctor that day but they were closed. He called his family doctor and receptionist spoke to the doctor and they told him to go to emergency at General Hospital. Exhibit #12 photograph of injuries.

[56] Aramini's injuries, the burns, were treated with the removal of dead skin, ointments, and repacking or repatching with bandages. His shoulder never closed until September 2011. He has cognitive memory issues, and speech issues. He has to write everything down for his day to day appointments and is having difficulty remembering new information. He does not have difficulty remembering past events but it is difficult to retain new information. He has difficulty finding words, the word is there but he can't get it out, and his concentration requires him to be actually looking at the person speaking to him. They don't anticipate him to recover from these cognitive issues.

Cross Examination of Aramini

[57] Defence counsel had Aramini re-affirm the duties of a millwright including install, repair and maintain equipment, which he did for 11 years at Transgear. He then introduced Aramini's training record as Exhibit #13.

[58] Aramini received lockout training every year, the last being April 30th 2009 about one month before the incident. In reviewing Tab 2 of Ex#13 where Aramini received a certificate for Lockout Awareness February 6, 2004 this Court notes test question #15 which says: When testing equipment and lockout is not possible, it is not necessary to lockout as long as a lookout is available to help ensure the area is clear. Answered true, marked correct.

Tab 3 Ex. #13 Certificate Feb. 4/05 for Lockout, same test, same answer to question #15.

Tab 5 Ex. #13 Certificate Feb. 15/06 for Lockout, same test, same answer to question #15

Tab 6 Ex. #13 Certificate Apr. 20/07 for Lockout, same test, same answer to question #15.

Tab 8 Ex. #13 Certificate Apr. 29/08 for Lockout, a modified test, questions # 2, 5, 7, 8 10. 11, 12, 13, 14, 17, & 19 are the same questions with the same true or false answers. Question number 1 is different and states with an answer of True that: "Lockout/Tag out procedures should include drawings of each system outlining location and identity of switches, power sources, controls and other devices required to obtain a zero energy state". This Court will consider later whether in fact this new procedure was done in respect to the lockout of KVA 003. Q#3 now deals with small power tools. Q#4 is substantially the same with the added words "or repairs" at the end. Q#6 is different dealing with the possibility of an employee installing more than one lock to lock out. Q# 9 changes the number of employees who can put a lock on a lockout clip machine from 6 to 4. Q#15 is the same with the added phrase of " and all partial lockout procedures are followed ". Q#16 is different and the answer is false to "It is acceptable to give your key to your supervisor for safe keeping." Q#18 is modified by referring to the mechanic instead of operator and adding the words "or other ways listed on the procedures" and the answer is True, it now reads "The mechanic must verify the isolation by clearing the area and trying the start button or other ways listed on the procedures". Q#20 is added it says "If there is already a lock on the machine you must still place your own lock if you are going to work on the machine."

Tab 10 Ex. #13 Certificate Apr. 14/09 for Lockout, same test as Tab #8, same answer to question #15 as modified in Tab 8.

Tab 11 Ex. #13 Certificate Apr. 20/09 Linamar Hazardous Energy control Program discusses Lockout and Equipment Specific Procedures among other things. This court will revisit Tab #11 in respect to its affect or application on KVA 003 later.

Tab 12 Ex. #13 Certificate Apr. 14/09 for Lockout, same test as Tab #8, same answer to question #15 as modified in Tab 8.

[59] In cross-examination Aramini testified that Jovan was his spotter. That they looked around the machine and there was no emergency stop to hit at the back of the machine. In response to questions Q: "And [your] training though told you that if you're using a spotter, the spotter has to be able to hit the emergency Stop?" Answered A: "Or has knowledge" Q: "…To stop the machine?" A: "Yes; has knowledge of the machine." (p. 76 transcript 04/20/11)

Q: "…You agree there was no place that Jovan could stand, watch you and stop the machine?" A:"Correct". Q: "Okay. But you still went into the equipment?" A: "Correct." Q:…"you knew there were lots of labels on that equipment, on the KVA, warning of electrical hazard?" A: "On the outside of the cage, yes". Q: …"On both sides?" A: "Yes." Q: "And all around. You knew that, right?" A: "On the cages I entered there was nothing, no." (p.77 transcript 04/20/11).

[60] Aramini further testified in cross he knew the fencing in the back of the machine was a guard and that the signs said to lockout if you remove or bypass a safety device or guard. He said he was aware of the danger of the transformer but there was no way you could even touch the transformer from where he was. He was cautious about the transformer because high voltage like that can arc.

[61] Aramini said he wanted to be in there (the gap) while the machine was going through a cycle and aware the moveable slide would move forward when Jovan was in position as his spotter. Q: " …Then for the power to come from the power sources in the side and go into the-go through the transformer and into where the part would be?" A: "Yes." Q: "…And then after that the water pump would quench it and you hoped to see the leak at that point?" A: "Correct." Q: "…So you wanted the entire process to occur while you were standing in the gap looking for the leak?" A: "I wasn't standing. I was kneeling." (pp. 85-86 transcript 04/20/11).

[62] Aramini testified in cross that he did not perform a partial lockout on the KVA that day while he was troubleshooting. Q: " …Although the training that we've just talked about says you are to perform a partial lockout and have a spotter when you're doing troubleshooting." A: "Yes. By the signs, that's correct." Q: "Okay." A: "By the signs that's correct. By the training, that's incorrect." (P.86 transcript 04/20/11).

[63] Finally in cross, in response to Q: "And you didn't have Jovan acting as a real spotter did you?" A: "I believe I was, yes." Q: "Well, you said that to be a spotter Jovan had to be able to stop the equipment?" A: "Yes." Q: "But he wasn't –if he was standing behind the machine with you he couldn't stop the equipment, could he?" A: "Have-had knowledge of the equipment." (pp. 87-88 transcript 04/20/11).

[64] In Re-Examination Aramini said he did not know what partial lockout was and had never been given instructions on how to partially lock-out a machine. The lockout placard attached to the machine did not tell you how to partially lockout the machine. In reference to the training records (tests) on troubleshooting, he was asked if it is not necessary to lockout as long as you have a spotter and Aramini said yes. (p. 91 transcript 04/20/11). Aramini said he had a spotter, the spotter was Jovan. And finally, Q: "When troubleshooting, what safety procedures were required according to this testing?" A: "To have a spotter." (p. 92 transcript 04/20/11).

Summary of the Evidence of Bill Stark

[65] Mr. Bill Stark was an Inspector for the Ministry of Labour for 15 years in Guelph and Kitchener area. He subsequently has worked 12 years in the field, the last five years as head of his own company, as a safety consultant and trainer, particular in respect to machine guarding to make the machine safe in accordance with the Regulations and using the Code as guidance.

[66] He is familiar with the KVA 003 induction heater involved in this accident and his opinion is that the section 41 signage requirement does not apply to the back of this machine; it applies to power distribution rooms or motor contactor in a room. He was qualified as an expert witness to give his opinion in respect to machine guarding and he said he never in his experience made nor saw a section 41 order in respect to this type of machine guarding. He said 85 % of his time in the last seven years has been spent on machine guarding and machine guarding only. The defence position is that the signage is part of the guarding on a machine.

[67] Mr. Stark says the screening that runs along the back of the equipment is a physical barrier guard capable of being dismantled to provide access for maintenance and other purposes. At page 118 of the transcript 04/20/11 he says: "You have to maintain this equipment. It moves. It works. It wears out. You can have the physical barrier guarding that meets the CSA criteria in height, size, distance; all the good things that this fence guarding. You can have it bolted into place but, somehow, you've got to take it out of place to maintain that equipment; to set it up, top repair it, to fix leaks. You've got to get at it whether you take the post off or rip it up or do something with it, you've got to get it out of the way and it's not easy to handle."

[68] Stark said the fence on this machine is hinged on one side but bolted on the other into place. The mesh meets the criteria in the CSA allowed a certain sized opening based on the distance from the hazard. That fence meets it. You can't stick your fingers in the hole and get it caught on the other side by the hazard (p.119 transcript 04/20/11).

Cross-Examination of Bill Stark

[69] In Cross-Examination, Stark acknowledged he has been involved in training related to lockout, has trained workers in how to lockout and when it is required and that the training is usually followed by a true or false test. He acknowledged question 15 in Tab 10 of Exhibit 13 (last test taken by Aramini before the incident) talking about troubleshooting. He acknowledges that except where the legislation requires a spotter for electrical troubleshooting (section 42.1(3)) it does not apply to mechanical troubleshooting. Q: " … So that a spotter would not be required if you are testing or troubleshooting according to the legislation?" A: "Was he testing? I don't know." Q: "That's fair. I'm just saying, according to the legislation, it wouldn't be required if that is what he was doing." A: "That's correct." (p. 123 transcript 04/20/11).

[70] Stark states that as an inspector there is a distinct differential between troubleshooting and work. In respect to the company test he acknowledges when full lockout is not possible you have to have a spotter available. In respect to the placard on the machine (Exhibit 2, tab 11 "B") he says: " You can lockout the machine with that placard". Q: "Okay. But does it tell you how to partially lock it out?" A: "No." He says it would be based on knowledge and experience. (p. 126 transcript 04/20/11). At page 127 transcript 04/20/11 he says; "You cannot partially lockout the machine strictly by that placard". Q: "You would have to do so based on your knowledge and experience." A: "Correct." Q: " And if you didn't have that knowledge and experience you wouldn't know how to partially lockout a machine." A: "You're right".

Re-Examination of Bill Stark

[71] In Re-Examination, Stark says the legislation ties endangerment to lockout, so if equipment might endanger you lock it out. And he acknowledges that some companies go beyond the requirements of the Act and says most companies do. Referring back to Question 15 in Tab 10 of Exhibit 13: Q: " …Now in this particular case it says, question 15 Tab 10 of Exhibit 13, says that when troubleshooting, if you can do a partial lockout and have a spotter that works, right?" A: "That's what it states." Q: "Okay. And so if I…if I come to the KVA and I don't know how to partially lock it out, what does the training tell me?" A: "You're to lock it out." Q: "So if I can't partially lock it out, what part do I lock out?" A: "The whole thing." (p. 129 transcript 04/20/11).

Summary of the Evidence of James Hagan

[72] Hagan started at Transgear in March 2004 and became maintenance supervisor in charge of 19 maintenance trade workers including electrical and millwrights in January 2007, one of whom was Aramini. There are 176 pieces of main production equipment at Transgear and his group of millwrights was responsible for the maintenance and mechanical repairs of all production equipment including lays, milling machines, spline rollers and broaches, robots, and induction hardening machines. All of the equipment is different. The KVA 003 was part of that equipment and it is an induction hardening machine.

[73] Hagan had two lead hands that assisted him in supervising the workers and typically those supervisors would come to him and as well he would see the guys at various points throughout the day and assign them to different breakdowns. Probably half the time when the guys would finish a job they would come to Hagan but if he were unavailable they would go to one of the lead hands.

[74] On occasion Hagan would perform maintenance work himself. None of the millwrights were expected to be expert in all of the 176 pieces of equipment. To keep them safe they are taught to follow procedure, if they get to a cross road and don't know how to proceed they are instructed to come to him.

[75] In his term as supervisor he took disciplinary action against three people for different lockout infractions. In September 2007 one of them was Aramini, who had removed his locks from a locked out machine before the next employee at the end of Aramini's shift had placed his locks on that piece of machinery. Aramini should have left his lock on, gone to the shift change meeting, told the lead hand that his machine was still in unsafe condition and the lockout needed to be transferred, and the lead hand would have put a shift change lock on it. Hagan had no other occasion to discipline Aramini again, not for that, not for safety issues, not for working safely, no other occasion.

[76] An apprentice millwright needs 8000 hours of equipment training to become a millwright. Aramini had his millwright's certificate; he got his training while at Transgear. Lockout training was a part of that training but according to Hagan in relation to the 8000 hours it is not a large part of those 8000 hours although every time you go to work on a machine you lock it out so it fits into the category.

[77] Aramini would have performed all millwright duties, machine repair, and break down in his 11 years at Transgear, operating tow motors, sky jacks, a very wide range. He would be troubleshooting every day.

[78] Hagan never taught lock out. There was a lockout course once every year with written multiple choice questions at the end of the course. Lockout means the machine must be turned off zero energy, no electrical, no hydraulic power, and no compressed air. It includes gravitational in some instances.

[79] Whenever an employee works on equipment they must lock it out to zero energy. The training for troubleshooting was to lock the machine out and assess the situation. "If it's an instance where the machine needs to be powered up to find out what's wrong then you need a spotter. You need somebody standing on that E-stop that can see you and that is properly trained in CPR…" (p. 14 transcript Oct 6/11).

[80] Where there is no E-stop, pressing an E-stop kills all the power, then an employee troubleshooting equipment would come and get Hagan who would go and assess the situation and instruct them on how to proceed safely. Hagan estimated that would happen once a week.

[81] Hagan reviews the purpose, function and layout of the KVA 003 piece of equipment, its safety features, and lockout and warning signs. He testified that Aramini had worked on induction heating equipment many times before (Exhibit 14). The week prior to the incident Aramini repaired a leaking pump in the KVA 003. Hagan had instructed him to repair it and using a flashlight had shown Aramini where the leak was. Later he walked past and saw Aramini had the machine locked out and had the pump apart replacing the seal.

[82] On the day of the accident, Aramini had finished what he was doing and came to Hagan's office said Robert had stopped him and told him the KVA was leaking again and could he have a look at it. "And I just –I said: Yeah, yeah. Go ahead. And he, at that point, turned around and went to work on the machine" (p. 34 transcript Oct. 06/11). About 45 minutes later Aramini came back to his office, came through the door and stood beside him and said: I got a shock. At which point Hagan took him to see the nurse.

[83] Aramini told Hagan he initially locked out the machine but could not find the leak. There is no E-stop at the back of that machine and Hagan would have expected Aramini to come and get him. Hagan said he had never known Aramini to troubleshoot without either locking out the machine or having a spotter. He said it is possible to partially lockout that machine but he would not necessarily expect Aramini to know that. (p. 40 transcript Oct. 06/11).

Cross-Examination of James Hagan

[84] Hagan acknowledged that he is familiar with the training provided to maintenance mechanics but he does not do the training, it is done by an independent, outside firm. The training goes on every week for certain employees at different times and they are retrained a year later. He would not be present when Aramini was trained. Hagan defined troubleshooting as the investigation to find out what is wrong with a piece of equipment, and cycling a machine is trying it out after it is fixed to ensure it is running smoothly.

[85] Troubleshooting does not always mean running the machine, sometimes you troubleshoot when the machine is not in operation. Hagan estimates that troubleshooting is done when the machine is operating 60% of the time and that 40% of the time it is cut and dry as to what is wrong. So 60% of the time you need to run the machine in order to watch and listen to find out what the problem is.

[86] A maintenance mechanic's whole job is to determine the problem and fix it, something they do every day. Troubleshooting is the job specifically undertaken by the maintenance department and not something the machine operator would usually be doing.

[87] Hagan agrees that the training in lockout involves the Industrial Regulations; the regulations are made under the Occupational Health and Safety Act and the company's policies and procedures are derived also from the Act following the laws set out in the Act.

[88] Hagan agrees that before conducting work on a machine you need to lock it out. He agrees that there are very specific situations in which a machine has to be shut down and locked out but troubleshooting is not one of them. In reference to section 42(1) of the Regulations (851) he acknowledges that the power supply has to be locked out and tagged before any work is done but that the first step is in complying is knowing which parts are live exposed parts (p. 49 transcript Oct. 06/11).

[89] Hagan agrees that the legislation does not say to shut down a machine when troubleshooting and that nowhere in Transgear's training program is a worker instructed to shut down a machine when troubleshooting and they could not be instructed that way because 60% of the time you could not figure out the problem unless you were troubleshooting with the machine live and active (p. 50 & 51 transcript Oct. 06/11).

[90] Hagan was unaware that the back of the machine gate or the area through which Aramini entered was not locked or bolted shut. He acknowledges there were no signs on the gate or area through which Aramini entered and we know that there were live exposed electrical parts behind that fence because Aramini was electrocuted.

[91] In reference to exhibit # 13 Tab 15 which is the Linamar Electrical Safety Program page 227 noted in the top right hand corner down at the bottom of the page at 5.1.2 says: "The entrance to a room or other enclosure containing exposed energized electrical parts shall be marked by conspicuous signs stating that entry by unauthorized persons is prohibited. The rooms shall also be secured." (p. 53 transcript Oct. 06/11).

[92] Hagan agrees the area seen in Exhibit Two Tab One is the fencing area at the back of KVA 003 that would open up when the bolt is removed and there is no other way to enter that area, not from the front, or either side. He agrees the cabinet to the left of this fenced area runs all along the side of that area and has a sign saying "Danger: High Voltage". He says the right side of the fenced area is enclosed by another cabinet which is the RF transformer which is another power supply for the same machine. The front of the machine (which forms the back of the fenced area when you enter from the back) has a door that opens and closes and that is where the robot puts the parts in and out. You cannot go straight through to the front area from the back because there is a tank there full of fluid.

[93] In respect to troubleshooting: Q; "I understand that's part of the lockout training. Is that right?" A: "No". Q: "Okay. When is that training given to them; the troubleshooting training?" A: "Through the 8,000 hour apprenticeship program." Q: "Okay…maybe you can tell me again. What is the policy or the training that is provided on troubleshooting when you're exposed to a hazard?" A: "the-if you have to troubleshoot live, per se, you must have a spotter. That spotter must be able to see where you are, what you're doing and must be able to reach an E-stop." (p. 56 transcript Oct. 06/11).

[94] Hagan A: "And that spotter must also have CPR?" … "And now CPR includes defib as well." Q: "And is that the same if the hazard is electrical or mechanical?" A: "Yes. It doesn't matter." ….Exhibit 13: Q: "Tab 10 ...you'll see there is a test on the second and third page of that tab. And the test has certain questions and answers given to each worker after they complete the lockout training. And I am looking at question 15. And it says: "When testing or troubleshooting equipment and complete full lockout is not possible, it is not necessary to lockout as long as a spotter is available to ensure the area is clear and all partial lockout procedures are followed." That's what the question-answer." A: "Yes….Q: "And the answer is true, correct?" A: "Yes." (pp. 57-58 transcript Oct. 06/11).

[95] Hagan acknowledges that the above question 15 is during the lockout training but in response the Question: "So, presumably, there is some training given to them on troubleshooting during that lockout program?" He answers: "It would be very vague-it would not be, by any means, machine specific. It'd just be a very vague reference to, I guess, for lack of a better word." And the further Question: "Okay. So they would not be told anything further than what is in question 15 which is when testing or troubleshooting equipment and full lockout is not possible, it's not necessary to lockout as long as a spotter is available to help ensure the area is clear. That's what they would've been told, fair?" He answers: "Correct. Yes". Q: "And it wouldn't contain any further training in that area?" A: "No." Q: "Now, were there any written policies for troubleshooting at the time of this incident?" A: "None that I'm aware of, no." Q: "And are there now?" A: "No, I don't believe so." Q: "So nowhere is it written down what the procedure is for troubleshooting live, correct?" A: "Yes." (p 58 transcript Oct.06/11).

[96] Hagan acknowledges that troubleshooting is learned doing their apprenticeship hours, through workers telling them, or the supervisor telling them, but it is not documented when a worker has been given that particular training (p. 59 transcript Oct. 06/11).

[97] Hagan acknowledges that an investigation took place after the accident and is referred to Exhibit #3 which is a copy of the document they produced as a result of the investigation and is referred to Section Five: Corrective Actions and Verifications, Short-Term Corrective Actions to be taken and Long-Term Corrective Actions. Long term includes revising the lockout procedure to include high power off when troubleshooting which Hagan explains means E-stop and the breakers disconnect. That would eliminate the energy to the bus bars (through which Aramini was injured). And Long Term includes to interlock the perimeter or fixed gate guard, which means to open up the gate area where Aramini entered would shut the power down.

[98] Hagan said that "maybe 20 percent of the 60 would be where you actually have to remove a guard" in response to the question how often it would be necessary to do troubleshooting behind a guard (p. 64 transcript Oct.06/11). A spotter is not necessary unless you are troubleshooting behind a guard. And the spotter is only necessary because you are exposing yourself to a hazard.

[99] Hagan acknowledges that sometimes you need to run a machine to find where the leak is coming from and in fact the machine would stop leaking if it were shut down. (p. 66 transcript Oct.06/11).

[100] Hagan acknowledges that the test in April 2008 had changed from the previous lockout tests and the 2008 test is the same as the April 2009 test with Question 15 (Exhibit #13 Tab 8) now reading " When testing or troubleshooting equipment and complete lockout is not possible, it is not necessary to lockout as long as a spotter is available to help ensure the area is clear and all partial lockout procedures are followed." Hagan says the only training provided on this partial lockout procedure was experience through their apprenticeship. And he would not know what the actual training was. He acknowledged the question sets out the only purpose of the spotter is to ensure the area is clear of other workers (p. 71 transcript Oct.06/11).

[101] The testimony in cross-examination continues with Hagan acknowledging that the spotter is there to make sure no one else comes into the area of the machine when a worker who is troubleshooting has gone past a guard and exposes himself to a hazard: Q: "And one of the purposes of the spotter is to ensure that nobody else enters the area and exposes themselves to the hazard, right?" A: "Yes." Q: "They, unfortunately, are exposed to the hazard. It's part of the job, right?" A: "Yes." Q: "Is that correct?" A: "Yes." Q: "And from what you said earlier about 20 percent, 60 percent of the time you are troubleshooting live, you're doing so behind a guard, right?" A: "Yeah." Q: "And you are exposing yourself to a hazard?" A: "Yes." (p. 72 transcript Oct.06/11).

[102] The cross exam of Hagan continues with reference to the Linamar Hazardous Energy control Program Exhibit 13 Tab 11 and Hagan acknowledging that nothing in that document tells you what to do when troubleshooting. It is the policy for lockout and Q: "…nowhere in that policy does it tell a worker what to do when troubleshooting, right?" A: "No." (transcript p. 73 Oct.06/11).

[103] In response to questions Hagan acknowledges the first purpose of a spotter is to ensure that no one else enters the area and the second purpose is to stop the machine if something happens, and that is the same whether exposed to electrical or mechanical hazard. The spotter is the first to witness if there is a problem and stop the machine once the problem occurs. Q: "And, again, if a person is troubleshooting and is electrocuted, it's their job to press the emergency stop button to stop the machine?" A: "Yes." Q: "Now, inherently, the person first has to be electrocuted, right?" A: "Yes". (pp. 74 to 75 transcript Oct. 06/11).

[104] Finally, Hagan acknowledges he did not give any specific training to Aramini on partial lockout, nor does he know if he received any specific training, nor doe Hagan go to specific machines with Aramini and tell him how to partially lockout. (p. 75 Transcript Oct.06/11).

Re-Examination of James Hagan

[105] Hagan acknowledges there is a lockout placard on each machine, it would not be possible to teach lockout on 176 machines to Mr. Aramini, and the direction on the KVA is to lockout whenever you remove a guard. The copper tubing is only energized when the machine is actually processing a part, and it would not be appropriate to take the guarding off the back of the KVA and use a spotter. Hagan had never heard of anyone entering the back of the KVA without locking it out.

Summary of the Evidence of Darryl Goodwin

[106] Goodwin has been with Linamar for 21 years and the operations manager at Transgear for five or six years. After the accident he was involved with the investigation of Aramini's accident. He put a group of people together and they brainstormed and threw ideas down on the table. He said they do not represent conclusions reached by Linamar about the accident they would just be ideas thrown out. And they use that brainstorming to come up with potential corrective actions (Exhibit #3). They did not conclude there was improper signage, lack of guarding, nor that they needed better guarding, although Linamar upgraded the guarding and the equipment after the fact. The conclusion he reached in the course of his investigations as to the cause of the accident was: "There was a failure to lockout. It's very simple." (p. 87 transcript Oct.06/11).

The Law

Both the prosecution and the defence cite the cases of Sault Ste. Marie and The City of Hamilton.

The case of R. v. Sault Ste. Marie (City) [1978] 2. S.C.R. 1299 established the defence of due diligence in public welfare offences, it recognized three categories of offences with Justice Dickson stating at page 18:

"…there are compelling grounds for the recognition of three categories of offences rather than the traditional two:

1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence;

2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act pima facie imports the offence, leaving it open to the accused to avoid liability by proving he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistakes set of facts which , if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event . These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey's case.

3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault."

Due diligence is the defence in the case at hand and no one questions that. In the paragraph proceeding the quotation above, Justice Dickson states: "In this doctrine it is not up to the prosecution to prove negligence. Instead, it is open to the defendant to prove that all due care has been taken. This burden falls upon the defendant as he is the only one who will generally have the means of proof. This would not seem unfair as the alternative is absolute liability which denies an accused any defence whatsoever. While the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act, the defendant must only establish on the balance of probabilities that he has a defence of reasonable care."

[108] The Occupational Health and Safety Act is a public welfare statute. Justice Sharpe of the Ontario Court of Appeal in Regina v. Hamilton , [2002] O.J. No. 283 at page 6, put it this way:

"The Occupational Health and Safety Act is a remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety of workers. When interpreting legislation of this kind, it is important to bear in mind certain guiding principles. 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."

[109] The prosecution refers to the case of R. v. Seeley & Arnill Aggregates Ltd. , [1993] O. J. No. 443 at paragraph 17 which states: "The company must show that it took all reasonable steps at the time and place to avoid the particular event."; And R. v. Kurtzman , [1991] O.J. No. 1285 at paragraph 37 which says: "The due diligence defence must relate to the commission of the prohibited act not some broader notion of acting reasonably".

[110] The prosecution quotes the Ontario court of Appeal case of R. v.. Dofasco Inc. (2007) 2007 ONCA 769 , 87 O.R. (3d) 161 at paragraph 24 : "workplace safety regulations are not designed 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."; And at paragraph 25: " In our opinion Dofasco's argument ignores common sense. Employees do not deliberately injure themselves."

[111] This Court further notes paragraph 27 of the Dofasco case, supra, which concludes: "…The injury he suffered was as a result of his deliberate act, but it was an act done in furtherance or productivity in the work undertaken for the employer and not for any other reason. To suggest that the responsibility for the injury, pain and suffering rests squarely on his shoulders would be unfair because defects in the process for performing the work in question and the absence of a physical guard contributed significantly to the accident."

[112] A case familiar to the defence, with its principles adopted by the Ontario Court of Appeal in R. v. London Excavators , [1998] O. J. No. 647, and the Superior Court decision of R. v. Inco [2001] O.J. No. 4938 , is R. v. Gondor [1981] Y.J. No. 16 , the Gondor case says at paragraph 22:

"Reasonable care implies a scale of caring. The reasonableness of the care is inextricably related to the special circumstances of each case. A variable standard of care is necessary to ensure the requisite flexibility to raise or lower the requirements of dare in accord with the special circumstances of each factual setting. 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.

(e) Extent underlying causes of the offence are beyond the control of the accused."

And at paragraph 23: "The greater the potential for substantial injury, the greater the degree of care required". And further paragraph 25: "Reasonableness of care is often best measured by comparing what was done against what could have been done."

[113] Both the prosecution and the defence cite the Ontario court of Appeal case of R. v. Timminco , [2001] O.J. No. 1443 with the prosecution referring to paragraph 24 which says: " the burden of proof is on the Crown to establish the actus reus of a strict liability offence, beyond a reasonable doubt. The burden of proving a defence is on the defendant in the proceedings. This is in part because…it is the defendant who is in the best position to know what actions, if any, were taken to avoid a statutory breach". And at paragraph 25: " …The very nature of the machine, how it works and the risks it poses to the worker are all matters within the employer's special pool of knowledge."

[114] The final two cases referred to by the prosecution are Lee Valley and National Wrecking. In Lee Valley Tools Ltd. [2006] O.J. No. 561 Justice of the Peace Woodworth in a decision upheld by the Ontario Court of Justice on its findings but returned to the Justice to enter a verdict overturning the original stay of proceedings for delay, which appeal was upheld by the Ontario Court of Appeal, Justice of the Peace Woodworth says:

"General knowledge of safety procedures is not sufficient to remove the onus for an employer to provide training and instruction in relation to a specific activity that may have very unique inherent dangers and require specific training in safe procedures to avoid those dangers. Although both Mr. Marusik and Mr. Johnson indicated that they were aware of other safe methods of performing this same task both parties gave evidence that they were never provided instruction in, nor directed to use, any method other than the inherently unsafe method they were using on the date in question. An employer is not entitled to rely upon general safety knowledge of even a well-trained, well-educated or very experienced employee where there is no indication that the proper procedure for a particular task is either a fundamental part of their training or a specific aspect of that individual employee's skill-set."

[115] In R. v. National Wrecking [2005] O.J. No. 3538 the prosecution refers to paragraphs 71 through 74 where Justice Keast says at paragraph 71: "The purpose of workplace safety policy , whether rooted in the legislation or in plain commonsense, is to protect the widest possible group of people, which goes beyond the average." At paragraph 72: " the workplace contains an endless variety of people:

(a) Different levels of education;

(b) Different levels of experience;

(c) Different levels of judgment;

(d) Different levels of perception;

(e) Different levels of concentration and focus;

(f) Different levels of attention and awareness;

(g) Different levels of analysis;

(h) Different levels of observation;

(i) Different levels of understanding;

(j) Different levels of intelligence."

And at paragraph 73: "The target of workplace safety is the widest and lowest common denominator of people. Safety principles are designed to cut across the differences in people. As much as possible, rules are designed to cater, not to the so-called average, but to everyone.

And of special note, at Paragraph 74: " For example, something as simple as a caution or warning sign or taping around a hazard, is something everyone understands, regardless of their individual differences."

[116] The defence refers to the Hamilton case [supra] at paragraphs 18 and 20 which highlight proper statutory interpretation and balancing an interpretation that promotes the larger objectives of the legislation and at the same time respects the procedural rights of the accused.

[117] The defence refers to the Domtar case [cited in paragraph 10 supra] at paragraphs 68 to 71 which deals with the wording in an agreement and focuses on paragraph 71 which says: "Even if such ambiguity remains about the meaning of the words "similar arrangement", it is a rule of construction that if a vagueness still remains the uncertainty must be resolved in favour of the defendant, Domtar."

[118] The defence refers to King Paving [cited in paragraph 10 supra] that in assessing the facts of the case they must be assessed as of the date of the accident or in some ways just prior to the accident.

[119] Reference is made to the 1994 Kellogg Canada Inc .case [cited in paragraph 10 supra] where the Ontario Justice Pockele stated at page 9, that the Occupational Health and Safety Act does not impose a duty on an employer to anticipate every possible failure and goes on to say the Act does not impose liability on an employer " where a worker does a prohibited act of violating a lock-out policy intentionally through his or her own mistake or inadvertence" This finding in this case is in complete contradiction to the subsequent decision by the Ontario Court of Appeal in the Dofasco case in 2007 [paragraph 110 supra] and will not be considered further by this Court.

[120] The defence refers to the Stelco case [cited in paragraph 10 supra] in respect to the fact that a proper guard was a guard that required a tool or some form of tool to unlock or open. Guarding is intended to be opened, and this Court agrees that only makes sense in respect to maintenance and repairs of machinery.

[121] This Court accepts the defence assertion that it cannot use post accident improvements as evidence of liability and they have to be considered very cautiously because there is a strong policy consideration to encourage employers to take remedial action. The defence sates this is supported in the Dana Canada Corp [2008] O.J. No. 4487 . However the Court notes the Gondor case [quoted in paragraph 112 supra] has principles which also need consideration in deciding what could have been done to prevent the accident.

Preliminary Determination of Facts

I have reviewed the witness testimony and the exhibits and find the following to be uncontroverted facts in this case:

1. Amelio Arimini is a millwright for the Defendant Linamar Holdings Inc. carrying on business as Transgear Manufacturing at 400 Massey Road in Guelph, Ontario;

2. Arimini has done work as a maintenance mechanic at the Transgear plant for approximately 11 years prior to the accident on May 20, 2009. He received all of his 8000 hours training and experience at Transgear except for the yearly testing on his knowledge of procedures and safety which is conducted on behalf of Transgear by an independent company, and he passed his certification in the Province of Ontario by writing and passing a government test based on the training he received at Transgear before being certified as a millwright;

3. The Defendant Transgear and its parent company Linamar have developed and instructed their employees on safety procedures to protect them in the safe operation and repair of machines and equipment pursuant to the Occupational Health & Safety Act, and have developed and installed machine guards and signage to protect employees in the performance of their duties. The issues in this case revolve around the adequacy of the training and safety procedures, and the supervision of employees in ensuring compliance, and the adequacy of the signage/guards and troubleshooting procedures.

4. The Defendant Company instructed maintenance mechanics on lock-out procedures which must be adhered to when working on or repairing machines, or doing routine maintenance such as oiling or adjusting machinery. Lock-out means the machine has zero energy, no electrical power, no hydraulic power, no compressed power, no power from gravity, absolutely no energy.

5. The exception to lock-out is troubleshooting. Troubleshooting is when a maintenance mechanic cannot identify the problem to be repaired without first running the machine to locate where the problem or malfunction is. Once the problem is identified, the policy requires lock-out before repairing, disassembling, or removing parts or equipment for replacement or repair.

6. The Defendant has no written policy on troubleshooting other than instructions given and the tests conducted on behalf of the Company once a year in respect to lock-out procedures and the reference in question 15 in each year's test to troubleshooting (Exhibit # 13). This yearly test is taken by all millwrights and maintenance workers at staggered times at various locations conducted on behalf of the Defendant Company. There is no record kept by the Company as to the specific training each employee has on troubleshooting, nor is there any evidence of any troubleshooting instructions given at the yearly refresher course on lock-out procedures.

7. The tests are apparently given yearly although Tab #1 in Exhibit #13 indicates the injured worker Aramini received lockout training in years 2000, then 2004 to 2009, but no mention in 2001, 2002, or 2003. Copies of the test provided in Exhibit #13 commence in 2004 as written by Aramini up to and including April 14th 2009.

8. Question # 15 is always the same question and it is the only reference to troubleshooting in this yearly test. The question was modified in 2008 but prior to that throughout the years 2004 to 2007 pursuant to the Training Records provided by the Defendant in Exhibit # 13, it was the same question with a true answer. From 2004 to 2007, Question #15 states: "When testing equipment and a lockout is not possible, it is not necessary to lockout as long as a lookout is available to help ensure the area is clear".

9. Question #15 was modified in 2008 and was the same modified version in 2009 with a true answer it now states: "When testing or troubleshooting equipment and complete full lockout is not possible, it is not necessary to lockout as long as a spotter is available to help ensure the area is clear and all partial lockout procedures are followed."

10. There is no evidence of instruction given or procedures or policies developed by the Defendant Company in respect to partial lockout although partial lockout is considered in question #8 of the lockout test when working on a machine, as outlined in paragraph 11 below. There was no evidence of signage at the machine where Aramini was injured, instructing employees in regard to partial lockout although full lockout procedures were provided.

11. The tests throughout 2004 to 2009 written by maintenance workers generally and Araimini's tests particularly have two other questions which bear mention to the findings of fact in this case. Question number 2 asks with a true answer: "A machine must be locked out when any safety device is removed or not working properly" and Question number 8 asks with a true answer: "It is best to lock out the main power source but when this is not possible, the section you are working on must be locked out."

12. I find the KVA 003 machine had 14 hazard signs, and 7 lockout signs with additional high voltage signs, but none of those signs were located at the chain fence guarding the back of the machine where the injured worker entered. The fence guarding was bolted in place and whether or not that bolt had to be removed by Armani at the time he entered the guarded area is not material to this case, other than it was known to be a bolted fenced area with the inherent risks to enter.

Findings in Respect to Count 1

Count 1: failing as an employer, to ensure the measures and procedures prescribed by s. 41 of Ontario Regulation 851 were carried out in a workplace located at 400 Massey Road, Guelph, Ontario contrary to section 25(1)(c) of the Occupational Health and Safety Act R.S.O. 1990, c. O.1 , as amended.

Section 41 of Reg. 851 provides:

"The entrance to a room or similar enclosure containing exposed live electrical parts shall have a conspicuous sign, warning of the danger, and forbidding entry by unauthorized persons. R.R.O. 1990, Reg.851, s.41 ."

I find the guarding at the back of the KVA 003 machine enclosed the back portion of the platform of the pieces of machinery which comprised the functioning ensemble of machinery known as the KVA 003. The guarding was hinged on one side but bolted or expected to be bolted shut. This area as pictured in Tab 1 of Exhibit 2 a pre-accident picture of the KVA machine shows a fence like steel mesh encompassing an area with no ceiling and surrounded by other pieces or components of the machine. These pieces of surrounding components of the KVA do not in my opinion form "walls".

There is no standing area for anyone who must crawl, crouch or kneel to fit between the pieces of equipment which comprise this machine.

The dictionary definition of "room" which was looked up by this Court using the internet service of "Google" defines it as follows:

room

noun /ro ͞ om/ /ro ͝ om/ rooms, plural 1. Space that can be occupied or where something can be done, esp. viewed in terms of whether there is enough ▪ - there's only room for a single bed in there ▪ - she was trapped without room to move 2. Opportunity or scope for something to happen or be done, esp. without causing trouble or damage ▪ - there is plenty of room for disagreement in this controversial area ▪ - there is room for improvement 3. A part or division of a building enclosed by walls, floor, and ceiling ▪ - he wandered from room to room 4. A set of rooms , typically rented, in which a person, couple, or family live ▪ - my rooms at Mrs. Jenks's house 5. The people present in a room ▪ - the whole room burst into an uproar of approval verb /ro ͞ om/ /ro ͝ om/ roomed, past participle; roomed, past tense; rooming, present participle; rooms, 3rd person singular present 6. Share a room or house or flat, esp. a rented one at a college or similar institution ▪ - I was rooming with my cousin 7. Provide with a shared room or lodging ▪ - they roomed us together Web definitions o an area within a building enclosed by walls and floor and ceiling; "the rooms were very small but they had a nice view"

• A room, in architecture, is any distinguishable space within a structure. Usually, a room is separated from other spaces or passageways by interior walls; moreover, it is separated from outdoor areas by an exterior wall, sometimes with a door. ...

[124] I find that the enclosed area at the back of the KVA003 is not a "room" according to the definition of room in the Google based dictionary as it is not a space that can be occupied, does not have walls floor or ceiling which would permit it to be occupied or entered by a person in a standing position, and if the equipment comprising the KVA 003 were disassembled and removed, the space left would not be a structure with any form of walls or ceiling, and the floor would be the concrete floor of the industrial plant, in midst of an open space.

[125] In considering whether "or similar enclosure" brings this enclosed area at the back of the KVA 003 into consideration I must consider the rules of statutory interpretation. Words unless specifically defined in the statute must be given their ordinary meaning.

[126] The word "enclosure" is defined according to the definition of enclosure in the Google based dictionary searched on the internet by this Court to mean:

en·clo·sure /en ˈklōZHər/

Noun:

1. An area sealed off artificially or naturally. An artificial or natural barrier that seals off an area.

Synonyms:

inclosure - fence - pen

en·clo·sure

noun /enˈklōZHər/ enclosures, plural; inclosures, plural 1. An area that is sealed off with an artificial or natural barrier 2. An artificial or natural barrier that seals off an area 3. The state of being enclosed, esp. in a religious community o - the nuns kept strict enclosure 4. The process or policy of fencing in waste or common land so as to make it private property, as pursued in much of Britain in the 18th and early 19th centuries o - one of the chief effects of enclosure was to increase the number of landless workers 5. A document or object placed in an envelope together with a letter Web definitions a structure consisting of an area that has been enclosed for some purpose the act of enclosing something inside something else a naturally enclosed space something (usually a supporting document) that is enclosed in an envelope with a covering letter wordnetweb.princeton.edu/perl/webwn

• An electrical enclosure is a cabinet for electrical or electronic equipment to mount switches, knobs and displays and to prevent electrical shock to equipment users and protect the contents from the environment. ...

[127] In considering this definition I find that the area within the fenced area or area behind the bolted gate is an enclosure. I find it synonymous with the description of an electrical cabinet even though it is not an electrical enclosure per se; it is however in the nature of a cabinet or compartment where equipment is located. It is not a room because it cannot be occupied by a person in any reasonable way by walking in or standing in it.

[128] Finally, to give effect to the word "similar" which modifies or limits the type of enclosure contemplated by the phrase "room or similar enclosure", I find that a cabinet, compartment or enclosure which is not similar in any way to a room, which offers no ability for a person to walk in, stand or move about in any way, is not similar to a room. It may be that something such as a large attic space could be classified as a "similar enclosure" but that is not the case here.

[129] No case law was presented by the prosecution to suggest a finding in any court that has found an enclosure which does not have the significant characteristics of a room to be a "similar enclosure" in reference to the phrase "a room or similar enclosure."

[130] Consequently, the prosecution has not proved beyond a reasonable doubt that the bolted fenced in area behind the KVA 003 is "a room or similar enclosure" and that charge is dismissed.

[131] However, if the legislation had not said "room or similar enclosure" but had simply said "room or enclosure" without the word "similar" modifying the meaning of enclosure to encapsulate some features of a room, I would have decided differently. In my opinion given the ordinary meaning of enclosure as defined in the dictionary, I would consider small enclosures which are in the nature of compartments, or large cabinets, where or a person could fit in (and certainly if they could squeeze in a crouched or kneeling fashion) to be applicable to the section.

[132] I note that the defendant adopted a broader definition then the legislation in this case in its Electrical Safety Program which program is designed to "define the requirements and establish procedures for electrical safety, Exhibit 13 Tab #15.

[133] Under 4.0 Responsibilities, section 4.1 General Manager lists things he or she is to ensure including under section 4.1.4 "Ensure that access to all electrical rooms or other enclosure containing exposed energized electrical parts is controlled."; and further under section 5.0 Procedure, 5.1 General Electrical Safety provides under section 5.1.1 "Only qualified workers and personnel authorized by the Supervisor in charge of work shall enter a room or other enclosure containing exposed energized parts; and provides under section 5.1.2 "the entrance to a room or other enclosure containing exposed energized electrical parts shall be marked by conspicuous signs stating that entry by unauthorized persons is prohibited. The rooms shall also be secured."

[134] I find based on evidence provided by the Defendant that within the enclosure behind the fence with bolted gate of the KVA 003 machine, there are exposed energized electrical parts which were not marked by the Defendant pursuant to its own policy. I will deal with this finding later under due diligence considerations.

Findings in Respect to Count 2

Count 2: failing as an employer to provide information, instruction and supervision to a worker to protect the health or safety of the worker at a workplace located at 400 Massey Road, Guelph, Ontario contrary to section 25(2)(a) of the Occupational Health and Safety Act R.S.O. 1990, c. O.1 , as amended;

Particulars of count 2: The defendant failed to provide information, instruction and supervision to a worker on a safe procedure for trouble shooting a leak in the enclosed area of the KVA 003; and/or

The defendant failed to provide information with regard to the presence of electrically charged live exposed parts in the enclosed area of KVA 003.

[136] The legislation provides under Part III titled Duties of Employers and Other Persons of the Occupational Health and Safety Act, Section 25(1)(c):

"(1) An employer shall ensure that,

(c) the measures and procedures prescribed are carried out in the workplace;"

[137] Section 25(2)(a) in the same Part of the Act provides:

"(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;"

Background Facts

[138] This charge against the Defendant arises from an accident that occurred on May 20th, 2009 at a manufacturing facility owned by Linamar Holdings Inc. and carrying on business as Transgear Manufacturing where the injured worker, Amelio Aramini had worked for approximately eleven (11) years and was employed as a certified millwright doing maintenance on machinery on the premises located at 400 Massey Road, Guelph, Ontario.

[139] Transgear had ongoing training in place for its employees in general and for its millwrights in particular, the machine had signage warning of an electrical hazard and lockout procedures required, procedures were in place for locking out machines to be repaired, the injured worker was trained in these procedures, apparently an exception to locking out a machine was trouble shooting, the worker was electrocuted while troubleshooting the machine known as KVA 003 resulting in his inability to work since or shortly after the accident.

[140] The machine known as the KVA 003 is an "Induction Hardener". There are ten of them at the Transgear Plant on Massey Avenue in Guelph. It operates with a robot placing a part into a compartment onto a coil, a slide moves forward from the back of the machine, placing another coil on top of the part. Electricity flows through both coils heating the part which is then quenched with water which has the affect of strengthening the part through a chemical reaction. The slide moving forward from the back of the machine is known as a "glorified slider".

[141] The Defendant advises there are 14 electrical hazard signs on this machine and 7 signs instructing an employee to lockout the equipment before working on it or moving inside, the warnings are located at operating pads the employee needs to, or should or would go to first. At the back of the equipment is a fence guarding or a cage. There is neither lockout warning nor electrical hazard warning at the back of the machine where this fence guarding is located. The accident occurred behind the fence guarding which was bolted in place, after the injured worked opened the hinged fence guarding and entered the space behind the machine to troubleshoot.

[142] Troubleshooting, or running the machine to observe a problem, was apparently necessary to locate the source of a water leak in or from a pump. It is alleged by the defendant that the injured worker entered the equipment without locking it and asked a worker to cycle the machine so the injured worker could locate the leak.

Description of the KVA 003 Machine Prior to Injury

[143] The KVA is a machine assembled together with a number of mechanical and electrical components on a platform in the plant. It has an electrical double door "room" at the back left hand side when one is standing in the aisle facing the back, with warning signs as to electrical hazard. The operator of this machine stands at the front where the machine is started and it has a robot placing a part in a chamber where electricity is used to heat the part and water is used to cool the part so a chemical reaction occurs to harden this part. The part of the machine where the robot places the part is known as the "glorified slider" because it slides back and forth on a track over a very short distance to go through the process of heating and cooling each individual part. At the back of the machine is the back or rear-end of this glorified slider and this glorified slider is beside and to the right of the electrical compartment when standing behind the machine and facing the back, no hazard signs are on the wire mesh securing the machine components from entry nor behind the wire mesh. The only hazard signs at the back are on the two electrical doors to the left of the wire meshed area. The wire mesh area is fairly lengthy although filled with equipment. (see Exhibit 2 Tab 7 taken after changes to signage and locks were made but still represents overall layout or size). I would estimate based on the picture in Ex. 2 Tab 7 the wire mesh area to be six feet wide.

Between the electrical room at the back and the rear of the glorified slider is a space where pipes join the glorified slider to various other components of the machine including the water pumps and the electrical compartment. This space cannot be clearly seen in Exhibit 2 Tab 7 but is better seen in Exhibit 2 Tabs 1 and 3.

This back area beside the electrical compartment is behind a bolted gate of steel mesh resembling a wire mesh fence with square spacing. The back is best pictured in Exhibit 2 the Defendant's Book of Photographs at Tab 7 after the incident.

The pictures provided by the Defendant are very disappointing in that the only picture taken before the accident is grainy and not clear to see what the pipes looked like before they were covered (Tab 1, Ex. 2 ). The rest of the pictures were taken after the changes were made following the incident and each requires an explanation to explain what is different now from then.

In Exhibit 2 Tab 1 the glorified slider is the beige square box behind the steel mesh wire which is sitting on what appears to be a metal tube upon which it slides. One can thus see where the sliding motion occurs and the limits of its reach. Exhibit 2 Tab 2A & Tab 3 shows clearly this metal tube upon which it slides.

[144] With this description of the KVA and referring specifically to Exhibit 2 Tab 3, one can see where the injury occurred in this clearest of pictures, although this is taken after the incident and the red coverings on the pipes to the left of the beige box (the glorified slider) were not yet installed.

The Accident on May 20, 2009

[145] These are the facts I accept from the worker Amelio Aramini in respect to the circumstances of the accident. There is no other evidence of what happened, although there are allegations and suggestions that the proper procedures were not followed by Aramini and I will deal with those later in this judgment.

[146] Aramini is the injured worker involved in the workplace accident. He said he was diagnosing a leak on one of the machines which is a KVA, a KVA on 003 line. He had earlier been assigned to a different machine which had a programming issue and when he was no longer needed at it he went to his supervisor Jim Hagan and told him he would now look at the leak mentioned to him earlier by the supervisor on the subject machine. He testified that he had worked on this machine in respect to leaks before, it was a common thing.

[147] "At times there would be pump leaks and then there were actual hose leaks. This particular time it was coming off the hoses at some point." (p. 32 transcript April 20, 2011). The last time he had fixed a leak at this machine would have been a week before. But it was not a similar situation to the leak this time. "The first leak was an actual pump seal that was gone. This incident here was actually coming from the unit; the hoses that heat the particular machine." (p. 32 transcript of April 20th 2011). The leak repaired earlier on the pump, was in the same fenced area as where the incident occurred.

[148] Aramini went to the machine and the set up man, Jovan was inside the robot cell. He mentioned to Jovan that he needed to take a peek at this leak and Aramini put his lock on the robot cage to keep the door open. He asked Jovan to turn on pump one and did not see the leak, so he asked him to turn on pump two. He "Still wasn't able to detect the leak. So I went to the back of the machine and from the outside of the cage with my flashlight as he was continuing to run the unit back and forth, I was able to see the leak." (p. 37, transcript April 20, 2011). He was standing outside the cage at the back of the machine where the incident later occurred, Ex. # 2 Tab 7 photo. And he was able to see the water running down the tank.

[149] "At this point I asked Jovan to put the robot in auto cycle. We removed our locks from the cage…So he could be my spotter at the back" (p. 38, transcript April 20, 2011). Leaving the machine running because that was the only way to find where the leak was coming from. Transgear drilled into our heads we required a spotter. "Once he was my spotter I entered the cage (Exhibit 2 Tab 3) with my flashlight. I went in on the left side of the slide, the glorified slide, and I was looking up and down. Still wasn't really too sure where it was coming from. And before we knew it-before I knew it I could hear like a crackling, like a zipit (sic) and it threw me back and all I could-all I remembered was my body locking up and fire coming from the transformer, something like that. And from that point there I don't remember how I got out of the cage." (p. 39, transcript April 20, 2011).

[150] It is not clear from the evidence of Aramini whether his head touched the pipes or whether the electricity arced from the pipes. However I am satisfied based on his testimony that he was fearful of electrical hazards and did not know these copper pipes which resembled water pipes were actually electrical bus bars with high voltage charges when the machine cycled.

[151] Based on the Book of Photographs of the Defendant, Exhibit 2, I am finding that those electrical pipes were not marked as electrical. The closest signage of a hazard was to the left of this caged area on the two doors to the electrical compartment. The caged area was bolted and I find this bolted area to be a proper guard. Guards need to be removed for repairs and maintenance and I find that Aramini was aware there were hazards behind this guarded area, but wrongly assumed the principle hazard was the glorified slider and not the unmarked pipes which turned out to be high voltage electrical bus bars.

[152] Was Aramini mistaken in his assumption that there was no electrical hazard when he knelt beside the glorified slider? I find he was mistaken. Was he reckless or negligent in this assumption? I find that his mistaken belief arose because the pipes were not marked as electrical and he knew the glorified slider required water to cool the heated parts. He was dealing with water leaks in this area and his mistake was based on this faulty understanding.

Injuries of the Worker Amelio Aramini

[153] I accept the following evidence of the injured worker to be an accurate representation of his injuries:

[154] Aramini said the electricity entered through his left hand skull and exited his back left shoulder. He had burns to his left-hand side and the burns indicated where it entered and exited. The hole in his shoulder did not heal until September. He did not remember getting out of the gate but after getting out remembers: "I threw my glasses off because the frame was hot and then I picked them up again because I knew I was going to get in trouble if I had-if I was seen with my glasses off. And then Jovan saying:" I hit the emergency stop," and, "I've seen this before." I don't know what he meant by that. I didn't know what he meant by that."

[155] Aramini's injuries, the burns, were treated with the removal of dead skin, ointments, and repacking or repatching with bandages. His shoulder never closed until September 2011. He has cognitive memory issues, and speech issues. He has to write everything down for his day to day appointments and is having difficulty remembering new information. He does not have difficulty remembering past events but it is difficult to retain new information. He has difficulty finding words, the word is there but he can't get it out, and his concentration requires him to be actually looking at the person speaking to him. They don't anticipate him to recover from these cognitive issues.

The Issue of Proper Use of a Spotter

[157] The Defendant submits that the injured worker did not use a spotter according to his training and he knew the spotter had to be beside an E-Stop to stop power to the machine in case of an emergency. The Defence says Aramini had admitted in cross-examination that he knew his spotter could not stop the machine.

[158] I find that the training was not clear in respect to the proper use of a spotter. I refer the tests written by all maintenance employees generally and Aramini in particular, the employer's test on lockout deals with spotter only in one question #15, which question also deals with troubleshooting and it says "When testing or troubleshooting equipment and complete full lockout is not possible, it is not necessary to lockout as long as a spotter is available to help ensure the area is clear and all partial lockout procedures are followed." The answer is "true".

[159] There is no mention of the spotter being near an E-Stop button, and the employer has not provided proof of any other training in respect to spotters or trouble shooting, other than the 8000 hour hands-on experience of becoming a millwright where it may or may not have been addressed.

[160] As for the admission on cross-examination in respect to the injured worker Amelio Aramini, I find his evidence on examination in chief to be most compelling. He had difficulty with words periodically but remembers past events quite clearly. I noted in cross-examination where the leading questions logically suggested a yes or no answer he followed that as expected, although he frequently added some additional thought such as " or has knowledge", so in the case of a spotter the following testimony was elicited:

Q: "And [your] training though told you that if you're using a spotter, the spotter has to be able to hit the emergency Stop?" Answered A: "Or has knowledge" Q: "…To stop the machine?" A: "Yes; has knowledge of the machine." (p. 76 transcript 04/20/11)

Q: "…You agree there was no place that Jovan could stand, watch you and stop the machine?" A:"Correct". Q: "Okay. But you still went into the equipment?" A: "Correct." Q:…"you knew there were lots of labels on that equipment, on the KVA, warning of electrical hazard?" A: "On the outside of the cage, yes". Q: …"On both sides?" A: "Yes." Q: "And all around. You knew that, right?" A: "On the cages I entered there was nothing, no." (p.77 transcript 04/20/11).

The Issue of Troubleshooting

[161] I accept the following summary of the evidence of James Hagan to be the facts in respect to troubleshooting and the use of a spotter:

[162] Troubleshooting does not always mean running the machine, sometimes you troubleshoot when the machine is not in operation. Hagan estimates that troubleshooting is done when the machine is operating 60% of the time and that 40% of the time it is cut and dry as to what is wrong. So 60% of the time you need to run the machine in order to watch and listen to find out what the problem is.

[163] A maintenance mechanic's whole job is to determine the problem and fix it, something they do every day. Troubleshooting is the job specifically undertaken by the maintenance department and not something the machine operator would usually be doing.

[164] Hagan agrees that the training in lockout involves the Industrial Regulations; the regulations are made under the Occupational Health and Safety Act and the company's policies and procedures are derived also from the Act following the laws set out in the Act.

[165] Hagan agrees that before conducting work on a machine you need to lock it out. He agrees that there are very specific situations in which a machine has to be shut down and locked out but troubleshooting is not one of them. In reference to section 42(1) of the Regulations (851) he acknowledges that the power supply has to be locked out and tagged before any work is done but that the first step is in complying is knowing which parts are live exposed parts.

[166] Hagan agrees that the legislation does not say to shut down a machine when troubleshooting and that nowhere in Transgear's training program is a worker instructed to shut down a machine when troubleshooting and they could not be instructed that way because 60% of the time you could not figure out the problem unless you were troubleshooting with the machine live and active.

[167] Hagan acknowledges that question 15 is during the lockout training but in response the Question: "So, presumably, there is some training given to them on troubleshooting during that lockout program?" He answers: "It would be very vague-it would not be, by any means, machine specific. It'd just be a very vague reference to, I guess, for lack of a better word." And the further Question: "Okay. So they would not be told anything further than what is in question 15 which is when testing or troubleshooting equipment and full lockout is not possible, it's not necessary to lockout as long as a spotter is available to help ensure the area is clear. That's what they would've been told, fair?" He answers: "Correct. Yes". Q: "And it wouldn't contain any further training in that area?" A: "No." Q: "Now, were there any written policies for troubleshooting at the time of this incident?" A: "None that I'm aware of, no." Q: "And are there now?" A: "No, I don't believe so." Q: "So nowhere is it written down what the procedure is for troubleshooting live, correct?" A: "Yes."

[168] Hagan acknowledges that troubleshooting is learned doing their apprenticeship hours, through workers telling them, or the supervisor telling them, but it is not documented when a worker has been given that particular training.

[169] Hagan said that "maybe 20 percent of the 60 would be where you actually have to remove a guard" in response to the question how often it would be necessary to do troubleshooting behind a guard. A spotter is not necessary unless you are troubleshooting behind a guard. And the spotter is only necessary because you are exposing yourself to a hazard.

[170] Hagan acknowledges that sometimes you need to run a machine to find where the leak is coming from and in fact the machine would stop leaking if it were shut down.

[171] Hagan acknowledges that the test in April 2008 had changed from the previous lockout tests and the 2008 test is the same as the April 2009 test with Question 15 (Exhibit #13 Tab 8) now reading " When testing or troubleshooting equipment and complete lockout is not possible, it is not necessary to lockout as long as a spotter is available to help ensure the area is clear and all partial lockout procedures are followed." Hagan says the only training provided on this partial lockout procedure was experience through their apprenticeship. And he would not know what the actual training was. He acknowledged the question sets out the only purpose of the spotter is to ensure the area is clear of other workers.

[172] Hagan acknowledges that the spotter is there to make sure no one else comes into the area of the machine when a worker who is troubleshooting has gone past a guard and exposes himself to a hazard: Q: "And one of the purposes of the spotter is to ensure that nobody else enters the area and exposes themselves to the hazard, right?" A: "Yes." Q: "They, unfortunately, are exposed to the hazard. It's part of the job, right?" A: "Yes." Q: "Is that correct?" A: "Yes." Q: " And from what you said earlier about 20 percent, 60 percent of the time you are troubleshooting live, you're doing so behind a guard, right?" A: "Yeah." Q: "And you are exposing yourself to a hazard?" A: "Yes.".

[173] In respect to the purpose of a spotter, Hagan acknowledges the spotter is the first to witness if there is a problem and stop the machine once the problem occurs. Q: "And, again, if a person is troubleshooting and is electrocuted, it's their job to press the emergency stop button to stop the machine?" A: "Yes." Q: " Now, inherently, the person first has to be electrocuted, right?" A: "Yes".

[174] Based on the evidence of the Defendant witnesses Bill Stark and James Hagan, and the exhibits filed, I find that there are no signs on the KVA 003 which instruct a worker on partial lockout and no signs in respect to troubleshooting procedures. I find the signs to be generic in their instructions and only machine specific when illustrating control and power switches, and machine specific electrical diagrams.

[175] I find the Linamar training is focused on lockout for machine maintenance and repair. The instructions on troubleshooting are encapsulated in question 15 of the lockout tests and it is unclear what should occur if there are no partial lockout procedures. In conclusion, I find that the millwright workers were left to decide on their own whether to seek help from a supervisor when trouble shooting a machine where observation must be made behind a guard. I find observation to locate a problem live behind a guard to be a significant number of times per year and therefore a common occurrence at Transgear.

The Issue of Signage

[176] I find that the fenced in gated area behind the KVA 003 was in itself insufficient to warn the worker Amelio Aramini of the hazard of the electrically charged bus lines located in the space between the glorified slider and the doors on the signed electrical compartment to the left.

Specifically, given the workers general knowledge of the machines function and processes, mistaking the copper pipes which looked like water pipes in a machine designed to cool heated parts, to be part of the cooling process was not an unforeseeable mistake considering these pipes were located in an area where water was leaking as the machine cycled.

I find that the worker should have been informed of this hazard either by being acquainted of it by his supervisor or flagged with some warning in anticipation of the need to troubleshoot, especially since troubleshooting is taught to be the exception to lockout.

[177] In fact Regulation 851section 42.1 subsection (4) recognizes testing and trouble-shooting as an exception in respect to subsection (3). Section 42.1 is a section which applies to electrical repair or maintenance and is not the type of work Aramini would do. However in even these situations the Regulation recognizes the need to troubleshoot and test live, and it does not stipulate the spotter to be beside an E-Stop while working on it and it does not require a spotter while testing and troubleshooting.

Troubleshooting as an Exception to Lockout

[178] I find trouble-shooting to be the exception to lockout at the Linamar/Transgear plants based on the evidence of Aramini and Hagan and I find the modified approach to trouble-shooting as encapsulated in Test question 15 (supra) requires a spotter at the Defendant premise's but that the spotter does not have to be beside an E-stop.

[179] Even the Regulations to the Act recognize troubleshooting as an exception in the instance of a qualified person trouble-shooting or testing live electrical equipment, so I conclude that this exception is a commonly understood and expected industrial repair and maintenance necessity to discover what a problem is before it can be repaired. Presumably safeguards and procedures are thus created or designed to address the inherent risks associated with these electrical hazards by making sure workers are acquainted with the risks or hazards before testing or trouble-shooting to ascertain what needs to be repaired.

[180] I refer to the flowing sub-sections not to say they apply in the circumstances of this case but rather to bolster the thinking behind the finding of trouble-shooting being an exception to lockout. In other words it illustrates the point that testing and trouble-shooting follows different rules than repair and maintenance. In regulation 851 of the Act, Exhibit 15 at page R-25 sets out the two subsections as follows:

"(3) If the installation, equipment or conductor is operating at a nominal voltage or 300 volts or more, a suitably equipped competent person who is able to recognize the hazards and perform rescue operations, including artificial respiration, shall be available and able to see the worker who is performing the work.

(4) Subsection (3) does not apply to equipment testing and trouble-shooting operations. O. Reg. 630/94, s.1."

Did Linamar/Transgear Make KVA 003 an Exception to the Exception of Troubleshooting

[181] The defendant suggested that the signage at the KVA 003 overrode the exception of no lockout needed for troubleshooting, at that machine. The testimony of Stark and Hagan in cross-examination does not support that contention. They both acknowledge there is no sign for partial lockout at the machine and the worker has to rely on knowledge and experience to trouble-shoot (paragraphs 70 & 100 supra). The testimony of Stark and Hagan in reply somewhat contradicts their testimony in cross-examination (paragraphs 71 & 105 supra) but while I find them both to be credible and professional in their evidence as a whole in both examination in chief and in cross-examination, the short reply evidence has little credibility or weight to be attached in light of the detailed information provided by them throughout their testimony elsewhere. The reply evidence is simply them agreeing with the Company position in this matter when reminded of it by Defence counsel; it is not otherwise supported by the evidence presented cumulatively by themselves as knowledgeable witnesses in respect to company procedures and practices as reflected in the findings of fact made by this court.

But notwithstanding the Court is not persuaded by the reply evidence of Stark and Hagan as credible or compelling evidence to change the course of the evidence in its entirety and the findings of fact made by this court in this case, I will examine the issue of signage, training and the issue of trouble-shooting at the KVA 003 in more detail.

1. Signage: a. Lockout;

There are three doors where Lockout is signed at the KVA 003. These signs are not located on the back of the machine where there are two doors to an electrical compartment and the gated fenced area. The back of the machine is most clearly illustrated in Tab 7 of Exhibit 2 and although this picture was taken after changes were made to the machine, it best illustrates the layout of the machine at the back and to one side, and shows the back of the machine to be on a wide isle. No pictures were presented which showed a wide view of the front of the machine or the other two sides. One side can be seen to the left in the Tab 7 picture where one of the electrical compartment doors is located and a Lockout sign is posted, this side door apparently opens into the same electrical compartment as the two doors at the back do. This side door appears to be the door illustrated in Tab 8B & 9. There are two other doors with Lockout signage, illustrated in Tab 12 with the electronic display and Tab 13 with the gauges. They appear to all have the same wording which is clearly illustrated in Tab 14A:

"WHEN TO LOCK OUT?

1. You have to remove or bypass machine guards or other safety devices, resulting in exposure to hazards.

2. Any part of your body will come in contact with the point of operation.

3. You will need to place any part of your body into a danger zone associated with the machine operating cycle.

And remember never tamper with equipment that has been locked out by someone else."

There is no reference to troubleshooting in this Lock Out instruction. It does not say that it overrides trouble-shooting procedures.

2. Signage: b. the Lockout Placard: Exhibit 2 Tabs 6A & 6B

Does the information on the lockout placard describe partial lockout instructions or mention troubleshooting? It details lockout locations and speaks of clearing personnel from the lockout worksite. It does not refer to troubleshooting and does not specify partial lockout procedures. This was confirmed in the testimony of Stark and Hagan supra.

3. Signage: c. the signs on all the doors where Lock Out instructions are located also have a sign warning of ARC FLASH & SHOCK HAZARD. The electric compartment doors on the back of the machine do not have an ARC FLASH & SHOCK HAZARD warning, nor does the gate fencing.

4. Training: Does the signage on the KVA 003 override the training exception of troubleshooting? Trouble-shooting is only mentioned in written form on Question 15 of the Lockout Training and the updated wording in Exhibit 13 Tab 10 provides: "When testing or troubleshooting equipment and complete full lockout is not possible, it is not necessary to lockout as long as a spotter is available to help ensure the area is clear and all partial lockout procedures are followed."

Question 2 stipulates that "A machine must be locked out when any safety device is removed or not working properly."

Hagan testified that Hagan agrees (paragraph 166 supra) that the legislation does not say to shut down a machine when troubleshooting and that nowhere in Transgear's training program is a worker instructed to shut down a machine when troubleshooting and they could not be instructed that way because 60% of the time you could not figure out the problem unless you were troubleshooting with the machine live and active.

The location of Question 2 in the Test suggests that it is relegated to the troubleshooting reference in Question 15 which provides that troubleshooting is an exception even if a safety device is removed. This finding is consistent with the testimony of Hagan in paragraph 169 (supra) where he stated: Hagan said that "maybe 20 percent of the 60 would be where you actually have to remove a guard" in response to the question how often it would be necessary to do troubleshooting behind a guard. A spotter is not necessary unless you are troubleshooting behind a guard. And the spotter is only necessary because you are exposing yourself to a hazard.

In conclusion, I find that the Lock Out instructions on the KVA 003 refer to lockout generally in respect to repair or maintenance and not specifically to troubleshooting as there is no specific or direct reference to troubleshooting in either the Lockout signs or in the Lockout Placards. There is no instruction to partially lockout this KVA machine and consequently it comes down to training and experience for the maintenance mechanic to determine how he investigates the location of a leak. This is verified by the testimony of his supervisor James Hagan.

I will also note that there are 176 pieces of machinery in the Transgear plant. Ten of them are heat induction machines similar to the KVA 003 where the accident occurred. No signage that exists at any of these other machines which are not heat induction machines were presented by the defendant to demonstrate or suggest that heat induction machines are treated differently through signage, which if that were the case, might be a method of warning to a worker that heat induction machines are treated differently when it comes to troubleshooting and that heat induction machines have procedures setting them apart from all other machines in the plant. But this in fact is not the case. No signs from other machines were presented to this Court to show that the KVA 003 is signed differently or to justify different troubleshooting considerations are required.

Conclusions in Respect to Count 2

[182] James Hagan's knowledge of the dangers of this machine and his position over this worker made it his responsibility to acquaint the worker with the hazards of the KVA where the signage didn't do that job adequately or completely. When Aramini sought to find the leak on the second occasion, Hagan sent Aramini to investigate the leak when Hagan knew or ought to have known of the possibility (20% out of 60% of the times) that his maintenance mechanic might possibly troubleshoot behind the guard with the machine running if he could not locate the leak otherwise.

[183] Based on the evidence I have heard and the finding of facts I have made, this Court finds the accident resulting in the injury to Amelio Aramini occurred while he was troubleshooting the machine known as KVA 003;

[184] It finds that troubleshooting is an exception to the modified lockout procedures at Linamar/Transgear;

[185] It finds that partial lockout procedures were not provided in the Lockout Placards attached to the front and sides but not the back of the KVA;

[186] It finds that the signage at the back of the KVA machine did not adequately notify a worker engaged in troubleshooting as to the existence of an Arc Flash and Shock Hazard behind the gated fence at the back of the machine;

[187] It finds that the copper pipes which resembled water pipes were not tagged or identified sufficiently to warn that they were live exposed electrical conductors or to warn of the electrical charge or hazard; and

[188] It further finds that the person in authority over the worker did not adequately acquaint the worker with the hazard in the work at the back of that machine.

[189] In conclusion based on these findings of fact, this Court finds the Prosecution has proven beyond a reasonable doubt that the employer failed to provide information, instruction and supervision to a worker to protect the health or safety of the worker at the workplace located at 400 Massey Road, Guelph Ontario, contrary t section 25(2)(a) of the Occupational Health and Safety Act R.S.O.1990, c.O.1 as amended.

Due Diligence

[190] Ever since the Supreme Court of Canada case of R. v Sault Ste. Marie, the defence to findings of fact which attribute culpability to an employer for the injury or death of a worker sustained in an industrial accident is that the accused reasonably believed in a mistaken set of facts which if true would render the act or omission innocent, or that he took all reasonable steps to avoid the incident. It is not up to the prosecution to prove negligence, it is up to the defendant to prove that all due care has been taken.

[191] I have not heard any suggestion or argument, nor do I believe that the facts in this case raise the defence that the Defendant believed in a mistaken set of facts which if true would have rendered the act or omission innocent.

[192] Rather the Defendant in this case needs to show on the balance of probabilities that they have taken all reasonable steps to avoid the particular event.

[193] "The Occupational Health and Safety Act is a remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety of workers. When interpreting legislation of this kind, it is important to bear in mind certain guiding principles. 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." (paragraph 108 supra).

[194] The prosecution quotes the Ontario court of Appeal case of R . v.. Dofasco Inc. (2007) 2007 ONCA 769 , 87 O.R. (3d) 161 at paragraph 24 : "workplace safety regulations are not designed 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." And at paragraph 25: " In our opinion Dofasco's argument ignores common sense. Employees do not deliberately injure themselves." (Paragraph 110 supra).

[195] A case familiar to the defence, with its principles adopted by the Ontario Court of Appeal in R. v. London Excavators , [1998] O. J. No. 647, and the Superior Court decision of R. v. Inco [2001] O.J. No. 4938 is R. v. Gondor [1981] Y.J. No. 16 says at paragraph 22 :

"Reasonable care implies a scale of caring. The reasonableness of the care is inextricably related to the special circumstances of each case. A variable standard of care is necessary to ensure the requisite flexibility to raise or lower the requirements of dare in accord with the special circumstances of each factual setting. 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.

(e) Extent underlying causes of the offence are beyond the control of the accused."

And at paragraph 23: "The greater the potential for substantial injury, the greater the degree of care required". And further paragraph 25: "Reasonableness of care is often best measured by comparing what was done against what could have been done." (paragraph 112 supra).

[196] In Lee Valley Tools Ltd. [2006] O.J. No. 561 Justice of the Peace Woodworth in a decision upheld by the Ontario Court of Justice on its findings but returned to the Justice to enter a verdict overturning the original stay of proceedings for delay, which appeal was upheld by the Ontario Court of Appeal, Justice of the Peace Woodworth says:

"General knowledge of safety procedures is not sufficient to remove the onus for an employer to provide training and instruction in relation to a specific activity that may have very unique inherent dangers and require specific training in safe procedures to avoid those dangers." (paragraph 114 supra).

[197] In R. v. National Wrecking [2005] O.J. No. 3538 the prosecution refers to paragraphs 71 through 74 where Justice Keast says at paragraph 71: "The purpose of workplace safety policy, whether rooted in the legislation or in plain commonsense, is to protect the widest possible group of people, which goes beyond the average.

At paragraph 73: "The target of workplace safety is the widest and lowest common denominator of people. Safety principles are designed to cut across the differences in people. As much as possible, rules are designed to cater, not to the so-called average, but to everyone.

And of special note, at Paragraph 74: " For example, something as simple as a caution or warning sign or taping around a hazard, is something everyone understands, regardless of their individual differences." (paragraph 115 supra)

[198] In reviewing R. v. National Wrecking [2005] O.J. No. 3538 further, the Court has found at paragraphs 155 to 159 reference to the concept of "Finger Pointing" which bears some discussion in this case:

"Even the development of the foreseeability and intervening act theory is a thinly disguised form of finger-pointing. This type of defence rarely works. It will only work when it validly fits into a due diligence defence. The focus of the due diligence defence is the party pointing the finger must take all reasonable steps of their own before finger-pointing will succeed."

"Even if finger-pointing is valid in the sense there ought to be liability on another party, this still does not exonerate the party doing the pointing unless such party has demonstrated they have taken all reasonable acts of their own. Two wrongs don't make a right."

"When you point the finger you are diminishing your own sense of personal responsibility and accountability, which runs counter to the philosophical core of the Act , which is the internal responsibility system – wherein everyone in the workplace must accept their own role in a proactive way of being responsible for work safety. Finger-pointing encourages a compartmentalization approach to safety thinking – you consciously, or more often sub-consciously, delegate responsibility for safe thinking to others, without recognizing you are the gatekeeper for the protection of others."

[199] The Defendant has suggested the employee Amelio Aramini did not follow the procedures in respect to using a spotter and lockout when he was troubleshooting the KVA 003 and but for that, he would not have been injured. I find this a bit like finger pointing raised in the National Wrecking case and "Even if finger-pointing is valid in the sense there ought to be liability on another party, this still does not exonerate the party doing the pointing unless such party has demonstrated they have taken all reasonable acts of their own. Two wrongs don't make a right." This Court has already found that this is a case of troubleshooting and not lockout. Consequently only the procedures regarding troubleshooting as modified in Question 15 of the lockout test are relevant to the circumstances of the accident.

[200] Darryl Goodwin operations manager of Transgear for 5 or 6 years and an employee of Linamar for 21 years. In his testimony he suggests that he took a group of people to brainstorm and they made recommendations or suggestions for improvement to the KVA 003 (Exhibit #3) but then say that these recommendations had no reflection on the circumstances of the accident.

[201] It is obvious to this court that the group Goodwin assembled were not people off the street, they were people who worked at Transfer and who were intimately knowledgeable with the policies and procedures of the Company, the nature of the induction heater including the location, operation & actual or potential hazards, signage and guarding of this machine, and the specifics of what went wrong in the circumstances of the accident. Their conclusions and recommended changes which followed, improved the safety of the continuing and future use, maintenance and repair of this machine.

[202] How that assists me in assessing culpability or assessing due diligence in the event a finding of guilt is made, is part of the Courts determination herein and within the confines of the law, recognizing the duty not to consider the recommended changes as a singular reason for determining guilt or innocence. It may have an impact on the issue of due diligence, it may highlight something obvious which should have been addressed before the accident. But it certainly is ludicrous to suggest the changes subsequently made did not reflect on the conditions that existed before the accident and the circumstances of the accident itself. They conclude the fault for the accident is failure to lockout, which this Court does not accept and has concluded differently.

[203] The employer's procedures in regard trouble shooting are not written out and are in fact primarily learned through knowledge and experience. To be effective in this case they would have to be machine specific. Partial lockout procedures must be followed when full lockout is not possible when troubleshooting, but partial lockout is not outlined on the LOCKOUT PLACARD of the KVA 003. Consequently I find the employers instructions in respect to troubleshooting and partial lockout are not clear and in fact are contradictory and confusing to the generally accepted exception to lockout attributed to troubleshooting in the day to day work done by the maintenance mechanics in identifying what needs to be repaired at Transgear.

[204] I find the employers training in respect to Lockout does not sufficiently cover procedures in respect to troubleshooting which are a large and important function in respect to keeping 176 machine operating at Transgear.

I accept the premise outlined in the case of Lee Valley that : "General knowledge of safety procedures is not sufficient to remove the onus for an employer to provide training and instruction in relation to a specific activity that may have very unique inherent dangers and require specific training in safe procedures to avoid those dangers."

The KVA 003 has unique inherent dangers and required specific training or guidance or proper tagging and labelling to mitigate the danger of electrical hazard in that machine, which was not done by the Defendant.

[205] The Defendant has set in place programs for training, policies and procedures for accident prevention, signage and guarding for machinery, and supervision of its employees in the general performance of their duties which are substantial and formidable. However, in regard to the specific circumstances of this case some of the findings of fact which have been made in finding the prosecution has proven beyond a reasonable doubt that the Defendant failed to provide information, instruction and supervision to a worker to protect the health or safety of the worker at the workplace, concurrently impinge on the Defendant now arguing they took all reasonable care on the balance of probabilities.

[206] The testimony of the Defendant's witness James Hagan is credible. He is knowledgeable and believable. He is professional in his demeanour, and answered questions in a forthright and direct non nonsense manner. He says that Troubleshooting does not always mean running the machine, sometimes you troubleshoot when the machine is not in operation. Hagan estimates that troubleshooting is done when the machine is operating 60% of the time and that 40% of the time it is cut and dry as to what is wrong. So 60% of the time you need to run the machine in order to watch and listen to find out what the problem is.

[207] Hagan also says that "maybe 20 percent of the 60 would be where you actually have to remove a guard" in response to the question how often it would be necessary to do troubleshooting behind a guard (p. 64 transcript Oct.06/11). A spotter is not necessary unless you are troubleshooting behind a guard. And the spotter is only necessary because you are exposing yourself to a hazard.

[208] The Defendant did not provide the Court with specific information as to the number of tasks the group of 19 maintenance trade workers at Transgear would perform per day / week/ month or year on repair and maintenance. That information would help to evaluate the number of times per year troubleshooting occurs behind a guard. The estimates provided to the Court by its then supervisor James Hagan indicate a significant percentage of observation to locate a problem is required while a machine is running and another reduced but significant percentage of observation both while a machine is running and behind a guard is required to properly diagnose the source of a machines problem.

[209] Now we have heard that there are 19 maintenance trade workers reporting to Hagan including electrical and millwrights at Transgear. If each of them only performed 1 task per day, those 19 people assuming a five day week would perform 95 mechanical and electrical repairs or maintenance per week and 60% of the time they would need to run the machine to find out what the problem is. That would be 57 times per week or 2,964 times per year that they have to run the machine to find out where the problem is, 20% of which would be behind a guard, and that equates to 592.8 occasions per year locating a problem behind a guard.

[210] The evidence of Aramini on the day in question was that this was his second task that day. It would be difficult to assume that the 19 employees would only address one repair problem per day, if they each addressed two per day then on 1,185.6 occasions per year they would be working behind a guard while a machine is running to locate a problem before fixing it. This is a significant number of occasions in which the workers are exposed to risk.

[211] I accept the evidence of Hagan that troubleshooting is inherently risky (paragraph 103 supra). Have the policies and procedures, training and signage dealt with this inherent risk?

[212] The defendants witness testified that there is no specific training in respect to troubleshooting notwithstanding the large volume of work requiring troubleshooting to be done to determine the nature or source of a problem prior to repairing the problem. Troubleshooting is learned throughout apprenticeship, through workers telling them, or the supervisor telling them, but it is not documented when a particular worker has been given that particular training (paragraph 96 supra).

[213] The defendant modified the troubleshooting procedures as illustrated in Question 15 of its Lockout Training (Exhibit 13 Tab 10) but does not provide any evidence that partial lockout where partial lockout procedures have been implemented in reference to any of the 176 machines at Transgear, nor did it provide a partial lockout procedure for the KVA 003 specifically. Had it done so, this accident would not likely have occurred.

[214] The Defendant does not include guidelines or instruction for troubleshooting procedures in its Hazardous Energy Control Program set out in Tab 11 Exhibit 13. It details Lockout procedures but notwithstanding the significant number of times troubleshooting is needed to identify what repairs need to be performed, and knowing that troubleshooting is an exception to lockout found by this Court based partly on the testimony of the Defendant's own witnesses, it does not detail troubleshooting procedures.

[215] The Defendant through its policies did not identify troubleshooting as a task where workers may be required to perform tasks where exposure to unexpected energization can occur, similar to the requirement in Section 4.3.1 of the Defendant Hazardous Energy Control Program where the Supervisor must "Enforce the application of lock out to ensure the protection of all employees required to perform tasks where exposure to unexpected energization can occur."

[216] Similarly, in section 5.1.1 of the same Program the defendant requires "All equipment and integrated equipment shall be designed, purchased, and installed so that the user can effectively control hazardous energy during all work/tasks requiring lock out." If this program applied to troubleshooting then an interlock device or E-stop would have been located at the back of the machine and the accident may not have occurred.

[217] Similarly, in section 5.7.1 of the same Program the defendant requires "For each machine, piece of equipment or process, detailed equipment specific lockout procedures for the control of all forms of hazardous energy will be developed and documented. All energy sources that exist must be identified." And 5.7.2 requires "these procedures will be posted at the machine, equipment, or process or otherwise readily available for authorized individuals". If this program applied to troubleshooting and partial lockout procedures were developed then accident may not have occurred.

[218] In respect to 5.7.1 & 5.7.2 above, this policy was not followed at the KVA 003 because if it had been then the copper pipes in the space at the back of the machine beside the glorified slider would have been marked as sources of energy by a tag or colouring which would identify them as energized. The employer controls how these machines are tagged and how the procedures are implemented. While troubleshooting continues to require running a machine to locate a problem then machine specific instructions should be placed on each machine so that troubleshooting becomes less of a risk given the inherent risk to troubleshooting. The Defendant did not demonstrated that this had been done prior to the accident and while the Defendant has made specific changes to the KVA 003 which is the subject of this proceeding, which now identify these issues on this machine, it has not provided documentation to show that the ten similar machines at Transgear have been similarly outfitted nor evidence that all similar machines at all Linamar plants have been modified to mitigate these concerns.

[219] The Court considers the direction offered in the Timminco case (supra paragraph 113) as helpful and relevant to its findings. The burden of proving a defence is on the Defendant because the Defendant was in the best position to know what actions were or taken to avoid the statutory breach.

And using the Timminco reasoning and applying it to our case I say, the very nature of the KVA machine, how it works and the risks it poses to the worker were all matters within the employer's special pool of knowledge and Transgear did not communicate those risks clearly to the worker through either his supervisor or through the signage and warnings at the appropriate locations at the back of the machine. Nor was there any emergency stop button near this exposed electrical risk.

[220] Again, borrowing from the reasoning in another case, the Dofasco case (supra paragraph 111) I can say in the circumstances of the Transgear case that the injuries that Aramini suffered were as a result of his deliberate (albeit uninformed) act, but it was an act done in furtherance or productivity in the work undertaken for the employer and not for any other reason. To suggest that the responsibility for the injuries, pain and suffering rests squarely on his shoulders would be unfair because defects in the process for performing the work in question, namely inadequate directions and guidelines for troubleshooting generally and no specific guidelines or direction for troubleshooting procedures at this machine specifically, and the absence of a sign or tags or colouring to warn of the existence and location of live exposed electrical bus bars which in fact resembled water pipes, contributed significantly to the accident.

[221] Linamar's Hazardous Energy Control Program at Tab 11 in Exhibit 13, focuses almost exclusively on lockout safety and procedures to eliminate the risk of any type of hazard from all forms of energy. There appears to be no reference to troubleshooting procedures or guidelines. I find on the evidence troubleshooting to be inherently risky. This is based on the evidence of the Defendant employee James Hagan, and the evidence of the injured worker Amelio Aramini.

[222] Troubleshooting is a large component of the electrical and millwright maintenance mechanics work at Transgear, and troubleshooting live occurs in 60% of the times a worker determines they need to troubleshoot to locate the nature and source of a problem at one of 176 machines at Transgear. And, 20% of the 60% live troubleshooting is done behind guards. Based on a moderate hypothetical estimate of the maintenance tasks performed by the 19 workers performing electrical and mechanical maintenance at the Transgear Plant, the number of incidents of live troubleshooting behind a guard is significant.

[223] I find the incidence of live troubleshooting behind a guard too significant to be left alone to the general experience and knowledge of Transgear's millwrights, which is learned but not specifically taught, measured or evaluated, in the 8000 hours of apprenticeship each millwright must achieve to become certified.

[224] This Court also considers the Gondor case principles to be relevant to its findings.

R. v. Gondor [1981] Y.J. No. 16 says at paragraph 22 :

"Reasonable care implies a scale of caring. The reasonableness of the care is inextricably related to the special circumstances of each case. A variable standard of care is necessary to ensure the requisite flexibility to raise or lower the requirements of dare in accord with the special circumstances of each factual setting. 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.

(e) Extent underlying causes of the offence are beyond the control of the accused."

And at paragraph 23: "The greater the potential for substantial injury, the greater the degree of care required". And further paragraph 25: "Reasonableness of care is often best measured by comparing what was done against what could have been done." (paragraph 112 supra).

[225] I find that there is a grave potential for harm in respect to troubleshooting heat induction machines at the Defendant's Transgear plant. Its policies and procedures in respect to troubleshooting are not clearly written out and it relies on experience and knowledge rather than specific training or instruction to troubleshoot its machines. There is an inherent danger when troubleshooting machines live which is done hundreds of times each year at the defendants Transgear plant and the most effective way of protecting works troubleshooting machines would be machine specific procedures posted on each machine for troubleshooting similar to the machine specific placard currently posted on each machine for Lockout.

[226] Exhibit 13 Tab 15 from the Defendant sets out the text of its Electrical Safety Program. This court dealt with the charge in count 1 and said if the legislation had not said "room or similar enclosure" there may have been a finding against the Defendant that it had not properly signed the back gated area. But to give effect to the word "similar" this Court could not find that the enclosure at the back of the KVA was similar to a room and dismissed the charge.

[227] However, to its credit the Defendant has adopted a policy which is more stringent then the legislation and has said in section 4.1.4 of its Electrical Safety Program that the responsibilities of the General Manager are to: "Ensure that access to all electrical rooms or other enclosure containing exposed energized electrical parts is controlled". And this court recognizes that the enclosure at the back of the KVA was controlled with a bolted gate.

[228] Section 4.2.3 of its Electrical Safety Program states that the responsibilities of the Employee Relations Manager (or designate) are to: "Ensure that all electrical rooms or other enclosures containing exposed energized parts are clearly marked and access controlled to them." In this instance I find that the gated area at the back of the KVA 003 was an enclosure within the meaning of the Defendant Electrical Safety Program and it was not clearly marked as containing exposed energized parts. In fact there were no signs on this gated fence secured by a bolt at the back of the KVA 003.

[229] Similarly the Procedure outlined in section 5.1.2 of the Defendant Electrical Safety Program was not adhered to by the Defendant which requires: "The entrance to a room or other enclosure containing exposed energized electrical parts shall be marked by conspicuous signs stating that entry by unauthorized persons is prohibited. The rooms shall also be secured."

[230] Under the same Defendant Electrical Safety Program, section 5.2 deals with "Arc Flash Assessment". The KVA 003 had signs located on three door panels but not on the two electrical compartment doors at the back of the machine and not on the bolted fence gate, which signs on the other panels, not visible at the back isle, warned of ARC FLASH & SHOCK HAZARD". This court assumes therefore that the risk of an arc and shock hazard exists at this machine and that an arc flash assessment should have been done pursuant to its program. Had that arc flash assessment been done then under this general electrical safety procedure, then 5.2.4 requires that the "Arc flash assessment shall include the flash hazard boundary and the personal protective equipment that people within the flash protection boundary shall use." And 5.2.6 requires "A label shall be fixed to the machine which indicates the incident energy exposure in calories per square centimetre". And 5.2.7 requires "the appropriate PPE shall be provided to all employees when work is to be performed on live conductors within the arc flash boundary ".

[231] The Defendant did not identify whether an arc flash assessment of this machine at the live conductors at the back of the machine in the enclosure which contained the glorified slider and the space beside the slider which contained the exposed live conductors had been completed. Certainly the Court does not see that information on the signs on the other panels on the front or other sides of the KVA and specifically "Arc Flash & Shock Hazard" had not been signed near the live conductors. Further information about this Arc Flash Assessment is required in order to evaluate any sentence imposed.

[232] If the Arc Flash Assessment was not conducted then section 5.2.2 of this Electrical Safety Program requires "All personnel required to be within one meter of the work area shall wear the required PPE for the task being performed as outlined in Appendix A and General Protective Requirements for footwear.". This Court would surmise that even in a troubleshooting situation where work is not being performed but the equipment is viewed by the employee up close to determine what work needs to be done, then in a live situation this section would apply to anyone within the one meter area of the equipment capable of arcing. No information was provided by the Defendant in respect to this section or the equipment needed by an employee within the boundary and if it is applicable in assessing any sentence or fine to be imposed, then clarification is required.

[233] Lockout infractions are treated very seriously by Linamar. In Appendix 1 – lockout Offenses located at Tab 11, Exhibit 13 , the outline of the policy for lockout offenses is stated as follows:

"The following outlines the Linamar Policy for lock out offenses and the process to investigate such offenses.

The incident* [* Incident – event that gave rise to an accident or had the potential to lead to an accident] investigation process should be the same for all safety related investigations. The Employee Relations Manager shall complete the investigation in consultation with the Group Safety Manager or other subject matter experts. The Employee Relations Manager shall consult with the Group Director of Human Resources prior to a recommendation being given to the General Manager for individual corrective counselling.

Each level and individual within the facility will be investigated independently to determine if the individual was diligent in doing what was required of them and fulfilled their duties and responsibilities. If not, then the corrective counselling steps outlined would be applied and enforced.

Following the incident investigation, the corrective counseling steps that will be applied are:

• For the first offence, the individual will receive a five day suspension; and
• For the second offence, the individual will be terminated."

[234] The penalty for lock out in fractions appears at first blush to be harsh and probably has a significant impact on the individual workers desire to follow company procedures to the best of their ability.

[235] I find the injured worker was very similarly concerned and imbedded with a strong company culture for his safety and protection and compliance with the rules. His testimony concerning what he did immediately after he was electrocuted is very illustrative of his desire to follow company rules. He said he did not remember getting out of the gate but after getting out remembers: "I threw my glasses off because the frame was hot and then I picked them up again because I knew I was going to get in trouble if I had-if I was seen with my glasses off." (paragraph 53 supra).

[236] The Defendant has developed strong procedures and rules to protect the workers in respect to failure to lockout. The penalties imposed by the company for failing to comply with lock out are significant and presumably effective. There are however no similar procedures or rules to guide a worker performing live troubleshooting. Lockout has general rules and machine specific rules. I previously made the finding that at Linamar/Transgear troubleshooting has no general rules other than vague guidelines outlined in Question 15 of the yearly lockout training, and no machine specific rules. I think this omission on the part of the Defendant contributed to the accident and resultant injury in this case.

[237] I find the actions taken by the defendant within a few days after the accident addressed in short order all of the issues in respect to the particular machine KVA 003, but the Court has no information whether the 9 other similar heat induction machines at the Transgear Plant have been modified, signed or adjusted to ameliorate or eliminate the risk to which Aramini was exposed, or whether the same type of machine poses similar risks at other plants operated by Linamar throughout Ontario.

[238] "Information, instruction and supervision": this could be given by training, signage, colour coded identification of hazards, instruction of what constitutes best practice when troubleshooting; or written procedures to follow to avoid hidden hazards or to eliminate or reduce the inherent or the known hazards when troubleshooting. Training can inform and instruct, actual live supervision can inform and instruct while preventing exposure to hazards where signing and information are otherwise insufficient.

[239] This is a case of troubleshooting and the Defendant did not use reasonable care in developing signage and warnings, such as tagging or colour coding to prevent exposure to live electrical parts in an area accessible by an employee charged with locating a machine problem. It did not have accessible emergency stops located at all entrance points to the KVA machine. It should have recognized and addressed the need to formulate a written policy on troubleshooting, and a training program in respect to troubleshooting, given the frequency and prevalence of the need to troubleshoot a machine " live" in order to locate problems before work orders are issued to undertake repair.

[240] The Defendant Company lacked specific training and its written policy on troubleshooting was indirect, consisting of a one word answer to one question (#15) on a yearly test on lock out. The policy was unclear, as was its policy on the use of a spotter encapsulated in the same one word answer in one question on the same once a year test on lock out.

[241] In conclusion I find that the Defendant has not satisfied its onus on the balance of probabilities and has failed as an employer to provide information, instruction and supervision to a worker, Amelio Aramini, to protect the health or safety of the worker at a workplace located at 400 Massey Road, Guelph, Ontario contrary to section 25(2)(a) of the Occupational Health and Safety Act R.S.O. 1990, c. O.1 , as amended

Findings in Respect to Count 3

Count 3: failing as an employer to acquaint 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 at a workplace located at 400 Massey Road, Guelph, Ontario contrary to section 25(2)(d) of the Occupational Health and Safety Act R.S.O. 1990, c. O.1 , as amended;

Particulars of Count 3: The defendant failed to acquaint a worker, Amelio Aramini, with the hazard of electrically charged live exposed parts in the enclosed area of KVA 003.

[243] The legislation provides under Part III titled Duties of Employers and Other Persons of the Occupational Health and Safety Act, Section 25(2)(d):

"(2) without limiting the strict duty imposed by subsection (1), an employer

shall,

(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;"

[244] The injured worker, Amelio Aramini is a millwright and maintenance worker at Transgear and has been employed as a maintenance worker for 11 years prior to the accident giving rise to these charges. Since 2007 he has reported to his supervisor James Hagan.

[245] Hagan started at Transgear in Mach 2004 and became the maintenance supervisor in charge of 19 maintenance trade workers including electrical and millwrights, one of whom is Amelio Aramini, in January 2007.

There are 176 pieces of main production equipment at Transgear and his group of millwrights was responsible for the maintenance and mechanical repairs of all production equipment including lays, milling machines, spline rollers and broaches, robots, and induction hardening machines. All of the equipment is different. The KVA 003 was part of that equipment and it is an induction hardening machine.

[246] Hagan had two lead hands that assisted him in supervising the workers and typically those supervisors would come to him and as well he would see the guys at various points throughout the day and assign them to different breakdowns. Probably half the time when the guys would finish a job they would come to Hagan but if he were unavailable they would go to one of the lead hands.

[247] On occasion Hagan would perform maintenance work himself. None of the millwrights were expected to be expert in all of the 176 pieces of equipment. To keep them safe they are taught to follow procedure, if they get to a cross road and don't know how to proceed they are instructed to come to him.

[248] Hagan directed Aramini to work on the machine where the accident subsequently occurred a week previous to the accident to repair a leaking pump. In fact Aramini had worked on the KVA 003 and similar heat induction machines previously. I accept the testimony of Hagan that on the earlier occasion Hagan had located the leak himself, took Aramini to the machine and using a flashlight showed him where it was leaking and told him to lock it out and repair it. This is not evidence that Hagan instructed Aramini on how to troubleshoot this machine, in fact on this prior occasion if there was any troubleshooting it was done by Hagan who then instructed Aramini on what to repair.

[249] James Hagan is in a position of authority over the worker Amelio Aramini within the meaning of section 25 (2) (d) of the Occupational Health and Safety Act .

[250] I find that given his position and responsibility to supervise 19 maintenance trade workers including electrical and millwrights; and based on his testimony in respect to his duties over the 19 people under his supervision; and his testimony as to how he assigns them work and oversees them by walking the plant floor; and his testimony in respect to his familiarity with the KVA 003 and his demonstrated ability to locate problems and instruct the millwright Aramini on a previous occasion; I am satisfied that not only does he have his ability to repair, maintain, lockout and partially lockout machines under his purview but he is also acquainted 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 within the meaning of section 25 (2) (d) of the Occupational Health and Safety Act .

[251] Consequently, based on the rules of statutory construction this section provides that either the worker or a person in authority over a worker is acquainted 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;" James Hagan is that person in authority over the worker Amelio Aramini.

[252] I find Count 3 is answered in favour of the Defendant once this Court accepts that James Hagan is acquainted with the named hazards and he is a person in authority over the worker Amelio Aramini. There is no offence under the Occupational Health and Safety Act which limits acquainting the named hazards to the worker only, it requires that the acquainting of the named hazards be either the worker "or a person in authority over the worker". Therefore I must read in the words "or a person in authority over the worker" after the words "acquaint a worker" in Count 3.

[253] When reading in these words to bring the offence within the purview of section 25(2)(d) of the Act, I must conclude based on the findings I have made above, that the prosecution has not proven beyond a reasonable doubt the charge laid under section 25(2)(d) of the act and it is dismissed.

Conclusion

Counts one and three are dismissed. There is a finding of guilt on Count 2. The parties may wish to review this decision before making submissions on sentencing; and may wish to provide additional information to the court regarding the questions raised in its analysis of the Defendant safety programs; and consider the need for additional information on machine specific modifications throughout its plants at Transgear specifically and Ontario generally; and finally, may wish to provide case law and submissions on whether or not these affect the sentencing issues and/or the specific sentence this court should impose.

Released: May 7th, 2012

Signed: "Justice of the Peace James Ziegler"

Index

[This index lists the starting paragraph number of the topic or matter as outlined.]

• PARAGRAPH # 1: THE CHARGES
• PARAGRAPH # 3: PROSECUTION WITNESSES
• PARAGRAPH # 4: DEFENDANT WITNESSES
• PARAGRAPH # 5: THE LIST OF EXHIBITS
• PARAGRAPH # 6: APPLICABLE REGULATIONS & SECTIONS
• PARAGRAPH # 9: CROWN CASES CITED
• PARAGRAPH # 10: DEFENCE CASES CITED
• PARAGRAPH # 12: OVERVIEW
• PARAGRAPH # 17: DEFENDANT POSITION
• PARAGRAPH # 18: CROWN POSITION
• PARAGRAPH # 19 & 20: ADMISSIONS & ISSUES
• PARAGRAPH # 21: EVIDENCE SUMMARY OF JULES ARNTZ-GRAY/INSPECTOR
• PARAGRAPH # 38: EVIDENCE SUMMARY OF AMELIO ARAMINI/INJURED
• PARAGRAPH # 65: EVIDENCE SUMMARY OF BILL STARK/EXPERT
• PARAGRAPH # 72: EVIDENCE SUMMARY OF JAMES HAGAN/SUPERVISOR
• PARAGRAPH # 106: EVIDENCE SUMMARY OF DARRYL GOODWIN/OPERATIONS MANAGER
• PARAGRAPH # 107: THE LAW
• PARAGRAPH # 122: PRELIMINARY DETERMINATION OF FACTS
• PARAGRAPH # 123: FINDINGS IN RESPECT TO COUNT 1
• PARAGRAPH # 135: FINDINGS IN RESPECT TO COUNT 2
• PARAGRAPH # 138: BACKGROUND FACTS
• PARAGRAPH # 143: DESCRIPTION OF THE KVA 003 PRIOR TO INJURY
• PARAGRAPH # 145: THE ACCIDENT ON MAY 20, 2009
• PARAGRAPH # 153: INJURIES TO THE WORKER AMELIO ARAMINI
• PARAGRAPH # 157: THE ISSUE OF PROPER USE OF A SPOTTER
• PARAGRAPH # 161: THE ISSUE OF TROUBLESHOOTING
• PARAGRAPH # 176: THE ISSUE OF SIGNAGE
• PARAGRAPH # 178: TROUBLESHOOTING AS AN EXCEPTION TO LOCKOUT
• PARAGRAPH # 181: IS KVA 003 AN EXCEPTION TO TROUBLESHOOTING
• PARAGRAPH # 182: CONCLUSIONS IN RESPECT TO COUNT 2
• PARAGRAPH # 190: DUE DILIGENCE
• PARAGRAPH # 242: FINDINGS IN RESPECT TO COUNT 3
• PARAGRAPH # 254: CONCLUSION