Court File and Parties
Court File No.: City of Ottawa #0460-999-10-4447-00 Date: 2012-08-17 Ontario Court of Justice
Between: Ministry of Labour — AND — Deep Foundations Contractors Inc.
Before: Justice of the Peace Brian Mackey
Heard on: April 2, 3, 4, 2012 Submissions heard on: April 26, 2012 Reasons for Judgment released on: August 17, 2012
Counsel:
- David R. McCaskill, Crown Counsel for the prosecution (Ministry of Labour)
- Norman Keith (Gowling Lafleur Henderson) for the defendant Deep Foundations Contractors Inc.
JUSTICE R. BRIAN MACKEY
1. CHARGES
[1] Deep Foundations Contractors Inc. (Deep Foundations) is charged as a Corporation with two counts under the Occupational Health and Safety Act of Ontario.
[2] The Ministry of Labour (MOL) charges relate to an accident that occurred on October 28, 2009, in the City of Ottawa, at a water main excavation site located at Woodroffe Avenue and Baseline Road.
[3] The first count (1) relates to Section 31 (1) of Ontario Regulations 213/91, also known as the regulation for construction projects, alleging that the Corporation failed, as an employer, to ensure that the measures and procedures prescribed by Section 31 (1) (b) of that regulation, as amended, were carried out on the project on October 28, 2009, contrary to section 25(1) (c) of the Occupational Health and Safety Act, 1990, as amended.
[4] The second count (2) is that there was a failure, as an employer, to take every precaution reasonable, in the circumstances, for the protection of a worker, contrary to section 25(2) (h) of the Occupational Health and Safety Act, 1990, as amended.
[5] The listed particulars are: (1) "The defendant failed to take the reasonable precaution of having a professional engineer provide the requirements for welding where one and/or more pile was tack welded while another pile was being driven." or, (2) "The defendant failed to take the reasonable precaution of driving one pile at a time without having any other pile tack welded during the driving."
2. PREAMBLE
[6] The words dummy and/or soldier refer to a pile and will be used throughout this decision interchangeably to describe the steel beam commonly used in construction projects and which is an integral part of this narrative.
[7] These are strict liability offences under the Provincial Offences Act of Ontario. Due diligence, on a balance of probabilities, is available to the defendant.
[8] Four (4) soldier (dummy) piles were temporarily welded to a steel frame by Greg Osmond, as part of the construction of a coffer dam, in preparation for a vibratory hammer which would be used to vibrate each pile into the ground. While one pile was being vibrated another beam broke free from its weld and fell on a worker, Gregory Coates. Mr. Coates survived the accident which broke his arms and a leg and severely damaged one ear. Both Greg Osmond and Gregory Coates were in close proximity to the welded dummy piles in the whaler frame area, although only Gregory Coates was injured.
[9] Deep Foundations Contractors Inc. (Deep Foundations) is a sub-contractor, on this site. For the purpose of this decision, they are the contractor who hired an independent, accredited welder, Greg Osmond, who then tack welded the four (4) soldier piles attached to the frame. We know that the four (4) welds differed from each other in size, length and positioning. As noted, one of the welds failed during the vibratory hammer procedure, precipitating the accident due to the location of the worker to the steel beam within the work area.
[10] The on-site, working supervisor was Leon Coates who is the brother of the injured worker.
3. ISSUES BEFORE THE COURT
[11] Notwithstanding the specificity of the two (2) charges, the Court must address the issue of: Who is responsible for the accident? This is the fundamental question that the court must deal with given the body of evidence. Specifically, the court will address the issues of measures and procedures prescribed by the Act and taking every precaution reasonable in the circumstances for the protection of workers in answering this question.
[12] If the contractor, Deep Foundations, the only entity facing MOL charges, is responsible, do either of the branches of due diligence, on a balance of probabilities, save the contractor from culpability, given the nature of the charges?
[13] This Court will consider not only the concern for proper bracing, but also the precautions taken to prevent an accident as well as the methods used on-site.
4. DEFENCE ARGUMENTS
[14] Defence took issue with the MOL engineer, Mr. Molina, who contradicted himself during examination. He said in his MOL report that the weld was a tack weld, but changed that position under examination. This became a bone of contention through the delay of trial Charter motion into the trial proper.
[15] Defence made arguments regarding the definition of full and tack or partial welds. It is the position of the Defence that one of the particulars relating to count two (2) requires proof that the weld was a tack weld. They note that there is evidence from Greg Osmond, the welder, and Deep Foundations' own engineer that a tack weld is a temporary, uncompleted weld used prior to a full weld. Since the Ministry's own engineer said 'under oath' that the welds in question were not tack welds, the 'actus reus' of the offence has not then been made out.
[16] Defence notes that neither the Occupational Health and Safety Act or the Construction Regulations define the term "bracing." Nor is there any specific provisions dealing with welds or tack welds. Additionally, there is no requirement in this type of framework to follow one method of pile assembly over the other. Nothing demands one pile at a time over multiple beams welded in place. There is simply nothing prescribed by law.
[17] Case law dealing with section 25(2) (h) notes that even best practice in an industry does not equal a legally required action. Therefore, in count two (2), having a professional engineer examine the welds or drive one pile at a time are just options and not legally binding.
[18] In this particular case, Deep Foundations went with the method of welding all four upright piles to the template frame. It is argued that Deep Foundations expected full welds, not tack or temporary welds. The work-plan contemplated that once the piles were in place, Greg Osmond would, if necessary, sever with his blowtorch the weld and the vibratory hammer would vibrate the pile into the ground.
[19] Defence makes the argument that count one (1) must also fail because there is a reasonable doubt that the term "brace" refers to a weld. This is based on the logic that since it is not defined in the Act or Regulations, there is no nexus between weld and brace. If the Construction Regulation meant it to apply to a weld, the point is made that "they would have said so." Based on the evidence, the argument is that a weld and a brace are "two different ideas, two different words, two different concepts" creating a reasonable doubt about count 1.
[20] Additionally, we know there was a failure of the weld on the pile that fell. It is argued that this was caused by a mistake to put down a proper weld. Defence suggests that this is corroborated by the testing done by the defendant's engineer witness, Mr. Lehman, whose evidence showed a failure of the upright steel beam at two inches of weld. The weld in question was not centred and fell short of holding properly. When asked in examination in chief, Mr. Lehman replied, regarding what he thought was the minimum weld necessary, "I wouldn't want less than four (inches), I'd prefer six, but, of course, the best is to weld, and so it's a full weld."
[21] Defence notes that the welder, Greg Osmond, admits to an error, which turned out to be a matter of size and positioning of the weld, given the testing done by the Deep Foundations engineer.
[22] Reference was made to a company mandated safety meeting held prior to the work day where the supervisor, Leon Coates, stated that he wanted a 'weld.' Defence notes that in that regard, "If there's a failure, the only evidence is that Leon Coates didn't go and inspect each and every weld." To this admission, Defence points out that it is not the supervisor's failure when relying on a qualified and certified welder to follow directions. Defence asked, rhetorically, "In other words, does an employer in this province get convicted now if it doesn't double check every bit of work that a certified tradesman does?" Otherwise, they continued, "it's simply the employers' fault." The argument here is that when you have a certified tradesman with years of experience, it is not the responsibility of the employer to go behind that certification or that experience. The contractor should be able to expect adequate performance.
[23] Regarding count two (2), and noting that the 'general duty clause' is often used by the Ministry of Labour if there is no particular rule or regulation, defence argues that the Ministry is saying that, "it's not required by law, but the general duty clause says you're guilty." The Ministry has used this 'wide net' clause to interpret that, in this case, the defendant should have a professional engineer provide a requirement for a weld and follow a particular method in driving single piles only. The Defence point here is that the Crown cannot just make up rules as it likes using this 'general duty clause.'
[24] Defence referenced, as identical cases in this matter, Aecon Construction and Brampton Brick to highlight case law confirming that the Crown cannot make up law on the run. Dealing with section 25(2) (h), they referred specifically to the Cooper's Crane Rental case, where the Ministry did not lay a sector specific charge, but used section 25(2) (h) generally regarding a fall arrest system. Here, the court ruled that the Ministry cannot make up rules that are not established by an MOL alert or by standards or through best practise law. In the matter of Aecon Construction, which involved the failure of the defendant to get an engineer to examine and approve the set-up regarding a mobile crane on a barge, the court disagreed with the Crown's position, noting that there is no requirement for a professional engineer to review this type of work activity. Even if it may be a good idea, it isn't law or else a trial would not be necessary; the company would be automatically guilty given the sweeping range of this clause.
[25] Defence suggests that the multiple weld method used in this case is lawful. The question that should be addressed is did the welder, the professional licensed welder do a proper job? Given that the only charge is to the employer, defence argues that there is no evidence and no proof beyond a reasonable doubt, to substantiate the charge against the company.
[26] The test commissioned by Deep Foundations showed that Greg Osmond's welds were close to what was needed, but not close enough, on the failed pile, given the end result. He made an error even given his qualifications as a welder, but where is the employer's failure, given that documentation. Defence referred to their earlier concession that the supervisor, Leon Coates could have inspected the welds, but that it was not required when a certified welder is on the job. It was strongly suggested that this would be unworkable as an industry practice.
[27] Defence argues that the 'actus reus' of both charges (counts one and two) which relate to bracing and welding, have not been proven beyond a reasonable doubt. They suggest that the Crown has not established what properly constitutes a brace or a weld other than preferring a full weld. The mere fact that there was an accident does not prove the offence. Should the court find otherwise, defence notes that due diligence exercised by the contractor is available.
[28] The court is reminded of the Sault Ste. Marie test and the two branches of due diligence: mistake of fact and due diligence. Reference is made to the London Excavators case in this regard.
[29] Defence asks the question: "...did Deep Foundations reasonably believe that the welder and the weld were sufficient to keep the work and the worker safe...?" They argue that their client did believe subjectively that the work site was safe and that the plan was to have a full weld – not a temporary or tack or partial weld, citing Mr. Cianchetti's evidence, that a full weld was the company's practice. Even at that, Deep Foundations had never had a problem with Mr. Osmond's welding before this incident. Therefore, objectively, it was sufficient for the company to rely upon an experienced CWB welder. Defence notes that the Ministry may criticize Leon Coates, the on-site, working supervisor, with not inspecting the welds although even with a background in welding, it is not clear that he would have been able to assess the weld properly. It was not, in their view, unreasonable to rely on Greg Osmond.
[30] Referring to the MacMillan Bloedel, Ellis-Don and Bartram cases, Defence argues that, in good faith, Deep Foundations objectively believed that the welder was competent and did not require the intervention of a professional engineer or the supervisor. They argue that the defence of mistake of fact is open to them.
[31] Regarding the second branch of the Sault Ste. Marie test, it is argued that the accused exercised all reasonable care "by establishing a proper system to prevent the commission of the offence, and by taking reasonable steps to ensure its effective operation."
[32] Defence filed an exhibit of the company's safety handbook, weekly safety meetings, job task analysis, and a number of documents relating to the specific training of the supervisor, the independent contractor, Greg Osmond, and the crane operator. The point is that there is a significant commitment by this company to safety.
[33] It is argued that "one cannot anticipate, as an employer, every potential failure, mistake or development, and have a rule for it." On the morning of the accident, the team had a safety meeting and the only thing that went wrong that day was an inadequate weld was laid down. This issue is addressed in the Modern Niagara Toronto case where a worker is injured and the court ruled that an industry standard practice was in place and had been consistently used. This is compared to this case, where there was a safety meeting and the evidence of the supervisor was that a full weld was expected. The court stated that minimal supervision by Modern Niagara was required of the workers because of their experience and trade qualifications. Here, Greg Osmond has some 28 plus years of experience and a CWB certification which must be renewed annually. In neither case were they dealing with summer students or inexperienced workers. The incident was unforeseen, but not an employer legal contravention. On a balance of probabilities, there was due diligence from training to manuals to supervision and operations management as in the Modern Niagara case. Defence considers this case to be binding on this court due to the appeal ruling. Defence refutes the argument that the Helmer Pederson case rebuts Modern Niagara and suggests that Helmer Pederson is significantly different from the case at hand.
[34] The Timminco case highlights the point that 'foresee-ability,' the ability of the employer to anticipate this outcome is a consideration in due diligence. It is argued that this event was not foreseeable, and it was not wrong to trust Greg Osmond to do a proper weld. No one can anticipate every possible failure.
[35] Defence notes that Mr. Cianchetti was clear in his evidence, Deep Foundations has two methods for welding, single piles and multiple piles, but the weld used on that day had to be a full weld, not a tack or temporary weld. Nevertheless, although the intent of the practice at Deep Foundations was for a full weld, even a much smaller weld, given the testing, would have worked, but not the weld in question.
[36] The argument is made through the Lehman engineering report that this accident should never have occurred. The engineering report notes, "In summary, this report supports, in our opinion, that the use of the full weld, as adopted by Deep Foundations Contractors Inc., for the pile driving method, ...constitutes a safe temporary works procedure...if the welder had used a full weld rather than a tack weld, the incident and the injury would not have occurred." This evidence indicates that the method chosen was not less safe than the alternative pile driving method and that only the temporary or tack welding was responsible for the accident.
5. CROWN ARGUMENTS
[37] The Crown argues that the only question is: "Whose fault is it?" They reject the defendant's position that it is Greg Osmond's fault, the independent contractor. Two cases were used to show that Mr. Osmond was their employee at the time of the accident from their Book of Authorities. They are the Wyssen and Pioneer Construction decisions. The Wyssen decision is considered the seminal decision regarding who is a worker. The Court of Appeal noted that "the legislation imposes upon an employer of an independent contractor the responsibility of compliance with the Act." Greg Osmond, once hired, was their responsibility.
[38] In Wyssen it was noted that, "The employer's duty under the Act and Regulations cannot be evaded by contracting out performance of the work to independent contractors."
[39] Pioneer Construction confirmed the employer status regarding independent contractors who are "working in a workplace controlled by Pioneer providing services to Pioneer." Similarly, Greg Osmond was a worker under the control of the defendant, Deep Foundations.
[40] Count one (1), under section 31(1) (b) of the Construction Regulation, relates to a failure to ensure that every part of a project "shall be adequately braced," It is noted that this case deals with a pile, a long and heavy steel beam, which was part of a temporary structure that collapsed. The fact of its collapse is prima facie proof of the violation under this section. This is shown as being true in the case of Seeley and Arnill Aggregates which stands for the 'actus reus' being proven by the falling of the beam.
[41] The Crown argues that the defendant, Deep Foundations cannot claim that a weld is a brace. The temporary structure was not braced although if the Court concluded otherwise, then the brace failed. Further, under the mistake of fact branch of due diligence, the question to be asked is did they reasonably believe that the pile was braced? Did they reasonably believe that the welds in place were sufficient to hold it? Given that the employer argues that a weld is not a brace then once again the answer is nothing was in place to hold or brace the piles. Count one (1) is therefore adequately proven by the fall and the failure of any safety bracing. In the alternative, it was clearly an inadequate brace if one chooses the weld as a brace.
[42] It is clear to the Crown that, if the weld was the brace, it was not done properly because "there were no guidelines, no specifications, there was no engineering. There was nothing to direct Greg Osmond on how to do that job." In fact, Greg Osmond gave evidence that this was the way they did it which is to say just welding whatever he thought was appropriate and that was acceptable.
[43] Mr. Cianchetti disagreed, on behalf of the company, stating that it was supposed to be a full weld even though nothing in their materials directs workers to such a conclusion. If that was the assumption, it never was communicated to the welder.
[44] The Crown notes that even if one believed that Greg Osmond should have known, Leon Coates admitted that he didn't inspect the welds. If he did, he would have discovered three different welds on the three remaining piles, at different lengths, different sizes, and different locations. "They were all over the place." This is proven in Mr. Lehman's report as well as Mr. Molina's. In fact, the pile that was being vibrated actually withstood the vibrations while pile number three (3) fell – the weld failed during the vibrations that shook the frame. The weld on pile number three (3) was inadequate because, "there was no guideline directing Greg Osmond what to do, what weld to use, horizontal, vertical length, depth...nor was there any inspection by the supervisor onsite whose job it is to protect the men...to ensure that safe welds are being used." The Crown goes on to argue that it is not good enough to say, "We thought we had pretty good people there to do their job."
[45] The Helmer Pederson case, which is at odds to the Defence case of Modern Niagara, is a Superior Court decision, affirmed by the Court of Appeal. The Crown rejects the Modern Niagara position that hiring qualified people is good enough. The Court noted that, "In my view, hiring a competent foreman or superintendent is not the end of the company's responsibilities.
[46] The Crown submits that therefore, section 31(1) of the Ontario Regulations proves itself prima facie by virtue of the fact that the pile fell. It was clearly not braced and there was no external brace.
[47] Due diligence is not open to the defendant, according to the Crown, because there were no reasonable precautions taken and there is no basis on which they can believe that it was braced.
[48] In the National Wrecking case it is seen that there is no definition of bracing or brace in the Act or Regulations. The Crown argues that it would be impossible to define a brace given the multitude of fact situations that could arise. Indeed, National Wrecking indicates that an appropriate brace for a given situation is fact specific, much like, they argue, is the intent of section 25(2) (h). The National Wrecking case refers to employers as "gatekeepers" for the protection of workers while the Wyssen case refers to an employer as the "virtual insurer" of the safety of workers.
[49] The Petro Canada case points out that the employer "cannot discharge its obligation to take all reasonable precautions for the safety of workers by relying on workers' skill, training or experience." Similarly, Deep Foundations assumed that workers, contracted or not, would know what to do by virtue of their skill set, accreditation and generalized instruction while the supervisor, onsite, failed to ensure that whatever guidelines or expectations from Deep Foundations were carried out. The Crown sees this as the basis of the liability. There is no direction on welds other than an assumption of full welds contrary to the evidence of the supervisor and Greg Osmond. They both indicated that what they did was how they always did it. It had always worked before.
[50] The Crown referred to the residual or basket clause nature of section 25(2) (h) and compared it to the broad interpretation given to a careless driving charge under the Highway Traffic Act. This clause is meant to catch situations that could not be foreseen. In this case, there are no guidelines on how to drive steel piles. The Occupational Health and Safety Act, relies on what is known as the "internal responsibility system." This is a general duty on employers to do their work safely so as to reduce or eliminate accidents.
[51] There are two methods, two ways to drive steel beams or piles into the ground. You can drive them individually, referred to as the "pitching pile" method where one pile is stood up and the weld is cut once the vibratory hammer is in place. In the second method, you weld all piles in place and then vibrate one at a time. The employer clearly had another option, and chose the less safe method. The Crown suggests that the employer must be held accountable if something goes wrong, such as in this case, when there are no guidelines and no enforcement of proper procedure.
[52] The Crown argues that the Lehman test shows the proper way to weld so that there is no failure. This was not done here as evidenced by the fall. Alternatively, they should have done one at a time removing the risk inherent in the multiple pile method. The Crown recognizes that it is not against the law to set up a whaler frame with four soldier piles, but it must be braced to avoid unforeseen accidents.
[53] Count one (1) is therefore simple, according to the Crown, they didn't brace the piles. The Seeley and Arnill Aggregates analysis confirms this position regarding the requirement to properly brace areas where workers are present. There were no reasonable precautions taken to warrant any due diligence defence and there was no mistake of fact to rely on. The weld was not adequate to safeguard the worker as there were no guidelines or supervision.
[54] In Dofasco, the court found that, "an employer is strictly liable if it fails to comply with its obligations and there is no suggestion that employee misconduct constitutes any form of defence." The Crown notes that there is no misconduct or error on Greg Osmond's side. An error is when more than one of the piles fails. Only one failed because that's how Deep Foundations always operated, without guidance. The proof of this is that the welds were found to be inconsistent and variable. There is no evidence of consistency.
[55] On another note, the Crown quotes the Spanway Buildings case decision, which, among other statements, says that, "one of the purposes of the Act is to protect workers...from their own negligence...the potential for serious consequences...is much greater in the construction industry..." In addition, the decision notes that, "workplace safety regulations...are intended to prevent workplace accidents that arise when workers make mistakes, are careless, or are even reckless." This case speaks to the heightened requirement for employers even when workers go beyond basic errors in judgement.
[56] The Crown contends that there was a huge lapse in safety on this site causing the injury. There was a failure to brace the piles properly, or adequately. The better method, the safer method of one pile at a time, was not chosen. It is not someone else's fault and they didn't do all they could to see that proper measures were taken to avoid an accident.
6. DECISION
[57] Did Deep Foundations fail to ensure the measures and procedures prescribed by regulation were carried out? Did they fail as an employer to take every precaution reasonable in the circumstances to protect their workers?
[58] To answer these questions, the Court has reviewed all of the evidence. We know that a frame, sometimes called a whaler frame, was set up the day before the accident as part of the construction of a coffer dam. It was to be used as a guide to hold large sheets of metal on the sides so as to protect workers in that area.
[59] It was acknowledged by the on-site supervisor, Leon Coates, that the process of tacking piles (in this case the four steel beams), and vibrating them one at a time, is an accepted practice in the business. Even though he mostly did the single pile method, he stated that the multiple pile method was fully acceptable. He, like others, saw no real difference in outcomes or safety. Indeed, on past work sites, temporarily tacking a number of piles in place before vibrating each, worked without incident. The welder, Greg Osmond, had done it before and without incident. No one anticipated a problem.
[60] It is useful to repeat that Greg Osmond is a certified welder, a CWB worker and only weeks before the accident renewed his qualifications. The court heard that the test for this designation and the renewal test are simply making a particular weld which is then reviewed.
[61] The Deep Foundations supervisor, Leon Coates, indicated on several occasions that he anticipated or wanted what was often characterized as a full weld. In his own words, he said, "I expected him to weld it so it wouldn't fall." It is clear to the Court that this, or any subsequent utterance on the subject, confirms his belief that a sufficient weld was expected from Greg Osmond. He did acknowledge, however, that there is no guideline to detail what should be done. The supervisor further stated that "for a column that size" he expected a full weld. The Court is left with some question as to what he meant by the term "full weld." Nevertheless, it is clear that he wanted a weld that held until the vibratory hammer broke the weld or a torch cut it free from the soldier pile.
[62] We know that the supervisor never talked directly and specifically to Greg Osmond about the weld, nor did he examine the welds. He relied on a certified, trusted and experienced welder whom he had worked with previously. In fairness, he seems to have only become aware of the partial weld after the fact. He was not alone in that discovery.
[63] The court recognized that, in simple terms, if not basic common sense, a full weld is different from a tack or temporary weld. The purpose of a temporary, partial or tack weld can be seen as being fundamentally different from a full weld in function and intent. Under normal circumstances, a tack weld would serve to hold a soldier or dummy pile until either vibrated or cut loose by a cutting torch. Still, it is a temporary weld and it may not be sufficient to act as a brace under the wrong circumstances.
[64] As previously noted, the template frame was setup the day before the accident. The team met the morning of the accident and discussed what work had to be done. There was nothing else, in evidence, discussed beyond the work to be done. The crane operator positioned the vibratory hammer on the pile to be vibrated. The accident victim, Gregory Coates, was positioned inside the vertical frame area holding a hose connected to the vibratory hammer to prevent twisting of the line. Greg Osmond was also within the template frame area as we know that he was so close to the falling beam that he felt the wind against his face as it collapsed. This confirms that both workers were in the vicinity of not only the fallen steel beam, but also the remaining piles.
[65] The supervisor was operating the vibratory hammer and when the initial vibration did not break the partial, tack weld, Greg Osmond signalled for Leon Coates to try again. There is some issue as to the number of times the hammer was activated, although, on what Greg Osmond describes as the second try, the adjacent steel pile broke free of its tack weld and collapsed onto Gregory Coates.
[66] It was stated earlier in this decision that the over-riding issue of this case is: Who is responsible for the accident? This is the correct starting position because if the defendant is not responsible, then why would they be held accountable for bracing, for an engineering review and safety concerns? This proposition logically takes us to the specific matters before the Court.
[67] So, what is known is that there are no guidelines regarding methodology when a vibratory hammer is used to vibrate dummy or soldier piles into position involving a frame. However, there are choices, two at least, according to the evidence, which vary from one-string or two-string crane set-ups and single and multiple pile methods. There is nothing illegal about either and there is some evidence that the Crown may grudgingly accept this position.
[68] However, it would appear that there was little supervisory inspection or review of the work of the qualified tradesman. This is not to say that safety training, meetings and literature were not available, but rather that the evidence demonstrates an environment of trust based on previous work experience and qualifications. The court recognizes that that is probably not uncommon in any construction work environment. This situation creates a conundrum for employees and supervisors alike.
[69] Nevertheless, on October 28, 2009, a work team met in Ottawa to review the day's work-plan. This was called a safety meeting several times, but for all intents and purposes was a gathering of the crew to go over the activities necessary to accomplish the day's objectives. Clearly, from the evidence, the crew was to cut piles for the temporary frame that had previously been assembled as part of the metal sheeting frame for a coffer dam in the prepared area. The cut steel beams (soldier or dummy piles) would be welded to the frame in a vertical position. A decision was made to weld all four beams to the existing frame. In the words of the welder, Greg Osmond, "We had one line out on the crane and decided to go with it." In other words, one line on the crane facilitated temporarily welding each of the four piles in place vertically in preparation for the vibratory hammer vibrating the steel beams into the ground. The intent was to end up with the frame a few feet off the ground.
[70] There is no evidence of any discussion about the use of a single or double line on the crane. Nor is there any evidence that the supervisor or crew discussed the advantages or disadvantages of using the alternative single pile method. It retrospect, it appears that if the crew had followed the single pile method, whereby one pile is welded to the frame then either vibrated loose or the weld is cut, the likelihood of an accident would be remote due to the vibratory hammer holding the pile. At any rate, Greg Osmond noted that it would have taken time to switch from the one line out on the crane and, since it was already in place, they simply proceeded along the path of least resistance.
[71] There are two forms of safety information, one that deals with the overall, macro level safety issues and the other micro, job specific. In this case, it is not a stretch to conclude that the job specific information was weak given the accident and the state of confusion over tack and full welding requirements.
[72] The Court recognizes that there was no particular reason for this crew to question their previous success. What was missing was someone, possibly outside of the crew, to evaluate their plan from a safety perspective, someone who could look at the options and introduce a safety perspective missed by the on-site, production oriented workers. If the court considers Leon Coates, using a military analogy, as a corporal, then where was the sergeant? To what degree should that more senior person be engaged in the work-plan and be held responsible for the actions of the crew? Clearly, in a highly regulated business where accidents are more likely to happen, given the nature of the work, the role of managers in meeting their financial and production obligations must be balanced in favour of the safety of their employees. Consequently, the Court must view senior managers as accountable for the safety of workers at the highest level.
[73] Accidents happen. In this case, it is not exaggerating to say that an accident was bound to happen sooner or later given the right circumstances such as vibrating dummy/soldier piles involving variable tack or partial welding of multiple steel beams in close proximity with workers in what the Court can only call a danger zone. That's all it would take. Add to that a successful crew using industry accepted methods and procedures that create a comfortable work environment and you have a myopic safety environment.
[74] A question that comes to mind is: Why was there no assessment of the potential for an accident given the various options open to this crew under the same circumstances? The meeting, the morning of the accident was actually a routine meeting to discuss the project, the day ahead. There was no concern from this crew for the safety of workers given the discussion and their individual competencies. Yet, the potential for an accident with this plan can now be seen as obvious.
[75] Concerning the actual charges, the first count relates to Section 31 (1) of Ontario Regulations 213/91, also known as the regulation for construction projects, alleging that the Corporation failed, as an employer, to ensure that the measures and procedures prescribed by Section 31 (1) (b) of that regulation, as amended, were carried out on the project on October 28, 2009, contrary to section 25(1) (c) of the Occupational Health and Safety Act, 1990, as amended.
[76] There is adequate evidence from case law to demonstrate that there is no compulsion or legal requirement for a professional engineer to "provide the requirements for welding where one/or more pile was tack welded while another pile was being driven." Such involvement has no inherent guarantee of a safer work environment in this work area, at any rate. An engineering test has proven that partial welds can successfully hold the piles in place under the correct circumstances.
[77] The second count is that there was a failure, as an employer, to take every precaution reasonable in the circumstances for the protection of the worker, contrary to section 25(2)(h) under the Occupational Health and Safety Act, 1990, as amended.
[78] These charges, within the Ontario Health & Safety Act, fall within Part III, listed as, Duties of Employers and Other Persons.
[79] There is no evidence to support the assertion that the defendant, "failed to take the reasonable precaution of driving one pile at a time without having any other pile tack welded during the driving." This is not a mandatory procedure. The evidence before the court is that the method used by Deep Foundations is commonplace and would have provided a reasonable precaution even with the tack or temporary welds if they had all been sufficient. They weren't, or, at least, one was not. Obviously, given the accident, full welds would have been preferable. But, in fact, there are no rules that demand or specify full welds or even to what degree a tack weld should be laid down. Such precision, it appears, is difficult to achieve in this trade. Wishing and hoping and praying, for such an ideal situation, are not helpful emotions in this case.
[80] On the issue of bracing, although there was no evidence of external bracing, this court finds that a beam properly welded creates a brace. Although there was some controversy regarding the definition of a brace, the reality is that the word brace has a number of meanings that all tilt toward the object of a brace to hold securely the item in question. Therefore, a weld can act as a brace and there is evidence that welds perform this function quite well, most of the time. Consequently, these particulars are not particularly useful in this evaluation of the events. Nevertheless, the lack of particulars is not a barrier to establishing that the elements of the offence are in place.
[81] So, as to count one (1), and given the comments related to the particulars, there is insufficient evidence to prove beyond a reasonable doubt that Deep Foundations failed as an employer regarding the measures and procedures prescribed by the Ontario Regulations. The company followed an industry practice that has been shown to be safe in the past. There is no evidence of legal restrictions that prevented them from the course they chose. Indeed, there is sufficient professional engineering evidence, beyond witness testimony, to indicate to the court that the measures and procedures normally present no concern and are commonly practised in the trade. There is no requirement for professional engineering oversight on the type of welding used in this case. There is no requirement to choose one pile driving or vibrating method over the other.
[82] Count one (1) is not proven beyond a reasonable doubt. This count is dismissed for lack of evidence.
[83] In dealing with count two (2), the particulars, once again, are not helpful to the Court, as noted above for the same reasons. However, the fundamental safety question remains: Did the employer, Deep Foundations, take every precaution reasonable in the circumstances for the protection of a worker? The answer must categorically be no. There was an accident and the actus reus is evident. This gets to the issue of responsibility.
[84] The weld failed and, given the engineer's report, this is a case where size matters. The defendant's claim that they expect full welds is insufficient given the evidence of the participants in the day to day work operations and weak given the lack of any reasonable documentation, training, follow up review and particularly risk assessment.
[85] The method chosen allowed for the potential of at least one soldier or dummy pile, upon failure of a weld, given the extensive shaking of the frame, to fail regardless of being an allowable method. The bigger issue is that the tack welding held the potential for a steel beam to fall, as it did. Two workers were in the area the Court describes as a danger zone during the exact time of maximum vibration. Where were the reasonable precautions to ensure that any worker in a potential danger zone was protected? Why was this not considered? This was not a mistake of fact, nor can due diligence save the situation as safety instructions, meetings, training, common practice and worker competency or experience does not override the error in having workers in an unsafe area, in harm's way. No thought was given to that action. A weld, when done properly can act as a brace, but what does that matter if it fails and a worker is within easy striking range?
[86] What possible due diligence defence can be available to deal with the unsafe positioning of workers? A safety manual and occasional training does not obviate the need for the evaluation of job activities that will naturally differ, even if only slightly each and every time. The workers should not have been in an unsafe location. The fact of the accident and the elements of the offence confirm that it is unsafe to place a worker near a massive steel beam while it or any other beam is under vibratory stress. The irony here is that they were preparing a coffer dam to protect workers.
[87] On the issue of 'foresee-ability,' red flags should have been going up all over this work site. This accident was preventable. It appears that the crew was too close to the actual work, and too comfortable in their work practice to properly evaluate the inherent danger. In hindsight, they all may understand the danger given Gregory Coates' injuries, but something else was needed at the time. The employer needed to get involved beyond the working supervisor level. The defendant's expectations were not properly integrated into the work plan. Most importantly, someone needed to assess the very real danger to employees placed within striking distance of steel beams that were violently shaken although welded to what was believed to be an acceptable, but minimum requirement.
[88] In count two (2), there is an abundance of evidence that sufficiently meets the beyond a reasonable doubt test to convict the defendant of failing to take "every precaution reasonable in the circumstances for the protection of a worker, regardless of the particulars." It would have been reasonable to keep the injured worker out of what can now be assessed as a danger zone. That is the necessary precaution.
[89] Both Leon Coates and Greg Osmond gave evidence that indicates to the Court a failure on the part of Deep Foundations to inspect and communicate welding rules to the degree necessary for a safe outcome. One cannot leave the potential outcome to chance, based on past experience alone. The outcome rests primarily with the contractor who must accept that even in this case, of a crew simply following a well worn pathway, that a review of the work activities or, better yet, rules that kept workers out of danger areas, as straight forward as that may seem, would have likely altered the course of events in favour of safety. Why did Gregory Coates need to be close to, and in the direct route of a shaken steel beam while holding a line? The additional question to ask is: How close do you want to be to a potential accident? Why risk it?
[90] Finally, this accident was a mistake, not intentional, although maybe from force of habit, and being too close to a danger area to really see it, when a job needs to be done. What Deep Foundations, and all other employers must remember on a daily basis is, and the Spanway Buildings decision says it well, that "workplace safety regulations...are intended to prevent workplace accidents that arise when workers make mistakes, are careless, or are even reckless." No one is expected to be perfect, but an employer has a responsibility to be on top of the safety of their employees, and not just by going through the motions of manuals and training. Onsite safety is particularly important in industrial/commercial areas where workers and tools and equipment come in direct contact.
[91] On count two (2), the Court finds Deep Foundations guilty of the charge beyond a reasonable doubt.
Released: August 17, 2012
Signed: "Justice of the Peace R. Brian Mackey"