Court Information

Information No.: 10-4321

Court: Ontario Court of Justice

Matter: Provincial Offences Act, R.S.O. 1990

Parties:

• Her Majesty the Queen
• v.
• Strabag Limited & Ryszard Pietka

Proceedings held: July 20, 2012

Location: 4635 Queen Street, Niagara Falls, Ontario

Before: Her Worship, Justice of the Peace M. Shelley

Charges: Section 23, Occupational Health and Safety Act

Appearances

• W. Robinson, Esq. – Prosecutor on behalf of the Crown
• N. Keith, Esq. – Counsel on behalf of Strabag Limited
• F. Adario, Esq. – Counsel on behalf of Ryszard Pietka

Table of Contents

• Reasons for Judgment by J.P. Shelley (pages 1–48)
• Submissions by Mr. Robinson (pages 50–56)
• Submissions by Mr. Keith (pages 56–60)
• Submissions by Mr. Adario (pages 60–63)
• Sentencing by J.P. Shelley (pages 63–64)
• Certification (page 65)

Reasons for Judgment

SHELLEY, J.P. (Orally):

Background and Charges

This matter concerns Strabag Limited and Ryszard Pietka. Both defendants were charged on September 16, 2010, with two counts each of:

1. Failing as a constructor and failing as a supervisor to prevent a worker from falling into operating machinery by ensuring that an appropriate guardrail system was in place, or an appropriate method of fall protection was being used; and

2. Failing to ensure that machinery was locked out while a worker was exposed to falling into that machinery.

The charges arose from an incident on January 14, 2010, at the Niagara Tunnel Project.

Facts of the Incident

The Worker and Assignment

Nick Zappetelli was working as an apprentice electrician. On the date in question, his supervisor, Ryszard Pietka, assigned him the job of fixing a camera positioned above a conveyor belt. Mr. Zappetelli recalled that there was discussion amongst co-workers about someone going to that same point the night before because of a camera malfunction. He did not recall if Mr. Pietka was present for that discussion.

He attended at the camera and returned to his supervisor to report back on the job that needed to be done. He and his supervisor discussed how to fix the cable and what was necessary to complete the task. That was the sum total of the direction his supervisor gave to him. There was not a discussion about the task as it pertained to safe work practices.

The Work Area

Mr. Zappetelli collected the tools he thought he would need and returned to the area of the camera. Under the camera there was a walkway which enabled him to reach the camera. The walkway was over the conveyor belt and was used by workers to get from side to side. He used this walkway as a platform to reach the camera he was repairing.

The purpose of the conveyor belt was to carry debris away from where the tunnel was being bored. The tunnel runs from Sir Adam Beck Station in Queenston, Ontario to Chippawa, Ontario. The tunnel was being constructed to divert water for the purposes of generating electricity. The tunnel was being dug by a tunnel boring machine. Debris was deposited onto the conveyor belt at the site of excavation and then travelled on a series of conveyors where it was eventually deposited on what was referred to as the island and then trucked away. As the boring progressed, conveyors were added to the system to continue carrying the debris away.

The Conveyor System

Where Mr. Zappetelli was working on the walkway was near a switch in the direction of the conveyor belt system. The conveyor belt ascended to a point where the transfer hopper was located. The debris would go up the conveyor belt, drop down through the hopper onto another conveyor belt, and continue to the island. The hopper was constructed of metal draped in tarps or fabric of some kind.

The tunnel boring machine underwent routine maintenance each morning at the beginning of the day. While the maintenance was being done, the conveyor belt was not running. Before the conveyors were started again, a loud alarm would sound for about ten seconds and at various points in the worksite, flashing beacons would be illuminated. The alarm and the beacons were to warn workers that the tunnel boring machine and conveyors would be starting.

From time to time, the conveyors might be stopped to allow workers to clean away debris from under or around the conveyor belts. Other than those scenarios, the tunnel boring machine and its conveyor belt system was operating steadily as the boring machine made its way from Queenston to Chippawa.

The Accident

When Mr. Zappetelli started his task, the tunnel boring machine was undergoing morning maintenance and was shut down. He had just been in contact with the tunnel boring machine operators to confirm that the camera was working and that he had fixed it.

From the transcript of January 6, at page 44, line 11, Mr. Zappetelli testified in cross-examination:

Question: All right. Now, my understanding, sir, is that before the conveyor belt starts an alarm goes off, correct, and it's kind of loud?

Answer: Yes.

Question: And it's about ten seconds, give or take, before the belt starts running?

Answer: Correct.

Question: Could you hear the alarm when you were working on the camera?

Answer: Yes.

Question: Did you get off the platform when you heard the alarm?

Answer: No.

Question: Could you just tell Her Worship why not?

Answer: I was just, I just finished conversation with the TBM and I didn't feel I was in any present danger. I was just collecting my belongings, my tools and I went to walk off and I missed my step.

Question: Did you, did you see any need to get off and apply lock out at that point?

Answer: No.

Question: Why not?

Answer: I was finished and like I said I didn't feel that I was in any danger. I was just walking off the platform, down the ladder.

Question: Did you see any need to use your radio at that point?

Answer: No.

Question: And ask them to turn it off?

Answer: No.

Question: Why not?

Answer: Because I was finished. I was just walking off.

He had not locked the belt out before his task. His evidence was that he had his own lock and tag that could only have been removed by him if he had locked the machine out. His evidence was that he knew how to lock out and that he always locked out. He said it was something that was not even thought about—it was just done as part of the job.

From the transcript of January 6, at page 11, beginning at line 29, Mr. Zappetelli testified in examination-in-chief:

Answer: So, I repaired the camera and I was in contact with the TBM.

Question: When you say contact what do you mean?

Answer: I was on the radio.

Question: Yeah, and when you say TBM, what is it?

Answer: A tunnel boring machine.

Question: And when you say you were in contact with the tunnel boring machine what do you mean?

Answer: Well, I was confirming with them that the camera was fixed.

Question: Okay, and you were speaking with a person?

Answer: Yes.

Question: And what was their role?

Answer: While on the machine they would have access to monitoring the cameras.

Question: Okay, and so…

Answer: I was just confirming that it was working properly.

Question: And what happened next?

Answer: They said everything was okay. I gathered my tools, the belt had started and I was walking off the platform and I missed my step and I fell.

Question: And where did you fall?

Answer: Onto the conveyor belt through the hopper.

Question: Okay, so I'm showing you again a photograph, can you point out exactly where you fell?

Answer: I fell onto here.

And photograph 5(b) was the reference.

MR. ROBINSON: Question: And let the record show he's pointing to the conveyor belt.

Answer: And then this is the hopper.

Question: And you're pointing to the structure at the right? Okay. How did you fall? Did you fall onto your side or onto our back?

Answer: All I know I felt like I was in a washing machine and that was it.

Question: Do you recall how long it took for you to move from the point of the platform to the hopper?

Answer: No, I, I basically thought I'd cashed in my chips, so I just went along for the ride.

Question: I'm showing you another photograph exhibit 5(c), do you recognize this?

Answer: I believe I was only up there once after. Is that the hopper?

Question: So, you can't confirm one way or the other if that was the hopper then?

Answer: No.

Question: So, you testified that you hit the conveyor belt and you moved up into the hopper, is that correct?

Answer: Yeah.

Question: What happened at the point which you entered the hopper area?

Answer: I don't, I don't know.

Question: Did you fall down?

Answer: Well, I ended up on the lower conveyors.

Question: Can you describe what the experience was like?

Answer: Like I said I just closed my eyes and all I know is that I came to a stop.

Question: Do you recall falling in a downward fashion?

Answer: No, I just knew, all I heard was the guy who stopped the conveyor yelling at me.

Question: So, you just thought you landed on another conveyor belt, is that correct?

Answer: Yeah.

Question: So, what happened at that point, do you recall?

Answer: It stopped and I heard the gentleman who stopped the conveyor, was yelling at me to see if I was okay.

Question: Okay, and were you okay?

Answer: Yeah, well a little sore but I gathered my tools up and I pulled myself out.

It was suggested by defence that he dropped a tool or such like, but that was not Mr. Zappetelli's evidence. He missed his step. To his amazement and everyone else's, he survived with very minor injuries. The report filled out by Mr. Pietka for Strabag was entered as evidence.

Credibility Assessment

At this point, a few observations can be made about Mr. Zappetelli's testimony. First, I find that Mr. Zappetelli was completely credible. His evidence was consistent under examination-in-chief and under cross-examination. He testified to the best of his recollection and his recollection was very good.

Second, there are a couple of unique characteristics about Mr. Zappetelli that bear pointing out:

1. It is unique that he, as an injured worker, has nearly perfect recall of the event that he went through.

2. There was never an indication that he was anything but a good employee. It was never suggested that he was difficult to supervise or a disciplinary problem. He appeared before this Court soft spoken, respectful, articulate and calm. He presented as a working guy who did his job.

The Walkway

With regard to the walkway that Mr. Zappetelli was standing on in order to reach the camera he was repairing, it should be clear that this was a walkway that was being used as a platform. It was not a platform that was being used as a walkway. The walkway had, according to the evidence, one side guarded at the time.

Legal Analysis

Interpretation of the Occupational Health and Safety Act

Defence submits in its factum that the Ontario Health and Safety Act must be interpreted strictly and narrowly and that any ambiguity in interpretation must be resolved in favour of the accused. Defence then relies on the case of Rizzo and Rizzo Shoes, [1998] 1 S.C.R. 27, at page 31. However, that decision needs to be read in its entirety to grasp the true instruction from that decision. The Court says in Rizzo and Rizzo Shoes:

The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, the intention of Parliament. Moreover, section 10 of Ontario's Interpretation Act provides that every Act "shall be deemed to be remedial" and directs that every Act shall "receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit."

Rizzo and Rizzo Shoes concerned charges under the Employment Standards Act and the Court was resolving perceived conflict between different pieces of legislation. The Court's reference to legislative history being used as a tool for divining the intention of the legislature is only part of the analysis that went into that Court's decision.

Referring then to and being instructed by the Court of Appeal decision in R. v. Timinco Limited, 153 C.C.C. (3d) 521 at 528:

The Occupational Health and Safety Act is a public welfare statute. The broad purpose of the statute is to maintain and promote a reasonable level of protection and safety of workers in and about their workplace. It should be interpreted in a manner consistent with its broad purpose.

In the case Ontario (Ministry of Labour) v. Hamilton (City), [2002] O.J. No. 283:

The OHSA 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. This principle has been recognized and applied in several recent decisions of this court.

In keeping with that, the interpretation of the legislation under which the charges were laid against Strabag and Pietka will be interpreted broadly so as not to frustrate the intention of the legislators.

Nature of the Offence: Strict Liability

This is a strict liability offence. The Supreme Court of Canada in R. v. Sault Ste. Marie (1978) stated:

Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that 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 mistaken 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.

The Crown has the burden of proving the actus reus beyond a reasonable doubt. In R. v. Lifchus, [1997] 3 S.C.R. 320, a decision of the Supreme Court of Canada in a criminal matter, the Court instructs with regard to the meaning of a reasonable doubt. The Court says:

Perhaps a brief summary of what the definition should and should not contain may be helpful. It should be explained that:

1. the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;

2. the burden of proof rests on the prosecution throughout the trial and never shifts to the accused.

And that does not apply to this case at bar because this is a strict liability offence.

3. a reasonable doubt is not a doubt based upon sympathy or prejudice;

4. rather, it is based upon reason and common sense;

5. it is logically connected to the evidence or absence of evidence;

6. it does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and

7. more is required than proof that the accused is probably guilty—a jury which concludes only that the accused is probably guilty must acquit.

Regarding the case at bar, the Crown does not have to prove each piece of evidence beyond a reasonable doubt, but I cannot agree with the Crown's submissions on the proof of the actus reus. The Crown submits that all that is required is that the Crown prove the essential elements—essentially, that Strabag is a constructor, Mr. Pietka is a supervisor, there was a worker and a piece of machinery, and the machinery was not locked out and the worker was hurt.

It has to prove those elements of the offence beyond a reasonable doubt. To say otherwise means that guilt is axiomatic with no proof or argument; that guilt would be obvious or self-evident. Although the Crown must make out the actus reus on a prima facie basis, the actus reus still needs to be proven beyond a reasonable doubt.

Analysis of Counts Two and Five (Lockout Charges)

Dealing with counts two and five first.

In my view, the case of Strabag and Pietka is not the same as the case of Ontario v. Dofasco Inc., [2007] O.J. No. 3025 (Ont. C.A.), as the Crown submits, where the company sought to blame the worker for not following policy and then failed to have the machine properly guarded where a worker was injured. Nor is it the same as Lonkar Well Testing Limited, 2009 ONCJ 134, [2009] O.J. No. 1443 (Ont. C.A.), as defence submits, where the worker was told more than once by his supervisor with regard to a specific life threatening task and reminded of it by another worker who was passing by before the worker did the forbidden act and died. Nor is this R. v. Ayrfield Holdings Limited, [2007] O.J. No. 5326 (C.J.), where an experienced worker who was safety trained was just told not to go into an area that did not have a guardrail.

I find that Strabag and Pietka is a case where it's an experienced, mature, trained, compliant worker who was working over moving machinery that was temporarily shut down while he was in communication by radio with the operators of the machinery. At the end of his task, he had communicated with the machine operators to confirm that he had successfully fixed the problem and he was leaving his task. This is not a case of a repeated error made over and over on the same piece of machinery by the same worker or in the same unsafe fashion ignored or unbeknownst to the constructor or the supervisor. This is a one off. This is sheer seconds.

I am not satisfied beyond a reasonable doubt that Strabag or Pietka failed to ensure the machinery was locked out while a worker was exposed to falling into that machinery. And if I am wrong in that finding, all of the evidence indicates that Strabag and Pietka were diligent and have met the test on the second branch of due diligence. I do not accept the argument and cannot find that Strabag and Pietka believed in a mistaken fact. That branch, due diligence, has not been made out. But I do find that Strabag and Pietka took reasonable steps in the circumstances to ensure that the machinery was locked out.

Mr. Zappetelli knew because he was trained to lock out. Toolbox meetings entered as evidence show that they had addressed lock out. I have reviewed those reports and I find that lock out were discussed at meetings where Mr. Zappetelli was present. As an example, I turn to page 444 of exhibit number 2 and there are other examples.

Also, upon review of the reports which are entitled Monthly Intake Job Site Inspection Forms found as an example on page 431, the lock out and tag out is marked as satisfactory, which is the highest rating it could be given. Also, on the Surface Area Safety Inspection form found as an example on page 425, the use of lock out and tag out is verified.

I think these are the forms referred to in the minutes of the Joint Health and Safety Committee where inspection reports for various areas viewed by that committee at the time of its monthly inspection. There's also evidence of Strabag training on conveyor belt safety and lock out and tag out safety. This is in the Orientation for New Workers, page 588, in exhibit 2, which clearly indicates a safety procedure concerning lock out and conveyor belts. Page 593 describes the lock out safety in general. Page 625 addresses the lock out and tag out procedure and at page 626, it addresses the personal lock that each worker had which was acknowledged by Mr. Zappetelli in his evidence.

The safety policy tendered by defence in that same exhibit outlines the policy beginning at page 107. It's a Strabag procedure regarding lock out and tag out and finally, at page 305, Safety Instruction number 204 which is titled, "Lock out and Tag out on the TBM Backup and conveyor system".

Point number three specifically states:

Work in the transfer shoot between the TBM and Back up need both of the above mentioned lock outs in place at back up number four and have the TBM key in possession.

Point four then goes on:

Tunnel conveyor must be locked out at the C-Can under the conveyor transfer point behind the batch plant.

With regard to Crown's submission that the Court had not heard anything from Mr. Pietka with regard to the due diligence defence, in my view, the accused is not required to give evidence even when the onus is reversed. It may be difficult, but it is not impossible for the defence to establish due diligence only by cross-examination of Crown witnesses, or in this case, Mr. Viljoen from Strabag, or by tendering evidence of training or training programs or by both cross-examination and tendering of evidence. The Court should draw nothing adverse from Mr. Pietka not testifying.

I also do not accept Crown submissions that lack of evidence from Strabag with regard to discipline for breaches of safety policies that were in place should lead the Court to find negatively about the safety culture at Strabag. No evidence of discipline being handed out to an errant worker does not mean that there was no enforcement. If the Court took that line of thought, the Court could also question why there were not more field reports from Ministry Investigators or stop work orders.

What I would find if the actus reus had been made out beyond a reasonable doubt, which it has not, is that there is ample evidence for the Court to find that Strabag and Pietka were diligent on the balance of probabilities with regard to lock out policy and procedure and training on that policy.

Accordingly, count two and count five will be dismissed.

Analysis of Counts One and Four (Guardrail Charges)

With regard to counts one and four, guardrails are basic fall protection. Guardrails on a walkway or platform is basic. The distance of the fall from the walkway to the conveyor or between the two conveyor belts is not the issue. The issue is the unguarded platform or walkway that is over operating machinery.

Definition of "Operating Machinery"

With regard to whether or not the conveyor belt system with operating machinery, I find as follows.

There is no definition in the Occupational Health and Safety Act or Regulations with regard to operating machinery. I then turn to the cases put before the Court by Crown and counsel.

First, the decision of my sibling justice in R. v. MBI Ltd. (c.o.b. Smurfit MBI), [2004] O.J. No. 869 (C.J.), parenthetically Smurfit MBI, with regard to terms used in the Occupational Health and Safety Act and defining those terms. I find that case was particularly unhelpful and was, in fact, successfully appealed. The appeal of that decision was found in the Crown's Book and was instructive at page 22 where the Court says:

It is appropriate to take witnesses' evidence as an explanation for terms used.

The other case in the Crown's Book was page 3 of R. v. Tom Kozak and Rainy River Forest Products (unreported, August 25, 1997, O.C.J.) where the Court speaks of using the plain meaning of words in the regulations and in this case the meaning of the transitive verb "starting". In our case there's a transitive verb, operating.

Turning to the Oxford Dictionary definition of operate: "Work, be in action, function". In another definition, "to be at work, to run."

I then turn to the dictionary definition of machinery using the Oxford Dictionary which defines machinery first as a group of machines and defines machine as, "an apparatus for applying mechanical power".

In another definition of machinery it reads: "Device consisting of fixed and moving parts that modifies mechanical energy and transmits it in a more useful form."

All the evidence before this Court and the information contained in exhibit number 2 which describes the operation of the tunnel boring machine being used by Strabag is that the conveyor belt system is part of the TBM. The way the system works is that when the TBM is operating so are the conveyor belts in order to move the debris away as the machine bores through the earth. The evidence from Mr. Viljoen was that the machine was always in use except each morning for regular maintenance or for other maintenance when the system might need to be shut down from time to time if an area under or around the conveyor belt needed to be tidied up. The TBM in my view, was a raison d'être of the project to dig a tunnel from Queenston to Chippawa for Ontario Power Generation. If there was no operating machine there would be no project.

In my view, the machine and the conveyor system qualifies as an operating machinery and there is no doubt that it was operating at the time of Mr. Zappetelli's accident.

Credibility of Witnesses

I have already made findings with regard to the credibility of Mr. Zappetelli. Before I begin my analysis of the evidence on the guardrail charges, I will begin by finding the evidence of Inspector Julie Ritchie of the Ministry of Labour and Mr. Johan Viljoen, the Health and Safety Manager at Strabag.

First to put it into context, the Occupational Health and Safety Act is a powerful piece of legislation as it should be. The inspectors for the Ministry, just like any other Provincial Offences officer or peace officer, must be fair and objective in their investigations and be seekers of truth. They play a vital role in the protection and safety of workers up to and including life saving measures. According to this legislation it is a value in Ontario that workers be protected and that employers be held accountable when they did not have adequate systems or policies in place. It is an awesome responsibility for everyone.

I find that Inspector Ritchie in giving her evidence was at times not forthright and I will point to specifics in a minute, but because she at times seemed evasive or unable to answer questions or unwilling to answer questions, it goes to her credibility as a witness.

Johan Viljoen, the Strabag Health and Safety Manager, by contrast did his best to be honest and forthcoming. His tone of voice, his affect, the words he chose to express his evidence was completely credible and I will point to specifics with regard to that in a moment.

Evidence Regarding the Guardrail

The evidence of Mr. Zappetelli when looking at the pictures that were admitted into evidence was that the walkway had one guardrail at the time he fell, not two. With regard to the photos entered into evidence that show the walkway that Mr. Zappetelli was standing on, all the evidence was that there was only one guardrail at the time.

I am satisfied beyond a reasonable doubt that the actus reus of the charge of failing as a constructor and the charge for failing as a supervisor to prevent a worker from falling into operating machinery by ensuring that an appropriate guardrail system was in place or an appropriate method of fall protection was being used has been proved beyond a reasonable doubt.

The onus now shifts to the accused to prove that they were duly diligent on the balance of probabilities.

The "Disperse the Blame" Defence

In their defence to the charge, Strabag and Pietka embark on what this Court would call a "disperse the blame" defence. That is D-I-S-P-E-R-S-E as in a drop of detergent on a pool of oil. When the detergent comes in contact with the oil, the oil immediately breaks into several little pools. Parents will recognize the disperse the blame defence. That's what happens when the heirloom vase in the family room is knocked down and shatters. The parent hearing the crash goes to the family room and finds the vase in pieces on the floor and says, who did this? There are three siblings in the room, two of whom immediately point to the third who wails, "it's not my fault he pushed me". Which is responded to with a point to a younger sister and says, "she tripped me", and the younger sister says, "did not, he tripped over a toy that he was playing with".

Like detergent on an oil pool, defence points to the area where the walkway crosses over the conveyor belt and says, it's not our fault Mr. Zappetelli should have worn fall arrest equipment; he was a safe worker; Inspector Ritchie never said anything, neither did the Joint Health and Safety Committee.

Joint Health and Safety Committee

Beginning with the Joint Health and Safety Committee, I have carefully reviewed the committee meeting minutes from the day before Mr. Zappetelli's accident. I found no specific evidence with regard to the committee attending at that exact point where Mr. Zappetelli's accident happened. Defence has submitted that there was nothing noted about the walkway over the conveyor belt or that it was unsafe. What I would have liked to have seen along with the Joint Health and Safety Committee meeting minutes was the inspection report noted at .3 in the minutes of that meeting where it says parenthetically, "Inspection reports attached."

Other inspection reports are included in exhibit 2 tendered by defence. For instance, if I start at page 389 of Volume I of exhibit 2, I find the Joint Health and Safety Committee meeting minutes for the 15th of July, 2009, and will find the accompanying inspection report at page 427. And that continues along for each month until I get the Joint Health and Safety Committee minutes for the 13th of January, the day before Mr. Zappetelli's accident. And that is found at page 419. But there is no accompanying inspection report. I am not suggesting at all that defence withheld that. To be fair, there are older dated Joint Health and Safety Committee minutes in the exhibit, many of which do not have accompanying inspection reports.

On the Surface Inspection forms that are before the Court starting with the 15th of July, 2009, there is a section which deals with fall hazards which include guardrails and work platforms in different spots on this form. With respect to the weekly tunnel TBM area safety inspection, there is no indication on the form where the items being inspected are located on the surface of the project.

I have reviewed all of the forms provided for dates other than the day before this accident, which start at page 427 and I find these forms are perfunctory. They occasionally have a hand written note, but for the most part they are just a series of check marks next to a list of items and then it's signed off on the reverse of the form by the people who did the inspection.

Joint Health and Safety Committee minutes from the 13th of January do not have any notation about where on the project the committee attended. However, there is evidence from Mr. Viljoen that the committee attended at that area on that day, the day before Mr. Zappetelli's accident. I accept that evidence and I find that the committee was there, but I cannot find how thorough that inspection was.

Inspector Ritchie's Inspection

Turning now to exhibit 14 and the routine inspection done by Inspector Ritchie a few weeks prior to Mr. Zappetelli's accident. It's a Premise/Project form for the 17th of December, 2009. It is Inspector Ritchie's form signed by her and Mr. Viljoen. It says on there, "Discussed area of over break, conveyor belt safety, proper tie off points for elevated work platforms." The evidence is that there were no orders made on that day.

Turning first to the evidence of Inspector Ritchie under cross-examination on this point beginning at page 40, the transcript from the 25th of January, starting at line 20:

Question: There is nothing in your notes about which end or how you got to the tunnel, correct?

Answer: True.

Question: And there's no notes of what you may have observed along the way? Fair?

Answer: True.

Question: So, this phrase conveyor belt safety, were you aware at the time that the conveyor belt that started at the TBM went all the way through to the transfer area where the incident occurred?

Answer: Yes.

Question: And how would you know that as of December 17th, 2009?

Answer: My recollection is that the conveyor belt ran along side the tunnel out. There was a transfer point and then the conveyor belt then ran over to the island area.

Question: All right. So, the transfer point that you've just referred to from your recollection, that's the area where the incident occurred? Is that fair?

Answer: Yes.

Question: Okay, and it's partially called a transfer point because that's where one conveyor drops, that drops material onto another conveyor and transfers the material into the different direction and eventually goes out to the island? Is that fair?

Answer: Yes.

Question: All right. And you were familiar with the complete conveyor belt system on this large project prior to December 17th, 2009? Is that fair?

Answer: I was familiar there was a conveyor belt system, yes.

That's the point I was making earlier about how Inspector Ritchie approached her evidence giving.

Question: All right, and you've just described the system to us as you recall it on December 17th, 2009? True?

Answer: True.

Question: You certainly had the opportunity to inspect the full length and transfer point and configuration of conveyor belts all the way from the TBM back to where it deposited the material on the island prior to December 17th, 2009? Correct?

Answer: Correct.

Moving over to page 42 at line nine:

Question: You weren't trying to avoid any particular area including the transfer points of the conveyor belts in doing your job of an inspector at the scene of the project, would you agree?

Answer: I would agree.

Question: So it's likely as of December 17th, 2009 that you were familiar with the full configuration of the conveyor belt system, correct?

Answer: Yes.

Question: And you certainly had access to the full conveyor belt system including the transfer area prior to or on December 17th, 2009? Would you agree?

Answer: Yes.

Question: And it's very likely that you had an opportunity to review or inspect the transfer area of the conveyor belts where the incident occurred prior to or on December 17th, 2009? Is that fair?

Answer: Yes.

Question: Thank you, and certainly on December 17th, 2009 no orders were issued of any kind including any issues with the respect to the conveyor belt safety or elevated work platforms? True?

Answer: True.

Mr. Viljoen's evidence on this point was as follows. Beginning with his examination-in-chief on page 122, the same transcript, beginning at line 23:

Question: All right. There may have been a number of exhibits put before the Court through Miss Ritchie and one of them was identified earlier today. It's exhibit 14, it's December 17th, 2009. I'm not going to show you the document, sir. This appears to be a Premise/Project form signed by Julie Ann Ritchie and your signature appears on the document as well.

Answer: Yes.

Question: That's your name and signature?

Answer: Correct.

Question: All right. There weren't any orders issued on that day, is that fair?

Answer: Yes.

Going down to line 18:

Question: All right. Now, on the subject of this Premise/Project form, exhibit 14 that you have in front of you does the subject of conveyor belt safety appear on the document?

Answer: Yes, it does.

Question: All right, and do you have an independent recollection of her being on site and doing what she calls a routine inspection of that project?

Answer: I have no written record for myself but…

Question: All right, but did….

Then Mr. Viljoen says:

Answer: This shows that I signed it and yes, confirmed that she was here.

Question: All right.

Answer: Or was there, yes.

Question: Do you recall whether she had access to the conveyor belt number three in the transfer area where Mr. Zappetelli had his incident on that day? Would she have?

Answer: Yes, she would have.

Question: All right. Did you receive any complaints about that particular area on the day?

Answer: No, none.

Question: Were there any complaints about lock out or tag out procedure that she issued orders off of that day?

Answer: Nothing.

Question: Did you attend with her as you inspected the site on the 17th of December, 2009?

Answer: Yes.

Question: Did she have access on that day to the conveyor belt number three in the transfer area where Mr. Zappetelli's incident occurred?

And here Mr. Viljoen starts to struggle with it but his answers are completely credible. He says again:

Answer: I don't have any written record of it. We've been to so many places so many times. I know that we've been in that area but when exactly I cannot recall.

Question: Well, let me, let me address that part of your answer then. Are you quite certain that on one or more occasions you and Julie Ritchie from the Ministry of Labour and perhaps others were present when she went to the area where Mr. Zappetelli slipped and fell onto the conveyor belt?

Answer: Yes.

Question: All right, and at the time did you receive any orders or verbal requests to make any changes to the configured workplace?

Answer: No.

As a result of that evidence and in light of the findings of credibility already made, I find that Julie Ritchie did attend with Mr. Viljoen in the exact area of Mr. Zappetelli's accident. I also find that Miss Ritchie did not ever point out the walkways as a hazard to Mr. Viljoen or to anyone else at Strabag.

Due Diligence Defence: First Branch (Mistaken Fact)

Beginning with the first branch of the due diligence defence as set out by the Supreme Court of Canada in R. v. Sault Ste. Marie (1978)—belief of a mistaken set of facts—without even getting into the test to be applied to a mistaken set of facts, that being a subjective belief of the defendant which must be objectively reasonable as set out in R. v. London Excavators and Trucking, [1998] O.J. No. 6437 (Ont. C.A.), I find myself agreeing with Crown.

To have mistakenly believed that there was a guardrail there would only be reasonable if there was a guardrail there when the Joint Health and Safety Committee toured the area the day before or when the workers were there the night before and then somehow it was removed before Mr. Zappetelli started working on the camera.

It also cannot be a mistaken fact that the worker would work in a safe manner or that if the area were not safe, Mr. Zappetelli, because he was a good and conscientious worker alive to the safety policy of Strabag, would come and tell Mr. Pietka that it wasn't safe to work on the walkway. That would not be reasonable given the cases which state the policies and procedures must be in place for all workers. That means that generally safe and conscientious worker and the imprudent careless worker. This is in keeping with the decision in R. v. Chrima Iron Works Ltd., [2007] O.J. No. 2978 (S.C.J.), where the Court found there was no error of reality to that defence.

The other mistaken set of facts set out by defence and the reason the accident was originally not reported to the Ministry of Labour is the distance between the walkway and the conveyor and through the hopper. In my view, the distance is not an issue. Those distances would not have required a guardrail or fall arrest. The issue is the operating machinery. In my view, that subjective belief is not objectively reasonable in the circumstances. By that I'm referring to the distances and the operating machinery.

Officially Induced Error Defence

In the dispersing the blame argument, defence suggests, if not argues, that because Inspector Ritchie was on the spot where the walkway was over the conveyor belt inside the transfer hopper and never identified it as a safety hazard, the company should be exonerated due to officially induced error.

Turning to the case of Levis (Ville) v. Tetreault, [2006] S.C.R. 420 (S.C.C.), LeBel, Judge was speaking for the Court. In my view, the focus of this case is not the due diligence defence as set out by defence in the factum for Strabag, but the focus of this case is the defence of officially induced error and in this decision the Court instructs that ignorance of the law not being an excuse has been modified. In this highly regulated society this is reasonable. The Court then adopts as the analytical framework for determining officially induced error the reasons set out by Chief Justice Lamer in R. v. Jorgensen, [1995] 4 S.C.R. 55.

And while LeBel, Judge speaking for the Court says at paragraph 26:

After his analysis of the case law, Lamer, C.J. in R. v. Jorgensen at pp. 28 through 35, says, "defended the constituent elements of the defence and the conditions under which it will be available. In his view, the accused must prove six elements:

(1) That an error of law or mixed fact was made;

(2) that the person who committed the act considered the legal consequences of his or her actions;

(3) that the advice obtained came from an appropriate official;

(4) that the advice was reasonable;

(5) that the advice was erroneous; and

(6) that the person relied on the advice in committing the act.

Although the Court did not rule on this issue in Jorgensen, I believe that this analytical framework has become established."

Applying this test to Strabag and Pietka, the defence fails. Although I have found Inspector Ritchie was in the exact area with Mr. Viljoen at least once on the 17th of December, 2009, for simply attending there does not meet the test. To meet the test, someone at Strabag, including the Joint Health and Safety Committee, would have had to have turned their mind to that area where the walkway went over the conveyor belt. They would have had to have contemplated whether it was or was not in keeping with Occupational Health and Safety standards, gone to Inspector Ritchie, posed the question and then relied on her answer as an official with the Ministry of Labour. That did not happen. There is no evidence to suggest that that ever happened.

Due Diligence Defence: Second Branch (Reasonable Steps)

The last defence argument is the second branch of due diligence that Strabag and Pietka took reasonable steps in the circumstances to prevent counts one and four from happening as charged by the Ministry of Labour.

In my view, it would be reasonable in the circumstances to have a guardrail on both sides of the walkway being used as a platform by Mr. Zappetelli which was situated over operating machinery. Although defence has argued that Mr. Zappetelli had fall arrest equipment, his evidence is that the fall arrest equipment could not have been used inside the transfer hopper and that is also obvious from the photos taken inside the hopper entered as evidence. I accept Mr. Zappetelli's evidence on that point and for that reason I will focus on the guardrails.

Finding as I have already that the policy of Strabag was sufficient to address counts two and five, I turn to the policy again with regard to fall protection, specifically guardrails.

In exhibit 2, Volume I, found at page 87, subject Personal Protective Equipment, .2, first sentence:

Personal protective equipment is not a substitute for adequate engineering or controls which are always the first level of protection from hazards.

At page 92, same subject, Personal Protective Equipment .10.2:

Because of the potential for serious injury or death work planning is vital in situations where fall protection is required. General guidelines for planning fall protection are listed below.

And then there are eight guidelines set out to be followed by the company and the workers in fall protection planning.

Next at page 194, the subject Fall Protection. The purpose is found at 1.0:

The purpose of this plan is to establish and maintain policies and procedures that protect workers from fall hazards at the Niagara Tunnel and the I.N.C.W. owner only project in accordance with the applicable fall protection compliance requirements.

And on the next page under .4, which is the procedure to be followed it says:

No worker shall be exposed to heights greater than 2.4 meters when near an unguarded edge to a floor, roof, platform, opening, or on a ladder without first providing travel restraint, fall arrest, or guardrail protection. Fall protection is also required if a worker may fall into operating machinery, into water, et cetera.

At .4.1, the heading is Guardrails and the procedure reads:

Guardrails shall be the primary method of fall protection whenever possible. All guardrails shall have a top rail and an intermediate rail, a toe board and shall be installed at the parameter of the open sides of a work surface.

And then the policy goes on to address the exact specifications for guardrails.

Moving to page 290, the subject is Conveyor Belt Systems. The policy starts by describing the use and purpose of the conveyor belt system and how it will be installed, maintained and repaired. At page 291, subheading "B", the heading is, "Installations of conveyor and support structure going out to the tunnel portal up past the batch plant."

Reading paragraph number five:

The structure [referring to the support structure on which the conveyor belt is installed] will have walkways 60 centimeters wide made of 30 by 30 steel grid. Walkways will be on both sides of the conveyor. Only one side will lead up to the top of the transfer hopper next to the batch plant to allow for maintenance and repairs as required.

Paragraph number six:

Steel hand railings meeting the Occupational Health and Safety requirements for handrails are installed on both sides of the walkways. Access to the walkways are by a steel rung ladder enclosed and tubular cross steel framework around the ladder to prevent falls.

Moving along to page 587 in exhibit number 2, Volume II, in the Tunnel Safety Orientation given to workers under the heading of Conveyor Belt Safety:

Conveyor has in some areas walkways with handrails, both sides.

Found at page 627 at that same Volume in the Tunnel Safety Orientation given to workers under the heading of Fall Protection .2:

Guardrails are required to protect workers from open edges of scaffolds, platforms, et cetera.

And in the final point in the list is:

Locations where workers may fall into operating machinery.

Foreseeability

With regard to foreseeability, in the case of R. v. Rio Algom Ltd, [1998] O.J. No. 1810 (Ont. C.A.):

The test which should have been applied was not whether a reasonable man in the circumstances would have foreseen the accident happening in the way it did happen, but rather whether a reasonable man in the circumstances would have foreseen an accident happening.

So, it's not that Strabag could foresee Mr. Zappetelli's accident happening as it did, but could it foresee it at all. Lack of guardrails on the walkway and the fall happening from the spot in some form or fashion, I find was completely foreseeable by Strabag. Not only was it completely foreseeable, it had been contemplated by Strabag in the formulation of their policies and procedures with regard to safety around the conveyor belts. They failed in following their own policy and procedures as well as failing to protect the worker.

Mr. Pietka's Conduct

With regard to Mr. Pietka, I returned to the evidence of Mr. Zappetelli beginning with the transcript from the 6th of January at page 15, line 28:

Question: Why did you do that?

Answer: He asked me to go access what was wrong and then I came back and I explained to him and then he explained to me how to repair it.

Question: …

This is examination-in-chief.

Question: When he asked you to go access what was wrong did he ask about the platform at all?

Answer: No.

Question: Did he ask about guardrails?

Answer: No.

Question: Did he ask about whether or not you were going to use fall protection equipment?

Answer: No.

Question: Did he talk to you about any hazards that may or may not be there?

Answer: No.

Question: Did he instruct you to take any particular precaution?

Answer: No.

Question: So, now I want to ask you some questions about your prior experience at this location. Had you been to that part of the work place before?

Answer: Yes.

Question: Do you recall when by any chance?

Answer: Not off hand. We were doing high voltage extensions but that's about it.

Question: Okay. Can you perhaps estimate how many times you've been in this location before?

Answer: Maybe three or four times.

Question: And in those occasions that you've been there do you recall observing the platform?

Answer: Yes.

Question: And can you describe to the Court what you recall observing on the platform?

Answer: Well, we're not allowed to walk on the conveyor so we use the walkway to go on either side.

Question: Have you used the platform before?

Answer: Yes, as a walkway.

Question: Do you recall seeing whether or not there was a guardrail on the platform similar to the way it is in this photograph in 5 (b)?

Answer: No, just this. The front one wasn't there.

Question: Had you observed, have you ever observed other workers walking along the platform before?

Answer: Yes.

Question: And do you recall if there was a guardrail on the front of that, on the front of it at that time?

Answer: No.

Question: On those occasions where you would have walked on the platform before do you recall if you were wearing fall protection equipment?

Answer: I wasn't wearing fall protection.

Question: Have you, have you worn fall protection equipment when you were on the platform?

Answer: No.

Question: Have you observed other workers using fall protection equipment while on the platform?

Answer: With the people that I've been with, no.

Question: In those occasions where you'd been working at that particular site was Mr. Pietka present?

Answer: No.

Question: Or was any supervisor present?

Answer: No.

Question: Do you recall any supervisor had observed you on the platform at that moment….

There's an objection then by Mr. Keith, going to page 18, line 15.

Question from Mr. Robinson to Mr. Zappetelli:

Question: In those moments when you used the platform as a walkway do you recall if a supervisor was present?

Answer: No.

Question: No, you don't recall or there was no supervisor?

Answer: I don't recall, yeah.

Question: Prior to the 14th of January, 2010 have you ever been disciplined for being on a platform when you were walking on it and not using fall protection equipment?

Answer: No.

And of course he went on to explain in his evidence with regard to that area.

Continuing with Mr. Zappetelli under cross-examination at page 57, line 1:

Question: So, if you could please go to tab number three, as I've marked on the sticky note. It's at page 617, Your Worship, of the next tab. It's entitled, "J.S.A. and Safety Talks". Do you see that, sir?

Answer: Yes.

Question: I'll just read it and then ask you a question or two. It says, "J.S.A., job safety analysis at the beginning of each shift supervisors will discuss J.A.S. for a specific task with work crew safety. And it goes on to say, safety talks, at the beginning of each shift, supervisors will discuss safety concerns. Work crews will sign off on all J.S.A.'s and safety talks". So, just first of all it appears that something called a Job Safety Analysis as well as a safety talk was covered in Strabag's safety orientation with you, is that fair?

Answer: Yes.

Question: And it's an acronym or letters, J.S.A. it's not the normal kind of thing that one talks about on a construction project. One doesn't talk in this sort of technical abbreviated language, do they?

Answer: No.

Question: So that might, in fact, be a reason why you may have forgotten when you're asking Mr. Robinson, trying to help him with his questions, why you may have forgotten whether or not you'd ever been exposed to or seen that phrase or term before, is that fair?

Answer: Yeah, that's correct.

Question: It was more the idea of having safety talks and safety awareness that was important on the site, rather than technical abbreviations or acronyms, is that true?

Answer: True.

Question: Okay, thanks. So, then on the safety talks part of this page it says at the beginning of each shift supervisors will discuss safety concerns. So, on the day of January 14th, 2010 did you talk about the work assignment and any safety issues, if any, with Mr. Pietka, is that fair?

Answer: Yes.

At first blush in going over that point it appears that Mr. Zappetelli is talking about the task he was assigned and safety issues, but the first part of that question was about safety talks at the beginning of each shift and to clarify perhaps one can by reviewing the daily safety talk forms, including exhibit 2, Volume II and I refer to the daily safety talk form for the 14th of January, 2010 to see what was discussed.

Starting at page 860, the daily safety talk form from the 25th of May, 2009 following along to the next tab, 27th of May, 2009 and then to the next tab, there is a form from the 2nd of July, 2009 and then following that form is the 15th of July, 2009, and those are all the daily talk forms that are in the exhibit. There is no daily safety talk form in the evidence from the 14th of January.

Given all of the evidence of Mr. Zappetelli, I find that there was no discussion of safety specific to the task that he was assigned by his supervisor. And as I said, although initially that question sounds like it's talking about whether or not it was discussed with Mr. Pietka that day, the question starts talking about safety analysis and then it kind of switches at the end.

So, I am making my finding based on all of the evidence that was given by Mr. Zappetelli that there was no discussion of safety specific to the task that he was assigned by Mr. Pietka.

In the Worker Orientation training found at page 611, exhibit 2, Volume II, .4, under the heading of "Duties and Responsibilities of Supervisors", it reads:

Has a duty to advise all workers of hazards or potential hazards on the job.

In exhibit number 2, page 16 of Volume I under the heading, "Accident Prevention Responsibilities of Supervisors, .2":

Provide safe job instructions. Ensure each employee understands the hazards, the correct procedures, the applicable regulations pertaining to the task.

Although defence argues that it was reasonable for Mr. Pietka to expect Mr. Zappetelli to perform his work safely and the standard is not perfection, but given the circumstances which include the time of day, the concomitant starting up of the boring machine and the conveyor belt system, the location of the task that Mr. Pietka had given to Mr. Zappetelli in relation to the operating machinery, and the worker standing on a walkway over operating machinery, it would have been more reasonable to have Mr. Pietka discuss with Mr. Zappetelli particular safety concerns and hazards. It would have been reasonable for him to accompany Mr. Zappetelli to that area given the time of day, and given the work that was happening, to observe the work space for himself.

Accordingly, count one and count four, there will be findings of guilt and convictions will be registered.

Sentencing

SHELLEY, J.P. (Orally):

I do not see any reason to disturb the joint position that has been put before the Court with regard to Strabag. It is clear to me that Mr. Robinson and Mr. Keith have turned their minds to the principles in the direction in R. v. Cotton Felts (1978). It certainly is not a penalty that would bring the administration of justice into disrepute.

The fine will be imposed for count one, $30,000, costs and victim surcharge will be added to that, with 90 days to pay.

And with regard then to Mr. Pietka, count four, I agree with Mr. Adario and I will impose a fine of $1,000. There will be costs then as well there will be a victim surcharge added to that, with one year to pay.

Certification

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act

I, Twila Starshuk, certify that this document is a true and accurate transcript of the recording of Regina v. Strabag Limited and Ryszard Pietka in the Ontario Court of Justice, Provincial Offences Act held at 4635 Queen Street, Niagara Falls, Ontario, taken from Digital Recording which has been certified in Form 1.

DATED: ________________

Twila Starshuk Certified Court Reporter

COPIES OF THIS TRANSCRIPT BEARING PHOTOSTATIC OR FACSIMILE SIGNATURES ARE NOT CERTIFIED AND HAVE NOT BEEN PAID FOR. UNLESS TRANSCRIPTS BEAR THE ORIGINAL SIGNATURE OF TWILA STARSHUK, IN BLUE INK, THEY ARE NOT VALID, AND, ACCORDINGLY, ARE IN DIRECT VIOLATION OF ONTARIO REGULATION 587/97, COURTS OF JUSTICE ACT, JANUARY 1, 1990.