Court File and Parties

Court File No.: 105128 Information Date: June 24, 2011 Ontario Court of Justice

The Queen in Right of Ontario (Ministry of Labour) — v. — Anray Limited

Decision & Reasons

Before: Justice of the Peace M. H. Conacher

Trial: January 27 & 28, 2014

Judgement & Sentencing: March 6, 2014

Counsel:

• J. Tam for the Ministry of Labour
• R.M. Allegra for Anray Ltd.

Allegations

[1] Anray Ltd. is charged under the Occupational Health and Safety Act with failing as an employer to ensure the measures and the procedures prescribed by s.37(1) of Ontario Regulation 213/91 were carried out at a project located at 59 Hoyle Ave. in Toronto (count 1) and similarly with respect to s.104(3) of the same Regulation (count 2) and similarly with respect to s.3(2) of Ontario Regulation 856.

[2] Count 1 alleges a failure to ensure that an excavator was moved in a manner that did not endanger a worker. Count 2 alleges a failure to ensure that the operator of the excavator was assisted by a signaller. Count 3 alleges a failure to ensure that the operator of the excavator was wearing the restraining device, the seat belt, which was provided for the excavator.

[3] The charges arise from an incident that occurred at that project and location on August 10th, 2010.

Decision

[4] The Prosecution has made out, prima facie, and beyond a reasonable doubt that equipment of Anray Ltd. at a project for which Anray Ltd. was a sub-contractor, was moved in a manner that endangered a worker and that a restraining device provided for the equipment was not used. Furthermore, Anray Ltd. has not proven on a balance of probabilities that it took every precaution reasonable in the circumstances to ensure that the equipment was moved in a manner that did not endanger a worker and that the restraining device was used. Accordingly, pursuant to s.66(1) of the Act, Anray Ltd. is guilty of the offences described in Counts 1 & 3 of the Information. As the failure set out in Count 3 is a contributing element of the offence described in Count 1, there will be a Stay of Proceedings entered with respect to Count 3.

[5] The Prosecution has not established, prima facie, that Anray Ltd. failed to ensure that a spotter was provided. Accordingly, Anray Ltd. is not guilty of the offence described in Count 2 of the Information.

Reasons

Factual Background

[6] While an Agreed Statement of Facts was not submitted to the Court, nevertheless, there was no challenge mounted to the evidence of the Prosecution that established, prima facie, the actus reus of Counts 1 and 3.

[7] As the trial progressed, it became apparent that there was little disagreement between the Prosecution and Defence with respect to many of the essential facts and, consequently, with the essential elements of the offences.

[8] Anray Ltd. (Anray) contracted with PGD Design Build (PGD), the constructor at the project at 59 Hoyle Avenue, Toronto, to provide excavating services on a residential renovation, along with the pouring of concrete footings and pads and the installation of rebar. Anray Ltd. subsequently engaged the services of William Marr as a truck driver. On August 10, 2010 at the project site, Ray Kaczynski was operating an excavator, a machine that was rated at 14 tons. Mr. Kaczynski was in the process of loading the excavator onto a "float", that is a trailer attached to the truck that Mr. Marr would be driving. Mr. Marr was to transport the excavator on the "float" to a different location. Mr. Marr signalled to Mr. Kaczynski, stopping the loading process. Mr. Marr indicated that he wished to clean the treads and undercarriage of the excavator prior to its being loaded onto the trailer. Mr. Kaczynski obliged and left Mr. Marr to do the cleaning. Sometime later, Mr. Marr climbed into operator's cab of the excavator and continued with the loading process, that is, driving the excavator up onto the trailer. At a certain point in the loading process the excavator slide off the side of the trailer and tipped over onto its side. The glass of the operator's cabin was broken, Mr. Marr was injured, and some 3rd party property was damaged.

The Prosecution's Case

[9] The Prosecution argues that Anray Ltd. stood as an employer in relation to Mr. Marr. The Occupational Health and Safety Act, s.1(1)(c) provides: "employer" means a person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services and a contractor or subcontractor who undertakes with an owner, constructor, contractor or subcontractor to perform work or supply services.

[10] William Marr, in his testimony, described Anray as his employer. Mr. Ray Kaczynski, supervisor for and testifying on behalf of Anray Ltd. described Mr. Marr as a "sub", meaning sub-contractor. Under either term of reference it is a common position between the parties that Mr. Marr was a worker engaged by Anray to provide services on behalf of Anray. As such, it is the Court's finding that Anray Ltd. stood in the position of employer at the time of the incident and owed the duty of care prescribed by the Act and its Regulations to the worker, Mr. Marr, and to other workers on the project.

Further Uncontested Facts

[11] Ray Kaczynski is the sole corporate Director for Anray Ltd. and also acted as supervisor on the site. Mr. Kaczynski and his wife are the owners of Anray Ltd. (The name of the company is an amalgam of their first names). It was apparent throughout these proceedings that, although it was the company that was charged and is the Defendant, Mr. Kaczynski clearly felt himself to be in the position of defendant.

[12] Mr. Barry Fochuk is an employee of Anray and had been for approximately 4 years at the time of the incident. Mr. Fochuck was at the location at the time of the incident.

[13] The 14 ton excavator that Mr. Marr was operating was the property of Anray Ltd. The company had owned the machine for 1 to 2 years prior to the incident.

[14] Mr. Marr was engaged by Anray Ltd. through an advertisement posted on Kijiji for a truck driver. Mr. Marr's duties, as understood by the respective parties, was to operate the double-rear-axle Mack dump truck which also included hauling a float trailer, both of which are depicted in the photographic evidence to these proceedings. While Mr. Marr's duties were those of a truck driver, he came into the services of Anray Ltd. with many years of experience in the construction trade which included operating machinery such as the excavator in this case, as well as bulldozers, smaller excavators, and a variety of other heavy equipment. This experience was known to Mr. Kaczynski at the time Mr. Marr was retained.

The Actus Reus of the Offences

[15] With respect to Count 1, the Prosecution has proven that Anray Ltd. was the employer in question, that it was the owner of the piece of machinery at issue, that the company and its workers were on a project within the meaning of the Act, that it owed a duty of care to the workers on the project with respect to the safe movement of that machinery, and that the excavator demonstrably was moved in a manner that was not safe, an event that the company as employer was under an obligation to ensure did not happen. An element comprising this unsafe movement in a manner that endangered a worker was the failure of that worker to employ the restraining device provided for the machine. There was, accordingly, on the face of it a failure to ensure that the safety belt was used, which is the requirement addressed in Count 3 of the Information. The failure to utilize the seat belt was a contributing factor to the unsafe and endangering movement of the machine in this particular case.

[16] With respect to Count 2, it was the Prosecution's own evidence, tendered through the testimony of one of its witnesses, William Marr, that a spotter was, in fact, provided by his supervisor, Ray Kaczynski, and that that spotter "walked" him onto the trailer. Although Mr. Marr subsequently stated that, once on the trailer, Mr. Marr looked around and the spotter wasn't where he had been, the Court cannot conclude from that testimony that the spotter was, in fact, no longer present; rather Mr. Marr may simply not have seen where the spotter had moved to.

[17] For those reasons the Court finds that the Prosecutor made out beyond a reasonable doubt the actus reus for Counts #1 and #3 on the Information. The Prosecutor has not made out the actus reus of Count #2 beyond a reasonable doubt.

Foreseeability

[18] The Court does not accept the "foreseeability" aspect of the Defence's argument, that being that the Defendant's representatives could not have foreseen that Mr. Marr would, in the circumstances, do as he did.

[19] There is, for determination by the Court later in this decision, the issue of what Mr. Marr was told as a general rule about who was to operate the 14 ton excavator on behalf of Anray. There is, similarly, the issue of what he was asked to do by Mr. Kaczynski immediately before the incident on August 10th, 2010. Both these issues are in dispute and require an assessment of the credibility of the witnesses. That assessment, set out below, will not be based, as submitted by the Defence, on the R. v. W.(D) analysis which relates to the Prosecution's burden of proof beyond a reasonable doubt but rather on a balance of probabilities relating to the Defence's burden when endeavouring to prove due diligence.

[20] At this point, in terms of foreseeability, the Court will assume, for the moment, the accuracy of the testimony of both the Defence witnesses, Mr. Kaczynski and Mr. Fochuk, on these issues. That testimony was, firstly, that Mr. Marr was told by Mr. Fochuk on at least three occasions and by Mr. Kaczynski on at least one occasion that it is Mr. Kaczynski who always operates the 14 ton excavator and secondly, that Mr. Marr was not asked immediately prior to the incident by Mr. Kaczynski if Mr. Marr would complete the process of loading the excavator onto the float trailer. Even assuming that their testimony is accurate on these points, is it then reasonable to conclude that the employer, Anray and its supervisors, Mr. Kaczynski and Mr. Fochuk could not reasonably have foreseen that Mr. Marr might take it upon himself to operate, not just this piece of equipment, but in fact any piece of equipment or machinery that he had not been expressly hired to operate?

[21] In the view of the Court, an objectively reasonable person would not necessarily arrive at such a conclusion.

[22] Anray's operation, based on the description given by its witnesses, was a small scale operation. At most times it was a two-person operation on the work sites, those being Mr. Kaczynski and Mr. Fochuk. From time to time Mr. Kaczynski's father was also on site on a part-time basis. This particular project involved the excavating as well as the pouring of concrete footings and pads and the installation of rebar. There appeared to be no clear definition or segregation of responsibilities, other than the stated role of Mr. Kaczynski in operating the 14 ton excavator. There was also a smaller excavator and a bobcat on the site. Mr. Kaczynski testified that the keys for these pieces of equipment were left in the machines. No description was given as to who operated those other pieces of equipment. Mr. Fochuck was variously described as a supervisor, as a labourer and as an extra set of eyes and ears for Mr. Kaczynski; Mr. Kaczynski's right-hand man in Mr. Fochuk's words. Mr. Kaczynski's father, when present, performed as a labourer. In short, there were a variety of tasks to perform and only a few hands to perform them.

[23] Mr. Marr comes on board. He is an experienced truck driver as well as heavy equipment operator. Arguably, he is as experienced as Mr. Kaczynski on heavy equipment operation. That fact is known to Mr. Kaczynski.

[24] In this context, in the view of the Court, it is well within the realm of predictability that a circumstance could arise, with others on the small team being otherwise occupied, that Mr. Marr might take it upon himself to do as he did on August 10th, 2010 to operate a piece of equipment other than the truck for which he was hired, especially as the keys were left in the machines when they were not being operated.

Integrity of the Investigation

[25] An alternate line of argument by the Defence, one not strictly related to its due diligence defence, was that the Ministry of Labour investigation was deficient; that there were obvious investigative steps that ought to have been taken that were not. Much of the cross-examination of the Ministry of Labour staff was taken up to support this line of argument.

[26] It is difficult to countenance this argument in that, deficient investigation or not, and whether or not further investigative steps might have been, could have been or perhaps should have been taken, as discussed above, the Prosecution has made out the actus reus of the two offences by Anray Ltd. This line of argument did not raise a reasonable doubt about the evidence upon which the Prosecution relied to establish the actus reus of the two offences.

[27] The thrust of this argument as the Court understood it was that, had the investigators been more thorough, it would have been determined by them, and hence by the Prosecution, that Anray could not have reasonably foreseen what would happen or, in the alternative, had been duly diligent in its efforts to ensure that it did not happen. While the Court has some sympathy for this argument, given that it is a continuing obligation on the Prosecution to assess whether there is a likely prospect of conviction, it is, nevertheless, open to a Defendant, having been charged with offences, to bring to the Prosecution's attention in pre-trial discussions, including judicial pre-trials, any evidence it has that it believes would establish due diligence. It would then be the obligation of the Prosecution to assess, again, reasonable prospects for conviction.

[28] But all of that is outside the parameters of the trial proper. There was no abuse of process argument advanced and clearly, in this case, the Prosecution elected to put this matter before the trial court. The proof of the pudding, it is said, is in the tasting and as already determined, the Prosecution has made out the actus reus of each of Counts 1 and 3.

[29] It is then to the Defence to advance any evidence that it thinks could establish, on a balance of probabilities, that it was not guilty, having been duly diligent in all the circumstances or having taken all reasonable precautions.

Due Diligence

[30] It was the common position of the parties that the offences with which the Defendant is charged are properly classified as strict liability offences per R. v Sault Ste. Marie, [1978] S.C. J. No. 59; [1978] 2 S.C.R. 1299 and as confirmed by the Ontario Court of Appeal in R. v. Cancoil Thermal Corp., [1986] OJ No. 290. At page 17 of the Sault Ste. Marie decision, Dickson, J., wrote:

I conclude, for the reasons which I have sought to express, that there are compelling grounds for the recognition of three categories of offences rather than the traditional two:

2. 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 [emphasis added]. These offences may properly be called offences of strict liability. Mr. Justice Estey so referred to them in Hickey's case.

[31] In addition to the defense of "all reasonable care", or due diligence, the Occupational Health and Safety Act makes available to a defendant a specific version of that defence. Subsection 66(3) provides:

On a prosecution for a failure to comply with,

(a) subsection 23(1);

(b) clause 25(1)(b), (c) or (d); or

(c) subsection 27(1)

It shall be a defence for the accused to prove that every precaution reasonable in the circumstances [emphasis added] was taken.

Anray Ltd.'s Due Diligence Defence

[32] The central pillar of the Defence's due diligence defence was that "everyone knew" that the only person who was to operate the 14 ton excavator was Mr. Kaczynski. It was Barry Fochuk's testimony that he had stated to Mr. Marr on three occasions that is was Mr. Kaczynski who was the sole operator of that excavator. Mr. Fochuck further testified that in his time with Anray he himself had never operated the excavator. Ray Kaczynski testified that he also told Mr. Marr that he was not to drive the excavator.

[33] This is an appropriate point at which to set out the Court's evaluation of the testimony of the respective witnesses.

William Marr

[34] Mr. Marr did not testify as to whether or not he was told by Mr. Fochuk and by Mr. Kaczynski, as outlined above, that only Ray Kaczynski operated the 14 ton excavator and that he, Mr. Marr, was not to drive the excavator. However, he did testify that on August 10th he was at a site other than the Hoyle Avenue site when he was called by Mr. Kaczynski to come and bring the trailer to Hoyle Avenue. When Mr. Marr arrived there he became aware that he was to haul debris or dirt from the site and to dump it elsewhere. The truck was loaded and he made his run. When he returned, Mr. Kaczynski had to leave for another site. Mr. Kaczynski asked Mr. Marr if he could load the truck and Mr. Marr said he could. He also testified that, when starting a new job, when the supervisor, boss or employer asks him to do something he does it, provided its safe. Mr. Kaczynski left and Mr. Marr proceeded to load the truck using the large excavator. He then drove that load away to be dumped. When he returned, Mr. Kaczynski had also returned. At that point, Mr. Kaczynski asked him to reattach the trailer to the truck so that the excavator could be loaded. Having done that, Mr. Marr asked Mr. K. Kaczynski if he could clean off the debris from the excavator so that he wouldn't have to worry about it when driving the truck and float. He testified that Mr. Kaczynski exited the excavator and went off to operate another machine and he, Mr. Marr, proceeded to clean off the debris. He said nothing about being told by Mr. Kaczynski to call Mr. Kaczynski when he was finished so the loading process could continue. When the cleaning was finished, he waited for Mr. Kaczynski to return. He testified he didn't know how long he waited but it was long enough that Mr. Kaczynski finished working with the other machine and came over and asked him what he was waiting for. When he advised Mr. Kaczynski that he was waiting for him to load the excavator Mr. Kaczynski said that he was busy, that he told Mr. Marr where the excavator had to be taken to and that he asked Mr. Marr if Mr. Marr could load the machine. Mr. Marr replied that he could but he would need a spotter. Mr. Kaczynski said he would send one of the labourers over. Mr. Marr proceeded to line the machine up and a spotter came over. The spotter then "walked him up" onto the float, that is, the trailer. At that point, as he described it, he looked around to try to get his bearings, to figure out where he was and when he looked back the spotter wasn't where he had been. Mr. Marr then began to swing the arm around to drop the bucket on the float. When he did that the machine began to slide off. He tried to swing the arm back but by then it was too late and the machine went over. He testified that there was a lap belt in the machine but that when he tried to put it on it didn't fit him.

[35] Counsel for the Defendant argued that Mr. Marr was evasive in his testimony. The Court rejects that characterization of Mr. Marr's testimony. Mr. Marr appeared to the Court to be responding to the questions put to him as directly and honestly as he could. While there had been a significant passage of time from the date of the incident to the trial dates, Mr. Marr appeared to have a very precise memory of what had occurred and did not present to the Court as evasive or unwilling to answer as directly as he was able the questions that were put to him. He had no vested interested in colouring his actions on the day in question. The limitation period for initiating any proceedings against him personally under the Act had long expired. He appeared as a witness voluntarily and testified freely 3 ½ years after the fact, not having worked again for Anray after the incident. He neither conveyed nor communicated any animus toward Anray nor its principals, Mr. Kaczynski and Mr. Fochuck. He did not use the forum of the witness box as an opportunity to excuse or to justify his own actions. The Court found his testimony to be straightforward, truthful, compelling and very helpful in understanding what occurred that day. His account was clear, detailed and specific. It did not present as being in anyway contrived.

Ray Kaczynski and Barry Fochuk

[36] Mr. Kaczynski is not the Defendant even though he himself obviously felt as if he were. Nevertheless, he did wear many hats. He described himself as the sole shareholder in the company and its only Director. He represented the company in executing the agreement with PDG. He was the supervisor for Anray and, amongst other duties, as a worker operated the 14 ton excavator.

[37] When asked by Defence Counsel if on that particular day he gave Mr. Marr permission to drive the excavator, Mr. Kaczynski did not reply directly to the question, rather he stated, "It was understood that I was the only one that drove the excavator." When asked what his reaction was when he heard the loud bang of the machine falling off the excavator he stated, "shock and disbelief". When then asked, "Why" he responded, "Because he was not authorized to drive that piece of equipment."

[38] The Court can appreciate that, through the filter of the 2 ½ years since the charges were laid against the company and feeling himself to be the one who is the accused, that Mr. Kaczynski recalls that his first reactions of shock and disbelief were due to Mr. Marr not being authorized to drive the excavator. However, it presents to the Court as being a response tailored to the circumstances of the trial. One can well imagine a response of shock and disbelief, but the Court questions how his first thought would have been that "he" was not authorized to drive the excavator if, as Mr. Kaczynski testified, he was in the pit, did not see the machine being moved, did not hear it until he heard the bang. How could he know that the "he" was Mr. Marr and not someone else? Further, in rushing to the scene, one would see that the machine had fallen off the trailer on its side. There was obvious damage to a vehicle and Mr. Marr is inside the cab surrounded by broken glass and is bleeding. While the thought that Mr. Marr was not authorized to drive the excavator, if that was indeed the case, may have occurred to Mr. Kaczynski at some point, one would think that other thoughts would have occupied Mr. Kaczynski's mind in the immediate aftermath of the incident.

[39] The circumstances of Mr. Kaczynski hearing the noise, the "loud bang", is testimony that troubles the Court as related both by Mr. Kaczynski and by Mr. Fochuk. They both testified that they went into the pit, or the excavation, while Mr. Marr cleaned the treads to the excavator. Mr. Kaczynski testified they were in the pit a few minutes when he heard the "loud bang". Mr. Fochuk testified they were in the pit about 20 minutes when "we" heard a "big bang". Mr. Fochuk testified that the pit was about 60 feet from where the excavator was. Neither, according to their testimony, heard the sound of the diesel engine of the 14 ton excavator starting up or the revving of the engine that would have occurred as it was being driven up the ramp onto the trailer. Presumably, if they had heard it they would have reacted.

[40] It is difficult to digest how two individuals who would have been very familiar with the sound of this particular machine, would not have heard what would have been, in the context of the residential properties where this was located, albeit in close proximity to Eglinton Ave. east, a relatively loud and distinct noise, particularly as it would have taken several seconds and a revving up of the engine to begin to move the machine up the slope of the ramps to the trailer bed and onto the trailer itself. Mr. Fochuk described the three individuals who were in the pit as being engaged in conversation. He did not describe any other equipment or machinery as being in operation at the time. Yet, according to these two witnesses, from the starting of the excavator's engine up to the loud or big bang, they heard nothing.

[41] When asked in Examination-in-Chief if he ever had a conversation with Mr. Marr prior to August 10th, 2010 about driving the excavator Mr. Kaczynski stated that he told Mr. Marr that he, Mr. Marr, was not to drive the excavator. According to Mr. Kaczynski, Mr. Marr responded by mentioning his, Mr. Marr's, experience to which Mr. Kaczynski testified he repeated once again what was said so that it would be clear that he, Mr. Marr was not to drive the machine. He did not say at what point he had this conversation with Mr. Marr.

[42] It was Mr. Kaczynski's testimony that the keys for the equipment were left in the machines, including the 14 ton excavator even when he was not operating it. While the Court can appreciate both the convenience and the practicality of such a practice, if it were truly an aspect of the health and safety considerations of Anray that only Mr. Kaczynski was to operate the 14 ton excavator, then it was not prudent housekeeping to not adopt the practice of keeping the keys with the operator, rather than with the machine.

[43] In assessing the credibility of the viva voce testimony at this stage, the W.(D) analysis is not applicable, dealing as it does with reasonable doubt. As already stated, the Prosecution has made out the actus reus of two of the counts beyond a reasonable doubt and the burden has now shifted to the Defendant to establish that it has been duly diligent or has taken every reasonable precaution. The standard of proof is on a balance of probabilities.

[44] As mentioned above, the Court has difficulty accepting several key aspects of Mr. Kaczynski's and Mr. Fochuk's testimonies especially regarding what they witnessed at the moment of the incident or, more to the point, what they didn't witness, which was Mr. Marr starting the excavator engine and driving it onto the trailer. Further affecting Mr. Kaczynski's credibility was his disavowal of responsibility for the contents of the letter tendered by the Prosecution as Exhibit # 10. In that letter, over Mr. Kaczynski's signature, Mr. Marr is identified as a "Machine Operator/Loader" not simply as "Truck Driver". Mr. Kaczynski testified that he put into that letter what he was instructed to put in by Jason Williams, Construction Health and Safety Officer with the Ministry of Labour. It would be incredible if an employer, in responding to a Stop Work order from the Ministry were to submit information to the Ministry, whether counselled or coached or not, that the employer did not believe to be true. His testimony on this issue cast a cloud over the balance of this testimony.

[45] The testimonies of Mr. Kaczynski and of Mr. Fochuk stand in direct contradiction to that of Mr. Marr on these key issues. If their testimony were accepted, the Court would have to conclude that Mr. Marr concocted large portions of his testimony. Given the Court's assessment of his demeanor, presentation, and lack of motive for doing so, I cannot conclude, on a balance of probabilities, that he was doing so. He responded to intense cross-examination with non-contrived, fulsome responses and was not shaken in his testimony that Mr. Kaczynski both knew that he operated the 14 ton excavator and that Mr. Kaczynski asked him to load the excavator onto the trailer and to take it to the Milton yard to pick up the forms.

[46] In advancing a due diligence defence, it is for the Defence to establish its case on a balance of probabilities and on the issue of the credibility of Mr. Marr, the Court finds that his version of events is more probably true than not.

[47] Accordingly, while it may have been the case that it was mentioned several times to Mr. Marr either that it was for Mr. Kaczynski to operate the excavator or, in the alternative, he was told that he, himself, was not to drive it, nevertheless, on August 10, 2010, an exception was made and he was asked or instructed to drive the machine onto the trailer with the intent that the excavator would be used at the next location by Mr. Marr to load forms into the truck that Mr. Kaczynski wanted. However, Anray, through its supervisors, had made no inquires about Mr. Marr's competence to do this, other than relying on Mr. Marr's self-representation that he had the experience, nor was he tested beforehand, let alone given a set of instructions as to how Anray required the loading to be done.

Anray Ltd.'s Lack of Training and Safety Programme

[48] The Court has concerns about the efficacy of the measures, or lack thereof, that Anray presented to the Court and as outlined in the above paragraphs constituting its safety policies and practices.

[49] As mentioned, the Defence relies heavily in its due diligence submissions on the contention that, with respect to the 14 ton excavator, "everyone just knew" who was to operate the machine. The "everyone just knew" assertion was an element in a due diligence defence in another trial matter before this Court which illustrates the limitations of relying on such a practice.

[50] In R. v. Aecon Construction Group Inc. & Structform International Ltd., [2013] O.J. No. 3237, para. 74, I wrote:

Most striking about Structform's approach to the issue of floor opening covers was the manner of its oversight of its responsibilities in this regard. In reviewing the testimony of Mr. Jackman, Structform's Site Superintendent what comes through is the sense that by the time Structform's work has moved above and beyond the 4th level there is a generalized sense that everyone knows what they have to do. This includes performing the task of covering floor openings:

• Q. And, we go to the fourth floor, and it keeps going, right? • A. Yes. • Q. And things are -- I think the way you described it is, everybody kind of -- there are so many different things going on, but everybody kind of knows what they're doing and what they're supposed to do, right? • A. You establish a routine. • Q. A routine, and it's sort of, day after day, kind of the same routine and what not, right? • A. Yes. • Q. Okay. And, part of that routine is, there's a carpenter employed by Structform, correct? • A. Yes. • Q. Who is, as part of that routine his job is to secure the floor openings, right? • A. Yes. • Q. All right. • A. Not necessarily one carpenter. • Q. Right -- oh, not necessarily one? • A. On that site, if I carried 60, it was probably 20 to 30 labourers and 20 to 30 carpenters. • Q. And, carpenters, of course are not just doing -- fastening floor openings, obviously? • A. No. • Q. They are doing lots of different things. A. Yes. • Q. Okay. And, you said on every floor, there could be anywhere between one to two dozen floor openings, is that right? • A. Yes, yea. • Q. And so, as part of this routine, you got through -- you got into this kind of routine where everybody knew what they were doing and the carpentry and covering the floor was part of that. And you, then, described what was used to cover the floor openings and you said, first of all, it's a piece of plywood, correct? • A. Yup.

75 So, while there was clearly a focus on safety generally by Structform, and certain processes were in place that clearly were intended to address many construction site safety issues, there only appears to have been this generalized sense that everyone just knew, that is the carpenters in this case, what the requirements regarding floor openings were and that that work was getting done; that those requirements were being met as the project progressed.

76 That is, up until April 22nd, 2009. It should be mentioned at this point, that it is not the fact of Mr. Grotsch falling through the opening that is part of the actus reus. It is, essentially, that the opening was one requiring either a guardrail or a regulation cover and had neither and that neither the constructor nor the employer had ensured that it was protected or covered. It didn't require Mr. Grotsch falling. The actus reus would have been made out without the fall. However, the fact of the fall focussed attention on the condition of the opening. The fall dramatically underscored the public policy considerations in the requirements for guard rails or proper covers.

[51] Similarly in this case, as characterized by Mr. Fochuk's and Mr. Kaczynki's testimonies, in essence, "everyone knew" Ray was the only operator of the excavator. While it may arguably be a reasonable safety principle to have a single operator for such a piece of heavy equipment, there was no evidence as to how this policy, if it even was such, was to be monitored and enforced or who was accountable for doing so.

[52] There appears to have been a reliance on the belief that, oral instructions having been conveyed, it was therefore presumed that those instructions would be understood and complied with. There was no evidence tendered as to how those instructions would be reinforced, nothing about whether a check had been made on whether Mr. Marr, or anyone else for that matter working for Anray, understood the instructions, nor how the policies would be enforced in the event of non-compliance. Structform International Ltd., a defendant in the above noted case, was convicted notwithstanding that it had, at least on paper, a robust health and safety policy whereas, in practice, as in this case, the supervisors were relying on the belief that everyone just knew what it was they were and were not supposed to do in terms of safety measures relating to preventing falls through floor openings.

[53] Such policies and the procedures and practices for implementing them need not be elaborate. The point here is that the Court was presented with no evidence that such existed in the case of Anray nor that the company had turned its corporate mind to the need for such a programme prior to the incident on August 10, 2010.

[54] While Mr. Kaczynski and Mr. Fochuk described Mr. Fochuck as being a supervisor, Mr. Kaczynski also described Mr. Fochuk as a labourer. There was nothing tendered in evidence outlining how Anray defined the duties of its supervisors and, given that the employees of Anray at the time of the incident were Mr. Kaczynski, Mr. Fochuk and Kaczynski's father, with William Marr engaged as a sub-contractor to perform truck driving and machine operating duties, it is not clear that Mr. Fochuk was operating, in fact, as a supervisor. It may be that Mr. Kaczynski depended on Mr. Fochuk to be his eyes and ears on the site when he himself was absent but Mr. Fochuk's responsibilities as a supervisor were not specified beyond that. It is not at all clear that Mr. Marr would have understood that anything that was said to him by Mr. Fochuk was to be received as instruction, let alone an expression of company policy or practice.

[55] A Defendant's representations as to its due diligence efforts must be viewed in context. It would not be reasonable to require or expect an employer to have one of its own employees monitoring each worker all the time. It is, however, reasonable to expect that, notwithstanding the small scale of the operation, given the presence of heavy construction equipment and the nature of the work being performed that the employer would have in place a system and a process for establishing appropriate health and safety policies and procedures, for communicating those requirements, for monitoring them and for enforcing them and to do so in a vigilant manner.

[56] The possibility that someone other than Mr. Kaczynski might attempt to operate the large excavator was a hazard to which, evidently, no one had given much attention. It must be noted that, as provided in s. 66(4) of the Act, "any act on the part of any manager, agent, representative, officer, director or supervisor [emphasis added] of the accused, whether a corporation or not, shall be the act or neglect of the accused."

[57] Anray, in its defence, presented no written policies or procedures that it had in place prior to this incident. Mr. Kaczynski testified that the policies were the standards set by the Ministry. However, neither he nor Mr. Fochuk testified to, and Anray did not present any documentation outlining, how these standards or company expectations were communicated to workers engaged by Anray nor how they were monitored and enforced. Anray did, however, submit a letter to the Ministry dated August 12, 2010 over the signature of Mr. Kaczynski and tendered by the Prosecution as Exhibit #10 which stated on page 2:

Since the accident our company has taken steps to prevent this type on innocent [sic] from reoccurring [sic] by reminding our workers of the proper steps in loading and unloading machinery. It has become our policy to have each employee follow a check list Form #55 outlining the proper loading and unloading procedure which must be filled out and followed showing compliance on every move.

[58] A copy of "Form #55" entitled "Equitment [sic] Loading/Unloading Checklist" was attached to the letter. If any of the preceding 54 forms in the series related to safety policies or procedures, they were not presented to the Court. Form 55 is the only documentation submitted to the Court relating to Anray's safety practices in any respect, not simply the safe movement of equipment, and it was created after the incident as part of the company's response to the Ministry's Stop Work order. It is also noteworthy that that form does not underline the necessity of wearing the restraining device, rather it simply instructs on determining that the safety belt is functional.

[59] In light of the facts as the Court has found them to be, that one of its workers operated a 14 ton excavator in a manner that resulted in the excavator tipping off its float trailer resulting in injury to the worker and damage to private property, can these measures be adjudged to have met, on a balance of probabilities, the standard of having been duly diligent? It is the finding of this Court that the answer to that it 'No'. In fact, the practice by Anray Ltd., through its supervisors, with respect to the safe movement of equipment or machinery has to be characterized as a casual, oral practice, which is insufficient for ensuring the safe movement of machinery or equipment.

Conclusion

[60] In summary, Anray Ltd. has failed to prove that it took every precaution reasonable in the circumstances, nor has it established on a balance of probabilities either branch of the due diligence defence.

[61] For these reasons, as stated at the outset, there will be findings of guilt against Anray Ltd. for Counts 1 and 3. Also for the reasons stated at the outset, there will be a Stay of Proceedings entered at this point based on Kienapple principles with respect to Count 3.

[62] Given that the Prosecution failed to prove beyond a reasonable doubt the actus reus in Count 2, there will be a finding of not guilty with respect to that count.

[63] It is left, at this point, for the Court at 9:00 a.m. on March 6th next in courtroom C2, 70 Centre Ave., Toronto to receive submissions from the Prosecution and from the Defendant corporation, Anray Ltd., with respect to the penalty for Count 1 only.

Penultimate Version Released: March 5, 2014

Final Approved Version Released: April 15, 2014

Signed: Justice of the Peace M.H. Conacher