Court Information

Information No.: 10 – 4519

Court: Ontario Court of Justice (at St. Catharines, Ontario)

Between:

Her Majesty the Queen (Ministry of Labour for Ontario) Appellant

- and -

Dufferin Construction Company and David Pimpinella Respondents

Counsel:

• Ms. K. Malik for the Appellant
• Mr. N. Keith for the Respondents

Judge: J. S. Nadel

Reasons for Judgment

Introduction

[1] At about 8:30 a.m. on December 21, 2009, Jose Figueiredo, a Dufferin Construction employee, was seriously injured when a large slab of ice fell on him. The ice fell from the face wall of a water intake tunnel that Dufferin was working on. The incident was reported to and investigated by the Ministry of Labour. Three Occupational Health and Safety Act ("OHSA") charges were laid as a result of that investigation – two charges against Dufferin and one against a Dufferin employee, David Pimpinella.

[2] The charges were tried before Her Worship Justice of the Peace L. Mills who dismissed all three counts as she found that the Ministry had failed to prove the actus reus of the three counts beyond a reasonable doubt. Nonetheless, Her Worship went on to make obiter dicta findings that Dufferin had established the defence of due diligence in any event. The Ministry appeals her decisions pursuant to s. 116 of the Provincial Offences Act, R.S.O. 1990, c. P. 33, as amended.

A Thumbnail Sketch of the Facts of the Accident

[3] The slab of ice fell from a point on the face wall that was estimated to be some 40 metres above ground level. Some Dufferin employees, including Figueiredo were working inside the tunnel preparing and cleaning "form work" for an anticipated concrete pour scheduled for the next day.

[4] Some minutes before the slab detached other Dufferin workmen, suspended by a crane in a "man-basket," had been chipping ice away from that general area. They stopped when co-workers in the tunnel asked them to because the ice they were scaling was landing on "form work" in the tunnel below.

[5] When the men in the basket stopped chipping the ice the crane operator moved them about 20 feet away from the face wall. The morning sun was shining on the ice coating the face wall and one of the men in the basket suspected that ice might be about to detach from that wall. A warning was radioed to the men in the tunnel who ran out. Figueiredo was one of the running men. Unfortunately, a portion of the slab of ice fell on him as he was about 30 feet outside the tunnel; i.e., farther away from the tunnel entrance than the men in the basket.

[6] The size of the slab of ice that detached from the face wall is uncertain, however Walter Ribau, one of the men in the basket said it was the largest piece he had ever seen detach. He estimated it to be four feet by 10 feet. He said that it broke into two and the top piece sailed away and eventually fell on Figueiredo.

The Charges

[7] In the first count Dufferin was charged with breaching s. 25(2)(h) of the OHSA, which requires an employer to take every precaution reasonable in the circumstances for the protection of a worker. That count was particularized as follows:

The defendant failed to ensure that a worker was adequately protected from the hazard of falling ice; and/or the defendant failed to develop safe procedures for the removal of ice accumulation from the front face wall of the intake side of the Niagara Tunnel Facility Project; and/or the defendant failed to ensure that safe procedures were followed to remove ice accumulation from the tunnel face wall of the intake site of the Niagara Tunnel Project; and/or the defendant failed to take adequate steps to prevent the accumulation of ice on the front face wall of the intake site of the Niagara Tunnel Project.

[8] In the third count Pimpinella was charged as a supervisor with breaching s. 27(2)(c) of the OHSA, which requires a supervisor to take every precaution reasonable in the circumstances for the protection of a worker. That count was particularized as follows:

The defendant failed to ensure that a worker was adequately protected from the hazard of falling ice; and/or that the defendant failed to ensure that safe procedures were followed to remove ice accumulation from the front face wall of the intake site of the Niagara Tunnel Project.

[9] The second count in the information was conceded by the inspector to allege technical safety violations respecting the crane and basket in use when Figueiredo was struck by falling ice. Those violations played no role in that incident. This count charged Dufferin with committing the offence of failing as an employer to ensure that the measures and procedures prescribed by s. 153(2) of Ontario Regulation 213/91, as amended, (O. Reg. 213/91), were carried out in the workplace located at the intake site of the Niagara Tunnel Facility Project, contrary to s. 25(1)(c) of the OHSA. That count was particularized as follows:

The defendant failed to provide a platform and/or basket with the maximum rated load capacity legibly and permanently marked in a conspicuous place on the platform and/or basket; and/or the defendant failed to provide a crane with a revised load rating chart prepared by a professional engineer in accordance with good engineering practice affixed in a conspicuous place on the crane.

The Appellant's Summary Submission

[10] The Ministry advanced three grounds of appeal:

[1] that Her Worship erred in concluding that the Crown had not proven the actus reus of Counts 1 and 3 beyond reasonable doubt and "specifically the trial justice erred in failing to provide sufficient reasons to permit appellate review …";

[2] that Her Worship erred in finding that the Crown had not proved the actus reus of Count 2, as particularized; and,

[3] that Her Worship erred in finding that the Defendants were entitled to be acquitted on the basis of having demonstrated due diligence with respect to all counts.

Ms. Malik submitted that Her Worship conflated the defence of due diligence with proof of the actus reus and found that because the Defendants had shown themselves to be duly diligent therefore the Crown has failed to prove the actus reus.

The Relief Sought

[11] Section 121 (b) of the Provincial Offences Act permits an appeal court to (i) order a new trial, or enter a finding of guilt with respect to the offence of which, in its opinion, the person should have been found guilty, and pass a sentence that is warranted in law. The Ministry seeks to have its appeal allowed and convictions registered against the Defendants on all three counts. In the alternative, the Ministry seeks a new trial on all three counts.

The Respondent's Summary Submission

[12] As to the first ground of appeal, (that the reasons preclude effective appellate review,) the Defendants submit that Her Worship "clearly considered all of the evidence … carefully, thoroughly, and comprehensively in the Reasons for Judgment."

[13] Respecting the second ground of appeal, which dealt with the technical offence charged, Dufferin submits that count was properly dismissed based upon the evidence of Dufferin workers when taken in conjunction with the expert evidence adduced by Dufferin.

[14] As to the third ground of appeal, the Defendants dispute that Her Worship erred in finding that Dufferin had been duly diligent by taking all reasonable steps to avoid the accident. They submit that Her Worship considered and applied the correct legal test and for all the foregoing reasons the appeal should be dismissed.

The Standard of Review

[15] The standard of review on appeal varies according to the nature of the error made – see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. The standard of review for a pure question of law is correctness. However, where the error alleged is based in whole or in part on findings of fact then "[t]he standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a 'palpable and overriding error.'" (Housen at [10])

[16] A palpable error is an error that is clear to the mind or plain to see; i.e. an error that is so obvious that it can easily be seen or known. In short a palpable error is one that is readily or plainly seen. (Housen at [5])

[17] Housen holds that there are three types of factual errors where the standard of palpable and overriding error applies: (i) errors in the findings of fact at trial simpliciter; (ii) errors committed in drawing factual inferences from facts; and, (iii) factual errors enmeshed in questions of mixed fact and law where a legal standard is applied to a set of facts.

[18] "[T]here is one, and only one, standard of review applicable to all factual conclusions made by the trial judge -- that of palpable and overriding error. (Housen at [25]) Moreover, Housen stresses that "it is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence. … The appellate court is not free to interfere with a factual conclusion that it disagrees with where such disagreement stems from a difference of opinion over the weight to be assigned to the underlying facts." (Housen at [23])

[19] Despite the apparent clarity of this paradigm there is one further complication. If a purely legal error can be extricated from an application of mixed fact and law then the standard of review is correctness, as the issue becomes a purely legal one. The Supreme Court identified, by example only, how a correct analysis of an application of mixed fact and law may resolve into a purely legal error to be reviewed on a standard of correctness; e.g. "... if a decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-maker considers only A, B, and C, then the outcome is as if he or she had applied a law that required consideration of only A, B, and C. If the correct test requires him or her to consider D as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law. Therefore, what appears to be a question of mixed fact and law, upon further reflection, can actually be an error of pure law." (Housen at [27]) But, "[w]here the trier of fact has considered all the evidence that the law requires him or her to consider and still comes to the wrong conclusion, then this amounts to an error of mixed law and fact and is subject to [the] more stringent standard of review: …" (Housen at [28])

Shepparding Reasons Home

[20] Reasons for judgment must (i) tell the parties why the decision was made; (ii) demonstrate patently that justice was done; and, (iii) be sufficient to permit effective appellate review. Their sufficiency is assessed contextually given the trial record, the issues joined and the submissions of counsel. "The question is whether, viewing the reasons in their entire context, the foundations for the trial judge's conclusions - the "why" for the verdict - are discernable. If so, the functions of reasons for judgment are met." This assay seeks to discern whether the trial judge's reasons demonstrate that the trial judge has seized upon and grappled with the "live issues" in the case, in the context of the trial evidence and the submissions.

[21] Finally, if the reasons are deficient, the appeal court is obliged to examine the record to determine whether the basis for the decision is nonetheless patent on the record. However, this examination is not an invitation to the appeal court to engage in a reassessment of aspects of the case not resolved by the trial judge.

Were the Reasons Sufficient?

[22] Her Worship dismissed all three counts holding that "the Crown [had] not met their onus of establishing the case beyond a reasonable doubt." These were strict liability offences which required the Crown to merely prove the actus reus of each count to the exclusion of any reasonable doubt.

[23] On its face this bare pronouncement seems quite meagre, devoid of explanation and insufficient to meet the purposes that reasons are intended to fulfil. However, as noted previously, several other matters need to be considered, including the contextual analysis mandated by the controlling authorities and the fact that Her Worship's decision was a series of acquittals. It is to this last matter that I shall turn to next.

Sheppard and Acquittals

[24] A trial judge's duty to provide adequate reasons applies to reasons given for a conviction or an acquittal. But, the assessment of the sufficiency of reasons for an acquittal is informed by the presumption of innocence and the burden of proof beyond a reasonable doubt. This assessment is particularly significant given that Canadian jurisprudence does not recognize the concept of an unreasonable acquittal. "The point was expressed very clearly in R. v. Biniaris, 2000 SCC 15, [2001] 1 S.C.R. 381, at para. 33: '... as a matter of law, the concept of 'unreasonable acquittal' is incompatible with the presumption of innocence and the burden which rests on the prosecution to prove its case beyond a reasonable doubt.'"

[25] Moreover, in assessing whether reasons for an acquittal are functionally adequate, Cromwell J.'s comments in R. v. J.M.H., 2011 SCC 45, [2011] S.C.J. No. 45 at paragraph [39] must be kept in mind: "… a reasonable doubt does not need to be based on the evidence; it may arise from an absence of evidence or a simple failure of the evidence to persuade the trier of fact to the requisite level of beyond reasonable doubt. … It is only where a reasonable doubt is tainted by a legal error that appellate intervention in an acquittal is permitted."

[26] R. v. Kendall, [2005] O.J. No. 2457 is also helpful in that it directs an appellate court to be mindful of the three categories of cases where deficient reasons or the absence of reasons may justify appellate intervention: (i) where the path taken by the trial judge through conflicting or confused evidence is not at all apparent; (ii) whether difficult legal issues have been circumnavigated without confrontation; and (iii) whether the trial judge has failed to identify or chart her course through conflicting theories, if following one of those paths may constitute reversible error.

Contextual Considerations

[27] The reasons being challenged must be placed into context. This was a multi-day trial conducted by two senior counsel who were both well-experienced in trying and defending OHSA charges.

[28] After five days of trial evidence, at the conclusion of the Crown's case-in-chief, Mr. Keith brought a motion for a non-suit on all counts. The motion was opposed by Ms. Malik. Her Worship adjourned to consider the application and on December 12, 2012 in an oral ruling she dismissed the Defendants' motion for a non-suit. In her ruling Her Worship reviewed the arguments and the authorities referred to by each side in support of their respective positions. In my view that ruling, which runs to eight and a half pages of transcript, makes it readily apparent that Her Worship was aware of and applied the correct and controlling law to the evidence adduced to that point in the trial. In particular she specifically noted that there was some evidence which, if believed, would be sufficient to prove or to infer the existence of the actus reus of each of the counts charged. That is to say that this ruling demonstrates that Her Worship adverted to and identified some evidence which, if believed, would be sufficient to find or to infer the actus reus of each count charged.

[29] In my view it is important to note that Her Worship was very alert to the legal standard that she had to apply at that stage of the trial; viz whether the evidence was reasonably capable of supporting the inferences that the prosecutor sought to have the trier of fact draw, (taking the Crown's case at its highest,) not the likelihood of the trier actually doing so. It seems to me that this non-suit judgment goes a long way to making Her Worship's ultimate oral ruling more understandable and explanatory despite its terseness.

Final Oral and Written Submissions at Trial

[30] Prior to rendering judgment, Her Worship had the benefit of both oral and written submissions from the Crown and the Defendants. On behalf of the Crown Ms. Malik filed a brief running to 55 pages. While I do not intend to review her argument I shall list that brief's various headings which demonstrate the comprehensiveness of the Ministry's written submissions. Moreover, each of these headings introduced the Crown's position with respect to the evidence marshalled in support of the factual positions espoused. The headings organizing the Crown's written submissions in support of conviction were these:

• Overview
• Summary of the Evidence
• Niagara Tunnel Facility Project
• Dufferin Construction and the NTFP
• David Pimpinella's Role as Project Superintendent
• Intake Site at the NTFP
• Ice Hazard at the Intake Site
• Strabag's Method of Ice Control at Intake Site – Winter 2008/2009
• Dufferin's Method of Ice Control and Ice Prevention
• Tarp Installation Does Not Commence until December 10, 2009
• Tarp Installation Process at the Intake Site
• Front Face Wall – A Different Tarping Process
• The Accident – December 21, 2009
• Workers Working in the Cut During Ice Scaling
• Ministry of Labour attends at Intake Site upon Notification of Accident
• The Red Manbasket
• Examination of the Red Manbasket for Compliance with Prescribed Regulations
• Examination of the Crane for Compliance with Prescribed Regulations
• Orders Issued

LEGAL FRAMEWORK

• Interpretive Principles
• Strict Liability
• Due Diligence
• Duties of an Employer
• Formal Averments
• The Crown Has Established the Actus Reus of Counts #1 and #3 Beyond a Reasonable Doubt
• The Crown Has Established the Actus Reus of Count #2 Beyond a Reasonable Doubt
• The Defendant Has Not Established a Due Diligence Defence
• Conclusion

[31] This recitation of headings demonstrates that the Crown marshalled the evidence that it relied upon in exquisite detail in its attempt to support its view of the "facts". In effect the Crown wrote a judgment demonstrating the correctness of its version of the facts as applied to the law, provided that Her Worship accepted that version at face value.

[32] Likewise, on behalf of the Defendants, Mr. Keith provided written submissions to assist Her Worship in arriving at a decision. His materials ran to 59 pages and like the Crown's his submissions were anchored in and annotated to the trial's evidence. While I do not propose to précis those submissions it is important to observe that those submissions were as well organized and detailed as the Crown's and argued for the dismissal of the charges. A review of those submissions when compared to the Reasons for Judgment reveals that Her Worship rejected the defence position that Pimpinella was not "a supervisor" but accepted Mr. Keith's submission that the Crown had failed to prove the actus reus of Counts 1 and 3 beyond a reasonable doubt. Bearing all of these foregoing contextual considerations in mind I shall now turn to Her Worship's reasons for judgment.

The Reasons for Judgment

[33] Her Worship began her judgment by reciting the charges. She then set out her findings of fact under the heading "The FACTS". She began by finding that Dufferin was an employer and Figueiredo was a worker as defined in OHSA. She elected to deal with whether Pimpinella was shown to be a supervisor at a later point in her judgment.

[34] Next, Her Worship spent several pages, outlining the history of the Niagara Tunnel Facility Project, (NTFP,) including the purpose of the project, the allocation of responsibility for various parts of the project and a description of various technical aspects of the project, particularly those parts that Dufferin was subcontracted to complete. That outline described the problem of water seepage through the rock being tunnelled into. That seepage caused ice to build up on the walls and face wall of the tunnel during the winter months.

[35] The buildup of ice on the walls and face wall of the tunnel was potentially hazardous and various procedures were developed to combat and control that buildup. The initial attempts undertaken by Dufferin's predecessor were "somewhat ineffective", resulting in Dufferin devising an ice-abatement method that consisted of first installing reinforced tarpaulins on the tunnel walls where ice formed. These "tarps" prevented the ice from breaking off and tumbling down upon the Dufferin workers. The second measure was the introduction of heat behind the tarps to prevent ice from forming and accumulating on the rock face.

[36] Her Worship noted that there was conflicting evidence about what portion of the tunnel was first tarped; but, she found that nothing turned on the conflict in the evidence on this point since the evidence was consistent that the face wall was not tarped at the time of the "occurrence" (sic). In my view it is significant to note that much if not most of the evidence called was consistent and uncontentious, save and except for the evidence respecting Count 2 – the technical count, and save for Her Worship's credibility findings made with respect to the evidence of the victim, Figueiredo and the inspector, Ritchie. The evidence of those two witnesses was not credited by Her Worship, as I shall outline anon.

[37] The face wall could not be tarped until it had been first scaled of ice. That was the process being undertaken at the time of the accident. Her Worship's judgment reviewed the people and processes involved in that undertaking just before the incident. While the evidence called allowed Her Worship to find the general configuration of where people were and what they were doing in the minutes before the incident, Her Worship noted a particular frailty in the evidence; viz "[i]t was never clearly established how far back of the face wall the form work was done." This was one of several missing pieces of evidence in the case, especially given that the Crown's case on Counts 1 and 3 was directed to the injury that Figueiredo sustained. The complaint was not directed to the chipped ice that fell on the form work. One of the witnesses, Walter Ribau, who worked in the basket, estimated that the forms were 20 feet back from the face wall. Ribau testified they were scraping the left side of the face wall and that no workers were below them.

[38] Her Worship's judgment details what then occurred. The ice being chipped from the face wall by the men in the man-basket was falling on some portion of the form work in the tunnel. An unidentified worker on the ground told the men in the basket to stop chipping and they did. The basket was moved away from the face wall a distance of approximately 10 to 25 feet according to one witness and about 20 feet according to another. As the men in the basket waited for another order, one of them, Mr. Ribau, saw the sun shining on the face wall and he felt that some ice was going to break away. An urgent message was radioed by another man in the basket to the workers down in the cut. A Mr. Forte received that transmission and he yelled to a foreman, (David Nunes,) that they needed to get out of that general area on the left-hand side of the cut. Forte then saw ice "sailing" or lofting in the air and not falling straight down.

[39] Figueiredo was running out of the tunnel when the "sailing" portion of the ice fell on him. The evidence of where Figueiredo was when he was struck by the ice was inconsistent and not well specified. Ribau initially said that Figueiredo was on the front of the form work when Ribau saw him but subsequently said that Figueiredo was close to the form work. As noted in footnote 5, another witness said that Figueiredo was about 30 feet in front of the face wall when he was struck.

The Investigation

[40] Her Worship then reviewed the evidence of Ms. Julie Ann Ritchie, the Ministry of Labour inspector, who was called in to investigate this accident. The Reasons for Judgment detail Ritchie's attendances and meeting with Dufferin workers and staff as well as reviewing the steps that she took to investigate the incident.

[41] Her Worship was "disconcerted" by the evidence adduced from Ritchie during her cross-examination. Her Worship identified the following aspects of Ritchie's testimony as matters of concern:

• Ritchie observed the earlier ice-abatement efforts of Dufferin's predecessor and did not recall that process to be problematic for her but subsequently contradicted herself by saying that she could not recall it;

• Ritchie had many lapses in recollection including the number of times she had attended at the NTFP, whether she had written any OHSA orders concerning the intake portion of the NTFP, or written any orders to Dufferin or whether she had written any orders dealing with the hazard or potential hazard of ice buildup at either end of the NTFP;

• Ritchie had not taken any measurements during the course of her investigation;

• Ritchie conceded that neither OHSA or its regulations prescribed any specific ice-abatement obligations at a construction project;

• Ritchie could not recall if she had received any calls from Dufferin employees about ice hazards prior to the date of this incident nor had she reviewed her notes to refresh her memory on this point;

• while Ritchie knew Forte to be Dufferin's health and safety representative from previous inspections at Dufferin project sites she could not recall when those previous inspections had occurred;

• Ritchie could not recall when she concluded her investigation and had no notes to assist her recollection;

• further, Ritchie had no copy of the "sign off" document which, (when presented to her by Mr. Keith,) disclosed that she completed her investigation on May 12, 2010;

• Ritchie never requested any documents respecting Dufferin's safety programmes;

• Ritchie was adamant that her role as a Ministry of Labour inspector did not involve giving advice or recommendations; but, that evidence was contradicted by her job description, which was exhibited at No. 20.

[42] This last bulleted inconsistency bears on a further failure of Ritchie's recall. Ritchie did not recall that on January 19, 2009 she attended with a member of the consulting firm (Hatch Mott MacDonald) retained by the "constructor" of the NTFP (Strabag) to observe the outlet portion of the project. During that observation period three points were documented: No. 1, noted ice management ongoing; No. 2, noted ice management ongoing; and, No. 3, pedestrians asked to walk on the inside and look out for equipment. The report was exhibited as No. 21 but once again, Ritchie had no notes, had no field visit report and issued no OHSA orders as a result of this attendance.

[43] Her Worship observed that Ritchie had responded with the answer that "she did not recall" so often that Her Worship lost count of the number of times Ritchie gave that answer. More significantly in my view, Her Worship noted that Ritchie was deficient in documenting her investigation by taking notes. An example of this deficiency is described by Her Worship with respect to Exhibit 9, a photograph that Ritchie took on her initial attendance to investigate this accident.

[44] The photo depicts a portion of "form work" that has some pieces or chunks of ice sitting on the rebar used in constructing forms. The scene as depicted was photographed by her. She acknowledged the ice was there before she took the photograph but afterward she did not measure or weigh any of it. She had no knowledge of where the pieces of ice came from and she made no inquiries of any of the workers present about where the ice came from.

[45] Her Worship noted that Ritchie had testified that Figueiredo was about 30 feet away from the face wall when he was struck by the ice. She confirmed that was her understanding from information received by her from a Dufferin employee but she did not recall who had told her that and she made no notation of that information.

[46] Despite being re-examined by Ms. Malik, Her Worship found that her discomfort with Ritchie's evidence was not dispelled and she simply did not credit the evidence of this inspector. As expressed in the Reasons for Judgment, "[v]ery little weight will be attributed to Miss Ritchie's evidence … as it is crystal clear that the inspection conducted by her in this investigation was perfunctory at best."

[47] Her Worship also reviewed that part of Ritchie's investigation that led her to charge Count 2, (the technical charge). I do not propose to review that portion of these Reasons for Judgment. As I shall detail below, the verdict on Count 2 must be reviewed on a standard of correctness and Her Worship's decision is incorrect on that count.

The Evidence of Jose Figueiredo, the Victim

[48] Mr. Figueiredo's initial evidence was taken through an unaccredited interpreter who proved to be inadequate to the task, so his examination was adjourned until an accredited interpreter was available. At that point much of Figueiredo's initial in-chief was repeated before Ms. Malik moved on to other matters.

[49] Figueiredo had no memory of the incident in which he was injured. His only information about that incident came from others after-the-fact. He was able to describe events of the prior day. He described clearing and cleaning the form work in the tunnel. By his description he was working in a very confined alley of between 12 to 16 inches between the tunnel wall and the base of the forms. He said that ice fell from the walls daily and that he was afraid to work in those conditions and that he spoke to his foreman and to David Nunes about his concerns.

[50] Figueiredo was fighting Dufferin about the loss of his compensation benefits. In assessing his evidence Her Worship noted that his testimony while under cross-examination contained these inconsistencies:

• he initially admitted he had received safety training and knew he could refuse unsafe work;

• however, he subsequently contradicted himself and testified that he had never been advised of his right to refuse work that he felt was unsafe;

• he also conceded that he had been told to stay back from the face wall in a safety zone;

• later in his cross-examination he testified that he had never been told that to be safe he had to stay within a certain area and he remained adamant that no one had ever said anything to him about a safety zone.

[51] It is clear to me that Her Worship was sympathetic to Figueiredo's plight. She wrote that "[t]here is no question Mr. Figueiredo feels a level of frustration with his situation. This was apparent in his demeanour. He sobbed and lamented he wished he was well enough to go back to work." Her Worship rejected Mr. Keith's submissions that Figueiredo was being evasive and adverse but nonetheless found that Figueiredo was tangential in his responses.

[52] Ultimately, she did not credit his evidence. She observed that gauging the truthfulness of any witness is difficult and that task is made more difficult when a witness' evidence is mediated through an interpreter.

[53] In R. v. Zewari, [2005] O.J. No. 1953 (C.A.) the Court of Appeal discussed, inter alia, a Sheppard complaint. At paragraph [4] the Court noted that "[i]n evaluating the credibility of the appellant's evidence the trial judge adverted to the difficulties a witness has when an interpreter is required. However, in acknowledging that problem, the trial judge was not saying that he did not understand the appellant, but rather that he was sensitive to the issue but satisfied that he understood the evidence given by the appellant." In my view the Reasons for Judgment demonstrate that Her Worship understood Figueiredo's evidence but did not credit it because of its frailties.

The Reasons Considered

[54] Given this review of the trial context, given this review of the content of these reasons and given the credibility assessments made by the trial judge, it is my opinion that her verdicts on Counts 1 and 3 dismissing the charges are clearly and easily understandable and patent.

[55] The application of the doctrine of reasonable doubt to a set of facts merits deference. The standard of review when a legal principle is applied to a factual finding is review on the basis of palpable and overriding error. In my view the basis of Her Worship's decision on Counts 1 and 3 is easily apparent. It must be remembered that "… a reasonable doubt does not need to be based on the evidence; it may arise from an absence of evidence or a simple failure of the evidence to persuade the trier of fact to the requisite level of beyond reasonable doubt. … It is only where a reasonable doubt is tainted by a legal error that appellate intervention in an acquittal is permitted."

[56] In this case Her Worship's reasons, inter alia, contain all of the following findings either expressly or by necessary inference from her other findings:

• the investigation by the Ministry of Labour was at best perfunctory;

• the investigator's evidence was unreliable and not to be credited;

• the victim's evidence was of no assistance to the actual event and not credited on other matters for a variety of reasons outlined by the trial judge;

• there was no documentation of the events by the investigator in a fashion that could overcome the presumption of innocence and prove the actus reus to the exclusion of any reasonable doubt;

• put another way, there was insufficient evidence of the time-frame and spatial frame in which the events occurred to displace the presumption of innocence;

• there was evidence before Her Worship that ice invariably fell straight down when chipped or scaled, other than on this one instance, which was unique;

• when men in the basket scaled and chipped ice they ensured that no one was working below them;

• there was a designated ice-drop zone that workers were required to avoid;

• Her Worship accepted that workers were never below the area where ice was being scaled;

• there was a designated work zone at the bottom of the cut as confirmed by Jose Forte, the employee member of Dufferin's health and safety committee;

• Figueiredo was farther away from the face wall than were the men in the man-basket when he was struck by a large piece of ice;

• that the piece of ice floated or sailed some 30 feet away from the face wall before it landed on Mr. Figueiredo.

[57] Given this constellation of facts and findings and given the presumption of innocence, the burden of proof and the doctrine of reasonable doubt, I cannot say that the decisions reached by Her Worship demonstrate palpable and overriding error on Counts 1 and 3. In short, Her Worship was not convinced to the exclusion of any reasonable doubt that the particulars of Counts 1 and 3 were proved. As a result the appeals with respect to Counts 1 and 3 are dismissed. The defence sought costs but this is not a claim where costs against the Crown are merited.

Obiter Dicta

[58] In a strict liability prosecution a defendant is called upon to demonstrate due diligence only if the Crown has proved the actus reus beyond a reasonable doubt. The Crown failed to do so here and so while Her Worship wrote several pages of reasons explaining why she felt the Defendants had been duly diligent, so far as Counts 1 and 3 are concerned, all of that is obiter dicta. If I had come to the opposite conclusion on the Sheppard issue on Counts 1 and 3 I would have ordered a new trial. I see no need to review that portion of her reasons after Her Worship found that she had a reasonable doubt. That portion of her reasons was unnecessary.

Count 2, the Technical Count

[59] As noted above at paragraph [9] Inspector Ritchie caused a further count to be laid with respect to technical deficiencies alleging a safety rating label missing from the basket and a revised load rating chart missing from the crane. Count 2 charged Dufferin with committing the offence of failing as an employer to ensure that the measures and procedures prescribed by s. 153(2) of O. Reg. 213/91, as amended, were carried out in the workplace located at the intake site of the Niagara Tunnel Facility Project, contrary to s. 25(1)(c) of the OHSA. The count was particularized to allege that the defendant failed to provide a platform and/or basket with the maximum rated load capacity legibly and permanently marked in a conspicuous place on the platform and/or basket; and/or the defendant failed to provide a crane with a revised load rating chart prepared by a professional engineer in accordance with good engineering practice affixed in a conspicuous place on the crane.

[60] Her Worship dismissed that count in the face of evidence given by the crane operator Joseph Nagy that the required revised load rating chart was not on the crane on the date alleged, ostensibly on the basis that something equivalent was available to him. In addition, Her Worship found that there was some equivalent safety rating label in the basket. In my view her decision was wrong in each case.

[61] So far as the missing revised load rating chart is concerned the standard of review is correctness since a purely legal error can be extricated from an application of mixed fact and law so that the issue becomes a purely legal one; viz did Her Worship apply s. 153 of O. Reg. 213/91 correctly?

[62] Section 25(1)(c) of OHSA provides that an employer shall ensure that, "(c) the measures and procedures prescribed are carried out in the workplace." One of the prescribed procedures is O. Reg. 213/91. Section 153(2)(c)(iv) of that regulation provides, inter alia, that "no worker shall use a … basket that is capable of moving and is supported by a cable attached to the boom of a crane except in accordance with this section." Section 153(2)(c)(iv) requires that a crane may be used to raise, support or lower a worker only if, the crane has a revised load rating chart prepared by a professional engineer in accordance with good engineering practice and that is affixed in a conspicuous place. Mr. Nagy testified that Dufferin was "still waiting" to receive this chart from the professional engineer.

[63] Given the admission by the crane operator that he was operating the crane without the revised load rating chart being affixed in a conspicuous place, Her Worship erred in not convicting on Count 2.

[64] While s. 3 of O. Reg. 213/91 does provide that an employer may vary a procedure, composition, design, or arrangement required by the regulation if the variation affords protection for the health and safety of workers that is at least equal to the protection that would otherwise be given, that variation is only permitted after the employer has given written notice of the variation to the joint health and safety committee or the health and safety representative, if any, for the workplace. It is common ground that no such written notice respecting any alternative to the revised load rating chart mandated by s. 153(2)(c)(iv) of O. Reg. 213/91 was given. Hence, no variation was permitted. Her Worship was incorrect to acquit on Count 2.

[65] In addition, Her Worship was also erred in failing to apply the conjunctive "and" that appears as the last word in s. 153(2)(b)(viii). Dufferin supplied a crane and basket for use by its employees that was not in compliance with s. 153 of O. Reg. 213/91 as particularized by the Crown. The regulation provides that no worker shall use a basket that is capable of moving and is supported by a cable attached to the boom of a crane except in accordance with that section. That section requires that a crane may only be used to raise, support or lower a worker if the platform the worker is on has its maximum rated load capacity legibly and permanently marked in a conspicuous place on it and the crane has a revised load rating chart prepared by a professional engineer in accordance with good engineering practice and affixed in a conspicuous place on the crane. Neither required element obtained on the evidence adduced. Her Worship's interpretation and application of these provisions was in error.

[66] The only accepted evidence of the condition of the basket in use on the date of the allegation came from Jose Forte. He testified that he made a removable plywood frame that he inserted into the basket that Dufferin had purchased. Forte testified that he attached a homemade label to the base of that removable plywood frame. The label that he attached to the plywood frame indicated that the load capacity of the basket was 750 pounds. Forte took that rating from a basket that Dufferin used to rent, which did comply with s. 153(2)(b)(viii).

[67] Where an alleged error is based in whole or in part on findings of fact then the standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a palpable and overriding error. A palpable error is an error that is clear to the mind or plain to see; i.e. an error that is so obvious that it can easily be seen or known. In short a palpable error is one that is readily or plainly seen.

[68] In my view Her Worship's finding that the condition of the basket complied with s. 153(2)(b)(viii) demonstrates that she made a palpable and overriding error on a number of bases. As noted above, the regulation requires that a crane may be used to raise, support or lower a worker only if the platform that the worker is on has its maximum rated load capacity legibly and permanently marked in a conspicuous place on it; and the crane has a revised load rating chart prepared by a professional engineer in accordance with good engineering practice and affixed in a conspicuous place on the crane.

[69] The evidence adduced before Her Worship established that the chart was missing so that that portion of the regulation was not complied with. Dufferin is guilty of failing to comply with s. 153(2)(b)(viii) since the provisions are conjunctive.

[70] Moreover, Her Worship's decision that the equivalent of the requirements of s. 153(2)(b)(viii) obtained is palpably wrong. The permanent marking of the maximum rated load capacity must be on "it," that is to say on the basket and not on some removable plywood platform that a worker adds to the basket without complying with the variation provision provided for in s. 3 of the regulation. Additionally, it is, in my view, palpably incorrect to say that the basket was marked in a conspicuous place when the marking was said to be at its base, i.e. at the feet of people standing in the basket.

[71] Mr. Keith attempted to support Her Worship's verdict on Count 2 by a number of submissions. His main submission was that Her Worship was correct to find that the variations proved in the evidence, when compared to what the regulation required, were at least equivalent to what the regulation required. For the reasons previously expressed I reject both submissions as being wrong in law.

[72] Mr. Keith also submitted that Her Worship's reasons on Count 2 implied that she dismissed that charge based upon Dufferin having demonstrated that it has been duly diligent respecting the basket and the crane, despite the fact that Her Worship had not said that. I reject that submission. Her Worship never purported to decide Count 2 on the basis of the defence of due diligence expressly or by implication.

[73] Finally, Mr. Keith urged that the dismissal of Count 2 should be upheld on the basis of due diligence having been shown, on either or both aspects of that defence – mistake of fact or reasonable precautions taken.

[74] I reject those submissions, too. Any mistakes Dufferin made in using the basket and crane were mistakes of law not fact. As to the reasonable precautions aspect of that defence, Dufferin's reliance on Exhibits 18 and 19 is without merit. Exhibit 18 is a letter of comfort prepared by an engineering firm for an entity other than Dufferin and for a different basket than was in use on December 21, 2009. That exhibit does not refer to O. Reg. 213/91 and the letter cannot displace the requirements of that regulation. Any reliance by Dufferin on that letter amounts to a mistake of law. Exhibit 19 is a letter from the same engineering firm that deals with the basket that was in use on December 21, 2009. That letter was obtained by Dufferin at the direction of the Ministry of Labour investigator about two weeks after the incident. That letter, having been obtained after the fact, cannot demonstrate due diligence. Moreover, the legal opinion contained in it is wrong, at least so far as O. Reg. 213/91 is concerned.

Ruling

[75] Pursuant to s. 121 of the Provincial Offences Act the Crown's appeal with respect to Count 2 is allowed and a conviction on that count is entered. Given the evidence, it is inappropriate to order a new trial on that count. Rather, after hearing submissions on a date to be arranged, I shall pass a sentence that is warranted. For the reasons previously given, the appeals with respect to Counts 1 and 3 are dismissed.

Dated at St. Catharines, this 8th day of December, 2014

J. S. Nadel, (O.C.J.)