Court File and Parties

Ontario Court of Justice

Date: 2015-07-13

Court File No.: Ottawa 999-12-6056

Between:

Ministry of Labour – Province of Ontario

— AND —

Ottawa Hydro Limited

Before: Justice of the Peace Brian Mackey

Heard on: February 24, 2014 intermittently to January 29, 2015

Reasons for Judgment released on: July 13, 2015

Counsel:

• Line Forestier, for the prosecution
• David Law, for the defendant Hydro Ottawa

JUSTICE OF THE PEACE BRIAN MACKEY

Charges

[1] Hydro Ottawa Limited stands charged that on March 22, 2012 they did commit the offences of:

• Count One: Failing as a constructor to ensure that measures and procedures were followed at a project located along Moodie Drive contrary to the Occupational Health and Safety Act. The particulars are that the defendant failed to ensure an object was not brought closer than 3 metres to an energized overhead electrical conductor; and,

• Count Two: Failing as a constructor to ensure that measures and procedures were followed at a project on Moodie Drive contrary to the OHSA. The particulars are that the defendant failed to ensure a competent worker designated as a signaller was stationed so that he is in full view of the operator and had a clear view of the electrical conductor and of the vehicle, and would warn the operator every time any part of the vehicle or other equipment may approach the minimum distance; and,

• Count Three: Failing as a constructor to ensure that measures and procedures were followed at a project on Moodie Drive contrary to the OHSA. The particulars are that the defendant failed to establish and implement written measures and procedures adequate to ensure that no part of a vehicle or equipment encroaches on the minimum prescribed distance when a vehicle or other equipment is operated near an energized overhead conductor and it is possible for part of the vehicle or other equipment to encroach on the prescribed minimum distance and failed to make this written document available to an employer on the project; and,

• Count Four: Failing as a constructor to ensure that measures and procedures were followed at a project on Moodie Drive contrary to the OHSA. The particulars are that the defendant failed to take every reasonable precaution to prevent hazards to workers from energized electrical equipment, installations and conductors. Such precautions include ensuring proper equipment was discussed, properly used and positioned in the circumstances and/or ensuring a worker was informed of the height of the energized overhead wires and/or ensuring a procedure was developed to provide a safe work area as defined in the Electrical Utility Safety Rules for a worker using a non-insulated boom near an exposed energized overhead conductor; and

• Count Five: Failing an employer to ensure that measures and procedures were followed at a project on Moodie Drive contrary to the OHSA. The particulars are that the defendant failed to take the reasonable precaution of ensuring proper equipment was discussed, properly used and positioned in the circumstances and/or ensuring a worker was informed of the height of the energized overhead wires and/or ensuring a procedure was developed and implemented to provide a safe work area as defined in the Electrical Utility Safety Rules for a worker using a non-insulated boom near an exposed energized overhead conductor.

Legal Framework

[2] The Occupational Health and Safety Act notes the Duties of a Constructor under section 23 (1) as:

A constructor shall ensure, on a project undertaken by the constructor, that,

(a) the measures and procedures prescribed by this Act and the regulations are carried out on the project;

(b) every employer and every worker performing work on this project complies with this Act and the regulations; and,

(c) the health and safety of workers on the project is protected.

Section 23 (2) notes that under Notice of Project:

Where so prescribed a contractor shall, before commencing any work on a project, give to a Director notice in writing of the project containing such information as may be prescribed.

[3] The Occupational Health and Safety Act further notes the Duties of an Employer under section 25 (1) as:

An Employer shall ensure, amongst a number of requirements, that,

(c) the measures and procedures prescribed by this Act and the regulations are carried out on the project; and,

(d) the equipment, materials and protective devices provided by the employer are used as prescribed.

In the Idem listed as section 25 (2) it is noted that:

Without limiting the strict duty imposed by subsection (1), an employer shall,

(c) when appointing a supervisor, appoint a competent person;

(d) acquaint a worker or a person in authority over a worker with any hazard in the work…

(h) take every precaution reasonable in the circumstances for the protection of a worker.

[4] The court is aware that the OHSA is public welfare legislation to promote a reasonable level of protection of workers and is to be read liberally and broadly in keeping with the purposes and objectives of the legislative scheme and narrow technical interpretations are to be avoided.

[5] The court is also aware that this is a strict liability offence where the onus is on the Crown to prove the actus reus beyond a reasonable doubt. The doing of the prohibited act prima facie imports the offence. The defendant is then open, to avoid liability, to prove that he took all reasonable steps on a balance of probabilities, or there was a reasonable mistake regarding the facts. This due diligence involves the concept of what a reasonable man would have done in the circumstances.

[6] The Supreme Court has consistently reminded lower courts that the standard of proof is beyond a reasonable doubt consistent with the presumption of innocence and that this burden never shifts to the accused.

[7] As a matter of convenience, the Court will refer to all Tailboard matters and meetings as "tailgate."

Electrical Utility Safety Rules (EUSR)

[8] The Electrical Utility Safety Rules (EUSR) (Exhibit #17) describes a competent worker as a qualified worker familiar with the OHSA and Regulations with knowledge of potential or actual dangers to the workplace; a dedicated observer as a competent worker in the tasks being performed and having no other duties while continuously monitoring the work; a job plan as agreed to by all workers, identifying all known hazards, associate barriers to control hazards, and identifies each worker's responsibilities in the work; safe limits of approach as a procedural barrier system for authorized workers or workers under the continuous direction of an authorized worker intended to minimize the risk associated with working in proximity to exposed energized apparatus; and, a supervisor as person who has charge over a workplace or authority over a worker.

[9] It was established that the Limits of Approach for this project in the EUSR for is 3 metres or 10 feet and that this rule is applicable to non-electrical workers in an electrical environment.

The Incident

[10] There is a defining moment in this incident where the outcome was the electrocution of the three-man Dig Safe crew and the death of Barry Robertson. This incident is pivotal to the case in understanding the connectivity of the charges and the responsibilities and liabilities.

[11] Tommy Viveiros gives Barry Robertson the remote used to control the vacuum, the trunk device, the boom and the truck. Robertson is now in charge of the vehicle and its moving parts. Viveiros did this so that he could remove a rock from the trunk which at that point was inoperative due to the blockage. He climbs down and the vacuum is turned back on. Alan Dyson uses a manual spud bar to move a boulder. Robertson positions the vacuum tube on the boulder to "suck it up" as Viveiros describes it. Viveiros said that Robertson was sitting on a pole, meaning the new, wooden Hydro pole that was west of the side of the hole. The vacuum tube is in the hole while Dyson dislodges the boulder and then the tube is positioned on the boulder to use the vacuum to lift it out of the hole. At this point Viveiros can see in the hole. Robertson then starts to lift the boom up with the rock attached to the bottom of the vacuum tube. Vivieros says Robertson was still sitting down and looking down as the boom was being raised. Viveiros was also looking down into the hole guiding the vacuum tube up so that it would not hit the side of the hole possibly causing the rock to fall. He stressed that "any little thing can" cause the rock to fall back into the hole. He was unable to recall at what height the tube was when he felt the electrocution.

[12] A moment later he falls backward still on his feet and is free of the electrocution. He sees that the water line is on fire and decides to run around the Hydrovac towards the road knowing that there is an emergency shutoff button on the Hydrovac. He tried to open the panel down on the passenger side of the truck where he knew the button was located, but was again electrocuted. He saw Robertson had fallen backwards from his sitting position on the pole. He yelled to Allan Dyson who grabbed possibly a broom and knocked the water hose off of Robertson's leg. They grabbed Robertson's arms and dragged him about 50 feet away. He asked Dyson to perform CPR while he called Ottawa Hydro.

[13] Alan Dyson was a crew member with Dig Safe at the time of the accident. His role was to assist with traffic control, ready the job site, pry rocks, use the remote hose and clean up. He could also be involved with guiding the trunk or tubes associated with the Hydrovac truck. He recalled working on some 10 to 50 holes with Tommy Viveiros. He and Tommy worked for Greely whereas Barry Robertson drove the Hydrovac and worked for Dig Safe, wholly owned by Greely. He confirmed that the Hydro foreman, Rick Wallace, asked them if they could do a couple of other holes that were missed.

[14] The vacuum throttle was still on. Viveiros did not notice the position of the truck boom after the incident. Rick Wallace of Ottawa Hydro showed up soon afterwards. Vivieros was concerned that the truck would catch fire if left on so Wallace grabbed special Hydro gloves from his own truck and Vivieros showed him where the emergency shut off button was located whereupon he shut it down.

[15] Viveiros noted that he only had one hand on the vacuum tube when electrocuted and that there was no spud bar in the hole at that time as Dyson had removed it.

[16] Viveiros confirmed that no one from Hydro indicated the height of the wires they worked with or spoke to them about the voltage.

[17] In fact, Greely was not scheduled to do the section of work where the accident happened. Hydro had been doing that section with a backhoe while Greely was working on another section with Black and McDonald. Hydro asked Dig Safe to take over and finish that section. This meant that the Hydrovac replaced a backhoe on that section.

[18] Viveiros stated that when the project started he never attended any meetings with Hydro. They started on Moodie around 10:30 to 11:00 A.M. Hydro directed the Dig Safe crew back to a hole they had dug previously but because of a boulder Hydro wanted to move the pole location.

[19] The Dig Safe crew used a Blackberry for the tailboard that day. It was the first time using an electronic device as opposed to paper although according to Viveiros he may have used it once or twice previously on the Moodie section.

[20] In answering a question in cross examination from Mr. Law, Viveiros noted regarding the positioning of the Hydrovac at one point near a driveway that he would not operate from that position because the Hydrovac would be "Blocking the driveway and you're too close to the cables to boom out." The significance of this reply is that he well understood the necessity to keep clear of cables when operating the boom.

[21] It appears that the crew worked on the one hole near the driveway, may have had lunch, and then started the incident hole with the accident occurring around 2:57 P.M.

[22] When Hydro's Rick Wallace came by at the previous hole he stayed in his truck facing out to the field and Tommy Viveiros came to the vehicle. Wallace asked him to do another staked point down the road and then two stub poles. This is significant because it shows direction and control.

[23] Significantly, Tommy Viveiros does not recall Rick Wallace driving to the last location and warning him to watch the power line. He noted that if it would have happened it would have been "a bit bizarre." The court is left with contradictory evidence.

[24] Viveiros rejected the idea raised by defence counsel that the lifting of the boom with the trunk and tube attachments over maybe 100 previous times was unsafe and that the limits of approach may have been comprised on other occasions. He stated that Barry Robertson should have been familiar with the angling technique and the safe operation of the Hydrovac with attachments within the limits of approach.

[25] He also stated that he did not touch the remote after the shock because he knew to stay 15 feet away so as not to be electrocuted again. He believed the electrical lines were 30 feet overhead and was never advised that they were only 20 feet above them. It was shown that the combined height of the aluminum tubes, the trunk and apparatus measure to the tip of the boom vertically 20 feet.

[26] The issue of how the spud bar came to be in the hole is not significant. It likely was simply left there although any other reasonable answer is unlikely to advance this case. The issue of how the remote control device ended up in the hole beneath the rock is more complex and takes the reader down more rabbit holes. It could have been thrown involuntarily by Barry Robertson at the time of electrocution into the hole. The fact that it appears to have been under the rock or boulder may simply relate to the time that elapsed prior to Rick Wallace shutting down the Hydrovac equipment. Any other explanation cannot be dealt with in this public welfare trial.

[27] Dyson confirms that a Tailgate meeting was held before they started the first hole involving all three of them during which traffic and the low cables were discussed. He noted that the Bell and Hydro cables were "really low to the ground." He said no one told them how low they were, but that, "Tommy pointed out how low they were." He also confirmed that there was no discussion about a signaller. He was aware that they were to stay 3 metres or ten feet away from overhead wires and that higher voltage wires require a greater distance through electrical awareness training through his union, Greely and Hydro Ottawa.

[28] There was much that he could not recall or be accurate on although he said Tommy was using the remote control device before the vac got jammed and that Barry was operating the water wand. He was using the spud bar to loosen rocks in the hole. Barry was given the remote and after Tommy cleared the stones from the hose he started operating the device. Interestingly, Dyson has Robertson standing by the hole. Robertson gets the vacuum on a large rock and begins to pull it up and is holding the tube while Viveiros is said to be standing by their pick-up truck. Dyson was taking the spud bar out of the hole and setting it down about ten feet away when he was electrocuted. The water wand was leaning on Robertson's arm.

[29] When Dyson sees Robertson with the water wand on his chest he ran to the truck to get a broom and knocked it off of him and then grabbed him to pull him out.

[30] Dyson saw the tube and the rock it held just above the edge of the hole after the electrocution. He hollered for Viveiros to come and help him pull Robertson away from where he was laying. He recalls the hole being about 8 feet deep and two tubes attached to the trunk.

[31] We know that Viveiros was instructed by his boss, Kevin Fudge, to go to the Moodie sector after completing the work at Bank and Second in the Glebe. They had done a hole previously at that location. Kevin said, "Go back 'cause we ran into some big boulders," according to Viveiros in the interview one month after the accident with Malcolmson.

[32] Barry Robertson, working with a Dig Safe crew employed by Greely Construction Ltd., died from electrocution on March 22, 2012 while digging a post hole for Hydro Ottawa on Moodie Drive when the Hydrovac truck that he was controlling by remote control came in contact with a live electrical wire located above the post-hole location. Hydro Ottawa is charged under section 25 (2) (h) of the Occupational Health and Safety Act as well as sections 183, 188(2), 188(4), and 188(8) of the Construction Projects Regulation.

The Interview

[33] The delay in interviewing the Greely crew is disturbing given the importance to gathering information first hand in a timely manner.

[34] The lapsed time between the accident and Ministry interviews of the two crew members is concerning to the court. Even more so, the discrepancies between Viveiros and Dyson regarding the accident event and scene are troubling. What we can be certain about is that the trunk of the hose and connected Hydrovac boom was raised within the limits of approach and came in contact with the live electrical wire without the benefit of any signaller or observer causing the death of Barry Robertson who happened to have the water hose with him.

[35] The MOL interview by Chris Malcomson with Tommy Viveiros on April 24, 2012 noted that before he worked for Greely he did carpet cleaning and housecleaning at hotels. His training at Greely from 2005 was in electrical awareness, confined spaces, WHMIS, traffic control and first aid. He expanded on his electrical awareness as being aware of hazards and your limitations when you are digging around live cables including proper gear and limits of approach. Viveiros went onto to say that you had to keep 10 feet, and even shorter distances, depending on the voltage, from electrical wires or cables. He said he got EUSR training from his union. He indicated extensive experience digging around power lines for new poles. He had formal training with the power vac and had worked with them for years. In response to a specific question about the conversation he had with the crew about the overhead power lines he noted letting them know that they had to boom on an angle to keep their safe limits of approach. He was not told be anyone that there was a live line, but he indicated being aware of it. He believed the lines were about 30 feet overhead. Viveiros said they talked about the limits of approach and were all aware of it. Initially at the hole in question, he had the remote and got the boom angled with Barry using the wand digging the hole. He noted that Rick Wallace asked him if he had time to do two additional holes. They dug down about 7 feet on an angle to avoid the overhead wires when a rock got stuck in the vac tube in what is called the rock head. He told Barry he was going up to try to remove it and gave him the remote. With the vac off he removed the rock and he told him to start the vac up again. There was another big rock in the hole and Alan Dyson, described as his helper, was using a spud bar to move the rock. He put his hand on the tube and was directing it to the rock and as the rock was pulled out a certain distance, and they were looking down, they were electrocuted. He answered a question about a spotter by noting that they normally looked up, but this time nobody looked up. He said Barry was sitting on a pole nearby and Alan was just standing nearby. Viveiros said that they were just booming up meaning that the boom was being lifted upwards when all of a sudden they were electrocuted. There were two sections on the boom due to the need to dig the hole down eight feet according to Viveiros. In answer to a question about how this could happen he replied:

Well, when I had the remote, I always kept an eye. Like, I had it boomed on an angle and I always kept an eye. When I handed the, the remote to Barry, I, I am still trying to know if it's when I went up top to go get the rock head, if Barry had moved the boom and that's the only conclusion I can get because we were moving on an angle? I did remove some rocks before and all I can get from it is that when I went up and came back down, if Barry had slightly moved the boom over and I didn't notice?

[36] The interview with Hydro Ottawa's Rick Wallace on March 28, 2012 established that he was a Coordinator for Construction and Maintenance South regarding the pole installation project that involved the Greely-Dig Safe crew on March 22, 2012. His involvement was with the 3rd phase of the project. He was completing 32 years with Hydro at that time. His contact with the crew was Tommy Viveiros whom he believed was involved with all of the phases of the project. Wallace indicated that he dealt through another Hydro employee who talked to Kevin Fudge at Greely to get his crew working on holes. He noted that he had been working with the Greely people for some ten years on Hydro projects. His instructions to the crew involved which holes to dig. Wallace explained that the Greely crew was working for others at different locations so they are not part of his tailgate meetings. Importantly, he reminded Tommy Vivieros about the 10 foot clearance before he left the job site on the accident day. Tommy apparently nodded his head in agreement while saying yes to him. Of note, Wallace had two Greely workers working with his crew on traffic control that day.

[37] On that note I wish to comment on Rick Wallace's decision to speak to Tommy Viveiros prior to the accident about the need to be cognizant of the height and danger of the one lone live wire. The court views this action in a positive light. Rick Wallace had the issue of the crew raised by one of his colleagues and decided on his own to drop by at the end of his workday to specifically comment on the overhead danger to Tommy Viveiros whom he considered to be the crew's, if not supervisor then, spokesman. He knew him from past encounters and appeared to be relatively comfortable with him. This is insufficient contact, but given that it was not his responsibility it was a legitimate attempt to close the gap between what Hydro had done to select contractors and make available education and the reality of day-to-day, repetitive operation of a non-Hydro crew that clearly needed more supervision. The fact that this crew appeared to be working under the sole dictum of "look up" in an each-man-for-himself environment is unacceptable and clearly not what Hydro Ottawa practises, teaches or condones or what the OHSA anticipates. Nevertheless, all of this is worthless in the field if workers are not monitored and controlled through appropriate supervision. In the case of live electrical apparatus, you are only as good (as safe) as your next encounter.

Crown Position

[38] The Crown has provided case law showing that the failings of a supervisor are borne by the employer, that a hazard can include a chance event such as an accident raising the presumption of the commission of the offence, that the Crown is not required to prove that the employer knew of the danger, that worker misconduct does not go to the actus reus of the offence, and there is no requirement on the Crown to prove how an accident happened.

[39] It is also well established that employers are the gatekeepers for the protection of their employees and cannot normally shift the blame.

[40] The Crown has also noted that the principles of R. v. W (D) do not apply in evaluation of a due diligence offence as the defendant has a positive burden of proving due diligence, on a balance of probabilities.

[41] The Crown submits that the constructor must have established and implemented measures and procedures that deal specifically with one area and that is ensuring that objects do not come within the envelope. The Crown accepts that this can be accomplished with a combination of documents, but that they must be very specific and address the area in question – the ten foot rule.

[42] The Crown argues that three points must be addressed in regards to this charge: adequate warning devices visible to the operator and warning of the electrical hazard shall be positioned in the vicinity of the hazard; the operator is being provided with written notification of the electrical hazard before beginning electrical hazard is posted at the operator's station. The Crown looked to Tommy Viveiros' response to the question of did Hydro or Greely ever provide written procedure on how to ensure the Hydrovac boom would stay out of the ten foot zone and his reply of no on this issue. Additionally, Chris Malcomson's lack of satisfaction with Hydro pointing to the EUSA rules or the OHSA as a measure and procedure to address section 188 (4) regarding this charge noting that EUSA did not apply as Greely was not doing electrical work. He went on to note that Hydro had no specific procedures to deal with overhead power lines for the Greely project.

[43] The Crown seeks convictions based on failure to control Greely, insufficient due diligence and never inspecting the work done by Greely knowing that the project was categorized as a high-risk. Careful screening of contractors during the procurement and bidding process is not seen as adequate. Tailgate meetings and job planning does not amount due diligence from the Crown's perspective.

[44] The Crown stressed the obligations of employers and constructors to enforce the Occupational Health and Safety Act and related Regulations. As noted in the Wyssen decision, the employer is obliged to ensure that the measures and procedures prescribed by the Regulations are carried out in the workplace. The K.B. Homes Insulation case noted that, "A constructor is in the position of an insurer of the health and safety of all workers on a worksite."

[45] The Crown stressed that there is no evidence showing any pre-work discussions on this project regarding the need for signallers or even to stay outside of the envelope. Further, pamphlets, meetings and just telling employees and contractors what to do is not sufficient for an employer to discharge its duty to exercise due diligence as noted in the St. Lawrence Cement case. The Crown argues that, as in the Stelco case, the appeal courts have called for greater supervision on the front line. An employer is not allowed to rely on their record of compliance, past practices, industry standards, or any general requirements that employees comply with Acts and regulations.

[46] Workers conducting work on or in proximity to exposed apparatus of an electrical distribution of transmission system shall have a copy of the safety rules, and become thoroughly familiar with and observe all current rules applicable to their particular duties and the duties of any employee they supervise.

Defence Position

[47] Defence submitted case law along with numerous exhibits regarding their case stressing the requirement of the Crown to not to establish the elements of the offence beyond a reasonable doubt, but then to establish that the defendant did not take, on a balance of probabilities, all reasonable steps to avoid the events.

[48] Exhibits #37 and #38 from Hydro Ottawa following the accident describes safe work practices when performing excavation work with Hydrovac equipment near the electrical distribution system including always assuming electrical lines are fully energized and hazardous, prepare a site specific job safety plan, detailed and documented planning, acknowledgement of electrical hazards and a plan for how safe limits of approach will not be breached, establishing the type of electrical protection required for the work, ensuring all workers are aware of the hazards, how to control hazards and their role in relation to hazard control; a caution to minimize the hose length and boom height near electrical apparatus; and designate a competent worker as a signaller.

[49] It was clear that not only did Greely go through an extensive screening process and review to participate in the Hydro Ottawa RFP procedures, but also that training was provided by Greely and Hydro Ottawa for the crew members. In particular, Exhibit #44 is such a process whereby Hydro Ottawa dealt with job planning, legislative requirements, tailboard reviews, Construction Regulations, EUSR rules including stressing continual hazard assessment, site visits from external inspectors/regulators, job audits, and visits from internal inspectors and supervisors.

[50] It goes without saying that work with Hydro Ottawa and generally in the electrical field involves training that covers the OHSA and Regulations, the EUSR and Electrical Awareness. Many exhibits pointed to the training specifically for Tommy Vivieros, Alan Dyson and Barry Robertson from Greely and more particularly from Hydro Ottawa. Defence argues that this is a constant and a priority for Hydro Ottawa.

[51] And, finally, defence was of the opinion that with every charge due diligence was taken by the defendant through its extensive safety and training protocols and onsite workplace safety first attitude to avoid accidents.

Case Law

[52] The Court is aware of the various case law citations submitted by counsel including Her Majesty the Queen and Canada Brick (2004) noting that, "Generally, with a regulatory offence, it falls to the prosecution only to prove beyond a reasonable doubt a defendant's commission of the prohibited act. Negligence is assumed without the necessity of further proof by the Crown. IT is open to the defendant to avoid liability by establishing, on a balance of probabilities, that a defence of due care is available…that no negligence exists because the defendant took all due care, all reasonable steps in the circumstances, to avoid or prevent the occurrence of the prohibited act." This is consistent with the seminal decision in Sault Ste. Marie (1978).

[53] Also, Her Majesty the Queen v. Timminco (2004) t Court notes that, "a reasonable level of protection does not mean guarding or fencing every moving part to which it is possible to have access." Plus, "Although the primary responsibility for worker safety is appropriately placed on the employer by the Occupational Health and Safety Act, it is clear that the Act envisions shared responsibility between all parties."

[54] In R. v. Strabag (2012) the Court refers to the R. v. Lifchus (1997) decision regarding reasonable doubt as being based on reason and common sense, logically connected to the evidence or absence of evidence, and that more is required than proof that the accused is probably guilty.

[55] In R. v. Rassaun Steel it is noted that once a charge is particularized the Crown must prove those particulars and cannot otherwise stray.

[56] R. v. Public Utilities Commission, City of Sault Ste. Marie (1989), the Court states that, "In order to meet the burden required to be met, the defendant must establish that it is more probable than not that all due care, all reasonable care was taken. If the probabilities are equal the defendant will be found to have failed to establish his statutory defence."

[57] In Ontario Ministry of Labour v. MacMobile Welding (2002), the Court noted that, "t standard of care must not be characterized as being unrealistic, superhuman, or beyond that which is reasonable. If that were the case the offence would be converted to absolute liability…"

[58] In R. v. King Paving (2007), the Court says that "In my view, this analysis must be informed on an incipient basis by the evidence of the safety record and reputation for safety concerns and compliance with the OHSA of the defendant company as revealed by the evidence."

[59] In R. v. Prince Metal (2011), the Court notes that "with respect to due diligence, W(D) has no application because the burden of proving due diligence on a balance of probabilities rests with the defendant." Further, that the "voluminous training records…to demonstrate the extensive safety training…(were) unrelated to the nature of the accident."

[60] In R. v. Brant Corrosion (2008), the Court states that, "even if it was the fact that a system was in place to address the accident risk of harm, it is clear that there was nothing in place to monitor or supervise the conduct of the individual employees…"

[61] In R. v. Inco (2001), the Court finds that, "The obligations imposed under the OHSA are not mutually exclusive and the liability for the offending acts committed by a supervisor, rests jointly and severally with the employer." Further, that, "neither Inco nor (the supervisor) acted with a degree of due diligence commensurate with the potential gravity of harm resulting from this business activity."

[62] In R. v. St. Lawrence Cement (1993), the Court notes that, "It is not enough for the accused to orally order the workers to conform to certain safety procedures and send them pamphlets that repeat and reinforce that order." And, "that (supervisors) knew that the trucks were backing up that day and that there was no signal man, and they took no steps or did they give any orders to install a signalman."

[63] In R. v. St. Mary's Cement (1999) the Court states that, "It is all well and good to have safety procedures in place. However, due diligence requires both that those procedures be taught to the workers involved, and that there be reasonable supervision to ensure that those procedures are in fact being followed."

Comment

[64] As noted in R. v. K.B. Home Insulation Ltd. (2008) a constructor, must "ensure that every employer and every worker performing work on the project complies with the Act and regulation. Therefore, it is the duty of the constructor to protect, to supervise and to police all workers on a worksite."

[65] It is very clear from R. v. Sault Ste. Marie (1978) that, "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."

[66] As in the case of R. v. Inco Ltd. (2001), the degree of care warranted in this particular case is governed by the following priority of circumstances: (a) the gravity of potential harm – in a live electrical environment the potential for substantial injury is severe; (b) available alternatives involving direct supervision and active compliance with safety training and requirements; (c) likelihood of harm goes without saying when death occurs; (d) degree of knowledge or skill of the accused, beyond training and education, must be looked at from the degree of comfortableness that Hydro Ottawa had with this sub-contractor and the members of the crew which may have led to a lack of monitoring and control that was not warranted given the outcome; and (e) the extent that the underlying causes of the offence are beyond the control of the accused assumes that once a firm is qualified, that the workers are educated and written documents are available that onsite safety issues have been addressed.

[67] Section 25 (2) (h) calls upon the employer to take all reasonable steps in the circumstances which we acknowledge is a heavy onus requiring a continuous assessment of worker safety in the workplace which extends to the protection of negligent, careless and reckless workers who deliberately ignore procedures.

[68] The Court accepts that body of evidence that shows Barry Robertson holding the remote and having the water wand touching him in some way. The Court accepts that Tommy Viveiros handed over control of the remote to Robertson prior to the accident. It also accepts that Robertson was the last person using or in contact with the water wand. It is most likely that device that became the conduit for the substantial electrical discharge that electrocuted Barry Robertson.

Decision

Count One

[69] Count number one, failing as a constructor to ensure that measures and procedures prescribed were followed, is particularized with "failing to ensure an object was not brought closer than 3 metres to an energized overhead electrical conductor." There is no argument with the limits of approach as 3 metres or 10 feet. The court is satisfied that the boom of the Hydrovac came in contact with a live electrical wire and therefore within the restricted area, within the envelope. The actus reas of the offence is established; the elements of the offence are in place. The Crown has proven this fact based on a preponderance of photographic and oral evidence.

[70] The case of St. Mary's Corporation noted that due diligence requires both that procedures be taught and that there is reasonable supervision to ensure that the procedures are being followed.

[71] R. v. Stelco Inc. (1989) stated that, "I must agree with the Crown that the obligation of the constructor is much more than to simply create a system to inform employers concerning their responsibilities under the Act, it must take the next reasonable step and ensure the effective operation of the system through its supervisors."

[72] Section 183 of the Construction Regulations regarding electrical hazards notes that, "Every reasonable precaution shall be taken to prevent hazards to workers from energized electrical equipment, installations and conductors."

[73] Surely it would be a narrow interpretation of the public welfare aspect of the legislation to protect workers, and not in keeping with the purposes and objectives of the legislative scheme, to simply say that the Dig Safe crew all had electrical safety training and were responsible for their actions as an experienced crew including their Tailgate meetings. After all, one could conclude that they had successfully dug many holes using the Hydrovac truck prior to the accident. That argument cannot, however, be given much weight when the potential of death lies only a few feet above them, actually 20 feet above them in this case, each and every time they work under live electrical wires. One must remember that they are not electrical workers and yet they work beneath enough electrical current to end a life, as in this case.

[74] Did Hydro Ottawa take all reasonable precautions in the circumstances to ensure that objects would not encroach upon the envelope? Given that Hydro classified the project as high risk, the level of care required was also at the high end. To that end, the lack of inspection of this crew and its activities is concerning. What Hydro Ottawa needed to do was exercise more direct supervision of this crew and its operations. The potential danger was there with each and every hole dug under the live wires.

[75] The court is not satisfied that Hydro Ottawa took all reasonable precautions in the circumstances to protect these workers. The case of due diligence is not made out.

[76] Hydro Ottawa cannot claim that they were unaware of the high risk associated with working near energized hydro lines. The risk was categorized as a traffic threat because of the nature and configuration of the street and a risk due to the presence of a single live overhead wire while a crane device was being used below that line.

[77] There is no proof that Dig Safe was ever inspected or audited specifically regarding operational safety during the life of their project. One failed attempt does not count. This is an important point as it speaks to the issue of due diligence at the project site of a Hydro Ottawa subcontractor. It also speaks to the confidence that Hydro Ottawa placed in this company and team. Yet, this must be measured in the knowledge that this company had come under Hydro surveillance previously in matters that were less critical and more administrative in nature and still left to their own devices over and over again.

[78] Hydro Ottawa did not supervise Dig Safe. Mention was made of Rick Wallace's brief visit and although that is seen in a positive light it is not a proxy for the due diligence required in real and informed supervision and review of work procedures through Tailgate participation and observation.

[79] This crew was not designated to work with live electrical apparatus and thus was restricted from coming within the envelope based on certain limits of approach. Nevertheless, the Hydrovac boom came in contact with the energized line. No one was monitoring or reviewing the actions of the Dig Safe crew. The constructor is responsible for this crew and there are no indications of due diligence.

[80] Additionally, case law is replete with examples of the courts not condoning either finger pointing or the idea that injured workers should have known better given their training and supervision. The maxim is that the constructor is responsible for every employee and sub-contractor, period. You cannot exercise due diligence up until your workers or subcontractors go to work and then hope for the best based on that training and supervision. There is an ongoing responsibility to supervise, monitor, audit and review very specifically and importantly when there is a high risk of injury due to working so close to energized lines.

[81] The Court finds the defendant guilty on count number one beyond a reasonable doubt lacking due diligence.

Count Two

[82] Count number two, failing as a constructor to ensure that measures and procedures prescribed were followed, is particularized with "failed to ensure a competent worker designated as a signaller was stationed so that he is in full view of the operator and had a clear view of the electrical conductor and of the vehicle, and would warn the operator every time any part of the vehicle or other equipment may approach the minimum distance."

[83] The Crown referred to section106 noting that the signaller cannot do other work and that it is clear that no one was designated as signaller for this project. The evidence from Dyson and Viveiros confirmed that Robertson was operating the remote controlling the Hydrovac and the water wand at the time of the incident. Neither Dyson nor Viveiros were designated as signallers. In fact Viveiros was handling the tube extension in the hole and Dyson had walked away after using the spud bar to move a rock in the same hole. Neither was looking up at the boom and the overhead electrical wire in spite of Viveiros saying that when he operated the boom he looked up.

[84] Section 106 of the Act speaks to the identification of a signaller. In (1) A signaller shall be a competent worker and shall not perform other work while acting as a signaller. (1.1) The signaller shall wear a garment that covers at least his or her upper body and has the following features: 1. The garment shall be fluorescent blaze or international orange in colour. 2. On the front and the back, there shall be two yellow stripes that are five centimetres wide. The yellow area shall total at least 500 square centimetres on the front and at least 750 square centimetres on the back. 3. On the front, the stripes shall be arranged vertically and centred…On the back, they shall be arranged in a diagonal "X" pattern. 4. The stripes shall be retro-reflective and fluorescent. It goes on to note that (2) A signaller, (b) shall be in full view of the operator…(c) shall have a clear view of the intended path…(d) shall watch the part of the vehicle, machine, equipment or crane…whose path of travel the operator cannot see…and (3) The signaller shall communicate with the operator by means of a telecommunication system or, where visual signals are clearly visible to the operator, by means of prearranged visual signals. How much clearer could this instruction get?

[85] There was no competent worker designated as a signaller stationed so that he is in full view of the operator and had a clear view of the electrical conductor and of the vehicle to warn the operator every time any part of the vehicle or other equipment may approach the minimum distance.

[86] There is substantial evidence from the two other crew members, Vivierios and Dyson, that they were never designated as signallers. In fact, the issue of a signaller or a spotter is less than defined with them.

[87] It is clear to the Court given the statements made by Tommy Viveiros regarding spotting for himself or just looking up that he misunderstood the requirement for and the role of a signaller. Since the actus reus is self-evident given the total lack of a competent, designated signaller at all, the question is one of due diligence on a balance of probabilities. Hydro Ottawa argues that they provided training and along with the Acts and Regulations concerning this matter expected compliance. This is not satisfactory.

[88] This was a non-electrical crew not otherwise working within the EUSR, although fully within the gambit of the OHSA, associated Regulations and all other applicable Greely and Hydro Ottawa rules and procedures. The defendant failed at ensuring that a competent signaller was acting on that date, at that time. The constructor is responsible for seeing that this duty is carried out. Why else would they have audit functions and supervisory roles if not to oversee the safety of all employees?

[89] Did Hydro Ottawa exercise due diligence on a balance of probabilities? The Court's answer is no.

[90] Due diligence is more than saying they were trained or that they had material. Due diligence is more than the well-meaning caution of a Hydro Ottawa supervisor at the last minute advising someone who just looks up to watch the wires. This crew dug several holes successfully for Hydro Ottawa. There is no evidence that anyone beyond the crew was paying any attention to the danger. Where is the specific due diligence required by law?

[91] Due diligence would have included specific onsite monitoring and review of this crew directly dealing with the requirements for working near an energized line starting with a designated worker doing nothing else but acting as a signaller particularly when the Hydrovac was operating. This review function would be seen as critical in the early days and would continue with spot checks. Failure for this crew, or others, to meet that standard should result in aggressive action by the contractor. Indeed, Hydro Ottawa had previous taken action against them (Greely) for matters far, far less serious than this incomprehensible breach.

[92] Reference was made in submissions regarding Hydro Ottawa's specific enforcement of rules on this project. The Court finds that to be an exaggeration based on the evidence and outcome.

[93] It is telling that Alan Dyson noted that there was no discussion about a signaller during the Tailgate meeting and review of the prescribed boxes. If there was no discussion about the need for a signaller and who that would be then it begs the question: Who is looking after the safety of these workers?

[94] The Court accepts that neither Viveiros nor Dyson were acting as signallers or even spotters at that time.

[95] Given that all three members of the crew were busy at tasks other than being a spotter or a signaller, the actus reus of the offence is made out. The elements of the offence are in place. The equipment had the potential to enter the restricted air space, the limits of approach, and with no signaller did in fact do just that.

[96] The Crown has proven its case beyond a reasonable doubt and the Court does not accept that a reasonable person would accept a brief encounter at the end of a shift, a missed audit or non-participation in a Tailgate as adequate due diligence.

[97] Defence has argued that the communications line is a warning line approximately ten feet off of the ground. It is true that such a substantial line in the sky is more visible than the collection of electrified lines often 30 feet above the ground. Nevertheless, it does not represent or substitute for measures and procedures or a spotter/signaller. It is simply one other line in the sky and as such can be just as often missed or forgotten.

[98] The issue of the discrepancy between Wallace and Viveiros about a caution just prior to the accident regarding the electrified overhead wire is not a mystery to the Court. Whereas Viveiros did not give any statement to the investigators for some time after the accident on the advice of a Greely lawyer and his subsequent statements did not line up with Dyson's or Wallace's recollections, Rick Wallace appears to the court to have acted logically and consistently given the situation. The Court gives no weight to the issue of his initial court statement lacking the profanity clarified at a later date. It is not unusual to show deference in a court of law and to avoid profane language. Wallace was not the Dig Safe supervisor and only acted after a fellow Hydro Ottawa employee raised a question about the Dig Safe crew who were working alone under live wires. He left this issue until the end of his work shift under the belief that others were monitoring Dig Safe and only then, after retrieving a sign, stopped by to briefly give Tommy Viveiros the warning about the overhead wires. This is the sign of an experienced supervisor who acted on his gut-concern when the opportunity arose outside of his normal work parameters. If his advice had been followed we would not be here today.

[99] The suggestion that signallers were used by Greely is too broad a statement and inconsistent with the observed practice, at probably some 100 hole sites, by this crew, to give any weight to that line of defence.

[100] The underlying lack of understanding of the signaller role is incomprehensible. Hydro Ottawa understood the importance but lacked the supervisory where-with-all to properly monitor and control their sub-contactors' day to day operations.

[101] The Court finds the accused guilty of count two beyond a reasonable doubt failing to raise a due diligence defence.

Count Three

[102] Count number three, failing to ensure that measures and procedures prescribed were followed is particularized with "failed to establish and implement written measures and procedures adequate to ensure that no part of a vehicle or equipment encroaches on the minimum prescribed distance when a vehicle or other equipment is operated near an energized overhead conductor and it is possible for part of the vehicle or other equipment to encroach on the prescribed minimum distance and failed to make the written document available to an employer on the project."

[103] These same regulations require the constructor under 181(1) subsection (5) to 1. (to provide) Adequate warning devices, visible to the operator and warning of the electrical hazard, shall be positioned in the vicinity of the hazard. 2. The operator shall be provided with written notification of the electrical hazard before beginning the work. 3. A legible sign, visible to the operator and warning of the potential electrical hazard, shall be posted at the operator's station. Subsection (6) (notes that,) Before a worker begins work that includes an activity described in subsection (3), the employer shall provide a copy of the written measures and procedures to the worker and explain them to him or her.

[104] Documentation shows that the Greely Dig Safe crew was trained in areas of electrical safety both by Greely and Hydro Ottawa. It is important here to keep in mind that this crew was not approved for electrical work. This crew was to work in and around live wires, but not under any circumstances encroach upon the regulated limits to keep outside of the 3 metre/10 feet envelope.

[105] The issue of written documents is problematic to a degree. There is no question that at the high end Hydro Ottawa prepares documents related to training and worker safety and they train not only their own employees, but also contractors. They certainly have established and implemented written measures and procedures as discovered in oral testimony and via documentary evidence. Through this training they cover EUSR and OHSA regulations and directions.

[106] Is that adequate remembering that the Crown must establish the elements of the offence and then prove their case beyond a reasonable doubt? Did the contractor fail to establish and implement written measures and procedures that were adequate for this project?

[107] Greely was the employer of Dig Safe and there is evidence that Greely and Dig Safe representatives participated in Hydro Ottawa training and the procurement process as well as having to sign off on safety matters over and over again. Greely also had their own safety regime that, given the various government and other regulations, would likely parallel to some degree those of Hydro Ottawa.

[108] There is evidence that Hydro Ottawa has a system of safety checks not just within their own operation but also associated with the hiring of contractors which addresses the delivery of safety based training and awareness to the contractors.

[109] When the Court looks at the macro and micro evidence of training and testing and written material used to educate and enforce the rules and regulations embodied in the OHSA, the Regulations, EUSR, Greely training and Ottawa Hydro procurement and training, along with the crucial Tailgate procedures and documents and the awareness by the crew members of the ten foot rule, the Court finds that there was an abundance of measures and procedures in place that should have been adequate to ensure compliance. Simply creating more documentation would be more of a problem than a solution however.

[110] There is evidence that Hydro Ottawa has a screening process and training elements throughout the procurement and initiation phases to the commencement of and continuation of projects. However, the charges before this court are particularized to a specific event and the specific individuals who were involved at that time and date. This case speaks to how Hydro Ottawa handled that specific event taking into account the macro safety program and drilling down to the micro incident itself.

[111] Evidence was produced showing that Tommy Viveiros had training in the Electrical Utility Safety Rules (EUSR) and specifically rules 128 (energized lines) and 129 (safe limits of approach) plus electrical awareness, confined spaces, WHMIS, traffic control, first aid/CPR, Tailgate meetings and documentation. At the time of the accident, the training and documentation would have been current.

[112] There was safety documentation issued between Hydro Ottawa and Greely (Dig Safe). This would lead the Court to further question whether all of the elements of this offence are in place given that various written documents and procedures were undoubtedly made available to Greely-Dig Safe over time and in various ways including the details of a Standing Offer for digging holes as needed. What we know is there were Dig Safe Tailgate meetings with a prescribed document that spoke to these very concerns. The problems in the two previous charges were with supervision, monitoring and oversight extending to participation in Tailgate sessions. This process is persuasive as it relates to this issue.

[113] Clearly, there are well established macro level measures and procedures forbidding entry into the limits of encroachment including EUSR rules, the OHSA and Regulations plus Greely and Hydro Ottawa documents and regularized training. Clearly the crew members knew about the 3 metre – ten foot rule for non-electrical workers given the evidence before the Court. There is also signage regarding the electrical shock danger on the Hydrovac truck that relates to this issue plus evidence of procedural training from Greely and Hydro and separate union training.

[114] Critical to this issue is the Tailgate meeting and documentation as it relates to adequacy. This was the first day that an electronic communication device was used instead of the usual written or tick box. The idea of the crew going over box-by-box the job at hand and both the stages and steps of the job as well as the safety concerns with actions to alleviate those concerns is appealing. This would be appealing as long as it does not become learning by rote or simply another annoying administrative paper exercise without substance. The Court notes that the difference would lie in the hands of the supervisor and hence the commandment to pick competent supervisors that can gain the respect of the workers.

[115] The Court accepts that the Tailgate meeting and written documentation is the opportunity for the delivery of the day's work procedures. It may not be perfect, but it is a review in a written, or electronic form detailing with the tasks at hand delivered by someone who at least acts as the scribe and reviewer. This would normally be the role of a designated supervisor and forms some part of adequacy in this matter.

[116] The Court finds that in count number three the elements of the offence are therefore not sufficiently in place and the charge will be dismissed given that there is a reasonable doubt before the court.

Count Four

[117] Count Four has to do with taking every precaution to prevent hazards to workers from energized electrical devices. Details are given regarding what that precaution entails. One specific is the height of the energized overhead wires. It is again self-evident that the Hydrovac came in contact with the live overhead wire. The elements of this charge would include the specific particulars and in the case of the height issue would include letting the crew know the height of the live wire and ensuring that a procedure was in place to provide a safe work environment specifically to address the over-riding rule not touch the energized line.

[118] The question is did the defendant fail to take every reasonable precaution as seen by that reasonable person with good common sense? Those precautions deal with discussing the height of an energized overhead wire to ensure the awareness of the danger and the steps necessary to deal with the danger.

[119] There was no mention of the height of the wires to the crew and no evidence of watching the crew just as there was never any serious enquiry about a signaller or spotter, and certainly no review of the Tailgate process.

[120] Evidence was shown that Hydro Ottawa rated this as a High Risk Project both from the traffic control aspect and the live overhead wires. Hence, it would be important to make sure the crew was well aware of the height of the overhead, live wire and never more so when it was only 20 feet above them.

[121] The Court agrees that a non-electrical crew operating elevating equipment capable of penetrating the electrical envelope of energized wire in a high risk project required more reasonable attention than was shown. There is no way to rationalize not making sure that the crew was aware of a 20 foot electrical separation. It was not reasonable to assume any particular competence in electrical matters from a non-electrical crew.

[122] The actus reus is apparent and the elements of the offence are proven beyond a reasonable doubt. With the exception of Rick Wallace's last minute caution that we cannot even be sure was heard properly or accepted, no one informed this crew of the overhead energized wire.

[123] The Court finds that on count number four the elements of the offence are established and proven beyond a reasonable doubt with no due diligence proven on a balance of probabilities.

Count Five

[124] Count number five has been identified by the Crown as equivalent to number four in that four relates to a constructor and five to an employee. The Crown has recommended that should there be a conviction on number four that a stay of the charge listed as number five would be appropriate based on the Kienapple Principle. The Court agrees.

[125] Count number five will be stayed.

Justice of the Peace Brian Mackey