COURT FILE No.: 130127 City of Kenora

DATE: 2015-10-06

CITATION: R. v. Ash Rapids Camps Inc., 2015 ONCJ 648

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

ASH RAPIDS CAMPS INC.

Before Justice of the Peace D. MacKinnon

Heard on September 15 and 16, 2015

Judgment released on October 6, 2015

D. McCaskill ....................................................................................................... for the prosecution

T. Johnson ........................................................................ for the defendant Ash Rapids Camps Inc.

JUSTICE OF THE PEACE D. MacKinnon:

[1] A trial of this matter was held on September 15 and 16, 2015. Further time was granted for the Crown and the Defendant to submit cases or argument related to s.25(1)(d) during the week of September 21, 2015. I reserved my decision to today’s date.

INTRODUCTION

[2] The Defendant , Ash Rapids Camps Inc., is the owner of a tourist lodge on Lake of the Woods in the District of Kenora. On June 2, 2012, a boat operated by an employee of the resort, Terry Greene, was being driven down the lake when it suddenly veered to the right and crashed into a rocky shoreline. Two guests of the lodge who were in the boat, Robert Foster and James Seeney, were killed by the impact. Terry Greene suffered serious head injuries.

THE CHARGES

[3] The Defendant faces two charges to which it has pleaded not guilty:

Count 1. Failing, as an employer, to ensure that the equipment provided by the employer was maintained in good condition, at a workplace located at Lake of the Woods, Ontario, contrary to s.25(1)(b) of the Occupational Health and Safety Act;

Particulars: The Defendant failed to ensure that the steering friction adjuster on Yamaha F50 outboard motor was maintained in good condition.

Count 2. Did commit the offence of failing, as an employer, to ensure that the protective devices provided by the employer were used as prescribed, at a workplace, located at Lake of the Woods, Ontario, contrary to s.25(1)(d) of the Occupational Health and Safety Act;

Particulars: The Defendant failed to ensure that an engine shut-off lanyard was used as prescribed.

THE EVIDENCE

[4] I accept the following facts, which were not disputed:

1. The Defendant, Ash Rapids Camps Inc., is a valid Ontario corporation as set out in the Corporation Profile Report which is Exhibit 1 in these proceedings;

2. The Defendant is the owner of Ash Rapids Camps which is a tourist resort located on Lake of the Woods near Kenora, Ontario;

3. On June 2, 2012, the Defendant was an employer and Terry Greene was an employee of the Defendant, as defined by the Occupational Health and Safety Act;

4. The boat and motor driven by the employee on June 2, 2012 was owned by the employer and provided to the employee;

5. The boat and motor driven by Terry Greene crashed into the rocky shoreline on Lake of the Woods;

6. The crash resulted in the deaths of Mr. Robert Foster and Mr. James Seeney, and serious injuries to Terry Greene, an employee.

Evidence of Rodney Oberg, Inspector

[5] Rodney Oberg has five years of experience as an inspector for the Ministry of Labour. He was assigned as the lead investigator of this incident, and attended at the scene on Ash Bay on Tuesday, June 5, 2012. He took numerous photos and interviewed Andrew and Tannis Clinton, owners of the corporation, Terry Greene, Gerald Redsky, Chris Deslaurier and George Landon Jr.

[6] His field report is dated June 4, 2012 , rather than June 5, 2012 as this was the start date of the file but not the date of the field visit. Mr. Oberg issued orders on that date for employment records, training manuals, policies and procedures and the immediate implementation of interim safety measures.

[7] On June 8, 2012 another order was issued which required the use of lifejackets, tether cords, instruction to employees regarding communication, the proper use of boats on the lake and a boating pre-operation check list. The Defendant was required to develop policies and procedures related to boat operation. Mr. Oberg further required documents and information. The Ministry was satisfied that the Defendant complied with these orders.

[8] The boat and motor were left in the possession of the Ontario Provincial Police for accident reconstruction and their investigation. This included testing at Wharf Power Sports, a local boat and motor repair shop. This assessment was provided to the inspector.

[9] In addition, it was clear from the evidence of the witnesses that none of the guides for the lodge wore their tether shut-off strap. This strap is tethered from the motor to the driver. If the driver moves 24-30 inches from the motor, for example while being thrown forward, the tether will pull and shut off the motor automatically.

[10] George Landon Jr. could not be located to be summoned to court. The statements of George Landon Jr. taken by the inspector were entered as exhibits on consent.

[11] In his statements, Mr. Landon indicates that he was employed as a guide by the Defendant. On June 1, 2012, he brought a 17.5 foot Lund boat with a 50 hp Yamaha motor, to the landing on Kenricia Road. The next morning, June 2, 2012, Landon drove himself and Terry Greene from the landing to the resort owned by the Defendant Corporation. He noticed that the Yamaha motor pulled to the left and that he had to hold on tight to the throttle handle. Friction was medium but it pulled to the left. However, it was not loose or floppy. He did not talk to Andrew Clinton about the boat as everything seemed to be fine.

[12] Mr. Oberg’s conclusions are found in the charges which have been laid.

[13] On cross examination, Mr. Oberg agreed that he could not say if the steering friction tensioner did not work prior to the incident, but it did not work after the incident. He agreed that, in regard to the tether strap, the operator would need to be thrown 36 inches from the motor for the tether strap to shut off the engine.

[14] In regard to the count in the information alleging that the employer failed to use protective devices “as prescribed”, the inspector stated that his position was that the term “as prescribed” meant that the procedures set out in the manufacturer’s instructions and manual related to the lanyard had to be followed.

Evidence of Christopher Deslauriers

[15] Mr. Deslauriers has been the owner of Wharf Power Sports for six years and has worked there since 2003. His shop repairs small recreation vehicles including boats and motors, snowmachines and atv’s . He has been working as a small motors mechanic since his college training thirty years ago. He has also received training offered by various manufacturers. He was asked by the Ontario Provincial Police to examine the boat and motor from this accident and give a report as to its mechanical condition. He was familiar with this type of boat and motor.

[16] The Yamaha motor on this boat was water cooled. There was a trim control on the motor and one on the handle. If the trim is up too high, the front of the boat bounces. This is called porpoising. Any porpoising of the boat would occur through an operator trim issue. Improper trim can affect the operation of the boat and can throw off the front of the boat. It does not put pressure on the tiller handle or cause the boat to turn. The trim on the boat when tested worked fine.

[17] The tiller handle moves the motor. He noted that the tiller handle function for steering was loose. The physical side to side movement of the motor had no restriction - it moved side to side freely.

[18] Mr. Deslauriers identified that the steering friction adjuster (tension controller or co-pilot) was not operating per specifications and did not function. It is a safety feature. All tiller handles have it.

[19] The steering tension is adjusted in two ways. There is an adjustment lever for steering resistance which is available to the driver. The lever is found on the tiller handle. If it is adjusted to the port side, tension is increased on the steering. If the adjuster is turned to the starboard side, the tension is lessened. For example, when tension is increased, turning the motor with the tiller handle becomes more difficult and stiffer. If tension is decreased, the tiller handle is easy to turn. Some drivers may wish to have a stiffer tension on the tiller handle so that the boat may continue to travel in the chosen direction and be changed only purposefully.

[20] If adjusting the tension by use of the lever does not work, there is a nylon nut under the steering friction tensioner. When the nut is turned, it pushes a set of pads, like brake pads, to tighten the tension on the adjuster. The pads actually “squish together”, according to Mr. Deslauriers, to create resistance on the movement of the tiller handle.

[21] The nylon lock nut is the starting point for the resistance. This is not an adjustment that can be done “on the fly”. It must be done at the dock with a wrench. (In fact, the manufacturer’s instruction shows that it must be torqued, using a torque wrench.) Eventually the braking pads can wear out over time and have to be replaced.

[22] The only way to identify if the steering tension adjuster was not functional would be by driving it. It is not obvious by looking at it. In his examination, Mr. Deslauriers did not open the steering friction adjuster or turn the nylon lock nut to see if tension would increase. This was at the request of the Ontario Provincial Police who wanted to test the motor as it was, on the lake. Vibration and the accident could not affect the nylon lock nut.

[23] When asked about the effect of a defective steering friction adjuster on the steering of the motor, he stated that it is difficult to say how it may affect operation, as it depends on the operator. Mr. Deslauriers testified that the boat can definitely take an abrupt turn to the right if your hand comes off of the tiller handle and the tension is adjusted too low.

[24] Mr. Deslauriers indicated that he personally would operate the boat with the adjustment of the tiller handle in the loose condition as he prefers the maneuverability that the freedom of the tiller handle offers. However, the torque at high speeds would not be advisable for more inexperienced drivers.

[25] On cross examination he stated that the damage to the boat was consistent with hitting the rocky shore at high speed. The boat/motor combination was an ideal combination.

[26] In regard to the steering tension adjustment, most operators prefer no resistance on the motor and turn the adjustment lever to reduce the tension.

Evidence of Terry Greene

[27] Terry Greene was hired by Ash Rapids Camps Inc. that day to guide two bass fishermen on Lake of the Woods. It was his first day of the new season as a casual employee. Mr. Greene had 40 years of experience as a guide on Lake of the Woods and about 30 years for the Defendant. He arrived at the landing with George Landon Jr. on Kenricia Road to drive to the resort. The boat waiting there for them was a 17.5 foot Lund and the motor was a 50 HP Yamaha . The boat was the same as those Greene had used in the past, but the motor was not familiar to him.

[28] Mr. Greene testified that the drive from the landing to the resort in the boat and motor was rough and the boat kept bouncing. He was sitting in the front. He told George Landon Jr. to stop the motor and wanted him to trim the motor down. He said that it was trimmed right down. If the tilt is up so high, you can usually trim down to plane out properly. They tried to adjust it but had to get going. George told him that the arm was loose and you had to hang on to the tiller.

[29] At the resort they had breakfast. At the dock, Andrew Clinton, the supervisor, told Mr. Greene to take the same boat and motor, as it was already loaded with his equipment. His evidence was that he told Mr. Clinton that the boat was “not fit to be on the water” because it was porpoising. He was told to take it anyway as it was the only boat available. He did not want to argue with his boss. He drove to the other dock and picked up his two tourists and went out on the lake fishing.

[30] During the day the motor was hard to steer as he had to hold onto the tiller. If you did not hang onto the tiller, the motor would slide either way. It was very hard to control. It was the same as it was in the morning.

[31] About 4:05 p.m., one of the tourists was returned to his cabin as he was tired and aching. Mr. Greene returned to their cabin’s dock, leaving that tourist there but taking another with him for the remainder of the fishing day, which usually ended about 5 p.m. He did not speak to the boss.

[32] The guide, Terry Greene, and the two guests, Mr. Foster and Mr. Seeney, fished in an area about ten minutes away from the resort, east into Ash Bay. They were about 40-45 feet from the shoreline.

[33] When the time came for the party to return to the resort about 45 minutes later, the guide started the motor and started to drive. The boat was getting up to speed about 25 to 30 kph. He came from the point out toward the middle of the lake, about 30 to 40 feet from the shore. One tourist was in the front chair and the other in the middle chair.

[34] His pail lid was bouncing. Using his legs to pull the pail toward him, he slammed the lid with his right hand. His left hand was on the tiller. Suddenly, it felt as though he hit a log, a deadhead, a turtle or something. It pulled the tiller handle out of his hand and the boat turned sharply to the right as the tiller went to the left. He fell to the bottom of the boat between the gunnel and the seat. He tried to get up to grab the tiller handle but was unable to. This was the last thing he remembers. Within a few seconds, the boat tilted to the right and started to drive to the right, directly into the rocky shore.

[35] Mr. Greene was not wearing the tether strap for the engine shut off. No one required it and he did not see any other guides wearing it.

[36] Mr. Greene stressed that he was familiar with tiller arms and that the steering that day was not good. Usually there was a mechanism to tighten steering, but it wasn’t there at all.

[37] On cross-examination Mr. Greene knew it was a trim problem initially but later when he drove the motor himself he determined that it must be a friction problem. With the boat bobbing up and down like crazy, he trimmed it down all the way to the bottom.

[38] Mr. Greene was asked about differences between his evidence at trial and his statements given at the hospital after the event and about three weeks later. The differences relate to the estimate of the boat’s distance from the shore just prior to the crash and how the crash actually occurred. He denied letting go of the tiller handle in order to grab his gear pail.

[39] Mr. Greene states that the accident, his concussion and brain injury contributed to the earlier errors in his statements.

Evidence of Andrew Clinton

[40] Mr. Clinton and his wife are the owners of the corporate Defendant. His family had owned the resort for years, sold it, and then bought it back later. He manages the resort. He does the mechanical maintenance himself unless it is a major job. He sees the guides each day before they go out. He denies that he was told of any problem with the motor on the boat driven by Terry Greene.

[41] There is a seasonal maintenance check on the motor but it does not include the tensioner. Every guide likes a different adjustment of the tension. The guides adjusted it themselves. Sometimes the tensioner would even be broken and he would not be told. They also decided whether to wear the tether strap. There were no written policies to deal with these items at the time – a situation which has been remedied.

ONUS

[42] The onus is on the Crown to prove the elements of the offences beyond a reasonable doubt. As both charges are strict liability offences, the onus would then shift to the Defendant to show due diligence or mistake of fact.

DECISION

[43] The events of June 2, 2012 were a tragedy for everyone involved. Not only did Robert Foster and James Seeney lose their lives, Terry Greene suffered permanent injuries. The resort owners have clearly been impacted by this accident.

[44] This proceeding is not a coroner’s inquest. It is not a criminal proceeding. It is a regulatory proceeding to determine if the employer has complied with the Occupational Health and Safety Act, a public welfare statute.

Count 1

[45] This charge alleges that the employer failed to ensure that the equipment, that is, the steering friction adjuster on the Yamaha F50 outboard motor was maintained in good condition, thus violating s.25 (1)(b) of the Occupational Health and Safety Act.

[46] The evidence of Terry Greene substantiates that something was wrong with the operation of the boat motor on the day of the accident. Both he and Chris Deslauriers agreed that the porpoising of the boat described earlier in the day is usually the result of a problem with the trim. Greene indicated that the trim was adjusted to the bottom.

[47] In regard to the steering friction adjuster, Chris Deslauriers, the OPP report and Terry Greene all indicated that the steering was loose and that the tiller handle would swing if not held tightly. This free movement indicated no resistance on the steering.

[48] The resort manager, Andrew Clinton, did not indicate that the steering friction adjuster was assessed by a test operation, as suggested by Chris Deslauriers, and then adjusted at the dock at any time prior to the commencement of the season in 2012, or as an ongoing maintenance concern. The employer’s position appeared to be that adjustments could be made by the employees as they wished.

[49] I must determine if the reason for the lack of resistance on the steering was the result of a failure to maintain the motor in good condition. I am not required, and the Crown is not required to prove, the cause of the accident.

[50] The lack of resistance was noted by Terry Greene on the day of the accident, Chris Deslauriers upon testing after the accident, and Officer Evans who drove the motor after the accident. I conclude that the steering had no resistance.

[51] Was the lack of resistance a result of the failure to maintain the motor? Chris Deslauriers testified that he would and has driven a motor with the resistance at this level, as he was an experienced driver capable of handling this motor with loose steering in possibly difficult conditions. Officer Evans did not feel safe driving the motor without tension resistance on the steering. Deslauriers testified that the resistance can be adjusted to such a low or non-existent level and is desired by many operators.

[52] Was the low resistance the result of a lack of maintenance or a choice by someone who preferred low or little resistance and who knew how to adjust the tension lever or to turn the nylon nut under the steering friction adjuster? Terry Greene said that there was no lever to adjust. He did not appear to know how to adjust the steering tension on the Yamaha motor.

[53] The pads in the tension adjuster are “squished” together by movement of the nylon nut. The pads can wear out, which means they will no longer push to create resistance. If the pads were worn out, the employer can be said to have failed to maintain the steering friction adjuster by failing to replace the pads.

[54] Unfortunately, Chris Deslauriers was unable to open the steering friction adjuster to identify the level of wear on the internal pads, as a result of the direction he understood from the Ontario Provincial Police. This would be akin to determining the brake system on a vehicle was not maintained, without removing the tires and opening the brake calipers. He could not view and assess the condition of the steering friction adjuster.

[55] In addition, Deslauriers was not allowed to turn the nylon nut to identify if tension could have been increased, and show that the maintenance issue was a failure to adjust the tension.

[56] Other than the acknowledgement that there was no resistance on the steering friction adjuster, there is no evidence that this condition was the result of a failure to maintain this motor.

[57] For these reasons, I find that I have a reasonable doubt as to the source of the lack of resistance on the steering friction adjuster and whether the lack of resistance is the result of a failure to maintain this component of the motor. The Crown has failed to prove this charge under s.25(1)(b) of the Occupational Health and Safety Act and a finding of not guilty will be entered.

Count 2

[58] The allegation in this count is that the Defendant failed, as an employer, “to ensure that the protective devices provided by the employer were used as prescribed” contrary to s.25(1)(d) of the Occupational Health and Safety Act. The protective device reference in the particulars is to the engine shut off lanyard, also referred to as the tether strap.

[59] The term “prescribed” is defined in the Act in s. 1(1):

“prescribed” means prescribed by a regulation made under this Act.

[60] This charge does not include reference to any regulation which sets out the mandatory use of this piece of safety equipment. The inspector, in his evidence, agreed that there wasn’t any regulation dealing with the use of a tether strap as a protective device. In fact, he stated that there were no regulations under the Occupational Health and Safety Act dealing with the guiding or boating industry.

[61] The Crown and the inspector submitted that there is no need for a regulation to be tied to this count as the term “as prescribed” could relate to requirements in the manual provided by the manufacturer. In other words, I am being asked to read instructions from the manufacturer into the definition of “as prescribed”.

[62] With respect, the case of R. v. J.P. Pierman Construction Limited 1990 2 COHSC 156, referred by the Crown, is distinguishable from the case at bar. In that case, each count on the information which used the term “as prescribed” also referred to a regulation. The decision relates to whether a failure to provide the protective devices is the same as whether the devices were used.

[63] The Occupational Health and Safety Act is to be generously interpreted to ensure that its objectives of protecting workers can be met. The legislature, however, specifically defined the term “prescribed” in the Act, so that there was no ambiguity about the extent to which this term should be interpreted.

[64] Tying this term to regulations appears to have been done to grant the right to the Lieutenant Governor in Council to produce regulations which are necessary and reflect workplace needs regarding safety. When the specific requirements are clearly articulated in a regulation, employers are not taken by surprise. Employers can adapt their policies and procedures to meet specific expectations in the employment environment.

[65] The Court of Appeal dealt with the lack of a regulation in the case of Her Majesty the Queen (MTO) v. Quality Carriers Inc. and Randy Banning 2009 ONCA 523. Under the Highway Traffic Act, a regulation existed which defined a critical defect under s.82(1) for the purposes of that section. The more serious offence in s.84(1.1) of the Highway Traffic Act noted that the defects in this provision were “as defined by the regulations”. No regulation existed which defined these terms for s.84(1.1). Could the definition for s.82(1) be imported to the other section? The Court of Appeal refused, saying:

[22] It is true that this creates a gap in the legislative scheme. There is no regulation prescribing what is a critical defect for the purposes of s. 84(1.1). However, that does not render the offence section unworkable. Section 84(1) has operated for many years without s. 84(1.1). Moreover, if the absence of a regulation applicable to s. 84(1.1) is considered a gap, it is not the role of the courts to determine how it should be filled. See Beattie v. National Frontier Insurance Co. (2003), 2003 2715 (ON CA), 68 O.R. (3d) 60 (C.A.), at para. 18.

[66] It is not the role of this court to interpret “as prescribed” in a way that contradicts the definition in the statute, in order to fill a legislative gap. Even if the meaning was extended to include manufacturer’s requirements, the only such instruction is a diagram on Exhibit #8 from the manual - inadequate, in my view, to instruct on the use of the lanyard.

[67] For these reasons I determine that the absence of a regulation identifying that the tether strap is required for safety in the workplace is a fundamental defect in this charge under s.25(1)(d) of the Occupational Health and Safety Act, and that the Crown has failed to prove an element of the charge, that the use of the engine shut off lanyard is prescribed, beyond a reasonable doubt.

[68] A not guilty finding will be entered on this charge.

Dated at the City of Kenora this 6th day of October, 2015

Justice of the Peace D. MacKinnon