Court File and Parties

Court File No.: Brampton 13-000526 Date: 2016-05-06 Ontario Court of Justice

Between:

Her Majesty the Queen in Right of Ontario (Ministry of Labour)

— AND —

Wal-Mart Canada Corp.

Before: Justice Nancy S. Kastner

Heard on: January 12, January 13, 2016 and February 9, 2016

Reasons for Judgment released on: May 6, 2016

Counsel:

• Ms. Catherine Glaister, counsel for the Crown, Ministry of Labour
• Mr. Robert W. Little, counsel for the defendant Wal-Mart Canada Corp.

Contents

• Introduction
• Factual Background
  • The Store
  • The Worker
  • The Incident
  • Witness Workers
  • Management
    • A. Training
    • B. Policies
    • C. Safety Committee
  • Investigation of Incident
    • Wal-Mart in Brampton
    • Ministry of Labour
• Legal Overview
  • Occupational Health and Safety Act
  • Regulations
  • Penalty Section
  • Strict Liability & Due Diligence
• Analysis and Application of Principles
  • Actus Reus: Was the Empty Pallet or Skid a Hazard or Obstruction?
  • Due Diligence
    • A. Defendant's Position
    • B. Crown's Position
    • Analysis
      • Conduct of the Worker
      • Employer
      • Non-Production of Records
• Conclusion

Introduction

KASTNER J.:

[1] An empty wooden pallet lay on the floor in the receiving area of a local Wal-Mart Store. It was not supposed to be there. A maintenance worker was offloading a full pallet of toilet paper from a truck pulled up to the receiving area onto a pallet jack, or pump truck; and then onto the receiving area floor en route to the retail area. He walked backward as he left the truck door and merged to the floor. He tripped on the empty pallet and fell. His head hit the stacks of items piled on the other side of the pallet, and he fell on his bottom. He complained about his hand and his head. He did not formally report the incident that day, nor did two other employee witnesses to the event.

[2] He complained of a headache and called in sick the next day. The employer asked him to come in to report the incident, and he did this; albeit with complaint of discomfort. He never returned to work and he died two weeks later in hospital. The Crown conceded she could not prove the accident was a contributing factor in the worker's death.

[3] The defendant corporation faces a charge under the Occupational Health and Safety Act (OHSA) of failing, as an employer, to ensure that the measures and procedures prescribed by Regulation were carried out at a workplace; namely that the floor be kept free of obstructions, hazards, and accumulations of refuse, snow or ice.

[4] Wal-Mart Canada Corp. is a corporation, whose principal place of business in Ontario is in Mississauga, and is an "employer" within the meaning of the OHSA. The deceased was an employee of the defendant for many years.

[5] Counsel have diligently narrowed the issues in the trial, and I thank them both for the very professional, focused and helpful submissions.

Factual Background

The Store

[6] On Sept. 20, 2013, the Wal-Mart Supercentre Store at 70 Coventry Road in Brampton was having its Anniversary Sale. The store was busy and stock was moving.

[7] The retail portion of the store has continuous stock of retail goods which are shelved and excess is stored in its receiving and warehouse area, and from the goods contained on trucks pulled up to the dock doors. Many of the goods are stored on wooden pallets, and stacked high to create a type of wall in the receiving area. Some goods behind those pallets are on shelving or racks.

[8] Wal-Mart requires that aisle ways in the back warehouse area be maintained for a clearance of at least three and one half feet (or 42 inches) width at all times. This would be a tight minimum for the passage of pallet jacks loaded with palletized merchandise, as the width of such a load is 40 inches, and the length of 48 inches.

[9] Some photographs were tendered by the Ministry of Labour Inspector Hardeep Randhawa, taken on October 7, 2013, depicting the area of the event in the back receiving area of the store. He also photographed the approximate location of the empty pallet according to Mr. Novielli, and measured distances.

[10] The management of the store did not take photographs at the time of the incident or the report. One photo was tendered taken by Mr. Robitaille at an unknown time on his cellphone and a copy of a photograph was signed by Mr. Novielli on Dec. 23, 2015, three months later, when attempting to re-enact the setting of the incident.

[11] The photographs show, inter alia, an empty pallet sticking out from the row of full pallets in front of the shelving.

[12] There is no way to know exactly what goods were stacked on the pallets that the deceased fell against, but they were likely hard items.

[13] The area where the empty pallet was estimated to occupy was almost directly in front of the dock doors to the stationary trucks outside, positioned right against the pallet wall annexed to the racking. This area is a hub area, with a cardboard baler machine just to the right and across the aisle, and a moveable dock plate just inches away.

The Worker

[14] Lorenzo Tagliacozzo, a maintenance "associate" (employee) at Wal-Mart was working in the warehouse or receiving area of the store at the time of the incident. His usual duties were janitorial.

[15] He had been working for the defendant since Feb. 8, 1999, and unloaded trucks only in the period from Feb. 8, 1999 until May 5, 1999. Thereafter, he held positions of night maintenance, sales floor associate, IC Team, Tire & Lube technician, and day maintenance. He had essentially been a janitor since late 2011.

[16] His training records are before the court as a trial exhibit. They show that he read a handbook about policies and programs in place as at Feb. 11, 1999; and that he read Wal-Mart Canada Corp.'s Health and Safety Handbook on Jan. 30, 2012.

[17] A "New Associate Safety Checklist-Department Specific" form was filled out on Jan. 20, 2012. This ostensibly coincided to his movement to the maintenance department. He also acknowledged a Job Hazard Analysis for Day Maintenance. This included the risk of foot injury from use of pump trucks or pallet jacks.

[18] Performance appraisals filed show him to be a reliable worker complying with health and safety policies. Discipline Policy records of a verbal warning were filed for taking an extra break in 2012 and for "using inappropriate language" in 2013. Two written warnings followed the same year for using inappropriate language in front of associates and customers, and for damaging some bikes while putting them into bins. These are unrelated to the incident in question. None of the performance appraisals or discipline history show any concerns for complying with corporate safety policies.

[19] A computer log of self-taught reviews of policies covered the period of 1999 to 2013. It included such things as price changes, sexual harassment, customer greeting, recycling, and credit cards. Test questions followed the informational component, and he had to achieve a high percentage of correct answers to pass.

[20] The deceased completed a basic General Equipment – CBL (Computer Based Learning) Manual and Storyboard in June 1999 and one for Power Equipment in November 2000. The records do not show any updated learning in these areas, or refreshers.

[21] From company records, it looks like much of the deceased's workload since 2012 was cleaning washrooms and spills throughout the store.

The Incident

[22] On September 20, 2013, Mr. Tagliacozzo was working in the warehouse area at the Wal-Mart Supercentre retail store.

[23] A co-worker, Donato Novielli, saw Mr. Tagliacozzo falling over the empty pallet on the floor. Mr. Novielli had been at the cardboard baler machine directly across but slightly to the right of the pallet for approximately one or two minutes. He started to warn him but was too late.

[24] Another co-worker, Mr. Wynter, did not see the deceased worker's fall but he heard it. Mr. Wynter described the noise as sounding, "like a skid being slammed on the floor." By the time Mr. Wynter arrived, Mr. Tagliacozzo was already standing. Mr. Wynter asked Mr. Tagliacozzo if he was alright, and he said yes.

[25] Later the same day, a co-worker, Gangaram Samaroo, saw Mr. Tagliacozzo in the lunchroom. Mr. Tagliacozzo had ice on his hand. Mr. Tagliacozzo said that he fell while he was pulling a skid from a trailer, and he fell over an empty skid. He said he was facing the pallet jack and his back was to the empty skid. He said that he hurt his head. He seemed okay.

[26] The next day, Mr. Tagliacozzo reported the incident by telephone to the workplace. Mr. Tagliacozzo was asked to come to the workplace to report the incident, and he arrived in the late morning. Mr. Tagliacozzo said he had a headache and complained about being required to attend in person to do the paperwork. Mr. Tagliacozzo reported to management that the accident occurred toward the end of his shift around 3:00 p.m.

[27] He reported that he had gone into the trailer to get a toilet paper skid. He said when he went into the trailer; there was no empty pallets on the floor. He said, "as he was pulling a double stacked skid backward with the manual pump truck, he tripped over the empty skid on the floor and hit the back of his head on a full pallet." He also reported his backside came in contact with the empty pallet. He did not hit his head on the floor, but his left hand had also hit the full skid, and he had discomfort from it.

[28] The store had Closed Circuit Television (CCTV) in some areas. There is no video of the receiving/warehouse area near the cardboard baler and the dock doors to the truck unloading area, the area where the incident occurred. None of the videos shows Mr. Tagliacozzo unloading skids from the trailer, or falling, as no camera was pointing in that direction.

[29] Some CCTV footage from the store on September 20, 2013 was entered as an exhibit, which shows Mr. Tagliacozzo working normally taking skids of toilet paper from the back area of the store to the retail floor using the manual pump truck and walking to the back area of the store with empty skids between 12:33 and 2:27 p.m. According to the Agreed Facts, at no time in any of these videos does Mr. Tagliacozzo appear to be injured in any way. Of course, he said he was injured after 2:27 p.m.

[30] Mr. Tagliacozzo passed away on October 5, 2013 at the Trillium Health Centre in Mississauga.

[31] As part of the Agreed Facts jointly submitted by the parties, "there is no expert opinion that establishes a causal link between the fall at the workplace and his death 15 days later. As a result, the Crown is not alleging that the accident was a contributing factor in Mr. Tagliacozzo's death."

Witness Workers

[32] An Agreed Statement of Facts contained the evidence of Mr. Samaroo and Mr. Wynter. Their evidence is largely after the incident itself, as opposed to witnessing it directly.

[33] Mr. Donato Novielli, also known as Dino the Dairy Manager, testified about seeing the incident happen. He had known Mr. Tagliacozzo for many years, since he himself had started with Wal-Mart in 2007. He worked in that store until 2014 when he moved to another store.

[34] Mr. Novielli was in the back room by the baler throwing out his cardboard. He observed the deceased using the dock door closer to the baler. He was not sure if he saw him go in to the trailer, but he saw him coming out.

[35] He noticed a pallet in the way and tried to tell him, but he was a little too late.

[36] Mr. Tagliacozzo was pulling a pump truck and going a "little too fast". His back was facing toward the way he was pulling the skid, walking backwards.

[37] The dairy manager noticed the empty pallet, and tried to say the skid was there, but "by the time the words were out of my mouth, it was too late". He saw the deceased trip and he sat hard on the skid in a seated position. His body fell backwards toward a skid of a paper product behind him, either toilet paper or paper towels.

[38] In cross-examination, he testified the deceased backed directly into the empty skid and made no effort to avoid it.

[39] When asked how long the empty skid was there, he said he could not recall. He did not know if it had been there previous days. He was just there to use the baler to dispose of cardboard.

[40] Mr. Novielli did not see Mr. Tagliacozzo or anyone putting the empty skid there.

[41] He estimated the time he stood at the baler before seeing the deceased come out of the dock as "I didn't think I was there that long, I was there doing cardboard a minute or two."

[42] He tried to warn the deceased "because it was a tripping hazard, to make sure he saw the skid. I didn't want him to trip."

[43] Mr. Little suggested that Mr. Tagliacozzo had enough room to get around the skid. Mr. Novielli replied, "Barely enough" but that he did not measure it at the time.

[44] When shown the CCTV excerpt, he identified himself and said that he began walking backwards but turned at the door to make sure no customers were at the back door. Initially he did not recall why he was walking backwards. He said, "I should be looking where I am going, maybe there was something in the way. I usually pull the skid in the direction I am going into. I usually face the direction I am going to. It depends if it is a straight line, to see if enough clearance to turn." In cross-examination, he agreed he needed to look backwards to clear a corner which one cannot see from that camera angle.

[45] He confirmed there are turns from the dock area to get to the retail area.

[46] He noted that if the skid is light, the pallet might go faster because "it is a little bit angled." However, he said that the deceased was "I guess going a little fast to control the pump truck."

[47] Mr. Novielli confirmed that Lorenzo Tagliacozzo was usually doing maintenance.

[48] The witness also confirmed that what he advised the Inspector as to the position of the skid was a recreation over two weeks later and it was hard to know exactly where the skid was.

Management

[49] Mr. Adam Robitaille has been with Wal-Mart since 1998 except for a nine month gap. He currently works at Wal-Mart in Orillia. He has been a store manager since 2009, and was the store manager of the Coventry Road Brampton Wal-Mart at the time of the incident.

[50] Mr. Robitaille started as store manager there in May 2013, less than five months before this event.

[51] He testified about the layout of the stockroom and the area of the incident, Bay 3 by Door 5.

[52] He stated that loaded pallets in front of the fixed racking is common, so long as a minimum clearance standard is kept at 3.5 feet.

[53] Mr. Robitaille also pointed out the area to store empty pallets off to the right of Bay 2.

[54] The backroom is staffed 24/7, with trailers generally unloaded between 3:30 p.m. and 7:00 a.m. by two different shifts.

[55] Maintenance staff also work in the backroom to clean.

[56] Some further issues were addressed in his evidence of training undertaken for workers, policies of safety sweeps, the backroom safety walk, and the work of the Safety Committee. These issues I will relate in context to the factual backdrop to this case.

A. Training

[57] The evidence of the deceased's training is documentary, consisting of acknowledgments of reading company handbooks, to checklists initialed by a supervisor, and records of computer accessed training.

[58] The Crown and the defendant company did not call any witness who directly trained or supervised Mr. Tagliacozzo. It appears he completed the computer based self-training.

[59] Specifically, the contents of the Computer Module (CBL) for Walmart General Equipment is Exhibit 4. Included in the 30 pages are three pages relating to Pallet Jacks.

[60] Pallet Jacks are used to move around merchandise stacked on pallets. Workers are advised to wear back support when using a pallet jack and to make sure it is stable before moving it. They are to secure the lever in the middle position and move the pallet to the desired location.

[61] Workers must make sure nothing is under the pallet before lowering it, and to slide out the pallet jack and 'park' safely. The training says to "back out of doors and around corners."

[62] Workers are also told to watch out for customers and associates.

[63] Lastly, the module advises that when finished using the pallet jack to store it safely in the Stockroom. This module does not mention what to do with empty pallets.

[64] One of the multiple choice questions at the end regarding other work related to moving racking is "what must be on the floor when you are moving power racks in the backroom?" The correct answer is "Nothing. The floor must be completely clear between the racks for free movement."

[65] The deceased had this basic training in 1999 and 2000. He scored 85 percent. There is no evidence of any upgrading or retesting. The Accident Investigation Report by Wal-Mart recommended re-training for Mr. Tagliacozzo, should he have returned to work.

[66] Mr. Robitaille indicated that in 2012 the store did a blitz of safety and retraining.

B. Policies

[67] All new hire employees must read and sign the Associate Handbook on Health and Safety Policy. Although hired in 1999, the deceased reviewed the handbook and signed it on Jan.30, 2012.

[68] The safety sweep program involves the entire work area. It is to be a collective responsibility of both management and all associates, to correct any/all hazards and make a record of that.

[69] The program called for dry sweeps with brooms every two hours, and a safety sweep every 3.5 to 4 hours, during each shift, specific to each department.

[70] Zone defence is similar to a safety sweep, to do general housekeeping, keep the shelves and surrounding area clean and follow up with a safety sweep.

[71] "Clean-as-you-go" is general good housekeeping, for cleanliness as you work.

[72] Employees together with their supervisors do a Job Hazard Analysis specific to the assigned job.

[73] Hazard reporting is available to all associates.

[74] Performance appraisals for Mr. Tagliacozzo did not identify any safety issues.

[75] The manager or an acting member of management in his absence does the Backroom Safety Walk daily. This is to ensure the backroom is free from any potential hazards.

[76] Pallets are to be stored outside of Bay 2, and periodically removed and stored at a specific location.

C. Safety Committee

[77] Weekly safety topics are raised in rotation meetings. The safety team meets weekly and helps identify any hazards. They do inspections throughout the store and interview associates.

[78] Most areas and managers are represented on the committee.

[79] Notes are made of any concerns and brought to management representatives on the committee to resolve them.

[80] Notes from the committee are also posted on a board for review.

[81] Examples of the topics are exhibits and include the topic of slip, trip and fall hazard (Feb. 1, 2013).

[82] The manager signs off on monthly inspections, and takes steps if any hazards are detected.

Investigation of Incident

Wal-Mart in Brampton

[83] The incident was not reported to management on Sept. 20, but the deceased did complain to co-workers about his hand and head. All workers had the obligation to report, including the complainant and the witnesses.

[84] It was reported the next morning when Mr. Tagliacozzo called in sick, and he was made to come in and sign the report of what had occurred the day before.

[85] An internal investigation in the Wal-Mart store commenced with a Supervisor Incident Report completed by "Kal/Rupa." The store characterized the trip as caused by "improper procedure" caused by incorrect use of equipment or tool. The worker was advised the pump truck should be pulled by facing forward.

[86] The Associate Accident Investigation Report was also completed. The rough diagram sketched on the report purports to show the empty skid at some distance from the row of full skids and directly in the way of unloading. This differs from Mr. Novielli's remembered placement of the empty skid. The report also indicates this Charmin toilet tissue was double stacked.

[87] The report has a section called "Identifying Root Causes." It was filled out as follows:

WHY? Associate did not has moved backward with pumptruck [ sic ]

WHY? Did not have enough space as per associate. No visibility

WHY? Did not ask for help proceeded to complete task

[88] In the section of What Could Have Been Done Differently (if anything) to Avoid the Accident, Kal/Rupa wrote that the associate should ensure safety is always first; should report the incident; and should follow procedure while pulling skids. The manager also wrote the facility needed "more training and review of proper procedure with the associate, and should hold accountability for unsafe work and not reporting the incident." Corrective actions recommended included retraining the person involved.

[89] The store manager also conducted an investigation of sorts. He took photographs of the area on his cellular telephone much later on. He did not retain the cell phone, nor retain them electronically, but did download them to photocopy for his file and loss prevention managers. The photos are of very poor quality and not much can be gleaned from them.

[90] He measured from the row of pallets to the baler to the row of skids as about 91 inches. When asked if there was room to get the pallet jack between the skid and the baler, Mr. Robitaille indicated, "if he was looking where he was going."

[91] He asked Mr. Novielli to tell him the location of the empty skid and then measured the baler to the corner of the skid as approximately 63 inches. He did not take the photo taken Dec. 23, 2015, which was shown to Mr. Novielli.

[92] He did not know who assigned Mr. Tagliacozzo to do unloading. He agreed the store was busier than usual, and it was the store's anniversary sale. The sale may be partially the reason why the deceased was doing that work.

[93] Mr. Robitaille identified that there would be 15-30 logbooks in the store from varying departments. The receiving area in the warehouse would have its own log, or more than one. He did not review it/them.

[94] Ms. Robert is employed by Wal-Mart as a director of environmental health and safety. She did not work at the Coventry Road store. She attended the store on Jan. 13, 2016 during the trial to attempt to find the logbooks for receiving. She could not find them. She guessed it might be on a cart for safety sweeps. In cross-examination, she admitted she did not look at all the books for that particular day.

Ministry of Labour

[95] Hardeep Randhawa, the investigator for the Ministry of Labour became involved on Friday Oct. 4, 2013, when he attended the Wal-Mart because of information received by his Regional Coordinator of an industrial accident.

[96] He met with an administrative manager at the store, Ms. Rupinder Kaur, and asked her if a worker had been injured there recently. She indicated the injury happened two weeks before and before the worker was hospitalized. She provided him with three statements and CCTV footage from that day in another area.

[97] He re-attended the workplace on Oct. 7, 2013 to interview the worker Donato Novielli and take a statement.

[98] On the same date, the inspector took a series of photographs, which are filed as exhibits. They depict the immediate area of the incident, including the racks, skids, cardboard baler, loading dock and environs.

[99] He also took photographs of the two possible ways the empty pallet could have been positioned, and measured the width of each way. The dairy manager's recall was a placement that would present its width into the aisle of forty additional inches.

[100] This is a significant impediment to an aisle based on a standard of 42 inches clearance. The actual space in this general area was greater due to the presence of the dock plate and the area for the dock doors, but the walking aisle was a standard size for that area.

[101] The dairy manager described the space as "tight" for the palletized merchandise and the pumptruck.

[102] Inspector Randhawa measured the distance from the edge of the row of palletized merchandise to the dock plate as 74.5 inches. The cardboard compactor or baler appears to stick out just short of the dock plate but to the north.

[103] The photos show the walking aisle, and the angle the deceased had to turn when unloading the palletized merchandise to get around the cardboard baler to be able to turn north toward the main store.

[104] The walking aisle is also an Emergency Exit aisle at this location.

[105] The CCTV footage does not show the area of the incident, but rather the bit of warehouse or stock area directly attached to the retail doors. It shows both the deceased and the dairy manager walking with a pallet jack and palletized merchandise. The deceased had skids of toilet paper. Mr. Novielli thought he had ice cream.

[106] Both are seen to bring empty pallets back to the warehouse.

[107] The time period involved precedes the incident.

[108] Both workers walk backward to negotiate the corner and to straighten out their loads. They then face frontward to go through the public door.

[109] The inspector was not cross-examined on his evidence.

Legal Overview

Occupational Health and Safety Act

[110] Public welfare legislation is often drafted in broad, general terms; as such, Acts are remedial and designed to promote public safety in a wide variety of circumstances. Consequently, public welfare legislation is to be given a liberal interpretation to give effect to its broad purpose and objective. However, a generous interpretation does not equate to a limitless interpretation: Blue Mountain Resorts Ltd. v Bok, 2013 ONCA 75, at paras 24, 26.

Public welfare legislation is often drafted in very broad, general terms, precisely because it is remedial and designed to promote public safety and to prevent harm in a wide variety of circumstances. For that reason, such legislation is to be interpreted liberally in a manner that will give effect to its broad purpose and objective: R. v. Timminco Ltd. (2001), 54 O.R. (3d) 21 (C.A.), at para. 22.

This generous approach to the interpretation of public welfare statutes does not call for a limitless interpretation of their provisions, however.

[111] The OHSA is public welfare legislation. The purpose of the Act is to promote a reasonable level of protection for the health and safety of workers in workplaces across Ontario. However, neither the Act, nor the Regulations, seek to achieve the impossible - an entirely risk-free work environment: Ontario (Ministry of Labour) v Sheehan's Truck Centre Inc., 2011 ONCA 645, at paras. 28-30.

[112] The province supports an occupational health and safety strategy - Healthy and Safe-Ontario Workplace. The strategy helps guide system efforts and ensures a clear, common vision and targeted approach for decreasing injuries, illnesses and fatalities. Employers, workers and health and safety partners note workplace safety as a shared responsibility.

[113] The Crown alleges that Wal-Mart Canada Corporation has breached section 25(1)(c) of the OHSA. The section provides:

25. (1) An employer shall ensure that,

(c) the measures and procedures prescribed are carried out in the workplace

Regulations

[114] Section 25 incorporates measures and procedures prescribed by Regulation. Section 11 of the Industrial Establishments Regulations, R.R.O. 1990, Reg. 851 states:

11. A floor or other surface used by any worker shall,

(a) be kept free of,

(i) obstructions,

(ii) hazards, and

(iii) accumulations of refuse, snow or ice; and

(b) not have any finish or protective material used on it that is likely to make the surface slippery. R.R.O. 1990, Reg. 851, s. 11.

Penalty Section

[115] Section 66 of the OHSA provides that,

66. (1) Every person who contravenes or fails to comply with,

a) a provision of this Act or the regulations;

b) an order or requirement of an inspector or a Director; or

c) an order of the Minister,

is guilty of an offence and on conviction is liable to a fine of not more than $25,000 or to imprisonment for a term of not more than twelve months, or to both.

(2) If a corporation is convicted of an offence under subsection (1), the maximum fine that may be imposed upon the corporation is $500,000 and not as provided therein.

Defence

(3) On a prosecution for a failure to comply with,

(a) subsection 23 (1);

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

(c) subsection 27 (1),

it shall be a defence for the accused to prove that every precaution reasonable in the circumstances was taken.

Accused liable for acts or neglect of managers, agents, etc.

(4) In a prosecution of an offence under any provision of this Act, any act or neglect on the part of any manager, agent, representative, officer, director or supervisor of the accused, whether a corporation or not, shall be the act or neglect of the accused. R.S.O. 1990, c. O.1, s. 66.

Strict Liability & Due Diligence

[116] Section 66(3) of the Act clarifies that this charge under the OHSA is a strict liability offence. As a strict liability offence, the Crown has the onus of proving the actus reus of the offence beyond a reasonable doubt. The Crown is not obliged to prove mens rea.

[117] If the Crown proves that the defendant has committed the prohibited act beyond a reasonable doubt, then the offence has been prima facie established. The burden then shifts to the defendant to establish the defence of due diligence on a balance of probabilities.

[118] Due diligence may be established in two ways: (1) by showing that the defendant reasonably believed in a mistaken set of facts, or (2) by showing that the defendant took all reasonable precautions to avoid the prohibited act.

[119] As explained by the Supreme Court of Canada:

Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event: R v Sault Ste. Marie (City), [1978] 2 SCR 1299; 1978 CarswellOnt 24 at para 60.

[120] In order to successfully plead the defence of due diligence, the accused must establish that he did all he could to prevent or minimize the risk of injury: R v Inco Ltd., [2001] OJ No 4938 (SC), at para, 40. Although, as the Ontario Superior Court of Justice indicated at paragraph 133 in Ontario (Ministry of Labour) v Magna Seating Inc., [2015] OJ No 139, "[T]here is no expectation that an employer be superhuman or to perform their duties to perfection…"

[121] The due diligence claimed must be specific to the hazard in issue; i.e. the commission of the prohibited act and not some broader notion of "acting reasonably": R v Prince Metal Product Ltd., [2011] O.J. No 6450 (C.J.), at para. 64; R v Kurtzman, [1991] O.J. No 1285 (C.A.), at para. 37.

[122] In the context of workplace safety, due diligence entails that employers must take every reasonable precaution to ensure the protection of their employees. This protection extends to the protection of negligent, careless, or reckless workers who might deliberately ignore company procedures and systems designed to implement the requirements under the OHSA: R v Prince Metal Product Ltd., [2011] O.J. No 6450 (C.J.), at para. 44 citing R v Stelco Inc., [1989] O.J. No 3122 (C.J.), at para. 40; Ontario (Ministry of Labour) v Dofasco Inc., 2007 ONCA 769, [2007] O.J. No 4339 (C.A.), at para. 21-27.

[123] The reasonableness of the care is inextricably related to the circumstances of each case. The standard of care may vary in order to ensure the requisite flexibility to raise or lower the requirements of care to accord with the factual setting of each case. The following circumstances assist to determine the degree of care properly owed in a particular case:

Reasonable care implied a scaling of caring. The reasonableness of the care is inextricably related to the special circumstances of each case. A variable standard of care is necessary to ensure the requisite flexibility to raise or lower the requirements of care in accord with the special circumstances of each factual setting. The degree of care warranted in each case is principally governed by the following circumstances:

a) gravity of potential harm;

b) alternatives available to the accused;

c) likelihood of harm;

d) degree of knowledge or skill expected of the accused; and

e) extent underlying causes of the offence are beyond the control of the accused.

46. … "Once the employer has acted as a reasonable person in this regard and has taken all normal and reasonable precautions necessary to carry on his business safely, in my view, it cannot be said that by imposing absolute liability on him, especially where the breach of a regulation is brought about by the act of another person disobeying not only the regulation, but the standing order of the employer, the law is promoting a higher standard of care. Assuming that the employer has taken all reasonable precautions, how can he prevent a breach of a regulation solely within the control of his own negligence or inadvertence. Surely, in those circumstances as has been said, the law is engaged, not in punishing thoughtlessness or inefficiency, and thereby promoting the welfare of the community, but in pouncing on the most convenient victim."

See: R v Inco Ltd., supra, at para. 39 citing R v Gonder, (1981), 62 C.C.C. (2d) 326 (YKTC) at 332 and para. 46 citing R. v. Z.H. Paper Products Limited, (1979), 27, O.R. (3d) 570; see also: R v London Excavators & Trucking Ltd., [1998] OJ No 6437 (CA) (where R v Gonder was cited with approval).

Analysis and Application of Principles

Actus Reus: Was the Empty Pallet or Skid a Hazard or Obstruction?

[124] Mr. Little suggested in argument that the meaning of a hazard or obstruction has not been judicially interpreted to date. While this appeared to be the case in Canada, there is some relevant jurisprudence in England.

[125] The defendant's counsel proposes an interpretation of what constitutes an "obstruction" or "hazard" from the perspective of someone exercising ordinary prudence. He used the example of extra courtroom chairs in the courtroom, submitting that the chairs are "in the way;" but that one could not reasonably conclude that a chair is an obstruction or a hazard since they are easily avoided.

[126] The defendant's overall position is that since the deceased was walking backwards in the moments before he fell, he was not exercising ordinary prudence; therefore, the empty skid was not a hazard or obstruction. Had the deceased been exercising ordinary prudence, he would have seen the empty skid and maneuvered around it.

[127] A court who wishes to determine whether a provision applies to particular facts must address the meaning of the legislative text, the intent of the legislature, in addition to the consequences of adopting a proposed interpretation. The rules of statutory interpretation are guides to answering those issues.

[128] I will commence with some basic principles of statutory construction. One begins with the Ordinary Meaning Rule.

[129] The origin of the word "obstruct" derives from the Latin obstruct- 'blocked up', from the verb obstruere, from ob- 'against' + struere 'build, pile up'.

[130] The definition of "obstruct" in the Canadian Oxford Dictionary is "To block; make hard or impossible to pass along or through. In other words, to obstruct is to impede the passage along or through an opening, thoroughfare, waterway, etc. An "obstruction" refers to the thing that impedes or prevents passage. The definition of "hazard" includes a danger or risk, as well as the source of the danger or risk.

[131] It is presumed that the ordinary meaning of legislation is the most appropriate or intended meaning. All legislation is presumed to have a purpose. Courts may reconstruct or discover this purpose through interpretation. Modern statutory interpretation emphasizes a purposive analysis.

[132] The legislation and regulation in question in this case is public safety legislation, in the context of employment safety.

[133] Lord Denning addressed the meaning of obstruction in the employment safety context in Pengelley v Bell Punch Co. Ltd.. In that case, the plaintiff, a "very experienced" factory employee, was employed by the defendant to take reels of paper from the storeroom of the factory to other parts of the factory. Smaller reels of paper were kept on racks while larger reels were stored on the floor in front of those racks. These larger reels had been stored on the floor for many years without incident. The plaintiff suffered a knee injury after he put his foot between two larger reels stored on the floor while trying to lift a smaller reel of paper from the rack. The employee alleged that his employer breached their statutory duty to keep the factory floors free from obstruction so far as reasonably practicable, contrary to sections 25 (1) and 26(1) of the Factories Act, 1937, as amended by sections 4 and 5 of the Factories Act, 1959.

[134] At page 1058, Lord Denning states:

Now the employers appeal to this court. The short point is whether in point of law these big reels were an "obstruction" on the floor. We had occasion to examine all the cases recently in Churchill v. Louis Marx & Co. The word "obstruction" is not capable of precise definition and I do not think it wise to attempt it. In one sense, anything that is on a floor is an obstruction. If you want to walk straight across a room, even a table or a chair may be an obstruction in your path. If you carried it thus far, you might say that a machine on a factory floor was an obstruction. Even one of these racks in this storeroom would be an obstruction. That would be absurd. In this section, an "obstruction" is something on the floor that has no business to be there, and which is a source of risk to persons ordinarily using the floor. It is the duty of the occupier to keep the floor free of it, so far as is reasonably practicable.

[135] Since the reels of paper were stored on the floor for many years, Lord Denning was of the view that it could not be said the reels of paper had no business being there (at p. 1058). Likewise, it cannot be said that chairs in a courtroom have no business being where they are.

[136] The empty pallets on the floor of Wal-Mart's receiving area, however, are unlike chairs in a courtroom or the reels of paper at Bell Punch Co. Ltd. As the defendant's counsel acknowledged in his submissions, Wal-Mart designated a specific location for the storage of empty pallets. Moreover, the manufacturer could be contacted to pick up empty skids. It is apparent that empty skids had no business being left on the floor of the receiving area. Although the Crown conceded it could not prove causation, the facts of this case make clear that the fact the empty skid was left on the floor did pose a risk that someone, such as the deceased, might trip over the skid.

[137] One must be mindful that a purposive interpretation of this provision may in some factual circumstances lead to an absurd result, such as in the Casey's Bar and Grill case, where wetting a floor to clean it results in the creation of the hazard, when the intent is to prevent the risk of harm or injury from spills. Consequential analyses, the former "golden rule" or presumption against absurdity, is instructive in determining the intent of the legislature. This approach is consonant with common sense, as illustrated by Lord Denning.

[138] The Crown argues that the empty pallet was a hazard or obstruction. It submits that R v Seeley & Arnhill Aggregates Ltd., [1993] O.J. No 443 (Gen. Div.) is the governing authority on the meaning of hazard or obstruction. The Crown did not provide Seeley, but this case is referenced in R v Prince Metal Products Ltd., [2011] O.J. No 6450 (C.J.), at paragraph 49 in the Crown's book of authorities. The court in Seeley, supra at paragraph 15, explained:

A hazard can include a chance event such as an accident. If the Crown proves a fall by a worker of more than three metres took place while doing work required by the employer, it prima facie imports the offence. It does not matter if it was caused by accident, negligence, recklessness or wilful neglect. If it occurred in a place where one might reasonably expect it not to take place, such a fact would be considered in a defence of due diligence or even mistake.

[139] In reply, counsel for Wal-Mart submitted that Seeley does not pertain to section 11, but instead specifically relates to the workers exposed to the hazards of falling in the construction context. Therefore, Mr. Little argues that Seeley should not be relied on by this court.

[140] In the Casey's Bar and Grill case, the ratio decidendi of the case concerned the admissibility of fresh evidence on appeal, and whether the trial process was unfair due to interruptions by the Justice of the Peace and the failure to properly explain the proceedings to an unrepresented defendant. Additional grounds for appeal on the merits discussed the treatment of similar act evidence and post-accident conduct, and a failure to properly assess the due diligence defence.

[141] The Appellant also argued that the actus reus of this same regulation of the OHSA had not been established, where a restaurant employee had slipped on a wet floor of his own making whilst cleaning it with a mop and had injured his arm in the deep fat fryer which had remained at cooking temperature nearby prior to the mopping. The trial court had found that the wet floor is a hazard "that speaks for itself." Justice Boivin found that the Justice of the Peace erred by providing "no analysis or consideration given to when and why floors are wet, and whether in the circumstances, the wet floor was a hazard". His Honour pointed out that while an unattended wet floor is a hazard, cleaning is a necessary task, which involves wetting the floor to keep it free from obstructions.

[142] Unlike Seeley, Justice Boivin found that the mere fact the floor was wet in the back of the restaurant was not necessarily sufficient to establish a breach of the Regulation. Further analysis is necessary. He also expressed concern that the restaurant employer would be "put in an impossible situation if cleaning a floor becomes in and of itself a hazard which is the responsibility of the employer and if a slip is his responsibility for unmopped obstructions in the nature of spills": at para 80. This Catch-22 matrix is a lynch pin to the decision.

[143] The present case is distinguishable from the Casey's Bar and Grill decision. There is no justification to keeping or leaving empty pallets in the aisle of the stockroom, particularly an emergency exit aisle. The defendant specifically instructs that aisles be kept clear and empty pallets stored in another place. There is no utilitarian purpose in leaving empty pallets around.

[144] On the evidence in that trial, the complainant himself had created the hazard and was aware of it; thus, Boivin J. distinguished situations where the hazard had been created by a third party where no warning was given to another unsuspecting individual.

[145] With the greatest of respect to Justice Boivin, the requirement to analyze the actus reus by incorporating an analysis of all of the factors associated with the incident improperly conflates the two branches of strict liability offences. In essence, who, when, why, and how are all factors that are best left for the due diligence assessment where the conduct of the employee is contrasted with the procedures set in place by the employer, or the lack thereof.

[146] I do not agree that an ordinary prudence standard should be imported into the definition of obstruction or hazard as the defendant's counsel suggests. Irrespective of whether or not the deceased exercised ordinary prudence, I repeat the comments made by Laskin J.A. which were cited in Ontario (Ministry of Labour) v Dofasco Inc., supra at para. 24, that "[W]orkplace safety regulations are not designed just for the prudent worker. They are intended to prevent workplace accidents that arise when workers make mistakes, are careless, or are even reckless."

[147] If it were a perfect world and all employees were always prudent and careful, there would be no need for this public welfare legislation. The legislature is trying to prevent workplace injuries and accidents. The expansive interpretation proffered by counsel for the defendant would tend to render this legislation nugatory.

[148] Therefore, I find that the empty skid on the floor of the receiving area in this spot was a hazard or obstruction as contemplated by section 11 of the Industrial Establishments Regulations, RRO 1990 Reg. 851. The Crown has established the actus reus beyond a reasonable doubt.

Due Diligence

[149] I now turn to whether the defendant has established the defence of due diligence on a balance of probabilities.

[150] The defence of due diligence is available both in common law (Sault Ste. Marie), and as codified by Section 66(3) of the OHSA:

(3) On a prosecution for a failure to comply with,

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

it shall be a defence for the accused to prove that every precaution reasonable in the circumstances was taken.

[151] It is not surprising that the parties take very different positions on whether the defendant corporation has proven on a balance of probabilities that every precaution reasonable in the circumstances was taken.

A. Defendant's Position

[152] Wal-Mart's counsel submits that the deceased was a very experienced employee who was not looking where he was going and that Wal-Mart, as his employer, ought not to be convicted based on an isolated act of carelessness by one of its employees. Mr. Little made 18 points in support of the position that Wal-Mart exercised due diligence. They are summarized below:

(1) Wal-Mart trained its employees, including the deceased, on housekeeping, clean-as-you-go, spill clean-up procedures, and the safety sweep program;

(2) There was an active program in place to identify hazards. He submits that the safety sweep program required all employees to do a sweep every three hours and document the results. Unfortunately, the logs for the receiving area could not be found in time for trial. Only the log filled by maintenance employees (Exhibit 8) was adduced, which outlines the clean-ups of various spills, such as pickle juice, throughout the store - mostly in the retail area;

(3) The deceased was trained in relation to a specific job hazard document called the Job Hazard Analysis Document;

(4) The deceased was trained in the use of the pallet jack, the training for which included being aware of one's surroundings;

(5) There was an annual safety performance review for employees, such as the deceased;

(6) Employees were disciplined if they fell below expectations;

(7) The deceased was re-trained about trip hazards and pallet jacks when he moved to a new department;

(8) The deceased was employed as a maintenance employee; hence, his primary role was to keep the store clear and clean;

(9) Wal-Mart has "turned its mind" to the organization of aisles by creating standards for things like aisle width;

(10) Wal-Mart had standards for skid storage and how to deal with skids, such as calling the manufacturer for pick-up;

(11) There was a designated area for skid storage so that they are not just lying around;

(12) The store manager or his/her designate was responsible for inspecting the backroom every day;

(13) The store conducted weekly safety talks to employees;

(14) A safety team was coordinated to meet weekly and discuss safety issues;

(15) There was a hazard reporting system for employees to report hazards. The deceased was trained on how to report hazards;

(16) The safety team performed monthly inspections of the receiving area;

(17) Whenever a safety incident occurred, an investigation process and corrective action followed; and

(18) The unchallenged evidence of Mr. Robitaille is that there were no prior issues of skids in aisles outside of this isolated incident.

[153] In summation, Wal-Mart argues that trip hazards were given high priority in its stores and that it had taken reasonable precautions in all the circumstances to address the issue of obstructions and hazards.

B. Crown's Position

[154] The Crown argues that employees are trained to walk backwards at certain times when using the pallet jack (Exhibit 4). Counsel for the Crown pointed to video evidence whereby workers can be seen periodically walking backwards with the pallet jack. Furthermore, she submitted that there is no evidence of anyone being disciplined for walking backwards.

[155] In regard to the steps Wal-Mart has taken to address hazards and obstructions, the Crown points to the absence of evidence regarding:

(a) how the empty skid got to its location;

(b) when it got there;

(c) how long it was there for;

(d) when it was removed; or

(e) who removed it.

[156] Ms. Glaister says that this absence of evidence is symptomatic of the fact that no logbook was ever produced in respect of the receiving area. Despite all the training employees received, neither the deceased nor Mr. Novielli, the Dairy Manager, ever moved the empty skid. However, one should note that the evidence is silent on whether either of them knew the skid was there previously.

[157] The aisle where the empty pallet was found was a conduit to an emergency exit. This may be said to enhance the diligence requirement to keep that area clean.

Analysis

[158] This is not a case of showing the defendant reasonably believing in a mistaken set of facts which, if true, would render the act or omission innocent. Rather, due diligence can also be shown where the defendant took all reasonable steps to avoid the prohibited act.

[159] Due diligence must be linked to the particular circumstances of the breach. It must bear at least in part to the specific hazard in issue.

[160] Due diligence places the burden on employers to take every reasonable precaution to ensure the protection of their workers:

To rely on due diligence an employer must take active steps to protect the safety of their workers by creating procedures and systems to implement the requirements of the OHSA and ensure the effective operation of those procedures and systems through their supervisors. This obligation extends to the protection of negligent, careless, or reckless workers who might deliberately ignore company procedures and systems (Emphasis added). R. v. Stelco Inc., [1989] O.J. No. 3122 (Ct. Jus) at para 40; Ontario (Min. of Labour) v. Dofasco Inc., 2007 ONCA 769, [2007] O.J. No. 4339 (C.A.) at para. 21-27.

Conduct of the Worker

[161] Mr. Tagliacozzo was primarily a janitor. There is no real explanation as to why he was operating a pallet jack that day and unloading toilet tissue for the retail area. Mr. Robitaille indicated that was part of his duties, but his employment documents did not specifically articulate that. No supervisor for the deceased specifically, or the receiving area generally, was called to give evidence at the trial.

[162] Mr. Novielli thought the deceased was going a little fast out of the truck, but he acknowledged there was a change of grade there, which could affect a light load.

[163] Mr. Tagliacozzo was walking backward, on all the evidence, when he tripped on the empty pallet in the aisle way. He may bear some degree of fault for that, yet a close scrutiny of the exact location of this re-created incident is important. Mr. Novielli could not be sure exactly where the pallet was placed. It is for that reason Inspector Randhawa took photos of the pallet on two different axes. It likely had the 40-inch side protruding, but it is possible the 48-inch side of the pallet faced Mr. Tagliacozzo. If so, there was very little time or space for him to turn after negotiating the offload.

[164] Even if the shorter side of the pallet was out, workers were trained to walk backwards when negotiating a corner. The CCTV showed both the deceased and the dairy manager doing that when emerging from the backroom earlier with palletized merchandise.

[165] It is not at all clear that the split second backwards walking was discordant from the training manual on the CBL module, which instructs one to, "Slide out of the pallet jack and park safely. Back out of doors and around corners".

[166] The photographs taken by the Ministry of Labour Inspector show the necessary manipulation of the pallet jack out of Door 5 and around the baler to go north to the sales floor without any obstruction. The empty pallet on the floor adds to the inherent risk of operating this equipment.

[167] Obviously, in hindsight, it would be better and more prudent to be forward facing at that moment.

[168] At worst, the deceased was careless or exercised poor judgment in his manner of egress. At best, he was acting in accordance with his training a long time before.

[169] There is no proof as to who left the empty pallet there. It was there already when Mr. Novielli arrived. The fact Mr. Robitaille concluded the pallet was left by the deceased, without any proof, detracted from his overall credibility. He merely assumed it so because of the safety sweep policy, and Mr. Tagliacozzo said it was not there when he entered the trailer.

[170] There is no indication the store manager ever attempted to find the underlying cause of this, to ascertain who was working that time in the warehouse, and to review the sweep logs and any CCTV footage. His conclusory investigation carries little weight.

Employer

[171] As indicated in Prince Metal, the due diligence claimed must be specific to the hazard in issue; i.e. the commission of the prohibited act and not some broader notion of "acting reasonably." To relate that concept to this case, the defendant must demonstrate on a balance of probabilities that every precaution reasonable was taken to prevent the obstruction from being there in the first place, and as to related safety issues.

[172] Wal-Mart Canada Corp. does training for its employees regarding the use of electrical and general equipment. This training is by reading its handbook, and completing a computer generated test. The training is augmented by periodic reviews by the Health and Safety committee, which has representatives from many of the departments in the organization. It also meets and posts reviews of safety issues for workers to read.

[173] The store had weekly meetings of the safety committee. Discussion of the issues raised were left to the department representatives and the posted notes. There is no direct evidence the deceased was the beneficiary of these issues raised.

[174] A safety team did monthly inspections of the receiving area. The form filed of the inspections did not directly address pallet storage and misplacement. The court heard no evidence of when the inspection was done relative to the incident. Similarly, the store manager or his designate was to inspect the back room daily. Mr. Robitaille was unable to say whether he did so prior to the incident that day.

[175] No evidence was called as to the level of direct supervision in the warehouse or receiving area, nor whether this specific employee had been updated or refreshed on issues regarding pallet jacks or pump trucks.

[176] The defendant tendered a Backroom Safety Walk Resource Guide produced in June 2013 in its documentary materials, but it is unclear whether it was a document reviewed with the workers, and when in relation to its creation. The Guide states that all emergency exits and direct route to the exits maintain a minimum of 3 ½-foot clearance, and all aisles maintain a minimum 3 ½ foot clearance. It requires "excess CHEP (blue) pallets and break pack boxes should be sent back on regular scheduled pickups", and gives a phone number and e-mail for additional pick up.

[177] The three and one half foot clearance standard is undermined by the safety checklist, which calls for only a three foot spacing in the receiving area.

[178] Wal-Mart also has a pallet/skid safety guideline, produced in July 2012. It says the following regarding storage of empty skids:

• Must not be left on the sales floor

• must not be stored leaning, on the side of the skid

• If approved, may be stored outside; however, must be a minimum of 20 feet from the building

• Store empty skids in the backroom; stacking height of the open bay door

[179] This guideline fails to address the situation that happened Sept. 20th. The guideline itself says empty skids are stored in the backroom, but does not designate the place, or prohibit a skid on the floor in the backroom as opposed to the sales floor.

[180] It is to be borne in mind here that the deceased was primarily in a janitorial role since January of 2012, and his training was in 1999. The department specific safety checklist he endorsed in January 2012 listed "equipment the associate will use which he has been trained on and demonstrated its safe use." The checklist only specified he would be operating a baler and a compactor, not a pump truck, although it was listed as one of ten pieces of equipment on the basic training plan.

[181] On documentary records alone, the deceased worker had for the previous one and three-quarter years not been operating equipment other than the cardboard baler and compactor. He mostly cleaned bathrooms, and swept and mopped. Only Mr. Robitaille said that his duties would include use of a pallet jack at the time of the incident. Job hazard analysis specifically done for Mr. Tagliacozzo referred primarily to chemical spills rather than equipment issues.

[182] The training mandated by Wal-Mart includes self-assessment by computer, which may be overrated in comparison with hands on testing of the worker's use of equipment.

[183] There is no evidence Mr. Tagliacozzo had a current safety knowledge check by the corporation. His last formal training on this equipment pre-dates 2012 and appears to be in 1999.

[184] There is no evidence the Pallet/Skid Safety Guideline produced over a dozen years after his training was reviewed by him or other backroom workers.

[185] The worker did not have any history of failure to work safely.

[186] The aisle in question was a major thoroughfare in the back room. The clean-as-you-go policy was not being strictly followed that day. Mr. Novielli did not remove the empty pallet he had seen. It is very likely other workers passed by before the skid was removed.

Non-Production of Records

[187] The defendant points to its safety sweep program and clean-as-you-go policy as persuasive evidence of due diligence.

[188] One of the main arguments of Crown counsel is that she submits the Court should draw an adverse inference against Wal-Mart for the failure to adduce the receiving area logs for Sept. 20, 2013.

[189] In R v Ellis, 2013 ONCA 9, Justice Watt explains that, in some instances, a trier of fact may draw an adverse inference from the failure of a party to call a witness or produce other evidence (para. 45). This principle is rooted in ordinary logic and experience (paras. 45 & 48). An adverse inference can be drawn in two scenarios:

1. Where a party fails to produce a witness reasonably assumed to be favourably disposed to that party; or

2. Where a party has exclusive control over a material witness, but fails to produce him/her. This latter scenario has no regard to any possible favourable disposition of the witness towards the party (para. 46).

[190] Justice Watt explains that a trial judge should exercise the greatest of caution when drawing an adverse inference from the failure of a party to call a witness in criminal cases. The need to exercise caution in criminal cases is obvious; however, Justice Watt adds three important qualifiers elsewhere in the decision which leads me to conclude that triers of fact should generally exercise caution when applying the principle.

[191] Firstly, the party against whom the adverse inference is sought has the right to provide an explanation for the failure to call certain evidence (para. 47).

[192] Secondly, the principle is not intended to punish a party who exercises its right not to call a witness by imposing an adverse inference merely because the trial judge considers the explanation for nonproduction as being wholly unjustified (para. 45).

[193] Lastly, the inference can only be drawn where there is no plausible reason for nonproduction. Watt J.A. explains that the inference can only be drawn where it would be natural for the party to produce the evidence if the facts exposable by the witness had been favourable (para. 48).

[194] I am concerned about the non-production of documents in possession of the defendant corporation kept in the usual and ordinary course of business. The uncontradicted evidence is clear that the Wal-Mart store in question has several "sweep logs" kept specifically for the receiving/stock area, in addition to the general maintenance log. They were not turned over to the Inspector from the Ministry of Labour. The defendant did not produce them during the trial. They had exclusive control over this material, yet failed to produce the logs. If produced, they would either tend to show the diligent sweep of this area, or the failure to do so. They would demonstrate the presence or absence of obstructions, and the frequency or rarity of same. They may even show who removed the empty pallet complained of.

[195] The case does not turn directly on Wal-Mart's failure to produce the receiving area logs, rather an assessment of the application of the burden of proof to establish due diligence on a balance of probabilities.

[196] Since the defendant submits that it exercised due diligence, it is reasonable to assume that the receiving area logs would be produced if favourably disposed to Wal-Mart. Concerning Watt J.A.'s first condition precedent, Wal-Mart had an opportunity to explain its failure to adduce the evidence, and its explanation for the failure to adduce the evidence is an inability to find the logs and not a matter of trial strategy.

[197] There does seem to be a possible reason for nonproduction: the receiving area logs were lost. Although this is possible, it is not likely plausible. I say this because Wal-Mart is a large corporation, both nationally and internationally, with rules for record retention. Why keep sweep logs if they are not readily found and produced? Why would they not be part of the company's internal investigation of the incident? Why would not the defendant secure all records relating to the incident at the time they knew the Ministry of Labour was investigating?

[198] The defendant was aware of the incident formally the day after the occurrence and knew the Ministry of Labour was investigating by October 4, 2013 at the latest, when an administrative manager provided the inspector with three written statements, and a copy of surveillance video. At that time, the inspector advised the store representative of reporting requirements in sections 51 and 52 of the OHSA. Section 51 requires in cases of death or critical injury that the employer "send to a Director a written report of the circumstances of the occurrence containing such information and particulars as the regulations prescribe". R.S.O. 1990, c. O.1, s. 51 (1); 2011, c. 1, Sched. 7, s. 2 (7).

[199] Since the defendant in a strict liability case has the persuasive burden to establish due diligence on a balance of probabilities, Wal-Mart has an obligation to lead or adduce evidence, which, if believed, would prove the defence to the requisite burden of proof. Wal-Mart's counsel effectively asked the Court to find due diligence in part on the basis that the safety sweep program was being implemented in other parts of the store. His submission seems to have been that the maintenance logs are circumstantial evidence that Wal-Mart's employees, including the deceased, were habitually focused on identifying trip hazards throughout the entire store. Although Wal-Mart may have created a safety sweep program, the failure to produce the logbook for the receiving area results in there being no direct evidence upon which I could conclude that employees were actively engaged in the proper implementation of the safety sweep program with respect to that particular area. The retail area of the store is open to the public, and hazards would be easily seen or scrutinized by customers. The back warehouse area does not have the same degree of exposure. A "once-through" by the store manager is inadequate in the circumstances.

[200] R. v Gottardo Site Servicing Ltd, 2010 ONCJ 239 is an example of a case where the lack of evidence regarding a program's implementation was a relevant factor in the court's determination that the defendant failed to prove due diligence. The case is by no means analogous; it relates to construction machinery that slipped on ice and pinned an employee's ankle. However, the defendant submitted that it made efforts to develop an Occupational Health and Safety program and ensured that it was effectively implemented on an on-going basis (para 42). Justice of the Peace Lancaster explained that a comprehensive health and safety program is the starting point in satisfying a due diligence defence, but noted that the court was not presented with evidence that outlined the implementation of the health and safety program (para 49). He ultimately concluded that due diligence was not established (para 50).

Conclusion

[201] The Crown has established that Wal-Mart Canada Corp. is aware of its obligations to its workers to keep the workplace free from obstructions and hazards. To that end, the defendant has training, policies and procedures in place ostensibly to prevent workplace accidents.

[202] Wal-Mart is acutely aware of the hazard presented by empty pallets left around in both retail aisles and retail store footage, or in the warehouse area. It is for that reason, that procedures were developed to have empty pallets stored in a specific place, and to be regularly monitored for the need to have a third party company pick them up when they had too many to store.

[203] Whether a prudent person could walk around them or not, there was no reason, even temporarily, to have an empty pallet on the warehouse floor, in an emergency exit aisle, particularly where items are unloaded, and where a person with a loaded pallet jack has to make an angled turn. Such an item is an obstruction, both in the plain meaning of the word, and as Lord Denning has so articulately indicated.

[204] The evidence is unclear as to how long the empty pallet was on the floor or who eventually removed it. I do find it was certainly likely there for more than five minutes because Mr. Novielli saw it when he was at the cardboard baler before the deceased came out of the truck. He did not remove it, or summon anyone to do so.

[205] The risk of such an obstruction was actualized by the accident, which occurred here.

[206] I find the Crown has established the actus reus that the employer failed to keep the floor used by the worker free of obstructions, hazards and refuse beyond a reasonable doubt.

[207] The onus then shifts to the defendant to establish due diligence on a balance of probabilities.

[208] Wal-Mart has many laudable training modules, and an active Safety Committee.

[209] No doubt, the defendant had policies and procedures in place to address the concerns for a safe workplace. The issue is not whether such measures existed, but the implementation of them.

[210] The issue is case specific in this instance; for example, whether Mr. Tagliacozzo was sufficiently trained in the operation and movement of the pallet jack; whether he saw or should of seen the obstruction on the warehouse floor in the area for unloading; whether a supervisor should have been present; the effectiveness of the sweep program in the warehouse, etc.

[211] The Court has considered all of the Gondor factors of the standard of care as it pertains to the circumstances of this case.

[212] I find that the absence of the missing safety sweep logs for the backroom area results in a failure of reliable proof that it is more likely than not that every precaution reasonably available in the circumstances was taken.

[213] The evidence of the store manager falls short of satisfying the Court on a balance of probabilities that the warehouse floor was kept free of obstructions during its Anniversary Sale in the time period the incident occurred.

[214] Therefore, I find the defendant has not met its onus of establishing due diligence on a balance of probabilities, and Wal-Mart Canada Corp. will be found guilty of the charge.

Released: May 6, 2016

Signed: Justice Nancy S. Kastner