Ontario Court of Justice
Information # 1561 999 14 140188
Date: 2016-03-10
City of Kenora, Northwest Region
Between:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO (MINISTRY OF LABOUR)
— AND —
J.S. REDPATH LIMITED, PHILIP PARROTT and ROBERT BELDOCK
Before: Justice of the Peace D. J. MacKinnon
Heard on: September 28, 29, 30, 2015 and October 1, 5, 6, 7, 8, 2015 and December 21, 2015
Reasons for Judgment released on: March 10, 2016
Counsel:
- Wes Wilson and Nicole Sylvester (Student at Law) — Crown counsel
- Neil Smitheman and Deanah Shelley — for the defendants
JUSTICE OF THE PEACE MACKINNON:
I. INTRODUCTION
Overview
[1] On August 4, 2013 Daniel Bougie and Paul Lefebvre were working at the ventilation raise at Level 1300 of the Cochenour Mine in Red Lake Ontario. While the men were travelling up the raise in the Mechanized Raise Climber (MRC), rocks fell onto the MRC and Daniel Bougie was hit in the head and seriously injured. The two miners were rescued from the raise.
[2] Daniel Bougie suffered two broken neck vertebrae, four broken ribs, a crushed lung, a dislocated foot and many cuts to the head. Paul Lefebvre also had cuts to his legs.
[3] The Ministry of Labour brought charges under the Occupational Health and Safety Act against the employer, J.S. Redpath Ltd, the mine superintendent Phillip Parrott, and the supervisor of the men, Robert Beldock.
The Legal Framework
[4] The Occupational Health and Safety Act is a public welfare statute which has the primary objective of protecting workers from injury or death in the workplaces of Ontario. The workplace in this case was the raise drive at the 1300 Level of the Cochenour Mine in Northwestern Ontario.
[5] The offences charged in this case are strict liability offences. The Crown is required to prove the charges beyond a reasonable doubt. The Defendants have argued that the Crown has failed to prove the charges or have offered a defence to each charge. The defences must be shown on a balance of probabilities. The Defendants also argued for a dismissal of all charges on the basis of abuse of process.
Agreed Facts
[6] An Agreed Statement of Facts was filed by the Crown and the Defence stating that J.S. Redpath Ltd. is a corporation and was the employer of Daniel Bougie who was an employee pursuant to the Occupational Health and Safety Act. The accident occurred at the Cochenour Mine in Red Lake Ontario, which is owned by Goldcorp Inc.
Trial Matters
[7] At trial, Count #5 and Count #11 were dismissed by the court at the request of the Crown. Count #7 was amended to reflect "ANFO" which is Ammonium Nitrate/Fuel Oil instead of "Amex" which is a brand name for an ANFO product. [1]
[8] The Court heard from the following Crown witnesses:
- Paul Lefebvre — Employee of J.S. Redpath Inc./Miner
- Daniel Bougie — Employee of J.S. Redpath Inc./Miner
- Neil Goodman — Employee of J.S. Redpath Inc./ Remote Muck Driver
- Andres Johannesson — Ministry of Labour Investigator
- Michael Kat — Professional Engineer, Ministry of Labour
- John Henning — Professional Engineer, Goldcorp Inc.
- Leanne Hando — Ministry of Training, Colleges and Universities
[9] The Court heard from the following Defence witnesses:
- Len Roche — Dyno Nobel Representative
- Tyrone Dasti — Employee of J.S. Redpath Inc./ Cross shift Supervisor
- Kenneth Abbott — Employee of J.S. Redpath Inc./Supervisor Rubicon Project
- Troy Simcoe — Employee of J.S. Redpath Inc./ Safety and Training Officer, Rubicon Project
- Derek Budge — Director of Health, Safety and Environment (Global) J.S. Redpath Inc.
[10] Although this decision will not refer to each and every element of the evidence in this case, I can assure the parties that I carefully listened to the evidence, reviewed my notes, the exhibits, the audio recordings and the written and oral arguments of counsel in order to arrive at my decisions.
The Structure of the Decision
[11] The charges faced by the corporate Defendant and the individual Defendants have been categorized by me under general topics: Training, Safety Net, Supervisors, Geology, Loading Drill Holes, Job Task Observations, and Appropriate Officials.
[12] Lastly, the Defendants raised an issue of abuse of process. For reasons set out in the final part of this decision, I dismiss this application.
The Mechanized Raise Climber (MRC)
[13] I will describe briefly the MRC in order to provide some background in regard to the events of August 3 and 4, 2013.
[14] A Mechanized Raise Climber is a vehicle used for transporting miners to the "face" of the rock where blasting will take place. It is sometimes called by a brand name "Alimak". In this case the MRC could transport two or three miners. At the top of the MRC is a canopy which covers about part of the MRC, and two grills also help to provide coverage. Then there is a work platform. Under the platform is a basket. The miners are carried in the basket when the MRC is moving.
[15] The MRC moves on a rail up the raise being worked on. The side of the shaft which has the rail is called the "hanging wall". The opposite side is the "foot wall".
[16] The MRC in this case was driven by air compression. The controls are on the right side of the vehicle. The raise miners travel up in the basket, enter the platform through a door at the top of the basket and go to work on the platform. The miners drill holes in the face of the raise and place blasting materials. They then move through a trapdoor into the basket in the lower portion of the MRC and the MRC moves down the rail and past the opening of the raise. The place where the MRC waits is called "the nest". The blasting then occurs.
II. THE EVENTS OF AUGUST 4, 2013
[17] The events of August 4, 2013 as told by Daniel Bougie and Paul Lefebvre are not really disputed.
[18] The men started their shift on the ventilation raise that day about 6 a.m. They would blast once a day on the raise. The raise was on the 1300 level of the Cochenour Mine. On this day they were working at about the 400 foot level in the raise, and at an 84 degree angle. The day before the cut had frozen a little and so Daniel had changed the cut. They took the MRC up the raise. Paul was the operator.
[19] The two miners went up the raise and out onto the work platform. They installed their six foot beams and made sure the ground support was secure. They drilled the 8 inch rounds for the explosives. The drill is water cooled. They loaded the Amex (ANFO) into the holes using the Amex loader, but left about a foot at the end of the holes. Daniel Bougie was the leader and was on the hose. Paul Lefebvre operated the air handle to send the explosive into the holes. Then the blasting caps were installed.
[20] After everything was done, the men travelled down the raise in the MRC and into the "nest". At some time after they were in the nest, the explosive was detonated. While the men were in the nest, the MRC was washed, mechanics worked on it and it was loaded with a beam the men needed to set up ground support for the next day. They had lunch and it was about 12:15 p.m. and nothing was out of the ordinary. Daniel Bougie does not remember anything after this time.
[21] According to Paul Lefebvre, the men returned to the MRC, opened the air and water valves to help clear any gas or dust left from the explosion. They waited for the water in the raise to stop. The men entered the basket of the MRC and were laying down in it. Paul was the operator and was on the right side of the basket and Daniel was on the left. Paul opened the pneumatic booster and pulled the stick to start the ascent of the MRC back into the ventilation raise. The MRC moved into the raise and an upright position.
[22] After they had travelled about 30 feet up into the shaft, rocks started to fall onto the MRC. Lefebvre saw one as big as a foot in diameter. He could not get his partner as rocks kept falling. He did not understand what was happening and was afraid for his life. His reflex was to turn to be close to the post. He had never been so scared in his life. He noticed that his partner only had his right leg in the basket and the door was open...there was a lot of noise. There were poles that were broken. He reached over and grabbed Daniel and pulled him to his lap. Paul was certain that Daniel was dead. The width of the basket was about two feet. He had to pull Daniel back toward him so that he had his full legs in front of him.
[23] Daniel was unconscious for about 20 minutes. His left eye was about the size of an egg and all purple. He had cuts everywhere on his head and he was bleeding a lot. His hard hat was gone. Daniel was making a noise and there was blood coming out of his mouth. Paul thought his arm might be broken as he winced when it was touched. Paul took his sleeve and knotted it to make a harness to hold Daniel in front of him.
[24] Paul had no way of calling for help. He held onto Daniel and began to throw items out of the basket and down to the muck to try to attract the attention of the scoop operator, Neil. One of the items he threw down was a package containing the safety net. He was able to attract Neil's attention. Mine personnel used the alleycab and were able to rescue the miners after about 3 1/4 hours.
III. CHARGES AND DECISIONS
TRAINING
Charges Related to Training (Counts 1 and 2)
[25] The corporate Defendant is charged that it failed to provide, "information, instruction and supervision" to a worker to protect the safety of the worker contrary to s.25(2)(a) of the OHSA. The particulars alleged that the corporate Defendant failed to ensure that Daniel Bougie was registered in and received training on Specialty Module U0064 – Mechanized Raise Mining – while driving a ventilation raise.
[26] The corporate Defendant is also charged that it failed to comply with the measures and procedures set out in s.11(2) of Regulation 854 by failing to ensure that Daniel Bougie was registered in and received training on Specialty Module U0064 – Mechanized Raise Mining – while driving a ventilation raise.
[27] The Crown agreed that if there was a conviction in regard to each charge, that it would proceed only on one charge as a result of the Kienapple principle.
Evidence
[28] Leanne Hando for the Ministry of Training and Colleges (MTC) testified that a new miner is registered with the Ministry once for the common core courses, and then a miner can be trained by the employer for a specialty course, which must be completed within 12 months of its commencement.
[29] There is no specific form that is provided to the Ministry in order to give notice of the commencement of a course of training. The Guidelines for Common Core and Specialty Modules states: "The MTC recommends that the start of training is recognized by the signing and dating of a performance objective in the specific specialty module."
[30] There is a Signing Authority with each employer who is recognized by the MTC. The Signing Authority confirms that the components of a particular specialty module have been completed by an employee. In this case the Signing Authority was Marc Lauzon for J.S. Redpath Ltd.
[31] The record for Daniel Bougie shows that a Performance Objective for module U0013 was signed by both Daniel Bougie and Marc Lauzon, and that only one skill area of that module was completed in June of 2013. Module U0013 "Operate Cage" is a pre-requisite to training for U0064 according to the MTC description. No similar signed Performance Objective was provided to show that U0064 had been commenced by Daniel Bougie.
[32] The Ministry is notified by the Signing Authority of the successful completion of a specialty module by a miner and it is added to the transcript of that individual. Module U0013 and U0064 do not appear on the transcript of Daniel Bougie as completed.
[33] MOL Inspector Johannesson sent a demand for the training records of Daniel Bougie. Only the records described above were provided.
Analysis
[34] The training system for miners in Ontario has been developed by the mining industry, the Ministry of Training, Colleges and Universities and the Ministry of Labour working together. The guidelines established by them state that, "The Underground Hard Rock Miner Program #770010 is intended for all workers working in an underground hard rock mining operation. These workers must be trained and accredited in the Underground Hard Rock Miner Common Core and in the Specialty Modules that pertain to their work."
[35] The guidelines further describe that the modular training programs, "are designed to ensure minimum performance standards for worker training to reduce workplace risk and increase worker safety."
[36] While these are admittedly guidelines only, they set out a minimum standard in the industry for the training of miners.
[37] Daniel Bougie had been a miner for 25 years and had worked on all types of raise mining. He testified that he was the leader on the ventilation raise. Paul Lefebvre testified that he was the second man on the ventilation raise. He had completed the common core requirements and the specialty module U0064.
[38] The training process set out by the MTCU does not allow an exemption for experienced miners. The requirement that all miners who will be working on a mechanized raise have or are receiving module training allows consistency in the knowledge and skill base expected of those employed in certain tasks to ensure safety. The guidelines do allow intra-provincial recognition of qualifications, but there is no suggestion that this applied to Daniel Bougie.
[39] The training program for the Mechanized Raise Mining is Module U0064 which is called, "Perform Mechanized Raising". Its performance objectives include not only operating the raise climber, but identifying workplace hazards, inspecting and scaling, preparing the face for drilling, setting up and using the drills, securing the ground, loading and blasting the face and stripping the raise. This module teaches more than the operation of the MRC.
[40] A worker in an underground mine who is performing mechanized raise work in Ontario must have this training as a minimum.
[41] The Occupational Health and Safety Act requires that an employer provide "information, instruction and supervision" to its employees.
[42] The evidence in this case is that no training, excluding module U0013, was provided to Daniel Bougie by the employer. In addition to the fact that he was not registered in module U0064 even though he was working in a mechanized raise underground, there was no evidence that he had received any other training of any sort from the employer prior to or during his employment. The employer failed to provide instruction to this employee.
[43] Regulation 854 of the OHSA provides:
(1) Employers in the following types of mines and mining plants shall establish and maintain the following training programs:
Hard rock underground mine,
ii. Specialty Modules for Underground Hard Rock Miner (Program #P770010)
(2) An employer shall train each worker in the modules of the programs described in subsection (1) appropriate for that worker.
[44] The transcript for Daniel Bougie shows that he had not completed module U0064.
[45] The corporate Defendant alleged that even though he had not completed module U0064 or any other training, Daniel Bougie was allowed to work at the mechanized raise because he may have been registered and working on completing module U0064 at the time of the accident and within the twelve month training period.
[46] The evidence is that there was a process in place with the employer which provided for the commencement of training to be signified by the signing of a performance objective by the employee and Mark Lauzon, the Signing Authority. There was a performance objective for U0013 signed by Daniel Bougie and Mark Lauzon signifying the commencement of training for that module, a pre-requisite for U0064.
[47] As there was no performance objective signed in regard to U0064, and the pre-requisite (U0013) for enrollment in U0064, had not been completed, Daniel Bougie was not and could not be enrolled in the module. He should not have been working at the mechanized raise.
[48] The corporate Defendant objected to producing any evidence of registration by Daniel Bougie in U0064. It took the position that to require it to produce this evidence, created a reverse onus contrary to the onus on the Crown to prove the charge.
[49] The Provincial Offences Act in s.47(3) provides as follows:
Burden of Proving Exception, etc.
s.47(3) The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information.
[50] In this case, if the corporate Defendant wanted to claim that Daniel Bougie was actually registered in U0064, an exception to the requirement that he had to have completed the module, the onus was on the corporate Defendant to prove the exception or the "in training" qualification.
[51] In the regulatory framework, this requirement for the defendant to prove certain exceptions or qualifications has been considered by various courts.
[52] The most cited case is that of Regina v. Lee's Poultry Ltd.. The allegation was that the defendant was operating a meat processing plant without a licence. On the basis of s. 48(3) (now s.47(3)), the trial judge convicted the defendant as it failed to meet the onus under this section to show that it had a licence. On appeal, the County Court judge reversed that decision and found the section to be constitutionally invalid because of the presumption of innocence and that guilt must be proven beyond a reasonable doubt by the Crown. On appeal, in speaking to the issue of Crown onus, Brooke J.A. states the following:
...At common law an exception developed to this fundamental rule for a class of offences created by regulatory legislation. Often such legislation created offences by banning specified activities but (by) excepted persons who had authority of the regulatory body to do the acts banned. That exception is expressed in the terms of s.48 (3) of the Provincial Offences Act.
[53] I find that the requirement for the corporate Defendant to show that Daniel Bougie was registered in module U0064 is an exception to the qualification that he had to have completed the module. This exception does create a reverse onus. The reverse onus is encoded in s.47(3) of the Provincial Offences Act and is a reasonable and just requirement.
[54] The corporate Defendant has failed to meet its onus to show that Daniel Bougie could work on the mechanized raise as a result of this exception or qualification.
[55] For these reasons I find that the Crown has proven these two charges beyond a reasonable doubt and the Defendant has failed to meet its onus to show an exception to the requirements. As such a conviction will enter in regard to both charges.
SAFETY NET
Charges Related to the Safety Net (Counts 3, 9 and 13)
[56] The company is charged in count 3 that it failed, as an employer, to take every precaution reasonable in the circumstances for the protection of a worker, contrary to section 25(2)(h) of the OHSA. The particulars are that the accused failed to ensure that the safety net, which it provided, was used on an Alimak raise climber as set out in its procedure "Hanging Wall Safety Net" and/or "Mechanized Raise Climbers (MRC) – Safety Net".
[57] In counts 9 and 13, Philip Parrott and Robert Beldock are each charged that they failed, as supervisors, to ensure that a worker used the equipment or protective devices that the worker's employer required to be used, contrary to s.27(1)(b) of the OHSA. The particulars are that the accused each failed to ensure that safety nets provided by J.S. Redpath Limited, and required to be used in that company's procedure "Hanging Wall Safety Net" and/or "Mechanized Raise Climbers (MRC)-Safety Net" were used on an Alimak raise climber at Goldcorp's Cochenour Mine.
Evidence
[58] A safety net attaches to the top of the MRC canopy on the hanging wall side and to the surface of the work platform or the extra roller assembly. The net squares are three inches. Its purpose is described in Redpath Work Standard R-010:
All ascending raise pilots with the use of mechanized raise climbers must be equipped with a specially designed safety net that protects the workers from immediate falling loose hazards from the hanging wall while climbing up onto the MRC platform. The safety net is to be installed in the nest before the crew ascends the raise to an unsupported round and removed once the hanging wall has been check scaled from the safe protection of the canopy and safety net.
[59] In this case, the MRC was ascending when it was hit with "loose", which is loose rock.
[60] The Redpath Work Procedure acknowledges that the purpose of the net is to prevent, "Worker struck by loose from hanging wall". It also states, "A worker climbing from the personnel cage up onto the platform after a fresh blast is vulnerable to the unsupported ground of the hanging wall. The specially designed safety net will deflect loose larger than 3" if properly set up, and is required until after the worker has check scaled any local loose from the hanging wall of the raise."
[61] The procedure sets out that, after a blast when the MRC ascends to the face, the worker leaves the personnel carrier, and, "When at the face, one individual (usually the crew leader) will open the trap door and climb the cage ladder to the top platform...the leader can close the trap door...from under the overhead protection of the canopy, the leader can now select a scaling bar from the steel pocket and check scale the face, hanging wall, and remaining walls in this order."
[62] Daniel Bougie at first said he had never seen a safety net before, but later said he had seen one but had never used it. He testified that he had been told by the boss that they weren't obligated to use it.
[63] Paul Lefebvre said he had never seen a safety net until he threw it down the raise to get Neil Goodman's attention. He had never seen it used in Quebec or anywhere.
[64] Tim Dasti, another supervisor, testified that he did not know if it was used or not.
[65] Kenneth Abbott, a superintendent at the Rubicon mine, sister to the Cochenour Mine, also a Redpath employee, said that the safety net was always used on the MRC at his workplace. The policies were always followed. However, he also said that the safety net would not be effective in a raise of more than 79 degrees.
[66] Derek Budge, the head of Human Resources stated that the safety net, and a new mechanism for the lock of the trap door, were safety innovations of the company. The safety net was effective when the degree of the raise was between 45 and 79 degrees. The reason was that, as the degrees lessened, the hanging wall became more of a roof than a wall. Rock falls straight down. He acknowledged that the policy and procedure did not limit the application of the requirement to use a safety net to any particular raise degree.
Analysis
Charge against the Corporate Defendant
[67] The safety net is a reasonable precaution on an MRC for the protection of a worker. Its purpose is to directly protect workers from falling loose in raise mining. The employer made the right decision in developing the safety net and having a policy and procedure to ensure its use. Unfortunately, the two miners involved in this case had not been trained or made aware of the safety net or its use.
[68] In the facts of this case, the blasting had occurred and Bougie and Lefebvre were ascending the raise in the MRC. The accident occurred at about 30 feet up the raise. The raise was at about an 84 degree angle – above the effective level for the safety net.
[69] It is not for this reason that I find that the Crown has failed to prove the count against the company under s.25(2)(h) of the OHSA.
[70] The court is required not only to identify if the safety net was a reasonable precaution, but it must be a reasonable precaution "in the circumstances".
[71] The safety net protects a worker who is at the face of the raise. When the worker goes through the trap door and onto the work platform, the safety net provides protection on the hanging wall side of the MRC while the worker does scaling to loosen any rock.
[72] The workers in this case were not working at the face of the raise. They were in the personnel cage travelling up the raise. The safety net was not made to protect workers who were not on the work platform at the face of the raise.
[73] In the circumstances of these workers, the safety net was not a reasonable precaution. This charge against the company is dismissed.
Charges against the Supervisors
[74] The elements of the charge against the supervisors under s.27(1)(b) are different from that faced by the company. The supervisor is required to ensure that a worker uses the equipment or protective devices that the worker's employer requires to be used or worn.
[75] In this case, the workers did not use the safety net required by the employer to be used. The Redpath policy indicates that the safety net is required to be attached to the MRC while the MRC is in the nest, prior to beginning its ascent. Clearly, the very circumstances contemplated by the safety net policy and procedure could have happened after the MRC reached the face of the raise on August 4, 2013.
[76] Robert Beldock had authority over the two miners on their shift. They testified that he was their supervisor.
[77] There is no evidence that Robert Beldock ensured that the safety net was used by the raise crew. The only evidence is that they were oblivious of the need to use it, had not been trained to use it and were unaware of the policy. The Defendant did not ensure that the miners used the safety net equipment as it was required by the policies and procedures of the employer. On this basis, the Crown has proven the charge against Robert Beldock contrary to s.27 (1)(b) beyond a reasonable doubt and a conviction will be entered.
[78] Philip Parrott, as the mine superintendent, had charge of the workplace and was a supervisor in accordance with the OHSA. The miners were not required to use the safety nets set out in the policies of the employer at the Cochenour mine where he was in charge. This contrasts with the Rubicon mine where the safety net policy was fully complied with under Mr. Abbott.
[79] The Safety Audit on the MRC of July 9, 2013 contains a notation directed to Philip Parrott which states, "Safety net to be used every round. Review with crew." While there is no evidence that he read the report or received notice of this deficiency, there was no action taken to ensure the use of the safety net by the raise crew.
[80] On that basis, the Crown has proven beyond a reasonable doubt that Philip Parrott failed to ensure that the workers used the safety nets provided by the company and a conviction will be entered.
SUPERVISION
Charges related to Supervision (Counts 4, 10, 14)
[81] The corporate Defendant is charged that it failed to "ensure that the measures and procedures prescribed by section 63(1) of Regulation 854, R.R.O. 1190 were carried out in a workplace known as the Goldcorp Cochenour Mine contrary to s.25(1)(c) of the OHSA. The particulars are that the company failed to ensure that "the 1300 Level Ventilation Raise where drilling and blasting were carried on was examined by a supervisor during each work shift."
[82] Mr. Parrott and Mr. Beldock are each charged that he failed, as a supervisor, "to take every precaution reasonable in the circumstances for the protection of a worker", by failing to ensure that, "he or another supervisor visited a ventilation raise where drilling and blasting was being carried on during each work shift", contrary to s. 27(2)(c) of the OHSA.
[83] The date alleged for both of these offences is August 3, 2013, as the shift on August 4, 2013 was not finished as a result of the accident.
Evidence
[84] According to Daniel Bougie and Paul Lefebvre, they were drilling and blasting in the ventilation raise at the 1300 level of the Cochenour mine once a day. The Raise Leaders Log Book shows that blasting occurred on August 3, 2013.
[85] Paul Lefebvre identified Phil Parrott as his supervisor and his shift boss as Bob Beldock. Although the men could have blasted in the raise twice a day, Paul Lefebvre indicated that Philip Parrott told them not to do so as it would impact their bonuses. Whenever they had problems, Daniel spoke to Bob Beldock. Every morning they had a safety meeting on the surface with Bob doing most of the talking. He never saw him at the raise. When asked on cross examination if Tyrone Dasti was a supervisor, he indicated that he was not sure.
[86] Daniel Bougie identified Bob Beldock as his supervisor. He said that every morning they lined up on the surface to talk about the work. When asked how many times Bob Beldock had been to the raise, he said that he could not really tell.
[87] He also indicated that the Raise Leaders Log Book was used to identify the work that was done, work that needed to be done and any concerns which the next crew should be notified of. Not all names of those who went to the raise were listed in that book. At the time of the accident there was not any cross-shift, but the night shift had welded the reamer for them.
[88] Neil Goodman said that he saw the front line supervisor, Bob Beldock a couple of times a week, although he also had interaction with Philip Parrott. When asked if he ever observed Bob Beldock to go up the raise, he replied, "Never."
[89] Tyrone Dasti was a supervisor but he testified that he had no Alimak crew. He also indicated that he had no authority over the crew blasting in the raise as their supervisor was Bob Beldock.
Analysis
[90] The term, "supervisor" is defined in the Occupational Health and Safety Act as, "a person who has charge of a workplace or authority over a worker".
[91] Both of the workers identified Philip Parrott and Bob Beldock as their supervisors. Philip Parrott was the superintendent at the Cochenour mine and had charge of the workplace. Robert Beldock was the shift supervisor for the men working in the raise.
[92] Tyrone Dasti was not the supervisor of the men, as he testified that he lacked authority over these workers who were not assigned to his crew. They were workers on an MRC (Alimak) and he stated that he did not have an Alimak crew working for him. He did not work at the same time of day on the same shift. The workers did not identify him as their supervisor. His assistance in having a bigger reamer welded on the day before the accident shows that he supported this crew, but such support cannot be turned into authority.
[93] I find that Philip Parrott and Robert Beldock were supervisors of Daniel Bougie and Paul Lefebvre. I also find that neither of these supervisors attended at the ventilation raise where Daniel Bougie and Paul Lefebvre were drilling and blasting.
[94] There was no evidence that the corporate Defendant had a process in place to ensure that the supervisors attended at locations in the mine where employees were drilling and blasting.
[95] There is nothing ambiguous about s.63(1) of Regulation 854, a Regulation for Mines and Mining Plants, under the heading "Protection of Workers". It states:
- (1) Every place where drilling and blasting is being carried on in an underground mine shall be examined by a supervisor during each work shift.
[96] In regard to the corporate Defendant violated this provision and a conviction will be entered. The Crown has proven the charge beyond a reasonable doubt.
[97] In regard to Mr. Parrott and Mr. Beldock, I find that it was a reasonable precaution in the circumstances of the dangers of drilling and blasting in these rock conditions, for a supervisor to attend at the raise during each work shift of the miners involved. The Crown has proven beyond a reasonable doubt that these individual supervisors failed to ensure that this oversight was done at the raise in this case. As such a conviction shall be entered for each Defendant.
GEOLOGY
Charge Related to Geology (Count 6)
[98] J.S. Redpath Ltd. is charged that it "failed to take every precaution reasonable in the circumstances by ensuring that a geologist or other person knowledgeable about rock mechanics was consulted when substantial changes in rock mass conditions were encountered while driving a raise" contrary to s.25(2)(h) of the OHSA.
Evidence
[99] Paul Lefebvre testified that the workers had access to a plan of geology for the raise at the 1300 level. He knew that there would be bad ground at about the 700 foot level where there was supposed to be a dyke. On the day of the accident the drilling was soft. The ground at 400 feet was not normal but he was not surprised that there was soapstone as he expected to start to find it after the 150 foot level. He had never seen soapstone or talc in his experience where it floated on the water. He and Dan knew what to do. They needed a better cut. They were working on the recipe to get it right so that it broke properly. The rock was confident.
[100] Daniel Bougie in his evidence stated that he knew the ground was changing a lot. The ground was nice and the face was soft. They were looking for slips. He changed the cut and used a bigger reamer to ensure the cut was going to work. The ground was about the same as it was before the men were off – muddy and behind that it was slippy, softer in front and harder in back. The whole raise was like that even before the accident.
[101] In the drilling just before the accident, he thought the ground was good. He stated, "We are experienced people who read the ground. We drill a certain way and it always breaks good. When it is not frozen we keep the same recipe. When we change the cut is when it freezes and it means the ground hits too hard."
[102] Tyrone Dasti was the cross shift supervisor who visited the raise the day before the accident.
[103] Mr. Dasti's training record indicates completion of the Common Core for First Line Underground Mine Supervisor. The competency profile includes a module to "Identify Geological Features and Supervise Ground Control Installations" with these specific components:
- Identify site-specific mineralization (ore or waste)
- Identify site-specific geological structures
- Identify and respond to hazards associated with Diamond, Long Hole and Specialty Drilling
- Verify Ground Control requirements
- Ensure ground support is installed as per specifications
[104] Mr. Dasti indicated in his evidence that he had been mining for twenty years. The experience he has and the education he completed included identifying rock types and masses, geological falls, slips and how to implement ground control or other methods to deal with all hazards found in the rock structures. He had managed projects as a superintendent.
[105] He had a discussion with Daniel Bougie the day before the accident in regard to the cut. They needed a bigger reamer to make a bigger cut. About 18 inches of the round had frozen. The round broke at the top and not the belly. The walls were fine. There was a solid talc mass and good ground. He had no worries about the rock mass. They were in and out of talc ultramafic all the time. They interfaced with talc and basalt as they went up the raise. The face was solid talc. A solid mass in the round is a good day in his opinion.
[106] When asked if there had been substantial changes in the rock, Mr. Dasti indicated no. When asked if talc schist is a severe risk to miners, he stated that there was a greater risk with joint settings, not a solid rock mass.
[107] John Henning is a professional engineer for the mine owner Goldcorp. He prepared a report as a result of the accident of August 4, 2013, dated August 13, 2013. He confirms the rock at this raise:
The Alimak was collared in competent Basalt rock...at about 100ft below the current face, the raise passes into Ultramafic (Serpentinite altered) rock. The structural trend/foliation of the Serpentinite rock is orientated sub-parallel to the raise Hanging Wall(HW) and Foot Wall(FW). In the raise face, this results in the formation of small blocks...Some seams of harder rock, measuring 6" to 10" wide, are present within the Serpentinite host.
[108] Mr. Henning acknowledges in his report that the Ultramafic rock differs significantly from the basalt rock in both rock mass quality and rock strength. He recommended that more ground support be applied to the walls in the Ultramafic areas by increasing the bolt density and applying a different bolting pattern.
[109] In his analysis of the accident, Mr. Henning states that, "Photos taken after the 4 August, 2013 incident show some large blocks...on top of a muckpile of finer broken material...These rock blocks likely fell onto the Alimak deck and then subsequently fell off as the Alimak was brought back to its horizontal position in the nest. One rock piece remained on the Alimak deck." He estimated that the impact of a 100kg piece falling 400ft from the face would be 11.7 tons of force.
[110] In his testimony, Mr. Henning found that the Ultramafic rock was broken up by a series of long continuous joint planes. He said it was not unusual to come across Ultramafic rock at this mine site, both in shafts and raises. Asked if this is something that he would consider a substantial change in ground conditions, he stated that in his opinion it was not a change that would require skilled raise miners to stop drilling and consult a geologist. He added that the fundamental item for miners is to recognize a hazard and adjust as they go along. There were some situations that may require consultation with a geologist, but this was not one of them.
[111] Michael Kat is a professional engineer who prepared a report as a result of the accident of August 4, 2013, dated July 30, 2015.
[112] In his examination of the geotechnical mapping available prior to commencement of work on the raise, he states:
The anticipated rock mass conditions at the start(bottom) of the raise are within a basalt rock type. Approximately 200 feet up from the bottom of the raise the rock mass was anticipated to change to a talc-schist rock unit. About 360 feet up the raise a talc-schist-serpentine rock mass was thought to be intersecting the raise over the next thirty-five feet, before returned to the basalt rock unit.
[113] Mr. Kat confirms that the difference between basalt and talc-schist-serpentine is that the basalt has a higher compressive strength, is massive and relatively stiff making it a more competent rock unit then the Ultramafic rock which is weaker in strength and stiffness. In his opinion, the talc-schist-serpentine poses a greater risk to miners.
[114] In regard to whether the miners were aware of the change in rock the Kat report says:
The crew appeared to recognize the significant change in ground conditions. However, while some changes were made to the blasting approach, the crew and supervision did not fully recognize the severity of the hazard posed or understand the implications that the weaker rock mass would have on the blasting methodology and resulting success...It is vital that the raise be inspected and assessed by a person knowledgeable in the field of rock mechanics or ground control.
[115] He further suggests that such a knowledgeable person would likely have recommended the use of boosters or primers and any changes to ground support.
[116] In his testimony, Mr. Kat agreed that, based on the information that the miners had, they knew that they were going to hit talc at some point during the raise mining and it was anticipated. He also agreed that a freeze can occur if the cut is not big enough, if the ANFO is not loaded properly, or if there is a misfire.
Analysis
[117] The Crown must show beyond a reasonable doubt that substantial changes in the rock mass conditions were encountered and it was a reasonable precaution in the circumstances for the employer to have a geologist or other person knowledgeable about rock mechanics consulted.
[118] The anticipated type of rock at this raise was basalt, talc and talc-schist serpentine. Talc and talc-schist are softer, have less strength and are less competent than basalt.
[119] Clearly on the day of the accident, Paul Lefebvre described talc rock which was so fine that it floated on water. This fine rock is consistent with the nature of the rock at the bottom of the raise described by Mr. Henning on August 9, 2013. Daniel Bougie was better able to describe the rock as soft and muddy at the front and harder underneath. Both men indicated an adjustment to the drilling and the cut as a result of the softness of the rock.
[120] The recommendation of Mr. Henning was to ensure ground support with a different bolting pattern. He did not recommend changes in the blasting process, as suggested by Mr. Kat.
[121] Was the change in the rock substantial? The dictionary definition of "substantial" is, "considerable, large, extensive, significant, important, sizeable".
[122] I cannot agree that the change to the rock at the 400ft level of the raise was substantial. I find that it was anticipated. There would be talc-schist crossing into the raise. According to Mr. Henning the talc-schist had basalt running through it and was not completely talc schist. The miners had to prepare for differences such as this in rock on a day-to-day basis.
[123] Even if I were wrong in assessing the rock condition changes as less than substantial, the charge is not limited to consultation with a geologist but includes a "knowledgeable person about rock mechanics" being consulted.
[124] With his experience and training, I find that Mr. Dasti was a knowledgeable person in rock mechanics and that Daniel Bougie consulted with him in regard to the cut for the drive. While his advice did not include the use of boosters and may have been deficient in that way, it does not mean that he was not qualified to provide guidance and advice to the crew.
[125] To call a geologist in when the raise is "in and out of talc" during its drive would be unreasonable. While I have concern about Paul Lefebvre's statement that he did not recognize the talc dust on water, Daniel Bougie did not indicate the same lack of knowledge.
[126] I find that the Crown has failed to prove beyond a reasonable doubt that the change in rock was substantial and that a knowledgeable person was not consulted. This charge will be dismissed.
LOADING DRILL HOLES
Charges Related to Loading Drill Holes (Count 7)
[127] The corporate Defendant is charged that it failed to take every precaution reasonable in the circumstances contrary to s.25(2)(h) of the OHSA by failing to , "ensure that workers followed the manufacturer's instructions for loading drill holes with ANFO."
Evidence
[128] The blasting material used by the corporate Defendant was provided to it by the mine owner, Goldcorp Inc. The material was a product called Dynomix and was produced by Dyno Nobel Incorporated.
[129] On August 4, 2013, Daniel Bougie and Paul Lefebvre travelled to the raise face. They drilled 8 foot drill holes into the face. The holes were 32 mm. They filled the holes with ANFO using a pneumatically driven hose. Detonators, caps and a birdie were also loaded.
[130] There was no real issue about the method used to load the holes on that day. The real issue underlying this charge is the position of the Crown that the manufacturer's instructions were to use boosters with the ANFO product, and that this was a reasonable precaution for the safety of the miners.
[131] Mr. Kat details in his report that in order to ship ANFO, manufacturers have made it increasingly desensitized. Blasting caps which previously had sufficient strength to help ANFO reach its minimum detonation pressure, no longer are able to do so. In the event that a hole has insufficient detonation and fails to detonate properly, it is called a missed hole.
[132] Mr. Kat contended that unsuccessful blasts creates one of the most severe hazards posed in an underground mine because of "the instability induced in the rock mass surrounding the blast site because of excessive blast induced damage." He states that the increased amplitude of ground shaking means, "the propensity for loose rock to form is dramatically increased and loose likely becomes larger in size."
[133] According to Mr. Kat, a booster is "a cap sensitive explosive but does not contain a detonator." A booster can cause the ANFO to reach its VOD (Velocity of Detonation) immediately after initiation, resulting in fewer missed holes.
[134] Paul Lefebvre stated that he had limited experience dealing with primers and boosters and had rarely used them. In the places that he worked, dynamite sticks were used if needed. Primers and boosters were never used on this raise drive.
[135] Daniel Bougie was familiar with primers, boosters and stingers. They were not used on this raise drive as they would, in his opinion, produce too strong of a blast. In discussions with his supervisor, they agreed that boosters were not needed as they had a winning recipe to that point. The employer knew how he worked, he said.
[136] On February 3, 2014 after the accident in August of 2013, Philip Parrott wrote a memo to Derek Budge in regard to Level 13 miss-holes. He states the following:
The raise was started on June 13, 2013. The first reported miss-holes were on July 5, 2013. Between July 5th and the Raise/MRC incident date of August 4, 2013, there were 19 reported miss-holes over 7 blasts.
The Raise crews were instructed to use Booster(s) and chose not to use them which resulted in miss-holes. The Boosters had been ordered and received on May 30th, July 15th and July 26th, 2013 making them readily available.
Subsequent to the incident on August 4, 2013, the raise crew started back in the raise November 19th, 2013 and unlike the previous raise crews they took their instructions seriously and incorporated the use of boosters in their blasting practices.
...From November 19, 2013 to present, there were no reported miss-holes from the raise crew or the Raise Supervisor(s).
[137] Significantly, this memo suggests that the corporate Defendant determined in advance that boosters were to be used in the driving of the raise and that the crews had been instructed to use them. The later use of boosters eliminated the problem of missed holes in the blasting.
[138] In May of 2014, Inspector Johannesson requested information regarding the use of boosters from the manufacturer.
[139] On June 24, 2014, an email was sent from Len Roche the representative for Dyno Nobel to Andres Johannesson, the MOL investigator. He attached the technical data sheet for Dynomix. He indicated in his email that boosters were recommended by his company for use with this ANFO product, and that other suppliers would have similar recommendations for their products. He stated, "Bottom line use of boosters with blasting agents is recommended." Shortly after this email, the information in this matter was sworn.
[140] The Technical Data Sheet is titled, "DYNOMIX Booster Sensitive Explosive". The first page sets out a chart which shows typical loading densities and rates of detonation for holes to 32 mm. On the second page, a chart sets out the use of primers per borehole, but goes no lower than 50 mm.
[141] The technical data sheet was relied on by Mr. Kat in his report. In his opinion, "Without knowing exactly where in a raise a sustainably different rock mass will be encountered, a reasonable precaution would be to use primers or boosters for all raise rounds, as per the manufacturer's recommendations ."
[142] After this, Mr. Roche claims that Inspector Johannesson called him while he was at the airport in Montreal with his wife on holidays. He said that the inspector wanted a letter saying that boosters should be used in an Alimak raise. He refused, and he says that the inspector began to bully him saying that he would have to bring him to court, and that every mine in Ontario would have to be shut down until this issue was resolved. Mr. Roche says that he emphasized that the miners are the experts and it is their call as to the type of blasting to occur. They agreed that Mike Kat would call him to discuss the matter. He claims that he was very upset and his wife had to calm him down.
[143] On June 10, 2015, almost two years after the accident in this case, Dyno Nobel retreated from their position that boosters should always be used with their products. A letter from Eric Reale, Product Manager, Packaged Explosives, states that in dry small diameter holes, 32 mm to 50 mm (the holes in this case being 32 mm) Dyno Nobel recommends:
Priming ANFO with high strength in- hole detonators;
Using small slipon cast boosters with in-hole detonators, or
Use a cap sensitive packaged explosive with in-hole detonator.
[144] He also suggested that the Blaster was the best person to determine the matter.
[145] The MOL Inspector Johannesson immediately wrote to Len Roche and asked for clarification and more specifics as to the meaning of option#1 put forth by Mr. Reale. He also asked if notice of this change would be sent to all companies using Dynomix, and signalled that he disagreed with the statement that the Blaster was the most qualified to determine the blasting method.
[146] In his evidence Len Roche stipulated that Dyno Nobel does not recommend boosters with 32 mm boreholes. The power in detonators such as the Nonel EZ Detonator had also been increased to compensate for the desensitization of the ANFO for shipping. He believed that boosters were a danger to miners and may create too much detonation. Mr. Roche also agreed that such a warning does not appear on the Dynomix technical information nor had other customers been informed of such a warning.
Analysis
[147] The reason for the use of boosters is clear: to reduce hazardous conditions for miners.
[148] The corporate Defendant recognized, before the raise work commenced, that the use of boosters on the 1300 Level raise drive was preferable. The company did not ensure that its direction to use boosters was actually implemented at the raise.
[149] The raise miners did not consider boosters as an approach to blasting, were inexperienced in the use of boosters and perhaps made a conscience decision with the shift supervisor not to use boosters.
[150] The corporation changed its position on boosters, if not directly, then by acquiescence to the wishes of the raise crews.
[151] I find that the use of boosters would have reduced the missed holes at the 1300 Level raise, as it did in the period from November 19, 2013 to February 3, 2014. It is proven to have been the appropriate approach to blasting in these rock conditions.
[152] The manufacturer was not asked about the use of boosters by the inspector until nearly a year after the incident.
[153] Dyno Nobel at first took a strong position that boosters should always be used. A year after that, it changed its position to exclude 32mm boreholes from that contention and to claim that boosters can create a hazard for miners. Its written technical materials did not clearly identify an exclusion of 32 mm boreholes and did not warn against the use of boosters. Dyno Nobel confused the issues related to boosters.
[154] The MOL inspector wanted to determine the appropriate blasting method so that a rule could be implemented. The industry was resistant to further rules and controls by the Ministry. In fact, in the submissions of the Defence they state that a conviction would "cause Inspector Johannesson to require the use of boosters on Raises...a major safety concern...".The blasters did not want to be told by anyone how to blast, even by the employer. The manufacturer wanted to sell products.
[155] For all of the mining committees, joint committees, multi-disciplinary working groups and the emphasis in the industry on safety, as articulated by Derek Budge, all parties failed to focus on resolving the safety issues related to blasting with or without boosters. The lack of training and qualifications of Daniel Bougie to work in the mechanized raise, the poor supervision and perhaps a direct determination not to follow the employer's judgement to use boosters, shows that the system cannot rely alone on the blaster as the decision maker.
[156] Based on the evidence in this case, I find that the use of boosters in the circumstances of this raise drive was a reasonable precaution.
[157] The Crown however, pled particulars for this charge. The particulars are that, "The accused failed to take the reasonable precaution of ensuring that workers followed the manufacturer's instructions for loading drill holes with ANFO."
[158] The Supreme Court of Canada in R. v. Saunders (1990) S.C.R.1020 set out the principle in regard to proof of particulars:
It is a fundamental principle of criminal law that the offence, as particularized in the charge, must be proved....The Crown chose to particularize the offence in this case...Having done so, it was obliged to prove the offence thus particularized. To permit the Crown to prove some other offence characterized by different particulars would be to undermine the purpose of providing particulars.
[159] In the case of Ontario (Ministry of Labour) v. The Corporation of the City of Hamilton, [2002] 58 O.R. (3d) 37 (ONCA), Sharpe J. reminds us of the OHSA context and the need for a generous interpretation of its provisions:
The OHSA is a remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety of workers. When interpreting legislation of this kind, it is important to bear in mind certain guiding principles...Narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature's public welfare objectives are to be avoided.
[160] As to the application of the principle in Saunders, he states:
In Saunders the Crown particularized the offence as conspiracy to traffic in heroin, but proved a conspiracy to traffic in a different drug. The Supreme Court of Canada found that the accused could only be convicted of the offence as particularized. In the case at bar, the Crown has not alleged one offence and then proved another to the prejudice of the accused. Here the Crown led evidence on the very same offence that was charged with no prejudice to the accused.
[161] The particulars in the case at bar do not refer to the use of boosters as a reasonable precaution. The particulars do not plead, for example, that, "The accused failed to take the reasonable precaution of ensuring that workers used boosters in accordance with the manufacturer's instructions for loading drill holes with ANFO." Such wording would allow a conviction in regard to the failure to use boosters.
[162] Here, however, the only issue is whether the manufacturer's instructions for loading drill holes with ANFO were followed.
[163] At the time of the accident, the only manufacturer's instructions in regard to Dynomix were, possibly, the technical information provided in June of 2014 and filed in this case. The chart on page 2 of the information does not include boreholes of 32 mm and therefore does not support using boosters in that circumstance. Even given the title of the document, the instructions are not direct enough for the court to conclude that boosters were required in 32 mm boreholes based on this document.
[164] On this basis the Crown has failed to prove the allegations in the particulars of this charge, and the charge is dismissed.
JOB TASK OBSERVATIONS
Charges related to Job Task Observations (Counts 8, 12)
[165] The corporate Defendant is charged that it failed to provide information instruction and supervision to a worker to protect the safety of the worker, contrary to s.25(2)(a) of the OHSA. The particulars allege that the accused, "failed to ensure that job task observations of a crew driving an Alimak raise were made by a supervisor or trainer."
[166] Philip Parrott is also charged under s.27(2)(c) of the OHSA for failing as a supervisor to take the reasonable precaution in the circumstances for the protection of a worker of "ensuring that job task observations of a crew driving an Alimak raise were made by a supervisor or trainer."
Evidence
[167] The materials of the corporate Defendant define a job task observation as a review of the operating practices/working methods and procedures of ongoing work on the project. It may be watching the drilling cycle ...observing individuals or a work group.
[168] The J.R. Redpath directive in regard to planned job observations sets out the reasons that they are important:
Planned Job Observations are pro-active tools and are important to our safety and our productivity. They ensure that workers understand and comply with procedures and regulations. They provide constructive feedback as well as positive re-enforcement. The observer should be able to determine if the crew/worker has the required skill, ability, tools and equipment to complete the task safely and efficiently. He will also determine whether or not the procedures/practices in place are adequate.
[169] The same directive states that the Planned Job Observations should be conducted once a month per supervisor. This differs from the Redpath Group Project Safety Accountability which say, "Minimum of 1 per crew per month each supervisor", tying the number of observations to the crew and not to the supervisor.
[170] The Redpath Group Project Safety Accountability also identifies that the responsibility to ensure that the job task observations are done, falls to "Site Superintendent Phil Parrott and Supervisors Beldock, Dasti and Lockhart".
[171] Filed in this proceeding was one job task observation conducted by Robert Beldock on July 31, 2013 in regard to Neil Goodman, the muck operator who worked in the raise. There were no other job task observations provided.
[172] Tyrone Dasti gave evidence that he had conducted many job task observations as a supervisor and used the form provided by J.S. Redpath. He would observe and make notes of how each task was done.
[173] In regard to the raise crew which included Daniel Bougie and Paul Lefebvre, he testified that he did not go up this raise and do job task observations because only their supervisor would do the observation and that was Robert Beldock. Mr. Dasti stated that he was not on the same shift and was not assigned to that crew and so he could not make observations of them and had no authority over them. He did not stay beyond his own shift.
[174] Kenneth Abbott from the Rubicon mine confirmed that his supervisors were expected to do job task observations and that they were mandated to do so. They used the form. The purpose was to see if the procedure in place was still valid and to provide feedback to workers regarding the quality of their work. Most supervisors looked for safety aspects of the job tasks.
[175] Derek Budge supported the idea of supervisors doing planned job observations. It gave the employer and the supervisor an opportunity to interact with workers and to rectify any deficiencies in performance. The company tried to monitor compliance with the safety elements of the jobs. Philip Parrott was in charge overall, but each front line supervisor would assess the crew working for them, which could be up to 20 or 30 employees depending on the project. The supervisors were given complete leeway as to when the observations would be done, but a report would be made to the superintendent to ensure compliance.
[176] In regard to job task observations on an MRC, Mr. Budge stated that the company would never expect one to be done during the driving of a raise as it would put the crew at risk. If a supervisor had to go up the raise with the workers, and stand on the platform while the workers drilled or scaled loose rock, it would, in his words, "be ludicrous". He would never ask a supervisor to do this.
Analysis
[177] It can be said that observing workers doing their tasks in any work environment would identify unsafe practices and is therefore a reasonable action.
[178] Contrary to the assertion by Mr. Budge, a skilled supervisor who could work alongside one of the crew would be able to make observations. The MRC could apparently take three people. Daniel Bougie also suggested that one of the workers could stay in the nest while another individual was brought to the face. Job task observations of the MRC preparation could have been done in the nest before it began its ascent. Job task observations of the crew driving the Alimak raise was possible.
[179] The job task observation of Neil Goodman in July of 2013 may have satisfied the requirement in July for a monthly planned observation of a member of the crew. However, no other records were produced to show that Daniel Bougie or Paul Lefebvre were ever observed by their supervisor, Robert Beldock, during any months of their employment. I find that job task observations were never done in regard to these two workers.
[180] In assessing whether the Crown has proven this charge beyond a reasonable doubt, the court must be satisfied that job task observations were a reasonable precaution in the circumstances of this case.
[181] What is the job task that the employer failed to observe, which underpins this charge?
[182] For example, if the trap door on the MRC had not been latched properly, and a worker had been injured by the door opening during ascent, the court could be satisfied that prior assessment of the method of latching the door may have avoided an accident.
[183] Job task observations of Daniel Bougie and Paul Lefebvre might have identified two tasks not properly executed: that the safety net was not applied to the MRC, and that blasting did not include the use of boosters.
[184] The evidence in this case shows that the raise miners needed instruction, information and supervision in regard to the safety net and also to the use of boosters in the raise.
[185] The failure to use the safety net or the boosters in blasting may have been observed by a supervisor attending the raise for the purpose of job task observations. As I have earlier found that the use of boosters reduced miss holes and the subsequent falling of loose, the job task of blasting should have been assessed by the supervisor Robert Beldock during job task observations. He would have identified the failure to use boosters as instructed by the employer.
[186] While Mr. Budge indicated that the completed forms for job task observations are now tracked by the employer, the system was either not in place or was not monitored during this raise drive.
[187] For these reasons I find that the Crown has proven beyond a reasonable doubt that the corporate Defendant failed to provide information, instruction and supervision to the workers on this crew by failing to ensure that job task observations were done of them, contrary to s.25(2)(a) of the Occupational Health and Safety Act.
[188] I also find that Philip Parrott, noted as the person responsible for job task observations, failed to take the reasonable precaution in these circumstances of having a supervisor conduct job task observations of the crew driving the Alimak raise, and as such he has committed an offence under s.27(2)(c) of the Occupational Health and Safety Act.
APPROPRIATE OFFICIALS
Charge related to Appropriate Officials (Count 15)
[189] Robert Beldock is charged that he failed to take every precaution reasonable in the circumstances, contrary to s.27(2)(c) of the OHSA by failing to, "ensure that appropriate officials were notified when a crew driving a raise encountered problems with blasting and/or with changing ground conditions".
Evidence
[190] I have found that Robert Beldock did not visit or examine the ventilation raise at the 1300 Level of the Cochenour Mine. There was no evidence that Robert Beldock was notified of problems with blasting or ground conditions at that raise. There is no evidence that he read the Raise Leaders Log Book. Daniel Bougie and Paul Lefebvre did not indicate that they communicated with Robert Beldock about issues in the days prior to the accident.
Analysis
[191] I cannot find that Robert Beldock was aware of a situation that needed to be communicated.
[192] The term, "appropriate officials" is vague and was not clarified by any evidence provided by the prosecution.
[193] On this basis, this charge is dismissed as the Crown has failed to meet its onus of proof.
IV. ABUSE OF PROCESS
[194] The Defendants have requested a stay of all charges on the basis of abuse of process.
[195] The Defence bases this request on "the behaviour and actions of Inspector Johannesson" as set out in their written submissions (p.35). They set out a list of "circumstances and actions" by the inspector that demonstrate, "a continuous abuse of authority".
[196] I have carefully reviewed the conclusions and circumstances set out by the Defendants in their written submissions.
[197] The argument of the Defendants is not that there was prosecutorial misconduct but that there was misconduct by Inspector Johannesson. I find that the only viable argument in this regard is the failure of the inspector to provide the letter of Eric Reale dated June 10, 2015 to the Crown and therefore the Defence.
[198] Inspector Johannesson's reason for not providing the letter of June 10, 2015 he received from Eric Reale to the Crown, was that he thought it was a general response to the issue of boosters and not particular to this case. This is difficult to accept as the inspector was awaiting a response from Dyno Nobel about the boosters, initiated by this case. I find that the information was relevant and should have been disclosed. I do not find that a conspiracy existed with others to hide the letter. In fact, if Mr. Karsi was essential to this argument, the defence could also have called him as a witness, even hostile.
[199] The common law doctrine of abuse of process applies in cases where the Charter of Rights does not apply. (see R. v. O'Connor (1995), 103 C.C.C. (3d) 1 (S.C.C.). It applies in regulatory matters. R. v. Abitibi Paper Co. (1979), 47 C.C.C. (2nd) 487 (ONCA).
[200] The conduct must be unfair and vexatious to such a degree that it contravenes fundamental notions of justice and undermines the integrity of the judicial process. (O'Connor).
[201] I find this failure to disclose this letter is not of such a degree that the community's sense of unfairness would warrant judicial action.
[202] As to whether there was an impact on the ability of the Defendants to make full answer and defence, the Defendants were in possession of the letter in advance of the trial and a witness for the Defence, Len Roche, was aware of the letter. I find there was no real impact. In any event, the Defence could have requested an adjournment of the trial in order to consider any needed answer.
[203] Even if this failure by Inspector Johannesson was an abuse of process, which I do not find, I would find that this is not the clearest of cases for which the stay of proceedings is preserved.
[204] For these reasons the application is dismissed.
V. CONCLUSION
[205] In summary, the corporate Defendant J.S. Redpath Limited is convicted of counts 1, 2, 4, 8, Philip Parrott is convicted of counts 9, 10, 12 and Robert Beldock is convicted of counts 13 and 14. All other counts are dismissed.
Released: March 10, 2016
Signed: "Justice of the Peace MacKinnon"
[1] Corrected March 18, 2016